National Endowment for the Arts
Freedom of Information Act Guide

National Endowment for the Arts Policy Guidance

Title VI Prohibition Against National Origin Discrimination As It Affects Persons With Limited English Proficiency

The purpose of this policy guidance is to outline the responsibilities of organizations that receive federal financial assistance from the National Endowment for the Arts to assist people with limited English skills. The guidance explains the basic legal requirements of Title VI of the Civil Rights Act of 1964 (Title VI) and what recipients of Federal financial assistance can do to comply with the law. The guidance contains information about best practices and explains how the Endowment handles complaints and enforces the law.

Under Title VI of the Civil Rights Act of 1964, grant recipients must take adequate steps to ensure that people with limited English proficiency ("LEP") receive the language assistance necessary to afford them meaningful access to programs, activities, and services. The steps to be taken will depend on four factors: the number and proportion of eligible LEP constituents; their frequency of contact with the program; the nature and importance of the program; and the resources available. This guidance sets forth steps and model strategies that recipients can take to ensure meaningful LEP access to their programs, activities, and services.

A. BACKGROUND

1. Legal Rights of Persons With Limited English Proficiency

English is the predominant language of the United States. According to the 1990 Census, English is spoken by 95% of its residents. Of those U.S. residents who speak languages other than English at home, the 1990 Census reports that 57% above the age of four speak English "well to very well."

The United States is also home to millions of individuals who are "limited English proficient" (LEP): they cannot speak, read, write or understand the English language at a level that permits them to interact effectively. Because of these language differences and their inability to speak or understand English, LEP persons are often excluded from programs, experience delays or denials of services, or receive care and services based on inaccurate or incomplete information.

Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. Section 2000d et. seq., states: "No person in the United States shall on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." Under Title VI and the Endowment's regulations, a recipient of federal financial assistance may not, on the basis of race, color, or national origin:

• Deny an individual the right to participate in federally assisted programs;
• Provide services, financial aid, or other benefits that are different, or provide them in a different manner;
• Restrict an individual's enjoyment of an advantage or privilege enjoyed by others; or
• Defeat or substantially impair the objectives of federally assisted programs.

The Title VI regulations prohibit both intentional discrimination and policies and practices that appear neutral, but have a discriminatory effect. Thus, even if a recipient's policies or practices regarding the provision of benefits and services to LEP persons are not intentionally discriminatory, they may constitute a violation of Title VI if they have an adverse effect on the ability of national origin minorities to meaningfully access programs and services. Accordingly, recipients should examine their policies and practices to determine whether they adversely affect LEP persons. This policy guidance provides a legal framework to assist recipients in conducting such assessments.

2. National Endowment for the Arts Policy

The Endowment believes that federal and federally funded programs should not only provide appropriate services to the populations that they reach, but also try to reach underserved populations, including persons with limited English proficiency. Preserving America's varied, living cultural heritage is core to the Endowment's mission, and we strongly support grantees' efforts to reach people from many different cultures and language backgrounds. Part of the way we accomplish this is by funding programs in languages other than English, and by increasing access by non-English speakers to art. We will continue to give high priority to these outreach activities.

Currently, language accessibility in programs funded by the Endowment varies enormously, not only by size, nature, and location of organization but also by the field. Some arts disciplines, like theater and literature, are quite language-dependent. Except when a program is specifically designed to be multilingual, these artforms may have minimal inherent accessibility for LEP populations. Other arts disciplines, such as visual arts, dance, and music, transcend language and typically are quite accessible. Yet other disciplines have long experience with translation issues: for example, the opera field has developed surtitling, films may be dubbed or subtitled, and larger museums often have exhibit labels and audiotours in multiple languages.

As drafted, this policy statement allows grant recipients a great deal of flexibility in addressing the needs of their constituents with limited English skills. Balancing the factors in the policy statement -- the number or proportion of people with limited English skills served, the frequency of their contact with the program, the importance and nature of the program, and the resources available -- in most instances, Endowment grantees' Title VI obligations will be satisfied by making available oral assistance or commissioning translations under appropriate circumstances.

There will also be circumstances where Title VI would not require any translation. The policy document provides sufficient flexibility to allow language-dependent programs in both English and other languages without requiring translation that would be inconsistent with the nature of the program. There will be other circumstances, such as grants to arts organizations with substantial resources that serve large LEP populations, or grants involving arts education, where more substantial services for LEP populations will be appropriate.

The Endowment will continue to handle language discrimination complaints on a case-by-case basis, by fact-intensive inquiry into the actual effects of the recipient's actions and inactions on persons with limited English proficiency. Where the failure to accommodate language differences discriminates on the basis of national origin, the Endowment will require grant recipients to provide appropriate language assistance to LEP persons. The Endowment will simultaneously increase its technical assistance efforts in this area and assess the accessibility of its own programs and operations to LEP populations.

B. POLICY GUIDANCE

1. Who is Covered

All entities that receive Federal financial assistance from the Endowment, either directly or indirectly, through a grant, cooperative agreement, contract or subcontract, are covered by this policy guidance. Title VI applies to all Federal financial assistance, including but not limited to grants and loans of Federal funds, grants or donations of Federal property, details of Federal personnel, or any agreement, arrangement or other contract that has as one of its purposes the provision of assistance.

Title VI prohibits discrimination in any program or activity that receives Federal financial assistance. In most cases, when a recipient receives Federal financial assistance for a particular program or activity, all operations of the recipient are covered by Title VI, not just the part of the program that uses the Federal assistance. Thus, all parts of the recipient's operations would be covered by Title VI, even if the Federal assistance is used only by one part.

2. Basic Requirement: All Recipients Must Take Reasonable Steps To Provide Meaningful Access to LEP Persons

Under Title VI, every recipient of federal funds must take reasonable steps to ensure that LEP persons have meaningful access to its programs and services. Recipients will have considerable flexibility in determining precisely how to fulfill this obligation: there is no "one size fits all" solution.

What constitutes reasonable steps to ensure meaningful access will depend on a number of factors: the number and proportion of eligible LEP constituents; their frequency of contact with the program; the nature and importance of the program; and the resources available. Even those who serve very few LEP persons on an infrequent basis should use this balancing analysis to determine whether reasonable steps are possible and if so, have a plan of what to do if a LEP individual seeks service under the program in question. This plan need not be intricate; it may be as simple as being prepared to use one of the commercially available language telephone services to obtain immediate interpreter services.

The examples below are intended as illustrations of how a particular factor will apply, and are not a guarantee as to how the Endowment would handle a particular complaint of discrimination on the basis of language. In particular, these examples are not intended to suggest that if services to LEP populations aren't legally required under Title VI, they should not be undertaken. Part of the way in which arts build communities is by cutting across barriers like language. A small investment in outreach within a linguistically diverse community may well result in a rich cultural exchange that benefits not only the LEP populations, but also the arts organization and the community as a whole.

First, the appropriate action will depend on the size of the LEP population that the recipient serves, and the prevalence of particular languages. Programs that serve a few or even one LEP person are still subject to the Title VI obligation to take reasonable steps to provide meaningful opportunities for access. However, a factor in determining the reasonableness of a recipient's efforts is the number or proportion of people who will be excluded from the benefits or services absent efforts to remove language barriers. The steps that would be reasonable for a recipient that serves several LEP persons each day would not be expected from a recipient that serves one LEP person a year.

• a museum in a heavily Hispanic area should consider translating exhibit labels and/or audiotours into Spanish or offering regular bilingual tours.
• a visual arts organization in a community with a minuscule Vietnamese population and a large Chinese population should consider brochures in Chinese, but need not consider brochures in Vietnamese.
• an orchestra in an area with no French-speaking community need not translate its programs into French despite an isolated request.

Frequency of contacts between the program or activity and LEP individuals is another factor to be weighed. For example, if LEP individuals must access the recipient's program or activity on a daily basis (e.g., as they must in attending elementary or secondary school), a recipient has greater duties than if such contact is unpredictable or infrequent.

• a dance company that regularly presents performances in a Korean cultural center should consider translating the program notes and/or having Korean interpretation at selected performances.
• a chamber ensemble that books a single performance in a venue likely to attract language minorities might work with an interpreter for that performance, but need not translate the program notes.
• A local arts agency selecting artists in residence for a community center that serves a large population of Haitian refugees should seek an artist who speaks Haitian Creole.

The importance of the recipient's program to beneficiaries will affect the determination of what reasonable steps are required. More affirmative steps must be taken in programs where the denial or delay of access may have life or death implications than in programs that are not as crucial to one's day-to-day existence. For example, the Department of Justice has ruled that the obligations of a federally assisted school or hospital to LEP constituents are greater than those of a federally assisted zoo or theater. Generally speaking, this factor suggests that the obligation of arts organizations to provide translation services will be highest in programs such as arts education, job training, and subgrant programs. Organizations receiving funding from the Department of Education should adhere to its more stringent and specific requirements.

Another aspect of this factor is the nature of the program itself. Much visual art, dance, and orchestral music may be extremely accessible regardless of language. For these art forms, little translation might be required. By contrast, the language in which a play, a song, an opera, or a poem is written may be essential to its nature. While librettos, surtitles, and synopses in translation may be appropriate, performance in translation may not be consistent with the nature of the work.

Similarly, some culturally specific work might not be appropriate for translation. For example, in some instances, it may be appropriate to present a work in a foreign language with English translation as appropriate, or in bilingual form, without regard to LEP populations who do not speak either English or the language in which the work is presented.

• An artist-in-residence in an elementary school serving a large population of students for whom English is a second language should coordinate with the school's ESL/HILT experts.
• A local arts agency that operates a job referral directory of local artists in a community that is 25% Hmong-speaking should consider translating the application form into Hmong or offering an interpreter to assist Hmong speakers in filling out the application.
• A state arts agency rural arts apprenticeship program should consider matching students with limited English skills to bilingual mentors.
• A filmmaker making a film or television program for national distribution may dub or subtitle the film in other languages, but is not required to do so.
• A theater company need not offer a play in translation even if it serves a large LEP population, but may wish to present a synopsis in other languages.
• A Chinese opera company in a heavily Hispanic area need not offer surtitles in Spanish (or English) but may consider translating a synopsis of the libretto.
• A literary center might offer a program of poetry readings in Japanese, and offer written versions in English.

The Endowment is well aware that grant recipients may experience difficulties with resource allocation. The resources available to a recipient of federal assistance may have an impact on the nature of the steps that recipients must take. For example, a small recipient with limited resources may not have to take the same steps as a larger recipient to provide LEP assistance. Translation and interpretation costs are appropriately included in grant budget requests.

• a multi-million dollar orchestra receiving a $75,000 grant from the Endowment would have a higher level of responsibility to translate program materials than a small chamber ensemble on a minuscule budget that receives a $5,000 grant.
• A poet who receives an individual Literature Fellowship need not translate her poetry at a public reading even if she receives a request to do so.

C. MODEL STRATEGIES

The key to ensuring meaningful access for people with limited English skills is effective communication. An arts organization can ensure effective communication by developing and implementing a comprehensive language assistance program that includes policies and procedures for identifying and assessing the language needs of its LEP constituents, and that provides for a range of oral language assistance options, notice to LEP persons of the right to language assistance, periodic training of staff, monitoring of the program and, in certain circumstances, the translation of written materials.

There are four steps in establishing an effective program:

1. Assessment - The recipient assesses the language needs of the population to be served, identifying the languages that are likely to be encountered, and estimating the number of LEP persons that are eligible for services and that are likely to be affected by its program;

2. Development of Written Policy on Language Access - The recipient develops and implements a comprehensive written policy that will ensure meaningful communication with limited English speaking constituents;

3. Training of Staff - The recipient takes steps to ensure that its staff understands the policy and is capable of carrying it out; and

4. Monitoring - The recipient conducts regular oversight of the language assistance program (including any subgranted programs) to ensure that LEP persons can meaningfully access the program.

The following are examples of model language assistance strategies that are potentially useful for all recipients. Obviously, a large cultural organization that serves a significant and diverse LEP population should consider a broader range of these strategies. These model strategies incorporate a variety of options and methods for providing meaningful access to LEP beneficiaries:

• Posting of signs in lobbies and in other waiting areas, in several languages, informing the public of interpreter services and inviting them to identify themselves as persons needing language assistance;
• Having public-contact personnel use "I speak ____" signs (for example, in a box office) so that the public can identify their primary languages;
• Requiring contact personnel to note the language of the LEP person in his/her record so that all staff can identify the language assistance needs of the patron;
• Employment of a sufficient number of staff, bilingual in languages appropriate for the community, in public contact positions such as box office personnel. These persons should be trained and competent as interpreters;
• Contracts with interpreting services that can provide competent interpreters in a wide variety of languages, in a timely manner;
• Outreach to and consultation and coordination with community groups serving limited-English populations, for programming, during development of written and oral translations, and regarding standards and procedures for using their members as interpreters. This may include outreach through ethnic-specific radio and television programs or stations and faith-based groups such as temples, mosques, and churches;
• Formal arrangements with community groups for effective, competent, and timely interpreter services by community volunteers;
• An arrangement with a telephone language interpreter line;
• Translation of application forms, instructional, informational and other key documents into appropriate non-English languages;
• Provision of oral interpreter assistance with documents;
• Procedures for effective telephone communication between staff and LEP persons, including instructions for English-speaking employees to obtain assistance from bilingual staff or interpreters when initiating or receiving calls from LEP persons;
• Notice to and training of all staff, particularly public contact staff, with respect to the recipient's Title VI obligation to provide language assistance to LEP persons, and on the language assistance policies and the procedures to be followed in securing such assistance in a timely manner;
• Insertion of notices, in appropriate languages, about the right to language assistance, in brochures, pamphlets, manuals, and other materials disseminated to the public and to staff;
• Notice to the public regarding the language assistance policies and procedures;
• Adoption of a procedure for the resolution of complaints regarding the provision of language assistance; and for notifying the public of their right to and how to file a complaint under Title VI with the Endowment.
• Designation of a senior level employee to coordinate the language assistance program, and ensure that there is regular monitoring of the program.

In balancing the factors discussed above to determine what reasonable steps must be taken to provide meaningful access to LEP individuals, arts organizations should particularly consider the appropriate mix of written and oral language assistance. Which documents must be translated, when oral translation is necessary, and whether such services must be immediately available will depend upon the factors previously mentioned. (Recipients should keep in mind that many LEP individuals may be illiterate in their native language, and some languages may not exist in written form.) In some circumstances, instead of translating all of its written materials, a recipient may meet its obligation by making available oral assistance, or by commissioning written translations on reasonable request. Recipients should not rely on constituents' family members for interpretation.

D. COMPLIANCE AND ENFORCEMENT

The Endowment will enforce Title VI as it applies to recipients' responsibilities to LEP persons through the procedures provided for in our Title VI regulations. These procedures include complaint investigations, compliance reviews, efforts to secure voluntary compliance, and technical assistance.

The Title VI regulations provide that the Endowment's Office of Civil Rights (OCR) will investigate whenever it receives a complaint, report or other information that alleges or indicates possible noncompliance with Title VI.

If the investigation results in a finding of compliance, OCR will inform the recipient in writing of this determination, including the basis for the determination. If the investigation results in a finding of noncompliance, OCR must inform the recipient of the noncompliance through a Letter of Findings that sets out the areas of noncompliance and the steps that must be taken to correct the noncompliance. OCR will attempt to secure voluntary compliance through informal means. If the matter cannot be resolved informally, the Endowment will secure compliance through (a) the termination of Federal assistance after the recipient has been given an opportunity for an administrative hearing, (b) referral to DOJ for injunctive relief or other enforcement proceedings, or (c) any other means authorized by law.

Under the Title VI regulations, the Endowment has a legal obligation to seek voluntary compliance in resolving cases and cannot seek the termination of funds until it has engaged in voluntary compliance efforts and has determined that compliance cannot be secured voluntarily. The Endowment will engage in voluntary compliance efforts, will propose reasonable timetables for achieving compliance, and will provide technical assistance to recipients at all stages of its investigation.

In determining a recipient's compliance with Title VI, the Endowment's primary concern is to ensure that the recipient's policies and procedures overcome barriers resulting from language differences that would deny LEP persons a meaningful opportunity to participate in and access programs, services and benefits. The Endowment will view a recipient's appropriate use of the methods and options discussed in this policy guidance as evidence of a recipient's willingness to comply voluntarily with its Title VI obligations.

All recipients must take steps to provide the language assistance needed to ensure that LEP persons have meaningful access to services and benefits. However, larger recipients that have a significant number or percentage of LEP persons eligible to be served, or likely to be directly affected, by the recipient's program will be expected to use a wider range of the language assistance strategies outlined above. Smaller recipients -- such as small organizations, those with more limited resources, and recipients who serve small numbers of LEP persons on an infrequent basis -- will have more flexibility in meeting their obligations to ensure meaningful access for LEP persons. If implementation of one or more of these strategies would be so financially burdensome as to defeat the legitimate objectives of a recipient's program, or if there are equally effective alternatives for ensuring that LEP persons have meaningful access to programs and services (such as timely effective oral interpretation of vital documents), OCR will not make a finding of noncompliance.

E. TECHNICAL ASSISTANCE

Over the past 35 years, the Endowment has provided substantial technical assistance to recipients regarding civil rights compliance. We will continue to be available to provide such assistance to any recipient seeking to ensure that it operates an effective language assistance program. In particular, the Endowment will consult with and assist recipients by exploring cost effective ways of coming into compliance, by sharing information on potential community resources, by increasing awareness of emerging technologies, and by sharing information on how other recipients have addressed the language needs of diverse populations. Persons with inquiries may contact the Endowment's Office of General Counsel at 202/682-5418 or ogc@arts.endow.gov. Persons believing they have been discriminated against may contact the Office of Civil Rights at 202/682-5454.

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