Six Reasons Why Executive Order 13166 Should Be Revoked
Summary: President Clinton issued Executive Order 13166 (E.O. 13166) on August 11, 2000. Its stated purpose is to improve access to government services for persons with Limited English Proficiency (LEP) e.g.non-English speaking persons, by requiring that recipients of federal financial assistance take all reasonable steps to provide meaningful access to their services for LEP persons. The authority claimed for issuing E.O.13166 was Title VI of the Civil Rights Act of 1964, which bars discrimination on the basis of “national origin.” Accompanying Department of Justice (DOJ) Policy Guidelines state that “the failure to address language barriers” may be attributable to “invidious discrimination on the basis of national origin and race,” or ignorance of the situation.
Contrary to frequent assertions in the media, E.O. 13166 is not federal law, and it is not a federal regulation. It is a seriously flawed DOJ interpretation of civil rights law that contradicts thirty years of court cases and has yet to be tested and found valid in court. In the 108th through 112th Congresses (2003-2012) Rep. Peter King (R-NY) introduced bills to effectively repeal E.O. 13166 and declare it “null and void.” From 2005-2008, Senators Tom Coburn and Elizabeth Dole introduced repeal bills in the Senate. E.O. 13166 remains in force as an Executive Order to the present day because Presidents Bush and Obama chose not to repeal it.
The following summarizes ProEnglish’s objections to E.O. 13166.
1. ITS LEGAL AUTHORITY IS CONTRADICTED BY SETTLED LAW
When Congress debated and passed the Civil Rights Act of 1964, the disparate impact of English fluency was never discussed or included in the meaning of “national origin” discrimination. That was for a good reason. It is self-evident that a person can choose to learn a new language, but they can never change their national origin.The order ignores and contradicts thirty years of court decisions that have consistently rejected efforts to equate the failure to provide services in languages other than English with national origin discrimination.
2. IT HAS AN ENORMOUS, HIDDEN FISCAL IMPACT
Requiring translations and interpreter services to be made available in dozens of the more than 300 languages spoken in the U.S. adds enormously to the cost of government operations. OMB estimated in a 2002 report to Congress entitled, Assessment of the Total Benefits and Costs of Implementing Executive Order No. 13166: Improving Access to Services for Persons with Limited English Proficiency, that the total national cost of providing language assistance services to LEP individuals could be as high as $1 to $2 billion annually. However, the federal government has grown to a size twice as large as it was in 2002 and OMB admits these figures may not reflect the full cost of implementing E.O. 13166, since no federal agency is required to account for the cost of providing translations and interpreters, so a new, comprehensive analysis is greatly needed. A more accurate illustration of the Order’s fiscal impact is Canada: a country roughly a tenth of the size of the U.S. in terms of population, that spends an estimated $1 billion annually to provide the translation and interpreter services needed to conduct its business in just two official languages.
3. IT IS A LARGE UNFUNDED MANDATE FOISTED ON STATE AND LOCAL GOVERNMENTS
As recipients of direct or indirect federal financial assistance, virtually every state and local government in the country is compelled to comply with E.O. 13166. In effect, E.O. 13166 attempts to dictate the expenditure of taxpayer funds. It affects hospitals, police and fire departments, libraries, health clinics, parks, unemployment offices, and countless other county and municipal agencies. The California Medical Association pointed out the burdens of complying may force already financially strapped doctors and community hospitals to stop seeing indigent, non-English speaking patients. Similar objections were raised by the American Medical Association. The National Affordable Housing Management Association opposes E.O. 13166 because it forces affordable housing providers to divert scarce resources from providing vital tenant services, such as maintenance, in order to comply with the Order’s rigid language assistance requirements.
4. IT CONFLICTS WITH A STATE’S RIGHT TO MAKE ENGLISH ITS OFFICIAL LANGUAGE
Thirty one states have declared English their official language, often by lopsided victory margins as wide as 9-1. In spite of this, DOJ policy guidance asserts that E.O. 13166’s language assistance requirements supersede state laws that require state and local agencies to communicate officially in English. Specifically, the Justice Department’s E.O. 13166 policy guidance states: “. . . some [federal funds] recipients operate in jurisdictions which English has been declared the official language. Nonetheless, these recipients continue to be subject to Federal non-discrimination requirements, including those applicable to the provision of federally assisted services to persons with limited English proficiency.”
5. IT RESULTS IN VAGUE, ARBITRARY, AND INCONSISTENT COMPLIANCE STANDARDS
Federal agencies have issued guidelines implementing E.O. 13166 with standards of compliance that are vague, arbitrary, and inconsistent. These in turn create levels of risk and confusion that impair the efficient operations of innumerable government agencies and private contractors. For example, DOJ guidelines state “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.”
Agency guidelines are also full of vague terms and phrases such as “reasonable steps,” “meaningful access,” “to the maximum extent practical” and “meaningful participation.” DOJ regulations state that, depending on circumstances, translations must be available in 3, 5, 10, 15, or 30 languages. Treasury regulations go so far as to state that “Services denied, delayed, or provided under adverse circumstances [emphasis added] for an LEP person may constitute discrimination on the basis of national origin under Title VI.” Treasury regulations make covered entities responsible for the competence of translators they employ, and warn that such responsibility extends beyond formal certification to include things like assuring “sensitivity to the LEP person’s culture.” The guidelines posited create standards of compliance that are burdensome, vague, arbitrary, and virtually impossible to meet.
6. IT IS DESTRUCTIVE TO OUR NATIONAL UNITY
Winston Churchill said “The gift of a common language is a priceless inheritance.” America has been almost uniquely successful in assimilating an incredibly diverse stream of immigrants in large part because new arrivals have had to learn English. The effort to reverse this and force Americans to accommodate the language needs of an immigrant stream more diverse than at any time in American history, is certain to undermine the foundations of our national unity with the passage of time.