In September 2016, after a five-year investigation, the U.S. Department of Justice’s civil rights division made an announcement: it had reached an agreement with Los Angeles County Superior Court to resolve allegations that the court was discriminating against its users based on their national origin.
The department launched the federal probe in response to an administrative complaint filed in 2010 by the Legal Aid Foundation of Los Angeles (LAFLA), which claimed the court was failing to provide meaningful access to its services for individuals who spoke limited English — in a state where 20 percent of the population fit that description. LAFLA filed the complaint on behalf of two court users who primarily spoke Korean and claimed the court had denied them interpreters for their cases, in violation of Title VI of the Civil Rights Act of 1964.
As part of its agreement with the Justice Department, Los Angeles County Superior Court promised to expand its provision of interpreter services to the majority of civil proceedings (court-provided interpreters had previously been required only in criminal matters), offer more translated court documents, and provide periodic updates to the DOJ through the end of the following year.
But during its investigation, the DOJ found that California courts’ language access problems weren’t limited to LA County. In 2013, the compliance section chief of the department’s civil rights division sent a letter to that county’s presiding judge, the state courts’ administrative director, and California Supreme Court Chief Justice Tani Cantil-Sakauye, identifying a list of statewide Title VI compliance concerns.
The letter stated that although the DOJ’s investigation was focused on LA County’s language access, “the structure of the California judicial system requires us to review mandates and policies that are promulgated and enforced at the state level.”
In 2015, the California Judicial Council responded to the strongly worded federal suggestion in the form of a 110-page report. The Strategic Plan for Language Access in the California Courts acknowledged the state’s “enormous linguistic challenge” and promised to develop “a comprehensive, statewide language access plan that will provide recommendations, guidance, and a consistent statewide approach to ensure language access” for the state’s court users with limited English proficiency (LEP).
“Access to the courts for all LEP individuals is critical not just to guarantee access to justice in our state, but to ensure the legitimacy of our system of justice and the trust and confidence of Californians in our court system,” Cantil-Sakauye wrote in the report’s introduction.
An essential goal — and a tall order. A fifth of California’s population are limited English speakers, and 44 percent of the state’s households speak a language other than English at home. More than 200 languages and dialects are spoken throughout the Golden State. Ensuring statewide language access was a monumental task for the Judicial Council when it adopted the strategic language access plan six years ago, guaranteed to demand sustained rigorous attention.
And then, of course, came the COVID-19 pandemic.
Joann Lee, special counsel on language justice at LAFLA, was on the team that filed the 2010 federal administrative complaint that compelled California’s courts to turn their attention to language access. The efforts she’s seen courts make over the years have varied widely, she says — because even with a statewide body like the Judicial Council overseeing the process, changes are ultimately made at the county level.
When the pandemic hit, Lee said, “that was even more exacerbated.” Counties chose different platforms for their virtual hearings. Some counties went entirely virtual, while others held proceedings in person on a case-by-case basis.
“The biggest obstacle was the lack of understanding of people’s options,” Lee said. “Because it was hard to get that information even in English in a way that people could understand.”
This spring, after vaccine rollouts and more than a year of adjusting to remote and socially distanced courtroom operations, California’s court administrators are starting to take stock of how the state can meet its goals of improving language access for all court users, while continuing to weather the ongoing changes the pandemic is making to the judicial landscape.
Alameda County Superior Court Judge Victor Rodriguez is the chair of the language access subcommittee on the Judicial Council’s Advisory Committee on Providing Access & Fairness, which has been working with the California Legislature, the governor’s office, and other stakeholders to address these challenges. Having spent years working on improving language access in the state’s courts, Rodriguez says that “language access is literally the base of access to justice.”
“Without understanding in a meaningful and accurate way what is being communicated to you, either orally in a hearing or in the written documents, then you cannot possibly participate in a meaningful way in that legal proceeding,” Rodriguez said.
There are about 1,900 certified court interpreters in California who perform an average of a million interpretations a year for LEP court users, according to the Judicial Council. Since last May, all of Rodriguez’s hearings have been conducted remotely — meaning all the interpretations in his court are also happening virtually.
California courts had already been experimenting with video remote interpretations before the pandemic, but COVID-19 has sped up those efforts. Amid that necessary acceleration, Rodriguez said, the question then becomes, “How do we meaningfully and efficiently promote language access without losing the quality of those interpretations?”
The Judicial Council recently approved new guidelines for video remote interpreting with an effective date of May 21, as part of a larger effort over the past year to streamline remote court proceedings in response to COVID-19. At the height of the pandemic, courts, attorneys, and LEP litigants had to find ad hoc interpretation workarounds.
Counties have varied in the technology they’ve used to conduct remote hearings during the pandemic. Alameda County uses Verizon’s video conferencing service BlueJeans. At a March webinar hosted by the Judicial Council, Michele Minsuk, a certified court interpreter and the Alameda County Superior Court’s interpreter services manager, said that conducting interpretations over that platform continues to be “a work in progress.”
Interpreters have used a “phone bridge” on the court’s conference line system so an interpreter can be on BlueJeans listening to the hearing and at the same time be on the phone with the litigant they’re interpreting for, Minsuk said. Although this solution has been a decent fix in an emergency situation, she said there is “a lot of room for improvement” in remote interpretation infrastructure. One of the biggest challengers for the interpreters she manages is “the simple problem of sound quality,” which is ” very difficult to manage when you have people in multiple locations using their own personal devices.”
“It makes a very big difference in how they can do their jobs,” Minsuk said.
Down in Los Angeles County, Lee said, virtual interpretations have created “all kinds of issues” for LAFLA’s clients, depending on whether the interpreter is present in the courtroom or is also attending the hearing remotely. “Usually in court the interpreting is done simultaneously,” Lee said. “If the interpreter is there in person and you’re virtual, then everything has to be done consecutively. It tries the patience of the judicial officer and everyone involved.”
To solve that problem, Los Angeles County Superior Court devised a fix similar to Alameda County’s phone bridge solution, where interpreters call litigants separately on the phone during a virtual hearing. LAFLA provided its clients with remote studios from which litigants could participate in hearings with access to tech support to minimize disruptions. But adding more devices to a hearing creates even more opportunities for technical malfunctions, Lee said, and “we’ve had a lot of problems, because usually something goes wrong and you can’t hear what’s going on.”
And all of those glitches are happening in urban, highly connected Los Angeles County. In California’s more rural areas, the technological challenges become even greater.
Marisa Christensen Lundin is the director of the Indigenous Program at California Rural Legal Assistance, Inc. (CRLA). Based in Kern County, she works with monolingual speakers of Indigenous languages from Latin American Indigenous communities. Members of those communities make up close to half of California’s farmworkers, CRLA estimates.
In rural areas with less robust broadband service, internet connectivity issues present severe obstacles to effective interpretations for Lundin’s clients. Interpreting by Zoom “can work,” she says, but its success “completely depends” on the internet connections of both the interpreter and the litigant.
“We have so many people who — if they have internet — it’s just really poor-quality and glitchy,” Lundin said. “Rural plus pandemic equals nightmare situation.”
Reaching people where they are
The imperfect technological innovations made necessary by the pandemic are still only one expression of the underlying challenges California faces in providing meaningful language access for all its court users. Especially when, as Rodriguez points out, “the vast majority of our users never come into a courtroom.” Whether an individual is using a self-help kiosk, calling the courthouse to ask a question, or just looking up directions on the court’s website, a language access barrier has the potential to make or break a legal outcome.
“If you’re in a domestic violence case, and I order you to take batterers’ intervention classes, but you speak Mandarin and those classes are not offered in Mandarin, then we have a problem,” Rodriguez said. “We have websites that tell you, ‘here’s where this department is located, here are the amounts of money that have to be paid, here’s how you request a fee waiver.’ When that information is only in English, or not professionally translated or updated, it’s not hard to imagine really bad outcomes.”
Because identifying every one of these potential blind spots from an administrative perch is implausible, Rodriguez said outreach has been a critical component in the work of the Judicial Council’s language access subcommittee. “We knew we need to not just stop on the notion that if we slap it onto a court website, we should assume the typical monolingual speaker is going to know,” he said. “We’re trying to really think about how we reach people where they are, not where we want them to come.”
But during the pandemic, that onus has often landed on LEP court users. Lee pointed out that, given the unreliable quality of virtual interpretations, many of the individuals LAFLA serves have decided to attend hearings in person — putting their health and safety at risk — or, alternately, elected not to appear in court at all. “A lot of people are just not seeking the relief that they need,” Lee said.
And where Lundin works in Kern County, meeting people where they are requires making highly efficient use of limited resources over vast geographical and linguistic landscapes. Because interpreters of Indigenous languages are underused and don’t have steady interpreting work, she says, they usually have other jobs — sometimes making them hard to schedule when you need them.
“If somebody’s working in the fields all day and we need them to interpret for two hours, it’s not worth it for them to take the whole day off work,” Lundin said.
There’s also the fact that 68 languages are spoken in Mexico, with 364 variants that are generally mutually incompatible. One of the most common Indigenous languages spoken by Lundin’s clients, Mixteco, has 84 such variants. When large interpretation companies that “don’t understand the nuance” send a Mixteco interpreter, Lundin said, it’s often someone who doesn’t speak the same variant as the litigant.
“The dynamic we frequently see is someone says they’ll just go forward in Spanish because the Mixteco is so incompatible,” Lundin said. “They’d rather go forward in the language they speak 30 to 40 percent of.” But that dynamic can compound language access problems for speakers of Indigenous languages, she said, because then the judge or opposing counsel will assume all the litigant needed was a Spanish interpreter rather than a Mixteco one.
Language access resources are similarly limited for other languages of lesser diffusion in California. Almost a third of the state’s population are native Spanish speakers, and Spanish court interpreters are relatively easy to come by. But for less widely spoken languages, the number of interpreters often doesn’t meet the demand. Lee recalled a client who spoke Nepalese whose case was continued for months while the Los Angeles courts tracked down a Nepalese interpreter. When they finally found one, Lee said, “everyone had to scream into the speakerphone, and it was really ineffective.”
Due to this lack of resources, it’s often been the case that LEP litigants in California have had to rely on a multilingual friend or family member to interpret for them. Besides the fact that these individuals usually aren’t professional interpreters — who have skill sets that go beyond just the ability to speak a given language — this arrangement can potentially result in adverse or even traumatic consequences. Rodriguez said that during the public comment period that preceded California’s adoption of the 2015 language access plan, he heard stories about domestic violence litigants who had to rely on the alleged abuser to interpret for them, or children forced to interpret for their parents in a custody dispute.
“Even for these departments and case types with self-represented litigants, you can’t lose sight of the fact that these are still legal proceedings with very significant consequences,” Rodriguez said. “You always run the significant risk of someone who’s going to summarize or generalize, or something’s going to be lost in the cultural understanding of this or that word.”
And for those languages of lesser diffusion, Rodriguez says California courts “have to be more thoughtful in terms of how we balance efficiency and cost and due process issues.” For example, if someone who speaks one of those languages is driving through a rural county and gets a DUI, or is working there for the summer and dealing with a small claims action, “those counties may have so little interaction and need for that language that they’re not going to have a court employee who speaks that language.”
“What are the different ways that we can navigate that?” he said. “Those become thorny issues that evolve over time.”
From Lundin’s point of view, it’s past time to bring those difficult questions to the forefront of California’s judicial mindset.
“Language access is tricky, because when you’re not in the middle of an emergency, it’s, ‘Well, what’s the rush?’ When you’re in the middle of an emergency, it’s, ‘We can’t stop everything to focus on the needs of this smaller group of people,’” she said. “It’s never the time for language access.”
But the lack of that access for linguistically marginalized communities is “the biggest problem that’s in front of all of our faces,” Lundin said — one that, if you don’t speak one of those marginalized languages, “you are completely oblivious to.” Once you step into that world and see the problem, she said, “you can’t unsee it.”
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