Daily Archives: May 3, 2021

Translating Translation Requirements for Local Education Agencies

Authors: Eric E. Stevens and Omer A. Khan

Partially overlapping state and federal laws require local education agencies (“LEAs”) in California (school districts, charter schools, county offices of education) to translate certain documents into languages other than English for students and their parents or legal guardians. While some of these legal requirements are straight-forward and easy to apply, many requirements require subjective judgments by LEAs.

The Individuals with Disabilities in Education Act (IDEA)

Under the IDEA, certain documents must be translated into a parent/guardian’s native language:

The prior written notice provided to parents that proposes to initiate a change or reject a requested change in the identification, evaluation, or placement of a child with disabilities. (20 U.S.C. § 1415(b)(4).)

  • The copy, delivered annually to parents, of procedural safeguards under the IDEA. (20 U.S.C. § 1415(d)(2).)
  • The IEPs,  upon request of the parents. (5 C.C.R. § 3040; See below in relation to a parent’s informed consent.)
  • Information relevant to an activity for which an LEA is seeking a parent’s consent. (34 CFR § 300.9(a).)
  • Additionally, the IDEA mandates that parents are provided with an interpreter at all IEP Team meetings. (34 C.F.R. § 300.322.)

Additionally,  LEAs must ensure that parents have a “meaningful opportunity” to participate in IEP meetings.  As noted above, IEPs are generally required to be translated upon request.  In addition to a parents’ request, an IEP may require translation in order for the parents to give informed consent may. In some cases, courts have held that this requires providing parents with translated IEP documents in advance of IEP meetings. (Student v. New Haven Union School District (SEA Cal. 2010) 110 LRP 44200 [holding that failure to provide parents with translated copy of an IEP, even without request, resulted in a denial of a Free Appropriate Public Education (FAPE) because parents were unable to provide informed consent].)

In other cases, translation may not be necessary. (Vista Unified School District (SEA Cal. 2014) 114 LRP 130 [holding that translation of IEP was not necessary even when requested by mother because father was a fluent English speaker who translated the documents for her, and mother was able to actively participate in IEP team meetings through an interpreter with the father also present].) Whether translation is required to ensure parents’ “meaningful participation” must usually be determined on a case-by-case basis.

There have been several legislative attempts to add to the types of IEP documents that must be translated upon parent request (including revisions to the IEP and evaluations, assessments, and progress data used to determine eligibility or determine eligibility) and to establish a 30-day timeline by which documents must be translated. (See SB 695 in 2020, SB 354 in 2019, both vetoed.)

Other Federal Requirements

Title VI of the Civil Rights Act is a federal statute that prohibits discrimination in the provision of services by federally-funded entities, including schools. Under Title VI language-based discrimination constitutes illegal discrimination on the basis of national origin. (See Lau v. Nichols (1974) 414 U.S. 563.) The Department of Justice’s regulations and guidance requires that federal funding recipients take “reasonable steps” to provide “information” in languages other than English to ensure “meaningful access” under Title VI. (28 C.F.R. § 42.405(d)(1).) Federal courts have used the DOJ’s guidance as persuasive authority in interpreting Title VI. (See U.S. v. Maricopa County, Ariz. (D. Ariz. 2012) 915 F.Supp.2d 1073, 1080 [“The DOJ coordinates government-wide compliance with Title VI and its interpretation of Title VI is entitled to special deference”.)

The DOJ states that schools must communicate information to limited English proficiency (“LEP”) parents in a language they can understand about any program, service, or activity that is called to the attention of LEP parents. The DOJ’s fact sheet for schools is available from the DOJ at: https://www2.ed.gov/about/offices/list/ocr/docs/dcl-factsheet-lep-parents-201501.pdf.

A non-exhaustive list of information that should be translated includes information and materials regarding:

  • Registration and enrollment in school and school programs.
  • Grievance procedures and notices of nondiscrimination.
  • Language assistance programs.
  • Parent handbooks.
  • Report cards.
  • Gifted and talented programs.
  • Student discipline policies and procedures.
  • Parent-teacher conferences.
  • Special education and related services, and meetings to discuss special education.
  • Requests for parent permission for student participation in school activities.

The DOJ issued guidance in 2002 to help public agencies comply with Title VI. (2002 Guidance, 67 Fed. Reg. at 41,459, available at: https://www.govinfo.gov/content/pkg/FR-2002-06-18/pdf/02-15207.pdf) LEAs are encouraged, but not required, to develop “LEP plans” that guide their efforts to serve LEP students and parents. Whether or not an LEA develops or updates an LEP plan, the 2002 guidance suggests four factors for consideration when determining whether documents should be translated or interpreters should be provided:

  • The number or proportion of LEP persons the LEA serves or encounters in the eligible service population (students);
  • The frequency with which LEP individuals (students or parents) come in contact with the program, activity, or service;
  • The nature and importance of the program, activity, or service to people’s lives; and
  • The resources available to the LEA.

LEAs are encouraged to consider these factors when deciding whether certain documents or categories of documents should be translated. These factors are subjective, so they do not produce clear, definitive answers to whether particular documents or communications must be translated. While resources are a relevant factor, the Guidance cautions that recipients of federal funds “should carefully explore the most cost-effective means of delivering competent and accurate language services before limiting services due to resource concerns.” (2002 Guidance, 67 Fed. Reg. at 41,460.)

LEAs are also encouraged to translate “vital written materials,” but whether a given document constitutes a “vital written material” depends “upon the importance of the program, information, encounter, or service involved, and the consequence to the LEP person if the information in question is not provided accurately or in a timely manner.” (2002 Guidance, 67 Fed. Reg. at 41,463.)

The guidance recognizes that “reasonable steps may cease to be reasonable where the costs imposed substantially exceed the benefits.” (2002 Guidance, 67 Fed. Reg. at 41,460.) For example, a timely and complete oral interpretation or translated summary of a vital document might suffice in some circumstances. (Id. at 41,456, 41,460.) Additionally, “well-substantiated claims of a lack of resources” relieves an LEA of responsibility to translate “all vital documents into dozens of languages” but an LEA must still “translate those documents into at least several of the more frequently-encountered languages and to set benchmarks for continued translations into the remaining languages over time.” (Id. at 41,461.)

California’s Education Code

State law creates an additional requirement to translate certain documents. Education Code section 48985 requires LEAs to translate parental notifications into a language other than English when 15% or more of students at a District school speak that language.

Takeaway

In conclusion, partially overlapping state and federal laws impose multiple requirements to translate documents, notices, and communications into languages other than English for students and their parents. Many times there is no clear, objective, answer to the question of whether translation is required in a particular circumstance. Please contact us if you required assistance developing a limited English proficiency plan or navigating translation and interpretation issues.