Equal access

The soft bigotry of low expectations (judiciary remix)

Looking around in my profession as a court interpreter, I can also recognize the soft bigotry of low expectations in action.

Ending that soft bigotry also takes affirmative, effective language assistance.I recall a poignant phrase that made the rounds during the presidential campaign of 2000, creating a bit of a wave in the electoral arena: “The soft bigotry of low expectations.” It propounded the notion of a stubborn yet hardly disguised institutional disdain toward the academic under-performance and dramatically high drop-out rates of students from certain disadvantaged backgrounds.

An injurious contempt, manifesting itself through ineffective accommodations that instead actually perpetuate that trend of performing systematically below their potential, and so end up reinforcing the structural disadvantages purportedly addressed. That suggestion, of good but ineffectual intentions and political correctness masking a bad case of de facto institutional contempt, projects a powerful image of insult added to injury.

Looking around today, in my own profession as a court interpreter, I can see an analogous image appear, of soft bigotry of low expectations in action throughout the US, considering how the judiciary structurally deals with non-native English speakers. And I believe that it is happening in many states. However: before going any deeper into this exploration of a much ignored problem, I want to quickly stress two important points first.

First, I quite deliberately referred above to good but ineffectual intentions; I reject any suggestion that such institutional contempt is the fruit of deliberate efforts. While I do consider the effect of systemic neglect very noxious, that doesn’t mean it is necessarily intentional. In my work I run very often – daily in fact – into smart, able and motivated people who work very hard and with the best of intentions, focused greatly on contributing to the benefit of the greater community. Unfortunately, just as happens in the just as daunting complex public education system that prompted that expression, the overall output of the judiciary machinery – as measured across specifically minorities – is in my view not of acceptable quality, either. All possible talk of intent aside, that result is that which matters to me.

Second, and although I specifically refer to the situation in the US, I do not want to suggest by any means that this country somehow presents a dismal international example. It does not; in fact I am prepared to argue a position closer to the contrary. Not many countries around the world make structural efforts comparable to what is being done here in the USA to lower language access barriers in the justice system. Besides, if one were to compare efforts of US states that mandate the use of court interpreters in criminal cases to similar efforts made in other countries, that side by side view would be more meaningful (not to mention, much more fair) when done with the administratively and politically corresponding counterparts at the regional or intermediate level, i.e. not at but below the national (federal) government level.

In this last regard it is very telling, as I found out very recently, that less than one third of the EU member states is in compliance with an existing EU-wide requirement to adopt national legislation regulating the use of qualified court interpreters in criminal cases. Mind you, that is not necessarily one third that is in compliance by actually offering such qualified language services but in enacting the regulatory framework; it’s a bureaucratic requirement that is met by just one third!

On the other hand, there’s the example in the US of Title VI of the Civil Rights Act of 1964, which was further clarified in Executive Order 13166 signed in 2000, and yet unfortunately to this date not all states are in compliance; California for example is only now beginning to embrace the concept of equal access to the judicial functions of government, beyond the criminal and juvenile court system, arguably also prompted by more serious scrutiny. As a recent article in the San Francisco Chronicle states:

The U.S. Justice Department has told California that federal law entitles everyone in court cases to state-funded interpreters. But the Judicial Council says state law appears to allow funding, when available, for civil cases, but only for low-income people who need interpreters.

In fact, the official site of the California Judicial Branch says as much on its self-help page on how to get court interpreter assistance:

In some cases (like criminal cases) the interpreter is paid for by the court and may be a court employee. Often (in most civil cases) the person needing the interpreter must get and pay for his or her own interpreter or get a friend to help interpret.

I don’t quite understand the distinction between court cases operating under criminal law (where interpreters are made available, regardless of the level of income of the person in question) and civil law, where availability of interpreter services is income dependent. It honestly doesn’t make much sense to me. While I am particularly seized by the importance of fiscal responsibility, accountability for public monies spent, and the primordial obligation to remain as frugal as possible with public funds, I just can’t see the justification for separating criminal and civil law with regard to the issue of when and where to offer court interpreters.

Either there’s all around parity and equal access to the judicial system, so that native-level English speakers and limited (or non) English proficient alike operate on equal footing, or there’s an inherent presumption of qualitative (not just operational or procedural) advantage favoring the English language. Unsurprisingly perhaps, I find the latter position utterly unacceptable. The following bit is taken from an introduction on the US DoJ’s Civil Rights Division website:

Federal laws prohibit discrimination based on a person’s national origin, race, color, religion, disability, sex, and familial status. Laws prohibiting national origin discrimination make it illegal to discriminate because of a person’s birthplace, ancestry, culture or language.

Not providing a free court interpreter in civil law cases poses therefor in my opinion a direct challenge to that unambiguously prohibited discrimination. A different approach toward the same conclusion is to consider the example of the plain language or “plain English” rewriting effort to make jury instructions better understood. The difference in register, that is: the distinction between plain language and jargon, is a difference made by language. So, to rewrite jury instructions into plain English is tantamount to making a universal linguistic accommodation, by lowering linguistic access bars to admit the broader group. So why should a barrier of income be justified when erected for non or limited proficient English speakers, yet not so in the case of less than highly educated English speakers? Interestingly, the abstract of the first quantitative readability study of plain language court forms in the United States states:

Results show a marked and statistically significant improvement in reader comprehension when court forms are treated for plain language. The data also suggest that because users of plain language forms understand more clearly what they have to do, when they have to do it, and where to seek support if they need it, there may be significant economies for the court.

The highlight in bold is mine. Obviously then, the argument of cost that is so often used to deny equal linguistic access is, at the very least, open to debate. Of course the lack of funds, used as an alternative to the more honestly stated cost based objection, is simply a result of legislative unwillingness to allocate funds. I do believe that there is not only room for improvement but a compelling need as well to improve. A need that, once met, results in a major payoff. As that plain language study from 2005 by Transcend also indicates, we can expect less waste in effort and money, and more compliance with court orders… It shouldn’t be all that hard, really, to picture the reward waiting at the horizon.

Time to bury that linguistic soft bigotry

Just think for a moment about costly violation of probation proceedings that can be avoided, just by making it perfectly clear in the defendant’s own language what exactly is expected,  what the consequences can be of non-compliance, and most importantly: where and who to go to as soon as unforeseen complications stand in the way of compliance. Think about non-payment of fines and fees that can be avoided. Ultimately, greater compliance and economy of court operations are synonymous with society’s well-being.

So what’s holding us back, then?

The more I think about this, the harder I find it to not resort to that campaign slogan from the 2000 campaign. Sadly, the soft bigotry of low expectations is still alive and well. In my opinion, there is no excuse for not exhorting lawmakers in Sacramento to comply with federal law as mandated from 1964 onward. And in states that are as diverse as California (and Nevada, its still fast-growing neighbor), it is past time to bury the systemic soft bigotry with the fruits borne by honest, hard work guided by great expectations.

That’s how we all honestly prosper.

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