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Excerpted From: Andrew Truong, Linguistic Legal Deserts: Addressing Language Access in the United States Legal System for Limited English Proficient Asian Americans and Pacific Islanders, 102 Boston University Law Review 1441 (May, 2022) (267 Footnotes) (Full Document)
“The law is a profession of words,” and language plays a significant role in the law. Language creates laws and regulations and forms judicial opinions and jury instructions. Indeed, the outcome of a case can turn on the meaning of a single word. As such, understanding language used in the legal system is crucial. The goal of communication is at the heart of language, and legal language is no exception. Indeed, “[t]o be of any use, the language of the law ... must not only express but convey thought.” People should be able to understand the laws they are expected to follow, the contracts they bind themselves to, and the legal system they live under. However, legal language is often complex and convoluted, utilizing specialized vocabulary and unusual syntax that can cause great difficulty in understanding for those that are unaccustomed, especially litigants and criminal defendants.
In recognition of the importance of both understanding legal language and the difficulties of doing so, the “plain English” movement aims to utilize simplified wording to enable broader public understanding of legal documents and legal language. While a positive step, these efforts largely only benefit the English-proficient public. To ensure inclusive, equitable, and meaningful participation in the legal system, it is necessary to consider limited English proficient (“LEP”) individuals and the difficulties they face when interacting with the legal system.
LEP individuals are “[i]ndividuals who do not speak English as their primary language and who have a limited ability to read, speak, write, or understand English.” Language access refers to the ability of LEP individuals to utilize the same services and participate in the same programs as the English proficient population, which is critical to ensure access to justice for this group. With limited English abilities compounding the general difficulties of understanding legal language, LEP individuals face steep obstacles in attempting to navigate the U.S. legal system. Providing language access in the legal system necessitates a move beyond simply providing legal documents and legal assistance in plain English; such documents and assistance should be provided in an LEP individual's primary language to ensure they are able to participate in the justice system.
In recognition of the challenges that LEP individuals face within the legal system, government and non-governmental entities and organizations have taken steps to provide greater language access to LEP individuals. For example, on the federal level, Executive Order 13,166 directs federal agencies to take steps to ensure LEP individuals have “meaningful access” to their services. On the state and municipal levels, many states and localities have language access laws and regulations. The American Bar Association (“ABA”) has also issued its “Standards on Language Access in Courts” as guidance for courts to implement language access measures. However, the current measures to address language access issues in the legal system do not and cannot ensure complete language access, and furthermore do not adequately account for differences between LEP groups.
Specifically, for LEP Asian Americans and Pacific Islanders (“AAPIs”), cultural considerations and the vast linguistic diversity of the AAPI population in the United States pose unique challenges to accessing justice. There are over 2,300 languages spoken throughout the continent of Asia, and over 300 languages spoken in China alone. Partially as a result, the language access issues LEP AAPIs face persist despite existing efforts to address language access in the legal system. Moreover, certain proposed solutions, specifically increasing funding for the Legal Services Corporation (“LSC”) and increasing certified court interpreters, are inadequate to fully address these issues for the LEP AAPI population. LSC funding, while beneficial to many legal services organizations in assisting low-income and marginalized clients, cannot be used to assist many noncitizens without legal immigration status. As nearly one in seven AAPI immigrants is within this group, this constitutes a large part of the AAPI population. Focusing on increasing certified interpreters in courts would yield limited results given the vast linguistic diversity of LEP AAPIs and furthermore is a reactive response that does not substantively address the root issue of linguistic legal deserts, as will be discussed in this Note.
The inability to access legal assistance is not unique to LEP individuals. Rural Americans face a similar, serious access-to-justice problem due to the lack of accessible legal assistance in rural areas. The term “legal desert” has been used to describe this situation. Though rural Americans and LEP individuals face distinct challenges, the concept of a legal desert is also applicable to describe the lack of access to adequate legal assistance for LEP individuals as a result of limited English proficiency. In this Note, I apply the concept of a legal desert to LEP AAPIs and have created the term “linguistic legal desert” to describe this idea.
I propose a multipronged solution to address linguistic legal deserts for LEP AAPIs. Law schools should exercise their role in addressing linguistic legal deserts by actively recruiting AAPI students and students with language skills, and incorporating language access into their curricula and extracurricular programming. Law schools are institutions that shape the thought and future of the legal field, yet taking advantage of their potential to address linguistic legal deserts has not been considered. Various forms of non-attorney legal assistance--specifically non-attorney legal practitioner programs, legal help centers in courtrooms, and technological legal assistance--that are specifically targeted at assisting LEP AAPIs should be implemented. While non-attorney legal assistance is certainly not a new idea, I discuss its potential to assist LEP individuals specifically. Lastly, legal services organizations should partner with AAPI community organizations to bridge cultural distances to connect LEP AAPIs with linguistically adequate legal assistance. Other scholars have discussed the importance of such legal-community organization partnerships, and I agree that this is an important step to provide linguistically adequate legal assistance for LEP AAPIs. While this proposed multipronged approach is targeted towards addressing linguistic legal deserts for AAPIs, it is ultimately a partial solution. Linguistic legal deserts are complex and deeply rooted in the U.S. legal system, but their effects on LEP AAPIs and how to address them have not been widely acknowledged. Further research and engagement with the issue of linguistic legal deserts are needed, and other innovative solutions may become relevant in that process.
As this Note discusses linguistic legal deserts as they affect Asian Americans and Pacific Islanders, a brief explanation and exploration of the term and its use is helpful. The United States Census Bureau defines “Asian” as “[a] person having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian subcontinent” and defines “Native Hawaiian and Other Pacific Islander” as “[a] person having origins in any of the original peoples of Hawaii, Guam, Samoa, or other Pacific Islands.” In this Note, I use the term “Asian American and Pacific Islander” to refer to both of these groups.
“AAPI” is one of several terms used to refer to Asian Americans and Pacific Islanders. It represents more than a simple classifying label. The term is “ultimately political and part of a dynamic, continuing process of self-determination and self-identification” for this group, especially in light of the recent horrific surge in anti-Asian hate and violence. However, it is important to note that use of the term AAPI can sometimes be inaccurate and problematic. The term has been at times used incorrectly to encompass Pacific Islanders when discussing issues that only affect Asian Americans, exclusive of Pacific Islanders. In addition, while there are shared experiences across this group, the use of this term can erase the vast diversity of the group and the important distinctions between the over forty ethnic subgroups contained within Asian Americans and Pacific Islanders. These include the significant disparities in educational attainment and healthcare outcomes among AAPI ethnic groups and the fact that AAPIs are currently the most economically divided racial group in the United States. This can thus promote the harmful and erroneous model minority myth that all AAPIs are a singular monolith of “successful minorities,” which has been utilized to set AAPIs against other racial minorities in the United States.
Acknowledging this context, in this Note, I use the term “Asian Americans and Pacific Islanders” to describe both of these groups as a whole, while recognizing that linguistic legal deserts affect AAPI ethnic groups differently, because linguistic legal deserts nonetheless still do affect all groups of limited English proficient Asian Americans and Pacific Islanders. All LEP AAPIs face the consequences of the inability to access linguistically adequate legal assistance. Furthermore, the very fact that LEP AAPIs cannot access the same privileges, programs, and legal assistance as English-proficient individuals due to linguistic legal deserts, in addition to the fact that LEP AAPIs already experience lower levels of education and wages than English-proficient individuals, refutes the idea of universal affluence and access across AAPI subgroups that the model minority myth proclaims.
Part I of this Note further discusses legal deserts, LEP AAPIs in the United States, and language access in the United States legal system. Part II presents the issue of linguistic legal deserts for LEP AAPIs and examines two proposed solutions that do not adequately address the linguistic legal deserts that LEP AAPIs face: increasing funding for the LSC and increasing the number of certified interpreters in courts. Finally, Part III discusses law schools' role in addressing linguistic legal deserts, utilization of non-attorney legal assistance, and collaborations between legal services organizations and AAPI community organizations as solutions that should be taken together to address the linguistic legal deserts LEP AAPIs face.
[. . .]
Linguistic legal deserts remain a prominent issue for LEP individuals. While this issue is by no means unique to LEP AAPIs, the linguistic and cultural considerations of this group within the United States are distinct and important factors to consider in establishing solutions. Though language access has generally been acknowledged as an issue within the legal field, many solutions fail to adequately address these factors and moreover are reactive measures focusing on responding to the effect of linguistic legal deserts on LEP individuals rather than increasing access to legal assistance. While these reactive measures serve an important purpose and do assist LEP AAPI litigants, to meaningfully address the existence of linguistic legal deserts, solutions should primarily address the source of the problem by increasing linguistically adequate legal assistance for all LEP AAPIs. There is no easy solution to addressing linguistic legal deserts, and making progress will take time. However, by addressing linguistic legal deserts through tailored, proactive, and substantive solutions that increase effective legal assistance for LEP individuals, we can move towards ensuring that justice in this country truly is justice for all.
J.D., Boston University School of Law, 2022; B.A. Political Science, Spanish College of the Holy Cross, 2017.
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