Recently, Erie County Executive Mark Poloncarz vetoed the Erie County Language Access Act. The act would have required every county agency to create a language access plan, provide timely interpretation, and translate vital documents and essential communications such as emergency alerts into the six most used languages in the county, including American Sign Language.
In his letter to the legislature, Poloncarz said the law did “not take into consideration the state and federal requirements already in place for language access across Erie County government.” He also said the “unknown costs and lack of additional funding for this Local Law are a concern.” However, his veto letter did not specifically mention the ASL portion of the act. So, we wanted to ask an expert, could the ASL provisions of this law conflict with federal requirements for disability access in any way?
Jasmine Harris, a law professor and disability rights legal scholar from the University of Pennsylvania Carey Law School, explains in a conversation with WBFO’s Disability Reporter Emyle Watkins how local laws can interact with federal disability laws, like the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973.
We also reached out to Erie County Executive Mark Poloncarz. His press secretary, Peter Anderson, sat down for an interview with WBFO to provide the county executive's stance specifically on the ASL portions of the act, which were not discussed in his veto letter.
"The administration was absolutely fine with the portions of the bill that pertain to American Sign Language. We've understood for a long time here in the Poloncarz administration that people with limited hearing are a big part of the population. They deserve to have correct and accurate information as quickly as do people with hearing and the provisions of ASL in that bill were just fine," said Anderson. "The administration had no problem with them."
Anderson also said the county feels they are already meeting the federal minimums for providing language accomedations to people with disabilities.
Emyle Watkins, speaking to Anderson: "I know he [Poloncarz] mentioned with other portions of the bill there could be state or federal legal conflicts. He doesn't have any concerns about legal conflicts regarding the ASL portion?"
"That's correct," Anderson said. "Not legal conflict so much as already all county departments and agencies who receive federal funds need to follow federal requirements and guidance for language access services. So, much of this is already being done at the county level."
PLAIN LANGUAGE DESCRIPTION: Recently, the Erie County Legislature passed a local law, called the Erie County Language Access Act. This local law would have required all parts of county government to create plans for how they would translate documents and provide interpreters to people who use the six most common languages in the county, including American Sign Language. This would also require the government to translate more documents and important communications, like videos explaining emergencies.
However, the Erie County Executive, Mark Poloncarz, has the ability to stop a law by vetoing it. And shortly after the Legislature passed it, Mark vetoed it. He sent a letter to the Legislature telling them he was concerned that it might conflict with laws the county has to follow from the state and federal governments, and he was worried about the cost of making this law happen.
So, we talked to a lawyer who could explain if there is any problem with a local law that changes how the county provides American Sign Language, or if the county could decide not to allow the law because of the cost of American Sign Language services.
Jasmine Harris is a law professor and disability rights legal scholar from the University of Pennsylvania Carey Law School. She explains that local laws make a county do more, but not less than existing disability rights laws. So if a county passes a local law saying they don’t have to do some of the things included in the Americans with Disabilities Act, it would not matter, because the Americans with Disabilities Act has to be the minimum of what they do. But, if a county passes a law like this Language Access Act, which requires them to do more than what the Americans with Disabilities Act requires, they would have to follow the local law.
Jasmine also explains that local language laws can save local governments money. Because local language laws that include American Sign Language can track how often counties are providing sign language, it can help make sure the county is not violating federal law. If the county violates federal disability law, they could be sued, which can be expensive.
Lastly, while the county can consider the cost of a law like this, not having the law wouldn’t change if they have to pay for sign language interpreters in certain cases. Federal law requires counties to provide residents with reasonable accommodations if they have a disability. For example, if someone uses sign language because they are hard of hearing or Deaf and needs to speak with someone in the county’s government they can request an interpreter. The county would then be required to provide an interpreter, or some other form of communication that would make sure they have an equal way to communicate. The language access law would require them to provide interpreters more frequently or more easily, but even without it, the county will still have to pay for interpreters when it is a reasonable accommodation for someone with a hearing disability.
We also spoke with Mark Poloncarz's press secretary, Peter Anderson, who says Poloncarz was okay with the parts of the local law focused on sign language. But, they had issues with the other parts of the law, which focused on written and spoken languages. They can't only pass part of the law, so they vetoed all of it.
TRANSCRIPT
Emyle Watkins: Hi Jasmine. Thanks for joining me on WBFO.
Jasmine Harris: Thank you for having me.
Emyle Watkins: Before we talk a little bit about the Language Access Act, I'd love to have you briefly share a little bit about you and your expertise.
Jasmine Harris: Sure. So I am a professor of law at the University of Pennsylvania Carey Law School, and I am a disability rights and disability law scholar and teacher.
Emyle Watkins: I know I contacted you because Erie County attempted to pass a Language Access Act, and that act would've required every county agency to create a language access plan, provide timely interpretation, and translate vital documents and essential communications such as emergency alerts into the six most used languages in the county, including American Sign Language. Now, I know I sent you the law and some background on it. What were your takeaways reading about this situation and what our county executive has said about this law and why he vetoed it?
Jasmine Harris: Sure. So I would say that there are two main takeaways. The first is that this law is not novel or unique in any respect. There are laws like this that are being rolled out or have been rolled out for the last 15 to even 20 years. If you look at Washington, D.C. for example, the Language Access Act was passed in 2004. And so this is something that other states have and the District of Columbia have grappled with and have similar concerns and have sort of raised these issues over time and have ironed them out.
Second takeaway is that there's a tremendous emphasis from the county executive on cost and the potential preemption here or conflicts of laws and with respect to cost, cost is of course something that the government should care about, but cost is also something that gets weighed and balanced against other interests, other interests that are laid out by other types of responsibilities and laws. Here, federal laws such as Title VI of the Civil Rights Act and Title II of the Americans with Disabilities Act show that in fact the cost considerations matter, but they have to be weighed and balanced against the rights that are in these particular laws, the rights to effective communication.
Emyle Watkins: Now, I know that the county executive has said that his concern with a law like this, as you mentioned, is that it could conflict with state or federal laws. Would creating a law like this conflict specifically with the Americans with Disabilities Act or Section 504 in any way when we're talking specifically about effective communication and providing American Sign Language interpretation?
Jasmine Harris: No. With respect to disability laws in particular, and the ones that you mentioned, Title II of the Americans with Disabilities Act provides a floor, not a ceiling in terms of what's required. And as I mentioned previously, it has an understanding built in, in terms of an affirmative defense for things like fundamental alteration or undue burden. And so cost is part of the analysis in that federal law, but the federal obligations are there on the disability side.
Emyle Watkins: So, in essence, when a local government passes a law that creates requirements to comply with providing American Sign Language that are above and beyond maybe what the ADA or Section 504 requires, it would just mean that the county would have to follow that law because it's stronger than the ADA.
Jasmine Harris: Correct. And following that law, again, is something that would be subject to the voters and democratic participation in that respect. But the federal laws are the floor, and there are many, many states and jurisdictions that have decided to go above and beyond what those requirements are.
Emyle Watkins: Now, could a local law like this one help enforce the county's compliance with effective communication under the ADA? Because I know that as it stands with the ADA a lot of times there can be issues with compliance, but they aren't really rectified until someone files a lawsuit or the DOJ [Department of Justice] gets involved.
Jasmine Harris: Absolutely. So one of the nice parts of this law is the data collection, and it is a component of other language access acts and legislation across the country. And that data collection allows for exactly what you said in terms of this preemptive compliance where you can see, are we complying, who are the users of the services and programs, and is their access going to be meaningful? So, the law like this is going to help make sure that in fact, you're complying with federal legislation and in fact you're providing meaningful access for the county residents.
Emyle Watkins: So could this also help protect the county against, say, some of those lawsuits because they'd know they're in compliance or hopefully it would help them keep tabs on how they're doing, so that way to prevent that more federal enforcement of the ADA?
Jasmine Harris: Absolutely. It could be a method of proactive compliance in that collecting the data allows the state and local counties to be actively engaged with who is again, using the services, who's benefiting from the services, who's not getting the information, everything from information about storms, weather to COVID related in the past. So these are really key messages that need to get out to individuals and to families.
Emyle Watkins: I know you mentioned other places have passed a local law like this one. Do you know if that's helped ensure minimum compliance or how that's helped those counties?
Jasmine Harris: So I haven't surveyed the jurisdictions across the board that have done this, but what I can say is that when I was in practice, there was at least one case that I had related to language access that also had a disability component. And one of the nice things was that the District of Columbia could say, "Here's the data that we have in terms of who our users are and figuring out whether that was part of the compliance picture," I think it led to certainly more information, better information in terms of negotiation and to understand compliance.
Emyle Watkins: And I know under the ADA, sometimes municipalities, businesses, et cetera, when someone requests a reasonable accommodation, they can come back and say, "Hey, that's unreasonable due to cost," but this is a little bit different. And I'm wondering if they could have any sort of legal argument to not implement this due to cost.
Jasmine Harris: So with respect to the language access side, the cost considerations, if this gets passed, what I understand from the county executive is that there's a request for this to be clearer in terms of understanding what the cost of compliance would be with respect to an analysis of a disability request. So let's go to your example of ASL. If an individual wants to receive interpretation services, let's say with respect to trying to secure summer camps, so we're getting into that season summer camps for their child and they are fluent in ASL and that is their primary language, then they would need to get interpretation services or a form of effective communication. It may not be ASL, but it would be something that would allow them equal access to receive the information about summer camps and to communicate with the individuals who could provide that information.
Now, with respect to the Language Access Act, if ASL is considered one of the six languages, then that would have to be provided 100%. If in fact it's not, then the analysis takes place under the Americans with Disabilities Act. Is this something that is required for effective communication? Likely the answer would be yes. And if the individual is in fact an individual with a disability meets those threshold requirements, then that individual would have to be provided with interpretation services. So it's hard in the abstract to talk about cost in part because what we're doing is we're talking about the ways in which these laws supplement and complement each other.
Emyle Watkins: And so in essence, this would go beyond the ADA. It might have a stronger requirement for how often they have to do this, but even under the ADA, there may not be necessarily a legal argument to not provide ASL interpretation based on cost.
Jasmine Harris: That's right. And so looking at the relationship between the Language Access Act here in that example Language Access Act might provide, if it's one of the six languages, then it might have to provide that as standard. And then if you look at the ADA versus if it's not one of the six standard languages, then you'd have to do the analysis under the ADA where perhaps cost might be a consideration. But that doesn't mean the accommodation wouldn't be provided. It just means that the accommodation has to be reasonable.
Emyle Watkins: So in essence, this local law could just streamline a process that either way might result in the same outcome.
Jasmine Harris: Exactly. With fewer costs down the road.
Emyle Watkins: Especially when you think about lawsuits against the county if they weren't implementing effective communication correct?
Jasmine Harris: That's right. And also for a law like this, what it can do in terms of costs is also reduce the administrative costs and the administrative burdens placed on the individual with disabilities to ask for a reasonable accommodation and signal that in fact, they are included members of the constituency where their language is recognized and they can just expect to receive this information as a matter of business.
Emyle Watkins: Is there anything else you think people should know about language access or about in particular, their current rights under the ADA for accessing sign language interpretation?
Jasmine Harris: I think I would say that it's sign language interpretation as a piece of it. And I would want to see this also as something that has to do with other individuals with disabilities, with an array of different types of disabilities that may have different needs for services. And so the thing about language access and what's really nice to see how it moves in the world together with the ADA and disability law is that people who have language access needs are also people with disabilities. And so there's this nice synergy between them that comes together here, and you can see that this is a matter of meaningful access. So do they have access to services? Yes. But if they can't get the information about those services, then that particular right is an empty right.
Emyle Watkins: Thank you so much Jasmine. I appreciate you taking the time.
Jasmine Harris: Absolutely. Thanks for having me.
