Do some state courts treat foreigners as second-class litigants?

Dear Colleagues:

For years, and especially during the past few months, there has been a lot of talk about the communities of foreign-born individuals who are physically present in the United States.  All aspects of their lives have been debated and scrutinized: from their immigration status to their religion, from their ethnic origin, to the language they speak at home. Many articles have been written, and many discussions have been held about their right to stay in the country, the impact they have on the economy, and the actions of the federal government regarding their admission to the United States and the exclusion proceedings instituted against them. The policy the federal government has adopted towards foreign-born individuals in the United States has been rightfully questioned, criticized and denounced.

As interpreters, we deal with foreign-born people on a daily basis. We see what happens at the immigration courts (EOIR), the United States Immigration and Citizen Services’ (USCIS) interviews, Equal Employment Opportunity Commission (EEOC) hearings, and the federal judicial system.  The news are not always good, but at least they are on the spotlight.  Scandals such as SOSi’s abhorrent practices towards immigration court interpreters, the White House’s six-country travel ban, and the talk about the wall between Mexico and the U.S. are forcing the issue, and eventually things will have to change.

Unfortunately, foreign-born individuals physically present in the United States as immigrants, non-immigrants, and undocumented, face another terrible injustice that is turning into a reality, and eventually it could become an everyday threat: I am referring to a practice followed by state courts in many places that is gaining popularity and acceptance by the establishment, sometimes due to ignorance or indifference, and many times because of incompetence and greed.

This modern form of potential discrimination by state-level Administrative Offices of the Courts against people whose first language is not English has to do with access to justice: It is evident to me that state governments could be systematically discriminating against people who lack fluency, or do not speak English, by denying them the services of certified court interpreters in languages with a certification program, just because state government officials want to save money.

It is undeniable that those states where the language access program is not managed by a professional interpreter are at a tremendous disadvantage because there is a person with neither knowledge nor interpreting background at the helm; but the problem is even worse. Some states where the head of the program is an interpreter, and many state-level courthouses with full and part-time staff interpreters are just passively allowing for this to happen without moving a finger for fear to lose their jobs.

The potentially discriminatory practice goes like this:

During the Obama administration, state-level courts were made aware of the fact that the federal government was going finally to enforce, after almost forty years, Title VI of the Civil Rights Act which allows the withholding of federal funds dedicated to the states when the latter do not provide universal access to all the services offered, even if some accommodations need to be made in order to avoid discrimination based on many categories, among them not being able to speak, or fluently speak English. This included all state-level courts.

Before this development many states were running court interpreter certification programs. California had its own program, and in July 1995 Minnesota, New Jersey, Oregon and Washington State founded a consortium. Other states joined the consortium, and many states began to offer the services of certified court interpreters for criminal cases. A handful of states even provided certified court interpreters for certain litigants in civil cases.  Unfortunately, lack of vision by the Administrative Offices of State Courts and by State Legislatures made the profession’s growth difficult because they refused to pay certified court interpreters a professional fee commensurate to the difficult, and sometimes dangerous, services provided.

This reality, coupled with judges’ ignorance that permitted non-certified court interpreters to appear in court, even though the needed language pair has a certification program, and certified interpreters were available, created an exodus of many of the best interpreters who migrated to more profitable interpreting fields, and made the profession less than attractive to new generations.

When the notice of enforcement of Title VI of the Civil Rights Act arrived, the states were faced with the possibility of losing huge amounts of money from the federal government. They knew that to save “their” money, they would need to provide access to justice to all individuals who did not speak English.

They finally realized what they had done (although they did not recognized it, or refused to acknowledge their fault). There were not enough interpreters to fulfill the federal mandate, and they did not want to lose their subsidies!

The best thoughtful solution to this problem would have been to boost the popularity of court interpreting as a profession by actively promoting the career and by making it more appealing. Responsible States would have developed a plan to encourage teaching of court interpreting at universities, colleges and community colleges. They needed to launch a campaign among high school students informing them of the potential opportunities as certified court interpreters. They needed to increase the times they offered their certification examinations, and they needed to pay an attractive professional fee, with cost of living adjustments, to all certified court interpreters. They needed to do this by lobbying State Legislatures for more funds, and if unsuccessful, by cutting or reducing other non-essential services and devoting those resources to the certified interpreter program. It was a matter of priorities and doing the right thing.

This did not happen. Instead of doing these things, state officials got together to see how they could keep the federal money coming their way. This is how the states came up with the Language Access Services Section (LASS), the Language Access Advisory Committee (LAAC) and the Council of Language Access Coordinators (CLAC). A system designed to protect their federal funds while giving the appearance of granting language access to all foreign-language speakers in State-court systems.

As a result of these developments, states opted for the easiest and cheapest solution, which basically follows three major principles: (1) Use video remote interpreting (VRI) as much as possible to reduce costs of an in-person interpreting service, and pay less to the interpreter as they would get paid by the minute, or in more “generous” states by the hour at a much reduced fee; (2) Use all those who demonstrated that they are not fit to become certified court interpreters, by creating a “new classification” of “credentialed interpreters” (Nevada) or “Justice System interpreters” (New Mexico) so that individuals who failed the court interpreter certification exam can work interpreting court proceedings; and (3) Use certified court interpreters as little as possible, while giving the appearance that these questionable new classifications had to be retained because no certified court interpreter was “reasonably available” to do the job.

This is happening in many states, and I ask you to please include in the comment section a report of what is going on in your own states. Because what is currently taking place in Nevada and New Mexico has come to my attention, I will share the main points with all of you.

The Nevada Administrative Office of the Courts is considering implementing this new category of paraprofessionals by rewarding those who fail the court interpreter certification test with access to work in court as interpreters. These decisions are being considered by the Nevada Court Interpreter Advisory Committee which is integrated by judges and administrators, and no independent certified court interpreter is part of the committee. Interpreters do not get notice of the Committee meetings, and so far, the person in charge of the interpreter program at the Nevada Administrative Office of the Courts apparently has shown no desire to inform interpreters ahead of time so they can at least attend the meetings.

Nevada courts use the services of way cheaper paraprofessional non-certified court interpreters even when certified ones are available, and currently, this state’s certified court interpreters are among the lowest paid interpreters in the country, despite the fact that judges and administrators make six figure salaries in Nevada.  It is clear that there is a problem with the state judiciary’s priorities.

The New Mexico Administrative Office of the Courts is already rewarding those who fail the court interpreter exam by using the services of these much cheaper paraprofessional “justice System interpreters” (JSI) even when certified court interpreters are available.  Under the excuse of unsuccessfully attempting to find a certified court interpreter, they are retaining the services of these individuals even when certified court interpreters were ready and willing to do the job. The State is also resorting to the way cheaper video remote interpreting (VRI) even when interpreters appear from other states and are not familiar with New Mexico law and procedure. It is very concerning that they are using this system and these interpreters for hearings of such importance as sentencing hearings.

The New Mexico Language Access Advisory Committee does include a disproportionate minority of independent interpreters; however, it is said that its meetings are sometimes hostile towards independent interpreters who raise objections to the dismantling of the certified court interpreter program, and that some interpreters have been refused work in the state court system even after all possible grounds for denial have been dissipated and proved unfounded.

Despite the fact that judges and the Director of the Administrative Office of the Courts make six figure salaries, New Mexico certified court interpreters have not seen a fee adjustment in a number of years, their expense reimbursements have been significantly reduced, and instead of having a professional relationship with a judiciary that makes an effort to prioritize access to justice and find funds to do it, they have been warned by the AOC that there is no money. They face an administration with an attitude that could be interpreted as contempt towards foreign language litigants, moved by a philosophy at the top that apparently believes that the AOC only has a legal obligation to provide “an interpreter”, not a certified court interpreter. To me, this is the pull the rabbit out of the hat principle where you create an “interpreter” category in order to get federal money. It is not about having a warm body next to the non-English litigant. It is about quality.  The federal law requirement had in mind a professional service.

I do not believe that this is the time for interpreters to take it on the chin. There is a lot of turmoil in the country at this time, but the rights of foreigners are center-stage. Let’s seize the moment to protect the profession and make sure that states do not get away with this plan which could potentially discriminate against speakers of a foreign language by treating them as second-class litigants.

I suggest you educate your communities, talk to your state legislators, and speak to your local media. All of it is necessary, but I also propose you do two additional things that could make the difference:

First, I wonder how many litigants are aware of the fact that the individual provided by the court to “interpret” for them is not a certified court interpreter; that in fact, they will be dealing with somebody who has already demonstrated that he or she is not fit to be a certified court interpreter because he or she failed the exam. I would approach people in the courthouse and make them aware of this circumstance; I would even print a flyer explaining to them that this “interpreter” categories are as good as a three dollar bill, regardless of what the government tells them. Ask them how they would feel if instead of a licensed physician, their outpatient surgery was going to be done by somebody who failed to become a licensed doctor.  Ask the foreign language speaker’s attorney what she or he would do if the court were to appoint a person who failed the state bar as the litigant in a divorce proceeding because there were no children to the marriage. You will see how fast they demand a real certified court interpreter for their case.

Second, organize yourselves either through your local professional interpreter association, or independently, and volunteer to attend court hearings where this paraprofessionals are “interpreting” (after all court is open to the public) and keep score. Write down every time one of these individuals is late for court, acts unethically, does something unprofessional, and makes an interpreting mistake. Write down how they enter their appearance in court, see if they claim to be certified court interpreters. After a few months, or during election time, send this information to the State Bar, to the publishers of voters’ guides, to the political parties, to non-for-profit organizations with tremendous weight in court elections such as Mothers Against Drunk Drivers (MADD) and to the local media. This way people will know who are the judges who care about access to justice, and who are the judges who only care about getting federal money.

I do not believe that these actions will solve all problems, but they will help to expose these programs for what they really are. If you do not do it, nobody will; not because they do not care, but because they do not know. I now invite you to share with the rest of us the current situation in your own state administrative office of the courts.

What is Presidents’ Day and how do you spell it?

Dear colleagues:

As it happens with other American holidays, many colleagues who live abroad, and others who live in the United States but grew up somewhere else, have asked me the meaning of the holiday we celebrate in the United States on the third Monday in February.  We have had forty five presidents in our country, and people often ask if we honor them all on this day. The answer is no. Let me explain.

The United States is a federation of fifty states and each state has its own legislation and decision-making process.  As a result of this system Americans have two types of holidays: Those that are observed in all fifty states called federal holidays, and those that are only observed in a specific state.  The latter ones are referred to as state holidays.  By comparison with other countries the United States has very few holidays.  The one observed in February is the third one on the calendar and it is just one of two holidays that commemorate the birth of a person (the other one is in January to honor the birth of Martin Luther King, Jr.)

All government offices close on federal holidays but the rest of the American people go to work on many of them.  The February holiday is one of those that the majority of the citizens of the United States will commemorate by going to work.

The U.S. has many founding fathers, all heroes and authors of the great country that we Americans enjoy today, but there is only one “father of the country.”  There is only one George Washington.  Because George Washington was born in the American state of Virginia on February 22, and he is the father of the country, in 1879 The United States Congress determined that all government offices in Washington, D.C. should remain closed to observe his birthday. In 1885 this was expanded to all federal government offices all over the United States.  On January 1, 1971 Congress passed the “Uniform Monday Holiday Act” and among other federal holidays, it shifted this one from Washington’s actual birthday to the third Monday in February.  As an interesting footnote I should mention that this piece of legislation moved the holiday to a day between February 15 and 21, so the observance never coincides with Washington’s real birthday on the 22^nd.  For many years the holiday was known as “Washington’s Birthday.”

Abraham Lincoln, another beloved American hero, and our 16^th. President, was born on February 12.  It was impossible to have two separate holidays to honor these two great men during the same calendar month, so for a long time Lincoln’s birthday was ignored.  A draft of the “Uniform Monday Holiday Act” would have renamed “Washington’s Birthday” as “Presidents’ Day” to honor the birth of both beloved presidents.  This is the reason why the observed holiday falls between both birthdays but it never falls on either.  The proposed name change failed in Congress and the holiday continued as “Washington’s Birthday.”  Lincoln’s birthday did not become a federal holiday, but several states, among them Connecticut, Missouri, and Illinois adopted it as a state holiday and they observe it on February 12, his actual birthday.

By the mid-1980s retailers and advertisement agencies started to refer to the holiday sales during this time-period as “Presidents’ Day” and the American people would soon follow suit.  Officially the holiday has never been named “Presidents’ Day.”  In fact, some state legislatures have chosen to honor Washington, Lincoln, and other heroes differently during the month of February. For example, the state of Massachusetts celebrates a state holiday called “Washington’s Birthday” on the same day that the federal government observes the federal “Washington’s Birthday,” and in May it celebrates a state holiday named “Presidents Day” honoring the presidents of the United States who came from Massachusetts: John Adams, John Quincy Adams, Calvin Coolidge, and John F. Kennedy.  In fact, the holiday falls on Kennedy’s birthday: May 29.  In Virginia where George Washington was born, the federal holiday is legally referred to as “George Washington’s Day.”  In Alabama the federal holiday commemorates Washington and Thomas Jefferson despite the fact that the latter president was born in April, and in New Mexico state government is open on the official federal “Presidents’ Day” because they observe it as a state-paid holiday on the Friday after Thanksgiving also known as “Black Friday.”

Now that we know that the third Monday in February is known as “Presidents’ Day” and it also serves the unofficial role of honoring Abraham Lincoln, and now that we understand that although a federal holiday, almost nobody but government employees have the day off on “Washington’s Birthday”, we need to talk about the correct spelling of this official federal holiday known to all Americans by its unofficial name: “Presidents’ Day.”

Today people refer to the holiday as “Presidents’ Day” and “Presidents Day.”  Both versions are considered correct by American dictionaries such as “Webster’s Third International Dictionary” and “The Chicago Manual of Style.”  As the use of attributive nouns has become common in the United States, “Presidents Day” has become the most popular term.  Of course, the spelling “President’s Day” is only acceptable when specifically referring to the birthday of Washington, and Washington alone.  So now you know what to do the next time they ask you to explain what Americans celebrate on the third Monday in February, whether or not you are willing to work on “Presidents Day,” and how to spell the name of this exceptionally unique holiday.  Please feel free to share your comments about the holiday or the way it should be spelled.

The Super Bowl: its influence in American life and public speakers.

Dear colleagues:

This past weekend the United States held the Super Bowl, an ever-growing part of American culture and lifestyle.  It is the most watched TV event in the country, and for all practical purposes, the day when the game is played is an unofficial holiday that happens to be more popular than most holidays on the official calendar.   We have previously discussed how this American football game is not the same football game played in the rest of the world.  This incredibly popular sport in the United States is known abroad as “American football,” and even this designation seems troublesome to many who have watched a little American football and do not understand it very well.  Although it is mainly played holding a ball, the sport is known in the United States as football for two reasons:  (1) Because this American-born sport comes from “rugby football” (now rugby) that in many ways came from soccer (football outside the United States) and (2) Because it is football, but it is not British organized football, which at the time of the invention of American football was called “association football” and was later known by the second syllable of the word “association”:  “socc” which mutated into “soccer.”  You now understand where the name came from, but is it really football? For Americans it is. Keep in mind that all other popular team sports in the United States are played with your hands or a stick (baseball, basketball and ice hockey). The only sport in the United States where points can be scored by kicking the ball is (American) football. So you see, even though most of the time the ball is carried by hand or caught with your hands, there are times when a team scores or defends field position by kicking or punting the football.   Now, why is all this relevant to us as interpreters?   Because if you interpret from American English you are likely to run into speakers who will talk about the Super Bowl, football in general, or will use examples taken from this very popular sport in the U.S.

Ten days ago, most Americans gathered in front of the TV set to watch the National Football Conference champion battle the American Football Conference champion for the Vince Lombardi Trophy (official name of the trophy given to the team that wins the Super Bowl) which incidentally is a trophy in the shape of a football, not a bowl.  It is because the game was not named after a trophy, it was named after a tradition.  There are two football levels in the United States: college football played by amateur students, and professional football.  College football is older than pro-football and for many decades the different college champions were determined by playing invitational football games at the end of the college football season on New Year’s Day.  These games were called (and still are) “Bowls.”  You may have heard of the Rose Bowl, Cotton Bowl, Orange Bowl, Sugar Bowl, and many others.  When a professional football game was created to determine the over-all champion between the champions of the American and National Conferences, it was just natural (and profitable) to call it the “Super Bowl.”

On this occasion, the fifty-first edition of the championship game was played in Houston, Texas, and the outcome of the game will likely be a topic many American speakers will include in their speeches for years to come.  For this reason, it is important that we, as interpreters, be aware of the result: The New England Patriots, a team that plays in the vicinity of Boston, Massachusetts,  defeated the Atlanta Falcons by coming from behind, overcoming a huge point difference, to win the Super Bowl in overtime after the was tied at the end of regulation.  The leader of this unprecedented come back was the Patriots’ quarterback Tom Brady.  Remember these two circumstances: The Patriots came from behind to win the Super Bowl, and Tom Brady led them to victory.  It will surely help you in the booth during several speeches by American speakers in the future.

As I do every year on these dates, I have included a basic glossary of English<>Spanish football terms that may be useful to you, particularly those of you who do escort, diplomatic, and conference interpreting from American English to Mexican Spanish.  “American” football is very popular in Mexico (where they have college football) Eventually, many of you will face situations where two people will discuss the Super Bowl; as you are interpreting somebody will tell a football story during a presentation; or you may end up at a TV or radio studio doing the simultaneous interpretation of a football game for your own or another foreign market.

The following glossary does not cover every term in football; it includes terms that are very common, and in cases where there were several translations of a football term, I selected the term used in Mexico by the Mexican media that covers the sport.

 

ENGLISH	SPANISH
Football	Fútbol Americano
National Football League	Liga Nacional de Fútbol Americano
NFL	N-F-L (ene-efe-ele)
American Football Conference	Conferencia Americana
National Football Conference	Conferencia Nacional
Preseason	Pretemporada
Regular season	Temporada regular
Playoffs	Postemporada
Wildcard	Equipo comodín
Standings	Tabla de posiciones
Field	Terreno de juego
End zone	Zona de anotación/ diagonales
Locker room	Vestidor
Super Bowl	Súper Tazón
Pro Bowl	Tazón Profesional/ Juego de estrellas
Uniform & Equipment	Uniforme y Equipo
Football	Balón/ Ovoide
Jersey	Jersey
Helmet	Casco
Facemask	Máscara
Chinstrap	Barbiquejo
Shoulder pads	Hombreras
Thigh pads	Musleras
Knee pads	Rodilleras
Jockstrap	Suspensorio
Cleats	Tacos
Tee	Base
Fundamentals	Términos básicos
Starting player	Titular
Backup player	Reserva
Offense	Ofensiva
Defense	Defensiva
Special teams	Equipos especiales
Kickoff	Patada/ saque
Punt	Despeje
Return	Devolución
Fair catch	Recepción libre
Possession	Posesión del balón
Drive	Marcha/ avance
First and ten	Primero y diez
First and goal	Primero y gol
Line of scrimmage	Línea de golpeo
Neutral zone	Zona neutral
Snap	Centro
Long snap	Centro largo/ centro al pateador
Huddle	Pelotón
Pocket	Bolsillo protector
Fumble	Balón libre
Turnover	Pérdida de balón
Takeaway	Robo
Giveaway	Entrega
Interception	Intercepción
Completion	Pase completo
Tackle	Tacleada/ derribada
Blitz	Carga
Pass rush	Presión al mariscal de campo
Sack	Captura
Run/ carry	Acarreo
Pass	Pase
“I” Formation	Formación “I”
Shotgun Formation	Formación escopeta
“T” Formation	Formación “T”
Wishbone Formation	Formación wishbone
Goal posts	Postes
Crossbar	Travesaño
Sidelines	Líneas laterales/ banca
Chain	Cadena
Out-of-bounds	Fuera del terreno
Head Coach	Entrenador en jefe
Game Officials	Jueces
Flag	Pañuelo
POSITIONS	POSICIONES
Center	Centro
Guard	Guardia
Offensive Tackle	Tacleador ofensivo
Offensive line	Línea ofensiva
End	Ala
Wide Receiver	Receptor abierto
Tight end	Ala cerrada
Running Back	Corredor
Halfback	Corredor
Fullback	Corredor de poder
Quarterback	Mariscal de campo
Backfield	Cuadro defensivo
Defensive end	Ala defensiva
Defensive tackle	Tacleador defensivo
Nose guard	Guardia nariz
Linebacker	Apoyador
Cornerback	Esquinero
Free safety	Profundo libre
Strong safety	Profundo fuerte
Place kicker	Pateador
Punter	Pateador de despeje
Penalty	Castigo

Even if you are not a football fan, I hope you find this glossary useful in the future.  Now I invite you to comment on football, sports interpreting in general, or maybe you would like to share a “sports interpreting anecdote” with all of us.