2017: The biggest stain in U.S. court interpreting history.

May 7, 2018 § 29 Comments

Dear colleagues:

In the United States we have recently spent many hours debating and researching about the validity and credibility of interpreter certifications in the healthcare sector. We have argued back and forth about accreditation, certification, and professional practice because we care about the profession. The debate left us all with a better understanding of our certification programs and the validity of both.

For many years the gold-standard of interpreter certifications in the United States was undoubtedly the federal court Spanish interpreter certification exam. It was known for its difficulty and low passing rate when compared to all other court and healthcare interpreter certification tests. During all those years we never thought that one day we would be forced to question this “queen of all American court interpreter exams”. Fortunately, we are not doubting the content of the exam. This has not changed. The unfortunate people who took the exam in 2017 was administered the same exam all federally certified Spanish court interpreters had to pass. The administration of the test, and handling its consequences after the fact was the fiasco.

Dear friends and colleagues, certification exams are of extraordinary importance in the United States; they are more relevant in our culture and value system than in other countries. While other systems put their credibility on the academic achievements of the new professional, traditionally, the United States has emphasized practice over theory and formal education. Some of our greatest lawyers never attended Law School, because in the United States it is passing the Attorney Bar Exam that matters. There are plenty of countries where people cannot practice a profession, or sit for a Bar or Board exam unless they first graduate from college.

This situation is even more important for professional interpreters practicing in the United States where most of our colleagues have no formal education, but they have demonstrated, by passing the certification test, that they are ready to practice as professionals. In Europe a university degree is essential; in America a certification is vital.

From all certifications, the federal court interpreter certification has been used to measure the competency level and skills of court interpreters in the United States. It is even used (erroneously in my opinion) by small and mid-size interpreting agencies to pick the interpreters they will hire to work in the booth.

We are all aware of the Administrative Office of the United States Courts’ historical failure in 2017 when they could not guarantee the integrity of the process and created a huge mess that impacts many.

After a deafening silence that went on for many long months, and the letter sent out in February which make the situation even worse, the Administrative Office of the United States Courts’ (AOUSC) sent out a carefully crafted, self-serving letter to those who took the exam in 2017 where they try to appease the interpreters by carefully telling a story on the best possible light for the AOUSC and informing them that, after all these months, they are fair and just, and will give those candidates whose exams were compromised to where no score could be determined, and to those who will be told they failed, a chance to retake the exam for free.

I was saddened by the reaction of some, fortunately a minority, of colleagues who celebrated this communication and praised the AOUSC as had they done something wonderful and worthy of recognition. I do not know how many of you have seen last week’s letter. I did, and I am not impressed:

The first paragraph of the April 27 letter refers to the mistakes on the way the exam was administered as “irregularities” softening the tone and making it more palatable. Then, they portray themselves as the ones who investigated for months what happened to finally conclude there were “irregularities”.

Next, the letter states: “…Over the past several months, the AO has worked with a team of trained raters who reviewed all candidate performances and psychometricians who analyzed the rater materials and examination administration data…” but it does not explain who those “trained raters” and “psychometricians “were. I am not doubting their credentials, and I am not feeling confident with their review of this mess because I just do not know who they were. Are we talking about the same colleagues who rated the exams originally, and if so, how many, who, what additional training they had to take to assess these incomplete exams? Were there independent contractors free to disagree with the findings of the AO, or were these staff interpreters who could be very capable, but could also have a conflict of interest when evaluating something that could affect the reputation and legitimacy of their employer. The letter says nothing about it. It looks like a letter prepared by a legal team, not a friendly communication to a professional group that has suffered the consequences of this poorly-run program for many months.

The self-serving tone of the letter continues when they affirm that based on their (mysteriously obtained) findings, 69 percent of the exams were validly administered and accurately scored (we still do not know how they arrived to the conclusion), and 31 percent suffered “irregularities”. My friends, 69 percent is an awful record. This clearly proves the ineptitude within the AO.

The next paragraph shows us the magnanimous nature of the AO: “…Candidates whose scores cannot be validly determined will be given the opportunity to re-take the oral examination free of charge. Moreover, given the findings of the investigation, the AO will also offer anyone who does not receive a passing score the opportunity to retake the oral examination free of charge…” This clearly tells us that the exam was a terrible mess and basically anybody who wants it, will have a second chance, this time without paying for the test, which is not the same as free of charge as we will discuss below. Do we have to believe that it took all these months to arrive to this decision? This should have been announced right after the multiple mistakes were known, not until now, unless there were other legal considerations we are not been told about, like litigation with Paradigm for example.

The letter ends with a blank apology and a reassurance they will preserve the high standards and fairness of the administration of the exam. Did I miss something? There is no admission of wrongdoing anywhere (typical in all letters prepared by a legal department) and there is a self-serving assurance that everything will be fine because they will preserve high standards and fairness. I would think that when your credibility is already in negative numbers (below zero) you would make a statement you will bring back the high standards and fair administration process that distinguished the exam. Right now nothing is good to preserve. Of course, they cannot say anything like this without admitting fault.

Finally, the 8-page attachment is a pseudo-scientific document with no details that plays down the mistakes that can be directly attributed to the AO, and basically throws Paradigm under the bus. Again, there is talk of irregularities, but there is no data on the scoring units, the specific criteria used to assess the exams, or anything that can reassure us this was a scientific work.

It is incredible how the letter and its attachment avoid naming Paradigm and stay away from words such as fault, responsibility, and negligence. This is because those are legal terms and the AO is getting ready for litigation.

Even though the AO has shared nothing on their relationship with Paradigm, there are strong rumors in social media and federal courthouses’ hallways that the relationship has been terminated. This would explain the delay on the “findings” contained on the April 27 letter, as the federal judiciary gets ready to sue their contractor and Paradigm fights for payment of their fees and other contractual terms.

The 2017 federal court interpreter examination saga leaves the federal judiciary stained, the profession wounded, and court interpreters in the worst situation they have faced in history. Unfortunately, there are others who are affected even more and will not benefit from the “Magnanimous letter of April 27”. We can divide them in three categories:

First, those colleagues who studied hard and will get a letter telling them they passed the test. These individuals have been agonizing for 7 months without knowing if they would have to retest. Many have continued to study for the test. All have been deprived from their earnings as federally certified court interpreters for months. They will never get back these months of their lives, and they will never perceive the professional fees they should have earned as federally certified court interpreters working for court districts, assistant US attorney’s offices, public defender’s offices, and private attorneys that retain federally certified court interpreters for many services from jail visits, to depositions, to witness preparation, to federal civil litigation.  They will never earn that income because of a government agency’s ineptitude and a bottom-feeder contractor’s gross negligence.

The second group includes those interpreters who took the test, and for no fault of their own, will now get the “magnanimous” opportunity to retest “free of charge”.  The problem is, my friends and colleagues, there is not such a thing as a “free exam”. The “luckiest” of this crowd will be able to retake the test in their hometown without paying for it, but they must turn down other assignments to take the test. This means they will lose income and that makes the exam far from “free of charge”. Next, you have the unfortunate unlucky ones whose sin was to leave in a town where the exam will not be offered. We all know colleagues who drove overnight, got on a plane, got a passport and then got on a plane, and then checked into a hotel to take the test. Nobody will reimburse them for those expenses, and many must cough up the money once again if they want to take the exam. Even if they AO expands the locations where the test will be administered, it is doubtful this will include those of our colleagues who traveled from abroad to take the test. Plane tickets, hotel rooms, car rentals, gas money, tolls, and lost income will make the retake of the exam a burden to these colleagues. To them, this will not be a “free of charge” exam.

The last group, often forgotten during this fiasco of epic proportions, are the freelance federally certified court interpreters retained by Paradigm, with the blessing of the AO, to rate the original exams. These distinguished colleagues put first the profession and agreed to rate the exams, even if the pay is little for such hard work, they were asked to purchase their plane tickets, book their hotel rooms, and cover their daily expenses while this rating was happening, with the promise of reimbursement when their raters’ fee was paid. It is only now that some of the raters are getting paid; others have not seen a penny yet; and nobody has been reimbursed for travel expenses disbursed 7 or 8 months ago.

Last week, Paradigm sent a letter to the raters explaining why some had not yet been paid, arguing some bureaucratic step that the raters needed to comply with: Sending an email to the individual in charge of this fiasco at Paradigm informing him of this payment.

Regarding reimbursement of expenses, this letter, dated May 4 states: “…Payment for travel and hotel expenses will be released after Paradigm receives verification of your receipt of payment for Rater hours. Meals and incidental expenses will follow…”  They are telling raters that they are not sending their checks quite yet.

Next, the letter includes a self-serving statement that should worry the raters: “…Paradigm is working to get Raters paid in-full within the next few weeks. This is contingent upon Raters providing confirmation of receipt of payments received and the AOC continuing to approve the invoiced items for payment…”

In other words, there is no hard date for these payments, and reimbursement is contingent to AOC’s approval. This would make me very nervous if there is litigation pending between the AO and Paradigm.

As you can see, the “magnanimous letter” is far from a happy ending to this fiasco. The future is uncertain. Nobody knows if the AO will ever share the real data behind what happened and a detailed scientific explanation of the exam assessment process, including those who did it.

The biggest problem and reason to be concerned is the lack of transparency. Interpreters must know who retained Paradigm to administer the test. How was the bidding process; who were the other bidders, how low was the winning bid; who decided in the AO that Paradigm was qualified to administer an exam like the federal court interpreter certification test for Spanish interpreters? Why the credentials of a testing entity like Paradigm, which mainly proctors high school tests to monolingual students were appropriate for this bilingual professional test? There was ineptitude and negligence during this decision making process, and there was gross incompetence when dealing with the aftermath.

Those responsible should pay the consequences. Only then trust will be restored and people will believe the AO once again. In sports, when a team is not performing the coach is fired.

It is doubtful that the AO will come clean and provide all these records to the public. They have no legal obligation to disclose everything, but their moral duty compels them to do so. Without good faith, trust will continue to erode, and interpreters will be left with fewer and more distasteful options such as a Freedom of Information Act Request (FOIA) to see how the process happened; even though the process would be lengthy and the information released will be tittle more than the documents they already published. Those with standing can also sue the AO, but they must do it quickly, since the Federal Tort Act gives only 2 years to do so, and the process must start through an administrative channel. Also, the result of this legal action, even if successful, is limited by legislation and case law.

Perhaps a better option would be to sue Paradigm, its employees, and the AO’s officers as individuals (which is permitted) for damages under the contributory negligence by all defendants’ theory. This way, interpreters would learn more about the steps that lead to this fiasco from the discovery that the parties would have to turn over to the plaintiff. Also, damages awarded can include punitive damages.

I could not end this post without mentioning how the candidates who took the test, the raters who have not been paid, and the court interpreter profession were abandoned by their professional organizations during this struggle. It is sad to see how the current Board of the National Association of Judiciary Interpreters and Translators (NAJIT) abandoned its members by sitting on their hands and remain silent. It was until May 2, after the “Magnanimous letter” was made public, that the Board issued a self-serving harmless statement indicating that they were “…very much aware of the issue surrounding the federal exam…” and how they “are continuing to monitor the events as they unfold in June…” In other words, the national association with the most members directly affected, issues a communication after the fact even more sanitized than the AO’s. The latter called the fiasco “irregularities”; NAJIT could not even say that and called it an “issue”. Without any investigation, they have concluded that in their “opinion” “the AO is acting in good faith in what is an unfortunate set of circumstances”.  Again, this Board sided with the establishment instead of the profession and its own members. Nobody has suggested bad faith from anyone at the AO; the issue (correctly used in this context) is negligence. NAJIT is also telling those attending its annual conference that the AO will address court interpreters but not for a session “…geared toward the federal oral exam and its administration…” They want the AO there, but they will not pursue the federal exam fiasco as the topic to be discussed. That should not be because it could be uncomfortable to the AO, but because it will probably benefit the members more to talk about how many cases were interpreted last year, an interpreter directory, or other vital issues no doubt more important than the biggest stain in court interpreting history. We can only vote and hope to elect a NAJIT Board that will write position papers, hold round tables on the most pressing issues that impact the profession, as it had been the tradition before. It was just 2 years ago, under another Board, that we held a panel on immigration court interpreting that helped to change things to a better situation today. NAJIT is not a labor union and we do not expect it to act like one. We hope it goes back to its role representing the professional interests of its membership while defending the integrity of the profession.

It is time for all court interpreters to think and question those things that go wrong to change them. Treating interpreters as ignorant people, who should be grateful to the AO for letting everyone retest after 7 months of agony following a test that will go down in history as a monument to ineptitude and negligence, with no transparency and accountability is just unacceptable. I now invite you to comment, in the understanding that comments defending the AO or Paradigm will not be posted unless they come from an official source.

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