In a Language Log post on September 2, Eric Bakovic asked the world to "explain to me how having your federally subsidized medical advice and instructions translated limits your freedom of speech". He got just one answer, a self-consciously cynical one suggesting that such a policy violates the medical profession's right to "[be] incomprehensible to ordinary mortals", a straw man that he effectively flattened in a post earlier today.
Now, I'm inclined to agree with Eric that medical professionals ought to be prepared to deal with patients with whom they don't share a language, though I haven't formed an opinion yet about Executive Order 13166 and the suit to overturn it, because I don't know enough about either the facts or the law. And I agree with Eric in opposing "Official English" legislation. However, I'm willing to take up Eric's challenge in a more serious way, acting in the role of advocatus diaboli.
To do so, I need to edit Eric's wording of the question, because his phrase "having your ... advice and instructions translated" is ambiguous. It could mean have in the sense of "to be subject to the experience of" -- "he had his nose broken in an accident" -- or have in the sense of "to cause something to be done" -- "he had his car waxed to impress his roommate". Although Eric seems to assume the experiencer sense, I'm going to make the causative sense explicit. This is partly because that's what my argument needs, but it's also because that's what the challenge to E.O. 13166 is actually about. According to the initial brief, the various HHS Policy Guidance regulations "[order] medical service providers and others to provide free translation services to limited English proficient (LEP) persons, [and] ensure the competency of the translation". It's also claimed that the same regulations "[expose] these providers to liability under both federal law and malpractice claims". This is not just a matter of letting someone translate for you -- you're required to provide the translation services, at your own expense, and to ensure their quality. If you don't do it, you expose yourself to legal liability, and also endanger your employer or the owner of the facilities that you use.
To see how this might create a first amendment issue, let's shift from medicine to higher education, and from professional services to intellectual discourse. This is a big shift, but not a legally or logically unreasonable one, since the law in question is the general Title VI "Prohibition Against National Origin Discrimination", which applies to schools just as much as to hospitals. In particular applies to any university that gets federal funds, and that certainly include both UCSD, where Eric teaches, and Penn, my own institution.
Now we can create all sorts of mandated-translation scenarios. For example, should colleges and universities be required to provide simultaneous translation of lectures, on demand, for any students with "limited English proficiency" (LEP)? How about providing translations of textbooks and course notes? In a big undergraduate class, where there might easily be LEP students from half a dozen different language backgrounds, this would affect the economics of higher education in a pretty major way. There might be a first-amendment issue in there, since the result would be to radically restrict the range of courses that could be offered and the set of texts that could be used, but let's look at a different hypothetical case instead.
Consider the usual departmental colloquium series, like the one that the UCSD linguistics department offers, or the all-too-numerous series at Penn that I sometimes attend. In general, these talks are open to the public, and those that sponsor them are happy to welcome anyone who wants to come listen. But suppose that we had an affirmative duty to provide simultaneous translation of the speeches -- and also translation of all handouts and slides employed -- into any language that any member of the audience chose to request. This would again be rather expensive, and so it would certainly be an effective way to cut down on the number of talks that could be offered. But suppose in fact that no such talk could go forward, if such a request were for any reason not complied with.
"Sorry, folks, today's talk is cancelled, because the Ukrainian translation of the slides didn't arrive, and the Turkish translator got stuck in traffic".
"But there are 50 of us here who would like the hear the English, Spanish, Chinese and Arabic versions!"
"Sorry, no can do. Legal liability, you know -- the General Counsel's Office has been really strict about this Title VI stuff since Duke lost that big damage suit last year for using unqualified Spanish translators at their bioinformatics symposium."
Well, this is not going to happen. I hope. But what makes this a silly speculative fiction, as I understand the issues, is not legal logic, but rather the low demand in practice for LEP assistance in this context, combined with the high cost of providing it. So as a matter of logic, Eric, would you concede that there's a possible free speech issue in being required to "[have] your federally subsidized advice and instructions translated"?
Posted by Mark Liberman at September 21, 2004 08:44 PM