LEP

I recently had the pleasure of doing some in-depth research regarding Title VI and Title VII discrimination claims under the Civil Rights Act of 1964 (CRA), paying particular attention to the phrase “national origin.” Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (2000); Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (2000). Faced with broad yet profound research inquiries, I spent hours poring over material, and began to note a rather interesting strand of debates that involved a single question: does the CRA’s prohibition against national origin discrimination also prohibit language discrimination?

Not a novel question, and yet it is a reflection of today’s growing social and political concerns. Thousands of legal professionals have wrestled with the implications behind allowing an individual’s native language to provide the basis for legal action in situations of discrimination. We continue to presumably draw on the following logical inference — discrimination against my language, in essence, discriminates against my culture, my national heritage, which ultimately amounts to an affront to my civil rights.

Setting the legal question aside, I became heavily acquainted with this term: LEP, as in Limited English Proficiency.  

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From the Inside Out—a Law Student’s Perspective

“The Law is full of phraseology drawn from morals, and by mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds.” 

 –Oliver Wendell Holmes Jr., The Path of the Law

While writing my Honors Scholar Thesis my senior year at DePauw University, Justice Holmes’ words became the perfect frame for my interdisciplinary study of legal ethics. This quote was taken from an address from an 1897 Harvard Law Review, The Path of the Law, 10 Harv. L. Rev. 457, (1897), in which Holmes offers a piece of pragmatic wisdom to the practicing lawyer. In essence, the lawyer should assume the role of “the bad man” who is not concerned with principles of ethics, axioms and systematic reasoning. Instead, the lawyer should be concerned with self-interest, preservation, and the immediate consequences influencing one’s actions. From this perspective, the lawyer better positions himself to protect those interests that “the bad man” might have in predicting how the court will respond, given the facts and circumstances that surround a particular case. As a somewhat critical undergraduate student, I noted that this perspective makes broad, “questionable” assumptions about the client while offering a somewhat cynical philosophy for the role that the lawyer must play for a successful study and practice of law. The emphasis on practice and prediction is a hallmark of Holmes’ pragmatic view of the law with experience at the foundation.

Holmes represented a critical juncture in the theory and practice of law, drawing attention to the intellectual content of the law, reviving historical relationships between law, ethics, and practical wisdom. Holmes believed in demystifying the law, removing notions of omnipresent knowledge and appeals to “the infinite” in order to focus on practical application and reasonable prediction. As a philosophy student, with a focus in ethics and morality, I was never a fan of pragmatism. In fact, I was rather perturbed by Holmes’ candid admission. Nonetheless, I found Holmes’ position to be “reasonable” and incredibly helpful as I embarked on my interdisciplinary study of legal ethics, specifically focusing on the duty to protect client confidences.

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