Low literacy as an “Access to Justice” Issue

Earlier this month, the American Bar Association (ABA) released a set of Standards for Language Access in Courts to help U.S. courts do a better job addressing the needs of people with limited English proficiency. According to the National Center on Access to Justice (NCAJ) at the Cardozza School of Law, many courts “have little or no way to communicate with the growing number of Americans who have only limited proficiency in English. As a result, “innocent people have been sent to prison, children have been sent to foster care unnecessarily, and women have found it impossible to get court orders to protect them from domestic violence.”

Hot on the heels of this groundbreaking document comes this excellent article on a similar but largely ignored issue: courts are equally ill-equipped to deal with individuals with low literacy.

Valerie Mutton, a lawyer and freelance journalist from Ontario, wrote the story for the Canadian Press about the family court system in Toronto, but I can assure you from personal experience that the issue is also present in American courts. (Mutton was awarded a grant from ABC Life Literacy Canada to research literacy issues in family courts in Canada.)

Mutton found that the number of people handling their own cases in Canadian family courts has been growing in recent years—and many of these individuals lack the literacy skills to complete the paperwork involved and explain their cases to a judge:

At the busiest family court in the country, located in Toronto, justices Harvey Brownstone and Stanley Sherr see a high percentage of cases involving people who are representing themselves. About half are people for whom English is not their first language.

“As you see legal aid cutbacks, increasingly we see a decline in the number of people with lawyers,” said Sherr. “That was a layer of protection for those who have literacy problems. (my emphasis)

Mutton writes that Canadian family courts see low literacy as an “access to justice” issue—and they appear to treat it seriously, like language access. Some courthouses have staff on hand who will assist those who say they have trouble with reading or writing—assuming they come forward. Often, they don’t. Not just because of shame or embarrassment, but also out of fear that it will hurt their case:

For example, in child protection cases, where the possibility of losing parental rights is very real, people may be even more reluctant to mention low reading skills for fear that it makes them look like a bad parent. But with much of the evidence given in writing, not speaking up about low literacy can have devastating consequences.

Cheryl Stephens, a Vancouver-based expert on literacy and comprehension issues in the courts (do we have experts on literacy and courts in the U.S.?) told Mutton that judges in Canada receive training on the issue, but lawyers and others who work within the court system are not often aware of the scope of the problem and need to be educated about it.

(I should add that it’s not just in courtrooms where those with low literacy are at a disadvantage when it comes to exercising their legal rights. In fact, the legal needs of many low-income people with low literacy are more likely to involve accessing government benefits like Social Security, disability, unemployment insurance, and food stamps—accessing these benefits may require navigating a bureaucratic maze, but usually don’t involve a trip to see a judge.)

The ABA language access standards begin with this principle:

“As a fundamental principle of law, fairness, and access to justice, and to promote the integrity and accuracy of judicial proceedings, courts should develop and implement an enforceable system of language access services, so that persons needing to access the court are able to do so in a language they understand, and are able to be understood by the court.”

Standards and practices to address the issue of low literacy in our court system could also be developed under the same fundamental principle. The ABA standards for language access are a first step towards achieving uniform fair access to justice for those with limited English proficiency—and could pave the way for fair access to those with low literacy as well.

But in both cases, the problem is not just a lack of standards and practices, but a lack of resources needed to implement the changes that are needed. Federal funding for the Legal Services Corp., which distributes federal grants to civil legal aid programs nationwide, has been cut from $420 million in 2010 to $404 million last year and $348 million for 2012. According to a recent report from CLASP, “Civil legal aid programs turned away at least as many clients that they served in 2011 and will turn away even more in 2012.”

It was budget cuts to legal aid that led to a greater awareness of the problem of low literacy in Canadian courts, as increasing numbers of  people with low literacy were forced to represent themselves in court without the assistance of an attorney. In light of the legal aid cuts here, I don’t see any reason to believe that the U.S. legal system is not experiencing a substantial increase in the number of people with low literacy struggling to access justice here.