Re:
NY Law: Food Stamp National Origin Discrimination
The New York State Office of Temporary and Disability Assistance (OTDA) has a legal
obligation to provide appropriate personnel or translation services to Limited English Proficient
(LEP) Food Stamp applicants and recipients. The state agency responsible for supervising the
operation of the Food Stamp Program in New York is (OTDA).
Day-to-day operation of the program is the task of each county’s Department of Social
Services, also known as the local social service district (LSSD). New York’s Social Service Law
and regulations regarding discrimination on the basis of national origin and disparate treatment
govern all activities of the LSSD offices.
I.
New York Constitutional Provisions
a. Article XVII §1
New York State is constitutionally charged with providing "aid, care and support of the
needy."1 The Constitution "imposes upon the State an affirmative duty to aid the needy,"2 which
prohibits the Legislature from "refusing to aid those whom it has classified as needy."3 Care for
the needy is not a matter of "legislative grace," but a constitutional mandate.4 The State must
provide assistance to destitute persons even if the cost of providing such assistance ultimately
becomes a cost that the State or its subdivisions must bear without Federal reimbursement.5
The Constitution authorizes the Legislature to create categories of public assistance and
to determine the needs of individuals in those categories, but requires the State to come to the aid
1
NY Const, art XVII..
Tucker v Toia, 43 N.Y.2d 1. (N.Y., 1977)
3
Aliessa ex rel. Fayad v. Novello, 96 N.Y.2d 418, 427-28 (N.Y.,2001) citing Tucker v. Toia, 43 N.Y.2d, at 8
4
Aliessa at 428, citing Tucker v. Toia, 43 N.Y.2d 1, 7
5
Jones v. Berman, 37 N.Y.2d 42, 54-55 (N.Y., 1975).
2
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of all needy residents without regard to race, religion, or national origin.6 Under the equal
protection requirements of the State and Federal Constitutions, any classification, which denies
to one class of needy persons public assistance, which is available to all others, cannot be
justified unless it is rationally related to a legitimate State interest.7
b. Equal Protection and Civil Rights
The Equal Protection clause of the New State Constitution states "[n]o person shall be
denied the equal protection of the laws of this state or any subdivision thereof."8 The second
sentence, the Civil Rights Clause, provides “[n]o person shall, because of race, color, creed or
religion, be subjected to any discrimination in his or her civil rights by any other person or by
any firm, corporation, or institution, or by the state or any agency or subdivision of the state.”9
While the first sentence of this section is an equal protection provision, which, like the
Federal equal protection right, is addressed to "State action," the Civil Rights Clause contained in
the second sentence prohibits private as well as State discrimination as to "civil rights." The
Court of Appeals has defined "civil rights," secured under the State Constitution, to mean "those
rights which appertain to a person by virtue of his citizenship in a state or community."10
The Civil Rights Clause is not self-executing and prohibits discrimination only as to civil
rights, which are "elsewhere declared" in the Constitution, statute, or common law.11 While the
constitution only prohibits discrimination based on race, color, creed or religion, the Legislature
6
In re Kittridge, 185 Misc.2d 876, 878-89. (N.Y.Fam.Ct. 2000).
Matter of Lee v. Smith, 43 N.Y.2d 453 (N.Y., 1977).
8
New York Constitution, article I, § 11
9
Id.
10
People v. Kern, 75 N.Y.2d 638, 651 (1990), “The term "civil rights" as it was understood by the delegates at the
1938 Constitutional Convention. (quoting, 4 Rev. Record of New York State Constitutional Convention, 1938, at
2626 [statement of Delegate H.E. Lewis] )
11
Id. See also, Dorsey v. Stuyvesant Town Corp., 299 NY 512, 531, 87 N.E.2d 541 (1949).
7
2
has since extended the coverage to include more classes of individuals with the Civil Right Law,
where national origin discrimination is specifically prohibited.12
II.
New York Civil Rights Law and National Origin Discrimination
New York’s Civil Rights Law restates and broadens the coverage of the equal protection
clause. It provides all persons “shall be entitled to the equal protection of the laws of this state or
any subdivision thereof.”13 Civil rights protection is then expanded beyond the state constitution
for “[n]o person shall, because of race, creed, color, [or] national origin….[may] be subjected to
any discrimination in his or her civil rights.14 The term "national origin" refers to "ancestry" and
applies with equal effect to an individual's maternal and paternal line of ancestry.15
The Civil Rights Law clearly and unambiguously sets forth "national origin" as a
protected classification.16 Definitions of these categories were taken from the provisions of New
York’s Human Rights Law,17 and are protected from any harassment “in the exercise thereof, by
any other person or by any firm, corporation or institution, or by the state or any agency or
subdivision of the state."18
III.
National Origin Discrimination Cases
The line between discrimination based on ancestry or ethnic characteristics and
discrimination based on place or nation of origin is not a bright one.19 The traditional indicia of a
suspect classification are that the class is "subjected to such a history of purposeful unequal
12
People v. Kern, 75 N.Y.2d 638, 651 (1990).
Civil Rights Law § 40-c (1).
14
Civil Rights Law § 40-c (2).
15
New York State Div. of State Police v. McCall, 98 A.D.2d 921 (3 Dept.,1983).
16
People v. Dieppa, 158 Misc.2d 584, 589. (S.Ct. Kings County, 1993) (“Civil Rights Law § 40-c is clear: all
persons are protected from harassment or discrimination in the exercise of their civil rights because of race, creed,
color, [or] national origin”)
17
McKinney’s Executive Law § 292.
18
Civil Rights Law § 40-c (2).
19
Saint Francis College v. Al-Khazraji, 481 U.S. 604, 614 (1987).
13
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treatment, or relegated to such a position of political powerlessness as to command extraordinary
protection from the majoritarian political process."20
The Supreme Court has noted that “[i]t may well be, for certain ethnic groups and in
some communities, that proficiency in a particular language, like skin color, should be treated as
a surrogate for race under an equal protection analysis.”21 It further found that "[l]anguage
permits an individual to express both a personal identity and membership in a community[.]"22
Other courts have found that "an individual's primary language skill generally flows from
his or her national origin."23 It has also been said "language is an important aspect of national
origin" and "[t]he primary language not only conveys certain concepts, but is itself an affirmation
of that culture."24
The terms “nationality” and “national” origin may be used interchangeably "because
racial categories may overlap significantly with nationality or ethnicity, the line between
discrimination on account of race and discrimination on account of national origin may be so
thin as to be indiscernible."25 In one case the Second Circuit recognized Hispanics, as an ethnic
group, do constitute a suspect class for the purpose of equal protection analysis.26
20
San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 28 (1973).
Id., at 371.
22
Id., at 370.
23
Olagues v. Russoniello, 797 F.2d 1511, 1520 (9th Cir.1986) citing Yu Cong Eng v. Trinidas, 271 U.S. 500, 517
(1926), vacated on grounds of mootness, 484 U.S. 806 (1987).
24
Gutierrez v. Municipal Court of the Southeast Judicial District, 838 F.2d 1031, 1039 (9th Cir.1988), vacated on
grounds of mootness, 490 U.S. 1016 (1989).
25
Deravin v. Kerik, 335 F.3d 195, 202 (2d Cir.2003), citing Adames v. Mitsubishi Bank, Ltd., 751 F.Supp. 1548,
1559 (E.D.N.Y.1990). See also Saint Francis College v. Al-Khazraji, 481 U.S. 604, 614 (1987) (“in certain
circumstances ... national origin and race discrimination may overlap.") and Dennis v. Pan Am. World Airways, Inc.,
746 F. Supp. 288, 291 (E.D.N.Y. 1990) ("[r]ace ... may sometimes be correlated with national origin because of
certain historical or demographic facts”).
26
Soberal-Perez v Heckler, 717 F2d 36, 41 (2nd Cir. 1983). Citing Keyes v. School District No. 1, 413 U.S. 189, 197
(1973); Hernandez v. Texas, 347 U.S. 475, 477-79 (1954).
21
4
In New York, the Court of Appeal has defined a broader scope of protection than that
accorded by the Federal Constitution in cases concerning individual rights and liberties. 27
Applying the rationale in Kern,28 it follows logically that such national origin discrimination,
standing alone, is constitutionally prohibited.29 Language can be a basis of a finding of
discrimination based on national origin when it creates a discriminatory result against all persons
who do not speak English rather than persons of any particular nationality.30
When people from a common ancestral homeland with a distinct language, religious
belief and customary practice had been subjected to a history of purposeful unequal treatment,
claiming discrimination on the basis of national origin is indistinguishable from and as
reprehensible as racial discrimination.31 Courts have recognized national origin, and particularly
language, as impermissible discrimination.32
IV.
National Origin Discrimination under State and Federal Regulations
a. State Compliance with Federal Food Stamp Laws and Regulations
New York State Social Services law requires each department to make appropriate
bilingual materials available so that potentially eligible LEP individuals are informed about the
27
People v. P.J. Video, Inc. 68 N.Y.2d 296, 303 (N.Y.,1986)., See also Time Square Books, Inc. v. City of
Rochester, 223 A.D.2d 270, (4 Dept.,1996) “our State furnishes broader guarantees of expression than the minimum
protections afforded by the Federal Constitution”
28
People v. Kern, 75 N.Y.2d 638, 651 (1990).
29
People v. Rambersed, 170 Misc.2d 923 (Supreme Court, Bronx Count, 1996) affd, People v. Rambersed, 254
A.D.2d 81 (1 Dept. 1998).
30
Yellen v. Baez, 177 Misc.2d 332, 337 (N.Y.City Civ.Ct., 1997), citing Soberal-Perez v Heckler, 717 F2d 36 (2nd
Cir. 1983).
31
People v. Rambersed, 170 Misc.2d 923 (Supreme Court, Bronx Count, 1996) affd, People v. Rambersed, 254
A.D.2d 81 (1 Dept. 1998).
32
Martinez v. State Division on Human Rights, 58 A.D.2d 795 (1st Dept. 1977). appeal dismissed
Martinez v State Div. of Human Rights, 42 N.Y.2d 1014 (NY, 1977).
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food stamp program.33 Such materials are required in accordance with federal laws, rules and
regulations regarding bilingual materials.34
Federal law prohibits a state agency from discriminating “by reason of race, sex, religious
creed,[or]…national origin”35 in the certification of applicant households for the program. The
state plan of operations must include and “use appropriate bilingual personnel and printed
material in the administration of the program in those portions of political subdivisions in the
State in which a substantial number of members of low-income households speak a language
other than English.”36
State agencies, and their subdivisions which administer food stamp programs, must
provide materials for LEP individuals.37 They must “establish procedures governing the
operation of food stamp offices that the State agency determines best serve households in the
State, including households with special needs…in areas in which a substantial number of
members of low-income households speak a language other than English.”38
Corresponding federal regulations require agencies to assess the total number of lowincome households in an area that “speak the same non-English language (a single-language
minority),39…[and] provide bilingual program information and certification materials, and staff
or interpreters.”40 They must provide informational materials in those language 41 and “develop
33
Social Services Law § 95-a(7).
Id.
35
7 U.S.C.A. § 2020 (c).
36
7 U.S.C.A. § 2020 (e)(1)(B).
37
Id.
38
7 U.S.C.A. § 2020 (e)(2)(A).
39
Single-language minority households speak the same non-English language and which do not contain adult(s)
fluent in English as a second language.
40
7 C.F.R. § 272.4 (b).
41
7 C.F.R. § 272.4 (b)(2).
34
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estimates of the number of low-income single-language minority households, both participating
and not participating in the program.”42
b. New York Social Services Regulations Against Discrimination
New York Social Service regulations also prohibit national origin discrimination.43 Social
Services districts must not implement any policy or practice, which has the effect of
discriminating against individuals because of “race, color, [or] national origin.44 This prohibition
applies to all “aid, care, services, benefits or privileges provided directly, or indirectly by other
agencies, organizations or institutions participating under contractual or other arrangements.”45
With this definition, and analogous federal provisions, it is inclusive of the administration and
provision of the Food Stamp program at the district offices.
The anti-discrimination regulations apply to all social services districts and their staff
when providing “public assistance, child welfare services, [and] other care and services.”46 Food
stamps are a form of public assistance provided by these district offices. Individuals cannot be
subject “to segregation or separate treatment in any matter related to his [/her] receipt of any aid,
care, services, other benefits or privileges.”47
Consistent with the language of the Equal Protection clause, districts cannot provide
“benefits or privileges to an individual which are different, or are provided in a different manner,
from that provided to others.”48 The prohibition on discrimination has been enforced against
Social Service districts.49 To “deny any individual an opportunity to participate in a program
42
7 C.F.R. § 272.4 (b)(6).
18 NYCRR §303.1.
44
18 NYCRR §303.1[a].
45
Id.
46
18 NYCRR §303.1(b).
47
18 NYCRR §303.1(b)(3).
48
18 NYCRR §303.1(b)(2).
49
See Henrietta D. v. Giuliani, 119 F.Supp.2d 181, 219 (E.D.N.Y., 2000) (discriminated against petitioner because
of his disability, diagnosed with AIDS, in violation of 18 NYCRR 303.1[a], [b]).
43
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through the provision of services or otherwise or afford him [/her] an opportunity to do so which
is different from that afforded others under the program” 50 is prohibited.
LEP individuals speak languages other than English, and districts must not restrict
individuals “in any way in the enjoyment of any advantage or any privilege enjoyed by others.” 51
District offices are not permitted to have a different or inferior application process or to make a
determination as to the amount of Food Stamp assistance for an LEP due to their national origin.
When an LEP applicant comes to apply for Food Stamps, districts and staff cannot deny them
“any aid, care, services, other benefits or privileges provided by the district.”52
Offices cannot “make distinction in relation to use of physical facilities, intake and
application procedures, caseload assignments, determination of the amount and type of aid, care,
services and other benefits under the program and use thereof.”53 When assessing the needs of
LEP applicants, districts cannot “treat an individual differently from others in determining
whether [s]he satisfies any eligibility or other requirement or condition which individuals must
meet in order to receive any aid, care, services, [or] other benefits or privileges.”54 This broad
definition of benefit or privilege includes the allocation of Food Stamps.
c. New York Food Stamp Regulations Against Discrimination
Food stamp regulations, based on federal programmatic requirements, require each LSSD
to determine eligible families, assure those eligible receive Food Stamps, and to provide
information regarding the food stamp program and application process.55 Local districts must
provide information to low-income households, with due regard to ethnic and disadvantaged
50
18 NYCRR §303.1(b)(7).
18 NYCRR §303.1(b)(4).
52
18 NYCRR §303.1(b)(1).
53
18 NYCRR §303.1(b)(7).
54
18 NYCRR §303.1(b)(5).
55
18 NYCRR §387.2.
51
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groups, about the availability and benefits of the program and encouraging their participation. 56
LEP individuals are disproportionately represented among low-income groups,57 and districts
must provide this information to the most prevalent languages in a particularity community.
When a local district informs applicants and recipients about their program rights and
responsibilities, where appropriate, such information must be provided languages other than
English. The local districts are responsible for insuring that the food stamp program, in all
aspects is administered without discrimination because of race, creed, or national origin. 58
National origin is an impermissible basis for discrimination when LSSD’s are administering food
stamps and LSSD’s are required to provide informational materials in languages spoken by LEP
applicants and recipients.59
V.
Conclusion
The failure of a local social service district office to provide appropriate language
services for LEP individuals applying for and receiving Food Stamps is a violation of both state
and federal law and regulations. By restricting access to the Food Stamp program to LEP’s these
offices are engaging in national origin discrimination in violation of state protections of equal
protection and civil rights.
56
NYCRR §387.2 (b).
pg. iv, How Are Immigrants Faring After Welfare Reform? Preliminary Evidence from Los Angeles and New
York City, (“Single-parent families with children…and LEP adults are three times as likely to receive food stamps
than other families”) Final Report March 4, 2002, The Urban Institute. PDF Available at: http://tinyurl.com/8b8w6.
58
NYCRR §387.2 (r).
59
NYCRR §387.2 (t).
57
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