Transcript A Legal Right to Communciation

Does the Constitution Apply to
Deaf Children? Lawrence Siegel, Powrie V. Doctor
Chair, Gallaudet University
“Society exists in and through communication.”
1
John Dewey
PROPOSED:
 It is time that the U.S. Constitution,
specifically the 1st and 14th Amendments,
recognize, have meaning for, & apply to
deaf & hard of hearing children.
Legal Recognition of
Fundamental Human Rights

American & human right to:






determine one’s future: the vote
practice one’s religion
move freely
to assemble
to receive and express thought
A similar right to communication/language?
“Language is inseparable from human beings. It is the instrument with which we form
thought and feeling, mood, Inspiration, will…it is the ultimate & deepest foundation of
human society.” 2
The Constitution “protects the right to receive information & ideas & access to social,
political, aesthetic, moral and other ideas & experiences.” 3
Importance of Communication
& Language in Education

Communication/language necessary for:






Flow of information between student & student &
student & teacher
To develop cognitive skills
To develop literacy
To develop social, emotional skills
Pathway to intellectual growth
Essential for involvement in the “entirety” of the
educational experience.
Communication & Language in
American Education


Is communication/language protected by law?
Why not?
Problem: IDEA & its underlying purpose:




Placement-driven
No requirement communication/language
Yearly, debatable IEP item: right only to “discuss”
need, no requirement to provide
Only avenue to communication/language,
adversarial process:

Courts rule comm/language only “methodology”
Theory of Change

Conclusion:



How do institutions normally change?
Unwillingly




IDEA antithetical to communication/language
Without change in law, systemic change will not
take place
Desegregation: Brown
Bilingual law: Lau
Even IDEA: litigation-driven – Mills, Parc
Time to look beyond IDEA: the Constitution
1st Amendment
“Without free speech no search for truth is possible, without free speech
no discovery of truth is useful…better a thousand-fold abuse of speech
than a denial of free speech. The abuse dies in a day, but the denial
slays the life of the people.” 4

“Congress shall make no law…
prohibiting the free exercise thereof or
abridging the freedom of speech.” 5
1st Am: “Speech only?”

What is meant by “free speech?”
It is in fact more than “speech”
 Free flow of information:


“teachers & students must always remain free to inquire, to study
& to evaluate…” 6

Right to know:

“The Nation’s future depends upon…wide exposure to that robust exchange
of ideas which discovers truth…”

7
Therefore free speech is right to receive
and express one’s thoughts:

“The 1st Amendment is not concerned with the right of the speaker of this
or that. It is concerned with the authority of the [receivers] of information
to meet together and discuss….” 8
General 1st Amendment Cases
Broad 1st Amendment Parameters

Restrictions on 1st Amendment subject to the
highest scrutiny by the courts





Right
Right
Right
Right
to
to
to
to
be obscene
sell diet soda
express hateful beliefs
libel
Compare the powerful & broad 1st Amendment
right with the restrictive “free flow” of information
for deaf children
1st Amendment and Schools

The range of the right
”The vigilant protection of constitutional freedoms is nowhere more vital
than in the community of American schools, the ‘marketplace of ideas”
where there must be robust exchange of ideas.” 7

Cases:

Tinker

Pico
“…students are entitled to freedom of expression of their views
[which] includes intercommunications among the students.” 7
“…the right to receive ideas is a necessary predicate to meaningful
exercise of rights of speech and political freedom.” 9
The 1st Amendment & Schools

Additional value of 1st Amendment in
school:


Essential to academic/intellectual growth
Essential to healthy democracy: “Public education
is the basis tool for shaping democratic values…” 10

Essential for economic growth: “education is
essential in preserving an individual’s opportunity to complete successfully
in the economic marketplace…” 10

Essential for social development: ”Teachers &
students must always be free to inquire, to study and to
evaluate…otherwise our civilization will stagnate & die.” 6

Deaf children have a right to these things?
Other 1st Am. Right: Association


Freedom of association: the
constitutional right to be with peers
Deaf children & the right to associate:


Lack of interpreters
Legal impediment to language rich, peer
environments
“Our Bill of Rights is designed to secure individual liberty [&] affords the formation &
preservation of certain kinds of highly personal relationships a substantial measure of
sanctuary from interference…personal bonds have played a critical role in the culture &
traditions of the Nation by cultivating shared ideals & beliefs.” 11
Denial of 1st Am. Rights

How are deaf children denied their 1st
Amendment rights?

Denied fundamental access to free flow of
information & peers:





Teachers, other students cannot communicate w/deaf
children
Unqualified, no interpreters
Denial of right to attend comm/lang-rich environments
Failure to provide comm/lang programs
Denied chance to develop language which in turn
prevents access to free flow of information
14th Amendment: Equal
Protection of the Law


“No state shall deprive any person… within its
jurisdiction the equal protection of the
laws.”
All American citizens have right to be treated
the same


Distinctions made or discriminations perpetuated:
“disfavored”
The “Brown” standard & its applicability to
the rights of deaf children: “…where the state has
undertaken to provide education [it] is a right which must be made available to
all on equal terms.” 12
How “Equal Protection”
Applied


14th Amendment, Equal Protection
tests:
“Strict Scrutiny”:


Race, color, nationality: “immutability”
Heavy burden on state to justify different
treatment:

Only very “compelling state interest” justifies
different treatment
14th Am. Tests(cont’d)

“Rationale basis” test



Law, policy, program must be “rationally
related” to some state purpose to stand
Gender, “disability,” age
Language minority?
Equal Protection & Deaf
Children

What is provided to hearing children, not deaf
children:







Equal access to “flow of information”?
Equal access to rich language & communication
environment?
Equal access to technology, testing?
Equal access to deaf and hearing peers?
Equal access to all school activities?
Equal access to language & communication
models?
Equal availability of programs necessary to
develop skills in order to “access education”
What 14th Amendment Test?

Deaf children as “suspect class”:


Immutability?
Current educational practices violate “suspect
class” or “rationale test” standard &
therefore violate Equal Protection clause of
the 14th Amendment of the U.S. Constitution
14th Am. & Lang. Case


“Language minority” litigation
Again compare w/status of deaf children &
their language rights:

Olagues v. Russoniello:


Denial of driver’s license to non-English speakers
14
Martin Luther King Jr. v. Ann Arbor Sch:


13
Sandoval v. Hagan:


Denial of non-English ballots
School fails to provide “Black English” instruction
15
Lau v. Nichols:

Failure of schools to provide instruction in Chinese
16
Title III NCLB




17
“to ensure that children who are limited English
proficient…attain English proficiency, develop high levels of
academic attainment in English, and meet the same challenging
State academic content and student academic achievement
standards as all children…..
“to develop high-quality language instruction educational
programs designed to [teach] limited English proficient
children….”
“to assist all limited English proficient children…to achieve high
levels in the core academic subjects…”
“to promote parental & community participation in language
instruction educational programs for the parents of limited
English proficient children….”
Title III NCLB






17
“to hold State educational agencies, LEAs and schools
accountable for increase in English proficiency….”
“all teachers [will be] fluent in English and any other language
used for instruction….”
“ensure that limited English proficient children master
English….”
“…develop language skills and multicultural understanding…”
“…develop…to the extent possible, the native language skills of
such children….”
“develop programs that strengthen/improve the professional
training of educational personal who work with limited English
proficient children.”
Bilingual Cases

Cintron v. Brentwood Sch. Dist. (applicability
to deaf children). Court rules:


“use of the child’s mother tongue as a medium of instruction
concurrent with an effort to strengthen his/her command of English
acts to prevent retardation in academic skill and performance.”
“The goal is instruction by competent bi-lingual teachers in the
subject matter of the curriculum while at the same time teaching
non-English speaking children the English language”
18
Bilingual Cases

Serna v. Portales Munc. Schools. Court
rules:


“…when Spanish surnamed children come to school and find
that their language and culture are totally rejected and that
only English is acceptable, feelings of inadequacy and
lowered self-esteem develop.”
Therefore “Spanish surnamed children do not have equal
educational opportunity and thus a violation of their
constitutional right to equal protection exists.” 19
Bilingual Cases

Rios v. Reed. Court rules:

“the school district is required to take affirmative action for
language-deficient student by establishing an ESL and
bilingual program and keep the students in such programs
until they have attained sufficient proficiency in English…the
District…cannot be allowed to compromise a student’s right
to meaningful education before proficiency in English is
obtained.” 20
Bilingual Cases

Castaneda v. Pickard. Court rules:

“As in any educational program, qualified teachers are a
critical component of the success of a language remediation
program…if the teachers charged with day-to-day
responsibility for educating these children are termed
‘qualified’ despite the fact that they operate in the classroom
under their own un-remediated language disability the
bilingual education program is clearly unlikely to have a
significant impact on the language barriers confronting
limited English speaking school children.” 21
How Bilingual Cases Apply

Equal Protection clause of the 14th
Amendment requires therefore that deaf
children have:


Access to Title III-like programs
Have access to appropriate communication mode and
language development as a pre-requisite for literacy, English
competency and general academic growth
Other: No Child Left Behind

17
“Declaration of Rights” under NCLB:






the parents of English language learners, can expect:
To have your child receive a quality education and be taught by a
highly qualified teacher.
To have your child learn English and other subjects such as reading
and other language arts and mathematics at the same academic
level as other students.
To choose a different English language acquisition program
for your child.
To have your child tested annually to assess his or her progress in
English language acquisition.
To have the opportunity for your child to reach his or her greatest
academic potential.
Remedies

With legal recognition, a systemic “sea
change”:





Must hire qualified/certified interpreters
Must hire/train language proficient teachers for deaf
students in the mainstream, special classes, state schools
Must provide language/communication development
programs
Instruction must be in child’s language/mode
Must accommodate, not impede access to rich
language/communication ed. environments
Conclusion: A Reasonable, Equitable
Goal
“All deaf and hard of hearing children are entitled to, and must
have a language-rich educational experience. They must have
the opportunity to develop age-appropriate language skills and
to be in a classroom and school where communication is fully
available, where there is a critical mass of communication peers
and where staff can communicate effectively and directly with
them [and] an educational system that formally recognizes that
communication is at the heart of human and academic growth.”
The National Deaf Education Project, 2000
22
“If there is no struggle there is no progress. Those who profess to favor
freedom and yet deprecate agitation, are men who want crops
without plowing up the ground, they want rain without thunder and
lightening…Power concedes nothing without a demand. It never did
and it never will.” Fredrick Douglass, 1857 23
Citations
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
John Dewey, Philosophy and Civilization, 1931, p. 87)
Louis Hjelmslev, Prolegomena to a Theory of Language, University of Wisconsin Press, Madison, 1961,
77.
Kleindeist v. Mandel (U.S. Supreme Court, 408 U.S. 753, 1972)
Charles Bradlaugh quoted in Edmund Fuller, Thesaurus of Quotations, p. 398 (1941).
First Amendment, United States Constitution
Sweezy v. New Hampshire (U.S. Supreme Court, 354 U.S. 234, 1957)
Tinker v. Des Moines (U.S. Supreme Court, 393 U.S. 503, 1969)
Alexander Meiklejohn, Political Freedom, p. 119 (1948)
Board of Education v. Pico (U.S. Supreme Court, 457 U.S. 853, 1982)
Serrano v. Priest (Cal. Supreme Court, 5 Cal. 3rd 584, 1971)
Roberts v. U.S. Jaycees(U.S. Supreme Court, 1984, 468 U.S. 609, 623)
Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)
Olagues v. Russoniello, 797 F.2d 1511(9th Cir. 1986)
Sandoval v. Hagen, 197 F.3d 484(11th Cir. 1999)
Martin Luther King Jr. v. Ann Arbor Sch. Dist. 473 F.Supp. 1371 (E.D. Mich. 1979)
Lau v. Nichols, 414 U.S. 563 (1973)
Pl 107-110, Title III, 2001
Cintron v. Brentwood (U.S. Dist. Court, 455 F. Supp. 57, 1978)
Serna v. Portales Municipal Schools (10th Cir. U.S. Fed. Court, 499 F.2d 1147, 1974)
Rios v. Read(U.S. Dist. Court, 480 F.Supp 14, 1978)
Castaneda v. Pickard(5th Cir. Fed. Court, 648 F.2d 989, 1981)
Lawrence Siegel, The Educational & Communication Needs of Deaf & Hard of Hearing Children: A
Statement of Principle, The National Deaf Education Project, Gallaudet University, p. i (2000)