Does the Constitution Apply to Deaf Children? Lawrence Siegel, Powrie V. Doctor Chair, Gallaudet University

1. 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.

2. 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

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.

4. 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”

5. Theory of Change • Conclusion: • IDEA antithetical to communication/language • Without change in law, systemic change will not take place • How do institutions normally change? Unwillingly • Desegregation: Brown • Bilingual law: Lau • Even IDEA: litigation-driven – Mills, Parc • Time to look beyond IDEA: the Constitution

6. 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

7. 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

8. General 1st Amendment Cases Broad 1st Amendment Parameters • Restrictions on 1st Amendment subject to the highest scrutiny by the courts • Right to be obscene • Right to sell diet soda • Right to express hateful beliefs • Right to libel • Compare the powerful & broad 1st Amendment right with the restrictive “free flow” of information for deaf children

9. 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 “…students are entitled to freedom of expression of their views [which] includes intercommunications among the students.” 7 • Pico “…the right to receive ideas is a necessary predicate to meaningful exercise of rights of speech and political freedom.” 9

10. 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?

11. 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

12. 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

13. 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

14. 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

15. 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?

16. 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”

17. 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

18. 14th Am. & Lang. Case • “Language minority” litigation • Again compare w/status of deaf children & their language rights: • Olagues v. Russoniello: • Denial of non-English ballots 13 • Sandoval v. Hagan: • Denial of driver’s license to non-English speakers 14 • Martin Luther King Jr. v. Ann Arbor Sch: • School fails to provide “Black English” instruction 15 • Lau v. Nichols: • Failure of schools to provide instruction in Chinese 16

19. 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….”

20. 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 andany 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.”

21. 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

22. 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

23. 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

24. 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

25. 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

26. 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.

27. 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

28. 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

29. Citations • 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) • “West India Emancipation,” speech delivered at Canandaigua, New York, August 4, 1857.—The Life and Writings of Frederick Douglass, ed. Philip S. Foner, vol. 2, p. 437 (1950).