Does the Constitution Apply to Deaf Children Lawrence Siegel, Powrie V' Doctor Chair, Gallaudet Univ

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 ones future the vote
• practice ones 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, willit 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 usefulbetter 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

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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 Nations future depends uponwide exposure
  to that robust exchange of ideas which discovers
  truth 7
• Therefore free speech is right to receive and
  express ones 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

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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 individuals
  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 evaluateotherwise 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 interferencepersonal 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

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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(contd)

• Rationale basis test
• Law, policy, program must be rationally related
  to some state purpose to stand
• Gender, disability, age
• Language minority?

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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

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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 drivers 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
  proficientattain 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
  childrento 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.

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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
• developto 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 childs 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
  Englishthe Districtcannot be allowed to
  compromise a students 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 programif 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

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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

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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.

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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 childs language/mode
• Must accommodate, not impede access to rich
  language/communication ed. environments

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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 lighteningPower concedes
  nothing without a demand. It never did and it
  never will. Fredrick Douglass, 1857 23

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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)