Transcript A Legal Right to Communciation

The Need for a Communication/LanguageDriven Educational System
Lawrence Siegel, Powrie V. Doctor Chair, Gallaudet University
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“Society exists in and through communication.”
John Dewey
PROPOSED:
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Communication and Language must be a
central and required part of any education
system provided for deaf & hard of hearing
children
Current System
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Current system is not (and has not
been) working for deaf and hard of
hearing children
Statistical evidence
Human evidence
Status of Comm/Language in
American Education
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IDEA
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“Institutional Starting Point”
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Placement-driven
FAPE
No formal recognition/provision of
communication/language for deaf students
Status (cont’d)
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IDEA:
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communication/language a “debatable” item
Yearly IEP agenda matter
Can only “discuss”
Only option: adversarial process
“Methodology”
Conclusion: Without change in law,
programmatic changes required will not take
place systemically
The Central Importance of
Language
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A fundamental human need/right
Language and communication is:
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Crucial for all educational experiences
Precedes literacy, academic, social, development
Central to a productive, happy, successful adult
Central to the human experience
The foundation for all learning.
“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.” .” Louis Hjelmslev, Prolegomena to a Theory of
Language, University of Wisconsin Press, Madison, 1961, 77.
Communication/language
Paradigm
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Communication/Language-driven
educational paradigm
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Legal mandate:
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Communication/language assessment
Communication/language development
Communication/language access
Recent Reform Activities –
NDEP
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Deaf & Hard of Hearing Child’s Bill of
Rights
Statement of Principal
State reform:
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New Mexico & Colorado
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State reports
Communication plans
Next Steps?
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Legal Challenge – a deaf & hard of
hearing child’s “Brown.”
Establish right to language and
communication under 1st & 14th
Amendments of the U.S. Constitution
Theory of Change
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How do institutions normally change?
Unwillingly
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Desegregation: Brown
Bilingual law: Lau
Even IDEA: litigation-driven – Mills, Parc
1st Amendment
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“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.” Charles Bradlaugh
“Congress shall make no law…
prohibiting the free exercise thereof or
abridging the freedom of speech.”
1st Am. “Speech only?”
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“Free speech” as misnomer
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Free flow of information
Right to know
Freedom to receive and express belief
“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….”
Alexander Meiklejohn, Political Freedom (1948)
The Constitution “protects the right to receive information & ideas & access to social,
political, aesthetic, moral and other ideas & experiences.” Kleindeist v. Mandel
(U.S. Supreme Court, 1972)
1st Amendment and Schools
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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.” Tinker v. Des Moines (U.S. Supreme Court, 1969)
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Cases:
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Tinker
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Pico
“…students are entitled to freedom of expression of their views
[which] includes intercommunications among the students.”
“…the right to receive ideas is a necessary predicate to meaningful
exercise of rights of speech and political freedom.” (U.S. Supreme Court, 1982)
Denial of 1st Am. Rights
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How are deaf children denied their 1st
Amendment rights?
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Fundamentally denied access to free flow
of information
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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
Other 1st Amendment Rights
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Freedom of association
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Lack of interpreters
Legal impediment to language rich, peer
environments
“Our Bill of Rights is designed to secure individual liberty [and] affords the formation and preservation of
certain kinds of highly personal relationships a substantial measure of sanctuary from interference by
the State…personal bonds have played a critical role in the culture and traditions of the Nation by
cultivating and transmitting shared ideals and beliefs.” Roberts v. U.S. Jaycees(U.S. Supreme
Court, 1984, 468 U.S. 609, 623)
14th Amendment: Equal
Protection of the Law
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“No state shall deprive any person…
within its jurisdiction the equal
protection of the laws.”
The “Brown” standard & its applicability
to the rights of deaf children
Equal Protection & Deaf
Children
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Provided hearing children, not deaf children:
equal protection violation?
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Equal access to “flow of information”?
Equal access to same rich language, literacy, &
communication environment?
Equal access to technology, testing?
Equal access to deaf and hearing peers?
Equal access to all school activities?
Equal access to best language & communication
models?
Title III NCLB
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“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
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“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
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Cintron v. Brentwood Sch. Dist.
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“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.”
Bilingual Cases
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Serna v. Portales Munc. Schools
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“…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.”
Bilingual Cases
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Rios v. Reed
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“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.”
Bilingual Cases
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Castaneda v. Pickard
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“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.”
Other: NCLB
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“Declaration of Rights” under NCLB:
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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
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A constitutionally recognized right:
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Must hire qualified ASL/English bilingual interpreters
Must hire/train ASL/English bilingual proficient teachers for
deaf students in the mainstream, special classes, state
schools
Must provide ASL communication development programs &
ASL instruction in addition to English instruction
Accommodate, not impede access to (social and academic)
ASL/English bilingual environments
Must provide ASL instruction in addition to English
instruction
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