THE ARGUMENT FOR A CONSTITUTIONAL RIGHT TO COMMUNICATION AND LANGUAGE
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*First published in the Journal of Deaf Studies and Deaf Education, Volume 7, Number 3, Summer, 2002
By Lawrence Siegel, Esq.
National Deaf Education Project
907 Sir Francis Drake Blvd.
Kentfield, CA 94904
"Language is so tightly woven into human experience that it is scarcely possible to imagine life without it." (Pinker, p.17).
"What we have here is a failure to communicate." (Strother Martin, Cool Hand Luke)
The need for and right to communication and language is fundamental to the human condition. Without communication an individual cannot become an effective and productive adult and an informed citizen in our democracy. The importance of communication and language for deaf and hard of hearing children is so basic as to be beyond debate. Given the historic difficulties deaf and hard of hearing children face, their compromised communication and language skills and the educational, social, cognitive, and psychological consequences, this note contends that a Constitutional Right to Communication is both necessary and legally sound. The right to assemble and to vote and the right to equal protection under the law must be extended to the right of deaf and hard of hearing children to full communication development and access. And certainly if the Constitution venerates the right to speech, the right to communication and language is of equal or greater value.
In a world of hyperbole, it is frequently said that one thing or another is so "fundamental" as to be "beyond debate" and thus in the repetition of it, what is meritorious becomes less so. But the development of communication - the "defining characteristic of human cognition and...human society" - is so fundamental as to be beyond debate (Corina, p. 35). Indisputably so. Accordingly the right to communication and language, particularly as it impacts on deaf and hard of hearing children, must be afforded the highest possible legal protection. In short, deaf and hard of hearing children must have a Constitutional right to communication and language. Our Constitution has embraced the most important of human needs, while our courts have, through penurious examination and pruning, afforded only a handful of rights the greatest legal protection.
Freedom of speech. Freedom of religion. Freedom to assemble. The right to vote, the right to privacy. Protection from all but the most compelling and urgent governmental action based on race, religion or nationality.
We protect speech because we must convey our thoughts. We protect our right to vote because we insist on being free. We protect the right to prayer because we abhor interference with what is spiritual in our nature. Is the need for, and right to, communication any less important? To weigh it's value as to the others is a futile exercise, to exclude it is indefensible.
For deaf and hard of hearing children, the absence of communication and language has a crushing affect on the development of basic educational and hence life skills. That deaf and hard of hearing children continue to leave school with no more than 3rd grade reading abilities - a statistic so often repeated that these children and their parents must grow weary of it - and the high rates of under and un-employment among deaf and hard of hearing adults, reveal the pragmatic consequences of what Oliver Sacks calls the "languageless" environment (Sacks, 1989).
There are several arguments for a right to communication, each sufficient on its own, their totality a clamor for acknowledging that our Constitution has both the genius and flexibility to recognize the importance of communication for deaf and hard of hearing children.
To communicate completely and freely is to be included in the decision-making process of our democracy, to be a member of the commonwealth. There is not a hearing child in this nation who must think, even for a second, that each day and year she goes to school, she must secure a new her right and need to communicate.1. Deaf and hard of hearing children are entitled to the same happy ignorance.
Denial of communication is ultimately, for our democracy, a forfeiture of the vision, talent, and involvement of deaf and hard of hearing children, for the "peculiar evil" of "silencing" expression is that:
it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error. (Mill, Chapter 2).
What is Meant by Freedom of Speech?
Freedom of speech may be the most venerated of our constitutional rights, but if speech means the "speaking or expressing of things," is the right to communicate a less important freedom?
Communication is defined as a "process by which information is exchanged between individuals through a common system of symbols, signs, or behavior" (Websters, p. 266). "Speech" is defined as the "communication or expression of thoughts in spoken words" (Websters, 1133). Speech, the constitutionally protected right is subsumed under the broader notion of communication, which is not. 2 . The right to free communication cannot be separated from free speech and indeed should be the over-arching privilege.
But whether it has been a question of bi-lingual education, the provision of multi-lingual voting documents, the availability of non-English newspapers and correspondence for prisoners, or the recognition of a non-standard or dialectical form of English, the debate has focused on the differences between spoken languages and not, more intrinsically on communication modes.
What does the freedom encompass? Article I of the United States Constitution provides that:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Its nobility is reflected in an informed and self-governing citizenry, but it is not merely the right to verbally express, but to receive and convey knowledge:
The First Amendment is not, in the first instance, concerned with the "right" of the speaker to this or that. It is concerned with the authority of the hearers [sic] to meet together, to discuss, and to hear [sic] discussion by speakers.... (Meiklejohn, 119).
The importance of access to speech cannot be gainsaid for "intellectual freedom is the necessary bulwark of the public safety....[a] declaration that admits of no exceptions....[for] if by suppression, we attempt to avoid lesser evils, we create greater evils." (Meiklejohn 59). It is this freedom to question - what Alexander Meiklejohn calls the "demand for education" - that loses no radiance for its repetition (Meiklejohn 86). It is at the core of the Constitution because:
The primary purpose of the First Amendment is, then, that all the citizens shall, so far as possible, understand the issues which bear upon our common life. That is why no idea, no opinion, no doubt, no belief, no counter belief, no relevant information may be kept from them (Meiklejohn, 75).
The right to "speech" - which is the right to express is subsumed within the broader world of communication, a place for both the conveyance and reception of information. The right to "speech" is rendered half a value without the right to communicate.
Judicial Interpretation of the Freedom of Speech: the Undervalued Role of Receiving Communication.
Our courts have been no less vigorous than Professor Meiklejohn in finding that the First Amendment protects communication to its source and to its recipients both.
If as the U.S. Supreme Court has said, the free flow of commercial information is "indispensable" to an "intelligent and well informed" populace which in turn serves the broad public interest, then providing the "free flow" of social, cultural, political, and creative information in our educational institutions is a tripled value by comparison. If the First Amendment protects the right to sell diet sodas, a child's right to communication must be worthy of comparable safeguarding.
In Virginia Pharmacy Board v. Virginia Consumer Council, the United States Supreme Court considered a Virginia law which banned the advertising of prescription drug prices, raising the question of whether "commercial" speech is outside the protection of the First Amendment. The Court first reiterated the First Amendment right to communication to the "source and ...its recipients both," noting the factual dispute involved nothing more than a Virginia pharmacist "wish[ing] to communicate" that she will sell "'X drug at the Y price,'" the mere fact that this was a commercial transaction did not so remove it from the "'exposition of ideas'" and from the "'truth, science, morality, and arts'" in the "diffusion of liberal sentiments on the administration of Government," to be beyond Constitutional protection (Virginia Pharmacy, 761, 762).
Advertising, "however tasteless and excessive it sometimes may seem, is nonetheless dissemination of information as to who is producing and selling what product, for what reason and for what price"( Virginia Pharmacy, 765)
To argue whether a particular expression - whether political or commercial - carries a greater or lesser constitutional imprimatur is, as the Court stressed, a "highly paternalistic" one(Virginia Pharmacy, 770). Ultimately the Court recognized that the, people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than close them (Virginia Pharmacy, 770). (Emphasis added)
The lack of a free and open flow of communication and therefore ideas is no more starkly illuminated than by the failure to provide deaf and hard of hearing children with teachers who can communicate directly and proficiently with them and effective interpreters when the classroom teacher possesses insufficient or no skills. As the U.S. Supreme Court said in Virginia Pharmacy Board:
We are aware of no general principle that freedom of speech may be abridged when the speaker's listeners [sic] could come by his message by some other means...(Virginia Pharmacy, 757, fn. 15)
Although the "First Amendment [is] primarily an instrument to enlighten public decision-making in a democracy...."(Virginia Pharmacy, 765, emphasis added), for too long deaf and hard of hearing children have, to their detriment, come by the free flow of information via hand-written notes and the half-communication of educators.
Ernest Mandel a Belgian journalist, self-proclaimed "revolutionary Marxist," was prohibited from coming to the United States for several speaking engagements, because § 212(a)(28)(D) of the Immigration and Nationality Act of 1952 denied a visa to any "aliens" who "advocate the economic, international and governmental doctrines of world communism...." Mr. Mandel addressed one of the conferences by transatlantic telephone, after which he and his six sponsors, filed suit claiming the statute was unconstitutional because it restricted the right to "hear [Mandel's] views and engage him in a free and open academic exchange"(Kleindienst v. Mandel).
While Mandel "had no constitutional right of entry to the country," the First Amendment clearly protects the right to "hear, speak, and debate with Mandel in person" because the Constitution "protects the right to receive information and ideas" as well as suitable " access to social, political, aesthetic, moral, and other ideas and experiences...." In rejecting the Government's claim that plaintiffs could exchange ideas with Mandel over the telephone, the Court noted the importance of those "particular qualities inherent in sustained, face-to-face debate, discussion and questioning" (Kleindienst, 762,763). The constitutional right to access information is "no more vital" than in our schools and universities (Kleindienst, 763).
If one has the right to "face-to-face" exchange with an individual deemed, at least by statute, to be dangerous to the well being of the nation, then what of the right of a deaf or hard of hearing child to have "face-to-face" exchange with a teacher in a classroom and friends on the playground?
If our Constitution safeguards the right of dissident voices to be heard in our schools and universities and to receive information of all kinds, then the contrast between the right to access minority points of view and the right to access any information/communication at all is startling. The student who is denied the right to receive information from a revolutionary Marxist is denied much; the student who cannot access any information - whether it be the time of that night's basketball game or a debate about Nazis marching in Skokie - is denied everything.
The country's future "depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues" ( United States v. Association Press, 372). Deaf and hard of hearing children are a vital part of that "multitude." Our Constitution must recognize that children, all children have unfettered, direct, and appropriate access to classroom communication.
Deaf & Hard of Hearing Children who Are Denied Communication Access are a Suspect Class for Purposes of 14th Amendment Protections.
The 14th Amendment of the U.S. Constitution provides that no state "shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States....[or] deprive any person of life, liberty, or property without due process of law, [or] deny to any person within its jurisdiction the equal protection of the laws ." (Emphasis added).
The 14th Amendment protects citizens against any law that treats a particular group of people unequally and any law or policy that affects an individual's fundamental rights. e.g., right to free speech, assembly, privacy.
If the law or state practice discriminates based on race, color, or national origin (sometimes called "immutable" characteristics) a "suspect class" exists and a reviewing court will "strictly scrutinize" the questionable law or policy. This "strict scrutiny" rule places a heavy burden on the entity charged with applying/enforcing the law or practice and represents the highest Constitutional protection.
If the law or practice does not involve race, color, or national origin, then the court applies a "rational basis" test to determine whether the law or practice is reasonably related to its purpose. Laws involving gender, sexual preference, and age generally come under this lower standard, however the U.S. Supreme Court has created a hybrid classification between strict scrutiny and rational basis for gender issues.
The Denial of Equal Access to Communication and Equal Protection Case Law.
Although the U.S. Supreme Court has not yet recognized a "suspect class" based on national language or communication mode, the subject of "linguistic discrimination" is not new. The "Fourteenth Amendment clearly extends to protection of any group of persons...including groups identified by ethnic, national origin, or linguistic characteristics " ( United States v. Uvalde ) (emphasis in the original). To a person who speaks "only one tongue or has difficulty using another language than the one spoken in his own home, language might well be an immutable characteristic like skin color, sex or place of birth"( Garcia v. Gloor, 270)(emphasis added).
In Olagues v. Russoniello, bi-lingual ballots were denied to Chinese and Spanish-speaking immigrants. In analyzing the "traditional indicia of a suspect classification," the court asked whether the class is 'saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process'" ( Olaques, 1520).
The Court found that "Congress had explicitly recognized that pervasive discrimination exists against linguistic minorities" and a "language-based" classification might be the same as "national origin" classification, particularly when there was a clear distinction between a "general classification" of English and non-English-speaking groups and more narrowly-defined groups such as Spanish-speaking and Chinese-speaking immigrants ( Olaques, 1520).
If the plaintiffs in Olagues constituted a sufficiently well-defined sub-language group to support a "suspect" classification with the attendant constitutional protections, then deaf and hard of hearing children (and deaf and hard of hearing adults) constitute an even more narrowly drawn group, who, unlike non-English speaking immigrants, have an entirely different communication mode.
In Sandoval v. Hagan the United States 11th Circuit Court of Appeals ruled that Alabama 's policy of an English-only driver's test was unconstitutional and discriminatory based on language/national origin. The policy prevented 13,000 Alabamians who could not speak or read English from obtaining a driver's license. As a result they lost economic opportunities, social services, and other "quality of life pursuits"(Sandoval, 508).
In its appeal the state of Alabama asserted that "language never has been held to be a proxy for national origin" thus non-English speaking Alabamians were not a "suspect class" and not protected by the "strict scrutiny" standard. The Court of Appeals rejected the argument:
The Supreme Court never has held that language may serve as a proxy for national origin for equal protection analysis. However, in the context of jury selection, the Court surmised that "it may 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 [emphasis added] under an equal protection analysis"...."the Constitution protects...[the Japanese] as well as those who speak another tongue...."since language is a close and meaningful proxy for national origin, restrictions on the use of languages [emphasis added] may mask discrimination [while] employment termination because of foreign accent constitute[s] national origin discrimination( Sandoval, 509, fn. 26).
While the decision in Sandoval was reversed by the U.S. Supreme Court in April, 2001, the five justice majority did not rule on the language issue, but rather reversed based only on their determination that the applicable law did not provide the plaintiffs with a "private right of action." The Supreme Court focused entirely on this threshold issue and did not negate the lower court's evaluation of the language issue and did not change previous decisions, including its own, in which the door was opened for establishing a communication/language "suspect" class. If language is like "skin color" for purposes of equal protection, then what of language in which the individual has both a different language and communication mode? The Spanish (or Russian or Indian or Korean or Newari) "speaker" has a different spoken language, but has the capacity to learn another spoken "tongue." The deaf or hard of hearing child has an immutable characteristic - hearing loss - which removes him or her, partially or fully, from the universal language community in which all members have an equal capacity to learn spoken language.
If there is agreement as to the importance of communication, what is the 14th Amendment violation? Education is compulsory for there is "no doubt as to the power of a State, having a high responsibility for education of its citizens, to impose reasonable regulations for the control and duration of public education" (Yoder v. Wisconsin, 215). Any state that "imposes" a requirement to attend school, but does not provide that which makes the experience possible, violates the 14th Amendment of the United States Constitution. Is there any doubt that if a state mandated school attendance, but did not provide reading development for a specific group of students or no electricity for another, or only half the curriculum for a third, such state action would not only be incomprehensible but illegal? Is effective communication - both development of and access to - any less fundamental under an Equal Protection analysis? It is difficult to imagine therefore that the various state school attendance mandates not violating the 14th Amendment rights of deaf and hard of hearing children.
Any law, policy, or program that denies deaf and hard of hearing children equal access to communication should meet the "strict scrutiny" test and prove the most remarkable exigencies to justify the discrimination they may foster.
Statutory Protection of a Right to Communication.
A right can be established by the passage of a law which then becomes an enforceable statute. And while the statute must pass muster with the Constitution, it is an entirely separate and valid process for protecting certain individual rights.
The right to communicate in the classroom is protected by federal law. Section 1703(f) of Title 20 of the United States Codes provides that:
No state shall deny equal educational opportunity to an individual on account of his or her race, color, or national origin, by - (f) the failure of an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs (emphasis added).
While this author is not aware of any cases brought under §1703 on behalf of deaf or hard of hearing children, its mandate to "overcome" "language barriers" that "impede" education is directly applicable.
Moreover while § 1703(f) does refer to a denial based on "race, color, or national origin" (paralleling the suspect class component of "equal protection" law), "in some communities... proficiency in a particular language, like skin color, should be treated as a surrogate for race" as noted under an equal protection analysis (Hernandez v. New York, 371).
In Martin Luther King Jr. v. Ann Arbor Sch.Dist. certain African-American children spoke "black English," a black vernacular or dialect. They sued the school district under §1703(f) to force it to "take appropriate action to teach" the children "to read in the standard English of the school, the commercial world, the arts, science and professions" ( Martin Luther King, 1373).
The court ruled that the school district had to develop a plan to overcome the language barriers facing these children, including training school staff to understand, identify, and assist these children to develop standard English skills. The school district was only required to make use of the child's unique communication, for the language of "back English" has been shown to be a distinct, definable version of English [but] different from...the general world of communications....[and] is not used by the mainstream of society - black or white(Martin Luther King, 1378)(emphasis added).
In its ruling the court could not have more clearly recognized the central importance of communication and language:
A major goal of American education...is to train young people to communicate....The art of communication among the people of the country in all aspects of people's lives is a basic building block in the development of each individual.
Children need to learn to speak and understand and to read and write the language used by society to carry on its business, to develop its science, arts and culture, and to carry on its professions and governmental functions.
[A] major goal of a school system is teach reading, writing, speaking and understanding standard English(Martin Luther King, 1372).
The court called the children's legal action a "cry for judicial help in opening the doors to the establishment...and [necessary to prevent] another generation from becoming functionally illiterate," a sentiment so close to the concerns of the deaf and hard of hearing communities as to be, if not startling, in some odd way, re-assuring that there are others denied the fundamental right of communication. 3.
In passing the Equal Educational Opportunities Act of 1974, Congress intended to "set standards for all school districts throughout the Nation, as the basic requirements for carrying out, in the field of public education, the Constitutional guarantee that each shall have equal protection of the laws and the "obligation of the school system...to take appropriate action to overcome the language barrier" (Martin Luther King, 1381)(emphasis added).
Even though the educational system and teachers in this case were "well intentioned", the children's language barrier cannot be overcome unless the educators "take into account the home language system" and to "use that knowledge as a way of helping the children to learn to read standard English" and to help them learn "code switching skills in connection with reading standard English...."
The Martin Luther King case provides a powerful rationale and analogue of significant dimensions for deaf and hard of hearing children.
In Lau v. Nichols, 2,856 non-English speaking Chinese students sued the San Francisco Unified School District for appropriate language services. The Court required no proof that the language discrimination was "purposeful" and ordered that where "inability to speak and understand the English language excludes national origin minority group children" from an education, "the district must take affirmative steps to rectify the language deficiency in order to open its instructional program to these students"( Lau, 568).
While one may question the Court's use of the phrase "language deficiency," its call for "affirmative steps to rectify" matters in order to "open" educational doors is profoundly relevant for deaf and hard of hearing children, the more so because theirs is not a deficiency but a modality difference.
The Court in sending the case back for further action, noted that the students could be taught English and/or instructed in Chinese because:
Basic English skills are at the very core of what these public schools teach. Imposition of a requirement that, before a child can effectively participate in the educational program, he must already have acquired those skills is to make a mockery of public education. We know that those who do not understand English are certain to find their classroom experiences wholly incomprehensible and in no way meaningful ( Lau, 566).
It requires little imagination to substitute deaf and hard of hearing children for the African-American and Chinese-American students in Martin Luther King and Lau. There is a clearly identified group of children in this country who because they cannot understand English are being deprived of any meaningful educational experiences. And to the extent that deaf and hard of hearing children are not a "race" or "nationality," as noted there are important cases in which a "language" minority was, for purposes of constitutional rights, tantamount to a race or nationality. That the plaintiffs in Martin Luther King and Lau had the full capacity to develop "spoken" English illuminates to a greater degree the "deprivation" experienced by deaf and hard of hearing children and the importance of a legal and educational remedy. 4
That one might argue that the children in Lau and Martin Luther King are entitled, under §1703(f), to protection of their communication/language needs because they are a "race" and deaf and hard of hearing children are not is a distinction without merit, educationally insupportable, and morally suspect.
The Practical Implications of Creating a Constitutional Right to Communication.
If the right to communication and language for deaf and hard of hearing children was legally recognized - either under the Constitution or an existing or new statute - what specifically would the right encompass?
Determining what constitutes a communicationally - appropriate education requires much discussion and a full understanding of what deaf and hard of hearing children need. For purposes of the broader argument proposed here, the right should include:
1. The Right to Communication/Language Access, including educational staff proficient, at an adult level, in the child's communication mode and specific language, an educational program in which each child has available an appropriate community of age and communication/language peers, and access to recreational, social, extra-curricular, vocational, and other educational programs available to all children.
2. The Right to Communication Development, including age appropriate communication mode and language skills. As discussed in the Martin Luther King case, our schools (and other institutions) must have programs in place to specifically bridge the gap between a deaf and hard of hearing child's age and communication skills. The students in Lau were, more or less, proficient in Chinese, but lacked age-appropriate English skills, if they had any at all. The students in King were capable in their home language, but not so in standard English. The development of communication skills for Chinese-American, African-American, and deaf and hard of hearing children is the foundation upon which literacy is built.
And if such rights should exist, what of the cost? Cost and administrative issues are highly relevant, but legislators and policy makers will determine whether the right is important enough to warrant fiscal support. Moreover the question stops the analysis before it begins. We raise here a constitutional question, not a political or fiscal one, for as the effectively political John Kennedy said in discussing the justification for civil rights legislation, we face a dilemma as "old as the Scriptures and as clear as the American Constitution"( Kennedy, 1963).
Conclusion
Education is compulsory in this nation and yet for deaf and hard of hearing children that which is central to human and educational growth - communication and language - is a discretionary matter. These children are required to go to school to enhance our democracy, strengthen our way of life, and promote individual and economic viability, but have no claim on the very thing they need to accomplish those goals.
Even as our laws have required that non-English speaking children develop reading and writing skills in English, even as our courts have recognized the importance of different languages and even dialects or jargons, even as our Constitution has accepted that one's language is so important as to be tantamount to cultural or national origin, there is no recognition of the truly unique language and communication needs of deaf and hard of hearing children.
The United States has always been "home to speakers of many languages" and attempts, for example, to prohibit teaching in a language other than English have been rejected out of hand as unconstitutional(Harvard Law Review, 1348).
Not surprisingly, legal scholars have concluded that since there is a "close connection between language and religious/ cultural freedoms" it is well past time to "recognize a human right to language in this country"(Harvard, 1348, fn. 16).
Anna-Miria Muhlke, for example, writing in the Winter, 2000 issue of the Virginia Journal of International Law, argued that the International Bill of Rights creates both a clear entitlement to language for deaf and hard of hearing children and a concomitant governmental obligation to "ensure the fullest possible linguistic development" for them(Virginia Journal of International Law, 729-730).
A Constitutional right is a rare and valuable thing and thus it should be. We speak so often of needs and rights that the two become interchangeable, the latter devalued by the former. But there are those rights which are so fundamentally clear, logical, fair, and honorable that it is hard to conceive of an argument to the contrary. The right to communication, particularly for deaf and hard of hearing children is such a right, for the "purpose of language is communication in much the same sense that the purpose of the heart is to pump blood" (Chomsky, 55).
"There is no pleasure to me without communication. There is not so much as a sprightly thought comes into my mind that it does not grieve me to have produced alone, and that I have no one to tell it to." Montaigne.
Notes
1. What of the right to "language" rather than communication? Language is defined, formally and pragmatically as those words and combination of words understood by a considerable community. Communication is the mode by which language is conveyed; language is the particular agreed-to convention in which specific words have specific meanings and convey understanding. English or Russian or Chinese or Spanish are languages; sign language and spoken language are communication modes.
2. Under IDEA, the IEP team must "consider" the communication needs of a deaf or hard of hearing child. By comparison a child with disabilities must be provided a free appropriate public education. The legal difference between a "consideration" and a mandate ("must", "shall") is far-reaching, the former discretionary, the latter required. With limited budgets, a declining teacher pool and other pressures on public education, communication is rendered an expendable educational option. 20 U.S.C. §1401(8), §1413(d)(3)(B).
3. The Court, not unlike the U.S. Supreme Court in Brown v. Board of Education, 347 U.S. 483(1954) which based its historic decision more on sociology than legal precedent, relied on language development research: which shows the existence of a language system, which is a part of the English language but different in significant respects from the standard English used in the school setting....[Black English]has been used at some time by 80% of the black people of this country....it still flourishes in areas where there are concentrations of black people....efforts to instruct the children in standard English by teachers who failed to appreciate that the children speak a dialect which is acceptable in the home and peer community can result in the children becoming ashamed of their language, and thus impede the learning process. 1375-1377.
4. The applicability of §1703(f) is no more apparent than in the findings of the National Association of State Directors of Special Education[NASDSE]:
Most hearing children enter school with the ability to process and integrate verbal information. They have a basic command of the language and an extensive vocabulary. School systems establish programs and services and develop curricula based on the assumption that all children enter school with basic language skills. The schools then proceed to teach children to read, write, and develop computational skills....children with hearing loss seldom bring to their educational experience the same extensive language background or the same breadth of language skills as do hearing children....Children who are deaf who are not exposed to early language input are likely to have severe deficits that will have an impact on future learning and will require extensive intervention to facilitate language development (NASDSE, 2, 9).
References
Chomsky, N. (1975). Reflections on Language, (Pantheon Books),
Cintron v. Brentwood U.Free Sch. Dist. 355 F.Supp. 57 ( E.D. N.Y. 1978) in which the court required the district to develop specific plans to assist English-deficient students.
Corina, P. (1998). "Studies of Neural Processing in Deaf Signers: Toward a Neurocognitive Model of Language Processing in the Deaf," Journal of Deaf Studies and Deaf Education, 3(1).
Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980)
Heavy Runner v. Bremner, 522 F.Supp. 162, 164 (D.C. Mont. 1981) in which the court ruled that Blackfeet children who did not use English were entitled to relief under 20 U.S.C. §1703(f) "regardless of the number" of children.
Hernandez v. New York, 500 U.S. 352, 371-72 (1991). There is a close nexus between language and national origin and the Constitution protects, for example the Japanese "as well as those who speak another tongue"
Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967), freedom of expression in our schools is "of transcendent value...."
Kleindienst v. Mandel, 408 U.S. 753(1972).
Lamont v. Postmaster General, 381 U.S. 301 (1965).
Lau v. Nichols, 414 U.S. 563(1973).
Martin Luther King Jr. v. Ann Arbor Sch.Dist., 473 F.Supp 1371, (E.D. Mich. 1979).
Martin, S. (1967). "Cool Hand Luke." Warner Brothers Studio.
Meiklejohn, A (1965). Before the U.S. Congress, reprinted in Political Freedom, the Constitutional Powers of the People (Oxford University Press). The "security of the Republic" is enhanced with the fullest and most unfettered protection of the people's right to "praise, criticize or discuss, as they see fit, all governmental policies..." xxiv.
Meyer v. Nebraska, 262 U.S. 390 (1923).
Mill, J. (1859). On Liberty (Longman, Roberts, and Green, London ).
Muhlke, A. The Right to Language and Linguistic Development: Deafness from a Human Rights Perspective, 40 Virginia Journal of International Law, Winter 2000, 705.
National Association of State Directors of Special Education (1994), Deaf and Hard of Hearing Students Educational Service Guidelines.
Official English': Federal Limits on Efforts to Curtail Bilingual Services in the States, 100 Harvard Law Review (1987), 1345.
Olagues v. Russoniello, 797 F.2d 1511(9th Cir. 1986).
Pinker, S. (1994). The Language Instinct, (William Morrow & Co.).
Procunier v. Martinez, 416 U.S. 396 (1974)
Sacks, O. (1989). Seeing Voices (University of California Press, Berkeley), 8, "...to be defective in language, for a human being, is one of the most desperate of calamities, for it is only through language that we enter fully into the human estate...."
Sandoval v. Hagan 197 F.3d 484 (11th Cir. 1999); Alexander v. Sandoval, Case No. 991908, decided April 24, 2001.
Serna v. Portales Municipal Schools, 351 F. Supp. 1279, 1281-1283 (D. N. M. 1972) - an educational system that tailored its program to educate English-speaking children without regard for the educational needs of children who came from Spanish- speaking homes, was discriminatory and required bilingual instruction.
Sweezy v. New Hampshire, 354 U.S. 234, 251 (1957), the absence of any voice in our democracy, whether orthodox or not, "would be a symptom of grave illness in our society."
United States v. Associated Press, 52 F.Supp. 362(S.D. N.Y. 1943).
United States v. Uvalde Consol. Indep. Sch. Dist.,625 F.2d 547(5th Cir. 1980).
Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748 (1976).
Websters 9th New Collegiate Dictionary (1988).
Wisconsin v. Yoder, 406 U.S. 205 (1972); California Education Code §48200, as one example requires that all individuals between the ages of 6 and 18 are "subject to compulsory full-time education...and shall attend...school...."