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When “Equal” Means “Unequal”—And Other Legal Conundrums for the Deaf Community
- Gallaudet University Press
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When “Equal” Means “Unequal”— And Other Legal Conundrums for the Deaf Community Sarah S. Geer Laws structure our society and interactions; they affect all of us, every day, in large and in small ways. Laws are made of words. Therefore, the use and interpretation of legal language is unusually important. Understanding legal language is important to lawyers and judges, of course, but also to the rest of society, as our decisions and lives are controlled by laws and judicial actions. Lawyers and judges use words as their primary tools. Lawyers spend most of their workdays immersed in language: reading, speaking, listening , and writing. It is commonly said that one of the primary tasks of law school is to indoctrinate new students into talking and writing “like a lawyer.” Unfortunately, talking like a lawyer is not always a complimentary term! Legal language is characterized by formality, complexity, verbosity, and the use of arcane terminology. The result is obvious: Nonlawyers frequently misunderstand lawyers, legal terms, and laws. Most Americans would correctly define an assault as a violent physical attack. For example, one might say, “He was assaulted in a dark alley.” This is how the term is defined in English dictionaries . To a lawyer, however, an assault, as defined under common law principles, involves no physical contact at all. It is merely a threat to make physical contact. To a lawyer, the assault victim in that dark alley may have been scared and may have been threatened, and he may even have fallen down backwards over a garbage can and been physically injured, but he was not physically touched in any way by the person who assaulted him. If a fist, finger, or foot actually makes physical contact with another person, a lawyer calls that act a battery. 82 Words such as equal, disability, reasonable, appropriate, effective, and rights have highly specific legal meanings in the context of courts and lawsuits. Some of those meanings come as a surprise to nonlawyers. The meanings of these words may seem especially counterintuitive to members of the Deaf community who receive both the vernacular meaning and the legal meaning through yet a third language, American Sign Language (ASL), or other sign language variants. Legal jargon is more than a static professional vocabulary. It has power. Judges and legislatures take words from the ordinary vernacular and ascribe definitions literally “as a matter of law,” which may be different from the meaning of these words in everyday discourse. This language planning takes place in three forums, as laws are written by legislatures , implemented by executive agencies, and interpreted in courts. Like language itself, legal terms can change substantially over time both in terms of policy and meaning. In FCC v. Pottsville Broadcasting Co., the U.S. Supreme Court described a legal term, the public interest standard in the Federal Communications Act, as a “supple instrument” for the agency to use to carry out the legislative policy that was broadly established by Congress.1 The suppleness of law can be both a strength and a weakness. Congress has granted similar authority to the U.S. Department of Justice (DOJ), the U.S. Department of Education, and other executive agencies to create, interpret, and implement the disability rights laws of the past twenty-five years.2 Over time, our understanding of some of the terms used in these laws has changed. This paper will examine some of the interpretations that have been imposed on selected key terms in the landmark federal laws that most directly affect deaf and hard of hearing people in the United States. These laws include the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973, and the Individuals with Disabilities Education Act. 3 Relevant legal language is found in the statutory terms enacted by Congress and in the associated regulatory language developed by federal executive agencies. Finally, these terms have been used and defined in court cases, in which judges take those statutory and regulatory terms and apply them to specific factual controversies in written decisions. Some illustrative cases will be examined in each section . This paper is not a comprehensive explanation of the laws, which is far beyond its scope. Key terms will also be briefly examined in the context of how they are understood by members of the general public and by the Deaf and When “Equal” Means “Unequal”—And Other Legal Conundrums : 83 [18.207.104.87] Project MUSE (2024...