The Human Right to Language: Communication Access for Deaf Children

5: The First Amendment and Freedom of Association

5 ! THE FIRST AMENDMENT AND FREEDOM OF ASSOCIATION What we have here is a failure to communicate. —Cool Hand Luke Jean was seven and lived in a city of about 50,000. She attended second grade in a regular classroom in which there were no other deaf or hard of hearing children. She was fluent in ASL—her parents and siblings were also deaf. Although the school had provided her with an interpreter , her interaction with peers was perfunctory, static. She was smart and generally did well in school. Her classmates knew a few signs, but at recess and lunch Jean could usually be found by herself, too often studying the ground or looking into the trees that rimmed the schoolyard. She was eager to attend class and be involved, but she was always on the periphery of things. She had no friends from school and after school went straight home. One day her parents visited school and arrived during recess. They saw their daughter alone on the playground. She was normally a vibrant child, but standing alone she seemed only sad. Jean’s mother cried when she returned home. The next day, her parents wrote the school requesting that Jean go to the state school for the deaf. The state school was three hundred miles away, and Jean would be a residential student. Her parents understood this, knew that their seven-year-old daughter would wake up every morning and go to bed every night in a distant place. But she wouldn’t stand by herself on the playground. After dinner and homework, they asked Jean about moving to the state school. She had been there many times—her brother and sister had attended, as had her parents. She immediately ran upstairs, and when her parents came up to put her to bed, they found a small suitcase packed and placed next to her bedroom door. The IEP meeting did not go well. The school administrator explained to Jean’s parents that the LRE requirement of the law prohibited the district from sending a child to a more restrictive environment if she 63 64 / A Constitutional Right could attend regular school. The interpreter was the “supplementary aid” that allowed her to “achieve satisfactorily” in the regular classroom. The administrator knew the IDEA regulations well and knew that the federal government would criticize any school district that did not meet the important LRE mandate. “The state school was very good for me, my wife, and our other children ,” Jean’s father said. “Jean is no different.” The administrator nodded and filled out the rest of the IEP, saying, without looking up, “The school district is offering continued placement in the regular second-grade class, and your request for placement at the state school has been denied.” When Jean’s parents told Jean of the school administrator’s decision , she cried and asked why she couldn’t go to the state school. When they explained that the district would not let her, she stomped upstairs. Her suitcase remained next to the door. Jean’s parents filed for a due process hearing. At the hearing, her parents testified about Jean and her increasing sadness. “She has always been a vibrant, even stubborn, child,” her father explained. “But lately she has been spending too much time in her room. She never plays with any other children.” “Have you talked to your pediatrician about Jean’s so-called moods?” the school’s attorney asked. “No.” “Is she receiving any therapy?” “No.” “Has her doctor said that she has any mental illness?” “No.” “Has her doctor expressed any concern about her developmental growth?” “No.” “Has her doctor recommended any help for any mental problems?” “No.” “So she has no mental disturbances as defined by the IDEA?” “No.”* *I represented Jean, and this specific exchange reveals the harsh burden on children like her. The IDEA provides that a child can be “removed ” from a regular classroom only if the child is not achieving satisfactorily . 20 U.S.C. § 1412(a)(5). Jean needed to show signs of mental disease to have the right to access a language-appropriate school. The First Amendment and Freedom of Association / 65 Jean’s parents asked a deaf teacher from the state school to testify. He signed, with an interpreter voicing, of his own experiences as the only deaf child in his school district, of his loneliness, of the...