The Argument for a Constitutional Right to Communication and Language

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 or 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, 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. If the Constitution venerates the right to speech, the right to communication and language is of equal or greater value.

"Language is so tightly woven into human experience that it is scarcely possible to imagine life without it."

Steven Pinker, The Language Instinct

"What we have here is a failure to communicate."

Strother Martin, Cool Hand Luke

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 affects 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 its value against the others is a futile exercise; to exclude it, indefensible.

For deaf and hard-of-hearing children, the absence of communication and language has a crushing effect on the development of basic educational and life skills. That deaf and hard-of-hearing children continue to leave school with no more than third grade reading ability—a statistic so often repeated that these children and their parents must grow weary of it—and the high rates of under- and unemployment among deaf and hard-of-hearing adults, reveals the pragmatic consequences of what Oliver Sacks calls the "languageless" environment (1989, p. 9).

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 commonweal. 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 anew 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...