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American Annals of the Deaf

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Access: Multiple Avenues for Deaf People

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C u r r e n t  L a w  a n d  I t s  I m p a c t  o n  D e a f  E d u c a t i o n

In the 1970s, the U.S. Congress enacted laws intended to abolish the unjust and discriminatory practices against individuals with disabilities. This landmark legislation includes the Rehabilitation Act of 1973 and the Education for All Handicapped Children (Public Law 94-142), passed in 1975, later known as the Individuals with Disabilities Education Act (IDEA). IDEA mandates that students who are identified via evaluations as having a disability have the opportunity to enroll in a special education program. Should the proposed educational program be accepted by the child’s parents or legal guardians, a team of educational professionals, the parent(s), and sometimes the student convenes a meeting in which they discuss evaluations of the child, current academic and social-emotional levels (and other relevant developmental milestones and evaluations), performance in school, and any other specific needs that are indicated by the student’s disability. In turn, this team develops an Individualized Education Plan (IEP).

During the IEP process, the IEP team will consider all the student’s needs and come to a decision as to where the services will be implemented. By law, the team must consider the “least restrictive environment” (LRE), which is defined as follows:

To the maximum extent appropriate, children with disabilities . . . should be educated with children who are not disabled, and . . . special classes, separate schooling, or other removal of children with disabilities from the regular educational environment should occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. (20 U.S.C. 1412(a)(5)(B))
In practical terms, this law mandates that children be placed in educational programs closest to their neighborhood school or closest to the educational path that they would have followed had they not been identified as having a disability. This mandate of “inclusion” is a triumph and a great leap toward equality for most children identified as disabled because it requires that they be included in the “mainstream” of education rather than segregated and hidden away. However, this mandate has wreaked havoc on the appropriate education of the Deaf child. The Deaf child has different linguistic needs than other children who are identified as disabled. Indeed, the Deaf community does not view deafness as a disability. Instead, Deaf people view themselves as a language minority group who are fully capable of functioning normally unless removed from a milieu that employs sign (American Sign Language [ASL]) for communication.

L e g a l  C o n f l i c t  f o r  t h e  D e a f  C h i l d :  F A P E  v s .  L R E

In addition to promoting education in the LRE, schools are also mandated by Section 504 to provide a “free and appropriate public education” (FAPE) to all students who are identified as disabled. Initially, Section 504’s concern was ensuring that students with disabilities were not discriminated against (29 U.S.C. 794). When IDEA was enacted, the federal government became the body that defined what was “appropriate.” As cited above, the LRE requires that students be placed “to the maximum extent appropriate with their non-disabled peers” and states that “removal of children with disabilities occurs only when the nature or severity of the disability of a child is such that education classes with the use of supplementary aids and services cannot be achieved satisfactorily.” (20 U.S.C. 1412(5)(B))

Although IDEA should be applauded for its effort to remedy the inequities between students “with disabilities” and students in “regular” education, its effects on the education of Deaf children have been disastrous. The Deaf child’s linguistic and social needs are superseded by the notion of what is “least restrictive” and “appropriate.” Because Deaf children have been labeled disabled under IDEA, the LRE, by default (according to the law) is inclusion with “non-disabled,” or hearing, peers. However, culturally Deaf children would insist that they are not disabled; were they to be placed in an environment in which all linguistic needs are met—in which all could use and understand ASL—no disability would exist.

Meeting the linguistic and social needs of the Deaf child is crucial to his or her educational success; without access to ASL and Deaf peers, the Deaf child is relegated to a de facto “most” restrictive environment even though de jure, he is in the “least” restrictive environment. Lane, Hoffmeister, and Bahan (1996) explain that

The LRE principles as interpreted by OSERS [Office of Special Education and Rehabilitative Services], the residential schools for the Deaf, which are a core element in the very identity of many members of the Deaf-World, and where the Deaf children of hearing parents may encounter peers and adults fluent in ASL for the first time, are referred to as institutions, and hence positioned at the bottom of the placement hierarchy. Second, most Deaf children require the use of a unique, visual language, which is the language neither of instruction nor of conversation in the preferred setting for the education of most children with disabilities, that is, regular public schools. (231)

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