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Vv)/. r,7, \o. 2,/)/,. IH7-19N.•'i)200} The ( 'uiimilfor
E\iej}ti,in,l!
Exceptional Children
Will the Courts Go Bi-Bi?IDEA 199Z the Courts, andDeaf
Education
PAULA PITTMAN
DIXIE SNOW HUEFNER
I hiiversity of ihiib
ABSTRACT:r: An innovative ifistructional philosophy in the field
of deaf education—bilingual-
hicultural (hi-bi) education—is likely to raise new questions
for courts to consider in inter-
preting the Individuals with Disabilities Education Act. This
article reviews past litigation
concertiing the education of children who are deaf or hard of
hearing and explores the new
language of IDEA '97 as it affects communication issues for
these children. Arguing that
IDEA '97 and the 1999 implementing regulations make it more
difficult for schools to ignore
the primary language and preferred mode of communication of
children who are deaf the au-
thors speculate that courts may be less likely to view language
and communication modes as
educational methods and, therefore, less likely to defer to the
decisions of school authorities
than in past court cases.
An innovative instructionalphilosophy in the field ofdeaf
education—bilingual-bi-cultural (bi-bi) education-—may bring a new
question
before the courts. This fairly new and often con-troversial
educational approach in the field ofdeaf education involves
exposure to and acquisi-tion of two languages, American Sign
Language(ASL) and English. It also involves exposure toand
involvetnent in two cultures, the Deaf cul-ture and the Hearing
culture (capitalization ofthe "d" in the word deaf refers lo a
ctilture andcommunity in which ASL is the language of in-teraction
and the rules ofthe culture surround-ing the language are
observed). Bi-bi involvesusing ASI, as the primary, and often sole,
lan-
guage of interaction in the first 6-7 years of lifewith children
who are deaf and exposing chil-dren to all aspects of Deaf culture
(Patil, 1987).
Undoubtedly, the isstie of how best to ed-ucate a child who is
deaf whose primary lan-guage of interaction is ASL and who has
hadlimited exposure to English will stir up a varietyof challenges
for educational systems that arecurrently accustomed and prepared
to teachchildren who are deaf using methods that areEnglish-based.
It is likely that these challengeswiil result in debate about the
methods used toeducate the child who is deaf whose native lan-guage
is ASL. If this debate finds its way intothe court system, how will
the issue be analyzedin light ofthe Individuals with Disabilities
Edu-cation Act Amendments of 1997 (IDEA '97)?
Excep lion III (. Jiildrei i
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In previous litigation the Federal courtshave generally taken a
"hands off" approachwhen it comes to mandaling a particularmethod
oF instruction For children who are deat.At the same time, the
courts have also ruledagainst educational discriminatiDn in the
publicschools toward children whose primar)' language-is not
English (e.g,, Casianeda v. Pickard, 1981;Uiu r. Nichols, 1974; ).
But how might a plain-tiFF approach the courts when debating how
toprovide a Free appropriate education to a childwho is deaf and
whose native language is ASL, alanguage that has no written or
spoken torni?How might the courts rule on such a case inlight of
their past decisions and the new lan-guage of IDEA'97?
It is likely that these challenges will result
in debate about the methods used to edu-
cate the child who is deaf whose native
language is ASL.
This article reviews past litigation con-cerning the education
of children who arc deaFor hard of hearing and explores the new
lan-guage of IDEA '97 as it aFfects communicationissues for these
children, all with the purpose olspeculating abotit the future
influence of IDEA97 on the courts in terms oF children whose
na-tive language is ASI., Part 1 of the article pro-vides a brief
history and background ol deateducation in the United Stales, Part
II examinesthe judicial history surrounding the deaf educa-tion
debate. Fart III discusses IDEA '97 as iheamendments relate to
issues surrounding the ed-ucation of children who are deaf or hard
of hear-ing, including children who are ASE users. PartIV concludes
with itnplications and aspirationsbased upon the information in the
article.
H I S T O R I C A L B A C K G R O U N D
Ihe formal education oF children who are deafbegan in tbe United
States in the late 1800s,wben Thomas Hopkins Gallaudet
broughtFrench Sign Eanguage to the United States, Gal-laudet was
instrumental in bringing together a
large number of children who were deaf to beeducated at a new
school, the American Schoolfor the DeaF and Dumb (Gannon, 1981).
Thesechildren brought with them a variety of home-made signs. These
home-made signs, combinedwith the French Sign Language to which
thesechildren were exposed, began to transform intoa new and
different language that came to beknown as "1 he Sign Eanguage,"
Gallaudei con-vinced legislators that children who were deaFeould
learn when given the opportunity lo beeducated using sign language.
As a result, col-lege programs were created that would
prepareteachers to educate children wbo are deaf, andschools For
the deaf began to be legislativelymandated in most states
((iannon), 1 hese slateschools For the deaF came to be seen as a
bavenby individuals wbo were deaf, 1 be school Forthe deaf was
home, a place where children whowere deaf could Freely communicate
using signlanguage, a visual-spatial language that was de-veloped
by individuals who were deaf,
/'///;• ORAL VS. MANCAI. DI:BAIE
In September 1880, the second InternationalCongress oF the
Education oF the Deaf was heldin Milan, Italy, This conference
brought achange in tbe methods used to edttcate childrenwho are
deaf throughout the world when partic-ipants voted against the use
of sign language ineducational programs (Gannon, 1981;Wine-Fleld,
1987). Educators, including many Ameri-can educators, were
convinced that edticating achild who is deaf using sign language
was an in-justice because sign language was not a true lan-guage.
In the opinion of edticators at that time,sign language was just a
system oF gross gestureswitb which people who were deaF
communi-cated, Edticators felt that in order for childrenwho were
deaf to be educated well, they mustlearn to speak and use tbe
language of the bear-ing. In the United States, as in most
countries,tbe oral method became the primary method ofinstruction
for educating children wbo weredeaf or hard of hearing. Sign
language, however,was alive and well among deaf people. Even
atinstitutions where oral methods oF educationwere being used, sign
language was often the so-
Wmter200l
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cial language ttsed among the deaf students inattendance
(Winefield).
Although sign language was still presentin the educational
system, it became the"wicked stepchild" of deaf education
(Gannon,1981). Children who "failed" to be educatedwith oral
methods were placed in classroomsusing sign langtiagc. Sign
language was still notthought to be a true language by cither
hearingor deaf individuals. The work of linguistWilliam Stokoc
changed all that. Stokoe took aninterest in sign language after
working at Gal-laudet University in Washington, D.C., the
onlyliberal arts university for the deaf in the world.His research
revealed that the sign languageused by deaf individuals in the
United Stateswas indeed a language {Stokoe, I960). Stokoewas able
to identify syntactical and grammaticalfoundations of sign language
that were theequivalent of English and all other spoken lan-guages.
His groundhreaking research broughtnew interest and intrigue to the
language ofthedeaf. What was once called "the Sign Language"was now
given a new name, American Sign Lan-guage (ASL).
Now educators of the deaf had a newcomponent to consider when
determining thebest way to educate children who are deaf.Where did
ASL fit into the picture of deaf edu-cation? ASL has no written or
spoken form, andits grammatical structure looks nothing likeEnglish
(Paul, 1996). Therefore, most educatorsfelt that the recognition of
ASL as a true lan-guage should have no effect on the way
childrenwho are deaf were taught, and until recently ithas not.
Most educators felt that English shouldcontinue to he tbe language
of instruction sincethese children who are deaf lived in a
hearinsworld where English skills held the key to suc-cess. Many
professionals in the field of deaf edu-cation felt that Stokoe's
findings had littleimpact on education issues (Gannon,
1981).Students continued to learn to use their residualhearing with
the help of hearing aids, worked toachieve intelligibility in
spoken English, and fo-cused heavily on written English and
lipreadingto learn new concepts and ideas about theworld.
•/'///• DEVELOPMENT OE HNCEISH-BASFDS/(,N SYSTEMS
Many children who were deaf still struggledwith learning
English, especially those who hadprofound hearnig losses. The move
away fromoralisni as a panacea, and the increased interestin sign
language in the 1960s, brought ahoutthe development of manual codes
of English(Stedt & Moores, 1990). The feeling ofthe timewas
that children who are deaf needed a visualway to learn English.
With this thought inmind, David Anthony, an educator of the deafwho
was himseU deaf, set out to develop a signsystem that would present
English in a visual,manual form for children who are deaf. Lliswork
and experiences while educating childrenwho arc deaf led him, along
with a grotip ofadtilts who were also born deaf, to develop
thefirst manttally coded English system (Gustason,1983). The focus
of their efforts was on devel-oping a new system of signs that
would repre-sent English on the hands. By borrowing signsfrom ASL
and creating new signs to visually rep-resent portions of the
English langtiage, a newsign system was created (Luetke-Stahlman
&Luckner, 1991). Ihis visual representation ofEnglish was given
the name SEE I, Signing Es-sential English. In 1971, fundamental
differ-ences among the members of the originalAnthony group caused
a split that resulted intwo separate groups. Anthony went on to
pub-lish a two-volume series on SEE 1, while thegroup that split
off created, printed, and pub-lished their own system. This second
system ofmanual English codes became known as SigningExact English
II, commonly known as SEE II(Gustason, Pfetzing, & Zawolkow,
1973). Intime, signed English systems used simultane-ously with
spoken English and combined withthe development of auditory and
speech skillscame to represent a philosophy of educatingchildren
who are deaf that was called total com-munication (Luetke-Stahlman
& Luckner).
GuED SPEECH
In addition to the new English codes that werebeing developed
with the intent of assisting chil-dren who are deaf in the
development of Englishskills, an entirely different type of system
was
Exceptional Children
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being developed by Dr. R. Orin Cornctt, thevice president for
long-range planning at Gal-laudet University. In 1966, Dr. Cornett
created anew system called cued speech in an effort tocomhine the
advantages of the oral approachwith the henefits of visual/manual
cues. The sys-tem is composed of eight different handshapesplaced
in four different locations around theface. These cues represent
the syllabic and pho-netic features of speech, and when
combinedwith whai is observable on the lips, are meant tocreate a
lull visible representation of spokenEnglish lo the individual who
is deaf (Schwartz,1996). C^ornett envisioned his invention as atool
to be used in assisting individuals who aredeaf in the development
of spoken English; hedid not develop it with the intention that
itwould become a substitute for sign language(Gannon, 1981).
Nonetheless, it has beenadopted as the primary mode of
communicationfoi some children and some programs educatingchildren
who arc deaf or hard of hearing(Schwartz). It is seen as primarily
an oral ap-proach to educating children although it doesincorporate
manual cues.
Bll IN(,(IAL-HlCin.EL'RAI. EDUCAI ION
As English cues and sign systems were being de-veloped, adult
users of ASL hegan to study thelanguage that they emhraced. In
addition, ASLliad been given the "stamp of approval" with thework
of Stokoe, and individuals who were Deaf,as well as some hearing
educators, began to askwhy ASL was not being used in the education
ofchildren who are deaf. This new awareness ofand interest in ASL
as a langttage has led to thedevelopment of a new philosophy within
thefield of deaf education. For approximately 10years, educators of
the deaf have been experi-menting with a new educational approach
lorchildren who ait deaf. 1 he educational philoso-phy behind the
approach is called bi-bi, or bilin-gual-bicultural cdtication. This
term is nothingnew to the world of general education, but inihc
realm of deaf education, bi-bi is a relativelynew concept. The idea
behind the bi-bi ap-proach is that children who are deaf will be
moresuccessful at acquiring a first language, and inturn subsequent
languages, if tbat first languageis ASL (Walworth, 1990). ASL is a
legitimate
langttage very different from English in its gram-matical
structure. According to the bi-bi ap-proach, once a child has
acquired fluency inASL, that child can then receive formal
instruc-tion in English through spoken (if possible),written, and
signed forms (tising signed Englishsystems). Beginning at age 6 or
7 and continu-ing throtigh junior high and high school, chil-dren
who are being educated with a bi-biapproach are exposed to English
grammar andsyntactical rtiles in a formal way throtigh
formalmethods. English is learned as a second lan-guage, with focus
on written English (Israelite,Ewoldt, & Hoffmeister, 1992;
Stuckless, 1991).Children who are trained using a bi-bi
approachwill theoretically arrive at school with
languagecompetence; however, that language will not beEnglish.
This new awareness of and interest inASL as a language has led
to the develop-ment ofa new philosophy within the fieldof deaf
educatio n.
The bi-bi approach is gaining supportthroughout the country. In
1999, 40 stateschools for the deaf reported that they were oLfering
educational support through the use ofASL ("Federal Reports,"
1999). Although thisdoes not mean that a true bi-bi approach
isbeing used in these schools lor the deaf, it doesimply that they
are seeing the value of ASL andare incorporating the language into
the fabric ofeducational programs for children. At least 10 ofthese
schools across the country have adoptedbi-bi as a primary approach
to educating chil-dren who are deaf and hard of hearing and
pro-vide this approach as an option to families ofenrolled children
(Strong, 1995). Many of thesefamilies are comprised of hearing
parents whohave chosen to learn and use ASL in their homesin
addition to English, broadening the numberof individuals who might
now choose to be in-volved in an educational program that
empha-sizes the bi-bi approach (Strong & Prin/, 1997;Watkins,
Pittman, & Walden, 1998).
Winter 2001
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What will happen when a a child who isdeaf whose parents have
heen providing her orhim with an ASL-rich environment with httle
orno exposure to Enghsh in any form ends up in apublic school
setting where there is no ASL-to-English program in existence? Or
what if thechild ends up in a school district that providesan
English-only approach for children who aredeaf? How will the courts
recognize bi-hi anddeal with a dispute revolving around
educationalprogramming for a child who is deaf when theissue at
hand is not one of modality (visual/man-ual or oral/auditory) hy
which English is pre-sented to a child, as it has been in the past,
butan issue ot instruction in a different language,ASL?
Needless to say, educating children whoare deaf can be an
extremely controversial issue.This controversy, which began soon
after thehirth of formal education of the deaf in theUnited States,
remains as a central focus in thefield today. Not only are
educational methodsscrutinized and dehated, hut the decision of
howbest to communicate is also always at the fore-front. The dehate
on what communication sys-tem is best for a child who is deaf is
not onlyheated among educators but is often an emo-tionally charged
issue hetween parents and edu-cators. The child with a hearing loss
oftenstruggles, not hecause of educational methodsper se, hut
hecause of communication methodsused in the classroom and the
linguistic harriersthat often result. Educational systems and
par-ents frequently are at odds when it comes to adecision ahout
philosophical approaches, such asan aural-oral approach or a total
communicationapproach; a decision about communicationmodes like SEE
I, SEE II, or cued speech; or adecision about language, namely,
whether thechild is educated using only English-based sys-tems or
both ASL and English. When battlesabout these approaches cannot be
resolved byschool districts and parents, they find their wayinto
the courts.
J U D I C I A L H I S T O R Y
Since the Supreme Court decision in Board ofEducation v. Rowley
(1982), the federal courts,generally speaking, have deferred to
school dis-
trict choices of methods and modes of commu-nication with
students who are deaf or hard ofhearing. In part this is because of
the Rowley de-cision, and in part it is because of the way
thatparents bave framed their legal arguments.Nonetheless, in
recent years, one can begin tosee a shift in the arguments
themselves and someawareness that modes ot communication maynot be
the same as educational methodologies.The tollowing hrief review of
selected cotirtcases reveals various approaches to methodologi-cal
disputes affecting children wbo are deaf orhard of hearing.
BoAKD OF EDUCATION V. ROWLEY
The Rowley case (1982) was the first and ar-guably is still the
most important IDEA case de-cided hy the Supreme Court. The
decision inRowley interpreted the meaning of free appropri-ate
public education (FAPE) and estahlished theprinciple that courts
should not favor one educa-tional methodology over another as long
as theschool districts choice of methodology is provid-ing
educational benctit. The case involved a 5-year-old girl who was
deaf. Amy Rowley hadbeen placed in a general public
kindergartenclassroom and educated using an oral method inthat
setting. Her parents, who were Deaf them-selves, requested that she
he provided with a signlanguage interpreter and taught using a
totalcommunication approach. This educationalmethod involves the
use of an English-hasedsigning system combined with speech,
auditoryskills, and visual/tactile cues (Schwartz, 1996).
Although the lower courts ruled in favorof Amy and her parents,
the Supreme Courtruled against them, estahlishing in the processits
well-known two-part test for determiningwhether a child is
receiving FAPE. The first partasks whether the education agency has
compliedwith the procedures of the Act. The second partasks whether
the child's individualized educationprogram (IEP) is reasonahly
calculated to enablea child to receive educational benefit. The
Courtconcluded that Amy had received EAPE, primar-ily because she
had received educational benetitfrom her specialized services and
general class-room placement. Although the Court did notdetermine
how much benefit would be enoughfor each child with a disability,
it indicated that,
Exceptional Children
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lor children being educated in general class-rooms, educational
benefit could be evidencedby such measures as the ability to
maintain pass-ing marks and be promoted from grade to grade.The
C^oiirt cautioned the lower courts againstsecond-guessing
educational agencies with re-spect to particular educational
methodologies.
1,1 CASI-S
Since the Rowley case, a number of other casesinvolving
cbiltlren who are deal have been de-cided in federal court. In most
of these cases, rhecourts have followed tbe Supreme Courts
admo-nition in Rowley. In other words, ihey have de-clined to
interfere with tbe education agencyschoice of educational or
communication meth-ods as long as evidence indicated that tbe
childbad received some benefit from the educalionalprogram, tbe
method of choice had been suc-cessful with children sharing similar
disabilities,and tbere were no procedural violations (Yell
&Drasgow, 1999). Several cases in particular illus-trate bow
the federal courts have dealt witb dis-putes over vvbetber to allow
children who aredeaf to access information tbrough tbeir pre-ferred
modes of communication. Tbese cases areJ.iichman v. Illinois State
Board of Education(1988), Petcrseu v. Hastings Puhlic
Schools(1993/1994), logne v. Shawnce Mission UnifiedSchool District
No. .5/2 (1997/1998), Olbole v.Olalhe District Schools (Jnified
School DistrictNo. 2JJ (1997/1998), and King v. Board of Hdu-cation
ofAllegany Coiinly (1998).
In the Lachman case (1 988)—probahly[he best known of the
post-Rowley cases affect-ing children who are deaf or bard of
hearing—afederal appeals court upbeid Benjamin Lach-mans placement
in a seli-contained total com-munication program. His parents had
arguedthat he needed to be educated tbrougb the use olcued speech
and that, without it, ht could notbe educated in tbe least
restrictive environment(LRE), wbicb they asserted was a general
class-room in his neighborhood school. Ibe courtconcluded tbat tbe
real issue was not I,RF_ hutcommunication methodology, namely,
whetherF.nglisb should be communicated to Benjamin(hrougb cued
speech or signed KngMsb. It ap-plied the principle establisbed in
tbe Rowley de-cision that "once a court determines tbat the
requirements of [lf)EA| have been met, ques-tions of methodology
are for resolution by theState" (quoting Rowley, 1982, 458 U.S. at
208).
As was true in the Lachman case, the dis-putes in both ihe
O'Toole (1998) and Logiw(1997) cases did not concern native
language perse but rather the communication modes bywhich the
English language was being conveyedto students who are deal. The
public schools inbotb cases proposed to educate the plaintiff
chil-dren using total communication, The parents ofbotb cbildren
preferred exclusively aural-oralmodes and asserted tbat their
cbildren werebeing denied FAPE by tbe districts" cboices.
In O'Toole (1997), the federal districtcourt concluded that
"IDEA does not requirethe defendant to utilize one proven
teachingmethod over another" (96.3 E Supp. at 1014)and ruled that
hAPE had been provided becauseMolly O' loole's lEP was calculated
to producesufficient progress. Tbe appeals court {(XToole,1998)
upbeid tbe district court decision, notingtbat an appropriate
education was not guaran-teed to maximize a childs potential. It
statedtbat even Mollys parents did not deny that "ingeneral, the
debate about wbetber sign language
Several cases in particular illustrate howthe federal courts
have dealt with disputesover whether to allow children who aredeaf
to access inforynation through theirpreferred modes of
cowimunicatiori.
ox spoken language is tbe best way to educateihe bearing
impaired involves a dispute aboutmetbodology" [OToole. 1998, 104
E3d ai 709).Similarly, the district court in Logue (1997)
con-cluded tbat Noab Eogue's program was reason-ably calculated to
enable Noah lo receiveeducational benefits and that
educationalmetbodology should be left to tbe schools aslong as tbe
school district's program was provid-ing EAPI, and the melbodology
selected was aproven one. I be district court opinion was af-lirmed
on appeal {Logue, 1998).
Like the Eacbmans, the O'Tooles and theLogues bad alleged that
tbeir cbildren were notreceiving individualized instruction to meet
tbeir
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special needs. In ail three cases, the courts re-jected this
argument and categorized the issue asa dispute over teaching
methodologies in whichthe courts should not intervene.
In contrast to the above cases, tbe plaintiffparents in Petersen
v. Hastings Public Schools(1993) urged the court to distinguish
educa-tional methods from methods used to communi-cate with a child
who is deafer bard ol hearing.They argued that a signing system is
a language,not an educational method such as a phonetic
orsight-word approacb to teaching reading.
The three children involved in the casehad severe hearing
impairments, and each re-quired the services of a sign language
interpreterin tbe school setting. The students used a strictSEE IT
system in their homes. The school, how-ever, had adopted a modified
SEE II system, andinterpreters used this system in the
classroom.Ihe plaintiffs claimed that the modified SEE IIsvstem did
not fulfill the FAPE requirementunder IDEA, denying the children an
individu-alized special education program.
The district court {Petersen, 1993) ascer-tained that the
children were improving academ-ically with the use of the modified
SEE IIsystem, resulting in passing grades and promo-tion from grade
to grade. Therefore, the courtconcluded that each child's
educational programwas reasonably calculated to allow the
childrento receive the benefits intended under IDEA. Al-though the
district court agreed that the parents'attempt to differentiate
educational and commu-nication methods was well talten, it found it
un-necessary to rule on whether a signing system isa language.
Nonetheless, it is noteworthy that awitness for the school
district, the director ofSpecial Ser\ices, stated that she was
aware of no"methods" class that considered language to be ateaching
method (831 E Supp. at 749). The ap-peals court upheld the district
court, adoptingthe Rowley position that courts should "not
sub-stitute [their] own 'notions of sound educationalpolicy for
tbose ofthe school authorities'" (31E3d at 707, quoting Rowley,
1982, 458 U.S. at206).
Like cases before it, the controversy in Pe-tersen (1993) was
over the mode by which chil-dren who are deaf receive information
inEnglish. What made it unique, however, was the
argument that educational methodology can bedistinguished from
communication modes be-cause a signing system is a language. In
actuality,bowevcr, SEE II and all other signed English sys-tems are
not languages per se. On the otherhand, they are also not
educational methods inthe usual sense but rather visual
representationsof the English language, a visual way of access-ing
spoken English. As such, they are primarilymodes of conveying
spoken English rather thaninstructional methods designed for
curricularpurposes such as teaching the grammatical struc-tures of
English. Although the district court inPetersen chose not to
address whether to placecommunication modes in the same category
aseducational methods, the case brought to ligbtpotentially
significant differences between them.
In contrast to the above cases, the 1998case of King v. Board of
Edtication of AlleganyCounty actually raised the issue of tbe
appropri-ateness of instruction in ASL versus an English-based
system, namely, total communication.Mark King was a young child
with multiple dis-abilities including Down syndrome and a hear-ing
loss. The parents' expert witness assertedthat ASL was needed in
order for Mark to de-velop a language base from which to
communi-cate. Tbe public school's expert witness assertedthat ASL
"will not work with an individual withmoderate to severe mental
retardation. 1 here isno empirical research that supports the view
thatASL can be acquired as a communication toolwith this
population" {King, 1998, 999 F. Supp.at 758).
Although it is worth noting that there alsois no empirical
evidence to show that ASL can-not be acquired by individuals with
cognitive de-lays, the King case is described here because thefocus
was on the choice of a particular languageas the language of
instruction. Erom the infor-mation in the court record, Mark was
not a na-tive ASL user. He had been exposed to Englishthrough
signed English and speech but appar-ently had not developed English
as his nativelanguage. The question was whether ASL orEnglish
(presented through signed English andspeech) should become Mark's
first and nativelanguage.
Because Mark had made some positive ed-ucational and nonacademic
gains in the public
Fxieptiaiiiil CJiildrc
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school's total communication program, the courtruled for the
Maryland public school. The courtalso concluded that the local
school districtplacement would be the LRE for Mark. Ihecourt dealt
with the case as a dispute over educa-tional methodology rather
than a dispute overexposure to and instruction in one language
ver-sus another.
Thus far, none of the cases discussed hasconcerned a child for
whom ASL was already thenative language. Interestingly, however,
the issueof ASL for such a child arose in a 1988 hearingthat never
reached the courts [Jessica M.). Thedeaf parents of Jessica M., a
three-year-old girlwho was profoundly deaf, rejected Jessica's
pro-posed IEP because the language of instruction inher proposed
program was English, not ASL.Ihe parents argued that in order for
theirdaughter to continue to progress developmen-tally,
educationally, and cognitively she requiredan environment in which
she could freely com-municate and have fiill access to her own
lan-guage. The hearing officer in the case ruled infavor of the
parents. Although the case was notappealed, it suggests that if a
case were arguedcorrectly, bi-bi, unlike other means of
communi-cation common in the field of deaf education,might not be
viewed by the courts as an educa-tional methodology.
I D E A " 9 7
Within IDEA '97 there arc several new provi-sions that affect
the education of children whoare deaf. Moreover, the 1999 IDEA
regulationslend support to the view that a child's native lan-guage
is the preferred language of instruction forchildren who are deaf.
They also reinforce theview that selection of a specific mode of
commu-nication should not be solely within the discre-tion of
school personnel.
Eor the first lime, native language is de-fined in the statute
(20 U.S.C. 1401(16), Supp.Ill 1997), and the 1999 regulations
extend thestatutory definition by adding that "for an indi-vidual
with deafness, native language means 'themode of communication . .
. . normally used bythe individual (such as sign language)'
(34C:.ER. 300.19, 1999). Native language, whichthe regulations
equate with mode of communi-
cation, is important initially in evaluating a stu-dent's
eligibility for IDEA services because testsand other evaluation
materials must be providedand administered in the child's native
languageunless it is clearly not feasible to do so (34C.ER.
300.352(a)(l), 1999).
Moving beyond the evaluation require-ments, the IEP provisions
of IDEA '97 explicitlyrequire IEP teams to consider the language
andcommunication tieeds of children who are deafor hard of hearing.
Unlike the statutory defini-tion just described, here a clear
differentiation ollanguage (e.g., ASL, English) and mode of
com-munication (e.g., signed English, cued speecb,aural/oral
cominunicatioii) are made. As a partQ{ this consideration, the
teams must examine"opportunities for direct communications
withpeers and professional personnel in tbe child'slanguage and
communication mode" and "op-portunities for direct instruction in
the child'slanguage and coniniiinication mode" (20 U.S.ClI4l4(a)(3)
(B)(iv), Supp. Ill 1997). This termi-nology had appeared earlier in
the Departmentof Education's Policy Guidance on Deaf Stu-dents
Education Ser\ices (1992), which, in turn,bad echoed concerns about
tbe unsatisfactorystatus of education of children who are deaf
thatwas expressed initially in the report ofthe C'om-niission on
Education ofthe Deaf (1988).
The 1999 regulations add tbat if the IEPteam determines, after
consideration of thesefactors, that a child needs a particular
service inorder to receive FAPE, the team must include astatement
to that effect in the child's IEP (34C.KR. 300. 346(c), 1999).
Although allowingthe IEP team to make the judgment about
thecommunication mode to he used with a givenchild, these statutory
and regulatory provisionsseem to express a preference for
instruction andcommunication in the language and communi-cation
mode normally used by the student,whether the language is F.nglish
or ASL, andwhether the communication mode is cuedspeech, SEE, or
something else. One can foreseeincreased litigation if parents and
educators onthe IEP team disagree over the language ormode of
communication that the school districtwants to use to instruct
children who are deaf orhard of hearing.
Winter 2001
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Support for this prediction also comesfrom the expansion in the
regulations of the def-inition of special education. In the
statute, spe-cial education means "specially designedinstruction"
to meet the unique needs of a childwith a disability. The
regulations then definespecially designed instruction as "adapting,
, , .the content, methodology., or delivery of instruc-tion
(emphasis added)." The Department of Ed-ucation's (ED's) analysis
accompanying thisdefinition makes the following point:
hi light of the legislative history and case law, itis clear
that in developing an individualized ed-ucation there are
circutnsrances in which rheparticular teaching methodology that
will heused is an integral part of what is "individual-ized" about
a student's education and, in thosecircumstances wilt need to be
discussed at theIEP meeting and incorporated into the stu-dent's
IEP. . . . In all cases, vvhether methodol-ogy would be addressed
in an IEP would he anIEP team decision. (U.S. Department of
Edu-cation, 1999, p. 12552)
The ED analysis illustrates this point bydescribing cued speech
as "a mode ot instruc-tion." It then differentiates "cued speech,
whichw ôuld he the basis for the goals, objectives, andother
elements of an individual student's IEP,'from "a day-to-day
teaching approach, i.e., a les-son plan which would not be intended
to be in-cluded in a student's IEP" (U.S. Department ofEducation,
1999, p. 12552). In this context,cued speech seems to be perceived
as a hybrid—both a "mode" of communication and a methodof
"instruction."
Collectively, w ĥat these provisions and in-terpretations
indicate is that, in developing anIEP for a child who is deaf or
hard of hearing,more serious consideration must be given to
thechild's native language or mode of communica-tion. Eurthermore,
given the acceptance of theneed for individually tailored
instructionalmethods in some lEPs, a school district's asser-tion
that a given communication mode is aproven educational method is
less likely to dis-pose of the issue than was true in the past.
Onthe one hand, the terminology in the regulationsarguably places
communication methodologyinto the categories of iangtiage and
communica-tion mode. On the other band, it also suggests
that some systems of English-based signingcould be considered
instructional methods tbattnight need to be included in an IEP. In
eithercase, these changes improve the position of par-ents who have
adopted a bi-bi approach for theirchildren. In summary, the recent
statutory andregulatory changes concerning native languageand mode
of communication for children whoare deaf or hard of hearing Invite
closer judicialexamination of the issues surrounding what
con-stitutes an appropriate education for such chil-dren.
To date, the courts have heen reluctant toveer from the
direction set by the Rowley case(1982) regarding decisions
surrounding the issueof educational methodology. It is, perhaps,
un-derstandable that the courts would determinethat a given signing
system should be consideredan educational method, not a mode of
commu-nication whereby a child accesses language. It Isalso
understandable that the Supreme Court di-rected in Rowley that
"courts must be careftd toavoid imposing their view oi preferable
educa-tional methods upon the States" (458 U.S. at207). Erom the
Courts vantage point, it mayhave been prudent to reach this
conclusion. Asthe appellate judges in the Petersen case
(1994)expressed it, '*Were we to conclude that parentscould demand
that their children be taitght witha specific signing system, we
would be creatingthe potential that a school district could be
re-quired to provide more than one method ofsigning for different
students whose parents haddiffering preferences" (31 F.3d at 708}.
Onemust stop to ponder, however, whether the con-cept of providing
each student w îth services thatare individually tailored to
facilitate that stu-dent's progress is, in fact, what the IDEA is
allabout. This certainly seems to be the renewedand invigorated
intention of IDEA '97.
The changes in IDEA '97 may have agood deal of influence over
future case law. Infact, had Rowley been heard today, the
decisionmight have been different in light of the factthat the
primary language used by Amy and herparents was ASE (A. Rowley,
personal communi-cation, March 30, 1999). Based on IDEA '97,one
could also ask whether an educational envi-ronment in which a child
who is deaf cannot ac-cess information using the language and
mode
Exceptional Children
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of communication normally used by the childwill provide access
to an education tbat will pro-duce meaningful progress toward IEP
goals.
I M P L I C A T I O N S F O R P R A C T I C E
riie influence of bi-bi educational programs indeaf education
and the recent tnodiflcaiions inspecial educational law generate
various implica-tions for policymakers, courts, educators,
andchildren who are deaf or hard of hearing. Amongihem are tbe
following:
• The special factors tbat mtist be consideredwhen writing a
child's IEP could result ni alarge number of requests for specific
educa-tional methodologies, including communica-tion methodologies
or modes. Eocal schooldistrict policymakers may need to
designpolicies that can keep this process in check,establishing
clearly how to document mean-ingful progress toward IEP goals using
thedistrict's choice of communication mode andmethodology, and
determining when to ac-cede to a request for direct instruction in
thechild's language or communication mode.
• In cases where specific, individualized com-munication modes
are determined to be nec-essary, procedures and resources will need
tobe available to (a) obtain expert services toprovide needed
communication methods ormodes, or (b) train current staff in
imple-menting the selected methods. For studentswho are ASE users,
districts may he requiredto hire as teachers or teacher aides
individualswho are fluent in ASE. Similarly, for studentswho rely
on a specific English-based systemof communication, districts may
be requiredto hire individuals who are fluent in a partic-ular
English-based system. (lhese needs havebroader implications for
programs that traininterpreters.)
• School personnel must become knowledge-able about the
requirements of IDEA '97 thataffect methodologies and
communicationmodes. Updating school personnel about thelaw is not
such an easy matter, however, andrequires continuing inservice
efforts on ayearly basis.
• The number of court cases involving method-ological disputes
with children who are deaf
or bard of bearing is likely to increase, localschool districts
and parent plaintiffs sbouldbe prepared to make more sophisticated
legalarguments in elaboration of or in response tothe new language
of the statute and regula-tions.
• Both general and special education teacherswill need to
accommodate more language di-versity and individualized
communicationmodes in their classrooms. I hey will alsoneed to
create an environment that allows allchildren to be comfortable in
a more lan-guage-diverse classroom.
" Deaf educators will need to make concertedefforts to
collaborate and share ideas and in-lormation with general education
teachers inorder to implement appropriate modes ofcommunication in
general classrooms.
• Educators will need to work more closelywith parents of
children who are deal in orderlo decide what language,
communicationmode, and communication methods will pro-vide FAPE to
the child. Under TDFA '97, ed-ucators ignore parental concerns at
theirperil.
• Children who are deaf or hard ol bearing maybe able to have
increased opportunities for di-rect instruction in a language or
communica-tion mode tbat tnatches their individtializedspecial
education needs and enables ihem tomake meaningful educational
gains in thegeneral curriculum.
• The emotional stress in home and school en-vironments that
results from different com-munication modes and languages at
homeand scbool may he redticed. (On the otherhand, if schools
ignore the intent of IDEA'97, increased litigation may result in
greaterstress levels than those experienced in thepast for children
who are deaf or hard ofbearing, their parents, and their
schools.)
• C]hildren who are deaf or bard of hearing maybe able to have
greater opportunities to par-ticipate as equals academically and
socially ininclusive environments.
1 he field of deaf education is replete withcontroversy over the
best way to provide a childwbo is deaf or hard of bearing with
expostire toIangtiage and educational opportunities to de-
Winter 2001
-
velop that language naturally and effectively.These debates
often end up in the court systemwhere they are beard and resolved.
In the past,however, the courts have largely viewed access
tolanguage and communication modes in the samecategory as
instructional methods such as vari-ous phonic systems for reading
instruction (e.g.,Orton Gillingham) that are preferred by
givenparents. Most of the decisions in IDEA caseswhere
communication mode has been the issuehave been consistent witb the
directive in Rowleythat courts sbould refrain from ruling on
issuesof educational methodology because such issuesbelong in tbe
hands of edttcation professionals.As a result, scbool districts
offen leave the court-bouse with a decision in tbeir favor, and
childrenwho are deaf or hard of hearing are left to piecetogether
their education through an unfamiliarmode of communication, and in
some cases, inan unfamiliar language.
Ultimately, of course, in otir publicschools all children who
are deaf or hard of hear-ing need to acquire skills in English, at
least inwritten English if not spoken English. There-fore, no
child's education is or should be con-ducted entirely in ASL.
However, IDEA '97seems to express the view tbat one proven
com-munication mode (including language) shottldbe preferred over
another proven commtinica-tion mode if one is better suited to meet
an indi-vidual child's educational needs.
As support increases for the bi-bi philoso-phy, it is timely to
ask whether the courts willcome to view hi-bi not as an
educationalmethodology but as an approach that provideschildren who
are deaf with access to their ownlanguage for at least part of
their instruction. AsIDEA '97 clearly indicates, the child's
languageand communication mode must be consideredin making
educational decisions. If, in fact, thisnew emphasis is recognized
by the courts, allchildren who are deaf or hard of hearing
couldbenefit from the freedom to use the communica-tion mode and
primary language that is gen-uinely effective for him or her. So
the finalquestion remains: Will the courts interpretIDEA '97 to
allow school districts to retain con-trol or to require them to
share control with par-ents (and ultimately tbe courts) wben tbe
issueis cboice of language or communication modes
used in instructional settings with a child who isdeaf or bard
of hearing?
The enactment of IDEA was intended toensure a free appropriate
public education to allchildren with disabilities. Certainly an
appropri-ate education is one that involves access to infor-mation
in a language or communication modethat reduces communication
barriers for thechild who is deaf or bard of hearing. Perhaps itis
time to begin erasing the battle lines that haveheen drawn in the
name of education of childrenwho are deaf and hard of hearing and
to beginopenly evahtating the choices and selecting theoption that
is individually tailored to meet agiven child's needs. Instruction
in a child's nativelanguage and communication mode should beseen as
more of an issue of equal access than anissue of educational
methodology. PerhapsIDEA '97 and the popularity of the bi-bi
ap-proach have come together at tbe right time toensure that
children who are deaf or hard ofhearing will receive an education
equal to theirabilities. If the courts do begin to see the
differ-ence between educational methods and access toinstruction
with the assistance of one's nativelanguage, in time we may truly
begin to see thecourts go bi-hi.
R E F E R E N C E S
Board of Hducation of tbe Hendrick Hudson CentralScbool District
V Rowley, A'^&Xi.S. 176(1982).
Castaneda v. Pickard, 648 E2d 989 (1981).
Commission on Education of the Deaf (1988). Towardequality:
Education of tbe deaf. Superintendent of Doc-uments, U.S.
Government Printing Office, Washing-ton, DC, (ERIC Document
Reproduction Service No.ED 303 932)
Education for All Handicapped Children Act, Puh. L.94-142, 89
Stat. 773 (1975) (current version at 20U.S.C § 1400 et seq. Supp.
Ill 1997).
Federal Reports (1999). American Annals of tbe
Deaf,l44{2),79-\47.
Final Regulations for Part B of the Individuals with
Dis-abilities Education Act, 34 C.F.R. Part 300 (1999).
Gannon, J. R. (1981). Deaf heritage: A narrative historyof deaf
America. Silver Spring, MD: National Associa-tion of the Deaf.*
Gustason, G. (1983). leaching and learning signingexact Englisb.
Eos Alamitos, CA: Modern Sign Press.*
Exceptional Children
-
(jiiscason, C,., Pfei^ing, D., & Zawolkow, I.. (l'J~,i).StE
supplenu-iil 11. Rossitionr. CA: Modern Sign Press.'
hiiiiviflinils wilh Di^iihilities Eclmiitioii Acl. li)I,'. S. C.
§ 1400-1487 (Supp. Ill I'*')"). ( E R I C D . K L I -(iieiit
Reproduction ServicL- No. ED 424 721)
Isnielire, J.. tiwoldc. C , & Honnu-isUT. R. (19921.
Arci'it'iv oj litcrittiirv on the cffeitivc use of iiiitipc sign
liin-giiiigc on the acquisition oj the mtijorily Lnignngt;
byhciiriiig nripiiircd stiifleiits. Toronio, (,;ina
Manttscript reeeived Januarj' 2()()(); itiatiuseripl aceepted
August 2()()().
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