C O M M E N TA R Y

The Argument for a Constitutional

Right to Communication and
Language
Lawrence Siegel

T he ne ed fo r 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 communica-
tion 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 lan-
guage skills and the educational, social, cognitive, and psychological
consequences, this note contends that a constitutional right to com-
munication 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 vener-
ates the right to speech, the right to communication and language is
of equal or greater value.

I would like to thank the Milken Family Foundation for its exceptional support
and the National Deaf Education Project Board for its ongoing enthusiasm about
the issues in this article. Correspondence should be sent to Lawrence Siegel, Esq.,
National Deaf Education Project, 300 Drake’s Landing, Suite 172, Greenbrae, CA
94904 (e-mail: ndep@ [Link]).
This article originally appeared in the Journal of Deaf Studies and Deaf Education
7(3): 258–66. Copyright 䉷 2002 Oxford University Press. Reprinted here by per-
mission.

255
Sign Language Studies Vol. 6 No. 3 Spring 2006

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256 S ig n L an gu ag e S tu di es

‘‘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, reli-
gion, 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 spiri-
tual in our nature. Is the need for, and right to, communication any
less important? To weigh its value against the others is a futile exer-
cise; to exclude it, indefensible.
For deaf and hard-of-hearing children, the absence of communi-
cation 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 abil-
ity—a statistic so often repeated that these children and their parents
must grow weary of it—and the high rates of under- and unemploy-
ment among deaf and hard-of-hearing adults, reveals the pragmatic

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 Commentary/Constitutional Right to Communication 257

consequences of what Oliver Sacks calls the ‘‘languageless’’ environ-

ment (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 for-
feiture of the vision, talent, and involvement of deaf and hard-of-
hearing children, for the ‘‘peculiar evil’’ of ‘‘silencing’’ expression is
that

it is robbing the human race; posterity as well as the existing genera-

tion; those who dissent from the opinion, still more than those who
hold it. If the opinion is right, they are deprived of the opportunity
of exchanging error for truth; if wrong, they lose, what is almost as
great a benefit, the clearer perception and livelier impression of
truth, produced by its collision with error. (Mill, 1859, chapter 2)

What Is Meant by Freedom of Speech?

Freedom of speech may be the most venerated of our constitutional
rights, but if speech means the ‘‘speaking or expressing of things,’’ is
the right to communicate a less important freedom?
Webster’s 9th New Collegiate Dictionary (1998) defines communica-
tion as a ‘‘process by which information is exchanged between indi-
viduals through a common system of symbols, signs, or behavior’’ (p.
266). ‘‘Speech’’ is defined as the ‘‘communication or expression of
thoughts in spoken words’’ (p. 1133). Speech, the constitutionally
protected right, is subsumed under the broader notion of communi-
cation, which is not so safeguarded.2 The right to free communica-
tion cannot be separated from free speech and indeed should be the
overarching privilege.

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258 S ig n L an gu ag e S tu di es

But whether it has been a question of bilingual education, the

provision of multilingual voting documents, the availability of non-
English newspapers and correspondence for prisoners, or the recog-
nition of a nonstandard or dialectical form of English, the debate has
focused on the differences between spoken languages and not, more
intrinsically, on communication modes.
What does the freedom encompass? Article I of the United States
Constitution provides that
Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to assem-
ble, and to petition the government for a redress of grievances.
Its nobility is reflected in an informed and self-governing citizen,
but it is not merely the right to verbally express, but to receive and
convey knowledge:
The First Amendment is not, in the first instance, concerned with
the ‘‘right’’ of the speaker to this or that. It is concerned with the
authority of the hearers [sic] to meet together, to discuss, and to hear
[sic] discussion by speakers. (Meiklejohn, 1965, p. 119)
The importance of access to speech cannot be gainsaid for ‘‘intel-
lectual freedom is the necessary bulwark of the public safety. . . . [a]
declaration that admits of no exceptions . . . [for] if by suppression,
we attempt to avoid lesser evils, we create greater evils’’ (Meiklejohn,
1965, p. 59). It is this freedom to question—what Alexander Meikle-
john calls the ‘‘demand for education’’—that loses no radiance for its
repetition (p. 86). It is at the core of the Constitution because ‘‘the
primary purpose of the First Amendment is, then, that all the citizens
shall, so far as possible, understand the issues which bear upon our
common life. That is why no idea, no opinion, no doubt, no belief,
no counter belief, no relevant information may be kept from them’’
(Meiklejohn, 1965, p. 75).
The right to ‘‘speech,’’ which is the right to express, is subsumed
within the broader world of communication, a place for both the
conveyance and reception of information. The right to ‘‘speech’’ is
rendered half a value without the right to communicate.

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 Commentary/Constitutional Right to Communication 259

Judicial Interpretation of the Freedom of Speech: The Undervalued

Role of Receiving Communication
Our courts have been no less vigorous than Professor Meiklejohn in
finding that the First Amendment protects communication to its
source and recipients both.
If as the U.S. Supreme Court has said, the free flow of commer-
cial information is ‘‘indispensable’’ to an ‘‘intelligent and well in-
formed’’ populace, which in turn serves the broad public interest,
then providing the ‘‘free flow’’ of social, cultural, political, and cre-
ative information in our educational institutions is a tripled value by
comparison. If the First Amendment protects the right to sell diet
sodas, a child’s right to communication must be worthy of at least
comparable safeguarding.
In Virginia Pharmacy Board v. Virginia Consumer Council, the
United States Supreme Court considered a Virginia law that banned
the advertising of prescription drug prices, raising the question of
whether ‘‘commercial’’ speech is outside the protection of the First
Amendment. The court first reiterated the First Amendment right to
communication to the ‘‘source and . . . its recipients both,’’ noting
the factual dispute involved nothing more than a Virginia pharmacist
‘‘wish[ing] to communicate’’ that she will sell ‘‘X drug at the Y
price.’’ The mere fact that this was a commercial transaction did not
so remove it from the ‘‘exposition of ideas’’ and from the ‘‘truth,
science, morality, and arts’’ in the ‘‘diffusion of liberal sentiments
on the administration of Government,’’ to be beyond Constitutional
protection (Virginia Pharmacy, 1976, pp. 761, 762).
Advertising, ‘‘however tasteless and excessive it sometimes may
seem, is nonetheless dissemination of information as to who is pro-
ducing and selling what product, for what reason and for what price’’
(Virginia Pharmacy), p. 765).
To argue whether a particular expression, political or commercial,
carries a greater or lesser constitutional imprimatur is, as the court
stressed, a ‘‘highly paternalistic’’ one (Virginia Pharmacy, p. 770). Ulti-
mately the court recognized that the people will perceive their own
best interests if only they are well enough informed, and that the best

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260 S ig n L an gu ag e S tu di es

means to that end is to open the channels of communication rather than

close them (Virginia Pharmacy, p. 770, emphasis added).
The lack of a free and open flow of communication and therefore
ideas is no more starkly illuminated than by the failure to provide
deaf and hard-of-hearing children with teachers who can communi-
cate directly and proficiently with them and effective interpreters
when the classroom teacher possesses insufficient or no skills. As the
U.S. Supreme Court said in Virginia Pharmacy Board: ‘‘We are aware
of no general principle that freedom of speech may be abridged when
the speaker’s listeners [sic] could come by his message by some other
means’’ (Virginia Pharmacy, p. 757, fn. 15).
Although the ‘‘First Amendment [is] primarily an instrument to
enlighten public decision-making in a democracy’’ (Virginia Phar-
macy, p. 765, emphasis added), for too long deaf and hard-of-hearing
children have, to their detriment, come by the free flow of informa-
tion via handwritten notes and the half-communication of educators.
Other judicial decisions illuminate the importance of access to
communication. Ernest Mandel, a Belgian journalist and self-
proclaimed ‘‘revolutionary Marxist,’’ was prohibited from coming to
the United States for several speaking engagements, because §212 (a)
(28) (D) of the Immigration and Nationality Act of 1952 denied a
visa to any ‘‘aliens’’ who ‘‘advocate the economic, international and
governmental doctrines of world communism.’’ Mr. Mandel ad-
dressed one of the conferences by transatlantic telephone, after which
he and his six sponsors filed suit claiming the statute was unconstitu-
tional because it restricted the right to hear his views and engage him
in a free and open academic exchange (Kleindienst v. Mandel, 1972).
While Mandel ‘‘had no constitutional right of entry to the coun-
try,’’ the First Amendment clearly protects the right to ‘‘hear, speak,
and debate with Mandel in person’’ because the Constitution ‘‘pro-
tects the right to receive information and ideas’’ as well as suitable
‘‘access to social, political, aesthetic, moral, and other ideas and expe-
riences.’’ In rejecting the government’s claim that plaintiffs could ex-
change ideas with Mandel over the telephone, the court noted the
importance of those ‘‘particular qualities inherent in sustained, face-
to-face debate, discussion and questioning’’ (Kleindienst, pp. 762,

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 Commentary/Constitutional Right to Communication 261

763). The constitutional right to access information is ‘‘no more

vital’’ than in our schools and universities (Kleindienst, p. 763).
If one has the right to ‘‘face-to-face’’ exchange with an individual
deemed, at least by statute, to be dangerous to the well being of the
nation, then what of the right of a deaf or hard-of-hearing child to
have ‘‘face-to-face’’ exchange with a teacher in a classroom and
friends on the playground?
If our Constitution safeguards the right of dissident voices to be
heard in our schools and universities and to receive information of
all kinds, then the contrast between the right to access minority
points of view and the right to access any information/communica-
tion is startling. The student who is denied the right to receive infor-
mation from a revolutionary Marxist is denied much; the student
who cannot access any information, whether at that night’s basketball
game or a debate about Nazis marching in Skokie, is denied every-
thing.
The country’s future ‘‘depends upon leaders trained through wide
exposure to that robust exchange of ideas which discovers truth out
of a multitude of tongues’’ (United States v. Association Press, 1943,
p. 372). Deaf and hard-of-hearing children are a vital part of that
‘‘multitude.’’ Our Constitution must recognize that children, all chil-
dren, have unfettered, direct, and appropriate access to classroom
communication.

Deaf and Hard-of-Hearing Children Who Are Denied

Communication Access Are a Suspect Class for Purposes of 14th
Amendment Protections
The 14th Amendment of the U.S. Constitution provides that no state
‘‘shall make or enforce any law which shall abridge the privileges or
immunities of the citizens of the United States . . . [or] deprive any
person of life, liberty, or property without due process of law, [or]
deny to any person within its jurisdiction the equal protection under the
laws’’ (emphasis added).
The Fourteenth Amendment protects citizens against any law that
treats a particular group of people unequally and any law or policy

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262 S ig n L an gu ag e S tu di es

that affects an individual’s fundamental rights to free speech, assem-

bly, privacy.
If the law or state practice discriminates based on race, color, or
national origin (sometimes called ‘‘immutable’’ characteristics), a
‘‘suspect class’’ is created and a reviewing court will ‘‘strictly scruti-
nize’’ the questionable law or policy. The ‘‘strict scrutiny’’ rule places
a heavy burden on the entity charged with applying/enforcing the
law or practice and represents the highest Constitutional protection.
If the law or practice does not involve race, color, or national
origin, then the court applies a ‘‘rational basis’’ test to determine
whether the law or practice is reasonably related to its purpose. Laws
involving gender, sexual preference, and age generally come under
this lower standard; however, the U.S. Supreme Court has created a
hybrid classification between strict scrutiny and rational basis for gen-
der issues.

The Denial of Equal Access to Communication and Equal

Protection Case Law
Although the U.S. Supreme Court has not yet recognized a ‘‘suspect
class’’ based on national language or communication mode, the sub-
ject of ‘‘linguistic discrimination’’ is not new. The Fourteenth
Amendment extends to the protection of any groups identified by
ethnic, national origin, or linguistic characteristics (United States v.
Uvalde, 1980). To a person who speaks ‘‘only one tongue or has dif-
ficulty using another language than the one spoken in his own home,
language might well he an immutable characteristic like skin color, sex
or place of birth’’ (Garcia v. Gloor, 1980, p. 270, emphasis added).
In Olagues v. Russoniello, bilingual ballots were denied to Chinese-
and Spanish-speaking immigrants. In analyzing the ‘‘traditional indi-
cia of a suspect classification,’’ the court asked whether the class is
‘‘saddled with such disabilities, or subjected to such a history of pur-
poseful unequal treatment, or relegated to such a position of political
powerlessness as to command extraordinary protection from the ma-
joritarian political process’’ (Olagues, 1994, p. 1520).
The court found that ‘‘Congress had explicitly recognized that
pervasive discrimination exists against linguistic minorities and a
‘‘language-based’’ classification might be the same as ‘‘national

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origin’’ classification, particularly when there was a clear distinction

between a ‘‘general classification’’ of English and non-English-speaking
groups and more narrowly-defined groups such as Spanish-speaking
and Chinese-speaking immigrants (Olagues, p. 1520).
If the plaintiffs in Olagues constituted a sufficiently well-defined
sublanguage group to support a ‘‘suspect’’ classification with the at-
tendant constitutional protections, then deaf and hard-of-hearing
children (and deaf and hard-of-hearing adults) constitute an even
more narrowly drawn group, who, unlike non-English speaking im-
migrants, have an entirely different communication mode.
In Sandoval v. Hagan the United States 11th Circuit Court of Ap-
peals ruled that Alabama’s policy of an English-only driver’s test was
unconstitutional and discriminatory based on language/national ori-
gin. The policy prevented 13,000 Alabamians who could not speak
or read English from obtaining a driver’s license. As a result, they
lost economic opportunities, social services, and other ‘‘quality of life
pursuits’’ (Sandoval, 1999, p. 508).
In its appeal the state of Alabama asserted that ‘‘language never
has been held to be a proxy for national origin’’; thus, non-English
speaking Alabamians were not a ‘‘suspect class’’ and not protected
by the ‘‘strict scrutiny’’ standard. The Court of Appeals rejected the
argument.
The Supreme Court has not ruled that language may serve as a
proxy for national origin for equal protection analysis. However, in
the context of jury selection, the court surmised that ‘‘it may be, for
certain ethnic groups and in some communities, that proficiency in a partic-
ular language, like skin color, should be treated as a surrogate for race [em-
phasis added] under an equal protection analysis. . . . [T]he
Constitution protects . . . [the Japanese] as well as those who speak
another tongue. . . . [S]ince language is a close and meaningful proxy
for national origin, restrictions on the use of languages [emphasis
added] may mask discrimination [while] employment termination
because of foreign accent constitute[s] national origin discrimina-
tion’’ (Sandoval, p. 509, fn. 26).
While the decision in Sandoval was reversed by the U.S. Supreme
Court in April 2001, the five-justice majority did not rule on the
language issue, but rather reversed based only on their determination

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264 S ig n L an gu ag e S tu di es

that the applicable law did not provide the plaintiffs with a ‘‘private
right of action.’’ The Supreme Court focused entirely on this thresh-
old issue and did not negate the lower court’s evaluation of the lan-
guage issue and did not change previous decisions, including its own,
in which the door was opened for establishing a communication/
language ‘‘suspect’’ class. If language is like ‘‘skin color’’ for purposes
of equal protection, then what of language in which the individual
has both a different language and communication mode? The Span-
ish (or Russian or Indian or Korean or Newari) ‘‘speaker’’ has a dif-
ferent spoken language, but has the capacity to learn another spoken
‘‘tongue.’’ The deaf or hard-of-hearing child has an immutable char-
acteristic—hearing loss—that removes him or her, partially or fully,
from the universal language community in which all members have
an equal capacity to learn spoken language.
If there is agreement as to the importance of communication,
there is a fundamental Fourteenth Amendment violation. Education
is compulsory, for there is ‘‘no doubt as to the power of a State,
having a high responsibility for education of its citizens, to impose
reasonable regulations for the control and duration of public educa-
tion’’ (Wisconsin v. Yoder, 1972, p. 215). California Education Code
§48200, as one example, requires that all individuals between the ages
of 6 and 18 are ‘‘subject to compulsory full-time education . . . and
shall attend . . . school.’’
Any state that ‘‘imposes’’ a requirement to attend school, but does
not provide that which makes the experience possible, violates the
Fourteenth Amendment of the United States Constitution. Is there
any doubt that if a state mandated school attendance, but did not
provide reading development for a specific group of students or no
electricity for another, or only half the curriculum for a third, such
state action would not only be incomprehensible but illegal? It cer-
tainly was deemed so by the United States Supreme Court in the
1954 Brown v. Board of Education case.
Is effective communication—both development of and access
to—any less fundamental under an equal protection analysis? It is
difficult to imagine therefore that state law mandating school atten-
dance does not violate the Fourteenth Amendment rights of deaf and
hard-of-hearing children.

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Any law, policy, or program that denies deaf and hard-of-hearing

children equal access to communication should meet the ‘‘strict scru-
tiny’’ test and show the most remarkable exigencies to justify the
discrimination they may foster.
Statutory Protection of a Right to Communication
A right can be established by the passage of a law, which then be-
comes an enforceable statute. And while the statute must pass muster
with the Constitution, it is an entirely separate and valid process for
protecting certain individual rights.
The right to communicate in the classroom is protected by federal
law. Section 1703(f ) of Title 20 of the United States Codes provides
that:
No state shall deny equal educational opportunity to an individual
on account of his or her race, color, or national origin, by—(f ) the
failure of an educational agency to take appropriate action to overcome
language barriers that impeded equal participation by its students in its in-
structional programs. (emphasis added)
While I am not aware of any cases brought under §1703 on behalf
of deaf or hard-of-hearing children, its mandate to ‘‘overcome’’
‘‘language barriers’’ that ‘‘impede’’ education is directly applicable.
Moreover, while §1703 (f ) does refer to a denial based on ‘‘race,
color, or national origin’’ (paralleling the suspect class component of
‘‘equal protection’’ law), ‘‘in some communities . . . proficiency in a
particular language, like skin color, should be treated as a surrogate
for race’’ as noted under an equal protection analysis (Hernandez v.
New York, 1991, p. 371).
In Martin Luther King Jr. v. Ann Arbor Sch. Dist., certain African
American children spoke ‘‘black English,’’ a black vernacular or dia-
lect. They sued the school district under §1703 (f ) to force it to ‘‘take
appropriate action to teach’’ the children ‘‘to read in the standard
English of the school, the commercial world, the arts, science and
professions’’ (Martin Luther King,1979, p. 1373).
The court ruled that the school district had to develop a plan to
overcome the language barriers facing these children, including train-
ing school staff to understand, identify, and assist these children to
develop standard English skills. The school district was required to

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make use of the child’s unique communication, for the ‘‘language of

‘black English’ has been shown to be a distinct, definable version of
English [but] different from the general world of communications
[and] is not used by the mainstream of society—black or white’’
(Martin Luther King, p. 1378, emphasis added).
In its ruling the court could not have more clearly recognized the
central importance of communication and language:

A major goal of American education . . . is to train voting people to

communicate. . . . The art of communication among the people of
the country in all aspects of people’s lives is a basic building block in
the development of each individual.
Children need to learn to speak and understand and to read and
write the language used by society to carry on its business, to develop
its science, arts and culture, and to carry on its professions and gov-
ernmental functions.
[A] major goal of a school system is to teach reading, writing,
speaking and understanding standard English. (Martin Luther King,
p. 1372)

The court called the children’s legal action a ‘‘cry for judicial help
in opening the doors to the establishment . . . and [necessary to pre-
vent another generation from becoming functionally illiterate,’’ a
sentiment so close to the concerns of the deaf and hard-of-hearing
communities as to be, if not startling, in some odd way reassuring
that there are others denied the fundamental right of communication.
In passing the Equal Educational Opportunities Act of 1974,
Congress intended to ‘‘set standards for all school districts throughout
the Nation, as the basic requirements for carrying out, in the field of
public education, the Constitutional guarantee that each shall have
equal protection of the laws and the obligation of the school system . . . to
take appropriate action to overcome the language barrier’’ (Martin Luther
King, p. 1381, emphasis added).
Even though the educational system and teachers in this case were
‘‘well intentioned,’’ the children’s language barrier could not be
overcome unless the educators ‘‘[took] into account the home lan-
guage system’’ and ‘‘use[d] that knowledge as a way of helping the
children to learn to read standard English’’ and help them learn ‘‘code
switching skills in connection with reading standard English.’’

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The Martin Luther King case provides a powerful rationale and ana-
logue of significant dimensions for deaf and hard-of-hearing children.
In Lau v. Nichols, 2,856 non-English-speaking Chinese students
sued the San Francisco Unified School District for appropriate lan-
guage services. The court required no proof that the language dis-
crimination was ‘‘purposeful’’ and ordered that where ‘‘inability to
speak and understand the English language excludes national origin
minority group children’’ from an education, ‘‘the district must take
affirmative steps to rectify the language deficiency in order to open
its instructional program to these students’’ (Lau, 1973, p. 568).
The court’s call for ‘‘affirmative steps to rectify’’ matters in order
to ‘‘open’’ educational doors is profoundly relevant for deaf and
hard-of-hearing children, the more so because theirs is not a defi-
ciency but a modality difference.
The court, in sending the case back for further action, noted that
the students could be taught English and/or instructed in Chinese
because
[b]asic English skills are at the very core of what these public schools
teach. Imposition of a requirement that, before a child can effectively
participate in the educational program, he must already have ac-
quired those skills is to make a mockery of public education. We
know that those who do not understand English are certain to find
their classroom experiences wholly incomprehensible and in no way
meaningful. (Lau, p. 566)
It requires little imagination to substitute deaf and hard-of-hear-
ing children for the African American and Chinese-American stu-
dents in Martin Luther King and Lau. There is a clearly identified
group of children in this country who, because they cannot under-
stand English, are being deprived of any meaningful educational ex-
periences. And to the extent that deaf and hard-of-hearing children
are not a ‘‘race’’ or ‘‘nationality,’’ as noted, there are important cases
in which a ‘‘language’’ minority was, for purposes of constitutional
rights, tantamount to a race or nationality. That the plaintiffs in Mar-
tin Luther King and Lau had the full capacity to develop ‘‘spoken’’
English illuminates to a greater degree the ‘‘deprivation’’ experienced
by deaf and hard-of-hearing children and the importance of a legal
and educational remedy.4

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That one might argue that the children in Lau and Martin Luther
King are entitled, under §1703 (f ), to protection of their communica-
tion/language needs because they are a ‘‘race’’ and deaf and hard-of-
hearing children are not is a distinction without merit, educationally
insupportable, and morally suspect.

The Practical Implications of Creating a Constitutional Right to

Communication
If the right to communication and language for deaf and hard-of-
hearing children were legally recognized—either under the Consti-
tution or an existing or new statute—what specifically would the
right encompass? Clearly the law and judicial decisions referred to
suggest the need for communication access under the First Amend-
ment cases and communication development under the Fourteenth
Amendment and §1703 (f ) cases.
Determining what constitutes a communicationally-appropriate
education requires much discussion and a full understanding of what
deaf and hard-of-hearing children need. For purposes of the broader
argument proposed here, the right should include the right to commu-
nication/language access, including educational staff proficient, at an
adult level, in the child’s communication mode and specific lan-
guage, an educational program in which each child has available an
appropriate community of age and communication/language peers,
and access to recreational, social, extracurricular, vocational, and
other educational programs available to all children. Moreover, it
should include the right to communication development, including age-
appropriate communication mode and language skills. As discussed
in the Martin Luther King case, our schools (and other institutions)
must have programs in place to specifically bridge the gap between a
deaf and hard-of-hearing child’s age and communication skills. The
students in Lau were, more or less, proficient in Chinese, but lacked
age-appropriate English skills, if they had any at all. The students in
King were capable in their home language, but not so in standard
English. The development of communication skills for Chinese-
American, African American, and deaf and hard-of-hearing children
is the foundation upon which literacy is built.

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 Commentary/Constitutional Right to Communication 269

And if such rights should exist, what of the cost? Cost and admin-
istrative issues are highly relevant, but legislators and policy makers
will determine whether the right is important enough to warrant
fiscal support.
Moreover, the question stops the analysis before it begins. We
raise here a constitutional question, not a political or fiscal one, for as
the effectively political John Kennedy said in discussing the justifica-
tion for civil rights legislation, we face a dilemma as ‘‘old as the Scrip-
tures and as clear as the American Constitution’’ (Kenneth, 1963).

Conclusions
Education is compulsory in this nation and yet for deaf and hard-
of-hearing children that which is central to human and educational
growth—communication and language—is a discretionary matter.
These children are required to go to school to enhance our democ-
racy, strengthen our way of life, and promote individual and eco-
nomic viability, but have no claim on the very thing they need to
take their places as fully involved citizens.
Even as our laws have required that non-English-speaking chil-
dren develop reading and writing skills in English, even as our courts
have recognized the importance of different languages and even dia-
lects or jargons, even as our Constitution has accepted that one’s
language is so important as to be tantamount to cultural or national
origin, there is no recognition of the truly unique language and com-
munication needs of deaf and hard-of-hearing children.
The United States has always been ‘‘home to speakers of many
languages’’ and attempts, for example, to prohibit teaching in a lan-
guage other than English have been rejected out of hand as unconsti-
tutional (‘‘Official English: Federal limits on efforts to curtail
bilingual services in the states,’’ 1987, p. 1348).
Not surprisingly, legal scholars have concluded that since there is
a ‘‘close connection between language and religious/cultural free-
doms’’ it is well past time to ‘‘recognize a human right to language
in this country’’ (‘‘Official English,’’ p. 1348, fn. 16).
Anna-Miria Muhlke, writing in the Winter 2000 issue of the Vir-
ginia Journal of International Law, argued that the International Bill of

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270 S ig n L an gu ag e S tu di es

Rights creates both a clear entitlement to language for deaf and hard-
of-hearing children and a concomitant governmental obligation to
‘‘ensure the fullest possible linguistic development’’ for them (pp.
729–730).
A Constitutional right is a rare and valuable thing and so it should
be. We speak so often of needs and rights that the two become inter-
changeable, the latter devalued by the former. But some rights are so
fundamentally clear, logical, fair, and honorable that it is hard to con-
ceive of an argument to the contrary. The right to communication,
particularly for deaf and hard-of-hearing children is such a right, for
the ‘‘purpose of language is communication in much the same sense
that the purpose of the heart is to pump blood’’ (Chomsky, 1975, p.
55).
‘‘There is no pleasure to me without communication. There is not
so much as a sprightly thought comes into my mind that it does not
grieve me to have produced alone, and that I have no one to tell it
to.’’ Montaigne

Notes
1. What of the right to ‘‘language’’ rather than communication? Lan-
guage is defined, formally and pragmatically, as those words and combina-
tion of words understood by a considerable community. Communication is
the mode by which language is conveyed; language is the particular agreed-
to convention in which specific words have specific meanings and convey
understanding. English or Russian or Chinese or Spanish are languages; sign
language and spoken language are communication modes.
2. Under IDEA, the IEP team must ‘‘consider’’ the communication
needs of a deaf or hard-of-hearing child. By comparison, a child with dis-
abilities must be ‘‘provided’’ a free appropriate public education. The legal
difference between a ‘‘consideration’’ and a mandate is far-reaching, the
former discretionary, the latter required. With limited budgets, a declining
teacher pool, and other pressures on public education, communication is
rendered an expendable educational option. 20 U.S.C. §1401 (8), §1413 (d)
(3)(B).
3. The court, not unlike the U.S. Supreme Court in Brown v. Board of
Education, 347 U.S. 483 (1954), based its decision more on sociology than
legal precedent, including language development research: ‘‘Black English
has been used at some time by 80% of the black people of this country. . . .
[I]t still flourishes in areas where there are concentrations of black people.
. . . [E]fforts to instruct the children in standard English by teachers who

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 Commentary/Constitutional Right to Communication 271

failed to appreciate that the children speak a dialect which is acceptable in

the home and peer community can result in the children becoming ashamed
of their language, and thus impede the learning process’’ (Martin Luther
King, pp. 1375–1377).
4. The applicability of §1703 (f ) is no more apparent than in the find-
ings of the National Association of State Directors of Special Education
[NASDSE]:
Most hearing children enter school with the ability to process
and integrate verbal information. They have a basic command of
the language and an extensive vocabulary. School systems establish
programs and services and develop curricula based on the assumption
that all children enter school with basic language skills. The schools
then proceed to teach children to read, write, and develop computa-
tional skills. . . . [C]hildren with hearing loss seldom bring to their
educational experience the same extensive language background or
the same breadth of language skills as do hearing children. Children
who are deaf who are not exposed to early language input are likely
to have severe deficits that will have an impact on future learning
and will require extensive intervention to facilitate language devel-
opment. (pp. 2, 9)
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