On Cue Volume 24 Issue 1 Spring 2010
http://www.cuedspeech.org/PDF/OnCue2010forward/OnCue_Spring2010.pdf
Over the years, legal battles in the courts have led to mixed outcomes for students who use Cued Speech, exemplified by some of the major lawsuits brought by cueing families against school districts and boards of education.
As discussed in the Cued Speech and Educational Laws: Part 1 article in this issue, schools are required to provide “free appropriate public education” (FAPE). The question has long been what exactly falls within that category and whether providing Cued Speech services is required. The legal cases highlighted below illustrate that this battle still has a long way to go.
Editor’s note: The term “hearingimpaired” is used throughout this law review. When discussing court cases, we must maintain consistency with the terms used in each case and not change terms to those more widely used in the general population. Also, none of these cases clarified the “hearing-impaired” students as deaf or hard of hearing.
One of the earlier cases, Lachman v. Illinois State Board of Education, demonstrates the struggle in getting Cued Speech recognized as an accommodation. In this 1988 case, the debate between the parents and the school district focused on whether Benjamin, a young child at the time, should receive education via Cued Speech transliteration or Total Communication. In other words, the school district wanted Lachman to learn sign language and have that be a goal of his education. 52 F.2d 290, 297 C.A.7 Ill.1988).
Lachman’s parents argued that the Individualized Education Program (IEP) proposed by the school district would not provide Benjamin an education in the least restrictive environment (LRE). Id.
The United States Court of Appeals for the Seventh District ruled that there was nothing in the record to indicate that the school district’s proposed IEP, relying primarily upon sign language as a means of communication, would prevent the student from being educated in the LRE. Thus, the Court held that the IEP provided the student with FAPE, “despite the parents’ reference for cued speech technique.” Id. Consequently, the Court further held that the parents did not have a right under “the Education for All Handicapped Children Act to compel school district to provide specific program or to employ specific methodology in providing for education of their handicapped child.” Id.
In 1988, while the Lachmans were fighting their case, another case in Texas was occurring. Poore v. Arlington Independent School District resulted in a more positive outcome. In this case, the parents sued the school on behalf of their child, Michael. According to the parents, “The AISD was not offering to provide Michael with the full benefits of Cued Speech.”
Michael was in elementary school when the family sued the Arlington Independent School District and requested that AISD provide Michael with a CST in a mainstreamed classroom. “[AISD] did not want Cued Speech in their schools other than for small use in speech therapy,” says Teri Poore, Michael’s mother. “Our request was denied based on their belief that Michael would benefit just as much by being in a deaf education classroom with other deaf children (different ages and educational levels) whose teacher used sign language.”
The AISD countered that they were not legally required to provide Michael “with the best education possible, but only one which has been reasonably calculated to provide him with educational benefits.” AISD further argued that it was only the parents’ “personal opinion” weighed against the expertise of the school officials responsible for the child’s education.” However, seven witnesses with formidable expertise supported the parents’ position with their respective testimony.
As Teri explains, “Our goal was for them to provide Cued Speech, not just in a speech therapy setting, but in the classroom by a CST or the teacher. And of course our hope was that it would then be in place and become available for all deaf children.”
The Hearing Officer assigned to this case issued the finding that “An individual education plan designed to meet Michael’s unique needs must include a cued speech interpreter.” From there, he ordered: “A fluent cued Speech interpreter to assist Michael full time in his mainstreamed education class.”
Editor’s note: As this case was presided over by a Hearing Officer, not a judge, and not appealed to a higher court, citations and other legal documentation were extremely difficult to obtain. Case information was provided by Teri Poore.
Barnett by Barnett v. Fairfax County School Board, a 1991 case in Fairfax County, Virginia, is the result of parents of a hearing-impaired student bringing legal action against their local school board. The parents challenged the decision of a state hearing officer who determined that school system was not required to duplicate Cued Speech services at the student’s local high school. (Cued Speech services were already provided at another high school in the county.) 927 F.2d 146, 147-156 (C.A.4 Va. 1991).
The United States Court of Appeals for the Fourth Circuit put forth several findings. First, they held that the school board did not fail to consider the student’s individual needs in placing him at the centralized high school where
the Cued Speech program was offered, as the Education of the Handicapped Act (EHA) did not require the school board to duplicate the highly specialized education program at student’s base school, which was a few miles closer to the student’s home. Id. Second, they explained that affording the student an “appropriate education” under terms of the EHA did not require the school board to place the student as close as possible to his home. Finally, they found that the school board did not violate the Rehabilitation Act by centralizing Cued Speech services for “high school level handicapped students.” Id. Overall, the school board does not have an obligation to place the child in his base school. Geographical proximity is a factor often taken into account but there is no absolute obligation placed upon the school board. Id.
Ultimately, the Barnett Court found that the school board did not discriminate against the student by not providing a “highly specialized Cued Speech education program at the student’s neighborhood, which it offered at another high school approximately five miles farther from the student’s home, as the student had the opportunity to participate fully in [the] program offered by board at the more distant school.” Id.
The Barnett Court also found that “Although the school board should not make placement decisions under the EHA on basis of financial considerations alone, an ‘appropriate public education’ does not mean the best possible education that a school could provide if given access to unlimited funds; Congress intended states to balance competing interests of economic necessity on the one hand, and the special needs of the handicapped child, on the other when making education placement decisions.” Therefore, it is viewed as a balancing approach when it comes to this type of legal action.
Goodall by Goodall v. Stafford County School Board, a Virginia case that went through the court system in 1996, also illustrates the difficulties that Cued Speech parents faced. The child’s parents brought a lawsuit against the county school board to compel the county to provide the student with a Cued Speech transliterator in the student’s private sectarian school, alleging that the failure to provide said transliterator violated both the First Amendment and the Religious Freedom Restoration Act (RFRA). 60 F.3d 168, 170 (C.A.4 Va. 1995).
The United States Courts of Appeals for the Fourth District presented two main findings. First, the Court held that the “economic burden borne by parents, in providing the hearing-impaired child with required cued speech services, due to the fact that the parents sent the child to a private sectarian school and thus did not receive such services funded by the county, did not substantially impinge on their free exercise rights.” Id. at 171-172.
Second, the Court ruled that the “county did not need to show a compelling interest in not providing Cued Speech services to the hearing impaired child enrolled in a private sectarian school, despite the parents’ claim that provision of such services was an ‘important benefit’ for which the county should pay, pursuant to the RFRA, absent evidence that the parents were compelled to engage in conduct proscribed by their religious beliefs or were forced to abstain from any action which their religion mandated that they take.” Id.The burden of proof was on the plaintiffs to demonstrate that their exercise of religion was substantially burdened by the county’s policy; otherwise, the County did not have to show proof of any interest. Id.
According to the Court, the Goodalls did not meet the burden of proof. Therefore, essentially, it was the opinion of the Court that the Free Exercise Clause did not require that the county provide Cued Speech services to the hearing-impaired child who attended a private sectarian school.
The Louisiana case of White ex rel. White v. Ascension Parish School Board in 2003 was similarly frustrating. The parents of a hearing-impaired student filed a lawsuit against the school board, asserting violations of the Individuals with Disabilities Education Act (IDEA), the Americans with Disabilities Act (ADA), the Rehabilitation Act, and various state laws. Essentially, the parents wanted the child and his Cued Speech transliterator to be transferred to their nearby neighborhood school, whereas the school district made the decision to keep the child and the Cued Speech transliterator at the centralized location. 343 F.3d 373, 376 (C.A.5 La. 2003).
The school district’s decision was upheld by the courts. The United States Courts of Appeals for the Fifth Circuit held that the school district had met IDEA procedural requirements for parental input; the district did not otherwise violate IDEA in assigning student to a centralized school, notwithstanding the parents’ transfer request and the feasibility of moving the student’s Cued Speech transliterator to the neighborhood school; and that the school district also did not violate Louisiana state law. Id.
Essentially, IDEA creates a presumption in favor of the school system’s educational plan, placing the burden of proof on the challenging party. Id. at 377. Generally, the presumption also favors the school system and makes it far more difficult for parents of children who use Cued Speech to make their case. Accordingly, the Court found that the parents had not met such a burden of proof.
It is also important to understand the test that the White Court formulated. This two-fold test under IDEA has been applied whenever the appropriateness of an IEP is challenged. The two factors are: 1) whether the IEP in question is “reasonably calculated” to enable the child to receive educational benefits; and (2) whether the school district has complied with the procedures set worth in IDEA; if these requirements are met, the Court will find that the State has complied with obligations imposed by Congress and thus courts can require no more. Id. at 379.
Another adverse outcome from this case was that the Court further mentioned in dicta that “Under IDEA, a FAPE need not maximize the child’s potential; it must guarantee a basic floor of opportunity.” Id. at 378. That aside, the main finding was that the parental right to provide input into the location of services under IDEA does not grant parents veto power over IEP team site selection decisions and that, under IDEA, it was not “possible” for the hearing-impaired child to be placed in a neighborhood school since the Cued Speech transliterator services he required were provided only at the centralized location. Id. at 380. The Court listed many sound reasons that the school board had presented for its centralization policy. Id. at 382. In other words, according to the White Court, the school board, rather than the parents, makes the ultimate decision where to provide the Cued Speech transliterator; the parents do not get the last say.
The 2002 case of Board of Education of Paxton-Buckley-Loda Unit School District No. 10 v. Jeff expounds the prevailing view heretofore explained. In this IDEA lawsuit, the parents alleged that the California school had unilaterally changed the student’s mode of communication from a combination of Cued Speech and oralism to American Sign Language. 611 F.Supp.2d 1097, 1097 (E.D.Cal.2009).
However, the Court pointed out that it was an occasional use of sign language and also that the mother had previously agreed to try sign language because she was willing to try anything that might work, as she acknowledged in court. Id. at 1107. Consequently, the Court found that the “student did not establish that this occasional use of sign language constituted a change in his mode of communication without his parents’ consent. The student’s primary mode of communication remained oral and Cued Speech” through the use of a Cued Speech transliterator and the use of oralism in the mainstream classroom. Id. at 1121. Thus, the Court ultimately held that the plaintiff’s procedural due process rights were not violated by a unilateral change in mode of communication and therefore the district did not deny the student a FAPE. Id.
This case also repeated the idea that “while a student’s individualized education plan (IEP) under IDEA must be reasonably calculated to provide him with educational benefit, school districts are required to provide only a basic floor of opportunity; thus, an appropriate public education does not mean the absolutely best or potential-maximizing education for the student. Id. at 1107.
In sum, the law as it stands today is not very encouraging; however, that is simply due to the relatively nascent position of Cued Speech as a widely used accommodation. The law has yet to catch up to the times. With more
courtroom battles, the law can and will evolve further to more accurately reflect the variety of accommodations available to hearing-impaired students.
Editor’s note: With the re-authorization of the Individuals with Disabilities Education Act in 2004, which includes cued language transliteration as a recognized service, we are hopeful that future court cases will have more positive outcomes for students who use Cued Speech as their primary mode of communication.
http://www.cuedspeech.org/PDF/OnCue2010forward/OnCue_Spring2010.pdf
