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

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

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

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

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

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

200/

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

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

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

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()()().

' \o order books referenced in this journal, please eall24 hrs/365 days: I-800-B(:)()KS-N()W (266-5766)

or 1-732-"28-1040: or visit iheni oti the Web atII 11 p : / / w w w. B o o k s N o w. c o ni / h X c e p t i o n a IC::hildren.htni. Use Visa, WIC. AMF,X, Discover, or

send cheek or money order + S'i.95 S&ll (S2.5O each

add'l item) to: Clicksmart. i{){) Morris Avetitie. LongBratich, NJ 07"40; 1-732-728-1040 or I'AX-1-732-^28-^7080.

Whiter 2U0I