Possible beings: Deaf children and linguistic justice

ABSTRACT

This paper discusses the case of Carter Churchill v. Newfoundland and Labrador English School District and analyses legal documents as they illuminate current understanding of linguistic justice and relational ethics. This case is a test case for the standard of education provided to deaf learners in Canada who benefit from sign language. Linguistic justice considers language issues as they are relevant to social justice. The paper first discusses the linguistic justice framework in relation to deaf children’s right to sign language, then analyses legal documents from the case for what they reveal about patterns of inaction on the part of senior educational administrators and deficiency views of American Sign Language (ASL) that are pervasive in Canadian early intervention and education systems for deaf children. While the 2023 Human Rights Commission of Newfoundland and Labrador’s Board of Inquiry decision found the school district failed to provide reasonable accommodation and discriminated against Carter during the first four years of his education, this decision and related events stop short of ordering linguistic justice for deaf children in the form of sign language policy and planning that fulfils a society’s ethical responsibilities to deaf people.

KEYWORDS:

• Human rights
• linguistic justice
• deaf children
• sign language
• inclusive education

Introduction

Carter Churchill v. Newfoundland and Labrador English School District is a test case for the standard of education provided to deaf learners in Canada who benefit from sign language (Snoddon, 2021). This paper analyses legal documents related to this case as they illuminate current understanding of linguistic justice and relational ethics. Carter is a deaf child with cerebral palsy whose parents filed a human rights complaint alleging that he experienced discrimination on the basis of disability in the delivery of educational services. This was due to the failure of educational authorities to accommodate Carter’s sign language needs and access to an education equal in quality to that of nondeaf children in an environment free from social isolation. On March 1, 2023 the Human Rights Commission of Newfoundland and Labrador’s Board of Inquiry decision was released that found the school district failed to provide reasonable accommodation and discriminated against Carter during the first four years of his education. However, this decision and related events stop short of ordering linguistic justice for deaf children in the form of sign language policy and planning that fulfils a society’s ethical responsibilities to deaf people (Brando & Morales-Gálvez, 2021).

Previous work outlined a social relational model of deaf childhood that positions deaf children within deaf cultural discourses and employs a capabilities approach for evaluating linguistic justice and relational principles (Snoddon & Underwood, 2014, 2017). This model and approach challenge normative pillars of linguistic justice and of language that operate under highly normativising notions of language and language users (De Schutter & Robichaud, 2015; Van Parijis, 2015), and the deficit framing of sign languages that is pervasive in early intervention and education for deaf children and that emerges in the Newfoundland and Labrador Board of Inquiry decision.

The next section of this paper outlines the normative conception and framing of linguistic justice, and the ways in which this concept has been expanded and challenged with reference to deaf children and the vitality of sign languages. Following this, I analyse legal documents that describe what occurred in Carter’s case and feature the stance of various agents regarding the possibility of providing an education in American Sign Language (ASL), the native language of most anglophone deaf communities in Canada. This analysis incorporates a capability approach and relational ethics that views Carter and other deaf children as possible beings who are recognisable according to the norms of signing deaf communities and other communities that these children and their families are part of (Butler, 2004; Murray et al., 2020). As I argue, justice for Carter is tied to the linguistic continuity and survival of deaf communities and the “continuous formation of human relations and social interactions” that these communities entail (Song, 2023, p. 75).

Linguistic justice and deaf children

Linguistic justice is a subfield of political theory and language politics that considers language issues as they are relevant to social justice (Morales-Gálvez, 2022; Van Parijis, 2015). Much of the linguistic justice literature by scholars of political theory and language politics revolves around the political management of different language groups within a given territory (De Schutter & Robichauld, 2015; Morales-Gálvez, 2022; Van Parijis, 2015). Political management of language groups involves consideration of state support for cultural minorities, such as providing public services in different official languages (De Schutter & Robichaud, 2015; Morales-Gálvez, 2022). It is partly from this perspective that deaf community advocacy for the legal recognition of sign languages has taken place. However, deaf community advocacy for sign language rights also takes place from within a disability rights framework (De Meulder et al., 2019), which has seldom been considered in the normative analytic linguistic justice literature, which tends to overlook non-normative communicators and their language practices.

As De Schutter and Robichaud (2015) note, legal recognition of languages rests on “an underlying account of the goal of language, of what language is thought to be good for” (p. 90). This goal can be seen in terms of identity-related interests in languages as a means for self-realisation and a source of dignity. Alternately, languages can be viewed as instruments of communication (De Schutter & Robichaud, 2015). In the case of deaf communities, the latter, instrumentalist view of language as a tool for communication may involve investing in sign language interpreters to reduce communication barriers (in line with the stated aims of much sign language recognition legislation—see Snoddon & Willkinson, 2023). This investment in turn raises its own difficulties, since providing sign language interpreters may be inaccurately viewed as sufficient for deaf citizens’ access and inclusion (De Meulder & Haualand, 2021; Peled, 2021; Snoddon & Willkinson, 2023). Conversely, an instrumentalist focus can also bolster efforts to render deaf children hearing and speaking beings via cochlear implants and auditory-verbal therapy (AVT), rather than promoting sign languages (Friedner, 2022). This is because an instrumentalist view means efficiency is valorised, along the pragmatic aims of democracy and equality of opportunity (De Schutter & Robichaud, 2015; Morales-Gálvez, 2022). In these terms, a normative monolingualism in the dominant spoken language can be made a chief policy goal, even if this ignores the lived experiences of deaf people and other language minorities (Brando & Morales-Gálvez, 2021; Peled, 2021).

Van Parijs’ (2015) political philosophy of linguistic justice is a normative political philosophy. This means that it deals with societies as they should be rather than how they are (Morales-Gálvez, 2022). Van Parijs’ philosophy of linguistic justice accepts only identity- and dignity-related interests as a basis for linguistic diversity and language rights. However, for deaf children both identity-related and instrumentalist conceptions of sign language rights are intertwined in distinct ways. The case of Carter Churchill shows how normative conceptions of linguistic justice, such as tolerance-oriented rights to merely use one’s own language, are inadequate (Morales-Gálvez, 2022). Tolerance-oriented language rights consider linguistic justice only within the private sphere. In contrast, promotion-oriented language rights involve linguistic justice in the public sphere (Morales-Gálvez, 2022). Such a negative right that aims merely to eliminate government interference with it (MacFarlane, 2014) assumes that a given language is available and able to be used by others in a non-public sphere; in short, that the language is flourishing somewhere in a given sociocultural and geographical terrain. This situation is often not true of deaf children like Carter, who are born to hearing, previously nonsigning parents and family members in a province where the only deaf school providing some form of education in sign language and contact with signing peers and adults has closed. Thus, a tolerance-oriented right to use sign language is insufficient for linguistic justice and sign language revitalisation for deaf communities.

In a Canadian context, deaf communities have been what Morales-Gálvez (2022, p. 393) terms “a long-settled community of speakers” and thus a national group with an interest in maintaining their languages. In these terms, deaf communities may claim positive rights to public services in sign language, as has been granted to a limited extent by federal sign language recognition in the Accessible Canada Act (Snoddon & Willkinson, 2023). However, provincial deaf school closures—motivated in part by government austerity measures and the advent of so-called inclusive education policies—have led to the rapid attrition of deaf communities and sign languages (see Goico, 2019; Snoddon, 2020; Weber, 2020). In addition, Canadian public health and education policies promote cochlear implants and AVT as the standard of care for deaf children that proscribes sign language learning and use (Snoddon & Paul, 2020; see also Friedner, 2022 for a discussion of AVT policies in India). Thus, an already scarce language resource is made even less available by public policy. For deaf children and their families, access to sign language is often the exception and not the norm. This illustrates how normative conceptions of linguistic justice and much sign language recognition legislation have not only failed to support efforts to revitalise sign languages but also failed to address the cultural and linguistic genocide that have led to these languages’ endangerment (Skutnabb-Kangas, 2018).

There is a need for relational linguistic continuity, which is a condition where individuals may continuously form human relations and interact with others using a shared language (Song, 2023). With relational linguistic continuity, deaf children and their families can access human relations and interactions in sign language with a robust and enduring community of sign language users (Song, 2023). Deaf communities’ right to linguistic survival is thus inseparable from linguistic justice for individual deaf children as measured by a capabilities approach (Song, 2023; Brando & Morales-Gálvez, 2021).

In previous work, support for signing deaf communities was directly linked to supporting the capabilities of individual deaf children (Snoddon & Underwood, 2014). Capabilities are freedoms that should be accessible to every individual for achieving their valued goals in life; they are “beings and doings” of value to the individual (Brando & Morales-Gálvez, 2021, p. 4; Sen, 1992). The social relational model of deaf childhood, which attempts to account for the complexities and diversities in the lives of individual deaf children, supports children’s freedom to achieve their full potential as contributing members of deaf and hearing communities (Snoddon & Underwood, 2014). This model also acknowledges the diversity of deaf learner identities in terms of language, race and ethnicity (see Murray et al., 2020). Brando and Morales-Gálvez (2023) discuss how language is embedded in and enables the central capabilities outlined by Nussbaum (2019) of sense, imagination and thought; practical reason; affiliation; and control over one’s environment. Capabilities cannot be enjoyed without the language that the individual values. This point may warrant greater attention to sign language vitality and revitalisation measures in educational contexts than is given in the Human Rights Commission’s Board of Inquiry decision in the case of Carter Churchill.

Materials and methods

The data analysed in this paper include the 2023 Board of Inquiry decision and related documents in the case of Carter Churchill v. Newfoundland and Labrador English School District et. al.. These documents include the transcripts from the nine-day Human Rights Commission of Newfoundland and Labrador hearing that took place from 29 August until 9 September 2022 in St. John’s, and other documents that were filed in evidence for the hearing. All of the data were available in the public domain, and the hearing was open to the public and livestreamed. The parents of Carter Churchill paid for the transcripts to be prepared and subsequently published them on their website (https://www.carterchurchill.ca). As an expert witness for the parents, I attended the first week of the hearing and wrote a report on inclusive education of deaf children in addition to a response to the report of the expert witness of the Newfoundland and Labrador English School District. The textual analysis focuses on the view of ASL, and the possibility of providing it in the education of deaf children, that was presented during the hearing by witnesses for the school district and in the written decision by the adjudicator. This possibility, or impossibility, is tied in part to a pattern of professional nonresponse that emerged as a theme during the hearing and afterwards.

Results

Background

Carter Churchill is profoundly deaf and has cerebral palsy (Carter Churchill v. Newfoundland and Labrador English School District et. al., 2023, par. 65, 68). At seven months of age, he received bilateral cochlear implants (par. 67). In May 2017, toward the end of Carter’s kindergarten year when he was six years old, Carter’s parents began a human rights complaint against the Newfoundland and Labrador English School District and the Department of Education and Early Childhood Development. The complaint began by his parents alleged that the school district, which is responsible for the administration of all English-language education in the province from kindergarten to grade 12, failed to implement appropriate accommodations for Carter to access public education services (par. 1, 4). In November 2019, following a mediation process facilitated by the Human Rights Commission, the district filed its response to the complaint and denied it had discriminated against Carter according to the Human Rights Act, which prohibits discrimination on the basis of disability in the delivery of public services (par. 3-4, 21). In January 2020, the Churchills filed a rebuttal, and in August 2021, the complaint was referred to the Board of Inquiry for adjudication (par. 5-6). In February 2022, the Department of Education and Early Childhood Development was dismissed as a respondent from the complaint (par. 2). This means that the provincial government was dismissed as a respondent, and the complaint was limited to the school district. Following this, the hearing took place.

Komesaroff (2007) notes that lodging formal complaints of discrimination against educational authorities is a significant undertaking for parents of deaf children. Like the Australian parents in Komesaroff’s (2007) study, Carter’s parents incurred human and monetary costs and endured years of waiting for a legal outcome; Carter was in grade five and twelve years old when the decision was released, five years after his parents filed their initial complaint. At the outset of the hearing, Carter’s parents presented evidence of legal expenses amounting to CA$98,891 (par. 382). Complaints are typically filed following repeated unmet requests to teachers, administrators, and educational authorities to change approaches to instruction (Komesaroff, 2007), or to offer additional accommodations. During the hearing, a longstanding pattern of inaction and refusal to recognise deaf students’ sign language learning needs was made evident on the part of senior educational administrators.

Patterns of inaction and refusal

Carter was first identified with a language delay in November 2012, when he was one year old. At this time, he began to receive early intervention services from an itinerant teacher of the deaf (TOD) employed by the school district (Carter Churchill v. Newfoundland and Labrador English School District et. al., 2023, par. 69, 71). An itinerant teacher is a travelling teacher who provides services to students who attend different neighbourhood schools. The teacher employed a total communication approach with speech and signing (par. 71-71). However, gaps in service provision soon emerged. During the fifth day of the Board of Inquiry hearing, counsel for the complainants questioned the former Senior Education Officer and Director of Student Services—Programs (Avalon) regarding two letters the Director had respectively received in March 2014 from an audiologist on Carter’s cochlear implant team and an auditory-verbal therapist assigned to work with Carter (Rees, 2022, September 2). The letters, sent when Carter was three years old and two years prior to Carter’s entry to kindergarten, requested support to facilitate his language development through sign language and indicated this support was then unavailable. This was due to the previous year’s transfer of early intervention services to deaf children with cochlear implants from itinerant TODs employed with the school district to auditory-verbal therapists under the children’s hospital’s cochlear implant programme (par. 78). This meant that all early intervention services to deaf children were transferred from the provincial Department of Education to the Department of Health and were no longer provided by TODs. This transfer was followed by several months when Carter received no early intervention services (par. 79). During the hearing, the Director indicated in her responses to counsel that she had been unaware of the service transfer and its subsequent impact in terms of providing no other early intervention services beside AVT to deaf children (Woodland, 2022, September 2). She could also not recall taking any action in response to these letters that indicated Carter was unable to use speech to communicate.

This lack of awareness and action on the part of a senior educational administrator in regard to meeting deaf children’s need for sign language shows the erasure of deaf children’s linguistic human rights within a “subtractively assimilationist” (Skutnabb-Kangas, 2008, p. 79) early intervention and education framework. Skutnabb-Kangas (2008) links subtractive assimilation to language ideologies that view monolingualism in dominant spoken languages as necessary for social integration and education. Friedner (2022) further links worldwide government investments in cochlear implants and AVT to a near-universal push to normalise deaf children and thereby eliminate the possibility of there being signing deaf people from country-level populations. This push is also evident across Canadian provincial early education and education systems that do not provide sign language services to children who receive cochlear implants (Snoddon, 2020, 2021; Snoddon & Paul, 2020; Weber, 2020). However, this “linguistic imperialism” is also seemingly “agentless” and woven from the paternalism and complicity of both dominating and dominated groups (Skutnabb-Kangas, 2008, p. 82).

In the aftermath of deaf school closures, as stated in A Review of Services for Deaf and Hard of Hearing Students in Newfoundland and Labrador that was issued in 2011 and updated in 2018, provincial governments typically express confidence that children will be “fully included into their neighbourhood schools” with the support of cochlear implants, AVT, and itinerant TODs (Fewer-Jackson & Cahill, 2018, p. 7). However, as attested in the original and updated Review documents, gaps in this framework inevitably emerge. These gaps are worsened by a lack of professional attention and oversight of deaf children’s learning needs; during the hearing, the former school district CEO and Deputy Minister of Education testified that they had never read the Review documents (Gardiner, 2022; Stack, 2022).

While the events described in this paper focus on Carter Churchill, he was not the only deaf child in the province who had been identified with similar language delays and educational needs. In October 2016, during Carter’s kindergarten year when he was five years old, a letter from several itinerant TODs was sent to senior educational administrators that mentioned “a high number of bilateral cochlear implant students entering school with low language levels” (Carter Churchill v. Newfoundland and Labrador English School District et. al., 2023, par. 112). Some of these students were identified as “ESL students” from culturally and linguistically diverse backgrounds (par. 112). Echoing the findings of A Review for Services for Deaf and Hard of Hearing Students in Newfoundland and Labrador (Fewer-Jackson & Cahill, 2018), minutes from a subsequent meeting between the programme specialist for student services and the itinerant TODs also identify a service gap following the 2010 closure of the Newfoundland School for the Deaf (par. 113). An affidavit from a now-retired TOD who worked with Carter in grade one when he was six years old testified that “there was no plan put in place by the Department of Education, or the respective school boards, for students who needed ASL after the closure of the Newfoundland School for the Deaf” (par. 172).

In the spring of May 2017 when Carter was six years old, the roster of itinerant TODs employed with the school district submitted what would be the first of three proposals for a satellite classroom for students with “significant language delays” who “require intensive language and communication support in a specialized classroom with qualified teachers of the Deaf” (par. 144). This proposal, and the second that followed in 2019, were summarily rejected by the then Senior Education Officer and Director of Student Services—Programs (Avalon) (par. 145, 207). At the hearing, both this individual and the Associate Director of Education (Programs and Operations) testified they had rejected the first two proposals due to a perceived lack of resources for a satellite classroom and a perception that the proposals were contrary to inclusive education policy (par. 149-150).

The itinerant TODS who submitted the proposals were instructed by the Senior Education Officer not to discuss it with the parents of students involved (par. 145, 153). As the adjudicator noted in his decision, this lack of consultation with parents impacted the legitimacy of Carter’s Individual Education Plan as a legal process requiring collaboration and assessment of needs to identify appropriate supports for meaningful access to education services (par. 160). Moreover, the rejection of the proposals meant that language development needs identified in Carter’s Individual Support Service Plan (ISSP) as a legal document were not met or responded to (par. 206-207). These needs included access and exposure to native ASL users, opportunities to participate in and observe conversations in ASL, and interaction with other children who are ASL users to mitigate the risk of social isolation and mental health problems (par. 206, 208). These language development needs are in accordance with the sign language rights in education framework outlined in Article 24 the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and elaborated by the World Federation of the Deaf’s (2018) Position Paper on Inclusive Education. Both of these documents were referenced during the Board of Inquiry hearing (Rees, 2022, p. 175). Moreover, as the adjudicator noted in his decision, contrary to the views of the Senior Education Officer and Associate Director, the stated aims of the satellite classroom proposals did not conflict with the Newfoundland and Labrador Department of Education’s inclusive education policy (par. 151-152). This suggests a lack of understanding of inclusive education on the part of senior administrators.

However, ignorance and denial of the right to education in ASL in the face of domestic legal obligations and international human rights agreements extended not only from multiple senior educational administrators and elected provincial government representatives, many of whom retired before or shortly after the Board of Inquiry hearing. A pattern of nonresponse and refusal to take proactive measures was also evident in the school district’s response to the 2023 Board of Inquiry decision that claimed no personnel were at fault “due to the lack of resources available across the district—therefore there will be no disciplinary action taken” (VOCM, 2023). This statement further illustrates the “agentless” nature of linguistic imperialism in regard to deaf children (Skutnabb-Kangas, 2008). Yet the multiple proposals and interventions by itinerant TODs and other frontline professionals discussed above suggested that practicable solutions and resources had already been identified and could have been made more readily available in Carter’s education. The fact that a satellite classroom was finally implemented in September 2020, when Carter was nine years old, after a third proposal from the newly hired Director of the Deaf and Hard of Hearing Programs and Services, also suggests that the needed resources for constructing an ASL educational environment were at hand all along, as the adjudicator noted in his decision (par. 149). As outlined in a June 2020 presentation for an ASL immersion classroom that was in place the following September, these resources included the following: two TODs, deaf assistants to promote language learning opportunities, alternate transportation from the student’s home address to the school, and a classroom setting to provide a language-rich environment. Testimony at the Board of Inquiry hearing from the retired Deputy Minister of Education indicated that the satellite classroom proposals had never crossed his desk (Gardiner, 2022). This suggests a simple lack of political will and leadership on the part of administrators to promote an ASL classroom environment created conditions of impossibility for deaf children to thrive.

To date, the Government of Newfoundland and Labrador has not issued a statement in response to the Board of Inquiry decision. The Coalition of Persons with Disabilities Newfoundland and Labrador has also declined to make a statement, and to date there has been no response to the decision or its findings from the Newfoundland and Labrador Association of the Deaf. As Skutnabb-Kangas (2008) notes, under agentless linguistic imperialism and ongoing paternalism, speakers and signers of dominated languages can become complicit in the weakening of their languages and in their communities’ own disappearance. This is seen when an education in sign language is constructed as “romantic but unrealistic” (Skutnabb-Kangas, 2008, p. 83), and not part of the current agenda for deaf advocacy organisations, which may focus more instead on accessibility accommodations for deaf adult signers.

Views of ASL

Deficiency views

The Board of Inquiry decision found the school district had discriminated against Carter during the first four years of his education from kindergarten to grade three, due to not providing accommodations that were responsive to his needs or sufficient to allow meaningful access to education services (Carter Churchill v. Newfoundland and Labrador English School District et. al., 2023, par. 23). The school district’s resistance to taking proactive measures that would enable Carter to have access to ASL in education was flagged by the adjudicator as indicating “a systemic problem” (par. 154). However, the adjudicator’s decision did not order systemic remedies because Carter’s current programming under the satellite classroom model, which has been in place since Carter was in grade four when he was nine years old, was seen as reasonable as required by law (par. 330).

However, the decision and testimony from witnesses during the hearing reveal a deficiency view of ASL that limits its availability to certain circumstance in the education of deaf learners. This indicates the need to further consider systemic changes. For instance, the above-mentioned letters to the Senior Education Officer and Director of Student Services that were sent two years prior to Carter’s school entry requested sign language support because he was unable to communicate in spoken language (Rees, 2022, September 2). The satellite classroom proposals arose due to a number of deaf students having significant language delays whose needs were not met through visits from itinerant TODs (par. 144). This indicates a view of ASL as a treatment for individual deaf students who were further disabled by delayed or incomplete language development. This deficiency view exacerbates language deprivation in deaf children since it requires children to fail in spoken-language environments before being granted access to sign language (Snoddon, 2021). This view also makes sign language rights, and indeed an identity as a signing deaf person, contingent on a perceived lack of proficiency in spoken language (De Meulder, 2019) and therefore an inferior social identity. This is inconsistent with a capability approach that supports individual children’s freedom to achieve valued “beings and doings” (Brando & Morales-Gálvez, 2021, p. 4), and it does not create conditions of sustainability for signing deaf communities. A deficiency view of ASL also contravenes the UN CRPD, which declares the equality of signed and spoken languages.

A deficiency view of ASL is also evident related to the ASL proficiency of personnel working with Carter and how this proficiency was (not) assessed. Although the problem of a lack of assessment of educational staff’s ASL proficiency was identified in the Review of Education for Deaf and Hard of Hearing Students in Newfoundland and Labrador (Fewer-Jackson & Cahill, 2018), this issue first arose in Carter’s education prior to his entry to kindergarten at age five. This was when an ISSP meeting and psychological assessment identified the need for a student assistant with “ASL training to facilitate communication” (par. 100). However, testimony from the hearing and results from a sign language proficiency assessment reveals that the student assistants assigned to Carter during this year did not possess conversational proficiency in ASL and were unable to relay instruction (par. 121–129; Churchill, 2022, August 29). Carter’s kindergarten classroom teacher also did not know ASL or have any training related to teaching deaf students (par. 116). As one consequence, Carter’s health and safety in school was compromised, as occurred when the kindergarten teacher was unable to understand Carter’s signing that he was cold and wanted to put on his sweater (par. 140). During the hearing, counsel for the complainants questioned the then school district CEO about the requirement that French-language teachers receive certification via the DELF (Diplôme d'Etudes en Langue Française) before being hired to teach (Rees, September 8, p. 53). The contrast between the clear requirements to teach in French and the noticeable lack of requirements to teach in ASL further contributes to a deficiency view of ASL.

The lack of ASL proficiency among Carter’s classroom teachers, including those with deaf education credentials, has continued to the present day (Van Geest, 2022, August 31). This issue illustrates the significance of sign language proficiency assessment and standards for educational staff working with deaf learners in inclusive settings, since these settings frequently lack a school or classroom community of sign language users. Moreover, the ongoing lack of an ASL curriculum impacts the quality of education that deaf students receive. As Carter’s case demonstrates, without contact with such a community or with proficient signers, deaf learners in inclusive settings are academically, linguistically and socially isolated, and this impacts their language development and well being.

This isolation is illustrated by the testimony of a part-time deaf student assistant who is a native ASL signer and who was assigned to work with Carter a few days after his entry to grade one, when he was six years old. However, the duties that are typically assigned by the school district to student assistants, related to supporting disabled students’ personal and safety needs, did not account for supporting the communication needs of deaf students (par. 181; Vaters, 2022, p. 7). The student assistant testified that she went beyond the parameters of her role to sign to Carter and share ASL educational resources with him, including reading books on the school bus (Vaters, 2022, pp. 8–9). However, in the classroom and school, as the student assistant testified, neither Carter nor herself had any access to communication and information (Vaters, 2022, pp. 10–11). The ways in which this impacted Carter’s capabilities is evident in the student assistant’s testimony:

Carter knows. I mean, he can see what’s going on. And so, he knows that he was treated differently. Hearing kids would be talking. He realised that kids weren’t playing with him, which would be very, very sad for him. He knows. He can see what’s going on in the environment; that he couldn’t get in there. And so, we would try and bridge that communication with other kids, but he was pretty darn frustrated. Announcements that tell every child what’s going on in the school, he had no access to. I had no access to them as a deaf adult working in the system as well. And so, he knows all of those things that were missing in his education. And he could express what he wanted to do, and many of those things were, “You can’t do that.” They were not able to accommodate his needs. (Vaters, September 1, p. 35)

The above excerpt shows how Carter was not able to develop fundamental capabilities in his school environment, since ASL was not available as a vehicle for wider communication and expression (Brando & Morales-Gálvez, 2021). In turn, this impeded Carter’s ability to locate himself in his social world as a possible being and further develop an epistemic standpoint that allows thinking, reasoning and affiliation through ASL, as well as control over one’s environment (Brando & Morales-Gálvez, 2021).

Views of ASL as controversial

ASL was also presented as controversial during the hearing. The report and evidence provided by the expert witness for the school district made frequent reference to what he called “the communications controversy in deafness” (MacDougall, 2022a, p. 17). As this witness stated,

the relative lack of support for an ASL based approach far [sic] from a unique

situation in the complex world of the education of deaf children, where highly qualified and well-meaning professionals sharply disagree concerning the ‘right’ way to communicate and educate deaf children (MacDougall, 2022a, p. 17).

In Komesaroff’s (2005) study of how expert witnesses were positioned in Australian cases alleging discrimination in education against deaf children, this rhetorical act of polarisation works as a discursive tactic to cast witnesses for the complainants as political “advocates” and witnesses for the defense as politically neutral, since the latter represent the status quo. To this point, the expert witness for the school district stated my own expert report for the complainants “advocates for a strong ASL- based educational program” and referred to my “advocacy for a specific approach to deaf (Deaf) education which emphasizes full access to sign language from the earliest possible age” (MacDougall, 2022b, pp. 2–4). The repeated references to ASL as “controversial” also served to minimise the effects of not providing Carter with an education in ASL and suggested that the negligence of school administrators was reasonable.

Apart from the student assistant who worked with Carter, I was the only deaf witness at the Board of Inquiry hearing. Counsel for the complainants asked me about the insight that my social identity and lived experience provided regarding the education of a deaf child (Rees, 2022, September 1, p. 75). Over the course of three hours of testimony, I presented research-based evidence regarding the effects of language deprivation and the meaning of inclusive education, with reference to the World Federation of the Deaf’s policy statements and the UN CRPD. However, my positioning as an “advocate” served to undermine my credibility as an expert witness as being politically motivated and present ASL as a controversial option in deaf children’s education. As such, doubt was cast on the feasibility of supporting deaf children’s language development via ASL.

This matter also illustrates the limitations of a disability-based human rights framework for upholding linguistic justice for deaf children (see also Snoddon, 2009). As Spade (2015) notes, a human rights system that is driven by individual complaints “merely tinkers with systems to make them look more inclusive while leaving their most violent operations intact” (p. 47). This point underscores arguments made by Paul and Snoddon (2017) that deaf children’s rights in the Canadian Charter of Rights and Freedoms are fulfilled only by the courts providing new entitlements to social services to ensure ASL and Langue des signes québécoise (LSQ) instruction for all deaf children and families. The remedies ordered for Carter in the adjudicator’s decision focus on the district’s provision of support for the development of Carter’s competence in ASL and Carter’s access to the school curriculum and communication in ASL, including with his peers (par. 333). However, these remedies fail to engage with the need for sign language revitalisation and deaf community sustainability as they connect to Carter’s individual capabilities, such as how advanced ASL competence and socialisation into a community of users can be supported in inclusive settings. The remedies also do not address the need for ASL proficiency standards among educators and support staff working with deaf learners in these settings.

Discussion and conclusion

This paper has analysed documents and testimony from the case of Carter Churchill that show how deaf children’s capabilities and flourishing are restricted rather than supported in inclusive education and by the systems and personnel that uphold it. Testimony at the hearing and the adjudicator’s decision show a pattern of systemic and professional negligence and non-recognition of deaf children’s sign language rights and indicate a pervasive deficiency view of ASL.

This case also shows how in Canada, deaf school closures, and the subsequent loss of the relational linguistic continuity (Song, 2023) among deaf signers that these schools entailed, have cast a long shadow over individual children, families and communities. In Newfoundland and Labrador, the dismantling of the deaf school’s infrastructure and programming, and the dispersal of the personnel and expertise that the school formerly contained, have meant a loss of resources that can support deaf children in achieving their individual capabilities as members of signing deaf communities. Less apparent, but perhaps more significantly, it has meant the loss of linguistic security for deaf children in terms of the continuous use of sign languages across generations (Song, 2023).

The precarity of the present arrangements that were ordered by the adjudicator’s decision for Carter’s education—but not for other deaf children in Newfoundland and Labrador—shows that linguistic justice for deaf children will not be achieved through human rights complaints, although this was the only avenue available to Carter’s parents and was pursued at great cost. However, the role of individual frontline professionals and educators in advocating for Carter indicates that both a relational ethics and creative solutions are possible within existing systems. This creativity and thinking otherwise needs to be supported and extended by stronger legal and systemic measures and greater deaf and disability community advocacy to support and revitalise signing deaf communities and thereby extend the capabilities of individual deaf children.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Kristin Snoddon

Kristin Snoddon is Associate Professor with the School of Early Childhood Studies, Toronto Metropolitan University.