Denying Claims of Discrimination in the Federal Court of Australia: Arguments against the Use of Native Sign Language in Education
Komesaroff, Linda, Sign Language Studies
AUSLAN WAS OFFICIALLY RECOGNIZED in Australian government policy in the late 19803 (see Lo Bianco 1987; Johnston 1989; Department of Education, Employment, and Training [DEET] 1991). Throughout the following decade, a growing number of bilingual programs for deaf people were established, providing access to instruction through Auslan for a number of deaf children in most states of Australia. These programs continue to exist within a system that predominantly provides instruction to deaf students in English through oral or Total Communication programs. This situation reflects a central platform in Australian education policy for students with special needs: the parents' right to choose the educational setting for their child. The language of instruction to which a deaf child has access, however, may be less a matter of parental choice, particularly if that language is Auslan.
In his controversial article, W(h)ither the Deaf Community, Johnston (2004) points to three key factors that are exerting growing stress onand may threaten the long-term viability of-the Australian Deaf community: the high rate of mainstreaming, the increasing acceptance of cochlear implantation, and the declining incidence and prevalence rates of deafness. He assures Deaf people, however, that they need not feel threatened as "governments may actually be more willing to adequately and properly respond to the legitimate language needs of deaf and hearing impaired citizens if numbers are modest" (374; emphasis added). Of a number of commentaries published in response to Johnston's article (see Sign Language Studies 6[a], 2006), Hyde, Power, and Lloyd describe Johnston's use of trend analysis as "the weakest predictive strategy ... an approach [that] assumes a continuation of an observed trend established by the past data" (2006, 197). Carty (2006), the other Australian researcher to comment on his article, also challenges Johnston's view that a smaller population of deaf people will not negatively affect service provision. Two issues related to sign language use in Australia, of which Johnston and others make no mention, are the extent of some education authorities' unwillingness to provide deaf children access to instruction through Auslan, as well as the recent, successful efforts by parents to have such practices determined by the courts to be discriminatory.
In this article I analyze two cases that are the result of parents' complaints against education authorities for alleged indirect discrimination on the basis of their child's lack of access to instruction through Auslan in regular school settings. Although bilingual/bicultural programs for deaf students in Australia are available in some special schools and deaf facilities, the subject of complaint in these cases relates to the lack of provision of regular classroom staff members who are fluent in Auslan. Both cases were decided in favor of the complainants.
Despite the parents' calls for Auslan to be used with their deaf children, the formal complaints, and attempts at conciliation, the education providers have maintained a vigorous defense (in one case also appealing the decision of the Federal Court of Australia). It is therefore of potential interest to educational researchers and sign linguists to know how the respondents argued their cases against the use of Native Sign Language (NSL) in the classroom. Legal counsel is bound to represent its clients' views; therefore, the defendants' arguments are a reflection of the views and attitudes of the education authorities whom they represent. This article provides a detailed account of their denial of the claims of discrimination. In doing so, it presents perhaps the first comprehensive account in the public domain of the way in which these authorities view NSL and their reasons for denying its use with deaf children for whom Auslan is their first or preferred language.
Human Rights and Antidiscrimination Legislation
Australia's human rights policy is based on the principle that human rights are "inherent, inalienable, indivisible and universal": Indeed, "they are the birthright of all human beings, cannot be lost or taken away, are all of equal importance and apply to all persons irrespective of race, sex, disability, language, religion, political or other opinion, national or social origin, age, property or other status" (Commonwealth of Australia [CoA] 20053, 5). …