Deaf & Hard of Hearing OCR Complaint: FAQ & FVC

ACLU-DE received several complaints from families that suggest that the State of Delaware has not fulfilled its obligation to ensure that students who require IEPs are given the individualized assessment and access to resources that they are legally owed. These complaints came primarily from families of hard of hearing students (with mild to moderate hearing levels), and deaf and hard of hearing students who could not practically attend the Delaware School for the Deaf (DSD) because of geographic limitations or other barriers. Many of the complaints also came from families whose children were between 0-3 years of age, as they were early in the process of attempting to access accommodations for their child. 

Families described a lack of information, access, and meaningful accommodation when inquiring about resources and therapeutic services for their children. This is most notably the case for families in southern Delaware, who are not within a reasonable distance of DSD, and who have not been provided with other options that suit the needs of their children.  

We chose to file an OCR Complaint because the State’s lack of transparency on this issue concerned us. After multiple attempts to obtain information from the State to better understand whether deaf and hard of hearing students in Delaware were actually receiving individualized evaluations and treatment plans as promised, the State provided no clarity and evaded meaningful response to questions that should be public knowledge for all Delawareans.  

We believe that OCR is best equipped to obtain this information that will help hold the State accountable to students and families. 

The heavy referencing of LSL in the complaint led to a lot of anger from the deaf and hard of hearing community—and that makes sense, given historical context and data on the subject that we were not aware of before we filed the complaint. The original press release referred to LSL as a “gold standard”— we apologize for that. 

We now understand that LSL in its traditional, historical context has been administered in a way that has explicitly discouraged the use of ASL. We would like to note that this is not how the Delaware families who contacted us have sought to utilize this approach – they have instead sought a total communication approach that includes both ASL and auditory-oral therapy. We made a mistake in equating LSL to the broader range of auditory-oral therapy options that we are actually seeking, and we apologize for that as well.  

The original complaint language heavily referenced LSL because it is a service that we understand has been offered by the Christina Early Education Center and explicitly promoted by the State. Yet it has not been made accessible to many of the families who were offered that service in their child’s educational plan. This was highly indicative of the discrepancy between what is said to be offered in Delaware and what families actually have access to. This is a large part of what we hope to clarify through an OCR investigation. 
 
We do not purport LSL to be the standard for language acquisition, nor for every child on the spectrum of hearing. We should have been clearer in advocating for greater options for students that fit their own individual needs without any implication that LSL is the best or preferred option. We are deeply sorry for that. 

Absolutely not. The complaint does not in any way advocate for any auditory-oral therapy as a replacement for, or preference to, ASL or any signed language. The complaint is advocating for families to have full access to the range of options to accommodate their children’s unique needs. We adamantly support students’ access to ASL and other visual language needs. 

A more accurate way to describe the complaint's goals is to address the lack of individualized assessments of student needs and the provision of necessary resources. Those resources can include auditory-oral therapy options for deaf and hard of hearing children that would complement existing ASL and signed language acquisition – not replace them. Many of the families that have approached us expressed that it is nearly impossible to find any services offered in the state – particularly in southern Delaware – other than ASL through the Delaware School for the Deaf. 

The State and each individual school district have an obligation to provide necessary resources and reasonable accommodations, rather than relying solely on a single institution for all services. Importantly, the State’s lack of transparency with parents has resulted in children missing out on receiving certain therapy options and resources during significant developmental periods. 

No. First and foremost, we would like to apologize for the use of the word “sue” on our social media graphic to describe what is taking place–that is inaccurate. No one is going to court. There is no lawsuit. 

What we filed was a complaint calling for OCR to investigate the claims we laid forth regarding areas where the State of Delaware is not adequately providing the federally required resources and access for deaf and hard of hearing students. No one is facing any sort of lawsuit as a result of any of this, whether an investigation is opened or not. While we believe our allegations are well-founded, an OCR investigation is best suited to confirm whether deaf and hard of hearing students in Delaware are being appropriately identified and served. 

The specific 1-year-old child referenced in the complaint example has a moderate hearing level and is from a bimodal bilingual household that was seeking LSL as an additional resource to complement the access to ASL that the child already had. The state failed to adequately provide that accommodation for this family as well as other families of children who are similarly hard of hearing.

None of the children of complainants have what is considered a “severe” or “complete” hearing loss, and that is largely where a lot of the feedback we have received diverges from the complaint itself. We made a mistake in referring to deaf and hard of hearing students too monolithically.

Many people reached out to express reasonable concerns about promoting oral and auditory language therapies—specifically LSL—to deaf children. That is not what this complaint is seeking. In our original complaint and press release, we should have been more explicit that these are accommodations being sought for children for whom it is determined that such therapy meets their individualized needs, and they are not being sought at the expense of any child’s potential ASL exposure. 

We want deaf and hard of hearing children throughout Delaware to have greater access to all communication modalities and therapies–including ASL education–which best suit their individualized needs and allow for the best educational experiences for said children. Most importantly, we want to make sure the State is offering suitable options that allow families to customize their children’s educational needs in the most supportive ways possible. This is why our complaint advocates for greater individualized assessment and access to appropriate accommodation for all students.

The original press release included a quote that made use of the phrase, “this young population that literally cannot speak for itself.” Some of the circulating posts and videos that referenced this excluded the word “young,” which made clear that the statement refers to the 0 to 3-year-old age bracket that is referenced in the opening lines of the complaint.

For deaf children in Delaware, the 40% referral rate that was referenced in the complaint and press release could suggest that many children have a much easier time accessing deaf education than in other parts of the country—and that is great. For many deaf and hard of hearing children, DSD is undoubtedly the best option.  

However, the question of “over-referral” that we raised in our complaint focused on the two groups of children we outlined earlier: those with milder hearing levels and those outside of New Castle County. For these children, the high referral rate reflects the lack of other options and the barriers that have prevented their families from accessing them.  
 
For instance, we have received evidence from families in southern Delaware who were referred to DSD that attendance would require their child to take a 3-4 hour round trip on a bus daily. These families were given no other accommodation or resources when they communicated that travel to DSD would not be possible. DDOE enables LEA referral of students who are deaf or hard of hearing to DSD without consideration of other appropriate interventions and supports for that individual child’s needs.  

If most of these students received appropriate and individualized evaluations resulting in high referral rates, that would be excellent. But it cannot be said that children have appropriate access to their Least Restrictive Environment if only one option is offered. This is why we have asked OCR to investigate whether these individualized evaluations are occurring as promised.

Not necessarily. Deaf and hard of hearing children who qualify under the IDEA must be placed in an educational setting that is their “least restrictive environment,” per the IDEA, Section 504, and the ADA. However, as many have pointed out, there is a wide spectrum of hearing levels that can range from very mild to complete. The LRE for each child depends on the specifics of their hearing, as well as a wide variety of other factors regarding the child’s individual circumstances. 

In a petition circulated about the complaint, it was alleged that “in Delaware, the entire state can reach the school within an hour.” That is fundamentally untrue. For deaf and hard of hearing children in the lower part of Delaware, particularly the southern-most part of Sussex County, getting to DSD can easily take two hours with an additional two hours needed to return home, without consideration of traffic or construction delays that may happen. That is not a reasonable accommodation for working families and extremely young children. Part of the issue our complaint seeks to address is this consolidation of resources to New Castle County, thereby depriving students in other parts of the state. 

This is why we are adamant about ensuring the greatest degree of options for educating deaf and hard-of-hearing children in Delaware. Looking at DSD as the catchall solution places many students at a disadvantage. 

We are working on an amended complaint incorporating your feedback that we hope to share shortly. The amended complaint will remove references to LSL and instead advocate for auditory-oral therapy options when they are appropriate. This includes a much wider range of options that better serve the specific families that have expressed the need for better accommodation and access. 

The amended version will also be much more specific and intentional when we are speaking about children on different parts of the deaf and hard of hearing spectrum. In many ways, these needs vary widely. It’s become increasingly clear to us that the worst thing we can do is treat an incredibly diverse population like a monolith. Different children have different needs, but all children deserve to have their needs met. 

In seeking to expand access, the amended complaint further emphasizes deaf children in southern Delaware. As mentioned, students are largely disadvantaged based on where they are located in the state. Providing meaningful accommodations, IEPs, and LREs includes ensuring those children have access to ASL instruction and other language options when they cannot attend DSD.