A Dialogue about CRPD
The United States became a signatory to the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in 2006, signaling its support for the first international treaty to address disability rights. The treaty has now moved forward for a vote for ratification by the full Senate--although no date for a vote has been set. The recent Senate action set off a debate among the community of individuals who are deaf and hard of hearing that spread across the Internet through social media and onto the AG Bell Facebook page and group.
In the following interview, John Stanton, chair of the AG Bell Public Affairs Council, a Washington, D.C. lawyer, and an individual who is deaf shares the behind-the-scenes work in the development of the AG Bell position statement on CRPD and offers his legal and personal perspective on the treaty and what it means for people with hearing loss around the world.
Stanton is senior counsel at the Washington, D.C. law office of Holland & Knight, LLP, where he specializes in appellate advocacy litigation and has worked on numerous cases involving civil rights laws. He also has written extensively about the history of people with disabilities, including a recently-published law review article on the history of lawyers who are deaf or hard of hearing.
He graduated from Dartmouth College and the Georgetown University Law Center. After obtaining his law degree, Stanton served as a judicial clerk for Judge Nathaniel Jones on the U.S. Court of Appeals of the Sixth Circuit. Prior to joining Holland & Knight, he worked at the Washington, D.C. office of Howrey, LLP. Stanton became deaf in early childhood and grew up using spoken language and speechreading, and received a cochlear implant in 2001. He has been a member of AG Bell since the mid-1990s and is a former member of the board of directors.
Q: Why did AG Bell develop a position statement on CRPD? What issues did the Public Affairs Council consider in developing the statement?
AG Bell is committed to advocating for people who are deaf or hard of hearing to ensure that they have equal opportunities to succeed in the mainstream. The association also has many international affiliates. The Public Affairs Council (PAC) recommended that the association sign onto a recent letter drafted by the Deaf and Hard if Hearing Alliance that effectively endorsed the CRPD.
As is often the case with respect to legislation or treaties, AG Bell would have stated things differently in the treaty if the association was drafting it ourselves. AG Bell later developed its position on the CRPD in full in a position statement that was adopted by the board of directors in 2010. But even though the association would have preferred that things were stated differently in the treaty, the association fully supported—and strongly so, I might add—the sentiment behind the CRPD that people with disabilities deserve equal opportunities worldwide.
Q: What is the significance and implications of the CRPD for people who are deaf or hard of hearing who use listening and spoken language?
Broadly speaking, the CRPD seeks to promote, protect, and ensure the full enjoyment of rights by persons with disabilities and ensure that they enjoy full equality under the law. It's no secret that in many places in the world, the treatment of people with disabilities is shameful. The CRPD treaty is an excellent step to eradicate some of the discrimination and disparate treatment experienced all too often by people with disabilities worldwide.
The CRPD does not have many implications for people in the United States who are deaf or hard of hearing and use listening and spoken language. It does not appear that the treaty offers any additional protections or rights that are already available under existing U.S. law. However, U.S. citizens who are deaf or hard of hearing may find it easier to obtain accommodations when they are traveling abroad if they are traveling to a country that doesn't have the equivalent of the Americans with Disabilities Act (ADA), but has nonetheless adopted the treaty.
Many factors come into play in determining whether the treaty will make a difference in the lives of people who are deaf or hard of hearing who live in other countries. Much depends on whether the country has the resources and/or the means of enforcement to ensure that people who are deaf or hard of hearing obtain the accommodations necessary to achieve equal enjoyment of opportunities as their non-disabled peers. For example, having the right to captioning doesn't mean much if an individual lives in a country that doesn't have the technology or infrastructure to provide this. Or, again in the case of traveling abroad,the captions may be in the country's native language which may be unfamiliar to the deaf person.
Q: Will the CRPD influence U.S. law?
Generally, treaties are considered the equivalent of federal statutes in the United States. They are subordinate to the U.S. Constitution, but higher than local regulations. When two federal statutes or a treaty and a statute overlap with each other, which happens from time to time, a court will do its best to read the laws to be in harmony with each other. For a court to determine that the laws contradict each other, the conflict must be very, very clear and unambiguous. Just because there is some overlap between two laws, doesn't mean that the laws are in conflict.
With respect to CRPD, I just don't see any place where the treaty contradicts existing U.S. law. If there is one overriding principle of U.S. law with respect to people with disabilities, it's that the government wants individuals with disabilities to be productive members who are integrated into mainstream society. The ADA says that. The Individuals with Disabilities Education Act (IDEA) says that. And the CRPD says it, too. U.S. Senator John Kerry - who has been a big supporter of disability rights - said that he does not expect the CRPD to change any existing U.S. law with respect to the rights of people with disabilities. I agree with Senator Kerry.
I am aware that some individuals have expressed concern that the CRPD says that children who are deaf or hard of hearing should have the “right” to Deaf Culture and to sign language. These individuals believe that if the United States adopts the treaty, then only sign language education will be provided for children who are deaf. Again - overlap is not conflict. Just because children who are deaf have the right to sign language and recognition of Deaf Culture, doesn’t mean that they don’t also have the right to listening and spoken language and education in the mainstream. The CRPD does not say that children who are deaf or hard of hearing must only be taught through sign language. Indeed, the clause immediately following the sign language clause specifically says that countries ratifying the treaty must ensure that the education of children who are deaf or hard of hearing “is delivered in the most appropriate languages and modes and means of communication for the individual, and in environments which maximize academic and social development.” This is consistent with what IDEA requires in the United States.
Another example is the ADA, which was passed in 1990. The Department of Justice provided guidance to interpret the ADA which was released in the early 1990s. These regulations listed sign language as an example of an auxiliary aid for students and citizens who are deaf as a possible reasonable accommodation, even though at that time, students who were deaf were also using Computer Assisted Real-Time Captioning (CART) for interpreting purposes in the classroom. Sign language was just an illustrative example – it was not the sole type of accommodation mandated by the ADA. The language of the law and its regulations, taken as a whole, make this clear. Eventually, the regulations were updated (and this actually took quite a while for reasons that are too complicated to explain here) to also include CART as a possible accommodation for students who are deaf or hard of hearing under the ADA as well. However, students who are deaf or hard of hearing always had the right to CART as an auxiliary aid when appropriate under the ADA, even if the regulations didn’t specifically mention CART at the time.
This is the case with CRPD. So why does the CRPD list only sign language for deaf education? I do not know for certain, but my best guess is this: The CRPD was drafted many years ago. It wasn't formally adopted by the UN until 2006. The treaty was probably in the works years before that. This is only a guess, but I would not be surprised if the drafters of CRPD drafters looked to the ADA’s regulations, saw that only sign language was listed as an illustrative example as an accommodation for students who are deaf, and did likewise. By the time the ADA’s regulations were updated to also mention CART, the CRPD’s language was already finalized and the treaty was being distributed to countries for passage. The suggestion that CRPD's drafters wanted to eliminate spoken language and mandate only sign language for deaf education is at best misguided, and at worst paranoid.
Q: What is your perspective on CRPD?
When I was in law school, I wrote a paper about U.S. immigration policy and how it affects people with disabilities. I was amazed at the stories I read about how poorly people with disabilities were treated in some countries. I found many articles about discrimination, segregation, lack of accommodations...you name it. For a long time in the United States' history, it was much of the same story here. But that changed with the introduction of disability rights laws such as the ADA, IDEA and Rehabilitation Act. The hope is that the CRPD will have some of the same effects internationally as those laws did in the United States in terms of eliminating discrimination, ending segregation, and providing equal opportunities for people with disabilities.
AG Bell has watched the progress of the CRPD treaty for a long time and took action with a position statement following President Obama signature of the treaty. We should be celebrating the CRPD's passage toward ratification along with the rest of the community of organizations representing disability rights. I certainly am.