The Deaf / Their Position in Society and the Provision for Their Education in the United States

by Harry Best

TREATMENT OF THE DEAF BY THE STATE

General Attitude of the Law towards the Deaf

After examination of the question of how long the deaf are to be an element of the population, our discussion turns to their position at present as an actual part of society. The first relation to be considered is that of the state to them.

The state acts on men through the law, and in the law is represented not only its authority, but its attitude as well towards the problems that confront society, including the treatment of the various elements of its population. In this chapter it is our purpose by a study of the law in respect to the deaf to discover the attitude of the state towards them and the treatment which it has accorded them.

Generally in ancient and even in more modern days the deaf, especially the congenitally deaf without education, have been held in the eyes of the law more or less as though they were an abnormal element in the state, at times being regarded as though they were of defective minds, and now and then being considered practically as idiots. Though there was usually meditated no unduly harsh treatment of the deaf, they were for the most part deemed incapable of performing the full duties of citizenship, certain of the rights that belonged to their fellowmen were denied to them, and they were held in considerable degree in what amounted to legal bondage. It was only in the course of time in most countries that the law came to look upon the deaf differently, to regard them more as normal persons, and to grant them in greater measure the rights of other men.[61]

In America the attention of the law has been directed to the deaf both by legislation relating to them, and by court decisions affecting them. In addition, in the constitutions of a number of states, as we shall see, provision is made for institutions for the education of the deaf; and in one state, Mississippi,[62] a provision is found exempting the deaf from the payment of a poll tax. The law cannot be said to have concerned itself extensively with the deaf, but the light in which they have been viewed has been indicated fairly clearly. Judicial dicta and opinions have been of less frequency and importance than legislation, and have rather dealt with the mental capacity of the deaf in certain legal relations and proceedings, as in their responsibility for crimes, the making of wills, the appointment of interpreters, etc. Legislation itself has not often been engaged in providing for the deaf as a special class, beyond maintaining schools for the education of the young. Where this legislation has taken place, it may be said to be of three kinds. First, the deaf have been regarded as mentally deficient or incapable of certain civic acts, and discriminatory laws have been enacted. Next, the deaf have been thought to need special consideration or protection on the part of the state, and laws have been passed for the appointment of guardians or otherwise for their security or benefit. The third class of legislation is where the state bases its action upon the supposed weakness of the deaf, their "physical disability," as it is frequently termed, and here we have a series of what may be called negative benefactions, designed to make less hard the way of the deaf. Such special provision has consisted chiefly in the remission of taxes in certain instances or of some other form of more or less direct assistance.

Legislation Discriminatory respecting the Deaf

Legislation which may be termed discriminatory in respect to the deaf has really been of but slight extent.[63] In Georgia we find an enactment of 1840,[64] in which the deaf were to be regarded pro tanto as idiots, so far as concerned the managing of their estates, though this was in fact intended for their protection. In New Mexico a law has been enacted, forbidding those deaf by birth from making wills, unless their intention is declared in writing;[65] and in Louisiana a deaf man is incapable of acting as a witness to a testament.[66] In several states, as New York and Massachusetts, there have been enactments in regard to deaf-mute immigrants together with other classes who might be likely to become a public charge, with the exaction of bond as security.[67] In Georgia[68] there is an enactment in reference to various itinerant concerns which might leave deaf persons, as well as others, in the state as public charges.[69]

Legislation in Protection of the Deaf

Legislation of the second class, where the deaf are thought to require particular consideration or protection, has likewise been infrequent. The first instance is an enactment of Massachusetts in 1776,[70] relating to the appointment, on certain occasions, of guardians for the deaf, especially those deaf "from their nativity," together with other persons—which is probably the earliest statutory reference to the deaf in America. A later example is an enactment in Georgia in 1818,[71] and still in force, providing for the appointment of guardians, on somewhat the same order as that which we have indicated, for deaf and dumb persons incapable of managing their estates. In New Jersey in 1838[72] a law was enacted, forbidding deaf persons under seventeen years of age to be bound out as apprentices. In Ohio a statute also of 1838[73] provided for guardians for the deaf, and several modern statutes are somewhat of this nature. In Maine the deaf cannot be sent to the reform school.[74] In Arkansas[75] and Missouri[76] it is provided that the court may appoint guardians for deaf persons from fourteen to twenty-one years of age in case of the death of a parent. Of somewhat different character, but still for the protection of the deaf, is the enactment in several states, as Wisconsin[77] and Virginia,[78] where injury or abuse of the deaf is made a matter of special attention in the law.

Legislation in Aid of the Deaf

Examples of legislation designed to be of material aid to the deaf are rather more common, the chief of which, as we have noted, is the exemption from the payment of some personal or property tax.[79] Thus in Missouri we find a statute of 1843[80] allowing a deaf man to be exempt from the poll tax and the tax on property up to $300. Indiana in 1848[81] exempted its deaf and blind citizens from a poll tax and a property tax up to $500. Mississippi[82] exempted these classes from the road duty in 1878, and two years later from the poll tax as well, this exemption being incorporated in the state constitution, as we have seen. Tennessee[83] in 1895 also exempted from the poll tax the deaf, the blind and those incapable of labor. In Pennsylvania legislation seems to have gone the furthest in its desire to be of material help to the deaf, for here we find the deaf with the blind exempted from the penalties which usually apply to tramps.[84] Such are instances of this form of legislation, but similar legislation has been enacted in other states.

Very rare are instances where the state makes special provision for the care of, or extends special poor relief to, any of its deaf population. The chief example seems to be the action of some of the New England states with their so-called "missions for the deaf." These are associations, composed in great part of the deaf and engaged in various forms of mission work, and to them state funds are granted to aid the aged, infirm and helpless deaf. By this plan Maine is said to have been without a deaf-mute pauper in ten years. The amounts allowed, however, for this purpose are not large, being $200 a year in Maine and $150 in New Hampshire.[85] In Ohio the counties are allowed to contract with private homes for the maintenance of the aged and infirm deaf—there being but one such in the state, that supported by the deaf themselves—and the state board of charities is given power to remove deaf persons thereto from the county infirmaries.[86]

Instances are likewise rare where the state makes a distinct appropriation of money for the benefit of the deaf other than for schools. We have one instance in New York where the state for a certain number of years allowed a small sum to the publishers of a paper for the benefit of poor deaf-mutes.[87]

As a last species of legislation in aid of the deaf, we have a single enactment of quite different character from that which we have hitherto found, and of later appearance. This is the law enacted in Minnesota in 1913,[88] which provides for a division for the deaf in the state bureau of labor. Its duties are to

Collect statistics of the deaf, ascertain what trades or occupations are most suitable for them and best adapted to promote their interests, ... use [its] best efforts to aid them in securing such employment as they may be best fitted to engage in, keep a census and obtain facts, information and statistics as to their condition in life with a view to the betterment of their lot, and endeavor to obtain statistics and information of the conditions of labor and employment and education in other states with a view to promoting the general welfare of the deaf in this state.

Such legislation may prove highly beneficial to the deaf, not only in rendering very desirable aid to them, but also in offering means of learning very important facts as to their condition.

Tenor of Court Decisions Affecting the Deaf

The opinions of the courts of law in regard to the deaf have, as we have noted, rather revolved upon the mental capacity of the deaf in certain proceedings, and upon their competence in certain legal relations. These judicial expressions have in the main referred to four relations of the deaf in the law: 1. in their responsibility for crime; 2. in acting as witnesses; 3. in requiring guardians; and 4. in the making of wills and contracts generally.

As to the responsibility of the deaf man for his misdeeds, there has been in times past more or less presumption against it, especially if he were born deaf and were without education; but to-day he is quite generally held fully answerable for his crimes and misdemeanors, and his deafness cannot mitigate his punishment.[89] As a witness, the deaf man under proper circumstances is now allowed to appear without hindrance before virtually any court.[90] As to special guardians, these will be accorded the deaf when there appears sufficient need, though there is less of this than formerly.[91] With respect to the testamentary capacity of the deaf, we find that in times past the deaf were often said to be more or less incapable of making wills, though this presumption could always be overcome. Naturally their wills were subjected to considerable scrutiny for the purpose of preventing fraud; but if written and apparently genuine, they could usually stand. To-day the deaf are practically everywhere held to be quite capable in this respect, and probably nowhere would a will be set aside for reason of the deafness of the testator alone. Likewise the deaf are now generally held capable of entering into all contractual relations.[92]

Present Trend of the Law in Respect to the Deaf

In most of the statutes and decisions to which we have referred there appears a distinct trend towards treating the deaf quite as normal persons, and the tendency may be considered to be general to-day to hold them very much as other citizens. The greater part of all the special legislation has ceased of late years, and it is seldom now that a particular enactment is placed upon the statute books. Where such does occur, it arises chiefly where some peculiar protection of the deaf has been felt to be needed. Discriminatory legislation has practically disappeared, as has also beneficial legislation of the old sort, the only kind likely to be enacted in the future being along the new lines pointed out.

In judicial proceedings likewise particular usage in respect to the deaf has almost entirely passed away, and the deaf to-day receive little distinctive treatment. Practically the sole special consideration now accorded them is in the procurement of interpreters for proper occasions. On the whole, then, the present attitude of the law may be said to be to regard the deaf more and more fully as citizens, to allow them all the rights and duties of such, and to consider them in little need of particular aid or attention.[93]