Legal Matters

Recent research highlighting controversies involving gifted and talented programs has caused focus on the underrepresentation of some student groups. In 2015, a study by the National Bureau of Economic Research revealed that students who qualified for free and reduced-price lunch, English-language learners, black and Latinx students, and female students were underreferred to gifted programs.

When the media reported that only seven black students were admitted into New York City’s most elite public high school, some called for expanded gifted classes in neighborhoods with higher numbers of low-income students and children of color. Further, a panel appointed by Mayor Bill de Blasio of New York City suggested abolishing gifted programs due to the potential for segregation. After providing an overview of the role of federal and state laws, we examine some of the legal issues related to gifted and talented education programs.

Outlining Federal and State Law

According to the National Association for Gifted Children (2019), an estimated 3 million to 5 million gifted and talented students live in the United States. Yet, unlike special education— where students receive services under IDEA—the federal government plays a very limited role in gifted education, as there is not a similar federal mandate for gifted education. Because of the lack of federal oversight, students who are identified as gifted are subjected to unequal treatment that varies from state to state or school district to school district.

In the “State of the States in Gifted Education” report, the National Association for Gifted Children and the Council of State Directors of Programs for the Gifted reported that school boards in 12 of the 39 states that responded said they provide no funding for gifted education. Thirty-two states (of the 40 from which officials responded) mandate gifted and talented education, but only four states provide funding for these programs.

The differences between Pennsylvania and Connecticut are a good, albeit unfortunate, reflection of the status of gifted education. The Supreme Court of Pennsylvania affirmed that pursuant to a commonwealth statute and regulations mandating an IEP for each gifted student, a child had the right to gifted education. Conversely, the Supreme Court of Connecticut affirmed that the state constitution did not confer the right to special programming for a child who was gifted. Given the inconsistencies across the states, many observers have advocated for a federal law similar to IDEA.

The Jacob K. Javits Gifted and Talented Students Education Act—the only federal law addressing gifted education that’s now incorporated into the Every Student Succeeds Act—does provide block grants to states, but federal support is inadequate. Javits was almost cut, but after pressure from advocates, it was funded at $12 million for fiscal year 2019. One area of focus of Javits is to use resources to identify and serve traditionally underrepresented students in gifted and talented programs, including children of color as well as those who are economically disadvantaged, English-language learners, and disabled people. The goal is to help reduce gaps in achievement while encouraging the establishment of equal education opportunities for all students.

Disproportional Underrepresentation

The Office for Civil Rights (OCR) is charged with ensuring that those people serving children who are gifted and talented must operate in nondiscriminatory manners. For example, under Title VI, which prohibits discrimination based on race, color, or national origin, a complaint might include allegations related to assignments for gifted and talented programs. In 2018, three civil rights groups challenged the current administration’s approach to civil rights complaints, filing a suit alleging that the OCR is limiting its investigation of some discrimination complaints.

In addition to OCR complaints, some parents turn to litigation. As reflected by a case from Illinois, there is a dearth of litigation on gifted education. In McFadden v. Board of Education for Illinois School District U-46, a federal trial court held that the school board’s gifted program violated the rights of students of color due to its discriminatory testing mechanism and other deficiencies. The court also ruled that the program violated both state law and the federal equal protection clause because it was not narrowly tailored to further a compelling governmental interest, as Latinx students were placed in a special program based solely on their cultural identities. Other cases challenge eligibility and admissions requirements of gifted programs.

Recommendations

  1. In light of the need to garner greater support for programming for students who are gifted, school leaders may wish to consider the following recommendations in seeking to better serve these children. Advocates—including principals—should work to:
  2. Ensure legislative action at the national level, because doing so may have the same kind of impact as the IDEA.
  3. Provide professional development programs to assist school personnel to help them identify and assess gifted students so they’re able to offer these youths the educational experiences that allow them to reach their full potential.
  4. Encourage state legislatures—working in conjunction with their departments of education and schools of education—to organize their efforts to meet the needs of all gifted students, particularly by providing local school boards with funding.
  5. Suggest that schools of education do more to prepare educators to recognize students who are gifted.
  6. Include additional measures to identify giftedness beyond standardized test scores that consider multiple intelligences.
  7. Include as many children as possible when testing to identify gifted students.
  8. Not assume that children with IEPs or Section 504 plans are ineligible for gifted and talented programs; many students who are gifted also have disabilities.

Suzanne E. Eckes, JD, PhD, is a professor at Indiana University in Bloomington, IN. Charles J. Russo, JD, EdD, is the Joseph Panzer Chair in Education and an adjunct professor of law at the University of Dayton in Dayton, OH.

References

Broadley v. Bd. of Educ. of City of Meriden, 639 A.2d 502 (Conn. 1994).

Card, D., & Giuliano, L. (Aug. 15, 2019). Can universal screening increase the representation of low income and minority students in gifted education? The National Bureau of Economic Research. Retrieved from www.nber.org/papers/w21519.

Centennial Sch. Dist. v. Commonwealth Department of Education, 539 A.2d 785 (Pa. 1988).

Eckes, S., & Russo, C. (under review). Legal and policy issues in gifted education. In Callahan, C., & Plucker, J. (3rd Ed.) Critical Issues and Practices in Gifted Education: What the Research Says. Prufrock Press.

Ford, D., & Russo, C. (2015). No child left behind … unless a student is gifted and of color: Reflections on the need to meet the educational needs of the gifted. The Journal of Law in Society, 15, 213-239.

McFadden v. Bd. of Educ. for Ill. Sch. Dist. U-46, 984 F.Supp.2d 882 (N.D. Ill. 2013).

National Association for Gifted Children and the Council of State Directors of Programs for the Gifted. “2014–15 State of the States in Gifted Education.” Retrieved from www.nagc.org/resources-publications/gifted-state/2014-2015-state-states-gifted-education.

Nat’l Fed’n of the Blind et al. v. U.S. Dep’t of Educ., 1:18-cv-01568-tdc (2018). Retrieved from www.policyinsider.org/2018/06/civil-rights-groups-sue-us-department-of-education-over-ocr-investigation-changes.

R.B. v. Dep’t of Educ. of City of N.Y., 981 N.Y.S.2d 413 (N.Y. App. Div. 2014).

Shapiro, E. (Aug. 27, 2019). Desegregation plan: Eliminate all gifted programs in New York. The New York Times. Retrieved from www.nytimes.com/2019/08/26/nyregion/gifted-programs-nyc-desegregation.