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In 2021, approximately 6% of all K–12 public school students were identified for gifted programming (National Association for Gifted Children, n.d.). However, scholars have long argued that millions of additional students qualify but either go unidentified, or their schools do not offer gifted programming.

Identifying students for advanced learning opportunities is challenging because the definition of “giftedness” varies widely, and many districts rely on teacher or caregiver nominations to identify students. These approaches can unintentionally disadvantage students whose talents may not align with traditional markers of giftedness or who have inequitable access to the referral process. To remedy this, educators are encouraged to focus on the services offered so that they can help students identify and use their talents rather than simply assigning a gifted label (Sternberg, 2021). In secondary schools, these advanced learning opportunities include honors, Advanced Placement (AP), International Baccalaureate (IB), and dual credit (college) courses.

Students from low-income backgrounds, racially minoritized groups, or those who are multilingual learners are significantly underrepresented in these courses. The reason may be because they were not identified for gifted programming in elementary schools. But it is not too late for secondary school leaders to have a positive impact. Addressing this disparity is a professional and ethical responsibility, and it also raises legal concerns.

Legal Issues

For decades, courts have determined that it is legal for schools to group students based on ability or achievement. However, legal concerns persist that schools may be segregating students by socioeconomic status, race, disability, and language proficiency by tracking students based on ability (Eckes & Decker, in press). Additionally, lawsuits have claimed that intelligence (IQ) and standardized tests used in gifted identification were racially and culturally biased (Plucker et al., 2022).

Federal civil rights laws provide critical protection to promote equitable access to gifted programs. As such, the civil rights complaint process serves as a meaningful lever to ensure that students do not experience barriers in access. For example, in 2023, the U.S. Department of Education’s Office for Civil Rights (OCR) received a complaint alleging inequitable access to a district’s gifted program, particularly for multilingual learners. The school district reached a resolution agreement before OCR issued its final decision. Specifically, the district agreed to review the handbook, policies, and procedures related to gifted education to promote greater accessibility and clarity about the referral processes and eligibility for gifted programming. The district also committed to providing training to staff regarding the gifted identification and referral process.

Federal civil rights laws provide protections based on race, disability, sex, and language proficiency; however, no federal law guarantees legal entitlements specific to gifted students. As a result, state legislatures, local school boards, and districts must create gifted education policies which means that there is variability across the country. For example, this informative national report, “2022-2023 State of the States in Gifted Education,” identified variation in states’ definitions of gifted, and criteria, methods, or tools for referral/identification processes (Hodges, 2025).

On one hand, the lack of consistent requirements across the U.S. leaves school leaders without universal guidance and they must proactively research their state/local policies. On the other hand, school leaders also have an opportunity to be more involved in evaluating, and potentially improving, policies and practices related to advanced learning opportunities.

Monitoring each school’s gifted programming is vital considering the lawsuits against districts claiming discriminatory practices. For example, when districts have a disproportionately lower percentage of gifted students from low-income backgrounds or racially minoritized groups in comparison to their peers, it could cause the district to be vulnerable to public scrutiny and legal challenges.

To illustrate, in IntegrateNYC, Inc. v. State (2025), the largest school district in the U.S., New York City Public Schools, faced a multi-year legal and political controversy about access to gifted programming. Students and advocacy groups argued that the district’s admissions policies related to advanced learning opportunities, including its gifted program, resulted in racial and socioeconomic status segregation.

Although the state’s highest court ultimately dismissed the case, state legislators and city leaders were called upon to address the inequitable access to gifted education. The city’s newly elected mayor, Zohran Mamdani, claimed that the city’s gifted education was fundamentally flawed for enrolling a disproportionately low number of students of color and from low-income backgrounds. He proposed major changes, including phasing out the program entirely, beginning with stopping gifted identification in kindergarten (Fitzsimmons & Closson, 2025). Critics of Mamdani’s proposal countered that gifted programs can produce substantial academic gains for low-income and racially diverse students and argued that removing these opportunities may worsen achievement gaps rather than close them.

It is unknown what will result, but IntegrateNYC demonstrates that even when cases are dismissed, they can ignite political debates and potential policy changes—validating why school leaders should evaluate their school’s access to advanced learning opportunities for all students.

“Identifying students for advanced learning opportunities is challenging because the definition of ‘giftedness’ varies widely, and many districts rely on teacher or caregiver nominations to identify students.”

5 Recommendations to Improve Access

The following recommendations are based on research examining what leaders did to improve equitable identification in gifted programming.

1. Ensure identification is ongoing. Because students from traditionally marginalized backgrounds may have been missed in earlier identification processes, re-identification efforts should occur in secondary schools. Give special attention to entry points such as at the beginning of middle school and when students are permitted to enroll in honors, AP, IB, and dual-credit courses, or when they are offered any other advanced learning opportunities (e.g., trips to study abroad). Schools should implement universal screening of all students and consider multiple pathways for identification. Although teacher input is valuable, using teacher nominations as the primary gatekeeper can be problematic. Schools should ask caregivers to complete rating scales because they may be better able to recognize traits of giftedness in their children.

2. Build awareness with students and caregivers. Leaders should see students and caregivers as key partners in creating identification systems. Despite being among the most informed and invested advocates, students and caregivers are frequently overlooked. Their involvement is essential for expanding access. Secondary schools should provide all students and caregivers with clear information on how to access advanced learning opportunities, what support exists once students are enrolled in these programs, and the long-term benefits.

School leaders should also host recurring information sessions for students and caregivers at key transition points like elementary-to-middle and middle-to-high school to demystify how gifted education may work at each level and what pathways are available. When advertising the sessions, it should be stressed that students are encouraged to join gifted education at any time (i.e., proactively work to dispel misconceptions that gifted students are only identified in elementary school). In addition to ensuring students and caregivers are informed, they should be invited to provide their input. Leaders should consider the creation of student and caregiver advisory councils.

3. Develop a building-level identification team. Instead of solely assigning gifted identification to district personnel, teams should be created at the building level to make initial identification decisions. Involving educators from various roles and levels improves reliability, validity, and alignment of the identification process with the current advanced learning offerings. Additionally, a decentralized approach enables more equitable identification practices. Having a team of educators collaborate instead of only a few individuals should reduce the potential for bias. Plus, the sheer number of students in large districts could be too great for a district team to make well-informed decisions. The building-level team should have more capacity and information, which should result in better decisions. The team should also participate in annual training to stay current with internal needs and policy changes.

4. Secure a seat at the table where decisions are made. Building-level leaders should aim to influence district-level decision-making. When they have suggestions for district changes in policies or practices, leaders must be prepared with data and student examples. By working closely with district leadership teams, building-level leaders can ensure that the mission and values of gifted education are woven into the broader strategic planning for the entire district.

5. Communicate about gifted education at all levels. Advanced learning opportunities must be highlighted throughout the district. Doing so elevates the visibility of gifted education, aligns it with strategic goals, and fosters sustained systemwide support. Building-level leaders must ensure that all educators (not just those teaching advanced courses) develop a deeper understanding of giftedness. Therefore, district-level leaders should actively share the district’s identification plan with all building-level leaders and teachers, ensuring the information is both accessible and clear.

Janet R. Decker, JD, PhD, is an associate professor of education law at Indiana University and the dissertation chair of Ramey’s study on leadership actions to identify gifted students from low-income backgrounds. Deryck J. Ramey, EdD, is the assistant director of gifted programming for Jeffco Public Schools in Golden, CO. Maria M. Lewis, JD, PhD, is an associate professor of education at Pennsylvania State University. She teaches courses on education law and leadership for equity, diversity, and inclusion.

References

Eckes, S., & Decker, J (in press). Legal rights of school leaders, teachers and students (9th ed.). Pearson.

Fitzsimmons, E., & Closson, T. (2025, October 2). Mamdani says he would phase out N.Y.C. Gifted Program for early grades. The New York Times. nytimes.com/2025/10/02/nyregion/mamdani-schools-gifted-and-talented-program.html

Hodges, J. (2025). 2022-2023 State of the states in gifted education. National Association for Gifted Children and The Council of State Directors of Programs for the Gifted. assets.noviams.com/novi-file-uploads/nagc/ State_of_the_States/2022-23_State_of_States_Repo.pdf

IntegrateNYC, Inc. v. State, 2025 WL 2979535 (N.Y. Oct. 23, 2025).

National Association for Gifted Children (n.d.) Frequently asked questions about gifted education. nagc.org/frequently-asked-questions-about- gifted-education

Plucker, J., Wells, A., & Meyer, M. (2022). Identification policy: Addressing equity and excellence for advanced learners. Gifted Child Today, 45(4), 201211. doi.org/10.1177/10762175221110

Sternberg, R. J. (2021). Identification for utilization, not merely possession, of gifts: What matters is not gifts but rather deployment of gifts. Gifted Education International, 38(3), 354–361. doi.org/10.1177/00169862211037950