Special Focus

An Overview of Legal Issues in Gifted Education

Volume 2 / Issue 1 / Fall 2001

Only 30 states have a full or partial mandate for identification and instructional programming for the gifted. While the Jacob K. Javits Gifted and Talented Student Act of 1994 funds projects and research, it does not protect the legal rights of students seeking gifted services.The Individuals with Disabilities Education Act extensively protects persons with disabilities, but it does not protect the gifted, either. Since no federal mandate for gifted children and youth exists, individual states have jurisdiction over their education.

The Office for Civil Rights (OCR) in the U.S. Department of Education is responsible for protecting the educational rights of students, including the gifted, who participate in activities and programs receiving educational funding. This protection must be offered because discrimination against the gifted (as well as on the basis of national origin, race, color, gender, or disability) is illegal. The OCR has been very helpful in monitoring and resolving issues of discrimination. From 1985 to 1991, 48 rulings involved the gifted. African American students were the focus of most of the rulings. From 1992 to 1995, 38 additional rulings focused on identification and admission to programs.

It is best to solve a dispute within the school system, before reaching the courts.
—Frances A. Karnes

The American Civil Liberties Union (ACLU) is also interested in legal issues and the gifted. In 1999 a lawsuit was filed against the Inglewood, California, school district for not offering as many ad-vanced placement classes in lower socioeconomic schools serving African American and Latino students.

Resolving Disputes

Families that disagree with how their schools are educating their gifted children can pursue four steps: negotiation, mediation, due process, and court cases.

Negotiation

Negotiation starts at the point of the dispute. The teacher and the principal are the persons to contact for disputes arising in the classroom. For grievances focusing on screening and identification, the school psychologist and/or the program coordinator for the gifted is usually the appropriate contact.

Use these principles when settling a dispute:

• Know the facts regarding local and state policies and procedures.
• Maintain accurate records of all telephone conversations, meetings, and the like. Document everything through written correspondence with the persons involved.
• Follow the line of administration for resolving a dispute. Parent handbooks and local, county, or parish board guidelines often provide general policies.
• Keep detailed written records, since some issues take a long time to resolve.
• Know your options beyond the school board level. If a local solution cannot be found, mediation is the next level.

Mediation

Mediation, a right in gifted education in only 21 states, is the most amicable, informal method of settling a dispute. It involves minimal stress, energy, and financial support. The goal is a written formal agreement signed by both parties. The state department of education usually appoints the mediator. Detailed information on the selection and training of mediators, meeting procedures, and examples of well- and poorly written mediation arguments are available in Gifted Children and the Law, by Frances A. Karnes and Ronald G. Marquardt (Gifted Psychology Press, 1991). When mediation is not available or an agreement is not possible, due process should be sought.

Due Process

Under general provisions or those that are specific to the gifted, 28 states provide due process. Unlike mediation, due process takes considerable time, exacts an emotional toll, and is expensive, and all decisions as well as the writing of the report are the sole responsibility of the hearing officer. This officer must submit the report to the state department of education and to all involved parties within a designated amount of time, usually 45 days.

Provisions for due process differ from state to state; the selection and training of hearing officers, jurisdictions, and appeal routes all vary. However, all states require written notice to both parties, parental choice as to whether the hearing is closed or open, the participation of the child, and the presence of attorneys and witnesses.

Court Cases

Even more so than due process, court cases cost all parties time, expense, and emotional effort. They may occur at the local, state, or federal level, depending on the issue, and the types of cases vary. They may concern school policies, such as busing, teacher transfer and seniority, and certification. They may address specific educational issues, including early entrance to public schools and colleges and admissions to specialized programs for the gifted, which would include race, gender, and curriculum modification. Related areas of dispute are domestic cases, tort liability in the school and in summer residential programs, fraud, and misrepresentation.
—Frances A. Karnes, Ph.D.

Frances A. Karnes is professor of special education and director of the Frances A. Karnes Center for Gifted Studies at the University of Southern Mississippi.