According to the United States Department of Education (“ED”), gifted and talented children have outstanding abilities and are capable of high performance, and, as such, they need differentiated educational programs and services in order to realize their contribution to self and society.
Having a separate program aside from the regular class for gifted and talented students can provide them with a more challenging and stimulating environment that is tailored to their unique needs and abilities. Examples of what gifted and talented programs may offer include:
- A more advanced curriculum;
- A faster pace environment for learning and progressing through their education; and/or
- An environment filled with other gifted students in which the students can learn from one another and be exposed to a wider range of ideas.
It is important to note that separate programs aside from regular classes that provide differentiated instruction within the regular classroom can also be effective in meeting the specific needs of the gifted students.
In other words, without a separate program, the students may not have their educational needs met. However, problems may arise when the demand for these separate gifted and talented programs outweighs the number of spaces that the programs offer and are able to accommodate. In these cases, a child that has been determined to be gifted and talented may have their educational needs unmet.
What Determines Whether a Child Is Gifted or Talented?
As far as what determines whether or not a child is gifted or talented, there is no federal test for determining whether a child is gifted or talented. Instead, the determination of whether or not a child is talented or gifted is generally made in accordance with the state laws and regulations in the state in which the child resides.
Generally speaking, schools may freely set their own standards, in addition to the state standards for determining gifted or talented children, regarding what constitutes a child being deemed gifted or talented within their school. Importantly, these additional standards must not violate the standards set by the state.
As long as the determination for determining whether a child is gifted or talented is based on some objective method, such as the use of a standardized test, then the standard will be difficult to challenge.
How Is Gifted or Talented Defined?
Once again, states and schools are allowed to provide their own definitions concerning gifted or talented, as well as their own criteria for identifying children who are considered to be gifted or talented.
One example of a state that has their own definition of gifted and talented students is New York. In New York, gifted students are defined as gifted pupils who “show evidence of high performance capability and exceptional potential in areas such as general intellectual ability, special academic aptitude, and outstanding ability in visual and performing arts.”
However, not every state has specific legislation that defines gifted or talented students or mandates the identification of students who are gifted or talented. In fact, as of 2024 only 32 states have policies regarding gifted or talented students, whereas in 12 states policies and procedures related to gifted or talented programs are set by the local school district or local education agencies.
There are also organizations that provide definitions regarding who is considered to be gifted or talented. The National Association for Gifted Children (“NAGC”) is a non-profit independent organization that is not affiliated with the federal government which focuses on the needs of gifted and talented children.
According to the NAGC, gifted and talented students are students who perform, or have the capability to perform, at higher levels compared to others of the same age, experience, and environment. These students then require modification to their educational experience in order to learn and realize their full potential. The NAGC also provides that gifted and talented students may come from all racial, ethnic, and cultural populations, as well as all economic strata.
It is important to note that the federal government does not provide funding directly to local school districts for programs and services related to gifted or talented students. In fact, the only federal program for gifted or talented children is the Jacob K. Javits Gifted and Talented Students Education Act, which focuses on identifying and serving students who are traditionally under-represented in gifted and talented programs.
Examples of such students include:
- Minority students;
- Students from low-income backgrounds;
- Students who are English language learners; and/or
- Children with disabilities.
The purpose of this federal program is to help reduce gaps in achievement between under-represented students and to encourage the establishment of equal educational opportunities for all students within the United States.
What Do I Need to Show to Assert My Child’s Right to Participate?
In general, in order for a parent to assert their child’s right to participate in a state or locally run gifted or talented education program, the parent must demonstrate that:
- State law actually provides for the special gifted or talented programs that their child is entitled to participate in;
- Their child meets the definition of talented or gifted as established by the laws and regulations put forth by the state or school jurisdiction; and
- There has been evidence of discrimination or unequal treatment by the school in their selection of children for the talented or gifted education programs.
It is important to note that a parent may first be required to attend an administrative hearing, in order to assert their claim against the school. Examples of administrative remedies provided by a school may include reviewing their application(s) or holding a parent-teacher meeting regarding their child’s educational options.
In general, a parent must first exhaust all of the possible administrative remedies prior to being able to sue the school. Once a parent has exhausted all of their administrative options, they will generally be given a right to sue letter which allows them to pursue a civil lawsuit against the school for the discrimination or unequal treatment of their child.
Each state’s requirements for filing such a complaint against a school district or school will vary. For instance, some states require a notice of claims, or a statement that identifies the legal cause of action for the complaint against the school, such as discrimination involving talented or gifted education programs.
Must a School Provide These Special Programs?
In general, no, a school is not obligated to provide special programs regarding gifted or talented students. Once again, most states make it optional for schools to provide special education programs tailored to gifted or talented children.
Even when there is a state obligation to provide these special programs, the depth and structure of these programs are primarily determined by the school or school district themselves and may be very limited in scope.
Is There a Constitutional Right to These Special Programs?
Importantly, constitutional laws do regulate the federal, state, and local governments in the United States, which set the legal parameters for what the government can and cannot do.
Further, each state in the United States also has its own state constitution, which governs the citizens of their state. However, it is important to note that the federal Constitution does not explicitly mention the right to education.
The United States Constitution, specifically The 14th Amendment, has however had a significant impact on protecting individual rights in public elementary and secondary education. The Equal Protection Clause of the 14th Amendment provides that a state may not “deny to any person within its jurisdiction the equal protection of the laws.” These laws include laws regarding gifted or talented education programs.
As such, if a school has rules and regulations regarding educational programs for gifted students, those rules and regulations must be applied equally to all students. If the rules are not applied equally, then a student that suffers harm as a result of the unequal treatment or discrimination may hold them liable for unequal treatment under constitutional laws.
Do I Need an Attorney Experienced in Education and Schools?
As can be seen, the laws surrounding education and schools can often be complex and require a thorough understanding of administrative law. As such, if you are experiencing a problem related to talented or gifted education programs, it is in your best interests to consult an experienced government attorney.
An experienced attorney can help you in dealing with school districts, understanding your school district’s law on talented or gifted education programs, as well as help you determine if you have a valid legal action against the school or school district.
Additionally, an attorney can also help you seek administrative remedies, and if those remedies are insufficient, they can also help you initiate a private lawsuit against the school or school district. Finally, an attorney can also represent you in court, as necessary.
