Few areas of education are as controversial as gifted education. Programs for children who are gifted have been present in varying forms for many years. The first American programs for gifted children were established in the late 1800s, with such programming not uncommon in cities by the early 1900s. These often-limited efforts were greatly expanded in response to the launching of Sputnik in 1957, most notably via the National Defense Education Act in 1958.
State and Federal Actions
Gifted education, like most other aspects of American public education, was seen primarily as a state responsibility for most of the previous century. The first major federal study on gifted education, the “Marland Report,” produced in 1972, included a definition that became the basis for many state definitions: Gifted students exhibit general intellectual ability, specific academic aptitude, creative or productive thinking, leadership ability, visual and performing arts aptitude, and/or psychomotor ability. This definition helped to expand the range of possible areas of giftedness, which had previously been quite limited.
Over the next 20 years, the field of gifted education was seriously impacted by the economic recessions that occurred throughout the 1970s and 1980s, as well as the observation that minority and poor students are often severely underrepresented in gifted programs. Partially as a result of these developments, Congress passed the Jacob K. Javits Gifted and Talented Students Education Act in 1988. The Javits Act funded a research center on gifted students and several local and statewide demonstration projects to increase the nation’s capacity to provide services to underserved gifted students. However, the Javits Act is small by federal standards (e.g., peaking at just over $11 million dollars from 2002–2005) and is routinely threatened with elimination.
In 1993, the U.S. Department of Education issued National Excellence: A Case for Developing America’s Talent. This report included the following definition, which is incorporated in the No Child Left Behind Act (2002), within which the Javits Act is included:
Children and youth with outstanding talent perform or show the potential for performing at remarkably high levels of accomplishment when compared with others of their age, experience, or environment. These children and youth exhibit high performance capability in intellectual, creative, and/or artistic areas, possess an unusual leadership capacity, or excel in specific academic fields. (p. 26)
The lack of a strong federal role results in most relevant legislation occurring at the state level. As might have been expected, this situation led to a wide range of policies: In some states, identification and programming for gifted students is mandated; in others, only identification is mandated; in some, neither is mandated. Definitions of giftedness vary from state to state, as do programming requirements and funding. It is within this context that legal issues within gifted education have developed.
The most interesting characteristic of case law regarding gifted education is its limited size, which may be due to parental perceptions that the legal system moves too slowly to rule about a specific issue in a specific grade, which is the focus of most parental concerns about gifted education. Some principal themes are discussed here.
Case law in gifted education focuses primarily on requests for special services for gifted students, such as early entrance to individualized programs; parents are the plaintiffs. These rulings tend to favor school boards, even in states with strong mandates for gifted education services. In general, since even states with strong programming mandates delegate the final decisions about the types of programming and access to it to the district level, local boards rarely face challenges from parents that they violated state laws with regard to the delivery of gifted education.
In like fashion, rulings in cases involving students who are exceptional in more than one area also tend to favor school boards. Some legal scholars believe this may be due to a lack of judicial understanding of the complex issues involved with students with multiple exceptionalities. These issues are qualitatively different from those of gifted students without exceptionalities due to the role of the Individuals with Disabilities Education Act (IDEA) (2005) and relevant state special education statutes.
A handful of cases have involved disputes over the qualifications of teachers who have been hired to work with students who are gifted. In most of these cases, the arbitrators and courts ruled that teachers with special preparation, especially credentials, in teaching students who are gifted is a more appropriate educator in a gifted program than one lacking such background, credentialing, and/or experience. Even so, these observations are based on a limited number of cases and should be interpreted with caution.
Finally, the consensus in the legal literature on gifted education is that disputes are best resolved using the least contentious forms of dispute resolution, such as mediation. More simply, many believe that direct communication between parents and educators can often address many parents’ concerns about the education (or lack thereof) for their gifted children, with minimal dispute. Still, this ideal is often difficult to realize.
The presence of the Javits Act notwithstanding, proponents have had only moderate progress in identifying and serving minority and poor students who are gifted students. Questions still remain about whether the underrepresentation is due to access, inappropriate identification procedures, or preparation. Given the lack of progress in this area, it is surprising that legal activity about minority underrepresentation has not been more pronounced.
As tempting as it may be to draw parallels from special education case law, this is not practical for at least two reasons. First, the presence of the federal mandate for special education services contrasts sharply with the weak federal legislation on gifted education. Gifted education has been added to some federal special education statutes, but the impact is not yet noticeable. Second, the philosophical foundations for gifted education are relatively underdeveloped compared with those for special education: For example, the concept of a free and appropriate public education (FAPE) has been widely studied and applied to special education under the IDEA, but analyses of the appropriateness of applying FAPE to gifted students are few and far between. Research on the effectiveness of gifted programming is also rather thin, providing advocates with little data with which to argue for expanded services. In addition, the lack of consensus on definitions of giftedness stands in stark contrast to, for example, the definitions of various categories of mental retardation found in the Diagnostic and Statistical Manual of Mental Disorders.
One of the most significant recent developments in education is the growth of nontraditional educational options, including charter schools, magnet schools, voucher programs, and homeschooling. The legal issues surrounding the education of gifted students attending, or attempting to attend, various nontraditional schools and programs will be a hot topic in coming years.
The growth of school accountability systems, which focus attention on students’ progress toward meeting state standards, puts the emphasis on achieving minimum competency. Insofar as students who already meet the standards are seen as successful, school officials have little incentive to serve the needs of the highest- achieving students. As such, the national media and politicians are starting to react to increasing grassroots pressure to address this problem.
In light of the lack of standard definitions and identification practices, piecemeal legislation and policy, and thin philosophical and empirical bases, it should be expected that legal disputes about gifted education will occur. Until advocates for the gifted address these serious weaknesses within their field, the casework on gifted education will continue to grow, with little palpable progress in providing gifted education to all deserving students.
Jonathan A. Plucker
- Eckes, S. E., & Plucker, J. (2005). Charter schools and gifted education: Legal obligations. Journal of Law and Education, 34, 421–436.
- Karnes, F. A., & Marquardt, R. (2000). Gifted children and legal issues: An update. Scottsdale, AZ: Gifted Psychology Press.
- Marland, S. P., Jr. (1972). Education of the gifted and talented: Report to the Congress of the United States by the U.S. Commissioner of Education and background papers submitted to the U.S. Office of Education (2 vols.). Washington, DC: U.S. Government Printing Office. (Government Documents Y4.L 11/2: G36)
- Russo, C. J., Harris, J. J., & Ford, D. Y. (1996). Gifted education and the Law: A right, privilege, or superfluous? Roeper Review, 18, 179–182.
- U.S. Department of Education, Office of Educational Research and Improvement. (1993). National excellence: A case for developing America’s talent. Washington, DC: U.S. Government Printing Office.
- Zirkel, P. (2003). The law on gifted education. Storrs: University of Connecticut, National Research Center on the Gifted and Talented.
- Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq.
- No Child Left Behind Act, 20 U.S.C. §§ 6301 et seq. (2002).