ERIC Identifier: ED415590
Publication Date: 1997-02-00
Author: Karnes, Frances A. - Marquardt, Ronald
ERIC Clearinghouse on Disabilities and Gifted Education Reston VA.
Know Your Legal Rights in Gifted Education. ERIC Digest E541.
Gifted preschool, elementary, and secondary school children have very limited
protections under state and federal laws. By contrast, children and adults with
disabilities have, under federal statute and in turn under state law accepting
federal provisions, comprehensive protections in the following areas not yet
applicable to the gifted: identification for screening and program admission or
eligibility purposes, educational or other institutional and related services,
employment policies and practices, architectural barriers in and about public
buildings and transportation facilities, and other civil rights protections.
Parents, educators, and other concerned adults involved with gifted children
should know the legal framework in which the education and related services are
set forth. The Jacob K. Javits Gifted and Talented Students Act of 1994 was not
established by Congress to protect the legal rights of gifted children, but
rather to provide for model programs and projects. In contrast, the Individuals
with Disabilities Education Act of 1997 does give extensive legal rights to
persons with disabilities.
Without a federal law to protect the legal rights of gifted children, the
responsibility for such mandates rests with the states. Approximately 30 states
have a mandate to serve gifted children, while the remaining ones have
permissive legislation (Council of State Directors of Programs for the Gifted,
1994). The National Association for Gifted Children has written a position paper
supporting the concept that each state should mandate by law educational
opportunities for gifted children.
For quick and authentic references, advocates for these students must have on
hand the appropriate state and local statutes and regulations. State law usually
defines the types of gifted children who must or may be served with state funds,
and the educational provisions allowable. In a few states, the state boards of
education enacted a state definition and the kinds and types of services to be
provided with state revenues. Usually, the function of this body is to approve
the rules and regulations or standards written by the state department of
education based on the implementation of the law passed by the legislature.
In addition, the local, county, or parish school board may have passed
specific implementations within its jurisdiction. To assure services to all
eligible students and to maximize the probability that a dispute will be
resolved productively, there are channels to follow: negotiation, mediation, due
process, and court cases (Karnes & Marquardt, 1993). Parents of gifted
children have, in personal success stories, documented these processes with a
variety of educational issues (Karnes & Marquardt, 1991).
When disputes arise within a school district
over screening and identification, programming options, or other areas, the
parties involved should know the steps to resolve an issue within that
jurisdiction. Typically, the negotiation begins at the level at which the
dispute arose. An issue on screening and identification is usually within the
job description of the person responsible for assessment and testing. For
classroom procedures and curriculum decisions, the teacher and principal are the
appropriate parties with whom to discuss the concern. Within most districts, the
next level for seeking a solution to an issue is the superintendent, then the
board of education.
For person(s) who are dissatisfied and need to resolve a dispute, there are
several proven practices that should be followed:
Accurate records must be maintained at each level. Meetings and decisions or
lack thereof must be documented via written correspondence.
Be informed about local and state rules, regulations, and laws, and do not
depend on hearsay.
Policies and procedures for the exact route for resolving an issue at this level
can be found in the minutes of the local school board or in a district handbook.
Keep detailed records because some issues may take along time to resolve.
If an agreement cannot be reached at the local district level, then mediation
may be the next step.
The right to mediation through state statute
and/or state board of education policy is available to those involved with
gifted education in approximately 10 states (Karnes & Marquardt, 1991).
Mediation provides an avenue to resolve an issue in an informal, amicable manner
with the guidance of a trained mediator; it should involve a minimum of time,
financial support, and stress. The goal of mediation is to produce a written
formal document, signed by all parties, that settles the issue. The mediator is
key to the process and is usually appointed by the state department of education
or another state agency. He/she must have excellent interpersonal skills and
communication techniques. High-level writing skills are necessary to record each
step needed in the remedy. The selection and training of mediators, procedures
for the meeting, and examples of poorly and well-written mediation agreements
are described by Karnes and Marquardt (1991). When mediation is not a state
provision or when an agreement cannot be reached, procedural due process is
usually the next step.
It is estimated that 28 states allow procedural
due process for gifted children under the provisions of laws or regulations in
special education applied to or specified for children with disabilities or
under general provision (Coleman, Gallagher, & Foster, 1994).
Due process is very different from mediation. The costs of time, money, and
emotional stress are greater. All decisions are the responsibility of the
hearing officer. The report is written solely by the person conducting the
hearing, and all aspects of the findings must be followed unless one of the
parties appeals to the next highest level. The most common point of appeal is
the chief state school officer or a person designated within the department of
The provisions for due process pertaining to gifted children vary from state
to state. Variations appear in the level of the initial hearing, the selection
and training of the hearing officers, jurisdiction, and the route of appeal. In
the analysis of due process across states, there are also some shared common
points: written prior notice to both parties about the time and date of the
hearing, provisions for electronic or written transcripts of the hearing,
parental choice about whether the hearing is open or closed, allowing the
student in question to attend, opportunity for attorneys to be in attendance,
and acceptance of expert witnesses for both sides to give testimony. After
careful analysis of the due process procedures in all states and noting some
irregularity, Karnes and Marquardt (1991) offered a model that avoids a conflict
of interest in the process.
Unfortunately, when conflicts cannot be
resolved through negotiation, mediation, or due process, the next step is the
courts, either state or federal, depending on the focus of the issue. The
authors do not advocate going to court with issues in gifted education because
resolutions at lower levels are more practical and efficient. Protracted court
cases can be very costly, emotionally wrenching, and adversarial.
In the analysis of court cases, Karnes and Marquardt (1991) found that the
issues fall into several categories such as educational opportunities, school
policies, tort liability, divorce, etc. Early entrance to public school at
different levels, admission to gifted programs, curriculum modification, and
issues of race and gender are the general issues embodied in the category of
educational opportunities (Marquardt & Karnes, 1989). School policy
conflicts include busing, teacher seniority, transfer, and certification. The
latter have been increasingly a matter for the courts to decide (Karnes &
Marquardt, 1995). Tort liability issues involve accidents in the school and in
summer residential programs for gifted children. The issues of custody and
payments for education are involved in divorce cases. In a case still pending,
the idea of fraud and misrepresentation was raised in what had been promised as
gifted education and the delivery of services. This could be a recurring issue.
For certain types of gifted youth, there are protections under federal law.
The Office for Civil Rights in the United States Department of Education has the
responsibility to protect the educational rights of students in programs or
activities receiving federal support. Equal opportunities to participate must be
offered to children and youth regardless of age, disability, gender, national
origin, race, or color. A review of the letters of findings from 1985-1991 in
response to complaints revealed 48 rulings involving gifted and talented
students. The majority of the rulings focused on African-American students,
although other areas including disabilities and students of various native
origins were found (Marquardt & Karnes, 1994).
The Legal Issues Network (LIN) was developed at the University of Southern
Mississippi to help advocates of gifted children and others. All state
organizations in gifted education have been invited to participate in LIN by
developing a committee to examine state laws, rules, and regulations; due
process hearings; and court cases pertaining to gifted children. The LIN also
provides a newsletter to the state organizations.
Coleman, M. R., Gallagher, J. J., & Foster,
A. (1994). UPDATED REPORT ON STATE POLICIES RELATED TO THE IDENTIFICATION OF
GIFTED STUDENTS. Chapel Hill, NC: Gifted Education Policy Studies Program.
THE 1994 STATE OF THE STATES GIFTED AND TALENTED EDUCATION REPORT. Austin TX:
Council of State Directors of Programs for the Gifted.
Karnes, F. A. & Marquardt, R. G. (1991). GIFTED CHILDREN AND THE LAW:
MEDIATION, DUE PROCESS AND COURT CASES. Dayton, OH: Ohio Psychology Press.
Karnes, F. A. & Marquardt, R. G. (1991). GIFTED CHILDREN AND LEGAL ISSUES
IN EDUCATION: PARENTS' STORIES OF HOPE. Dayton, OH: Ohio Psychology Press.
Karnes, F. A., & Marquardt, R. G. (1993). Pathways to solutions. GIFTED
CHILD TODAY, 16, 38-44.
Karnes, F. A., & Marquardt, R. G. (1995). Gifted education and the
courts: Teacher certification and employment decisions. ROEPER REVIEW, 6(1),
Mandated educational opportunities for gifted and talented students.
Washington, DC: NATIONAL ASSOCIATION FOR GIFTED CHILDREN.
Marquardt, R. G., & Karnes, F. A. (1989). The courts and gifted
education. WEST'S EDUCATION LAW REPORTER, 50, 9-14. Marquardt, R. G., &
Karnes, F. A. (1994). Gifted education and discrimination: The role of the
Office for Civil Rights. JOURNAL FOR THE EDUCATION OF THE GIFTED, 18(1), 87-94.