What’s a Free and “Appropriate” Education for Gifted kids?

One of the key provisions of Special Education law (both IDEA and Section 504) is the idea of FAPE, the right of each child to a Free and Appropriate Education. “Free” has a clear meaning. “Appropriate,” on the other hand, is in the eye of the beholder. As I’m going through my Special Education Advocate training, I’m trying to square what I know about gifted kids with what’s possible under the law, and I’m getting more and more discouraged. Let me show you some of this conflicting information:

  • This essay, for example. The author, Jonathan Wai, is a researcher and writer for the Duke Talent Identification Program, colloquially known in gifted circles as Duke TIP. Wai wants us to recognize that intellectually gifted kids–like gifted athletes, gifted musicians, gifted artists–should be supported in reaching their full potential: “If we reframe how we think about equity as helping each student learn at the pace at which they are naturally functioning — a free, appropriate education for all, and not just for individuals with disabilities — then this conceptualization of equity, in fact, also promotes excellence.” Wai is right: we celebrate extreme athletic gifts (Olympics and other competitions, which, let’s face it, are over-populated with younger people), and we fetishize musical prodigies (America’s got Talent, etc.). As a general rule, however, zooming ahead in school is not an option. When my son was in a magnet school, where all the kids were working at least a grade ahead and he was still bored, the school district told us that double promotion (being in a magnet school + grade skipping) was not allowed. But this is an opinion piece about the values of acceleration. What about research?
  • I’m making my way through the landmark report “A Nation Deceived: How America Holds Back its Brightest Students” (2004), which you can download here. I’m not a fan of the occasional thread of American Exceptionalism in the report (“we have to recapture the lost greatness of America, etc!!”), but I completely agree with one of the essential tenets: “educational equity does not mean educational sameness.” It seems that as a country we’ve become more accustomed to the idea that kids with learning disabilities need a different approach to education in order to have equal access to learning. (This is good!) We’re ready with math and reading intervention programs and we have more and more dyslexia services, for example. But we’re not yet comfortable with “different approach” meaning “accelerated.” (Here’s the part where I confess that I skipped 1st grade, and while I did struggle a bit with the social demands of being with older kids, I also was still at the head of my class with very little effort until I finally hit rigorous classes in high school. For most of elementary school and middle school, I was still bored. But I wasn’t in a public school system until 10th grade, so that’s a different discussion altogether.)
  • There’s no federal budget money for gifted programs and no oversight when it comes to gifted education. None. And according to the Nation Association for Gifted Children, only 25 states provided funds to school districts for gifted education in the 2013-12014 school year. Provisions for gifted education come downs to states, and sometimes to districts. In Tennessee (and maybe in other states; I don’t know) “giftedness” is considered a disability. I made a lot of jokes about this at first, but now it makes sense to me. Qualifying “gifted” kids as “disabled” kids at least affords them access to special education provisions. My son’s first IEP (once he finally had it in place after a long battle!) included “gifted” as his third learning disability, and allowed for enrichment and curricular compaction. This means more burden placed on teachers, who must master differentiation in the classroom, and teachers dealing with gifted kids are not necessarily required to be trained in gifted education. Heck, even the school psychologists who test kids for giftedness aren’t necessarily well trained. (See, for example, this confession by a former school psychologist. Want more reports about gifted education? Here’s a collection.)
  • Even in school districts where there is solid provision for gifted education, there may be little recognition that gifted kids also might need special education services. These are the twice-exceptional kids like my son, whose numbers are very likely underreported and under-anticipated. See, for example, this report by Karen B. Rogers about a 5-year study of gifted / 2e kids funded by the government. The report is rich, and you should read the whole thing, but here are some important bits for me: (1) 2e kids are under identified because there’s no established best practice for where to find them; (2) whereas current research, this research found an average of 19% of gifted learners also have learning disabilitiesBy contrast, only an estimated 5% of school-age children have learning disabilities. (See “The State of Learning Disabilities,” 2014, put out by the National Center for Learning Disabilities.) I’ve recently started meeting with a handful of other parents who have 2e kids in our district. Before our second meeting, I sent invitations to the head teacher in the gifted area in 2 schools, asking them to share my contact information with parents of 2e kids. They knew no such parents. So in 2 schools, both with solid gifted programs, and together totaling about 1,700 kids, my son was the only 2e kid? I find that hard to believe. My guess is that there are 2e kids walking the halls who haven’t been identified. And our parent group has four members, four parents from a district of over 47,000 students. There are more 2e kids out there, I’m sure of it.

There’s so much more to read and think about. But here’s what I’ve learned this week in my Advocacy training: FAPE tends to be upheld in court cases as a threshold of opportunity, not as a bounty of best-practice options. The hot button conversation right now is about how to measure a child’s progress. Is only “some educational progress” ok as a marker of FAPE? Or should the child make “meaningful significant progress” as a marker of FAPE? Accepting “some educational progress” as a marker of FAPE upholds the idea of FAPE as a threshold of opportunity. So if your gifted kid is getting medium grades because xie isn’t sufficiently challenged, this may not be enough to challenge FAPE: your child’s grades–despite what you know about your child!–show “some educational progress.” (A 4th circuit court just handed down a decision about this, upholding a 1982 Supreme Court decision that FAPE is only a threshold of access. See O.S. by Michael S. and Amy S. v. Fairfax County Sch. Bd., 115 LRP 50343, Oct. 19, 2015.) All of these reports about the needs for gifted education and best-practice documents about how to do it well mean little if our judicial system upholds “appropriate” to mean “meh.” And there’s more: another landmark Supreme Court case (Schaffer v. Weast, 2005) placed the burden of proof on parents to show that their child’s placement was not “free and appropriate.” This is bad news for parents because parents don’t tend to have detailed knowledge about Special Education law. So there has been increased pressure for outside testing and expert witnesses. And wouldn’t you know it, another Supreme Court case the next year (Arlington v Murphy, 2006) held that schools were not responsible for paying for the costs of such experts, even if  / when parents won a case. So the upshot is this: districts won’t tell you your rights and you have to find out about them yourself; if you want to hire an expert to prove that your kid needs special education, you will likely have to bear the brunt of those costs; and if what your kids needs is gifted education, there are few provisions in place to provide this help.

So what’s a free and appropriate education for gifted kids? I don’t know. If you find it, please tell me.

*Note: I am not an attorney. I’m not even a fully-trained advocate. My blogs are not intended as legal advice. If you need help advocating for your child(ren), contact COPAA for an attorney or advocate near you.


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