Unequal educational opportunities for gifted students: robbing Peter to pay Paul?

• Author: Russo, Charles J.

If an unfriendly foreign power had attempted to impose on America the mediocre education performance that exists today, we might well have viewed it as an act of war. (1)

With these provocative words, the National Commission on Excellence in Education's seminal report, A Nation at Risk: The Imperative for Educational Reform, (2) gave birth to a plethora of reform reports aimed at reinvigorating the quality of American schools. (3) Previously, the Supreme Court's monumental decision in Brown v. Board of Education (4) served as the impetus to propel local and national leaders to take steps to ensure equal educational opportunities for all students by recognizing that "[t]oday, education is perhaps the most important function of state and local governments." (5)

Brown ushered in an era that has led to admirable, yet arguably incomplete, gains in equal educational opportunities for all children, most notably minorities, (6) females, (7) and students with disabilities. (8) However, despite the progress that has been made in the struggle for educational equality, many exceptional students are not being fully served. (9) A Nation at Risk cogently observed that "[o]ver half of the population of gifted students do not match their tested ability with comparable achievement in school." (10) The report further suggested that "most gifted students, for example, may need a curriculum enriched and accelerated beyond the needs of other students of high ability." (11)

Aside from commission reports and rhetoric, little has been done at either the federal or state level to offer appropriate programming for gifted and talented children's (12) educational needs. The poor state of gifted education is reflected in the fact that the most recent federal study on gifted students reports that states spent only two cents out of every one hundred dollars in education on programs for gifted students. (13) It is questionable whether educational leaders and policy makers have taken sufficient steps to meet the educational needs of gifted children.

This Article discusses various challenges in meeting the educational needs of gifted students. Part I provides a brief overview of educational perspectives on gifted students. Part II examines statutory developments in the United States dealing with the rights of gifted students. Part II focuses predominantly on the author's belief that the federal government must protect the educational rights of gifted students. The author recommends the passage of a bill enabling systematic protection of the educational rights of gifted children modeled after the Education for All Handicapped Children Act (14) (now the Individuals with Disabilities Education Act (IDEA)). (15) Part III reviews the growing body of case law dealing with rights of gifted children. Part IV discusses various proposals aimed at providing equitable programming for gifted students.

1. THE EDUCATIONAL NEEDS OF GIFTED STUDENTS

   The subject of programming for gifted students is a contentious issue in America. In an egalitarian nation, where all are considered equal, (16) critics are reluctant to support special programming for gifted students because of the fear and suspicion that intellectualism (17) may lead to elitism. (18) On the other hand, there is the American ideal, most notably reflected in Brown, (19) Title IX, (20) and the IDEA, (21) of helping all to succeed and reach their full potential. (22) As noted in this Article, this ambivalence is far from resolved.

   Regardless of one's attitude toward the subject of giftedness, research indicates that gifted students have unique educational needs and require special programs. (23) In addition, it is important to consider the value of gifted student programs, since many gifted children not only fail to succeed on their own, (24) but indeed may underachieve, (25) experience learning disabilities, (26) and drop out of school (27) because their potential is stifled by the traditional school curriculum. (28) Moreover, although data is typically not tracked consistently. (29) it indicates that gifted children from low income families, (30) minority families, or families living in urban areas (31) are in even greater need of programming than their middle-income peers because of the greater risk of failure, poor achievement, or underachievement. (32)

   In response to various reports and commissions calling for educational excellence, there has been growing, (33) albeit far from unanimous, (34) support for programs for the gifted. The next section of this Article reviews the legislative history of programs for gifted students.

2. LEGISLATION ON GIFTED EDUCATION

   1. Federal Legislation

      1. Early History

         It is well settled that students do not have a constitutionally protected right to receive an education (35) absent a constitutional violation (36) or a clear statutory entitlement. (37) Even so, Congress has taken a leadership role in safeguarding the educational rights of minorities, women, and children with disabilities. However, the history of federal programming for gifted students has been sporadic.

         The earliest federal program on gifted education was created in 1931 when the United States Department of Education instituted a Section on Exceptional Children and Youth. (38) Similar to later federal legislative actions, most notably the Jacob K. Javits Gifted and Talented Students Act, (39) this program lacked specific legislative or fiscal authority, but laid a foundation for later federal actions regarding the gifted. (40)

         After World War II, with the threat of Soviet aggression and the spread of communism to China, federal interest in the gifted was essentially present, although unstated, when Congress enacted the National Science Foundation Act of 1950. (41) This historic act "not only directed resources toward the development of the sciences and basic research, but for the first time focused federal attention on the nation's gifted and talented. "(42) Previously, Congress directed its attention mostly towards higher education of the gifted in basic and applied science areas related to the general welfare. (43) However, under this act, programs and projects were geared toward improving the curriculum in schools and encouraging gifted students to seek careers in mathematics and the physical sciences.

         Even as federal interest in the gifted was evolving, two research studies (44) revealed a decreased interest in programs for the gifted. This declining interest was exacerbated by anti-intellectualism (45) during the McCarthy era when "intellectuals" were often viewed with suspicion. For example, discussing President Eisenhower's 1952 defeat of Adlai Stevenson, one commentator noted "an alarming fact long suspected: there is a wide and unhealthy gap between the American intellectuals and the people." (46) Not surprisingly, concerns for gifted education was overshadowed by the much larger debate over school desegregation during the early part of the 1960s.

      2. Equal Educational Opportunities: A Brief, But Necessary, Excursus

         Amid the ebb and flow of support for programs for gifted students, the much larger and far-reaching debate over school desegregation came to a head in Brown v. Board of Education (47) and its progeny. (48) Indeed, Brown is the cornerstone of all subsequent legal developments ensuring the rights of disenfranchised groups. Consequently, reviewing the development of special education is relevant because, like students with disabilities, gifted students have individualized needs and should be entitled to some protection.(49)

         A major impetus in protecting the rights of students with disabilities was provided by Pennsylvania Ass'n for Retarded Children v. Pennsylvania (50) and Mills v. Board of Education. (51) Consistent with the reasoning in Brown, both cases were decided on the basis of equal protection and due process. Viewed together, these cases stand for two principles that permeate later developments. First, children with disabilities have the substantive due process right to receive a public school education based on their unique, individual needs. Second, students with disabilities are entitled to the protection of procedural due process before they can be classified as being disabled, placed in a non-regular classroom, or transferred to a new placement.

         One year after Mills, Congress enacted Section 504 of the Rehabilitation Act. (52) This was the first major federal law to offer broad based protection for otherwise qualified individuals with impairments. (53) Although not originally intended to assist students, Section 504 has had a profound impact on schools. The law required that individuals who are otherwise qualified must be permitted to participate in school programs or activities as long as it is possible to do so by means of a "reasonable accommodation." (54)

         In 1975, Congress enacted the Education for All Handicapped Children Act, now the IDEA, (55) as the most comprehensive federal law protecting the rights of students who have disabilities. Among its provisions, the IDEA guarantees all children between the ages of three and twenty-one (56) with specifically identified disabilities (57) a "free appropriate public education" (58) in the least restrictive environment (59) in conformance with an Individualized Education Program (IEP). (60) However, in Board of Education v. Rowley, (61) the first Supreme Court case reviewing the IDEA, the Court held that the Act "did not impose any greater substantive educational standard than would be necessary" (62) to provide access to a public education for children with disabilities. The Court ruled that the Act established a floor of educational opportunity below which public schools could not fall rather than creating an open-ended continuum maximizing available programs. (63) Given the Court's reductionist interpretation of the broadly supported IDEA, it is not surprising that the rights of gifted students were not...