Endrew's Impact on Twice-Exceptional Students.

AuthorBell, Catherine A.

TABLE OF CONTENTS INTRODUCTION I. FACTUAL AND LEGAL BACKGROUND A. What Is a Twice-Exceptional Student? B. An Overview of Federal Special Education Law 1. Special Education Law Between 1960 and 2004 2. The IDEIA C. The FAPE Standard 1. Standard Adopted in Rowley 2. Standard Adopted in Endrew D. An Overview of Gifted Education 1. Federal Gifted Education 2. State Gifted Education II. THE PROBLEM: DID ENDREW MODIFY THE FAPE STANDARD FOR TWICE-EXCEPTIONAL STUDENTS? A. Advocates' Reading of Endrew B. A Holistic Reading of Endrew 1. The Heightened Language in Endrew Is Directed at Students Not Progressing in a Mainstream Environment 2. Endrew Reaffirms Rowley's Assumptions and Central Holding 3. The IDEIA's Purpose and Other Fairness Concerns Will Prevent Heightened Endrew Language from Increasing the FAPE Standard III. A POTENTIAL SOLUTION: FOCUSING ON TWICE-EXCEPTIONAL STUDENTS' GIFTS A. What Is a GIEP? B. How Can GIEPs Assist Twice-Exceptional Students? C. Implementing GIEPs D. Potential Issues E. Alternative Strategies CONCLUSION INTRODUCTION

Approximately 2 to 5 percent of the American student population qualifies as both gifted and learning disabled. (1) These students, labeled by educators as "twice-exceptional," generally demonstrate superior cognitive ability, yet also present profound weaknesses in seemingly basic skills. (2) This disconnect in twice-exceptional students' abilities produces great difficulties for America's public schools. (3)

Twice-exceptional students, as a result of their disability, can generally qualify for special education services under the federal Individuals with Disabilities Education Improvement Act of 2004 (IDEIA). (4) Once a student qualifies for services under the IDEIA, he is entitled to receive a Free and Appropriate Public Education (FAPE). (5) The IDEIA defines a FAPE as an education that is "provided at public expense ... meet[s] [state] standards ... [is] appropriate ... and [is] provided in conformity with [a student's individualized education program]." (6) Given the general nature of this statutory guidance, the courts have been largely responsible for determining what constitutes a FAPE. (7) And, while the courts have created relatively clear standards, applying these standards to twice-exceptional students has proven problematic. (8)

Consider the following case: Per Hovem is a twice-exceptional high school senior in the Klein Independent School District who qualifies for services under the IDEIA. (9) He has superior cognitive ability, as shown through intelligence testing, and he makes above-average grades in his general education courses. (10) Yet, despite this, Per's writing ability is subpar, falling around a second-grade level. (11) In fact, Per and his teachers assert that he takes multiple hours to write paragraphs and fill out one-page forms. (12) Despite these deficiencies, however, Per can read and comprehend at an age-appropriate level. (13) Given Per's mix of abilities, what supports should the Klein Independent School District provide in order to meet its obligation to provide Per with a FAPE? Would minor accommodations, such as extra time on written assignments, suffice? Or is the school district required to do more?

In making its decision in Per's case, the Fifth Circuit applied the prevailing standard at the time, Board of Education of Hendrick Hudson Central School District v. Rowley, which held that a school district met its FAPE obligation when a student's educational program was "reasonably calculated to enable the child to receive educational benefits." (14) Since Per advanced grade-to-grade in his general education courses, the Fifth Circuit held that minimal accommodations and services were enough to provide Per with a FAPE. (15) Moreover, the Fifth Circuit refused to consider arguments that the school district failed to meet its FAPE requirements based on Per's inability to meet his full academic potential. (16)

The Fifth Circuit's holding represented a typical decision under the Rowley standard. (17) Nevertheless, many special education and disability advocates suggested that such results were problematic. (18)

These advocates claimed that the Rowley standard was too lenient, allowing school districts to satisfy FAPE requirements without fully addressing students' needs. (19) Thus, these advocates called for the creation of a more rigorous standard--one that would require school districts to do more for their disabled students. (20)

Advocates' pleas were seemingly answered when the Supreme Court handed down its 2017 decision in Endrew F. v. Douglas County School District RE-1. (21) Though Endrew dealt with a "traditionally" disabled, non-twice-exceptional student, Endrew clarified the Rowley decision and, by most accounts, raised the FAPE standard by placing a greater emphasis on the student's individual abilities. (22) Specifically, Endrew held that a student's educational program should be "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances," (23) Yet, despite advocates' general belief that Endrew will raise the FAPE standard for disabled students as a whole, there is some evidence that the new standard will have only a slight impact on twice-exceptional students specifically. (24)

To address this claim, this Note will proceed in three main parts. Part I describes the twice-exceptional student population in greater detail. In addition, this Part discusses education law generally, highlighting federal special education law, the FAPE standard, and gifted education. Part II explains why the Endrew decision may not impact twice-exceptional students to the same level it could affect nongifted, disabled students. Part III then suggests that twice-exceptional students should receive greater protection. This Part argues that amending the IDEIA is unlikely to be successful. Additionally, it proposes that the states individually adopt Gifted Individualized Education Provisions to supplement students' protection under the IDEIA and ensure that twice-exceptional students' weaknesses and strengths are both appropriately considered.


    To qualify for services under the IDEIA, a student needs to fit into one of thirteen disability categories listed in 20 U.S.C. [section] 1401(3)(A)(i). (25) Notably, "twice-exceptional" is not a listed disability category. (26) Nevertheless, twice-exceptional students can (and do) qualify for services so long as their disability falls within the IDEIA's disability categories and the student can demonstrate that, as a result of the disability, he "needs special education and related services." (27) Additionally, given that twice-exceptional students are gifted or cognitively superior in at least some academic areas, twice-exceptional students may also qualify for a school's gifted programming. (28)

    Because twice-exceptional students present both disability and giftedness, their educational needs stretch across different educational laws and policy areas. (29) Thus, to provide a complete overview of the legal landscape, this Part will provide a basic introduction to both federal special education law as well as relevant federal and state gifted education programs.

    1. What Is a Twice-Exceptional Student?

      The term "twice-exceptional student" (at its most basic level) refers to students who are both gifted and disabled. (30) In other words, these students meet traditional qualifications for giftedness--that is, high cognition and potential for high achievement--but these students also qualify as disabled under the IDEIA. (31)

      Due to this unique spread of giftedness and disability, twice-exceptional students are often overlooked and can be difficult to identify. (32) In fact, twice-exceptional students have been described by educators as "the most misjudged, misunderstood, and neglected segment of the student population." (33) Commentators illustrate the difficulties of identifying twice-exceptional students by dividing these students into three general categories: (1) students whose giftedness largely masks their disability, (2) students whose disability masks their giftedness, and (3) students whose giftedness and disability cancel each other out, making these students appear "average." (34)

      These identification difficulties matter because twice-exceptional students face great difficulty in the classroom if their divergent needs are not met. (35) For instance, if a student's giftedness is overlooked he may become disinterested or face feelings of frustration; likewise, if a student's disability is overlooked, he may become overwhelmed and develop a low self-esteem. (36) Moreover, research suggests that these feelings, if not addressed, may prompt a twice-exceptional student to act out and develop other behavioral issues in the classroom--resulting in a potential loss of instructional time for both the student and his peers. (37)

      Perhaps most problematic, however, are these students' academic progress. A twice-exceptional student, due to his giftedness, often has the ability (at least in some academic areas) to learn at an accelerated pace. (38) And, unlike "traditionally" disabled students, twice-exceptional students can often mask their deficits by developing coping mechanisms. (39) Thus, two general problems can easily arise if a student's education programming is not tailored correctly: (1) a student may experience regression (or stagnation) in an area of strength if he is not pushed appropriately and (2) a student may pass grade-to-grade without learning fundamental skills if he uses his gifts to mask his deficits. (40)

      Twice-exceptional student classroom placement also proves difficult. (41) Within a traditional public school environment, disabled students have two general placement options: mainstream classrooms (general education classrooms with nondisabled peers) or self-contained classrooms (classrooms that contain...

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