The gifted commitment: gifted education's unrecognized relevance in "thorough and efficient" public schools.

• Author: Haney, Patrick

CONTENTS INTRODUCTION I. INADEQUACIES OF GIFTED EDUCATION A. Federal Gifted Education Initiatives B. State Support of Gifted Education C. Judicial Treatment of Gifted Education II. THE UNREALIZED VALUE OF GIFTED EDUCATION III. GIFTED EDUCATION IN "THOROUGH AND EFFICIENT" EDUCATION SYSTEMS A. Advantages of State Constitutional Challenges B. "Thorough and Efficient" Demands for Gifted Education C. Other Education Clauses CONCLUSION INTRODUCTION

In School Year (SY) 2008 09, gifted education funding represented less than 0.15% of state and federal funding. (1) This shortfall in funding is woeful. The deplorable funding reflects America's inattentiveness toward gifted education, an increasingly vital component of public education in the modern global economy. Our nation is home to millions of gifted students past, present, and future (2)--who will meaningfully impact our nation's economic competitiveness in these globalizing times only if provided the resources to realize their potential.

Part I of this Comment explores the status of American gifted education, touching on federal and state attempts to implement and fund gifted education. Part II explains the value of gifted education to American society and to the public education system. Part III proposes using states' education clauses to improve the gifted services provided in public schools.

1. INADEQUACIES OF GIFTED EDUCATION

   Increased federal involvement has transformed American public education into a key federalism battleground. As the federal government expands into elementary and secondary education, states steadily lose their once-dominant presence in regulating education. (3) In the modern era of education legislation, federal and state governments have conflicted on controversial issues like standardized testing, teacher qualifications, and special education. Yet gifted education remains lost in the battle. Instead of a situation where the federal and state governments clamor to reform and regulate gifted education to their liking, the dual sovereigns largely avoid the issue of gifted education.

   The lack of attention is not necessarily surprising. Gifted education appeals to a narrow political constituency and faces some populist resentment. A number of reasons, some obvious, explain the lack of popular support, which consequently hinders efforts to expand gifted education services. (4) Following Brown v. Board of Education, (5) some schools used rigid tracking systems to deprive black students of an equal education. (6) Others' views may be tainted by unpleasant personal experiences with public education. People who struggled in or loathed public schooling may begrudge those who excelled and subsequently refuse to support gifted students. Many people wrongly perceive gifted students as not requiring additional services to succeed] And more practically, differentiating the education of gifted students normally requires significant resources. For these reasons, most attempts to provide meaningful services suffer from a lack of popular support that produces disappointing returns.

   Because substantial public support of gifted education rarely persists, the resulting legislative policies have been similarly lackluster. To better understand the current state of gifted education in America, the following sections outline the limited efforts by federal and state governments to regulate and fund gifted education. This review concludes by describing the judiciary's passive approach to gifted education issues.

   1. Federal Gifted Education Initiatives

      Since the enactment of the Elementary and Secondary Education Act of 1965 (8) (ESEA), Congress has increasingly inserted itself into education policy by extending conditional funding to states. For the most part, states have accepted the funds in exchange for adopting federally endorsed education policies. But while Congress has enacted noteworthy legislation regarding standardized assessments and education of students with disabilities, gifted education has only sparingly been a priority. (9)

      Before the ESEA, Sputnik's 1957 ascension to the cosmos raised tremendous concern about America's ability to compete globally in science and technology. The threat of Soviet economic and military supremacy prompted a rare national outcry for gifted education. (10) Consequently, Congress enacted the National Defense Education Act of 1958 (11) to provide funding for gifted and talented student services. Though the idea of the "Sputnik moment" resonates in American lore, the financial and political support it engendered lasted for only a few years. (12) During the 1960s, President Johnson's "War on Poverty," including the historic ESEA, instead concentrated attention on the educational needs of economically disadvantaged students. (13)

      The efforts of Sidney Marland, the Commissioner of Education under President Nixon, later yielded more short-lived progress. In a 1972 report to Congress, which later became known as the Marland Report, he highlighted the educational needs of gifted children and asserted a still-influential definition of gifted and talented. (14) The 1974 amendments to the ESEA incorporated the Marland Report's recommendations. (15) Notably, the amendments created the Office of Gifted and Talented within the Department of Education and authorized annual federal appropriations for gifted programming, albeit at regrettably low levels. (16)

      Momentum seemingly continued with the Gifted and Talented Children's Education Act of 1978. (17) the Act authorized increased appropriations and set forth Congress's recognition that:

      (1) the Nation's greatest resource for solving critical national problems in areas of national concern is its gifted and talented children, (2) unless the special abilities of gifted and talented children are developed during their elementary and secondary school years, their special potentials for assisting the Nation may be lost, and (3) gifted and talented children from economically disadvantaged families and areas often are not afforded the opportunity to fulfill their special and valuable potentials, due to inadequate or inappropriate educational services. (18) Despite the rhetoric, this effort too met a quick end with Congress's enactment of the Omnibus Reconciliation Act of 1981. (19) (OBRA). OBRA repealed the Gifted and Talented Children's Education Act of 1978. (20) Additionally, OBRA eliminated the Office of Gifted and Talented and effectively wiped away categorical appropriations for gifted education by consolidating them into a block grant with numerous other programs. (21)

      Another funding program the Jacob K. Javits Gifted and Talented Students Education Act of 1988 (22)--represents the most recent federal attempt at furthering gifted education. Despite constant threats to its funding, the program survived more than a decade before Congress pulled its appropriations as part of a 2011 budget deal. (23) Survival, however, did not equate to impact. At its peak in 2002, the program had less than $12 million at its disposal. (24) Moreover, the need to constantly defend the Act's funding prevented any other progress toward expanding gifted education. (25) After the Javits Act's decline, no other federal initiative dedicated to gifted education remains in force.

      Congress further hamstrung gifted education through the No Child Left Behind Act of 2001 (26) (NCLB), coercing states into diverting limited educational resources toward achieving basic academic proficiency. (27) In particular, NCLB's pursuit of grade-level performance frustrates gifted students' pursuit of a meaningful education by restricting teachers' focus to standardized-test concepts with borderline passing students. (28)

      Nonetheless, against this backdrop the Obama administration published a set of proposed reforms in A Blueprint for" Reform: The Reauthorization of the Elementary and Secondary Education Act. (29) The report advocated for awarding competitive grants to "states, districts, and nonprofit partners to increase access to accelerated

      learning opportunities for students." (30) Yet the report to date has sparked little legislative action. (31)

      Looking forward, Congress's wishy-washiness over the past half-century inspires no hope for meaningful federal reform. Each action taken to advance gifted education lost support after only a few years. The transient support thus left gifted education programs vulnerable to budget cuts. Even mild initiatives like the Javits Act fell victim to budget negotiations. Barring an unforeseeable change in popular support for gifted education, there is no reason to expect a break in the cycle.

      The contrast between gifted education and education of students with disabilities more fully demonstrates gifted education's dilemma. (32) What is known as the Individuals with Disabilities Education Act (33) (IDEA)--which has undergone several reauthorizations since its enactment as the Education of the Handicapped Act (34) in 1970--best embodies the federal government's push to fulfill the education needs of students with disabilities. For states to maintain federal funding under IDEA, they must provide students with disabilities a "free appropriate public education" (FAPE). (35)

      A comparison of federal government spending on FAPE relative to gifted education highlights an enormous funding disparity. In 2010, while the now-defunded Javits Act received an allocation of $7.5 million, Congress supplied states with more than $11 billion for serving children with disabilities. (36) Due to the immense amount of funding at stake, this condition essentially amounts to a federal mandate for servicing the educational needs of these students. Gifted students, in contrast, do not benefit from IDEA or any major federal education program. (37) Taken together, the relative nonexistence of federal funding and regulation illustrates the lackluster treatment consistently extended to gifted students.

   2. State...