Know Your Legal Rights in Gifted Education (continued)

Court Cases

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.

References

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), 18-19.

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.