NAGC Convention Coverage,
2e Students: A Civil Rights Imperative

January, 2017

In this issue we conclude coverage of sessions from the 2016 annual convention of the National Association for Gifted Children held in November in Orlando, Florida. Following is a write-up of a session on using federal laws that address the educational rights of children with disabilities to get the services and accommodations to which they are entitled.

Presenters: Barbara Gilman, Associate Director, Gifted Development Center, Westminster, Colorado; and Kathi Kearney, Gifted Education Specialist, Maine School Administrative District 51, Cumberland, Maine

What Is “Appropriate” in FAPE?

FAPE stands for “free and appropriate education.” An education is appropriate when it is “sufficient to confer some educational benefit upon the handicapped child… [in-cluding] specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child.” (Rowley, 458 U.S. at 200-0, as cited on Wrightslaw, rhinebeck.htm.)

—BG and KK

According to Barbara Gilman and Kathi Kearney, states, school districts, colleges, and testing companies “are doing a lot of wrong things” with regard to providing twice-exceptional students with the services, accommodations, and access to gifted programming they need. When it comes to receiving FAPE — the free appropriate public education guaranteed by U.S. law to children with disabilities — the speakers expressed concern that 2e students are being missed. “It is a civil rights imperative,” they explained, “that we not leave these kids out.”

The presenters focused on two federal laws (described in the table below) that address the educational rights of children with disabilities: the Rehabilitation Act of 1973 and the Individuals with Disabilities Education Act (IDEA). Twice-exceptional students, as Gilman and Kearney pointed out, are not addressed directly in either of these laws, a situation that results in “2e students across the country regularly being denied both special education services and 504 accommodations.”

Federal Laws that Address the Educational Rights of Children with Disabilities


Rehabilitation Act of 1973

Individuals with Disabilities Education Act


A civil rights law

An education and funding law


Prohibits discrimination against children with disabilities in programs that receive federal funds

Gives eligible students access to special education and/or related services

What it provides for eligible students

A 504 Plan, which documents the student’s disability and describes accommodations/services that will be implemented

An IEP (Individualized Education Program), which documents the student’s disability and the educational program designed to meet his/her needs

In response to this situation, the Office for Civil Rights (OCR) in the U.S. Department of Education and the U.S. Department of Justice have issued various clarification letters and statements reinforcing the fact that these laws apply to all children with disabilities, including those who are gifted. The letters and statements address a number of myths and misconceptions that have denied 2e students their educational rights. In the following table are some examples that Gilman and Kearney provided.


According to federal law:

Schools can refuse a parent’s request for a special education or 504 evaluation.

If a school refuses, there is due process for parents.

Schools can decide whether to take into account any outside assessment of a child that a parent might provide.

Schools may conduct their own evaluation of a student but must also take into account any outside assessment provided by a parent.

Gifted students with disabilities must perform below grade level or be failing in order to receive special education and related services or testing accommodations.

Such services or accommodations are not restricted to low-performing students. Special education or related services should be made available to any child with a disability.

Students with disabilities are ineligible to take part in advanced classes.

Denying a qualified student with a disability the opportunity to participate in advanced classes violates the law.

A child who scores above the cut score established by state policy is ineligible for special education and related services.

It is illegal for states to determine eligibility for these services based on cut scores (although many states do).

Students must first go through Response to Intervention (RTI) before they can get an IEP or 504 Plan.

Going through RTI first is not a requirement for an IEP or 504 Plan.

The speakers concluded by making available to attendees clarification letters from the Departments of Education and Justice that are relevant to twice-exceptional students. (These documents along with other advocacy resources are available on the 2e Newsletter website at  

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