Clarifications of Federal Law
as It Applies to Twice-exceptional Students

November, 2016

The information in this article is adapted from a handout from the 2016 NAGC Convention presentation 2e Students: A Civil Rights Imperative, by Barbara Gilman and Kathi Kearney, and used here with permission.

Following are descriptions of clarifications of federal law made by the Department of Justice and the Department of Education to guide practice. These clarifications relate to gifted students with disabilities and should be used to guide school policy. According to the Wrightslaw website, “Opinion/policy letters [such as those described o below] are not law, but represent the position of a federal or state agency.”

ADA Guidelines Regarding Standardized Testing

In January of 2016, the Department of Justice released guidelines that address twice-exceptional children specifically. They require a reduction in periodic re-evaluations required for the continuation of accommodations, and testing accommodations designed to allow the student to demonstrate full potential. The guidelines include the following:

  • A person with a history of academic success may still be a person with a disability who is entitled to testing accommodations under the ADA.
    For example, someone with a learning disability may achieve a high level of academic success, but may nevertheless be substantially limited in one or more of the major life activities of reading, writing, speaking, or learning, because of the additional time or effort he or she must spend to read, write, speak, or learn compared to most people in the general population.
  • If a candidate previously received testing accommodations under an Individualized Education Program (IEP) or a Section 504 Plan, he or she should generally receive the same testing accommodations for a current standardized exam or high-stakes test.
  • Testing entities must ensure that the test scores of individuals with disabilities accurately reflect the individual’s aptitude or achievement level or whatever skill the exam or test is intended to measure. A testing entity must administer its exam so that it accurately reflects an individual’s aptitude, achievement level, or the skill that the exam purports to measure, rather than the individual’s impairment (except where the impaired skill is one the exam purports to measure).

(For more information, see "Dyslexia and Accommodations – New ADA Guidelines 2016 for School and Work," by Fernette Eide, January 18th, 2016.)

Department of Education Clarifications of Federal Law

The chart below describes clarifications of federal law that the Department of Education has issued. Each is available online.

Document

Issue

Description

Letter to Anonymous
(2/29/12)

FAPE, the Free Appropriate Public Education guaranteed to children with disabilities by the Rehabilitation Act of 1973 and the Individuals with Disabilities Education Act (IDEA)

Clarifies that:
“Each state must ensure that FAPE is available to any child with a disability who needs special education and related services, even though the child has not failed or been retained in a course, and is advancing from grade to grade.” 34 CFR §300.101(c).  A State has an obligation to make FAPE available to an eligible child with a disability even if that child meets the State’s academic achievement standards.” 

Letter to Anonymous (1/13/10)

Being gifted does not disqualify a student from eligibility for special education
and related services under the IDEA.

States:
“…the IDEA and its regulations do provide protections for students with high cognition and disabilities who require special education and related services to address their individual needs.”  Therefore, students with high cognition and disabilities such as Asperger’s Syndrome or Autism Spectrum Disorder “could be considered under the disability category of autism and the individualized evaluation would address the special education and related services needs in the affective areas, social skills and classroom behavior, as appropriate.”  

Letter to James Delisle (12/20/13)

A child need not be failing to get special education services.

States:
“….it would be inconsistent with the IDEA for a child, regardless of whether the child is gifted, to be found ineligible for special education and related services under the SLD category solely because the child scored above a particular cut score established by State policy.”

Letter to Lybarger
(9/14/90)

The education needs of a child with a disability can be non-academic.

States:
It has been the Department’s longstanding position that the education needs of a child with a disability “include non-academic as well as academic areas.” The term “educational performance” as used in the IDEA “means more than academic standards as determined by standardized measures.”

Dear Colleague Letter
(12/26/07)

Being gifted does not disqualify a student from accelerated programs such as advanced placement courses.

States:
“The practice of denying, on the basis of disability, a qualified student with a disability the opportunity to participate in an accelerated program violates both Section 504 and Title II. Conditioning enrollment in an advanced class or program on the forfeiture of needed special education or related aids and services is also inconsistent with the principle of individualized determinations, which is a key procedural aspect of the IDEA, Section 504 and Title II.”  

Memorandum from Melody Musgrove
(4/17/15)

A reminder from the Director, Office of Special Education Programs, to State Directors of Special Education of the legal requirement to evaluate all children, regardless of cognitive skills, suspected of having any of the disabilities specified under federal law

States:
“…I am requesting that you widely distribute Letter to Delisle to the LEAs in your State, and remind each LEA of its obligation to evaluate all children, regardless of cognitive skills, suspected of having one of the 13 disabilities outlined in 34CFR§300.8.”
“Furthermore, the State must ensure that … the evaluation is sufficiently comprehensive to assess the child in all areas related to the suspected disability, and must identify all of the child’s special needs, whether or not commonly linked to the disability category in which the child has been classified.  34 CFR §300.304(c)(4)and (6).”

Dear Colleague Letter and Resource Guide on Students with ADHD (7/26/16)

A letter from Catherine E. Lhamon, Assistant Secretary for Civil Rights, which provides substantial explanation of Section 504, in general. (Section 504 is the part of the Rehabilitation Act of 1973 that prohibits discrimination based on disability.)

States:
“In OCR’s investigative experience, school districts sometimes rely on a student’s average, or better-than-than-average, grade point average (GPA) and make inappropriate decisions.  For example, a school district might erroneously assume that a student with an above-average GPA does not have a disability, or has no unaddressed needs related to the disability, and therefore fail to conduct a section 504 evaluation of that student, even if that student is suspected of having or has been diagnosed with ADHD and receives family provided academic supports outside of school.”  “…it is critical to reject the assumption that an individual who has performed well academically cannot be substantially limited in activities such as learning, reading, writing, thinking, or speaking.” 

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