Programming for Twice Exceptional Students

From the Special Education Law Blog,
By Charles P. Fox, Attorney at Law

March 07, 2013

Although it seems almost a contradiction, children can be both gifted and have special needs, such as learning disabilities. Yet, because of their unique blend of talents and challenges, these students, known as “twice exceptional” or 2e students, can be difficult to identify and diagnose. Often their combinations of intelligence and special needs mask each other, leaving the child performing at grade-level. Other 2e children have been identified as learning disabled with teachers who may be unaware of the student’s high cognition. Conversely, those students who are identified as gifted but not LD may fail to meet their potential, leaving them underperforming, frustrated, and often with significant emotional issues. School districts may label these students lazy or unmotivated, and it can be difficult for parents to convince schools that the student has a disability that is affecting their performance in school.

“Giftedness” is not recognized as a disability under the Individuals with Disabilities Education Act (IDEA), and it can be difficult for some families to obtain special programming for gifted children. Where families live can make a difference. According to the National Association for Gifted Children, only about half of states (28 in 2008-2009) had a mandate to identify gifted children. How many of these states go further to identify those students who are both gifted and have a disability is unclear. Some states, such as Colorado and Idaho, have clear policies with accompanying guidelines on their websites. The National Association for Gifted Children has an interesting web page that provides data on gifted education by state, which parents may find useful.

It is difficult to know precisely how many students are twice exceptional. Some researchers estimate that 2 to 5% of the learning disabled population is gifted, and that 2 to 5% of the gifted population is learning disabled. The most recent year in which the number of 2e students was voluntarily tracked and reported by school districts was 2006. That data indicated that school districts were serving 70,000 2e students. The US Department of Education believes the number to be higher, stating that up to 6% of the 6 million students served under IDEA (360,000) may be twice exceptional. Regardless of which number is used, these untapped students represent, according to the National Education Association, a “national resource whose future contributions to society are largely contingent upon offering them appropriate educational experiences. Without appropriate education and services, their discoveries, innovations, breakthroughs, leadership, and other gifts to American society go unrealized.”

IDEA is silent regarding twice-exceptional students, and qualifying these students for special education services can be difficult. School districts may argue that a student’s passing grades or promotion from grade to grade demonstrates that special education is not needed. However, this contention has been rebutted by the Department of Education’s Office of Special Education Programs (OSEP). OSEP publishes in the Federal Register on a quarterly basis correspondence that offers information, guidance, and clarification on how IDEA should be implemented. Although these opinion letters are not legally binding, they can be persuasive to hearing officers and judges as to the intent of IDEA. An often quoted 1995 letter from OSEP explicitly states that children with high IQ’s cannot be categorically excluded from the specific learning disability (SLD) category. To quote the letter, “each child who is evaluated for a suspected learning disability must be measured against his own expected performance, and not against some arbitrary general standard.”

Parents may need to emphasize their child’s deficits in social skills, communication, organization, behavior, or other areas in an effort to obtain eligibility. A 2010 OSEP letter recognizes that children can be both gifted and learning disabled, and should they qualify for special education services, they are protected under IDEA. The letter describes as an example the high functioning student with ADHD who may qualify under “other health impairment” to address his poor organizational skills, trouble with homework completion, or classroom behavior. Similarly a student with Asperger’s syndrome might qualify under the label of Autism in order to address his poor social skills or classroom conduct, as appropriate. The letter additionally states “The regulations clearly allow discrepancies in achievement domains, typical of children with SLD who are gifted, to be used to identify children with SLD.” 

This latter point is important for parents to keep in mind. Under IDEA 2004, school districts are allowed to use a response to intervention approach (RTI) as part of the process to diagnose a specific learning disability. Some experts feel, however, that RTI may fail to identify the 2e student given that an RTI model presupposes that students with learning disabilities will be identified because of their failure to make progress with an appropriate curriculum. The 2e student, however, is likely to be compensating for his deficits and thus appear to be making progress when in reality he may be performing far below his potential.

Allison Hertog, an attorney who herself is twice exceptional, recommends that parents whose school districts have refused to evaluate their 2e children for special education might look to Section 504 or the Rehabilitation Act and the Americans with Disabilities Act (ADA) to bolster their arguments for a case study evaluation. Section 504 and the ADA are civil rights law designed to ensure access for persons with disabilities, whereas the IDEA is a special education law. The definition of a person with a disability is deliberately broader under 504 and the ADA compared to the IDEA. Ms. Hertog suggests that parents argue, “My child is considered disabled under the ADA and Section 504 and because of that disability I believe he needs special education and I am entitled to comprehensive psycho-educational evaluation.” Failing this argument, students who fail to qualify under IDEA, according to Ms. Hertog, can still receive accommodations, such as un-timed testing, on 504 Plans.

The range of services for children who are gifted but learning disabled are varied and discussed elsewhere. But for those students who are qualified by their school districts as twice exceptional, it is important to ensure that they receive educational programming that both remediates their deficits yet stretches them in their strengths, such as challenging coursework. Parents should be aware, however, that schools frequently tell 2e students that they cannot participate in accelerated or AP coursework if they require their IEP services or accommodations. Unfortunately, some schools have refused to provide students with their accommodations, such as access to paralegals or un-timed testing, should they take advanced coursework. The Office of Civil Rights, which is tasked with enforcing 504 violations, addressed this issue in a “Dear Colleague Letter.” (Dear Colleague Letters are similar to the OSEP letters in their explanations and interpretations of the laws.) The letter explicitly 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.” The letter continues, “In general, conditioning participation in accelerated classes or programs by qualified students with disabilities on the forfeiture of necessary special education or related aids and services amounts to a denial of FAPE under both Part B of the IDEA and Section 504.” 

It may not be an easy process to obtain services for your 2e child, and according to Ms. Hertog, it may be necessary to obtain legal counsel to ensure your child’s needs are met. Not every 2e student will be the next Thomas Edison or Albert Einstein, but students deserve the right to receive programming that will enable them to reach their own level of potential. Ultimately, we can all benefit from appropriate programming for these students.

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