Many schools provide special classes for children that are classified as “gifted” or exceptionally talented. Problems arise when the demand for these classes outweighs the number of spaces that these classes can offer.

What Determines Whether a Child Is Gifted or Talented?

The determination of whether a child is talented or gifted is made in accordance with state laws and regulations. Schools may set their own standards, but these additional standards must not violate the standards set by the state.

This determination of whether a child is gifted or not is by no means an exact science. Yet, as long as the determination is based on some objective method, such as the use of a standardized test, it is usually very difficult to challenge it.

How Is Gifted or Talented Defined?

Generally, a child who is gifted or talented has the following characteristics:

  • Deviate from the average in physical, mental, emotional or social characteristics to such an extent that they require special educational facilities or services;
  • Outstanding intellectual and creative ability the development of which requires special activities or services not ordinarily provided in the regular program; and
  • Usually with an IQ of 130 or higher.

What Do I Need to Show to Assert My Child’s Right to Participate?

In order to assert their child’s right to participate in a gifted or talented education program, one must show:

  1. State law actually provides for these special programs that the child is entitled to participate;
  2. The child must meet the definition of talented or gifted as established by the law; and
  3. Discriminatory or unequal treatment by the school in selecting children for the programs.

However, administrative remedies provided by a school, such as reviewing applications and parent-teacher meetings, must usually be exhausted first before a parent can sue the school.

Must a School Provide These Special Programs?

Not really. Most states make it optional for schools to provide these special education programs. Even when there is an obligation to provide these programs, the depth and structure of these programs are primarily determined by the schools themselves and may be very limited in scope.

Is There a Constitutional Right to These Special Programs?

No. There is no constitutional right for anyone to be provided a special education program. Furthermore, the right to a special education has not been deemed to be a property right that is protected by the Constitution.

Do I Need an Attorney Experienced in Education and Schools?

The laws surrounding education and schools can often be complex and frustrating. A government attorney can help you understand your school district’s law, and properly evaluate your legal options. If you need to sue your school or proceed through some type of administrative hearing, an attorney would have experience dealing with school districts and help you get the results you desire.