One of the most challenging and infuriating areas in which I practice is advocating for the gifted and disabled (called “twice exceptional”) these days. I feel particularly passionately about these cases because I fall into the category of twice exceptional (I suffer from multiple learning disabilities) and when I was a student in public school, I was left back in second grade and misdiagnosed as cognitively “slow.”
I am continually arguing to the school districts in South Florida that a gifted student should not be denied special education and related services soley because they are capable of performing at or above grade level. I understand that the denial of special ed. services to the gifted is a national problem and not just limited to Florida.
Well, now for the good news! On December 26, 2007 the U.S. Department of Education’s Office of Civil Rights (OCR) issued a “Dear Colleague” letter to all public school districts in the country stating that students with disabilities who otherwise qualify for enrollment cannot be denied admission to challenging academic programs, such as Advanced Placement and International Baccalaureate classes. Some school districts nationwide have made it a practice to deny students with disabilities admission to accelerated programs (even though they are cognitively capable of doing the work) or conditioning their admission to these programs on giving up their special education services.
For a variety of reasons, I see that problem less often than the situation where a gifted or high-achieving student is denied special education services because they are capable of performing at or above grade level despite their disability. The OCR letter addresses that situation only indirectly, but I think there is language in the letter which could be helpful for a student who is being denied services.
Here is how the letter may be helpful to you in advocating for your twice exceptional child. The OCR states the following:
a) “Discrimination prohibited by these laws [Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act] includes, on the basis of disability, denying a qualified individual with a disability the opportunity to participate in or benefit from the recipient’s aids, benefits or services, and affording a qualified individual with a disability with an opportunity to participate in or benefit from the aid, benefit or service [i.e., the accelerated program] in a manner that is not equal to that offered to individuals without disabilities.”
b)”A public entity also may not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program or activity, unless such criteria can be shown to be necessary for the provision of the service, program or activity being offered.”
c) “Section 504 and Title II require that qualified students with disabilities be given the same opportunities to compete for and benefit from accelerated programs and classes as are given to students without disabilities. ”
In my opinion, one implicit interpretation of the OCR letter is: If your child is qualified to be in an accelerated program but their disability prevents them from competing fairly in that program, your child is entitled to receive special education and related services in that program (in the form of a 504 plan or IEP).
I know this is a complicated area and please feel free to email me at AllisonHertog@gmail.com or call my office at 305-663 9233 if you have any questions. Knock them dead in your next school meeting. 🙂