Charter Schools and Gifted Education: Legal Obligations

ABSTRACT

Over the past 12 years, charter schools have grown from a few schools in one state to roughly 3,000 schools in over 40 states and territories. This explosive growth has outpaced both legislation and research on charter schools, with very little consideration given to the legal and empirical aspects of gifted education within charter schools. Charter schools, contrary to conventional wisdom, are not exempt from state and federal educational regulations, thereby requiring these schools to adhere to state requirements for the education of gifted students in all public schools. In states without legislative mandates, however, charter schools are not required to provide services to gifted students, and case law does not provide evidence that such schools can be compelled to provide such services. The article concludes with a discussion of implications for charter school organizers and students within these schools.

I. CHARTER SCHOOLS AND GIFTED EDUCATION: LEGAL OBLIGATIONS

A charter school is a publicly funded, secular school that typically has greater autonomy than traditional public schools. Specifically, charter schools are not subject to many of the administrative constraints of traditional public schools. For example, they often have greater freedom in collective bargaining and greater control over teacher hiring. In return for this flexibility, charter schools are subject to high levels of accountability, especially regarding student achievement. The “charter,” which establishes each school, is a performance contract between the school authorizer and organizer that details the school’s vision, mission, goals, targeted student population, as well as ways to measure success.1

President Clinton characterized charter schools as schools “that have no rules.”2 President Clinton’s statement is not only an oversimplification of the essential character of charters schools; it also reflects a widespread misconception regarding how charter schools operate: namely, the perception that charter schools operate largely free of state and federal regulations and laws. In reality, charter schools are subject to both federal and state laws, and are often subject to additional accountability measures as defined in state legislation and the charter for each school.

In this article, we provide a brief overview of the history of charter schools in the United States, discuss issues related to the definition of giftedness, analyze relevant state and federal legislation and litigation, and conclude with a discussion of implications for policymakers, charter school organizers, and gifted education advocates.

A. History of Charter Schools

The first charter school law was passed in 1991 in Minnesota, and the first charter school was established there in 1992.3 Today, the Center for Education Reform estimates that over 2,996 charter schools currently exist in the United States.4 Although 41 states, the District of Columbia, and Puerto Rico have adopted charter school legislation, Arizona, California, Florida, Texas, and Michigan have more than half of all charter schools.5 States with no charter school laws include Alabama, Kentucky, Maine, Montana, Nebraska, North Dakota, South Dakota, Vermont, and West Virginia.6

Charter schools are public schools that are created through a charter with a public entity such as a state or a school district.7 When a charter is issued, there is a defined limited term of operation; most charters are granted for three to five years. As a result, charter school renewal is contingent upon their success. Although charter schools are controversial, the idea has attracted bipartisan support at all levels of government.8 The federal government, with support from both Republicans and Democrats, has approved financial support for establishing charter schools as well as support for acquiring operational facilities. In President Clinton’s 1997 State of the Union Address, he called for the creation of 3,000 charter schools by the year 2002.9 Likewise, George W. Bush has proposed $700 million in spending for charter schools.10 Several states have also contributed large amounts of public funds to support the development and growth of charter schools. For example, the state of Arizona appropriated $600 million for charter school funding, yet other states have provided far less money to foster the creation of charter schools.” These discrepancies reflect the wide range of state laws that impact charter school funding, accountability, and structure. The variation among states also impacts gifted education. Federal laws provide limited guidance in this area, magnifying the importance of state legislation which also differs considerably from state to state.

B. Definitions of Giftedness

The importance of serving gifted and talented students cannot be understated. In a 1993 report published by the U.S. Department of Education, the U.S. secretary of Education wrote that the needs of gifted and talented students were seldom met, with important educational, social, and economic effects. In 1990, states spent less than 2 cents for gifted and talented programs out of every $100 spent.12 This reality presents interesting obstacles for charter schools serving gifted and talented students.

But who are gifted students? Although a consensus definition does not exist, Renzulli’s three-ring conception of giftedness is perhaps the most well known, with its focus on the interaction among above average ability, creativity, and task commitment.13 Other conceptions of giftedness vary from this approach, but many maintain a focus on above average ability, motivation, and creativity or problem solving.14 Renzulli and his colleagues have developed several comprehensive, widely-used models for gifted education based on his conception.15

Perhaps the most common alternative to Renzulli’s work is the focus strictly on exceptional performance on standardized intelligence or achievement tests. For example, the Talent Search program, which relies primarily on student performance on out-of- level standardized testing,16 works with more than 250,000 children per year at several universitybased regional centers.17 Many school districts around the country base their gifted education programs on this psychometric approach to identifying high ability children through the use of standardized testing.18

Under federal law, gifted students are defined as “students, children, or youth who give evidence of high achievement capability in areas such as intellectual, creative, artistic, or leadership capacity, or in specific academic fields, and who need services or activities not ordinarily provided by the school in order to fully develop those capabilities.”19 This definition was initially proposed in the Marland Report, which led to the creation of the U.S. Office of Gifted and Talented in 1972.20 Subsequent revisions of the definition in federal reports and legislation, which are reviewed later in this article, have maintained the Marland Report’s broad focus on high achievement across a broad range of academic fields and psychological constructs.

C. State Legislation and Gifted and Talented Students

Education policy is generally a state function. Even the federal No Child Eeft Behind Act (NCLB),21 widely regarded as the biggest federal intrusion into state education policy, provides a great deal of latitude for individual states to implement NCLB’s major provisions. The vast majority of regulations concerning education policy originate from state statutes. As such, any discussion regarding gifted and talented programs also originates from state statutes.22

Several states have enacted statutes aimed at addressing the educational needs of gifted students.23 The U.S. Department of Education reports that over thirty states mandate some form of gifted and talented program, while sixteen states have implemented a discretionary program.24 In general, such statutes recognize that gifted students require some instruction other than that offered to the regular school population in order to further challenge gifted students.25 For example, some states have adopted so-called Talented and Gifted Education (TAG) statutes. Under TAG statutes, gifted and talented programs could be either permissive or mandatory. Permissive statutes authorize the state department of education to address the unique educational requirements of gifted students. By contrast, mandatory statutes require each school district to provide educational programs to all identified gifted students.26 Whether the state has adopted a permissive or mandatory statute, charter schools need to be cognizant of such requirements.

Similarly, charter schools must also be mindful of the class of children that states deem “gifted and talented.” Some state legislatures have included gifted and talented students under exceptional children or children with special needs. For example, the Connecticut legislature once stated that an exceptional students is one who is (1) is mentally retarded … or (2) has extraordinary learning ability or outstanding talent in the creative arts, the development of which requires programs or services beyond the level of those ordinarily provided in regular school programs but which may be provided through spec\ial education as part of the public school program.27 Connecticut, however, is not like every state. Some states do not include gifted and talented students in the specific statutory definition of an exceptional student.

Such variation among states is problematic for charter schools attempting to comply with state educational regulations. For example, while some states and local educational agencies allocate resources to educate gifted and talented students, others do not. Moreover, state laws, and state and local funding, identification, and accountability mechanisms vary widely, resulting in a vast disparity of services for this special-needs population.28 In 2003, Congress also found that while the families or communities of some gifted students can provide private programs with appropriately trained staff to supplement public educational offerings, most high- ability students, especially those from inner cities, rural communities, or low-income families, must rely on the services and personnel provided by public schools.29

However, this is not always the case. For example, some charter schools have begun to specifically serve gifted and talented students. The Massachusetts Association for Gifted Education suggests that some charter schools may serve gifted and talented children better than the local school districts.30 Additionally, some charter schools specifically market their gifted and talented programs, as is the case in San Antonio, Texas and in Tucson, Arizona. Further, in Dearborn, Michigan the traditional public schools have responded to competition from charter schools by developing theme schools. One such theme school is a school for the gifted and talented.31

II. Federal Legislation and Gifted and Talented Students

Although most regulations involving gifted and talented programs are a product of state legislation, federal legislation does play some role. As noted above, the federal government contributed to the development of gifted education with the Marland Report in 1971 and the creation of the U.S. Office of Gifted and Talented in 1972.32 Unfortunately, the role the federal government plays in gifted and talented programs is quite limited compared to other educational areas. To illustrate, although federal legislation guarantees a free and appropriate education for students with disabilities, no federal mandate requires the provision of special or differentiated education for gifted and talented students.

Despite this lack of a mandate, the government encourages schools, through grant money, to offer gifted and talented programs. For example, the U.S. Congress reauthorized the Jacob K. Javits Gifted and Talented Students Education Act of NCLB of 2001. This legislation supports the development of gifted and talented students and reauthorizes the U.S. Department of Education to fund grants involving gifted and talented research. The program emphasizes serving students from underresourced backgrounds, disabled students, and limited English proficient students. In fiscal year 2003 and 2004, Congress provided level funding for the Javits Act at $11.2 million.” However, the Javits Act has been repeatedly threatened during the federal budget process and is routinely slated for elimination.34

Although NCLB emphasizes serving students from these backgrounds, the Act does not specifically address the learning needs of gifted and talented students. Additionally, the Javits Act does not protect the legal rights of gifted students as IDEA does for special needs students. However, a few provisions in NCLB could be read to focus on the education of gifted and talented students. For example, NCLB defines “gifted and talented” children as youth who give evidence of high achievement capability in areas such as intellectual, creative, artistic, or leadership capacity, or in specific academic fields, and who need services or activities not ordinarily provided by the school in order to fully develop those capabilities.35 Under Title I “Improving the Academic Achievement of the Disadvantaged,” states are required to explain the method used to define “annual yearly progress.”36 When explaining this method, states may use the changes in the percentage of students in gifted and talented programs.37

Additionally, under Title II “Preparing, Training & Recruiting High Quality Teachers and Principals,” a Local Education Agency (LEA) application for sub-grants from the state must include an explanation of how the LEA will provide training to enable teachers to address the needs of students with different learning styles, including gifted and talented students.38 To that same end, under Title V “Promotion Informed Parental Choice and Innovative Programs,” funds to LEAs should be used for innovative assistant programs that may include “programs to provide for the educational needs of gifted and talented children.”39 Under Part D, “the Fund for the Improvement of Education,” there is a discussion regarding the national research center on gifted and talented students.40

Finally, under Title VII, “Indian, Native Hawaiian and Alaska Native Education” there is a reference regarding gifted and talented programs. The final reference to gifted and talented education is found in Title X, Part C on “Homeless Education” which requires LEAs that receive funds under the McKinney Act to provide homeless children services comparable to services offered to other students in the school, including programs for gifted and talented students.41 No research is available on the extent to which these NCLB provisions have affected the education of gifted students at the state, district, and school levels.

This article is timely, as Congress continues to debate whether to fund the Javits Act. The Act is necessary as there currently is no Federal requirement to identify or serve the Nation’s approximately 3,000,000 gifted and talented students.42 Although Congress’ decision will not specifically alter the legal duties of charter schools, it will nonetheless provide for an interesting debate about the future of gifted and talented programs.

Even with the Javits Act, advocates argue that more must be done. At least one legal scholar has noted that advocates must work to ensure additional legislative action at the national level.43 Many advocates desire a national mandate for the education of gifted students, but progress has been slow due to several factors, including the misperception that high ability students do not need special services; the commonly held belief that gifted students will not be harmed by a lack of services to the extent that disabled students would be harmed if, for example, IDEA provisions disappeared; and the need to focus advocacy efforts on protecting the Javits Act rather than on expanding beyond that legislation.44 In addition to more federal legislation, state laws are also needed to provide greater services than what federal laws may offer.45

A. Litigation involving Gifted and Talented Programs

A legal framework for gifted issues has developed over the past 20 years. The right to mediation through state statute and/or state board of education policy is available to those involved with gifted education in approximately 10 states.46 Twenty-eight states and the District of Columbia permit due process procedures for gifted students.47 These procedures are a less expensive means than litigation for settling gifted and talented issues in the public schools. As a result, several school officials have opted for due process hearings. A1998 study revealed that there were 26 due process hearing officer decisions regarding gifted education in 7 states from 1992-1995.48 Most of the hearings concerned appropriate placement or program eligibility. In addition to due process hearings, there has been a fair amount of litigation related to gifted and talented programs in public schools. The case law that has emerged from this litigation also provides some insight into the legal requirements for charter schools that provide opportunities for gifted and talented students. It is important to note that the U.S. Constitution does not implicitly or explicitly guarantee an education to the nation’s children.49 Thus, most of the significant litigation discussed revolves around individual state statutes.

For example, one New York court stated that a student’s emotional development and maturity, in addition to academics, must be considered when admitting students into an accelerated education program for gifted students.50 In this case, a student was denied admission to a gifted program because he did not meet the state age requirement. The student was only 10.7 years old and the requirement was 11.3 years. The court disagreed with the father’s argument that the age requirement was arbitrary. Specifically, the court reasoned that school officials based their decision on years of study regarding experiences of children.51 In another New York case, the court reasoned that if a public school creates a gifted and talented program, the school should look to state statutes regarding accommodations of students. In this case, a school district did not have enough space to accommodate one qualified student in a full- time gifted and talented program.52 When the student challenged the school board, the court found in favor of the school board because the statute made the establishment of the gifted program optional. The court also stated that the school district was only required to use state aid for the education of gifted students.53 As a result, the district had discretion regarding the implementation of the program. It is important to note, however, that this case could have had a different outcome in a state whose statutory language and/or structure was different from New York’s. For example, Pennsylvania has seen a lot of litigation regarding the statutory rights of gifted students. One of the reasons for the addi\tional litigation relates to its strong statutory requirements regarding gifted education.

In one Pennsylvania case, the appellate court rejected the school board’s argument that it did not need to provide services to a gifted student because such services were contingent upon the receipt of state funds.54 The court disagreed with the school district’s reasoning that state funds were not a condition precedent to providing students with an educational program. Instead, the school was required by statute to establish an education program for gifted students and it was a condition to its right to receive reimbursement from the state.55

In another Pennsylvania case, the parents challenged an individual education plan (IEP) because it did not include math instruction for their gifted son.56 Pennsylvania had a statute that stated that exceptional students should be given an IEP. The court ruled in favor of the school district because the school district provided the student with services not ordinarily included in the school district’s program. The court further reasoned that the school district must not maximize a student’s abilities. Contrarily, in a separate case, the Supreme Court of Pennsylvania found that an enrichment program did not provide an appropriate education that met the needs of the individual student’s IEP.57 The court held that pursuant to a state statute requiring an IEP for all gifted students, a student did have a right to a gifted education. However, the instruction did not have to be specialized to the extent that it included individual tutors or an exclusive individual program.58

In another Pennsylvania case, the court found no property interest in being placed in gifted education and no liberty interest insofar that the student failed to identify any information which she was precluded from receiving.59 The student’s complaint alleged that there were various statutory and constitutional violations when she was excluded from the gifted education program. The student argued that she had a property and liberty interest in being placed in the gifted program because gifted education was the preferred education assignment. The court held that this dispute concerned state law and the student therefore did not have a property interest in being placed in a gifted program.60 This case specifically demonstrates that charter school officials must understand their state specific statutes.

In addition to state statutes, it is necessary for charter school officials to understand the requirements of the state constitution. For example, in a Connecticut Supreme Court case, the court ruled that a gifted and talented student was not being denied a free public education under the state constitution when the student was denied the right to special education.61 In this case, the student was identified as being gifted in kindergarten. As a result, his parents requested that the special education program be designed to meet their son’s individual needs.62 Although the school board offered the student some individualized attention, it refused to provide an individualized plan. As such, the parents alleged that the school board violated their son’s fundamental right to an education as guaranteed by the Connecticut Constitution.63 The court ultimately sided with the school board in a unanimous decision that held that a gifted student’s state constitutional right to a free public education did not require the right to special education. The court noted that there was a rational basis for the different treatment between gifted students and students with disabilities because the needs and abilities of the two groups were sufficiently different.64 Thus, the legislature could reasonably have treated them differently.

The disproportional under-representation of minority students receiving gifted education has also been at issue in some lawsuits. The Office for Civil Rights (OCR) is charged with ensuring that gifted and talented programs operate in a non-discriminatory manner. A 1997 study revealed the majority of complaints to the OCR from 1992-95 involved minority access to gifted programs.65 This line of cases is especially important for charter school officials to understand, as data suggest that charter schools are more racially and ethnically segregated than traditional public schools.66 In an Illinois case, the Illinois State Board of Education alleged that the school district’s gifted program was operating in a discriminatory manner because minority students were underrepresented.67 As a result, the State Board of Education withheld funding from the school district. The court held that the Board improperly withheld the funds from the school district because the Board did not have the authority to do so under the state statute.68

In another case, an African American parent alleged that the school board violated her son’s rights through ability grouping and placement practices for special education and gifted programs.69 Although the federal district court believed that ability grouping was problematic, the court did not find that the disproportionate representation of minority students in gifted classes had a segregative effect. Specifically, the parent failed to provide evidence that the school district intentionally discriminated in admitting students into the gifted program.70 A gifted program was one of many issues in Keyes v. Congress of Hispanic Educators^ The federal district court refused to grant the student(s) relief despite acknowledging that minorities were disproportionately underrepresented in the school’s gifted program. The court noted that school officials had taken the necessary steps to equalize participation of minority students in the gifted program.72

Likewise, charter school leaders may need to take similar steps. As minority students are already disproportionately represented within many charter schools, charter school leaders should take extra precautions when providing gifted services.73 The Simmons case suggests that charter school leaders must be careful not to discriminate intentionally; indeed, charter schools may need to put mechanisms in place to address disproportionality in gifted programs in order to satisfy this requirement.

III. CONCLUSION

Many charter schools specifically target and serve student populations of under-resourced backgrounds and students at risk for school failure. In addition, state educational accountability systems-in which all charter schools participate-almost uniformly focus on whether students meet minimal standards of performance on standardized achievement tests. As a result, gifted education may be lost in the mix. Gifted education may also be hindered because charter school student populations are often smaller than traditional public schools. Specifically, unlike traditional public schools that have already established gifted and talented programs, charter schools may not have had the time or resources to consider gifted education (especially when such schools are legally required by IDEA and state statutes to address the needs of disabled students). Furthermore, given the perception of gifted education as an unnecessary but attractive “add-on” to more traditional K-12 education programs and services, charter schools-many of which are struggling to implement these traditional services and their required infrastructure-may simply see the creation of gifted education services as a low priority. On the plus side, however, the smaller student population may permit charter school officials the opportunity to work with parents in developing educational plans for gifted students.

Interestingly, a growing number of charter schools are choosing to gear their curriculum toward gifted students. Charter elementary and high schools with missions specifically aimed at serving a gifted and talented population have been formed or proposed in several states, including Delaware, Ohio, Pennsylvania, Colorado, North Carolina, and California.74 Stargate School, a chartered K-8 school in Colorado, “was founded specifically to meet and exceed academic and socio-emotional requisites of this population, identified by the State of Colorado as ‘special needs children.’”75 Similarly, the mission statement of a North Carolina charter school reads: “The Metrolina Regional Scholars’ Academy is a nondiscriminatory, public charter school that provides a differentiated, exceptionally challenging education for children of extremely high academic or intellectual ability, ages 4 to 13.”76 Likewise, the Westside Charter School in Los Angeles hopes to fill the void among traditional public schools that meet the education, emotional, and social needs of gifted children.77 A few virtual or online charter schools have also been created to target the gifted population. Overall, however, the number of charter schools specifically designed for gifted students is quite small. The vast majority of charter schools serve more intellectually diverse populations, and these schools must grapple with how to best support their gifted students, while simultaneously fulfilling the needs of a more academically varied student body.

Charter school leaders should be aware of both state and federal laws regarding charter schools. As the article demonstrated, gifted education varies greatly across states, and the state statutes are often difficult to understand. However, charter schools have the ability to provide additional opportunities beyond what the law requires, and such opportunities should be considered given the research evidence that gifted students often fail to succeed and often underachieve when they are not sufficiently challenged in traditional K-12 classrooms.78 Research also suggests that gifted students who feel stifled by the traditional school curriculum may drop out of school.79 Of course, most charter schools operate in a free market system in which com\petition for students may be heightened. Regardless of the legal obligations of charter schools toward gifted students, school organizers should consider the competitive advantages of addressing the education of gifted students within their charter schools.

1. Charter school terminology varies somewhat across states. In this article, “authorizer” or “sponsor” refers to the entity that approves the proposed school and issues the charter. “Organizer” refers to the entity that proposes the school and is responsible for its daily operation and accountable for its performance.

2. The White House: Hartford Debate ’96: The First Presidential Debate Between President & Senator Dole Part 3, M2 PRESSWIRE, Oct. 8, 1996.

3. Minn. Stat. 120.064(1993).

4. Center for Educ. Reform (2004), available at http:// www.edreform.com (accessed July 14, 2004).

5. U.S. Dept. of Educ. (2004), available at http://www.usdoe.gov (accessed July 5, 2004).

6. See id.

7. Jay P. Heubert, Schools Without Rules: Charter Schools, Federal Disability Law and the Paradoxes of Deregulation, 32 Harv. Civ. Rights-Civ. Libs. L. Rev. 301 (1997).

8. Casey D. Cobb & Gene V. Glass, Ethnic Segregation in Arizona Charter Schools. Education Policy Analysis Archives, 7(1), available at http://epaa.asu.edu/epaa/v7nl/ (accessed October 8, 2003); see also William Haft, Charter Schools and the Nineteenth Century Corporation: A Match Made in the Public Interest, 30 Ariz. St. LJ. 1023 (1998).

9. President William J. Clinton, State of the Union Address (February 4, 1997).

10. Erika Frankenberg, Chungmei Lee, & Gary Orfield (2003, January 16). A Multiracial Society with Segregated Schools: Are We Losing the Dream! Cambridge, MA: The Civil Rights Project at Harvard University, available at http://www.civilrightsproject.harvard.edu/ news/pressreleases, (accessed August 11, 2003).

11. Thomas L. Good & Jennifer S. Braden, Charter Schools: Another Reform Failure or a Worthwhile Investment, 81 Phi Delta Kappan, 745- 750 (2000).

12. Gifted and Talented Students Education Act of 2003, 108th Congress S 501 (2003).

13. Joseph S. Renzulli, What Makes Giftedness? Reexamining a Definition. 60 Phi Delta Kappan, 180-184, 261 (1978); see also Joseph S. Renzulli, What is this Thing Called Giftedness, and How do We Develop It? A Twenty-Five Year Perspective. 23 Journal for the Education of the Gifted, 3-54 (1999).

14. Robert J. Sternberg & Janet E. Davidson, Conceptions of Giftedness. (Cambridge, MA: Cambridge University Press, Eds.) (1986); see also Robert J. Sternberg & Janet E. Davidson (Eds.), Conceptions of Giftedness (Cambridge, MA: Cambridge University Press 2nd ed.) (in press).

15. Joseph S. Renzulli, School for Talent Development, (Mansfield Center, CT: Creative Eearning Press) (1994); see also Joseph S. Renzulli & Sally M. Reis, The Schoolwide Enrichment Model: A Comprehensive Plan for Educational Excellence (Mansfield Center, CT: Creative Learning Press) (1985).

16. For example, students often take college entrance exams such as the SAT as seventh and eighth grade students.

17. Julian C. Stanley, On Educating the Gifted. 9 Educational Researcher, (3), 8-12 (1980); Julian C. Stanley & Camilla P. Benbow, Using the SAT to Find Intellectually Talented Seventh Graders. 122 College Board Review, 2-7, 26-27 (1981).

18. Carolyn M. Callahan, Carol A. Tomlinson, Scott L. Hunsakder, Lori C. Bland, & Tony Moon, Instruments and Evaluation Designs Used in Gifted Programs (Storrs, CT: National Research Center on the Gifted and Talented) (1995); see also Scott L. Hunsaker & Carolyn M. Callahan, Creativity and giftedness: Published Instrument Uses and Abuses. 39 Gifted Child Quarterly, 110 114(1995).

19. 20 U.S.C.S. 7801 (LEXIS 2004).

20. Perry Zirkel, The Law of Gifted Education. The National Research Center on Gifted and Talented. University of Connecticut (2003, June).

21. 20 U.S.C. 6301 et seq. 2002

22. Charles J. Russo. Education Law and Policy: Unequal Educational Opportunities for Gifted Students: Robbing Peter to Pay Paul, 29 Fordham Urb. LJ. 727 (2001).

23. Frances Karnes & Ronald Marquardt. Know Your Legal Rights in Gifted Education. ERIC Clearinghouse on Disabilities and Gifted Education; see also Frances Karnes & Ronald Marquardt (1997). The Fragmented Framework of Legal Protection for the Gifted. 72 Peadbody Journal of Education, (3), 166-179 (1997).

24. U.S. Dep’t of Educ., Nat’l Qr. for Educ. Stat., Digest of Education Statistics tbl. 54 (2001), available at http:// nces.ed.gov/programs/digest/dol/tables/PDF/table054.pdf (accessed September 3, 2004).

25. See e.g. Ariz. Rev. Stat. Ann. 15-761(4) (WEST 1990); CaI. Educ. Code 52200(c)(2) (West Supp. 1990); Ind. Code Ann. 20-10.1- 7-4.5 (LEXIS 1985); Kan. Stat. Ann. 72-961 (1985); 20 Me. Rev. Stat. Ann., 8101 (1983); Neb. Rev. Stat. 79-339 (1987); N.Y. Educ. Law 4452(l)(a) (McKinney 1990); N.D. Cent. Code 15-59- 01(2)(1989); Wis. Stat. Ann. 118.35 (West. Supp. 1990).

26. Mary Lou Herring. Model Federal Statute for the Education of Talented and Gifted Children, 67 Chi.-Kent L. Rev. 1035 (1991).

27. Conn. Gen. Stat. 10-76a(e), 1991.

28. See Gifted and Talented Education Act, 2003, supra n. 12.

29. See id.

30. Massachusetts Association for Gifted Education, available at http://www.massgifted.org/ index.html (accessed September 2, 2004).

31. Margaret Weertz, The Benefits of Theme Schools. Educational Leadership, 68, 69-71 (2002).

32. See Zirkel, supra n. 20.

33. Council for Exceptional Children. Public Policy Update. Gifted and Talented Students, available at http://www.cec.sped.org/ pp (accessed September 8, 2004).

34. See id.

35. 20 U.S.C.S. 7801 (LEXIS 2004).

36. 20 U.S.C. 6301 et seq. (2002).

37. 20 U.S.C. llll(b)(2)(C)(vii) (1998).

38. 20 U.S.C. 2122(b)(9)(A)).

39. 20 U.S.C. 5131(a)(7).

40. 20 U.S.C. 5461-5466.

41. 20U.S.C. 772(g)(4)(D).

42. See generally Herring, supra n. 26 at 1052.

43. See Russo, supra n. 22.

44. See id.

45. See id.

46. See Karnes & Marquardt, supra n. 23.

47. Frances Karnes, Debra Troxclair, & Ronald Marquardt, Due Process in Gifted Education. 20 Roeper Review, (4), 278-83 (May 1, 1998).

48. See id.

49. San Antonio Indep. Sch, Dist. v. Rodriguez, 411 U.S. 1 (1973).

50. Ackerman v. Rubin, 231 N.Y.S.2d 112 (Sup. Ct. 1962), aff’d, 232 N.Y.S. 2d 872 (App. Div. 1962).

51. See id. at 113-15.

52. Bennett v. City Sch. Dist. of New Rochelle, 497 N.Y.S.2d 72 (1985).

53. see id. at 78-80.

54. Central York Sch. Dist. v. Cmmw., 399 A.2d 167 (Pa. Cmmw. 1979).

55. see id. at 168-71.

56. Scott S. v. Cmmw. of Pa. Dept. ofEduc., 512 A.2d 790 (Pa. 1986).

57. Centennial Sch. Dist. v. Dept. ofEduc., 539 A.2d 785 (Pa. 1988).

58. see id.

59. Student Roe v. Cmmw., 638 F. Supp. 929 (E.D. Pa. 1986), aff’d 813 F.2d 398 (3d Cir. 1987).

60. see id. at 932 -934.

61. Broadley v. Bd. ofEduc., 639 A.2d 502 (Conn. 1994).

62. see id. at 507-08.

63. see id. at 504.

64. see id. at 505-507.

65. Frances Karnes & Debra Troxclair (March 1997). The Office for Civil Rights and the Gifted: An Update. 19 Roeper Review, (3), 62- 65.

66. Erika Frankenberg & Chungmei Lee (2003). Charter schools and race: A lost opportunity forintegrated education. Cambridge, MA: The Civil Rights Project at Harvard University, available at http:// www.civilrightsproject.harvard.edu/research/deseg/Charter_Schools03 .pdf (accessed August 29, 2004); see also Preston Green, Racial Balancing Provisions and Charter Schools: Are Charter Schools Out on a Constitutional Limb! 2001 BYU Educ. & LJ. 65 (2001).

67. Board of Educ. v. Sanders, 502 N.E.2d 730 (111 App. 1986).

68. see id. at 735-37.

69. Simmons v. Hooks, 843 F. Supp. 1296 (E.D. Ark. 1994).

70. see id. at 1303-1304.

71. Keyes v. Cong. of Hispanic Educators, 902 F. Supp. 1274 (D. CoIo. 1995).

72. see id. at 1301-10.

73. see id.

74. Hoagie’s Gifted Education Page available at hltp:// www.hoagicsgiftcd.org/schools.htm; and Genius Denied available at http://www.geniusdenied.com/Cybersource/ (accessed December 15, 2004).

75. Stargate School Website available at http:// www.stargateschool.org/brochure.html (accessed December, 15, 2004).

76. Metrolina Regional Scholars Academy Website available at http://www.scholarsacademy.org/ (accessed December 15, 2004).

77. Westside Charter School Website. Retrieved December 15, 2004, available at http://www.highlygifted.org.

78. see Russo, supra n. 22.

79. see id.

SUZANNE E. ECKES* and JONATHAN A. PLUCKER**

* Suzanne E. Eckes is an assistant professor in Educational Leadership and Policy Studies at Indiana University.

** Jonathan A. Plucker an associate professor in the Department of Counseling and Educational Psychology. Dr. Plucker is the Director of the Center for Evaluation and Education Policy (CEEP) at Indiana University.

Copyright Jefferson Law Book Company Jul 2005