.... :
4:...“ in

. .
L»
{.JF
$2.32..) .
f 1

 

..
giit ._

:3. .2. .
"W J.E£
.r .3. .
Wan...“
L 3...».

. .

.33.):

Hahn; . ..
.ufiw. an Luau.
i n »

 

 

 

.11
0.31.» :

 

 

 

.\. Irkattzflwh It 1.)...an . . S... . ”.4:

    

3:: .l.

E...

mm...
, Lr L35”.

      

3 llllUlllllllllllllllllIIIIHllllllllllllllllllllllllllll

i‘7‘30' 3 1293 01834 2018

 

LIBRARY 7
Michigan State
University ‘

 

 

This is to certify that the

dissertation entitled

An Analysis of the Legal and
Policy Arguments for the
Inclusion of the Gifted Handicapped
in Gifted Education Programs

presented by

Mary E. Scott

has been accepted towards fulfillment
of the requirements for

Ph .D . degree in Education

 

 

93311374494042

Major professor

Date q“ 3a ’49

 

MS U Lt an Affirmative Action/Equal Opportunity Institution 0— 12771

A- L

H *.*

,~ 'F‘b‘

“a 9*

- M-‘

--1.-§‘- a. -—q'_‘p 'fhv—Qb 9 fi‘*-'

A“

PLACE IN RETURN Box to remove this checkout from your record.
TO AVOID FINES return on or before date due.
MAY BE RECALLED with earlier due date if requested.

 

DATE DUE DATE DUE DATE DUE

 

{ '2'1Aqfi0f‘ 3‘

uvl— ‘1 H Lv'v3

AUG 1 9 2003

113;;ij
WVJHY

 

 

 

 

we222@%3

 

 

 

 

 

 

 

 

 

 

 

 

1m GICIWpGS-nfl

AN ANALYSIS OF THE LEGAL AND POLICY
ARGUMENTS FOR THE INCLUSION OF THE
GIFTED-HANDICAPPED IN GIFTED EDUCATION PROGRAMS

By

Mary E. Scott

A DISSERTATION

Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of

DOCTOR OF PHILOSOPHY
Department of Counseling, Educational Psychology
and Special Education

1999

ABSTRACT
AN ANALYSIS OF THE LEGAL AND POLICY
ARGUMENTS FOR THE INCLUSION OF THE
GIFTED-HANDICAPPED IN GIFTED EDUCATION PROGRAMS
By

Mary E. Scott

The educational potential of over 300,000 gifted-handicapped children in the United
States is at risk. While the Education for All Handicapped Children Act, now called the
Individuals with Disabilities Education Act, mandates a free and appropriate education for
these children, the Supreme Court, in W

W, held that that law requires no more than one grade a year progress.

Gifted-handicapped children, who could progress at a faster pace, have no guarantee that they
will be helped to reach that potential.

This thesis will demonstrate that, where a school system provides a program for gifted
students, the gifted-handicapped child should have access to the program. Strong policy
grounds for such inclusion will be presented, ranging from the contribution these talented
individuals can make to society to the need to treat the gifted-handicapped equitably with the
non-handicapped gifted child. Perhaps more importantly, legal arguments will be developed,
based in the Equal Protection Clause of the United States Constitution, section 504 of the
Rehabilitation Act and the Americans with Disabilities Act, that lead to the conclusion that
such students cannot simply be excluded. Furthermore, the same sources will be shown to
provide a basis to argue that selection criteria must be adapted so as not to eliminate a

qualified handicapped child and that adaptive provisions must be made to allow the child to

be successful in the program.

The thrust of this thesis is that school systems that have programs for the gifted must
provide the gifted-handicapped the Opportunity to participate. This conclusion has
implications for the assessment methods used to identify gified-handicapped students. It also
requires accommodations within the gifted programs to allow the gifted-handicapped to
succeed. Specific assessment issues will be addressed and the limits of requirements for
accommodation will be discussed. The thesis will conclude with specific policy

recommendations on implementing the reforms required.

Copyright by
MARY ELIZABETH SCOTT
1999

DEDICATION

This dissertation is dedicated to my husband Kevin W. Saunders and my daughter
Molly Julia Saunders-Scott. They supported and encouraged me throughout the entire five
year program and more. It is also dedicated to my mother Edith V. Scott, who encouraged

me through two PhD. programs. She died on February 12, 1999.

ACKNOWLEDGMENTS

The author wishes to thank her guidance committee for all their help and assistance.
Dr. Don Harnachek served as the chairman of my committee and was also a committee
member for my first Ph.D., twenty years ago. He has been a very positive influence in my life
and in all my academic work. Dr. Harvey Clarizio has taught me a great deal both in course
work and by his guidance in regard to this project. Dr. Joanne Keith was an inspiration to me
in the area of ecological thinking. I delighted in having had her as an instructor and in having
her on my committee. Dr. Susan Phillips helped acquaint me with the law with regard to
special education. I would not have tackled this project without having the knowledge I
gained in her course. All the people on my committee have helped me to gain new

understandings and I appreciate their help.

TABLE OF CONTENTS

List of Tables .

CHAPTER I: AN INTRODUCTION TO THE SHORTCOMINGS OF
GIFTED-HANDICAPPED EDUCATION

CHAPTER H: PUBLIC LAW 94-142 AND THE AMY ROWLEY CASE .

Special Education Before Public Law 94-142 . . . .
Public Law 94-142, the Education for All Handicapped Children

Act . . . . .
The Amy Rowley Case: Legal History and InterpretatiOns . .
Legal Implications of the Rowley Case for the Gifted-Handicapped
A Postscript on Amy Rowley the Person . .

CHAPTER III: AN EXAMINATION OF THE GIFTEDNESS CONCEPT
WITHIN THE SCHOOL AGE HANDICAPPED POPULATION
Definitions of Handicap and Giftedness .

Contributions of the Gifted-Handicapped .
Varieties of Gifted-Handicapped. .
The Invisibility of the Gifted-Handicapped

The Prevalence of the Gifted Handicapped In the POpulation Served .

by P. L. 94-142 . .

Learning Disabilities and the Intelligence Factor .

Examples of Disabilities Associated with Gittedness
Summary and Conclusion . . . . . . . .

CHAPTER IV: POLICY CONSIDERATIONS IN THE EDUCATION
OF THE GIFTED—HANDICAPPED
Arguments for Special Education
Arguments against Special Education .
Arguments for Giited Education.
Arguments against Gifted Education . . .
Issues Specifically for the Gifted-Handicapped
Summary and Conclusion .

15
16

22
24
31
37

39
41
47
51
55

58
6O
61
67

7O
73
76
81
85
9O
95

CHAPTER V: LAW AND THE GIFTED-HANDICAPPED: GETTING

BEYOND ROAMLEX . . .

The Equal Protection Clause .
Levels of Scrutiny under Equal Protection . . .
A History of the Equal Protection Clause In Special EducatiOn .
Education as a Fundamental Right . . . . .
Equal Protection and the Mentally Retarded .
The Role of Intent . . .

Section 504 of the Rehabilitation Act . .
Defining “Disability”in the Rehabilitation Act
“Otherwise Qualified” Individuals
Identifying Discrimination .
Discrimination and Assessment

The Americans with Disabilities Act . .
Defining “Disability” in the Americans With Disabilities Act.
Learning Disabilities and the Americans with Disabilities Act
Other Special Education Categories

Revisiting the Rowley Decision .

Summary and Conclusion .

CHAPTER VI: IMPLICATIONS OF THE ARGUMENTS FOR
INCLUSION OF GIFTED-HANDICAPPED CHILDREN IN
GIFTED PROGRAMS. . .

The Inadequacies of Standard MethOds of Assessment
Intelligence and Achievement Tests. . . . .
Adapting Tests to the Handicapped Population .

Teacher Nomination . . . .
Other Techniques and Modifications . . .

Identifying and Assessing the Characteristics of Successful
Handicapped Individuals . . . . . . .

Ecological Assessment .

The Drawbacks of the Medical Model.
A More Complete Vrew
The Ecological Approach.

Accommodations within Gifted Programs.
Specific Adaptations .
Limitations. . . .

Summary and Conclusion .

CHAPTER VII: OVERVIEW AND POLICY IMPLICATIONS FOR
GIFTED-HANDICAPPED EDUCATION

Appendix A: List of Cited Cases .

97
98
99

. 100
. 102
. 104
. 106
. 109
. 111
. 112
. 116
. 119
. 121
. 123
. 125
. 129
. 130
. 134

. 136
. 137
. 138
. 143
. 145
. 148

. 150
. 155
. 157
. 158
. 162
. 167
. 169
. 172
. 174

. 176

. 182

AppendiszLegalResearchMethods. . . . . . . . . . . . . . . .184

Bibliography........................186

LIST OF TABLES

Table l. The Incidence of Giftedness for Varying Disabilities

66

I
AN INTRODUCTION TO THE SHORTCOMINGS
OF GIFTED-HANDICAPPED EDUCATION

The very idea of a gifted-handicapped child may seem to be a contradiction. After all,
a gifted child is at the extreme positive end of the normal distribution of talents or abilities,
while a handicapped child is seen as being at the extreme negative end of such a distribution.
Nonetheless, why can’t an individual be gifted in some regard and Still be handicapped in
another? Why can’t a hearing impaired child be highly gifted in mathematics or in art? Why
can’t a mobility impaired child be a brilliant poet? Why can’t a dyslexic child be musically
talented?

History has certainly provided us with examples of such gifted-handicapped
individuals. While precise diagnoses may not be available, it is known that both Albert
Einstein and Thomas Edison were considered less than stellar students. Both were seen as
lacking in intelligence, yet both were obviously highly giited. Winston Churchill is said to
have suffered fi'om learning disabilities and to have been hyperactive, but he too was
obviously giited. A label like the hyphenated “gified-handicapped” must be applied to these
individuals and others like them. It is not the case that their giits and talents simply balance,
leaving them at the center of a normal distribution, or that one outweighs the other, leaving
them above or below the mean on a single normally distributed scale. Their giits and their

handicaps are in difi‘erent areas. They are far above the mean on one scale and below on a

2

separate scale. They are gifted-handicapped, and it has been estimated that there are over
300,000 such gifted-handicapped children whose educational potential is at risk (Piirto,
1994)

It might also be thought that the gifted-handicapped would have their needs met as
a result of the dictates of federal law. Federal law does require that all handicapped students
be provided a flea and appropriate education in the least restrictive setting possible. It might
seem then that a gifted-handicapped child would have his or her handicap addressed, while
at the same time being afforded the opportunity to participate in a gifted program. However,
there is no federal requirement that participation in a gifted program be an available option
for the gifted-handicapped, just as the nonhandicapped gifted child is not guaranteed such a
program.

The failure to mandate an education to match the gifts of a gifted-handicapped child
is not an injustice specific to them. While it may be argued that the failure to address the
needs of the gifted generally is unwise or even unjust, that is not an argument directed
specifically at the gifted-handicapped. Where there is a general failure to provide gifted
education, the handicapped are treated equally, in that regard, to the non handicapped. There
are, however, at least two ways in which treatment may not really be equal.

Ifthere is no gifted program in a school, gifted children will often still advance more
quickly than the average child. At least some gifted children will simply absorb more of the
material presented and will advance at a rate of more than one grade level per year. If the
gifted-handicapped child were given special attention for his or her handicap, that child might

also advance at more than a grade level per year pace, even without a special program aimed

3

at strengthening the child’s gifts. The difficulty, however, is that the fact that a gifted-
handicapped child advances at a pace of at least a grade level per year may mask the fact that
the child even has a disability. Furthermore, it may serve as a basis for the denial of special
education services.

The Supreme Court of the United States has held that the federal law mandating
special education services does not require that a handicapped children be given educations
that maximize their potential. All that is guaranteed is an education that provides the greatest
likelihood that handicapped children can perform like average children. A child advancing at
a grade a year pace has no legal right to demand additional services, even if the child is
capable of much more.

The second way in which a gifted-handicapped child may be treated unequally would
occur in a system that does provide a special program for gifted children. While the gifted-
handicapped child has gifts that could benefit fi'om such a program, the child is also
handicapped and may need services to mitigate the effects of the handicap. A school system
may be unwilling to provide both sorts of service to the same child. Perhaps more likely is
the possibility that the method used to identify children for the gifted program will fail to
identify the gifted-handicapped child. In either case, the gifted-handicapped child is not
provided the same access to a gifted program as is provided to the nonhandicapped gifted
child.

The thesis Ofthis efi‘ort is that the gifted-handicapped have a right to participate in any
gifted programs that a school system may choose to provide its nonhandicapped gifted

population. There may be cases in which a child’s handicap precludes participation in a

4

particular program, but that is a decision that must be made only after a careful study of the
specific program and the specific gifts and disabilities.

A system cannot simply choose not to provide gifted-handicapped students with
access, and it may not employ identification methods that screen out handicapped children
who are capable of participation in the gifted program. While the Supreme Court has limited
the availability of a legal argument under federal special education laws, there are other legal
arguments available. There are also policy arguments that demonstrate that, aside from the
legal arguments, it would be wise for society to ensure that the gifted-handicapped are
provided with the opportunities that are, or ought to be, provided to gifted children generally.

Inclusion in gifted programs will require an adequate identification process. The
ordinary indicators are inadequate for children who are gifted-handicapped. If the giftedness
of those children is to surface, alternative, more comprehensive techniques must be
employed. A decision in favor of allowing inclusion is not itself sufficient to assure inclusion
of the gifted-handicapped. To insure the inclusion of the gifted-handicapped, these children
must be identified. That will be the task of the school psychologist and other professionals,
and the techniques presently most commonly used are not up to that task. The implications
of the policy and legal arguments presented here will include the need for improved
identification methods to insure that gifted-handicapped children are adequately assessed for
inclusion in gifted programs.

Chapter II , Public Law 94-142 and the Amy Rowley Case, will analyze the state of
public education of handicapped children prior to the passage of Public Law 94-142, known

when passed as the Education for All Handicapped Children Act and now known as the

5

Individuals with Disabilities Education Act (IDEA). The legal issues in the pre-PL. 94-142
era will be examined and the policy concerns leading to the passage of the act will be
discussed, as will the requirements imposed by that law.

The discussion will then turn to a legal case that is important in the effort to help
gifted-handicapped children. The case will highlight the difficulties faced by gifted-
handicapped children. An examination of the opinions written by the various judges and
justices ruling on the case will provide an opportunity to consider the differing attitudes as
to what services PL. 94-142 requires for students who are handicapped but still capable of
advancing at a pace more rapid than the average nonhandicapped child. The arguments
presented will be important to any effort to spell out the rights of the gifted-handicapped in
other contexts.

The crucial case in this field is W (1982). The suit was
brought on behalf of Amy Rowley, a gifted-handicapped child, against the Hendrick Hudson
School District in New York. Amy Rowley, a deaf student with only residual hearing and lip
reading skills, who was also identified as gifted, began attending a regular elementary school
in 1977. Amy attended this school in kindergarten and accommodations were made for her.
School personnel took sign language training, and a teletype machine was installed because
her parents were also deaf. Amy was also provided with a hearing aid/amplifier to be used
by the teacher and other students.

In first grade her Individual Education Program or IEP (1978-79 school year) stated
that Amy should continue to use the amplification hearing device and that she should receive

instruction from a tutor for the deaf for one hour each week and speech therapy three hours

6

each week. Amy could understand less than halfof what was said without an interpreter. Her
parents insisted that a qualified sign-language interpreter also be provided in all academic
classes in lieu of the other IEP proposed services so that she might reach her potential as a
gifted child. Their request was denied and after a hearing, the examiner also determined that
the interpreter was not necessary.

The Amy Rowley case worked its way to the Supreme Court of the United States.
The Court examined two main questions: 1). What is meant by PL. 94-142's free and
appropriate education?, and 2). What is the role of the state and federal courts in such a
determination? The Supreme Court ruled that the first question Should be looked at as a basic
floor of opportunity, with specially designed instruction and provision of supportive services
to allow the child to benefit fi'om this special education. The Court held that the school had
done this with the IEP. With regard to the second question, the Court held that the lower
courts had overstepped their bounds in an area in which they held no expertise. The Court
stated that this decision must be left to the state and the local schools, and not the courts, to
decide. While students must receive support services to permit them to benefit fi'om that
instruction, if the child is in regular education, all that is required is that the child should be
helped to receive passing grades and advance from grade to grade.

The chapter will conclude with an analysis of the reaction to, and debate over, the
issue decided in the Rowley case. The post-litigation life of Amy Rowley will also be briefly
discussed.

Chapter II], An Examination of the Giftedness Concept within the School Age

Handicapped Population, will examine issues related to gifted-handicapped children who have

7

faced problems similar to those experienced by Amy Rowley, as well as children with other
combinations of giftedness and handicaps, such as those with learning disabilities or physical
impairments. Amy Rowley is certainly not alone in not having had her needs met as a gifted
and handicapped child. There is no question that many gifted students with exceptionalities
do exist. Eight percent of the school age population are enrolled in special education
(Heward, 1996), with exceptionalities including physical handicaps, moderate to severe
mental retardation, emotional problems, and vision losses and/or hearing losses. Many of
these children are also gifted.

The chapter will examine definitions of giftedness, because a realization that talent is
multifaceted is required in order to understand the possibility that a child may have a gift in
one area and be handicapped in another. The contributions of specific gifted-handicapped
individuals will then be presented to demonstrate the clear existence of such individuals.
Since it is obvious that there are gifted-handicapped children, the discussion will turn to the
subject of the failure to identify these individuals other than in hindsight. Lastly, an attempt
will be made to estimate the number of gifted-handicapped within the population served under
PL. 94-142. Each variety of handicap recognized under the statute will be examined for the
likelihood that a student so classified could also be gifted, and the results will be summed to
arrive at an overall estimated figure.

Chapter IV, Policy Considerations in the Education of the Gifted-Handicapped, will
examine the past and present policies involved in dealing with the gifted and handicapped.
An underlying problem for gifted and handicapped educational services has been, and

continues to be, that in the United States the overriding philosophy is one of equity for

8

everyone and a belief that all should receive equal treatment. In this country the educational
system gears up (or down) to have everyone be able to be equal, average, or alike and to give
equal time and treatment to all citizens. If any student receives more than this equal time or
treatment, the equity philosophy is believed not to be working. Although this concern for
equity motivated the movement to obtain Special education services for those with disabilities,
that has not insulated special education from complaints over the extra time and money such
students require (McDaniel, 1993). Where extra time and money are devoted to providing
for handicapped children who are also gifted and more capable of succeeding on their own,
the complaints may well become louder.

On the other hand, where gifted programs exist, they should be open to all those
capable ofbenefitting from the program and needing the enrichment to make their educational
experiences challenging and meaningful. It has been noted that gifted students come from
many different socioeconomic, ethnic, and racial backgrounds, as seen in their numbers
among the finalists in the National Merit Scholarship testing and other academic honors
programs (Schwartz, 1994). Nine percent of the students who took the American College
Testing examinations (ACT) in 1992 and scored at or above the ninety-fifth percentile
identified themselves as minorities. Considering that in the 1990 US. census, over twenty-
four percent of the total population in the United States were minority, this figure indicates
that although minorities are represented, they are under represented in this area (F amighetti,
1996). All too often, other students with similar backgrounds and abilities may not have been

provided the language development and/or experiences necessary that make them identifiable
as gifted.

9

The same lack of representation is present for handicapped children. A major problem
with these students is that the they do not fit the image society has of the gifted. Another
problem is that the usual standardized tests used to identify the gifted, may not be appropriate
for the gifted-handicapped (Schwartz, 1994). Just as real equity requires that minorities be
given appropriate opportunity to succeed, the handicapped must also have those
opportunities. Furthermore, society as a whole stands to benefit fi'om contributions of the
gifted-handicapped, just as it does from contributions of minority gifted students and the
gifted in general.

The chapter will proceed by examining the policy arguments offered in favor of special
education generally, and it will be argued that those same policy arguments favor assuring
participation of the gifted-handicapped in gifted education programs. Policy arguments
offered against the dedication of significant resources to special education will then be
examined, and it will be argued that the arguments lose a great deal of whatever force they
have, when applied to the gifted-handicapped. The same approach will be employed in
examining policy arguments regarding gifted education. The arguments for such programs
also speak in favor of providing gifted education to gifted-handicapped children. The
arguments against such programs have less force with regard to the gifted-handicapped and
certainly would not justify excluding the gifted-handicapped.

Chapter V, Law and the Gifted-Handicapped: Getting Beyond Rowley, will examine
legal arguments, including changes in the law, since the United States Supreme Court decided
that PL. 94-142 did not require additional services for Amy Rowley. Those changes provide

a basis for arguing that, where gifted programs exist, accommodations must be made for

10

gifted children who are handicapped. Rowley concludes only that Public Law 94-142 does
not require additional services for handicapped children who are advancing at a minimum of
a grade a year. There are other legal arguments that may be advanced to require services in
such cases or to include such children in gifted programs.

The Equal Protection Clause of the United States Constitution may be argued to
require equity in the services given the handicapped. That was, in fact, the legal approach
that proved successful in demands for the inclusion of handicapped children in public
education in the era prior to PL. 94-142. It may also have a role to play in requiring the
inclusion of gifted-handicapped children in gifted education programs. There are issues to
be discussed as to whether there is a fundamental, constitutional right to education, whether
the handicapped are a class requiring special legal protections and the legal effect of using
tests that are less likely to identify as gifted handicapped children who are, in fact, gifted.
Nonetheless, even with these difficulties, the Equal Protection Clause may guarantee an
opportunity to participate.

An alternative approach, that will also be analyzed to better determine just what it
would provide, is Section 504 of the Rehabilitation Act. That statute prohibits discrimination
against the handicapped in any program receiving federal funds. It may be argued that
Section 504 requires more service for the gifted-handicapped, but there are issues involving
the qualifications of handicapped children who wish to participate, what constitutes
discrimination and what accommodations must be made when the gifted-handicapped are
included in a gifted program.

The Americans with Disabilities Act also requires accommodations for the

ll

handicapped in both employment and in access to public services and places of public
accommodation. Accommodations to allow the handicapped to benefit from programs may
be argued to include those necessary to allow gifted-handicapped children to benefit from any
existing gifted programs. Again, there are issues to be examined, in particular when a person
is to be considered handicapped for purposes of the statute.

Lastly, Rowley will be reexamined in the context of participation by gifted-
handicapped children in existing gifted programs. The situation does difl‘er from that in which
a child requests additional special education services to advance at a greater than average
rate, when nonhandicapped students are not provided a program to enrich their educations.
Instead of requesting an opportunity not provided the nonhandicapped, the gifted
handicapped child is simply requesting the same sort of opportunity available to the gifted
nonhandicapped child.

Chapter VI, Implications of the Arguments for the Inclusion of Gifted-Handicapped
Children in Gifted Programs, will examine the changes that will be required in the
identification procedures for selecting participants in gifted programs. Gifted-handicapped
children fail to fit the norm in at least two ways. They are above average in some regards and
below average in others. In at least some instances the assessment technique employed to
identify giftedness will focus on an area in which the gifted-handicapped child is below
average and fail to identify the child’s strengths. It would seem obvious that, in order to
make judgements about difi‘erent groups of individuals, we must understand the different
influences on their performance (Armour-Thomas, 1992). In order to assess students who

are different, schools must become aware of such neglected or misunderstood input when it

12
comes to gifted-handicapped students.

Armour-Thomas (1992) says there are certain factors which must be stressed if the
assessment of this group is to be accurate. “First, our assessment procedures must be
sufliciently flexible, diagnostic, and dynamic to provide not merely the presence or absence
of cognitive competencies assessed at a particular point in time, but must include information
about the developing child’s changing ecological conditions that may have enabled or
impeded the manifestation of the competencies appraised. Second, intellectual assessment
practices should ascertain an individual’s potential for the acquisition of the competencies of
interest and to predict what interventions would most likely lead to the development and
nurturance of such competencies over time”. (p. 561)

The inadequacies of the commonly used instruments will be presented and ideas for
adapting those instruments will be discussed. The characteristics of successful handicapped
individuals will also be briefly discussed, and existing instruments to measure those
characteristics, such as persistence, problem solving abilities, attention, concentration and
memory, will be identified.

It will also be suggested that the shortcomings of the commonly used instruments
might be overcome by the inclusion of ecological assessment techniques. Ecological
psychology began to develop in the 19403 when Roger Barker (1968) emphasized the need
to examine naturally occurring behavior in natural settings. The term ecological comes from
the Greek word meaning house. In more general use, “ecological” has come to refer to the
environment. Psychologists who work from an ecological framework stress the

interdependence of behavior and environment. L.S. Vygotsky (1962) believed child

13

development to be a dynamic process of adaptation and readaptation to the social
environment. Urie Bronfenbrenner (1979) embellished and expanded on some of both
Barker’s and Vygotsky’s ideas.

Ecological assessment may help overcome the Shortcomings of other varieties of
assessment. According to John Feldhusen (1992), a major theoretical change occurring in the
field of gifted education is that we now are recognizing that giftedness is not a unitary trait
to be diagnosed at one point in time with a particular test or scale. Gifted learners are diverse
and their development is determined by many factors, ranging from genetic forces to
environmental events at home, school, and community.

The field of gifted education is now reernerging as a field of talent development. This
development of talent goes on in many places and under a variety of circumstances. Many
diverse situations and individuals must be involved in this process. No one test at one point
in time can possibly determine this development. An ecological approach can greatly expand
our understanding (Hewett, 1987, Johnson, Johnson, & DeMatta, 1991, Swartz & Martin,
1997). The policy considerations for, and legal requirements of, inclusion and the
inadequacies of common identification procedures will be argued to demand the development
of ecological assessment techniques.

Lastly, consideration will be given to accommodation issues once a gifted-
handicapped child is identified for inclusion in a gifted education program. While Rowley
may not have required additional services when a handicapped'child in a regular education
program was advancing at a greater than average pace, the same may not hold true where a

gifted program is concerned. If the gifted-handicapped child is to be accommodated, as at

14

least required by the Americans with Disabilities Act and Section 504 of the Rehabilitation
Act, the child cannot simply be identified and then be left to fail. Meaningful access requires
an opportunity to succeed and that opportunity may require that the child receive the sort of
services that the nongifted handicapped child receives when mainstreamed into a regular
education program.

The main purpose of this dissertation is to make clear that gifted-handicapped children
must be included in any gifted education programs a school system may institute. This
population is often ignored in selecting students for such programs. There are Strong policy
reasons why the gifted-handicapped should be included. There are also legal grounds for
asserting a requirement that these students be included. Inclusion will not result from a simple
decision not to exclude. An aflirmative effort is required to identify the gifted-handicapped
going beyond reliance on the most common assessment procedures. Furthermore, once
admitted, the gifted-handicapped child must be given an opportunity to succeed.
Accommodations addressing the needs of the gifted-handicapped must be made, so long as

they do not change the essential nature of the program.

II
PUBLIC LAW 94-142 AND
THE AMY ROWLEY CASE
Much of the story of present day handicapped education is told in Public Law 94-142
(1975), originally called the Education for All Handicapped Children Act, but now known as
the Individuals with Disabilities Education Act or IDEA. That statute mandated that all
school systems receiving federal fiinds accept and educate, in an appropriate manner, all
handicapped children. But, to a large degree the story of the education of handicapped
children, who are also gifted, is told through the legal battle fought for the young girl named
Amy Rowley. As a deaf and also gifted child, Amy Rowley did not receive an education
which was appropriate to meet the needs of both her handicap and her giftedness. Amy’s
story demonstrates that there has been a gap in the completeness and appropriateness of
services that the educational system, and society as a whole, is willing to provide to children
who are gifted and also handicapped.
The story of the Amy Rowley case is complicated. It is related to the promises of PL.
94-142 and to society’s reaction to handicaps and giftedness. It starts in a local school and
reaches the Supreme Court of the United States. The continuing story of children like her is
affected by additional legislation. The analysis of all this input can help to provide a
perspective on where the gifted handicapped have come from and where they may be headed

in the future. It can also help us know what must occur if they are to reach their potential.

15

16
f ' w 4-

P.L. 94—142 certainly was a major step forward for individuals with handicaps. In the
early history of education and society generally, the handicapped were often misunderstood,
mistreated and abused (Gearheart, Mullen, & Gearheart, 1993). They generally found
themselves outcasts from society. Superstition, the fear of the unknown, often ruled how
people with handicaps were viewed in these earlier times. The major concern of the
handicapped in such circumstances was mere survival, and education would have been the
least of their worries. Indeed, for much of history, people who had disabilities were not given
any education at all.

The early history of the treatment and education of individuals with handicaps, prior
to the nineteenth century, consisted primarily of avoidance and extermination. While the
nineteenth century had been the era of institutionalization of the mentally retarded and deaf,
the twentieth century became the era of schooling. Within the twentieth century, the 19505
and 19605 were a time of national support and legislation, while the 1970s provided an era
of normalization, due to the mandates in PL. 94-142 (Gearheart, Mullen, & Gearheart,
1993).

The development of educational philosophies regarding handicapped children occurred
in several phases. The first phase did not occur until the late nineteenth century. During this
time, the approach was to remove handicapped children to separate classes or buildings, in
order to relieve teachers and other children of the stress of being with those having such
handicaps (Rothstein, I995). Up until the latter part of the twentieth century, much of the

“education” of children with handicaps was received in institutions which isolated them from

17

the rest of society. In the 19505 and 19605, when some education of the handicapped moved
back into the public schools, a handicapped child might be found receiving education in a
broom closet or in the basement next to the boiler. Available programming was diluted and
provided training only for minimal sorts of jobs. It was not believed that children who were
handicapped had any worth or capacity above that level. Until the enactment of PL. 94-142
in 1975, the treatment and education of individuals who had handicaps were clearly less than
desirable.

It was a general belief in society that handicapped children would not be able to lead
meaningful lives. As a result of this belief, society denied services and education to
handicapped children. For much of history, even parents of handicapped children were led
to believe that their children had no hope. As knowledge of the handicapped improved,
parents started to recognize that their children were being denied services which are
guaranteed under the Constitution and began a program of litigation to secure those rights
(Sen. Report No. 94-168, 1975).

With such a history of exclusion and resistance toward assisting and educating
handicapped students, the necessity of enacting laws that would mandate that such assistance
and education be provided became clear. PL. 94-142 brought together various earlier
enactments from the 19505 and 19605 and put into Statutory form what some courts had
already determined were rights of the handicapped.

Prior to 1966 the Federal Government had done little to assist in the education of
handicapped children. In 1966, the Congress added Title VI to the Elementary and

Secondary Education Act, PL. 89-750. The Bureau of Education for the Handicapped was

18

established by this law and was to provide the leadership necessary for the field (Senate
Report No. 94-168, 1975). In 1970, amendments to PL. 89-750 were enacted in the
Elementary, Secondary, and Other Educational Amendments of 1969, PL. 91-230. These
amendments provided grants for states to initiate, expand and improve their programs for the
handicapped. These efforts brought an increased awareness of the educational needs of
handicapped children.

Landmark court decisions also pointed to an increased need for Federal fiscal
assistance. Thirty-six court cases in the various states led to the recognition of the rights of
handicapped children to an appropriate education. Various states were beginning to make
an efi‘ort to comply, but the states did not have the financial wherewithal]. PL. 94-142
followed as an efl‘ort to incorporate the major principles of the right to education cases and
to assist in providing federal firnds to the states to be used for the education of handicapped
children.

The promise of PL. 94-142 to the handicapped of a “free and appropriate education”
in the least restrictive setting possible was a novel concept. For so long, the handicapped had
been restricted to no education or to a segregated education that was not appropriate for their
needs. In 1975 the Bureau for the Education of the Handicapped estimated that more than
eight million children, birth to twenty-one years old, with handicapping conditions required
special education and related services, but only 3 .9 million of these children were receiving
an appropriate education. No education at all was being provided .to 1.75 million of that eight
million handicapped children, and 2.5 million handicapped children were receiving an

inappropriate education (Senate Report No. 94—168, 1975, p. 8).

19

Some varieties of handicapped children were more likely to receive special education
services than others. The differences among different populations seemed to depend on the
obviousness of the exceptionality. For example, among the mentally retarded, eighty-three
percent were receiving special education services in 1974-75, as were eighty-one percent of
speech impaired, seventy-two percent of orthopedically and other health impaired, seventy-
one percent of the deaf, fifty-nine percent of the visually impaired and thirty-three percent of
the deaf-blind or other multi-handicapped children were provided services. On the other
hand, only twelve percent of learning disabled children, eighteen percent of emotionally
disturbed, and eighteen percent of the hard of hearing were provided services (Senate Report
No. 94-168 1975, p.8). The more visible and the more profound exceptionalities received
more attention.

There were also differences in the services provided different age groups. While a
total of fifty percent of all handicapped children were receiving services, much less was done
prior to entering school. In the six to nineteen age group, fifty-five percent received services,
but among those under six years of age seventy-eight percent of the population was unserved
(Senate Report No. 94-168 1975, p. 8).

The lot of handicapped children was also dependent on the states in which they
resided. Some states provided services to all exceptional children, while others excluded
certain populations. For example, Califomia provided no service to the emotionally disturbed
or learning disabled, while addressing other exceptionalities (Senate Report No. 94-168,
1975, p.20). Kentucky and Louisiana both met the needs of the retarded more fully than they

met the needs of those with other exceptionalities, while Alabama and Georgia excluded the

20

profoundly retarded fiom their state educational mandates (Senate Report No. 94-168, 1975
p. 20-21).
Some of the differences from state to state may be explained by litigation. For

example, in 1972, parents of retarded children brought an action against the State of

Pennsylvania demanding an education for their children. In Pennsylvania Assggjamn {Qt

MW, the federal district court for the Eastern District of

Pennsylvania held that the state, having decided to provide an education for the children of
the state, could not constitutionally deprive mentally retarded children of their own
educational opportunities. Since such court decisions apply only in the local jurisdiction of
the court involved, the court’s mandate applied only in Pennsylvania. Similarly, with the
exception of federal law, statutes apply only in the states passing them. The needs of the
retarded, and the needs of those with other exceptionalities, were therefore addressed by
different statutory or case law mandates, depending on the state or federal court district
involved.

' was not the first

 

litigation over the educational rights of handicapped children, but it was one of the earlier
successfirl assertions of rights. One of the earliest legal decisions involving the education of
handicapped children was the Massachusetts Supreme Court case W
Cambridge (1893 ). In that case, no legal violation was found, when a mentally retarded child
was denied a public education because the school had found him to be troublesome and
because the school system felt he could not benefit from an education. In W

imitation (1919) the Wisconsin Supreme Court approved the decision to exclude

21

a child who had cerebral palsy because his condition and actions disturbed the teacher and
other students. The placement of exceptional children into education was a difficult problem,
especially after these early legal cases set a precedent for the acceptance of the practice of
exclusion of children with handicaps from public schools and a denial of equal educational
opportunities.

Judicial toleration of unequal educational treatment ended for disadvantaged black
school children in 1954. The Fourteenth Amendment of the United States Constitution first
began to play a role in handicapped education after that decision in M
Education (1954), which addressed school segregation or exclusion on the basis of color.
Although the Supreme Court did not hold that education was a fimdamental right guaranteed
by the constitution, the Court held that public education is a right which must be made
available to all on equal terms and that separate education was not equal education. This right
and the Court’s reasoning was then applied more broadly to include discrimination against the
handicapped as a class of persons. Parents began to demand public education for their
handicapped children based on the Equal Protection Clause, which they argued granted equal
opportunity for all children.

Bias in the placement of non-white disadvantaged children into special education was
contested in two cases, WW (1970) and M
(1971). Both of these cases involved claims of bias against children who were not from the
white, middle class culture. There was an over placement of culturally different children in
special education, and parents demanded the education provided their children be appropriate

to the children’s real needs.

22

As mentioned above, the exclusion of some handicapped children from public
education was challenged in 1972. In 1972, the W
W case was directed at the policies and practices in the schools of
Pennsylvania which led to denial of free and appropriate education for mentally retarded
children. This was a class-action suit for fourteen children who were receiving an education
inappropriate for their needs. As a result of the students’ victory in the court, the state of
Pennsylvania was ordered to provide an education that was appropriate to the learning
capacities of all mentally retarded children. This decision helped to dispel the notion that
mentally retarded children were uneducable and could be denied public education. This
anticipated the inclusion of providing a “free and appropriate education” for handicapped
children in PL. 94-142. A

The right to an education was then extended to children with other handicaps. In
Wu (1972), it was held that students cannot be
excluded from school on the basis of a handicap such as behavioral problems or mental
retardation or placed in special education without a hearing. These cases helped to make it
clear that public education could not be denied to handicapped children and that certain
procedural rights existed.

2111 91-1121 E1 . E 111H 1' lCl'll !

The litigation filed prior to PL. 94-142 made it apparent that handicapped children
were nOt receiving an appropriate education. While legislation in some states and litigation
in others led to the provision of an education for handicapped students within those states,

the variation from state to state showed the need for national legislation. PL. 94-142 was

23
passed to address this problem.

The Education for All Handicapped Children Act of 1975 mandated the inclusion of
all handicapped children in public education. Specifically, PL. 94-142 requires that all state
and local educational agencies which receive fimds under the Act provide a “free and
appropriate education” for each handicapped child. The statute also defines its terms. A
“free and appropriate education” is defined as

special education and related services which (A) have been provided at public

expense, under public supervision and direction, and without charge, (B) meet

the standards of the state educational agency, (C) include an appropriate

preschool, elementary, or secondary school education in the state involved,

and (D) are provided in conformity with the individualized educational

program required under section 1414(a)(5) of this title.

This free and appropriate education is to be given to all handicapped children in the least
restrictive environment possible. The least restrictive environment requirement provides that
insofar as possible the student be educated along with students without disabilities. All states
had to comply with this requirement. If they failed to do so, federal funds were to be withheld
from the state.

PL. 94-142 also granted parents, who had long served as advocates for their
handicapped children, due process rights. The individualized education program (IEP) was
the fundamental procedure for meeting the “fi'ee and appropriate education” and “least
restrictive environment” requirements. The requirement of an IEP is established by the Act’s
provision that “the local educational agency or intermediate educational unit will establish,

or revise, whichever is appropriate, an individualized educational program for each

handicapped child at the beginning of each school year and will then review and, if

24

appropriate, revise its provisions periodically, but not less than annually.” Parents also were
granted the right, under the act, to challenge the IEP at an impartial hearing. The hearing
decision is, in turn, subject to judicial review in state or federal courts. For the handicapped
this was a remarkable change in how they had been treated in the past. The battle over
educational and procedural rights seemed to have been won, although the details still had to
be spelled out.

One of those details was the effect of the statute on the education of students who
were both gifted and handicapped. The EennsxlxaniaAssociatianiQLRctardedLhildren and
Mills decisions impacted on all handicapped children, of which the gifted-handicapped are a
subgroup. PL 94-142 was a law for all handicapped children. The Equal Protection and Due
Process Clauses would seem also to apply to the gifted, yet the reductionist view the Supreme
Court was to give in the WM (1982) decision would only reiterate
the low priority the nation gave to providing services for needs for gifted children (Russo,
Harris, & Ford, 1994).

IllElC'IlH' II .

The story ofgifted—handicapped education, after and under PL. 94-142, is tied up in
the story of Amy Rowley. Amy Rowley was born in 1971, and she was a healthy and normal
baby. However, when she was seventeen months old, she sufi’ered a fever of 103 degrees.
Shortly after that time, she was identified as being hearing impaired. By 1976 she was
classified as deaf, however, it was also apparent that she was gifted. Despite whatever efl’ect
her hearing impairment might have had on an IQ. score, Amy’s reported IQ. was 122

(Smith, 1996, p.29). Ironically Amy Rowley’s parents, Nancy and Clifford, had also been

25

born with normal hearing, and each of them had also become deaf after a childhood illness.
Her mother, Nancy, became a certified teacher of the deaf, and She knew what advances had
been taking place in deaf education. Amy was taught to use sign language, which her parents
believed ofi‘ered her the best chance for language development and lifelong success. Amy’s
parents also wanted her to have as normal an educational experience as possible. They
wanted her to attend school at the Furnace Woods Elementary School near their home in
New York state.

Amy started school in 1977, two years after PL. 94-142 had been enacted as national
legislation. The act’s educational requirements and mandated procedures would have
appeared to apply to Amy, since she was a handicapped child. When Amy started school, she
had only residual hearing and some lip reading skills. Her primary method of communication
consisted of signing. She attended Furnace Woods Elementary School in kindergarten and
some accommodations were made for her. The school’s personnel took sign language
training, and a teletype machine was installed, so the school could communicate with her
family, as her parents were also deaf. She was also provided with a hearing aid/amplifier to
be used by the classroom teacher and her fellow students. For two weeks, a sign language
interpreter was provided, but the interpreter determined that sign language interpretation was
not necessary.

Under the requirements of PL. 94-142, an Individualized Education Program (IEP)
was to be written for every child receiving special education services. In first grade, Amy’s
IEP for the 1978-79 school year stated that she should continue to use the amplification

hearing device. She also was to have instruction from a tutor for the deaf for one hour each

26

week and speech therapy three hours each week. Her parents insisted that a qualified Sign-
language interpreter also be provided in all academic classes in lieu of the other IEP proposed
services. The hearing aid provided by the school often did not work, and when it did work,
it only helped in direct conversation with the teacher and only then if no other child asked a
question. At best this device allowed Amy to hear less than half of all that went on in the
classroom (Smith, 1996).

The Rowley’s request for an interpreter was denied. Amy’s first grade teacher did not
like the presence of the Sign language interpreter in the classroom (Smith, 1996, p. 35). The
interpreter was considered to be a distraction, and the teacher did not like Amy looking at
someone other than her, when she was teaching. The teacher also felt that there were other
children in the class who needed special help and were not getting it. Amy was a better
reader than many of those children.

Amy’s parents requested a hearing to resolve the disagreement. After a hearing, the
examiner also determined that the interpreter was not necessary because “Amy was achieving
educationally, academically, and socially without assistance” Way,
1982, p. 185). The case was appealed to the New York Commissioner of Education, but the
Commissioner afirmed the examiner’s decision.

The case was then taken to the United States District Court for the Southern District
of New York in 1980, claiming that the failure to provide an interpreter was a denial of the
fiee and appropriate education for Amy that was guaranteed by PL. 94-142. The court
found Amy to be remarkably well adjusted and that she got along with her peers and her

teachers. The court also noted that Amy was performing better than average in her class and

." "‘2‘." b ‘

27
was advancing easily from grade to grade.

On the other hand, the court noted that she understood considerably less than she
would have if she were not deaf. The court determined that, using hearing aids and lip
reading, Amy understood fifty-nine percent of the words spoken to her but that with the
addition of an interpreter she would understand one hundred percent of the words spoken to
her.

While the court recognized that she was doing “fairly well” in school, the judge
reached the obvious conclusion that she was not learning as much as she would had she not
been handicapped. While the school system had argued that an interpreter would disrupt the
classroom, the judge ruled that there would be no disruption and that Amy’s social
interactions would not be negatively affected.

The court took note of federal regulations defining an appropriate education as one
designed to meet the needs of handicapped children as adequately as the needs of
nonhandicapped children are met. While recognizing that an appropriate education could be
simply an adequate education, one that advances the child at a grade a year pace, the judge
recognized that it could also mean one that allows the child to reach his or her fiill potential.
He opted for an intermediate standard that would require that the handicapped child “be given
an opportunity to achieve his full potential commensurate with the opportunity provided to
other children” WM 1980, p. 534).

This standard would be addressed by measuring the difference between the
handicapped child’s potential and her actual achievement and comparing that difference to the

difference between potential and achievement in the school system’s nonhandicapped

28

population. This would provide more than a merely adequate education and allow those who
can progress more rapidly than a grade a year to do so, but it would not require school
systems to provide a potential-maximizing education to the handicapped, when it could not
do so for all its children. Having defined “appropriate education” the court determined that
Amy was receiving an adequate education, but she was not receiving a free and appropriate
education.

The case then went to the United States Court of Appeals for the Second Circuit,
which aflirmed the district court’s decision. The appellate court found the lower court’s
findings of fact to be adequately supported. It also agreed with the reasoning of the district
court judge. The court did seem concerned that its decision would be read too broadly as
establishing standards that would apply to all handicapped children. It was careful to state
that its decision was “limited to the unique facts of this case and is not intended as authority
beyond this case” WW 1980, p.948).

The concerns of the Second Circuit over a broad reading were born out. After the
Court of Appeals decision, the Rowley case caught the attention of the media (Smith 1996
p. 126). The Wings, in an editorial titled “Going Wrong with Handicapped
Rights,” expressed concern that the costs of special education would increase dramatically
(“Going Wrong,” 1980, p.16). The newspaper’s position was that the issue of allocating
public funds was a political decision best left to elected officials. The newspaper argued that
the courts should not order a school system to provide the services that the district and
appellate courts had mandated.

Given the media expressions of concern, it is perhaps not surprising that the case was

29

granted certiorari by the Supreme Court in 1981. At the Supreme Court, there were two
main questions explored in the Rowley case: 1.) What is meant by the Act’s free and
appropriate education?, and 2.) What is the role of the state and federal courts in such a
determination? While the district court had found no congressional guidance and had found
insight from other federal statutes, the Supreme Court limited the role of the courts to
determining the intent of Congress and found that Congress did provide a definition of
“appropriate education.” The definition provided, however, had little content, and the Court
admitted that the definition was “cryptic rather than comprehensive” W1.
Emmy, 1982, p. 188), but the Court said that that was not an adequate excuse for
abandoning a search for legislative intent.

The search for congressional intent led the Court to a conclusion that an appropriate
education is a basic floor of opportunity, with specially designed instruction and provision of
supportive services to allow the child to benefit fiom this special education. The only
substantive standards were those that are necessary to make access to education meaningfirl',
the education must be adequate.

The Court repeated the emphasis found in the Act’s legislative history. That emphasis
was on access and procedures as more important than substance and outcome (Zirkel, 1983).
The Court noted that the reports accompanying the passage of PL. 94-142 had spent
considerable time discussing two earlier lower court cases that had found constitutional
guarantees for the handicapped to receive an education. Since those lower court opinions had
stressed procedure, the Supreme Court concluded that procedure rather than substance was

at the heart of Congress’ concern. The Court also noted the figures on the provision of

30

services presented above and drawn from the Senate Report. The figures had noted the
percentage of handicapped children who were “served” or “unserved” for various handicaps.
The Court’s reading of the statistics was that children were considered “served.” if they were
receiving any sort of special education services. The Report characterized those who were
served as receiving an appropriate education, so in the Court’s view the report ‘immistakably
disclose[s] Congress’ perception of the type of education required by the Act: an ‘appropriate
education’ is provided when personalized educational services are provided” (W
W 1982, p. 197).

The Court, thus, rejected equal educational opportunity and self-sufficiency as
demanding either too much or too little, depending on the individual case. In fact, the Court
concluded that an equal opportunity standard would be unworkable, involving impossible
measurements and comparisons. The schools system’s obligations would be met, if the
system provides handicapped children “personalized instruction with sufficient support
services to permit the child to benefit educationally from that instruction” (W
Edusafimaltcwley. 1982, p. 203).

The Court held that the school system had met its obligation in developing an IEP.
And with regard to the second question, the Court held that the lower courts had overstepped
their bounds in an area in which they hold no expertise. The Court believed such decisions
must be left to the state and local schools where such expertise did exist and that the courts
should not substitute their own judgments.

Justice Blackmun wrote an opinion concurring in the judgment. While agreeing that

the school district was not required to provide an interpreter, he found more substance to the

31

requirements of PL. 94-142 than the majority had found. He seemed to accept an “equal
opportunity" approach, saying “the question is whether Amy’s program, viewed as a whole,
offered her an opportunity to understand and participate in the classroom that was
substantially equal to that given her nonhandicapped classmates” Wm
Rowley, 1982, p. 211). Nonetheless, he agreed with the outcome, because he felt that the
lower courts should have deferred to the expertise of the professional educators involved in
the school system’s decisions regarding Amy’s progress and the efi’ect of having an interpreter
in the classroom.

Supreme Court Justices White, Brennan and Marshall dissented, believing that this
decision did not go as far as the Congress intended the standard to go and that the Court had,
in fact, imposed a difl’erent standard than that which Congress had intended. That Amy was
provided with some specialized instruction and received some benefit and she passed from
grade to grade was not what the Act intended by an appropriate education. The dissenters
found legislative history indicating that the Act was intended to provide handicapped children
with an education enabling the child to reach his or her maximum potential.

At least, the dissenters said, the history showed that the Act was intended to provide
handicapped children opportunities for an education commensurate with that provided other
children. The dissent characterized the majority’s position on the Act as requiring no more
than that Amy be given a teacher with a loud voice, since she would benefit from that service.
The basic floor of opportunity provided by the Act, in the dissent’s view, was “intended to

eliminate the efi‘ects of the handicap, at least to the extent that the child would be given an

equal opportunity to learn if that is reasonably possible” WWW

32

1982,p.215)

The dissent also saw a more active role for the courts. It found the legislative history
clear that the courts were to make independent judgments. This role was seen as not only
with regard to procedure but also with regard to substance.

111.20 0 1‘10 ‘ .- o I' Ii‘q'IrI'eH"

Later analysis of this decision concluded that the Court’s attempt to provide a
functional definition of “free and appropriate public education” fell short of its goal
(Robinson, 1983). The Court attempted to determine whether education is appropriate by
measuring whether “some benefit” was received by the handicapped child. This has been seen
as a hollow euphemism by some legal commentators (Robinson, 1983). There is concern that
future courts may well misinterpret the Court’s holding on what appropriate education may
mean.

Whatismostinterestingisthatthedecision ram maybeargued not to conform
to its own underlying rationale.

The [Reader] Court fiequently cited W

W] and Mills language suggesting that the education
provided should be appropriate to the child’s capacity. Nevertheless, the

Court concluded that the standard implied by these cases was consistent with
its interpretation of the EAHCA’S requirement. In order for the intent of

 

to be satiSfied by Rowley’s “some benefit” standard, the Court’s standard
should encompass consideration of the child’s capacity. The Court’s
discussion of the standard, however, does not confirm this implication
(Robinson, 1983, p. 962).

While it is suggested that the Court may have been correct in determining that the law does

not require the maximization of a child’s potential, “its dismissal of the concepts of equal

33

educational opportunity and self-sufficiency as they apply to the analysis of appropriate
education of handicapped children appears unmerited” (Robinson, p. 962).

Just before her entrance into sixth grade and middle school, Amy was given no option
but to move somewhere where she could have a sign language interpreter. Even though she
was gifted, Amy’s need for an interpreter became far greater. During her fifth grade year, her
lawyers sought still another school based impartial hearing, arguing that the Supreme Court
decision was based on four-year—old evidence and test scores. They argued that Amy needed
the interpreter even more at that later point in her education. But the hearing officer’s
decision was in favor of the school, with the ofiicer stating that the school was doing a
“fantastic job” for Amy.

The story of Amy Rowley continues, of course, beyond her case. After so many years
of fighting for an appropriate education for Amy, her parents decided to move to Mountain
’ Lakes, New Jersey, where they found there would be no problem obtaining Sign language
interpretation in her classroom. After more than seven years of legal efforts on behalf of their
daughter, the family prepared to move. Just as they were moving in 1983, the family learned
they would have to pay $4,600 in legal fees incurred by the school system in fighting the
Rowley’s Supreme Court effort. To assure recovery of these fees, the school district had a
lien placed on the Rowley house in New York, while they were in the process of selling their
house (Smith, 1996, p. 4).

The Court determined that Amy Rowley, a gifted and handicapped child, was doing
adequately well compared to the norm and that, therefore, the school was meeting its

obligations. The equity concern, that if a child does as well as the average person, he or she

34

is doing well, was obviously controlling in this decision. Part of the problem in adequately
addressing the real needs of gifted children is that, because they do as well or even better than
average, they are doing well in school, and yet much of their potential is not being tapped.
This is similar to a general problem that when there is a movement for more appropriate
education for the gifted, society sometimes sees a group that is performing above grade level
and decides that what it sees as extra benefits are unnecessary.

While the Court did uphold the procedural requirements of PL. 94-142 and the
involvement of parents in that process, it also reduced the standards for determining whether
a state has provided a he and appropriate education. This decision was, then, of mixed value
for advocates of handicapped children. In the period following the decision, amending the
law was not seen as likely to help strengthen and clarify the definition, as fiscal restraints were
seen as likely to make the law a less critical force. Instead it was noted that courts could go
on to use this “some benefit” test to reduce the duties of states (Robinson, 1983).

If courts limit the application of Rowley to the unique factual content therein, the
intent of the law should not be affected. If, however, courts were to apply Rowley literally
and draw the conclusion that any handicapped child in the regular classroom who is advancing
from grade to grade and is passing is receiving a fi'ee and appropriate education, it was
suggested that an amendment to the law would be merited (Robinson, 1983). While there
have been other amendments to PL. 94-142, an amendment addressing the issue in Rowley
has not been adopted, and handicapped students progressing at an at least average pace still
do not qualify for additional special education services that might allow them to progress at

a faster pace.

35

It is interesting that the Court in the Rowley decision did not try to establish any one
test for determining the adequacy of educational benefits for all children. The Court confined
its analysis to one and only one situation. This narrowness has been demonstrated in two
hearing oficer cases in Massachusetts, after the Rowley decision, where circumstances were
distinguishable from Rowley and where the officers felt that the Court left such room for
others to climb beyond and above the confines of the Rowley decision (Zirkel, 1983). The
Court “left open the possibility of later establishing a higher and broader-based standard, and
the probability of adding a ramp to the second floor of opportunity” (Zirkel, 1983, p. 482).
According to Zirkel,

in stating that “the intent of the act was more to open the door of public

education . . .” on appropriate levels terms than to guarantee any particular

level, the Court not only left open the meaning of “appropriate”, but also

implicitly recognized that Congress intended a particular substantive level.

This use of relative rather than exclusive language permeates the Court’s

opinion” (Zirkel, 1983, p. 483).

The Court clearly was less willing to find enforceable substantive rights than it was
to enforce procedural access rights. At the time when PL. 94-142 was enacted, procedural
access issues were of major importance. In 1974, the 94th Congress reported that an
estimated 1.75 million handicapped children were excluded from educational any facilities
(Zirkel, 1983, p. 466). In the years immediately preceding and following the enactment of
PL 94-142, states and lower courts all focused on dealing with this massive procedural
problem. Most of the more substantive issues such as the quality of education took longer

to arrive in the courts. A “second generation” of court decisions shows the focus then went

more toward examining substantive issues (Zirkel, 1983).

36

It may be that the Rowley case came too early in the process to have such an issue as
the quality of Amy Rowley’s education even to be perceived as critical or important by some
courts. It is known that the Supreme Court decisions prior to this case were generally not in
favor of rights of the handicapped (Zirkel, 1983), and the Court is reluctant to break with
principles established by its own precedents.

The meaning of what an appropriate education might be is a substantive issue. AS
such, what it is varies greatly, viewed on a continuum, from minimal adequacy to
maximization of potential. Prior to the pre-PL. 94-142 Mills decision, adequacy was seen
as close to the lower end of minimal adequacy. Since then a few lower courts have used the
higher end maximum potential level as their standard. Still other courts have combined
several standards in coming to decisions as to what an appropriate education requires (Zirkel,
1983)

According to Smith,

Based on the language of the [various opinions], Amy was getting either much

less or much more out of her educational opportunity than Congress had

required. And Congress either had required only that she become as free as

possible from dependence or that she have an opportunity to learn as much as

she could (Smith, 1996, p.9).

Smith wondered how two readings of legislative history by judges could be so far apart. The
reactions of the lower courts to consider similar issues after Rowley also seem to reflect this
wonderment.

It may be possible to argue that the Rowley Court simply failed to consider the

substantive issues and that those issues are subject to judicial inquiry. If such an argument

were to be successful, the gifted handicapped child would be entitled to an education that

37

would maximize his or her potential. That would, however, be an unlikely result. If the
gifted-handicapped child is entitled to such an education, the gifted non-handicapped child
would seem entitled to a similar education. But clearly gifted education does not enjoy the
same federal mandates provided for handicapped education. Nonhandicapped children have
no right to enjoy the benefits of a gifted program, and under that circumstance. courts are
unlikely to find such a right for the gifted-handicapped.

Whatever one may think of the Rowley decision, it is, thus far, the final word on the
application of PL. 94-142 to those handicapped children who are capable of learning at a
greater than a grade a year pace. The act does not provide for what is essentially a gifted
education program for handicapped children. Ifthose handicapped children who can benefit
from such a program are to be guaranteed a gifted education program, that guarantee will
have to be found elsewhere.

Fortunately for children like Amy Rowley, there are other legal guarantees that can
be asserted to assure the participation of the gifted-handicapped in any gifted programs
schools systems choose to provide for the rest of the school population. Those arguments
will be presented after a discussion of the varieties and prevalence of gifted-handicapped
combinations.

WWW

It is also of interest to note that Amy Rowley continues to be successfirl in life. She
was a Rotary exchange student in Australia and graduated from high school. She went on to
Gallaudet College as an 1. King Jordan Scholar, a scholarship named after the college’s

president, and in the mid-19905 she was reported to be taking pre-med courses at the

38

University of Wisconsin (Smith, 1996, pp. 220, 228, 309). Her giftedness has managed to
overcome her disability to put her in a leading position in advocacy and education of the
hearing impaired. She went on to be the coordinator of the Wisconsin Office for the Deaf and
Hard of Hearing (Brinkman, 1996) and the President of the Wisconsin Association of the
Deaf (Wisconsin Association of the Deaf Web Site, 1998).

Amy Rowley managed to overcome her handicap and be successfiil. Her giftedness
outweighed her disability. Yet, one can only wonder, and the next chapter will address, how
many other children, who could have reached similar levels, have been unable to achieve
above the mean. Not all such children have parents who would, or could, put up the fight the
Rowleys did and, having lost the legal battle, sell their home and move to another school
district or state in order to provide the education necessary for their gifted-handicapped child

to succeed.

III
AN EXAMINATION OF THE GIFTEDNESS CONCEPT WITHIN
THE SCHOOL AGE HANDICAPPED POPULATION

The term “gifted-handicapped” may at first appear to be an oxymoron. These children
are seen as being at two opposite ends of the educational spectrum at the same time, and
some find the combination difficult to comprehend (Van Tassel-Baska, 1992). Furthermore,
much of special education is based on dealing with weaknesses, due to the field’s use of a
medical model that looks at exceptionality as though it were a disease to be cured. As a
result, there is a tendency to focus only on handicaps, while ignoring any giftedness that may
also be present. The gifted-handicapped are then often not believed to exist or to exist only
as handicapped children.

Even though we can simply look around our world and observe that a significant
number of eminent people have been or are handicapped, the gifted-handicapped still remain
one of the most under identified and under served populations in our schools. In fact, in the
view of many schools, they do not even exist. Linda Silverman in her 1989 article, “Invisible
Gifts, Invisible Handicaps,” wrote: “It appears to be a well-kept secret that a child can be both
gifted and handicapped” (p.37).

Some understanding of this problem may be gained through an exploration of some
of the historical background, thinking, and issues that have led to the inability of many to

“see” the existence of gifted-handicapped students. Armed with this understanding, school

39

4o

psychologists can then help other professionals and members of society to recognize that
gifted-handicapped students do in fact exist and then help work with others to provide
services for them.

In reality, the education of gifted-handicapped students is just beginning to emerge
as a field of research. The major goals of this developing field involve determining how to
identify such students and how better to prepare them for adult life by increasing
interdisciplinary cooperation to benefit them (Hallahan & Kaufman, 1994). VanTassel-Baska
(1991) stated that “We know that these learners exist, many times hidden inside their specific
disabling condition, and we know because of their discrepant pattern, they are difficult to find
and identify. Moreover, we also know that these learners require more extensive services in
order to develop their potential” (pp. 261-262). It is critical that we keep moving forward
in our quest to better understand and serve gifted-handicapped individuals.

Further factors cloud the concept of gifted-handicapped and make this identification
difficult. Joyce Van Tassel-Baska noted that four central issues are common to all of the
special populations of gifted learners, including the gifted-handicapped. These four
dificulties are: 1.) each group is prone to underachievernent, 2.) each group shows a need for
highly personalized services, 3.) each struggles with intrapersonal issues, and 4.) each often
represents multiple conditions which make solving their dilemmas more complex.

According to Van Tassel-Baska, “Our systems of education are ill prepared to identify
and serve these populations of gifted learners well. We are organized to serve groups, not
Individuals. Education’s general preoccupation with accountability has led schools to define

student progress through noun-referenced reporting measures while ignoring important

41
variability within groups and individuals” (1992, p. 160). The gifted-handicapped individual
particularly fails to fit group norm standards. These students are often unlike any group
standard available for the gifted or the handicapping conditions. This causes further confusion
in regard to gifted-handicapped.
I211” [111' 15°51

Definitions determine classes; that is, how one defines a class determines the
individuals who will be found to be contained in that class. The definition of handicapped or
exceptional children is itself not clear. According to Heward (1996), exceptional children are
defined, in general terms, as those having physical or learning abilities which differ from the
norm, as either being above or below the norm, such that a special educational program is
required. This definition includes children who are so superior in ability as to need special
programming for their giftedness.

Wrth regard to the sorts of exceptionalitiesthat constitute disabilities within the scope
of Public Law 94—142, various categories are specified. These consist of mental retardation,
hearing impairments including deafiress, speech or language impairments, visual impairments
including blindness, serious emotional disturbance, orthopedic impairments, autism, traumatic
brain injury, other health impairments or specific learning disabilities (McLoughlin & Lewis,
1994).

There are certainly problems with the definitions of disability or handicap. Only those
disabilities that are significant enough to require special education services are covered by the
law. There may certainly be borderline cases and assessment issues involved in determining

which children meet eligibility criteria. The gifted-handicapped child may raise some of these

42

same issues, but the identification of such a child’s handicap does not raise problems that
differ in kind from those of the handicapped who are not also gifted. There is, however, one
exception to that claim. Some children may, because of their giftedness, compensate for or
mask a handicap. That was to a degree the case with Amy Rowley. Her achievement
demonstrated an ability to compensate, although her handicap was not one that would be
masked by intelligence.

The more complex issue for the gifted-handicapped is the definition of giftedness.
Until just a decade or so ago, giftedness was viewed as a unitary intellectual trait which could
be measured by an IQ. test. If only intelligence testing or achievement testing were to be
used to identify and define the gifted, many gifted-handicapped would fail to be included. A
visual impairment, learning disability or any of a variety of other handicaps can interfere with
performance on such tests, unless special accommodations are made and other identification
procedures employed.

Much confirsion still surrounds the old terms and definitions for such words as
“intelligence,” “gifted,” “talented,” and “genius.” Although some people still feel giftedness
has only to do with a high IQ. score, that genius runs in families, and that genius is close to
madness (Piirto, 1994), these beliefs are being altered by new understandings of the gifted.
Neuroscience and cognitive science have added to this understanding as to what exceptional
talent might look like, and the old beliefs and definitions are no longer either accepted nor
used in practice in the 19905.

Under the Jacob A Javits Gifted and Talented Students Education Act in 1988, gifted

children were newly defined as “Children and youth who give evidence of high performance

43

in areas such as intellectual, creative, artistic, or leadership capacity, or in specific academic
fields and who require services or activities not ordinarily provided by the school in order to
fully develop such capabilities” (Javits Act, 1988, sec. 4103). This was a different rendering
of what giftedness had meant in the past. It also opened the door for fiirther exploration into
what giftedness is and where it might be found. In the 1981 Marland Report, the percentages
of the population of giftedness given in the 1972 Marland Report were deleted, and the
determination as to how many of their students are gifted was left to local school agencies
(Eby & Smutny, 1990).

In 1991, a firrther revised definition of gifted and talented children was proposed in
the report, WOW This new
definition eliminated the word “gifted” and instead proposed that “outstanding and
exceptional talent” be used. This new definition noted that talent occurs across all cultures.
It is also not necessarily determined by a test score, but may be identified instead by observing
students in rich and varied settings. The best way to find such children is to provide
opportunities and observe performance WW, 1993, pp. 54-55). The
recognitions behind this definition allow for the concept of gifted-handicapped children.
There is no reason why there may not be outstanding and exceptional talent in handicapped
individuals. Tuming to labels specifically directed at the population under consideration here,
the “at-risk talented student” is also a new term suggested for the gifted-handicapped (Piirto,
1994). A second new term in use is that of the “twice exceptional” child (Colangelo & Davis,
1997).

It is interesting that one new paradigm for the gifted has chosen not to use the term

44

“gifted” anymore. It is believed that the gifted concept focuses only on high IQ, is based on
I.Q. results, making the statement that it is “in there,” is ethnocentric and school oriented and
smacks of elitism. Instead, the new preferred terminology focuses on talent and talent
development (F eldhusen & Moon, 1995; Feldman, 1992; Piirto, 1994). The Piirto concept
involves a pyramid of talent development which considers the complex range of abilities often
found in “gifted” individuals, and it also considers the ecological impact of home, school, the
community and the culture of the student (Piirto, 1994). This paradigm focuses on the many
types of giftedness, rather than IQ. alone. It also focuses on individual excellence as opposed
to group elitism. It considers achievement as opposed to just being born gifted or not
(F eldman, 1992).

Howard Gardner was among the first to argue that there are multiple facets to human
intelligence (Gardner, 1983). He recognized seven semiautonomous domains of intelligence;
linguistic, musical, mathematical-logical, visual-spacial, bodily kinesthetic, social-
interpersonal, and intrapersonal. These seven competencies have separate independent
existences in the neurosystem.

Gardner’s theory has implications for the definition, identification, and

education of the gifted and talented. The theory supports a broad definition

of giftedness that includes individuals who are socially, personally, and

motorically gifted. If accepted, this definition would require that the

assessment process, including the use of experiential and observational

methods, be viewed anew (Kitano & Kirby, 1986, p.48).

Recognition that giftedness may occur in separate and at least semi-independent areas

strengthens the argument that an individual may be gifted in one area and handicapped with

regard to another.

45

Guilford viewed giftedness as even more complex. He extended a multifactor analysis
developed by Thorndike (1925) and developed a three dimensional model. In that model the
intellect is seen as composed of 120 unique abilities (Guilford, 1973). Guilford’s model
provided the basis for the development of the Structure of Intellect (SOI) learning abilities
test, later developed by Mary Meeker (Meeker, 197 7). “Some educators describe this as the
most comprehensive tests of abilities for identifying gifted individuals” (Kitano & Kirby,
1986)

The most recent important recognition of, and a model for, the development of
multiple intelligences is Piirto’s pyramid (Piirto, 1994). She recognizes many types of
giftedness, but her greater contribution is the presentation of a model for the development of
talents. She asserts that there are three levels in a pyramid of talent development necessary
for adults to reach their talent potential. The base level consists of personality aspects that
may already be present or must be cultivated. These aspects constitute a long list consisting
of judgment, perception, imagination, self-discipline, leadership, passion, drive, feeling,
resilience, androgyny, aggressiveness, intuition, self-efficacy, self-esteem, naivete, thinking,
creativity, compulsiveness, tolerance for ambiguity, persistence, and risk-taking, which she
says are present in highly effective people (Piirto, 1994, p. 36).

The second level of the pyramid is set at the minimum level of intelligence necessary
for adult manifestation of talent. While she defines that level in terms of IQ, that level may
be different for different manifestations of talent. Furthermore, the level required is not
extremely high, and she suggests that higher scores may not really contribute much additional

likelihood of the development of the talent.

46

While the discussion of minimal levels is in terms of IQ, her arguments presented for
multiple methods of identification indicate that an IQ. test should not be the sole means of
recognizing minimal levels necessary for talent manifestation. Given her recognition of
giftedness in areas such as dance and other arts, that would seem to be a necessary
concession.

The third level consists of specific talents in specific domains. She identifies examples
such as music, theater, science, invention, writing, dance, visual arts, mechanical,
mathematics, architecture, interpersonal, academic, athletic, and business. Reaching this third
level requires that the lower levels be present, but there are a multitude of factors that lead
to the recognition and development of giftedness. That is, while the personality attributes
must be present and must meet minimal levels, the failure to nurture talents makes the adult
attainment of potential far less likely. The factors that she sees as speaking to reaching the
highest level are influenced both by heredity and environment, so genes count as do home
influences, schools, community and culture, and gender. All in all, she suggests that there is
a good bit of chance or luck involved.

Under all these new conceptions of giftedness, outstanding talents must be looked for
in all areas of human endeavor, across all cultural groups, and across all economic levels
(Piirto, 1994). This expanded view of giftedness makes it more likely that a handicapped
child will be seen as also being gifted. Furthermore, an identification procedure that takes
into account the multiple facets of giftedness will be more likely to identify a gifted-
handicapped child. These talented children must be observed in a diverse range of disciplines,

and the person doing the assessment must make use of many different measures. This must

47

be done at different ages, it must look at talents as they may develop in one child early on and
later in another, it must identify talent in those whose talent is not as readily observable, and
it must take into account the motivation or drive and passion which play a role in
accomplishment (NatignaLExcellence, 1993, pp. 54-57).

Even back in the late nineteenth century, people wrote of individuals who overcame
disabilities and excelled in some areas. The concept of gifted-handicapped was also noted by
Augusta Bronner in 1921, when she wrote a book on the EsycholggypfifimciaLAhfljfieund

Qisahihties. Two years later, Leta Hollingsworth wrote a book titled W

Deficits. Since the 19205, people such as Terman have found such combinations in their
research (Terman & Oden, 1947).

In the 19605, times were ripe for national concern for disadvantaged and minority
children and the gifted that might be neglected in these groups. Some work in the area
continued with gifted-handicapped in the 19605, with Mary Meeker being most prominent in
her analysis of differences in intellectual patterns (Maker, 1977; Piirto, 1994). In the 19705
the Marland report on the gifted found that fewer than four percent of all gifted children were
receiving services and children with gifts and disabilities received almost no attention at all
(Jolmson, Kames, & Carr, 1997). Another resurgence occurred in the late 19705, with work
by Joanne Whitmore and C. June Maker (Maker, 1977; Whitmore & Maker, 1985). The end
of a century is lmown to be a time of stress and crisis for society: The fin de siecle, when an
century is almost over and a new one just about to begin, is a time, each time it occurs, when

change and stress are typically at a high point (Showalter, 1997 ). Presently, there is a new

48
effort to understand this population by researchers including a leader in the area, Joyce Van
Tassel-Baska.

The strongest argument for the existence of gifted-handicapped individuals and of the
good they can do for society is the identification of persons who, despite obvious handicaps,
have made such significant contributions to science, culture or other areas that they must be
regarded as gifted.

Helen Keller is an example of a gifted person with the most severe and multiple
disabilities (Goertzel & Goertzel, 1962). She had meningitis at eighteen months, and the
disease left her deaf and totally blind. At the age of five, she still had no way of
communicating her thoughts and she was considered a wild and disturbed child. Her older
brother wanted her to be put in an institution with other hopeless children. Early attempts by
the family to teach her to communicate had failed, and her father and brother had lost hope.
Her mother and grandmother saw some potential and wanted to send her to a special school
in Boston, but that school sent Anne Sullivan, who was also handicapped by poor vision, to
live with the Kellers and tutor Helen. She helped civilize Helen and help her realize what
language and communication are.

When the breakthrough in language finally occurred, and she discovered how

to formulate and communicate concepts, her cognitive growth was rapid, and

she became capable of demonstrating her exceptional intellectual powers. The

potential for exceptional learning and intellectual achievement was present in

her mind from birth, but the severe handicaps impeded its development

because basic understandings of her world were missing. The intense

frustration she experienced as a young child, manifested in violent temper
tantrums, was undoubtedly a function in part of that exceptional intellect

trapped in a severely limited body that required living with acute sensory
deprivation and isolation fi'om others (Whitmore & Maker, 1985, pp. 17-18).

49

By the age often, Helen Keller dictated a letter in French. She went on to graduate summa
cum laude from Radcliffe College. She learned not only English and French but could read
in braille German, Latin and Greek. She studied Kant and Emerson and issues of political and
moral philosophy. Despite her handicap, she rode horseback, swam and bicycled. After
college, she became an author and lectured nationally and internationally.

Wmston Churchill had a myriad of learning difficulties (Goertzel & Goertzel, 1962).
He was considered to have had learning disabilities and hyperactivity. Churchill was known
as the naughtiest boy at school and he was often allowed to just run off some of his energy
outside. He had a passion for setting up mock battles and would often disregard personal
safety. At eighteen he was injured in one battle he set up and he was unconscious for several
days and bedridden for three months. He was often ill with colds and respiratory infections.
Churchill had a speech problem, a lisp. He conquered his speech problem by practice and

(6 ’9
S

patience. He would always carefully plan what he said and avoid problem sounds. He
memorized his speeches and spoke from carefully planned notes. Churchill had difficulty
learning to read but went on to write many volumes on his family and history. He refused to
study mathematics, Greek, or Latin and was placed in the lowest form, equivalent to remedial
classes today. Churchill lmd no intimate fiiends and was known to be “cheeky” to adults. His
father was ashamed of his son’s seeming dullness.

Thomas Edison was a sickly child and he was not fond of school (Goertzel &
Goertzel, 1962). The schools found him to be a problem, as he balked at doing many of the

courses being taught. Thomas Edison was never able to get along in school. His mother

finally removed him from public school and taught him at home. Edison felt his father

50

thought he was stupid. He felt he lived in another world from most people, and although
others taunted him and treated him badly, he never felt the pain, as he had disconnected
himself from such a reality. As a child, mental illness was a concern as he set fire to a barn
and tried to hatch eggs by sitting on them. As an adult, Edison grew stronger and, when
driven by the sheer joy of inventing, eventually slept only five or so hours each night. Thomas
Edison went on to develop inventions that changed the course of history for all mankind. His
invention of the light bulb resulted in major changes in how all people lived their lives. He
also invented the phonograph and brought music to the world. He was also an
entrepreneurial genius who organized his laboratories, having a whole crew of workers who
worked with him to bring his invention ideas into a reality. If this giftedness had been
crushed, the world could be a much less advanced place. Ifthe schools had been his only
source of encouragement and learning, and they only noted his dificulties, such genius might
never have seen the light of day.

Albert Einstein was considered dull by his teachers and parents (Goertzel & Goertzel,
1962). Einstein’s slow speech made his parents believe he was dull. He was shy, quiet, and
withdrawn. His teachers reported that he was backward or mentally slow, unsociable, and
constantly off in his own foolish ideas and dreams. Einstein hated, and often failed,
examinations. At fifteen he had a nervous breakdown as a result of his disdain for schooling.
When he attempted to attend a technical institute he failed the entrance exams and was forced
to go back to secondary school to remedy his deficiencies.

Albert Einstein had difficulty learning languages and his speech was always slow and

hesitant. He would chant to himself hymns he dedicated to a self created deity. Still, when

51

he was eleven, he was reading philosophy and also textbooks on science and mathematics.
For recreation he played the music of great composers on his violin. When he was sixteen,
his father told him to forget all the philosophical nonsense and study a sensible trade, such as
electrical engineering. Other relatives gave money each month to subsidize Einstein, not out
of faith but as a family charity.

Einstein went on to teach as an assistant at a technical school. He then tutored slow
children at a boarding school but was fired for teaching the material in his own way. In spite
of such a negative beginning, Einstein went on to discover mathematical answers no one else
had ever before discovered up to and including the theory of relativity. His giftedness was
hidden in a myriad of traits which caused others to believe he had no potential to succeed
(Goertzel & Goertzel, 1962).

It is interesting to note that teachers and society value conformity and good compliant
workers. The unconventional children who dream in nontraditional ways are not viewed to
be gified or to have the potential to be successes. Goertzel and Goertzel noted that “If a
potential Edison or Einstein or Picasso or Churchill or Clemens had been in school in
California in those days, he would surely not have been chosen to be screened for inclusion
in the Stanford study of genius” (1962, p. 279). Children who are to become famous are
often not “all around,” competent, and confonning students. The usual teacher referral route
may not be the route to take when dealing with the assessment of gifted-handicapped
children.

The persons discussed above and the combinations of giftedness and handicap found

52

in them do not exhaust the examples or combinations. People can possess a variety of both
talents and handicaps; there are many varieties of gifted-handicapped individuals. Many
individuals have been learning disabled as well as gifted, as has been seen with Winston
Churchill and Albert Einstein. They each experienced difficulty in school and yet were
extremely gifted. A person may have physical impairments other than the blindness and
deafness of Helen Keller and also be gifted. The violinist Itzhak Perlman, who is gifted
musician and also physically impaired, provides another example. Gified children show
areas of strength which may include intellectual, academic, leadership, creative, or artistic.
Children having any handicap, except mental retardation, may have exceptional talent in
intellectual, academic, and leadership areas. In the areas of creativity and/or artistic
giftedness, even mentally retarded individuals may be gifted in the visual arts and/or
performing arts. An example of this is the Japanese man who has an estimated IQ. of 40 as
well as severe hearing and speech impairments. This man’s talent for art has led to him being
called “the Van Gogh of Japan.”

Children may be gified and also learning disabled. A learning disability means that a
child has an average or better I.Q. with specific learning problems in areas such as reading or
math. These gifted children with learning disabilities may not complete assignments, may
have behavior problems, and may have a poor self concept. So even though they are also
gifted, they may not appear to be gified when outsiders observe them. The problems may
blind adults to the gifts the children may have (Schwartz, 1994):

Certainly there must be present day individuals who, like Winston Churchill, Thomas

Edison, and Albert Einstein, possess above average intelligence and a specific learning

53

problem. Many gifted children are noted for high activity level, but the gified-leaming
disabled child may be hyperactive or have attention deficit problems and be unable to attend
in a classroom due to the learning problem, so the talents they have may not be recognized.
Nonetheless, they do exist.

The gifted-physically impaired might include children who have cerebral palsy,
epilepsy, spinal cord injuries, and traumatic head injuries. Or they may be children with health
problems such as diabetes, arthritis, or cancer. The gifted-physically impaired combination
can be noted in many individuals such as violin virtuoso Itzhak Perlman, who has motor
dificulties and relies on sturdy hand crutches and wears strong ankle braces, and the famous
mathematician/cosmologist Stephen Hawking, who is confined to a wheelchair and unable to
speak due to amyotrophic lateral sclerosis or Lou Gehrig’s disease. Franan Roosevelt was
also confined to a wheelchair, while he was guiding the nation as President of the United
States.

Many physical disabilities are highly visible, and when many people see a person with
physical problems or someone in a wheel chair, they automatically assume the person is not
as capable as average person. With speech often being affected in such disorders as cerebral
palsy and Lou Gehrig’s disease, the physically impaired person is all to ofien diagnosed on
the spot as being incapable of normal activity.

A person may have sensory impairments in vision and hearing. The gifted-sensory
impaired concept can be exemplified in such individuals as Ludwig van Beethoven, who had
severe hearing impairments, Ray Charles, who is blind piano player, and Stevie Wonder, also

blind and one of the great American musicians. For many years deaf children have been

54

believed, unreasonably. to be retarded intellectually and educationally (Whitmore & Maker,
1985). It is noted that gifted persons with sensory impairments must be told that such
impairments do not limit their ability to learn and succeed. Those who work with these
children must make certain that the lack of access to language via one route does not result
in a “dead end” view about all learning possibilities. Ways to maximize abilities and minimize
disabilities need to be found. Creative use of technologies and other resources can assure that
this will occur.

Speech and communication are basic to human life, and those who are impaired in this
area encounter considerable difficulty (Van Riper & Emerick, 1990). And the person with
a speech impairment is often socially rejected, as people feel uncomfortable and experience
difficulty understanding them. Some gified-speech/language impaired individuals have
emerged as gifted singers such as Mel Tillis and Jim Neighbor or “Gomer Pyle.”

The person who is gified-mentally impaired can be seen in the savant syndrome in
which a person with serious mental handicaps also has “spectacular islands of ability”
(Colangelo & Davis, 1997). Such brilliance occurs in a few areas such as music, lightning
fast mathematical calculation, art, mechanical ability, memory, and unusual sensory ability
such as the sense of smell. Such savants usually have minimal abstract reasoning ability,
problem solving skills, and reflection ability. These individuals appear to have immediate
access to the underlying structural rules and regulations of their particular strength area. It
almost seems intuitive. There may also be a lack of expressiveness, mere rote playing of a
song for example (Trefi‘ert, 1989).

The gifted-emotionally impaired are often not even mentioned in the literature. There

55

is, however, an old belief that gifiedness is closely related to madness or insanity. It is
sometimes speculated that a larger percentage of people in prison are gifted than is the case
for the population as a whole. This is seen as due to society’s lack of attention to gifted
children and an unwillingness to accept creative thinking in traditionally structured schools.
The suggestion is that gifted children must find other often illegal routes for expressing their
gifis.

An individual may even be gified or talented and handicapped in the same general
area. For example, professional baseball pitcher Jim Abbott is obviously physically gifted.
He is, however, missing a portion of his non-pitching arm and thus also has a physical
handicap. The singer Mel Tillis provides another example through his combination of speech
impairment with high capability in vocal performance. All these gifted-handicapped people
give much to our world.

While people with obvious handicaps, such as blindness or deafness, or a physical
impairment, can be readily identified as handicapped, their true abilities often are not identified
during the school years. A physically handicapped child who cannot hold a pencil and a deaf
child who cannot communicate with an examiner, present problems for identification. The
talent and ability may be there but may be hidden or blocked fiom view.

Identifying the gified-handicapped child is a difficult task. Many teachers and even
the child’s own parents may not see the child’s gifts, when the gifis are masked by handicaps.
Eisenberg and Epstein (1981) described their attempt to identify children for their gifted-

handicapped program. They passed out forms for the nomination of children thought to be

S6

gified and handicapped. The forms were sent to New York City schools which service
60,000 handicapped children, and not one student was nominated for the program.

The dual definitions of a handicap, such as a learning disability, and giftedness impedes
identification of gifted-handicapped students. Ironically these students are often overlooked
for identification in either category because of the masking effect of one condition on the
other. Learning disabilities, for example, may lead to depressed scores on standardized tests
used for identification of gifted students. On the other hand, the learning disabled-gifted
student may have the creativity and ability to compensate for weaknesses and perform up to
grade level, again masking the need for services for the learning disabilities (Van Tassel-
Baska, 1992).

Many gifted children who do not perform up to expectations are often called
underachievers. Research indicates that children who are identified as underachievers should
be tested for learning disabilities (Hansford, Whitmore, Kraynak, & Wingerback, 1987;
Silverrnan, 1989) or emotional impairments.

Whitmore and Maker (1985) concludes that many obstacles exist in the identification
of the gifted/handicapped. Some of these obstacles include: 1.) stereotypical expectations
make gifted-handicapped children seem below normal, 2.) developmental delays in verbal
areas may make high intellectual ability go unnoticed and undetected when tested using verbal
tests, 3.) incomplete information results in overlooking strengths, 4.) there is no opportunity
to evidence superior ability, due to the verbal nature of school tasks and ability testing used
in special education (p. 14-21).

People ofien have stereotypic expectations for what a gifted student should look like;

57
they wear glasses, are always reading a book, are larger than normal in size, and so on.
However, gifted students can also have physical disabilities, emotional problems, learning
disabilities, and be blind or deaf. And the same goes for any handicapped student. They may
also be gifted. These all too common stereotypic expectations present a major problem for
the gifted-handicapped and greatly impede their being identified.

Another factor entering into the acceptance of the concept of gifted handicapped is
important to consider. While school psychologists work with the population of students
having disabilities on a daily basis, they are still not likely to have gifted-handicapped students
referred to them. The school psychologist receives referrals fi'om teachers, and the students
they serve will be determined by the teachers. Teachers often do not recognize the possibility
that a student needing services for a disability might also be gifted, for many of the same
reasons society at large does not recognize the possibility. Also, school psychologists receive
little training in regard to the gifted and may fail to recognize a gift in the process of
assessment for a handicap. As a result, the gifted-handicapped student often goes unidentified
and also unserved.

Gifted-handicapped students tend to receive little or no integration of services. What
they may receive, if they are lucky, tends to be some service for their handicap and perhaps
some separate service for their giftedness, provided by different people who do not integrate
what they are doing for the student. Collaboration is called for in any work with the
handicapped-gifted.

When gifted-handicapped children are not provided with needed services they may

well not succeed. In Terman and Oden’s study (1947) of 150 successfiil and 150

58

unsuccessful men all with I.Q.s over 140, they found that the unsuccessfirl men had not
developed effective c0ping strategies, had less support from their families, and were less
motivated to succeed. If these students had been provided with services to help them to
develop coping strategies and to give them the needed support they were lacking, these
individuals would have had a chance to be successfirl and to accomplish something for their

and our world.

9 - 4

The invisibility of the gifted-handicapped population is, as the examples discussed
earlier show, not complete. The invisibility, however, makes it more likely that gified-
handicapped individuals will be recognized in hindsight; that is, once handicapped individuals
have demonstrated superior abilities, they will be recognized not only as handicapped but as
gifted-handicapped. Porter (1982) noted that 211 of 700 eminent people in two major
historical surveys could be considered to be gifted-handicapped. Because not all gifted-
handicapped children will reach the potential inherent in their giftedness, and are likely to fail
to do so on a larger scale than the gifted-nonhandicapped, hindsight will not be a good
measure.

Neither are the usual techniques used to identify gifted students in the school
population likely to recognize all, or perhaps even many, of the gifted students within the
handicapped population. Invisibility to teachers means less likelihood of teacher nomination.
Group administered achievement or intelligence tests will be afl‘ected by a variety of

handicaps. In fact a 1990 study found that up to seventy percent of the regular school age

59

gifted population is overlooked when group testing is used for identification (Humphrey,
1990). The problem can only be more difficult for the gifted-handicapped. The sort of
identification methods to be presented below will be required, if we are better to identify the
gifted-handicapped.

While there must be a significant number of gifted-handicapped individuals within the
school age population, figures on their numbers are considered to be very sketchy (Johnson,
Kames, & Carr, 1997). The best way to calculate an estimate of how many gifted-
handicapped children exist is to examine what is known about the separate categories of
gifted and handicapped and then combine that information for a prevalence figure for the
gifted-handicapped.

Whitmore and Maker considered it a conservative estimate that at least two percent
of the handicapped student population is intellectually gifted (Whitmore & Maker, 1985).
Schnur and Stefanich (1979) estimated, based on such a premise that two percent of the
population is gifted, that there were 120,000 to 180,000 gifted-handicapped children in the
schools. Davis and Rimm (1989) used a five percent cutofi‘ to raise the figure to a “more
realistic” 300,000 to 450,000.

The approach required for the best estimation of the gifted-handicapped population
is to start with the number of handicapped individuals within the school age population. An
estimate of the percentage of the handicapped population that is also gifted may then be used
to calculate the number of gifted-handicapped. The controversial aspect of the calculation
will be the percentage selected. In fact, the proper percentage should vary with the handicap

under consideration. For example, the percentage of orthopedically impaired individuals who

60

are intellectually gifted should be greater than the percentage of gifted among those with
traumatic brain injuries.

Starting with the National Association for Gifted Children’s position that five percent
of the population are generally considered gifted, that percentage assumption should be
examined and adjusted for each segment of the handicapped population (National Association
for Gifted Children Website, 1998). In many cases the percentage of the handicapped
population that are also gifted may drop, but the percentage may instead rise.

I . E. 1.1.. II I II' E

To be considered learning disabled an individual must have average or above average
intelligence. Since the lower end of the distribution of intelligence is eliminated, the
percentage of the remaining population that is gifted should exceed the five percent of the
general population. Taking average to above average intelligence as consisting of those
within one standard deviation of the mean or more than one standard deviation above the
mean, those who would be considered below average in intelligence comprise almost sixteen
percent of the population (Kaplan & Saccuzzo, 1997, p.49). In a group of one hundred
students from the general population, the expectation would be that five would be
intellectually gifted. If, however, the one hundred students are known to be of average or
above average intelligence, that percentage would be higher. Rather then five out of one
hundred students, the percentage should be based on five out of the eighty-four that are of
average or above average intelligence, which is approximately six percent (more accurately
5.95%). For those with learning disabilities, a total 2,513,977 between six and twenty-one,

as shown in the table below, a five percent figure would predict 125,698 intellectually gifted-

61

learning disabled individuals. The more accurate six percent estimate results in a figure of
150,839.

The percentages for the other populations of handicapped individuals are far more
difficult to estimate, since most of the definitions for the handicaps do not include required
intelligence ranges. The obvious exception is the mentally retarded, who are all well below
average in intelligence. The appropriate percentage for the mentally retarded then would be
zero. This is, of course, only true if the giftedness under consideration is intellectual.
Mentally retarded individuals may have artistic or musical talent that would be relevant to
selection for a program with such a focus.

E I [D'l’ln ! . l'li'fll

Beginning with speech and language impairments, there is no reason to believe that
the percentage of gifted should vary from the general population. The Diagnostic and
Statistic Manual-IV (1994) states that for expressive language disorder “nonlinguistic
firnctioning (as measured by performance intelligence tests) and language comprehension
skills are usually within normal limits” (p. 56). Furthermore, for speech disorders such as
stuttering, the DSM—IV indicated a potential correlation to hearing impairment and other
saisory and speech-motor deficits (p. 64) but did not include an association with sub-normal
intelligence or a variation in the distribution of intelligence. While the mentally retarded may
exhibit speech difiiculties, those classified as having speech difliculties are those having
difficulties in excess of the level usually associated with such retardation (p. 63).

Although children with behavior disorders frequently underachieve academically, it

is less clear that there is a variation from the general population in the distribution of

62

intelligence. The DSM-IV states that a diagnosis of “Reactive Attachment Disorder of
Infancy or Early Childhood” requires a disturbance not accounted for by developmental delay
such as in mental retardation (p. 118). Furthermore, a diagnosis of “Oppositional Defiant
Disorder” requires that the oppositional behavior be “markedly greater than is commonly
observed among individuals of comparable age, gender and severity of mental retardation”
(p. 93). While the retarded may be more likely to exhibit behavior disorders, the diagnosis
of such a disorder requires that the behavior go beyond that normally associated with
retardation. It would then seem that those diagnosed with severe emotional disorders should
be normally distributed relative to intelligence. If that were not the case, the retarded would
be over or under represented in contrast to the requirement that the behavior differ from that
expected of the level of retardation. As Lewis and Doorlag (1995) conclude, “[t]he
intelligence level of students with behavioral disorders does not vary significantly from that
of the general school population” (p. 339). The five percent figure for the general p0pulation
will therefore be used as an estimate for the intellectually gifted proportion of the population
of severely emotionally disturbed.

Many of the remaining categories present some difficulty in estimating percentages.
Fortunately, the categories already considered constituted over ninety percent of the
handicapped population, so any errors in the remaining categories will have a minor effect on
the overall conclusion.

With regard to multiple disabilities, the percent who are gifted will depend on the
combination of handicaps involved. Where the combination consists of mental retardation

coupled with another disorder, the percent of intellectually gifted will be zero, although again

63

there may be some other talent present. On the other hand, among those who are both
learning disabled and orthopedically impaired, the percent who are gifted may be the same or
higher than for the general population. To obtain an overall result that is conservative, the
percent of those with multiple disabilities who are gifted will be taken as zero. It should be
noted, however, that this assumption should not apply to any particular individual. If the
individual’s disabilities do not include retardation, the possibility of intellectual giftedness
should not be dismissed.

The hearing impaired may not do as well on academic achievement tests as the
hearing. However, “most children who are deaf have normal intellectual capacity, and it has
been repeatedly demonstrated that there scores on nonverbal intelligence tests are
approximately the same as those of the general population” (Heward 1996, p. 344). Heward
(1996) concludes that deafness places no limitations on an individual’s cognitive capacity (p.
344). The percent of the hearing impaired who are also gifted will therefore be assumed to
be the same five percent as is found in the general population.

Orthopedic impairments involve the skeletal system, that is, the bones, joints, limbs
and skeletal muscles (Heward 1996, p. 43 6). While those with orthopedic impairments may
also suffer from other impairments, there would appear to be no reason why such a
mechanical disability would have an effect on the cognitive capacities. The major
subpopulation of the orthopedically impaired for which this conclusion would not hold
consists of those with cerebral palsy. That will afi‘ect the distribution of intelligence among
the orthopedically impaired, since forty-one percent of the children with cerebral palsy in a

study by Nelson and Ellenberg (1986) scored below seventy on standardized IQ. tests.

64

Assuming that giftedness is not found among those with cerebral palsy, unwarranted as a
broad assumption but intended to lead to a conservative total figure, and based on the fact
that in some programs more than one-half of the physically and health impaired students are
so impaired as the result of cerebral palsy (Heward 1996, p. 455), a conservative estimate of
two percent as the proportion of the orthopedically impaired population that is intellectually
gified will be employed.

The category of other health impairment is the most difficult to estimate, because of
the variety of disabilities or health issues involved. For example, children with ADI-ID, heart
ailments, diabetes, hemophilia, epilepsy, cystic fibrosis, asthma, AIDS, cancer or arthritis are
likely to reflect the same distribution of intellectual giftedness as then general population. The
achievement of such students is often behind that of other students, because of the missed
school brought about by their conditions, but these conditions do not negatively affect
intelligence. On the other hand, children who have been abused or whose mothers abused
drugs are also in this classification, and their intelligence may be affected. While it would
clearly be open to debate, an estimate of three percent gified in this population seems
conservative.

For visual impairments, the distribution of intelligence may well follow that of the
general population. Whitmore and Maker (1985) contend that “It is generally agreed that,
although some studies have documented lower scores on intelligence tests for the blind and
visually impaired . . ., such scores probably reflect aspects of the testing procedure or a lack
of educational opportunity” (p. 79). Whitmore and Maker do, however, recognize a

difi‘erence of opinion ranging from positions that visual impairment does not affect intelligence

65

to conclusions that a lack of visual capacity may be linked to specific difficulties in areas such
as linking ideas and objects. Heward (1996) says that one-third of visually impaired children
have additional disabilities. While some of those children would be included in the deaf/blind
or multiple disability classifications, Heward’s figure might be used to arrive at a conservative
estimate of the visually impaired who are also gifted. If the one-third who have additional
disabilities are eliminated and the distribution of intelligence is assumed to be the same as the
general population for the remaining two-thirds, taking as gifted five percent of the remaining
two-thirds of the visually impaired will leave a gifted-visually impaired percent of three and
one-third.

While the life of Helen Keller attests to the fact that deaf/blind individuals can also be
intellectually gifted, the number of such children may be small. While whatever genetics
contributes to intelligence may well be the same in this population as it is for the general
population, the lack of sensory stimulation experienced by the deaf/blind make the
development of any innate abilities difficult. Without negating the possibility of any specific
deaf7blind individual also being gifted, for the purpose of a conservative estimate of the total
intellectually gifted-handicapped population, the percent of the deaf/blind population who are
also gifted will be taken to be zero.

Turning to traumatic brain injuries, Clark (1997) finds that most children with brain
injuries continue to firnction in the average to below average range of intelligence and that
declines often to thirty points in IQ. scores have been found shortly after brain injury (Clark
1997). Again, to reach an overall conservative result, the percent of those with traumatic

brain injuries who are intellectually gifted will be assumed to be zero.

66

Table 1

The Incidence of Giftedness for Varying Disabilities

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Handicap Number Percentage Used Gifted
Specific Learning 2,513,977 6 150,839
Disability

Speech or Language 1,023,665 5 51,183
Impairment

Mentally Retarded 570,855 0 0
Severely Emotionally 428,168 5 21,408
Disturbed

Multiple Disabilities 89,646 0 0
Hearing Impaired 65,565 5 3,278
Orthopedically 60,604 2 1,212
Impaired

Other Health 106,509 3 3,095
Impairments

Visual Impairments 24,877 3.3 821
Deaf/Blind 1,331 0 0
Traumatic Brain Injury 7,188 0 0

Total 4,915,168 231,836

 

 

 

 

(Population figures from the Office of Special Education Programs 18th Annual Report to

Congress on the Implementation of the Individuals with Disabilities Education Act, 1966)

 

67

Table I summarizes the estimates of the number of intellectually gifted individuals that
should be found in the various handicapped populations served under PL. 94-142. The
p0pulation figures used are for the 1994-95 school year as contained in the 18th Annual
Report to Congress on the Implementation of the Individuals with Disabilities Education Act,
the most recent data available for the number of youth ages six to twenty-one served under
Part B of the Individuals with Disabilities Education Act (Office of Special Education
Programs 1996).

The total for the estimated age three to twenty-one year old population of
intellectually gifted within those served under IDEA is then 231,836. This constitutes just
over 4.7% of that handicapped population. The figure is not far removed from the five
percent expected in the general population, and it certainly indicates that there is a significant
population of gifted-handicapped. Furthermore, the figures presented are based solely on
intellectual giftedness. If other gifts or talents such as music or art are included, the
percentage of handicapped who are gifted under other definitions will vary for those areas,
but the number can only grow.

Additional growth may also be established by the fact that the number served under
IDEA has been growing at a rate greater than three percent per year (Office of Special
Education Programs 1996). Since the figures used were for the 1994-95 school year, the
number of intellectually gifted within the IDEA population has probably increased by twelve
percent. While the proportion of gifted students within the population has probably remained

steady, the total number of gifted-handicapped will also have grown.

Summamanimnclusicn

68

The question of whether the gifted-handicapped student exists appears to be
complicated by the attitudes and beliefs of society. It is apparent that they do exist but that
they are often not recognized. When they are recognized, there is often little in the way of
services provided for them. There is all too little funding for gifted education, and many
gifted handicapped or at-risk talented students know how to compensate for learning
problems, and they then also will not receive services fiom special education. Creative ways
to service this population must be devised, finding resources from the entire community, state,
and nation, and then integrating the delivery system. If gifted education is to find a way to
survive and not merely be a whim of the social and political climate, people in the area of the
gifted must reach out to work jointly with other education areas and also form partnerships
with others outside of education systems, such as business and community leaders (Coleman
& Gallagher, 1995).

Many states are changing their definitions of giftedness to include children with
disabilities and some are actively searching for such individuals. Yet, it will be important that
more impetus and support be provided, if this change in educating the gifted-handicapped is
to be maintained. It is also important that the federal government take a leadership role in
working with gifted-handicapped children. Increased services should be a top priority. It is
clear that some initiative by the federal government is what is needed to influence states and
local school systems to take more responsibility with the gifted-handicapped (Johnson,
Karnes, & Carr, 1997).

Thirty-three states have mandates for gifted education with some level of funding

(Coleman & Gallagher, 1992). Society has also been willing to provide extra services for

69

those with disabilities, albeit prodded by a public law mandating such assistance, although
even this ‘Rvillingness” is now being questioned, as the per student costs for such special
education is being noted to be twice as expensive as that paid for students in regular
education. What is needed is a recognition that society needs to bring together the
willingness to provide services with the disabled and whatever concerns it may have for the
gifted. Where gifted education is mandated, the gifted-handicapped should be seen as a part
of that mandate. Where gifted education programs are not mandated, the gifted-handicapped
may not have any special right to have their gifts addressed, but any movement to provide for
the gifted in those states needs to take into account the need to include the gifted-

handicapped in any programs that are proposed.

IV
POLICY CONSIDERATIONS IN THE EDUCATION
OF THE GIFTED-HANDICAPPED

Money for programs for the handicapped and for the gifted and talented appears to
be the “mortar” that allows such programs to survive (Gearheart, Mullen, & Gearheart,
1993). There has been consistent federal and state funding for handicapped students since
1965. On the other hand, there has usually been a cycle of funding for the gifted, which
seems often to have been linked to or dependent on national security (Gallagher, 1984).

Since the Gifted and Talented Children’s Act of 1978, PL. 95-561, the federal
government has nearly “abolished its role in supporting or even encouraging the appropriate
education of its most able students” (Gearheart, Mullen, & Gearheart, 1993). Dealing with
gifted and talented students has fallen to the states and local school districts. Because local
school districts do not have a federal mandate to educate gifted and talented children, it is
easy for them, in a financial pinch, to reduce funds for such programs.

Beliefs about the gifted fuel the policies that cause districts to cut or even do away
with funding for the gifted. These cuts have led to the formation of parent and advocacy
groups for the gifted. Knowledge of the arguments which are used in making the policies that
directly influence such funding is of critical importance for similar advocacy groups to have
any chance of success in obtaining the education needed by the gifted-handicapped.

Arguments for supporting gifted-handicapped students are necessarily going to

70

7 I

incorporate some of the same arguments used for the support of the handicapped, as well as
incorporating some arguments used for the support of the gifted. This chapter will look at
policy arguments for and against the support of gifted and handicapped students, while the
legal and federal requirements and arguments for special education with exceptional children
were examined in Chapter 11. Some of the arguments used either to support or to cut
funding run the gamut from those which espouse the call for individuality to be developed in
each student to calling for equity and excellence for all students. Still others argue that
programs for the gifted are elitist or are too exclusive in who they will serve and that they are
contrary to the “American waY’ of democracy - the democratic ideal that everyone is created
equal. Familiarity with these arguments can help the advocate for programs for the gifted and
gifted-handicapped deal with society’s underlying reactions to gifted or gifted-handicapped
children in their midst.

The field of gifted-handicapped education was seen to be emerging in 1985, as the
result of the intersection of two special fields which focused on the needs of the gifted and
of the handicapped (Whitmore & Maker, 1985). This field also grew out of a moral concern
that all children should have the right to an appropriate education that will help them to
develop their potential and contribute to society. However, even to this day, gifted-
handicapped children are still not given appropriate educations in most schools. Examining
the many different policies that have been involved in looking at gifted or at handicapped
education may help in ascertaining what allows or causes this inappropriate education to
occur.

While many laws now clearly mandate that handicapped children must be served,

72
gifted-handicapped children may well still be omitted from any such special services,
especially if they are firnctioning at grade level. For even with a handicap, children who are
gifted may well learn to struggle and compensate to some extent for the handicap, even
though they will be unlikely to do as well, without support, as they have potential to do with
support.

Presently the gifted potential of handicapped children is not considered in the need for
services, if the children can attain average grades. This was seen in the Amy Rowley case.
In fact, comorbidity, or a double diagnosis, such as gifted and handicapped, is not even
allowed under laws such as PL. 94-142, which regulate education for handicapped children.
Clearly we are under serving a segment of the population that has a high potential for
personal development and also for contribution to society. The few gifted-handicapped, such
as Thomas Edison, Helen Keller, and Ray Charles, who “make it” in spite of the odds against
them, are truly exceptions. Most gifted-handicapped children will never be known for their
gifts and talents, for they will be held back by their disabilities, unless something is done to
enable them to reach their firllest potential.

Given the combination of giftedness and handicap, there are four varieties of policy
argument that must be considered in looking at gifted-handicapped education. There are
arguments for and against special education for handicapped children. While the law has
developed to the point that law rather than policy currently controls in this area, policy
arguments are still relevant to the gifted-handicapped, in light ofthe mm case’s denial of
legal protection for that population. There are also policy arguments for and against gifted

education.

73

Each of these four varieties will be considered with regard to the gifted-handicapped.
Generally, it will be shown that the arguments for special education and for gifted education
apply with similar force to the education of the gifted-handicapped. On the other hand,
arguments against special education or against gifted education may apply with less force in
considering the gifted-handicapped.

ArmmmtschSncsiaLEducatinn
Much of the current analysis and/or arguments for special education are related to
federal and state requirements or laws already in effect. This section will look at arguments
that were used to establish the need for special education laws such as PL. 94-142 and then
will examine the application of these arguments to the gifted-handicapped.

One of the major arguments presented for providing special education for handicapped
children is that not to provide such education is to fail to provide a minority population with
the services provided the majority and is thus to discriminate against them as a group
(Hallahan & Kaufi'nan, 1994). In the past, children with disabilities often received differential
treatment, meaning they were excluded from certain educational programs or were given
special services only in segregated settings (Heward, 1996). During the 1960s, seen as the
birth of an awakening civil rights movement for certain groups of American citizens who had
been discriminated against, the same issues also were examined as they applied to the
disabled.

Clearly, if people are concerned about discrimination against a minority class, this
should not be a concern just about handicapped children who are average and below average

students, but would also carry over into concern about the above average, as well. PL. 94-

74

142 was first enacted because handicapped children were being denied an appropriate
education and their unique needs were not being met. They were being discriminated against
because of their handicaps. It would only be logical that any gifted-handicapped students,
who are being discriminated against or excluded from a gifted and talented program because
of a handicap, would also be included in this argument in favor of providing services for a
minority population of people.

This argument for providing special education services to the handicapped has also
stressed bringing the handicapped into the mainstream of education or what is now known
as inclusion (Heward, 1996). Inclusion entails providing services for children having
handicaps in regular education classrooms via consultants or other persons who work in the
regular classroom with the handicapped children being mainstreamed. This inclusion of all
students into the mainstream is considered, by some but not all, to be a necessary step to
equality for the handicapped population. They believe that as long as children with
exceptionalities are segregated from the mainstream they will never have a chance to be equal
to those who are part of the mainstream.

Using this same argument, it would also seem to follow that the gifted-handicapped
should also be kept/brought into the mainstream and provided services there, if equality is
sought for all handicapped students. While this argument might be limited to demanding
inclusion in regular education, the gifted-handicapped child must be included in gifted
programs as well, if he or she is to be treated equally with nonhandicapped children of equal
potential. To fail to do so would be to limit the handicapped to programs aimed at the

average and below average.

75

Some argue that inclusion is psychologically necessary if children are to reach their
potential. They argue that there is a negative psychological impact on children if being
different results in removal or exclusion from everyone else. The United States Supreme
Court asserted in W (1954) that separate education is inherently
unequal education and that black children receiving a segregated education were
psychologically damaged by their exclusion from education with the white population. This
concern mirrors the conclusion that “how students, nonhandicapped and handicapped,
perform in school is influenced in both subtle and obvious ways by their concept of self’
(Harnachek 1990, p.87). Being excluded from the majority population injures the self-esteem
of black children, affects their performance in school and thereby results in an unequal
education.

Similarly, handicapped children receiving a separate education would then seem to be
additionally injured by being educated in a segregated manner and should, instead, be
mainstreamed. This applies with equal force to the inclusion of gifted-handicapped children
in gifted programs. Ifthey are excluded, based on their handicaps, their self-esteem may also
sufi’er, and the likelihood that they will reach their potential will be reduced not only by their
handicaps but also by the school’s reactions to their handicaps.

Even though all children know they are difl‘erent in some ways, from their race to
having home problems, if schools practice what is seen by children as the removal of those
who are different, they may well come to see normality as safety and difl’erence as a lack of
safety and be unable to relax and feel free to reach their firllest potential (Sapon-Shevin,

1994). This is clearly a problem with many gifted children. For example, many gifted

76

adolescent girls opt not to be gifted and fear being excluded from normal dating and firn if
they are viewed as gifted and “different” from their peers. They often choose to be socially
accepted instead of being gifted and different. Gifted-handicapped children have two often
more obvious difi‘erences and may suffer from exclusion on several counts.

Despite this reaction by some, being singled out for their giftedness differs from being
singled out over a handicap. While both point to differences, which some children may resist,
identifying a positive difference will not harm the self-esteem of the child in the way a
negative label can. The gifted-handicapped child is conceptually separated from the average
on two dimensions, one that would be seen as positive and one that might be considered by
the child as negative. Actually to separate the child only on the negative dimension, without
also recognizing the child’s giftedness, will likely be just as injurious to self-esteem.

Special education, as it is presently run, with as firll as possible inclusion of all
handicapped children into regular education, also has many opponents. Some experts argue
that inclusion, and especially full inclusion of all handicapped students, in regular education
does not allow enough options to meet all the individual needs of all exceptional students.
One argument against the present approach to special education is that some feel that a
continuum of services is necessary to meet the variety of needs found in almost every
exceptional child. For example, more services than just remaining in a regular classroom will
be required for severely and multiply impaired students. The inclusion approach may not
allow for enough individual treatment or individualized programs, such as individual therapy,

which may well be necessary for some handicapped children to reach their highest potential.

77

These same arguments would apply to the appropriateness of inclusive education for
gifted or gifted-handicapped children. Multiply impaired children, who are also gifted, may
well not be as appropriately placed in a regular classroom, if they are to reach their fullest
potential. These gifted-handicapped children may need to receive therapy and counseling and
individual teaching in order to demonstrate their giftedness (Hallahan & Kaufinan, 1994).
Nonetheless, if they are capable of participating, they may still benefit from inclusion in at
least some aspects of a gifted program. This would address the increased potential inherent
in their giftedness, but the possible need for individualized services to address their handicaps
should not be forgotten.

Another argument against the present special educational inclusion approach is that
regular educators are often not willing to deal with all children and indeed are not expert
enough to be expected to deal with all children efi‘ectively (Hallahan & Kaufman, 1994).
Most regular education teachers receive one course on exceptional children as part of their
college training program. No matter how good one course may be, it can never be enough
to enable a teacher to deal as efi‘ectively with children as special education majors who spend
their entire program specializing in such skills.

To this same degree, gifted-handicapped children may well have needs too complex
to be served efl‘ectively by a regular education teacher or a gifted education teacher in a
regular or gifted classroom, without more specialized assistance from specially trained
professionals. Just as the proper response with regard to the nongifted handicapped child is
the provision of consultant services for the regular education teacher, consultant service may

also be necessary for the gifted education teacher to help the gifted-handicapped child reach

78

his or her potential. The difficulty may, in fact, be of less concern for gifted education. The
gifted educator is accustomed to dealing with at least one variety of exceptionality. The
inclusion of an additional exceptionality may be of less concern than it is for a teacher less
accustomed to responding to differing needs.

Another argument against special education is that society is committing an inordinate
amount of money to a group who will never be able to give much back in kind to society.
Some consider this to be a waste of resources. It can be very expensive to provide for the
needs of severely or multiply impaired handicapped children. These children may require care
throughout their lifetimes, and they may well not “pay back” to society what has been given
to them.

This argument does not apply with as much force to the gifted-handicapped. If
services are provided to gifted-handicapped children, they do have incredible potential to offer
in kind contributions to the society which will have spent resources on them. In fact, it is
currently the resource of gifted-handicapped children that is being wasted.

Yet another argument against special education is that when students are identified
as exceptional or different fi'om the average child, they are set apart and this may stigrnatize
them (Sapron-Shevin, 1994). This is an argument against labeling children according to
identified handicaps and would require providing services without requiring the very label
which is now a federal requirement for children in order to receive special education services.
Many teachers and parents cannot handle one label, let alone two, as it is just too confusing
and often inaccurate to try to pigeon hole children. In fact, the present educational laws,

such as PL. 94-142, prohibit comorbidity, or the use of two labels on any one child. So the

79

gifted-handicapped child will present difficulties to this manner of thinking. Part of this
thinking is based on a belief that all children are equal and the same, and there are no
differences.

Nonetheless, the law does require a label, when a child is handicapped. While the law
may not recognize two labels for purposes of funding, the school may also recognize other
characteristics of the child. Just as a child may be learning disabled and an athlete, a child may
be dyslexic and mathematically talented. This is not comorbidity; there is a single identified
handicap and an additional recognition of a talent. The concern over negative labels may,
given the legal requirements, be unavoidable. But, to attach a required negative label, without
being willing also to attach an applicable positive label, assuming that “gifted” is a positive
label, is to stress the stigrnatizing effect of labeling.

Another argument against special education for handicapped is a concern over not
being able to identify the categories of disability with great reliability. There is no foolproof
way to consistently assess and identify disabilities. This difficulty may not be worsened by
also recognizing a gift or talent independent of the disability. As will be discussed in Chapter
VI, the existence of a handicap may make identification of a gift or talent more difficult. It
is also the case that a child’s giftedness may have allowed the child, at least partially, to
compensate for a handicap, thereby making identification of the handicap more difiicult.
Nonetheless, proper identification procedures will often be able to identify a gift or talent,
even in handicapped children. Where the child’s giftedness is recognized, and the child is
underachieving, that may in fact contribute to the ability to recognize a disability such as a

learning disability.

80

Still another concern over special education is that the incidence of identification as
handicapped among children from certain social and ethnic groups is greater than that among
children from the majority culture (Hallahan & Kaufman, 1994). A purely empirical approach
would include identified children in special education programs based solely on their test
results, without regard for the increased incidence of minorities. Ethical and political
considerations, on the other hand, may require an examination of the effect of such
identification procedures on the status of minority groups. This effect is, in fact, mitigated
by mainstreaming, where the identified child is not excluded from the general school
population.

For the pure advocates of equality, statistical studies do not provide an answer. They
may see all handicapped people as a minority group that has been discriminated against and
needs to be integrated firlly into society. That is all that is needed to put handicapped people
back where they belong. Where special education programs have led to the increased
exclusion of ethnic or social minorities, there is a doubled need to integrate or mainstream.
Such advocates of the ethical argument do not care to know or explore if, in fact, the
inclusion or integration is effective. They behave that integration is the only way to rectify
past wrongs. Ethical grounds for inclusion are all that are needed to move ahead in that
direction. Even if it were to be proven that inclusion were ineffective, that would not matter.
Others feel it is unprofessional not to research efi‘ectiveness. Some feel people who argue for
inclusion on an ethical basis have traded their credentials as scientific researchers in favor of
becoming lobbyists and advocates (Hallahan & Kaufinan, 1994).

Applying this approach to the gifted-handicapped, exclusion from gifted programs

81

raises the same concerns. Handicapped children, who are excluded, may again be seen as the
victims of discrimination. If students turn out to be disproportionately excluded from gifted
programs because of the perceived effects of the existence of a handicap, there is the same
second concern. Just as inclusion in the regular education classroom is seen by the advocate
of the ethical approach to be the solution to the isolation of a minority population, inclusion
of the gifted-handicapped in gifted programs would be similarly justified.

While the argument might be offered that instead the conclusion should be that such
students should be in the regular classroom rather than the gifted classroom, that can only be
the conclusion if one is prepared to argue against gifted education entirely. A policy
argument for such a position might be offered, and will be considered below, but if a school
has a gifted program, treating the handicapped equally, and treating ethnic and social
minorities that are disproportionately identified as handicapped equally, requires that their
gifts be addressed in a manner consistent with the way in which those of the nonhandicapped
are treated.

ArmamentachGifichdncatinn

A major rationale for educating the gifted is that there will likely be a return from the
investment made by society and the schools. Whatever monies a school puts into such a
program will allow society to reap benefits, when the children become adults. As noted in the
table in Chapter 111, many handicapped children will also be gifted and will have the same
potential to provide a positive return on society’s investment. The potential return argument
is as valid for the gifted-handicapped population as it is for the gifted. These children will

have the potential for contribution to their society as adults, unlike many strictly handicapped

82

children.

Perhaps more an explanation of the cycles of funding for gifted education, rather than
an argument for such firnding, is the fact that the cry for excellence has often been sounded
when society faces a crisis. It is most commonly then that the gifted are granted funding for
better education. When a society finds itself in dire straits, it looks to some people in its
population to help find a way out.

Society has a long historical pattern of conflict between a desire for equity and a
desire for excellence in response to social, political, and educational issues of the time
(Gallagher, 1984). While the focus is often on equality, this conflict is stirred up whenever
there is some social crisis or outside threat. The focus then turns to excellence, and programs
for gifted education are looked to for possible solutions to the problems. However, usually
as soon as the outside crisis is over and domestic tranquility resumes, the thrust once again
becomes one of equity, and the gifted are forgotten.

This pattern can be seen during crises such as world wars and other world and
national emergencies. During World War I, IQ. tests were first designed, and gifted
education really began to develop. Then came the Depression and World War II, and leaders
in the field of gifted education recognized the need to cultivate the talents of gifted individuals
in order help guide the world more effectively (Coleman & Gallagher, 1995). As noted, once
the crises ended so too does attention to the gifted. For example, during World War 11, tests
were used to identify individuals with special talents and abilities and special attention was
given to individuals with extremely high I.Q.s. As soon as the war ended, programs for gifted

children declined, and by 1948, less than one percent of larger schools offered programming

83

for the gifted (Gallagher & Weiss, 1979). When the 19505 saw the Russians launch Sputnik,
the country again recognized a crisis in gifted education. As soon as the nation was satisfied
that it had “caught up,” equality again became the focus.

A strong argument for gifted education may be found in the fact that, with the rate of
change the world faces today and with the complexity of knowledge necessary to address any
new crisis, society cannot wait for the emergence of a problem, before beginning to educate
the children who will eventually provide a solution. A pool of well educated gifted and
creative individuals must be regularly in place to address any crises, as they arise. There is
no reason to rule out the gifted-handicapped as being among those individuals who need to
be available to address society’s firture problems. Indeed, individuals such as Albert Einstein,
Stephen Hawking and Winston Churchill show that the solution may well reside in those who
are not only gifted but also handicapped. A society that wastes such valuable resources puts
itself at risk.

An additional argument for gifted education is one that argues for a different view of
giftedness. Some argue that what schools generally tend to focus on developing is
intelligence and not intellect (Howley, Howley & Pendarvis, 1995). Schools focus on the use
of intelligence tests as a means for assessing intellectual giftedness. These are not very
reliable or valid measures of intellectual potential, and the focus on these measures overlooks
the true substance of intellect. Intelligence is concerned with practical performances and
quantifiable measurement, while intellect concerns thoughtful understandings and is a quality
rather than a quantity. Intellect requires intensive nurturing in contrast to intelligence, which

Howley, Howley and Pendarvis say is innate and exists on its own. The possibility of

84

education for the development of intellect is often obfirscated by the great debate about
intelligence. Gifted education tends to do a better job than regular education of focusing on
the development of intellect.

Howley, Howley and Pendarvis (1995) argue that two of the most frequently used
arguments for gifted education, that schools must meet the needs of intellectually able
students and that gifted children are the nation’s greatest resource, both serve anti-intellect
firnctions. The natural resource argument comes from the “human capital theory,” which
holds that what people know and do partially accounts for how a nation does productively
and how well it can compete. This helps to explain why emphasis on gifted education comes
only in a time of national need. People, under this approach, exist to serve the national
security or means of production. This approach treats people only as producers and
consumers, and schools are usually designed along that line of thinking (Howley, Howley &
Pendarvis, 1995). This line of viewing and exploiting students as natural resources has
questionable ethical assumptions (Howley, Howley, & Pendarvis, 1995). They argue that we
have become concerned about mass education and learning for employment and profit in our
society to the neglect of intellect.

Even neuropsychology and the fascination with the brain is argued to take the
emphasis ofi‘ intellect and instead to see the brain as the singularly important object of study.
Intelligence is still seen as an inborn trait, and intellect can be and is ignored. It is argued that
we must focus on the development of intellect and respect for student thinking.
Contemplation and understanding must be taught and encouraged, and meaningful expression

must also be developed and encouraged. Finally the intellectual potential in all students must

85

be respected and developed. In schools, all three of these aspects are often lacking (Howley,
Howley, & Pendarvis, 1995). Instead, international competitiveness causes schools to try
to become proficient in and master problem solving intended to save the world and not to
develop intellect.

As it stands now, according to Howley, Howley and Pendarvis, schools are in charge
of silencing voices and obscuring visions, so that the governing spirit of American education
can prevail and students can become robots in the economic system they are being turned out
to be workers and resources for. They see individuals as being recruited and exploited by the
mling class in order to advance its own interests. Only by helping the gifted to contemplate
the inequality, injustice, and abuse in society can we hope to find answers to the problems of
our world.

Individuals like Howley, Howley and Pendarvis would likely find the failure to include
gifted-handicapped students in gifted programs to be another manifestation of this
exploitation. Students who are seen as less likely to fit neatly into the needs of industry are
excluded. They do, however, have intellects, and if intellect is to be developed, rather than

intelligence exploited, the needs of the gifted-handicapped must be addressed.

! ! . B'fi l E l .

Sapon-Shevin in her book, WWW
Community (1994), asks whether it makes sense to label some children “gifted” and others
“not gifted.” She questions whether we can be so sure that such a labeling process is
perfectly accurate. She also questions whether there are effects of such labeling on parents

and teachers, as well as the children. And she wonders if the programs designed for the gifted

86

are only appropriate for them, or whether other children could also benefit from such
programs. These questions lead to more questions about what removing the gifted children
might do to the regular classroom and what would such programs mean to the educational
system in general and to society. She particularly wondered what lessons were being taught,
if we remove the gifted and serve them out of sight of other students and often keep the
existence of these programs under wraps.

Sapron-Shevin sees giftedness as being a social construct and not a natural fact.
Giftedness is whatever the group dealing with the issue makes it to be. Schools like to sort
and label children, but does it make objective sense to call any children gifted? Is the present
sorting process effective in really identifying who is gifted and who is not? Does labeling
children as different separate them from most people and make common sense thinking no
longer applicable to them?

If, as Sapron-Shevin asserts, giftedness is a social construct used to sort children
according to social expectations, and even the number of gifted individuals is determined by
the outcomes desired by the group identifying the gifted, then how can it be known what
giftedness really is? Ifa school wants to have a gifted program and has a limited budget, they
may identify only the top one percent or, if they have more money, they may identify the top
five percent. The society determines what giftedness will be; there is no real universal
definition.

Other disability labels, such as mental retardation and learning disabilities have been

analyzed as social constructs in studies such as Handrcapmngjheflmdrgapped (Mehan,

Hertweck, & Meihls, 1986). It is obvious that the labels serve the purposes of the federal

87

government, schools, teachers, and parents and, as a result, their meanings are unreliable and
fuzzy. \Vrthout school rules, policies, and legal and educational practices designed to provide
services to such populations there would be no category or label as it presently exists. There
would obviously be difi‘erences in and among children, but the specific characteristics of any
label, be it “gifted” or “mentally retarded,” only exist within a system that for whatever reason
wishes to measure, select, and sort students in that manner. It serves the group’s chosen
purposes.

In the book, Mud (1994), James Trent states that “mental

retardation is a construction whose changing meaning is shaped both by individuals who
initiate and administer policies, programs, and practices, and by the social context to which
those individuals are responding” (p2). As a result of this, Trent firrther notes that different
individuals have viewed mental retardation “in diverse ways: as a disorder of the senses, a
moral flaw, a medical disease, a mental deficiency, a menace to the social fabric, and finally
as mental retardation” (p.2). A rather discouraging analysis of our effort to improve the
concept of mental retardation comes from Trent, as he notes that “fi'om the time we started
to view mental retardation as ‘thing’- to be the object of scientific study, intervention, needing
professional influence, funding, and social control, the true history of the political choices
have been hidden” (p.6). Trent says this is more telling than all the “fabrications of mental
retardation” we have come up with over time.

Trent hoped his book would help us to learn about mental retardation and to bring
that knowledge to an understanding of ourselves.

The lessons we can learn from it teach us about who we are now,

88

about our own mythologies, and about the meaning of the gaze we cast on

miserable people and on their apparent need for help, our know-how, and our

time. There are indeed aspects of the lives of mentally retarded people (and

mentally accelerated people, too) that require help from other individuals, but

by looking at the mentally retarded person, the other, so obsessively, we fail

to look at ourselves and examine the “screens of ideology” which shape and

direct our gaze (p.6).
We must create a solidarity of all people willing to face the details of the pain and humiliation
of people seemingly unfamiliar to us. Throughout history we have run from the differences
among us and we have used every possible screen across time from demons, superstition, to
infatuation with science and technology. But it may be that we still regard individuals who
are different with the same confusion and fear felt by the first primitive people. Our concepts
of handicaps such as mental retardation has not changed, only the words chosen to represent
the concept have changed. Even now we wrangle with whether to call children “gifted,”
“talented,” “mentally accelerated,” or one of many other possible labels. The “gifted-
handicapped” label is also noted to be perhaps out of vogue or politically incorrect. For in
Michigan, in 1998, voters passed an amendment which determined that people should no
longer be called “handicapped” and instead should be called “disabled.” Like the concept of
mental retardation, the concept of gifted-handicapped has evolved over time. But where has
it gone and where is it going?

Difficulties emerge when we try to identify gifted children who are not so readily
apparent in their giftedness. A child who leams to read at age three is obviously gifted, and
a child who is a musical prodigy is also obvious in his or her giftedness. Yet many children

exist who have enormous undeveloped talent, including many gifted-handicapped children.

Teachers, parents, school districts, and even experts in giftedness have disparate ideas about

89

what giftedness may be. So identification procedures vary widely. This feeds into the
argument that identification is inadequate to justify the separation and additional education
given to those identified as gifted. Yet, attempts to include the gifted-handicapped will
require that the problems of identification be addressed in a way that may lessen the general
concern over inadequacies of identification. Experience tailoring identification measures to
the specific exceptionalities of the handicapped may lead to a more individualized approach
that will improve identification in the general population as well.

Another argument against gifted education is that there is a misuse of or abuse of
tests, with an overuse of IQ. and achievement tests to identify the gifted for special programs.
This results in the under inclusion of minority students and also probably the gifted-
handicapped. Part of this argument also states that adding additional tests to the ones already
being used for identification only measure the very same traits of the IQ. and achievement
tests under a different guise.

Testing again is an issue in the argument that children cannot be identified with great
reliability across social and racial lines. This, however, ought not to be accepted as an
argument against gifted education but rather as a demand for identification procedures that
are adequate to identify the gifted among minority populations. So too, it is an argument for
improved identification of the gifted-handicapped.

The loudest argument against providing education for the gifted is that it is elitist to
provide education to this cream of the crop, who will do well no matter what type of
education they are provided. This argument goes along the line that certain people are just

going to do well, and they will do well even if they are given no help. As the cream just

90

naturally rise to the top, so too will these gifted children. As a result, we do not need to
provide anything more to them; they will make it on their own. So why not give the extra
money or help to children who really need it to stay afloat?

Whatever minimal force this argument may have when addressing the general
population, it loses force when applied to the gifted-handicapped. In fact, providing services
to the gifted-handicapped, who really can use the help, makes the education of gifted children
generally less elitist. Even though it is argued that gifted students can make it on their own
and that society need not provide them with any more than they already get, gifted-
handicapped children may well not make it on their own.

I 5 'fi ll E l G'fl HI 1' I

When it comes to identifying and serving gifted children, there is a problem. The
underlying problem has been, and continues to be, that in the United States the overriding
philosophy is one of equity for everyone and that all should receive equal treatment. In this
country the educational system gears up (or down) to have everyone be able to be equal,
average, or alike and to give equal time and treatment to all citizens. If any student receives
more than this equal time or treatment, the equity philosophy is not working. This concern
for equity is presently being voiced about students having disabilities, and the extra time and
money they have received and continue to receive is being questioned. The same is true of
special programs for the gifted.

History has noted the pendulum swing in education going from equity on one side to
excellence on the other side. From Thomas J efi‘erson’s time onward the two concepts have

been in conflict. While equity was “in” in the early part of the twentieth century, 1957 saw

91

the beginning of the Sputnik era and a move toward excellence. Equity was again the call in
the 1960s and 19705. The call for excellence began again in the 19805. The concern for
quality and not equality once again became the focus (Mc Daniel, 1993). While handicapped
students have been provided for by PL. 94-142, the Education for All Handicapped Children
Act, since 1975, the interest in providing for the gifted has seen ups and downs with some
resurgence of interest since the 19805. But the issue remains as to whether schools can
handle trying to be both equal and excellent (Gallagher, 1993).

Gifted-handicapped students push the limit of this philosophy beyond where society
seems to be able to look and beyond what it can accept. These children are not only
handicapped; they are also gifted. One has to question whether such a possibility can even
exist in the minds of Americans. For this is an example of an individual who is above average
in ability and also has a disability that needs extra services. This person presents a dilemma
because he or she falls far out of the equity model, being in need of services for both
giftedness on the excellence side of the continuum and also for the handicap on the equity side
of the continuum. This is, conceptually, a double whammy to a society that wants every
person to be equal and to receive equal treatment. Yet, the gifted-handicapped child presents
a situation in which we can address both of society’s concerns by helping to provide equal
treatment for the handicapped in any case in which the schools have determined to address
excellence in the nonhandicapped population.

Because of this double dilemma that impacts on both the equity and excellence issue,
society has failed to recognize this melding of equity and excellence and has not even really

accepted that these individuals exist. While these individuals need to be treated differently

92

from just being disabled and/or just being gifted, they are not receiving services that
adequately meet their needs. It appears society can only deal with one concept. There can
be either equity or excellence at any one time. A person cannot be handicapped and in need
of extra services and also gifted and in need of more services on that count. It is this type of
paradox or contradiction in regard to the gifted-handicapped that Maker noted as a major
problem in acceptance of idea of the gifted-handicapped (Maker, 1977).

For a society concerned with equity, giftedness is a less easily accepted difference with
which to deal. Students who are gifted often can do average work easily, and society is often
less willing to give extra services for students most of whom already do better than the
average child. Our democratic society, as with many other societies, democratic and non-
democratic, has long had difficulties dealing with excellence and still maintaining equity. A
great deal of tension exists between the equity and excellence ideas. Thomas Jefferson and
Horace Mann really helped cement the concept of promoting democratic values in the public
schools, while also increasing social harmony in our society (McDaniel, 1993). So what
happens when you have an individual with the combination of a disability with giftedness?
This really throws people into confusion. How does one deal with this individual and still
promote democratic views and social harmony?

Another interacting factor that enters into the inability to understand or accept the
gifted-handicapped individual focuses on the fact that everyone, even the gifted student, is not
equally as strong in all areas. Someone may be very strong in math and yet have little athletic
ability. In response to the underlying equity concept held by society, this child will typically

be worked with to try to even out or equalize this weakness, and the focus will be on

93

addressing the weakness (equity) and not the strength (as this would be a focus on
excellence). Special education has also been based on a failure model that addresses areas the
child has failed to achieve in. So the student’s weaknesses become the focus of services and
intervention instead of the student’s strengths and abilities (Van Tassel-Baska, 1992). This
focus may well help to explain why the choice to focus on the handicap and not the giftedness
often prevails in our society.

Interestingly, VanTassel-Baska also notes that the gifted-handicapped student presents
problems even within the concept of giftedness: “[T]hey portray real disabilities in
firnctioning. Their profile is atypical in respect to strengths, when compared to our classic
conceptions of giftedness, and it forces us to entertain a conception of subnorrnal firnctioning
in the gifted, a condition not readily acceptable in the conceptual framework of understanding
giftedness” (1992, p. 171). The possibility that the gifted-handicapped student may exist,
makes the continuum of giftedness much more broad, diverse and complex. This makes the
concept less simple, less black or white, and more gray. And this makes the equity and
excellence issues all the more complex and unclear.

A major issue for gifted-handicapped is how to combine working with handicapped
and working with the gifted. How can the balance be found that works with the gifts without
neglecting compensating for the handicaps? It must be determined in each and every case
whether it is more important to work with the gift or with the handicap. Too often it is only
the handicap that is addressed. While the focus of this analysis has been the inclusion of the
gifted-handicapped in gifted programs, it must be recognized that the children at issue are also

handicapped. While their gifts should be developed, they will also need to have their

94

handicaps addressed. The balance to be struck will vary from child to child and must be
carefully drawn.

It must also be recognized that the inclusion of gifted-handicapped in gifted programs
will also depend on how the individual’s handicap relates to the specific content of the gifted
program. What we are identifying for depends on the programs that exist. If a system has
a math program, then they need to identify and accelerate based on mathematical ability and
look at how the specific disability interferes with any potential mathematical talent.

A particular problem for the gifted-handicapped has to do with the preference of
bureaucrats for using formulas or patterns to make decisions. This supposedly increases
efficiency and reduces costs. Yet gifted-handicapped children do not fit most patterns for
giftedness and are therefore overlooked (Schwartz, 1994).

Joyce Van Tassel-Baska (1989) has suggested that the gifted be identified in a more
flexible manner in order to account for the disadvantaged-gifted. She suggests:

Another alternative is to state that every building in a school district will select

the upper 3%, 5%, or 10% of its most talented students and then assume that

the “levels of giftedness” from building to building will vary. Thus, a building

that draws upon a group of economically deprived youngsters may identify a

group of relatively “less gifted” (as indicated by standard test scores)
youngsters than would a building that draws upon a more affluent population

(p 57).
While building by building comparisons may not even out the inclusion of the handicapped
in gifted education, the analysis of the prevalence of giftedness in the handicapped population
presented in Chapter 111 could be used to the same end. The percentage used generally could
be used for the learning disabled population as well, so that if five percent of the school is to

be included, the top five percent of the learning disabled would also be included. While such

95

an approach would not work for the mentally retarded for identification for an academic
program, it may still be relevant for identification for an arts enrichment program.
WW

Gifted-handicapped children’s need for an education which enables them to develop
to their fullest potential is well established. Without such an education these children will
likely not be successful in overcoming their disabilities and having their gifts surface and
shine. The rare exceptions of such people as Helen Keller and Albert Edison are not the rule
for this population. Whatever issues may exist against special provisions for the gifted or the
handicapped, be it equity, excellence, individuality, would not and should exclude gifted-
handicapped children from gifted programs.

It has been argued that the system of education in practice in the United States today
does not allow for the development of intellect (Howley, Howley, & Pendarvis, 1995). It
merely tries to provide everyone with a standard and firnctional education. So, if uncommon
talent is noted, it is ignored, for the present system is positioned to discount the value of
developing talent, because the intent is to provide custodial care and functional skills. The
final blow for the gifted is that when gifted children appear to do well in this system and go
on to find successfirl careers, people believe that education today has succeeded in developing
talent in gifted children.

Due to the custodial nature of education, disabled children are too often considered
educated if they are merely seated in a classroom and especially a regular classroom. All
children lose in this system, because this education system is not flexible and able to attend

to the needs of individuals. The system is rigid and unfortunately this system is all most

96

people can imagine. As a result, it is difficult to change it. Yet this education system does
not do much more than keep children in custody, while providing rigid services to “enhance”
basic skills in rigidly defined tracks or groups, all at as low cost as possible. While this may
be a valuable service to parents, who work and need the help, it does not offer true education
at the same time it provides custody (Howley, Howley, & Pendarvis, 1994), and all children

suffer.

V
LAW AND THE GIFTED-HANDICAPPED: GETTING
BEYOND W

In 1975, the United States Congress passed Public Law 94-142, the Education for All
Handicapped Children Act. That act, now known as the Individuals with Disabilities
Education Act (IDEA), is a landmark in education legislation and has changed how special
education is handled in the country. The IDEA mandates that all children with disabilities
between the ages of three and twenty-one receive a free and appropriate education. States
must locate and identify all children with disabilities and, regardless of the type of disability
or severity of the disability, must provide those children with a fiee and appropriate
education. Furthermore, the schools must use nonbiased and multifactorial methods of
assessment to determine the child’s disability and what types of special education are needed.
The school must then develop and implement an individualized education program (IEP) to
meet the child’s unique needs. Placement of students with disabilities must be in the least
restrictive environment possible. Parents are also assured due process and involvement in the
process.

This law has seen amendments since 1975 which have attempted to deal with changing
times and circumstances. The Education of the Handicapped Amendments of 1986 extended
special education to infants, toddlers, and preschoolers. The Education of the Handicapped

Act Amendments of 1990, which provided the name IDEA, made several additions to PL.

97

98
94-142 to include autism and traumatic brain injury among the conditions warranting special
education, to require the provision of transition services, and the addition of rehabilitation
counseling and social work services being added to related services.

Related legislation has also been implemented; including PL. 95-561, the Gifted and
Talented Children’s Act of 1978; Section 504 of the Rehabilitation Act of 1973; PL. 101-
336, the American with Disabilities Act (ADA); and PL. 103-227, Goals 2000: Educate
America Act. The ADA extends civil rights protection to individuals with disabilities in
private sector employment, all public services, public accommodation, public transportation,
and telecommunication.

While the decision of the United States Supreme Court in W
Wu (1982) removed any force PL. 94-142
might have given to the drive to provide an enriched education to those handicapped children
who might also be gifted, there are other legal arguments to that end to be found in the later
statutes and in the United States Constitution. In particular, the Equal Protection Clause of
the United States Constitution has been used in the past to obtain educational services for the
handicapped. Section 504 of the Rehabilitation Act and the Americans with Disabilities Act
are also possrble sources of a legal right on the part of the handicapped to participate in gifted
education programs. The three potential sources mentioned, the Equal Protection Clause,
Section 504, and the ADA will be addressed in that order.

W
The Equal Protection Clause is found in the Fourteenth Amendment of the United

States Constitution. It states that no one may be denied equal protection of the law by any

99

state or local government. The precise wording of the relevant part of the amendment is “nor
shall any state deny to any person within its jurisdiction equal protection of the laws” (United
Warrior), amendment XIV). The Equal Protection Clause has been characterized
as a “guarantee that similar people will be dealt with in a similar manner” (N owak & Rotunda,
l995,p.597)

Of course, many laws classify people according to particular characteristics, and it is
not always easy to decide if this is a violation of equal protection. There are some clear cases.
For example, only people with certain levels of medical training are allowed to offer medical
advice, and it would be odd if that were to be a violation of the Constitution. On the other
hand, a law that denies Afiican-Americans the right to use a public park would be a clear
violation.

1 1 ES . l E l E .

What constitutes a violation of equal protection is not always so clear, and certain
levels of analysis are used to help determine such an issue. There are three standards of
review that are used in equal protection analysis. The highest level of scrutiny is used when
a classification is based on race or ethnicity or is based on alienage and treats resident aliens
less favorably than citizens. These are known as suspect classes or classifications. When a
statute negatively affects a racial, ethnic or alien group, there is a concern that the statute may
be an attempt to discriminate. When a statute affects such a suspect class, it is looked at with
strict scrutiny.

When strict scrutiny is called for, the government must show it is pursuing a

compelling or overriding governmental interest and that the classification is necessary to

100

promote that end. This strict scrutiny test is very difficult for a government to meet and the
only time it has ever been met when there was a negative impact on a racial minority was
during World War H, when Japanese-Americans were excluded from the West Coast of the
United States.

The next level of scrutiny is for quasi-suspect classes and is an intermediate level of
scrutiny. This is not as difiicult for governments to meet and involves showing a classification
has a substantial relationship to an important government interest. This level of scrutiny has
been used to test classifications based on gender or illegitimacy (N owak & Rotunda, 1995,
p.603)

When a classification does not involve either a suspect class or a quasi-suspect class,
the statute must only meet the rational basis test. This test asks whether the classification
bears a rational relationship to a permissible government purpose. The person contesting the
statute must show that there is no such rationally related interest, making this an extremely
easy test for the government to pass. If anyone can identify a permissible objective that a
rational legislator could have believed would be firrthered by the statute, the statute is
constitutional.

There is one additional way in which levels of scrutiny are determined in equal
protection cases. These cases do not involve suspect or quasi-suspect classes but instead
involve firndarnental rights. If people are treated difi‘erently with regard to the exercise of a
fundamental right, the difi’erent treatment must be justified under strict scrutiny. This is true

even if the group less favored is not suspect or quasi-suspect.

111' El E IE 'Cl .5 'lEl .

101

The Equal Protection Clause has had a history of involvement with special education.

'. (1972) an association and

 

the parents of some retarded children challenged statutes that excluded retarded children from
public education. While they made several claims, one of them was an equal protection
argument. They questioned ‘thether the state, having undertaken to provide public
education to some children (perhaps all children) may deny it to plaintiffs entirely” (p. 297).
While the court only briefly considered the argument, it said there was serious doubt that
there was even a rationale basis for excluding the retarded.

Several months later, the federal district court in the District of Columbia also

considered exclusion. The plaintifis in W
Columbia (1972) had been excluded from the public schools because they were considered
to be either behavioral problems, mentally retarded, emotionally disturbed, or hyperactive.
The court considered the equal protection claim, as it applies to the federal government

through the Fifth Amendment Due Process Clause. The court was guided by the United

States Supreme Court’s decision in W (1954). That court had
said:

Today, education is perhaps the most important firnction of state and local
governments. Compulsory school attendance laws and the great expenditures
for education both demonstrate our recognition of the importance of
education to our democratic society. It is required in the performance of our
most basic public responsibilities, even service in the armed forces. It is the
very foundation of good citizenship. Today it is a principle instrument in
awakening the child to cultural values, in preparing him for later professional
training, and in helping him to adjust normally to his environment. In these
days, it is doubtful that any child may reasonably be expected to succeed in
life if he is denied the opportunity of an education. Such an opportunity,
where the state has undertaken to provide it, is a right which must be made

102

available to all on equal terms (p.493).
The Mills court also cited a case that found the failure to provide poor public school children
the same opportunities available to more wealthy school children to be a violation of the Fifth
Amendment’s Due Process Clause’s inclusion of equal protection. In conclusion, the court
held that the complete denial of education must be an even greater violation.
E l . E 1 l E' I

While these cases would seem to indicate that the handicapped need to be given the
same opportunities as the nonhandicapped, the application is not as straightforward as it
might appear. The major problem is that the cases were decided prior to the United States
Supreme Court decision in mnemmmmmmflmmmn).
While the Mills court seemed to take the language of Brown as indicating that education is
a fundamental right requiring equal treatment, it is only in the San Antonio case that the
Supreme Court directly considers that issue.

WNW was a challenge to the
constitutionality of the way Texas financed public education. There was a substantial
interdistrict disparity in per-pupil expenditures. The suit contrasted two districts. The least
affluent district in the San Antonio area had an assessed property value of only $5,960 per
student, while the most affluent had an assessed property value of more than $49,000 per
student. The poorer district, taxing at the highest level permitted, raised only $26 per student,
while the more property rich district, even though taxing at a lower level, raised $333 per
student. While the state also provided funds for the schools, state firnding did nothing to level

resources, and the more aflluent district still operated with a total of $310 more per student

103
than the poorer district.

The federal district court applied strict scrutiny and found the plan violated the Equal
Protection Clause, but the United States Supreme Court reversed. The Court looked for a
reason to apply strict scrutiny by determining whether the disparity disadvantaged a suspect
class or infiinged on a fundamental right. The suspect class suggested was the poor. While
the Court recognized that some of its earlier cases had protected the poor against
discrimination, it saw those cases as limited to cases where there was a complete deprivation
of a benefit. The Court also questioned whether the poorest districts, based on assessed
value, contained the poorest residents.

The Court also decided that, despite the language in W
education is not a fundamental right. It is not explicitly protected by the Constitution, and
the only way the plaintiffs had been able to assert that it was a firndamental right was to tie
it to the right to vote and to the freedoms of speech and press by claiming that the
Constitution guaranteed the right to cast an intelligent vote and to offer intelligent or
persuasive speech. The Court was unwilling to guarantee effectiveness or an informed basis
in either area and held that no firndarnental right was infringed, at least where the benefits of
an education were not being totally denied.

Because the Court could find no reason to use strict scrutiny, it applied the rational
basis test. The Court felt that the use of local property taxation was a legitimate means for
dividing monies for education and that it furthered a state interest in local control of

education.

SanAntnnieIndependsmSchNDisnicujmlnmez does not contradict the two

104

earlier equal protection cases involving the retarded and other exceptional students. In those
cases there was a complete denial of benefits, while in the San Antonio case some adequate
level of education was being provided. Additionally, while the poor were not seen as a
suspect class, there remained the possibility that the retarded or other exceptional children
might be seen as a suspect class. The issue of the status of the retarded came to the Supreme
Court over a decade later.
WW

We: (1985) was a case that challenged less
than equal treatment of the mentally retarded. The city of Clebume had a zoning ordinance
that prohibited the building of a group home for the mentally retarded in one of the residential
neighborhoods there. A hospital or a home for the elderly and various other types of
structures could have been built on the site. But, the ordinance specifically prohibited homes
for the insane, retarded, or drug addicts and alcoholics. The lower court had chosen to use
heightened scrutiny and viewed the mentally retarded as a quasi-suspect class. The Supreme
Court did invalidate the ordinance, but found that the lower court had erred in its use of
heightened scrutiny.

The Court looked at the factors which determine whether a group is a suspect class.
The Court saw no reason to suspect legislative prejudice against the retarded. It noted
statutes that banned discrimination against the mentally retarded. It also noted that the
retarded were, in fact, different, and that those differences might have to be taken into
consideration by the government. The Court was concerned that the mentally retarded were

given heightened scrutiny, it might hinder their receiving other special assistance. The Court

105

was also concerned that if heightened scrutiny were given to the mentally retarded, it might
also have to be used with other kinds of disabilities.

Since it could not find any reason for heightened scrutiny, the Court had to apply the
rational basis test. In applying the test the Court could find no legitimate government purpose
for the ordinance ban. The City council had expressed concern that the land was on a 500
year flood plain. But the Court said that could not explain the differing treatment the retarded
were receiving compared to the elderly and other groups. The council also was concerned
about the number of inhabitants in the home and legal responsibility for the actions the
inhabitants might take. The Court saw no reason to treat the mentally retarded any differently
than fi'aternity members, who could have lived as a group on the site.

The council’s real concern seemed to be with the negative attitudes of the property
owners near the facility, fears of the elderly in the neighborhood, and concern that students
at a nearby junior high school would harass the retarded individuals. In the Court’s view this
amounted to “irrational prejudice against the mentally retarded.” Statutes based on irrational
prejudice cannot meet even a rational basis test.

Given the cases so far, it seems clear that, if districts adopted a policy that flatly
excluded all children with exceptionalities from gifted programs that would be
unconstitutional discrimination. The early cases that found exclusion of the retarded or those
with other exceptionalities from public education to be a violation of equal protection would
apply to a complete exclusion of other exceptional children, even those who could handle the
enriched material, from an available gifted program. While the San Antonio case may have

weakened the fundamental right status of receiving an education to that of an adequate

106

education, where there is a gifted program in a district, the San Antonio case should not
justify exclusion of exceptional children who can handle the material. A complete exclusion
of such capable handicapped children could only be explained by prejudice or stereotypical
thinking about the handicapped that the Clebume case found inadequate to meet even rational
basis review.

IheRQleanntem

The real problem with applying this area of law to gifted-handicapped children is that
they are most likely not left out of gifted program as the result of an official, even informal,
exclusionary policy. Instead, it is simply more likely that they may fail to test well on the
instruments used to identify students to participate in gifted programs. Even if they have the
capability to succeed and are tnrly gifted, their handicaps may keep them out, because the
handicaps fail to allow the gifts to show.

The issue of a test having a negative impact on a population that might in fact be
qualified was raised in W (1976). That case involved the use of a
communication assessment test, measuring verbal skills, vocabulary, and reading
comprehension, to screen police force applicants. The suit was filed by black applicants for
those law enforcement positions who claimed the assessment discriminated against them.
The evidence presented to the district court concluded that a higher percentage of blacks than
whites failed the test and the test had not even been validated to show it could measure job
related success.

When the case reached the United States Supreme Court, the Court considered the

claim that the test was an “intentional” act of discrimination. The Court held that a law may

107

not be declared invalid under the Equal Protection Clause simply because it afl‘ects a greater
proportion of one race than another. There is no reason why that conclusion would not also
apply to the effects of a screening test on the gifted-handicapped. The Court also found,
however, that an invidious discriminatory purpose may be inferred from the totality of
relevant facts. Disproportionate impact is not irrelevant to such an inference, although it is
not sufiicient as the sole measure of invidious discrimination that is forbidden by the
Constitution.

The Court found that the test, while it did fail to qualify more members of one race,
did not deny members of that race equal protection. The test was one used nationally by the
Civil Service, so it was not likely that it had been adopted by a police force trying to screen
out black applicants. The Court also noted the department’s effort at minority recruiting as
evidence that it was not intentionally discriminating. That more blacks failed to score well
on the test did not demonstrate that the black plaintifi‘s were being denied equal protection.
The Court also noted that, while the test was not correlated to job performance, it was
correlated to success in the training program. The test was found to be a valid one and to
serve a rational purpose of the government, the only level it must have been shown to meet,
since heightened scrutiny was not required in this case where intentional discrimination was
found lacking.

W might seem to insulate the use of identification tests from equal
protection challenges, but that may not be the case. In adopting the communication test as
a criterion for admission to the training program, the District of Columbia police might or

might not have realized that it would disproportionately eliminate black applicants. The use

108

of an IQ. test to identify gifted students would almost certainly be recognized as likely to fail
to identify a higher proportion of gifted learning disabled students as being gifted than to miss
nonhandicapped gifted students.

Even if that were not the case, the police department’s use of the test at issue did not
eliminate black applicants because they were black. The result was simply a difference in the
average communication abilities of the black and white applicants. That is not quite the same
for the gifted-handicapped. They are eliminated because they are handicapped, even if the
specific handicap would not have negatively affected their abilities to participate in the
program. That is, the test really serves as a measure of their handicap, whether that handicap
should disqualify them for a gifted program or not. The police use of a test did not measure
race but merely resulted in a difference in communication necessary for the program that was
correlated to race.

Lastly, there was at least a correlation between the police applicant performance on
the test and success in the training program. Where a disability masks a child’s giftedness,
that would seem to say by definition that there is a lack of correlation between the instrument
and the child’s ability to succeed. The black applicants who were eliminated were those who
could not adequately communicate. The gifted-handicapped child who is eliminated is not
necessarily the child who cannot perform in a gifted program but only one who cannot
perform on a particular instrument.

The W: Court said that a discriminatory purpose may be inferred
from the totality of the circumstances. Knowledge that even gifted students may be

eliminated by an identification procedure that will not allow a gift to shine through a handicap

109
and then using such an instrument as the sole means of identification for inclusion in a gifted
program might be a sufficient circumstantial factor to lead a court to include that the
discriminatory impact on the gifted-handicapped is intentional.

Courts, such as that in Me: (1971), have barred the use of IQ. tests as
the sole basis for identifying students for programs for the mentally retarded, because of their
disproportionate impact on blacks. Such use was, given that disproportionate impact, a
violation of equal protection. The IDEA also requires, to assure nondiscriminatory testing,
that no single test score can be the basis for placement. These decisions and policies protect
blacks from discrimination by placing them in classes for the mentally retarded, when they
might not be retarded.

A parallel argument that one instrument should not be allowed to eliminate
handicapped children from gifted programs for which they might be qualified would seem
reasonable. School districts would be well advised to employ a variety of instruments, when
a handicapped child is involved, and based on the particular handicap at issue, to select
instruments that are less likely to eliminate a child who could be successfirl in a gifted
program.

As part of the Vocational Rehabilitation Act Amendments of 1973, PL. 93-112:
Section 504, the Bill of Rights for the Handicapped states:

No otherwise qualified handicapped individual in the United States, as defined

in section 706(7) of this title, shall, solely by reason of his handicap be

excluded from the participation in, be denied the benefits of, or be subjected

to discrimination under any program or activity receiving Federal financial
assistance. . . .

110

Later, the Rehabilitation Act Amendments of 1992, PL. 102-569, substituted the word
“disabled” for “handicapped”. There might be some question whether a school system that
receives funds in some part of its program is subject to the Rehabilitation Act in all parts of
its programs. However, the law as now in the United States Code defines a “program or
activity” to include “all of the operations of . . . a local education agency [,] system of
vocational education, or other school system . . ..” (29 USC 794 (b))

Before getting into more issues related to the Rehabilitation Act, it is important to
examine the interaction of 504 and the IDEA, the issue being whether the existence of the
IDEA means that one cannot bring a suit under the Rehabilitation Act over a dispute
involving special education. In an earlier era, some courts had said that where there was an
identical claim under the Education for All Handicapped Children Act (EAHCA), the
predecessor to the IDEA, that could also fit under the Rehabilitation Act, one cannot proceed
under the Rehabilitation Act. They said that Congress had intended for the suit to go under
the other act instead. In fact, the Supreme Court in WM (1984), said that when
the EAHCA is available to protect the right of a handicapped child to a free appropriate
education, then neither Section 504 nor the Equal Protection Clause may be used in its place.
The Court believed Congress had intended the EAHCA to be the sole remedy for such
disputes.

There are two way around this result. Courts that have analyzed W
have found exceptions. For example, W (1986) limited the effect of Smithy,
Robinson to cases in which the EAHCA is available and where Section 504 does not grant

any rights beyond those available under EAHCA. Since, under Reader. the right to an

111

education that would challenge the gifted was found not to be available under IDEA, Smim
may not apply.

More importantly, in the 1986 amendments to IDEA (PL. 99-457), Congress added
to the law a provision that “Nothing in this chapter shall be construed to restrict or limit the
rights, procedures, and remedies under the Constitution, title V of the Rehabilitation Act of
1973, or other Federal statutes protecting the rights of children and youth with disabilities. . .
The House of Representatives Committee Report accompanying these amendments stated,
“since 1978 it has been Congress’ intent to permit parents or guardians to pursue the rights
of handicapped children through EHA, section 504, and section 1983 . . . Congressional
intent was ignored by the US. Supreme Court when . . . it handed down its decision in Smith
v. Robinson” (HR. Rep. No. 99-296, 1985).

While some courts such as that in W
(1998) have refused to read the amendments to allow a civil rights suit for the failure to
provide IDEA’s required free and appropriate education for handicapped children, the
reasoning of that case does not apply here. In that case, the IDEA was the only statute
violated and the court decided that it’s violation should be challenged under that statute rather
than another statute broadly guaranteeing civil rights. Section 504, since it provides its own
substantive rights, should not face the same concerns, and a section 504 suit should be
allowed, even when an IDEA suit might have been brought instead.

Another issue that is critical to understand is what conditions come under the label

“disability” for purposes of the statute. “Disability” seems to be very broadly interpreted.

112

There are section 504 cases holding that the statute’s protection includes the retarded, the
blind, the hearing impaired, those with spina bifida, those suffering fi'om severe allergies,
alcoholics, the learning disabled, the mentally ill and those who are HIV positive. The Code
Wong section implementing section 504 for education settings defines
“handicapped person” as “any person who (I)has a physical or mental impairment which
substantially limits one or more major life activities, (ii) has a record of such an impairment,
or (iii) is regarded as having such an impairment.” (Title 34, section 104.30) (1), 1998).
“Physical or mental impairment” is further defined as

(A) any physiological disorder or condition, cosmetic disfigurement, or

anatomical loss affecting one or more of the following body systems:

neurological; musculoskeletal; special sense organs; respiratory, including

speech organs; cardiovascular; reproductive, digestive, genito-urinary; hemic

and lymphatic; skin; endocrine; or (B) any mental or psychological disorder,

such as mental retardation, organic brain syndrome, emotional or mental

illness, and specific learning disabilities. (Title 34, section 104.3 (j) (2) (1))
Furthermore, “major life activities” is defined as “firnctions such as caring for one’s self,
performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and
working” (Title 34, section 104.3 (j) (2) (ii)). This would seem to be broad enough to
encompass almost everything that would be run into in most special education classrooms or
settings.

The two most diflicult issues for the application of section 504 are the questions of

whether a disabled individual is “otherwise qualified” and what actions constitute

discrimination. The Supreme Court has examined the “otherwise qualified” issue in a case

titled WW (1979). Davis was hearing impaired to the

113

degree that even with a hearing aid she could not understand speech except through
lipreading. She had applied to be admitted to a degree program to become a registered nurse.
The college rejected her because it believed she could not participate safely in the clinical
training program. She clearly had been rejected due to her disability, but the question here
was whether she was “otherwise qualified”. The Court of Appeals had held that under
Section 504 the college could not consider her impairment in it’s action on her application to
the program and if admitted the college would have to modify it’s program to accommodate
her disability. The Supreme Court reversed this decision.

The Court determined that this disability would impact on her performance. It noted
that in many situations all doctors and nurses must wear surgical masks. In such situations
would not be able to read lips. When she could not read lips, her inability to respond quickly
in an emergency would also cause dangerous situations in both her training program and in
practice. The Court said:

Section 504 by its terms does not compel educational institutions to disregard

the disabilities of handicapped individuals or to make substantial modifications

in their programs to allow disabled persons to participate. Instead, it requires

only that an “otherwise qualified handicapped individ ” not be excluded

from participation in a federally funded program “solely by reason of his

handicap,” indicating only that mere possession of a handicap is not a

permissible ground for assuming an inability to fimction in a particular

context. . . . An otherwise qualified person is one who is able to meet all of a

program’s requirements in spite of his handicap (p. 405-406).

Davis contended that, if her hearing impairment made her participation in the program unsafe,
the college would be required to change its program so she could fimction with her hearing
impairment. While Davis found support in federal regulations requiring educational programs

to make modifications to accommodate the handicapped and to provide aid such as sign

114

language interpreters, the Court said that the regulations could not be read to include the
curricular changes necessary for her to participate in the nursing program. The Court said it
would have been necessary to exempt her from all clinical courses and only have her take
academic courses, and that felt would not give her what was necessary to become a qualified
nurse.

It is important to note that the Court did not say that no accommodation need ever
be made. The Court said:

We do not suggest that the line between a lawful refusal to extend afirmative
action and illegal discrimination against handicapped persons always will be
clear. It is possible to envision situations where an insistence on continuing
past requirements and practices might arbitrarily deprive genuinely qualified
handicapped persons of the opportunity to participate in a covered program.
Technological advances can be expected to enhance opportunities to
rehabilitate the handicapped or otherwise to qualify them for some usefirl
employment. Such advances also may enable attainment of these goals
without imposing undue financial and administrative burdens upon a State.
Thus, situations may arise where a refusal to modify an existing program
might become unreasonable and discriminatory (p 412-413).

Courts have considered this issue since the Davis case. In W
W (1995), Murphy sufi‘ered from diplopia which affected her ability to read for long
periods and required rest periods. After having been given several chances to bring her grade
point average up to that required by the school, she was unable to do so and was dismissed.
The court looked at the “otherwise qualified” issue but clearly took into account an
accommodation requirement. The court said:

To be otherwise qualified for retention, Murphy must demonstrate that she

was capable of satisfying the academic and technical requirements set by the

Law Center with the help of reasonable accommodations. . . . Thus we look

to see whether the Law Center either provided reasonable accommodation for
Murphy’s diplopia or reached a rational conclusion that accommodating

115

Murphy would unduly interfere with its academic program (p. 3 )

The court found some adjustments had been made. Murphy was allowed to take reduced
credit load, and was provided extra time for her examinations. The court believed these
accommodations satisfied the Law Center’s obligation for reasonable accommodations. They
agreed with the lower court that Murphy had been dismissed due to her lack of analytic skills,
rather than because of her disability.

In another law school case, Wisconsin (1987) held that
Anderson had been dismissed from law school not because of his alcoholism but because he
could not maintain the minimally required grade point average. While alcoholism might have
contributed to that failure, the law school was not required to make an exception in regard
to its requirements.

0n the other hand, in WW9 (1981), the
court found a violation of Section 504 in the denial of admission to a psychiatric residency
program of a physician, who was suffering fiom multiple sclerosis and was confined to a
wheelchair. The court concluded that he had the ability to succeed in spite of his handicap
and that the admissions committee had focused on his handicap in denying him admission.
The committee had been concerned over the reactions of his patients to his handicap and the
committeealsoassumedthatDr. Pushkinsufferedfiomagreat deal ofangerasaresult ofhis
reaction to his condition.

Nathansonlmmegfioalfiollegooflignnsylnnia (1991) refused to conclude as a
matter of law that the request of an individual who had back and neck injuries that should be

given a closer parking spot and a straight-backed chair, that did not need to be specially

116

designed were unreasonable accomodations and would cause undue burdens. Where an
individual is otherwise qualifed the Supreme Court has held Section 504 requires “meaningful
access.” “To assure meaningful access, reasonable accomodations in the program or benefit
[receiving federal financial assistance] may have to be made” (W, 1985, p.
301).

The questions for education in regard to the impact of this input on gifted-
handicapped children must be considered. The impacts will not be clear and simple and must
be considered individually in each case. For example, if children who are blind and also gifted
request admission to an art program for talented children they might be “otherwise qualified,”
if the program is three dimensional in nature and not “otherwise qualified,” if the program is
a two-dimensional one. And while gifted and dyslexic children may well not be qualified for
a special program in literature, they may be qualified for a special program in mathematics.
Hearing impaired gifted children may not be qualified for a music class but be qualified for a
special program in art.

As noted earlier, this issue will require individual consideration of each case and the
program in question. There can be no across the board decisions about whether gifted-
handicapped children will be “otherwise qualified” for gifted programs. By the same token,
there can be no across the board decision that they will not be qualified for such programs.
The decisions must be based on indepth analysis of all the complexities of the particular
children in question as well as the possible gifted programs that are available.

11 'E' 12""

Turning to the issue of what constitutes discrimination, the intent of the federally

117

firnded agency appears to be important. The discriminatory actions prohibited are fairly clear.
The Code of Federal Regulations provides that a recipient of federal funds may not

(I) Deny a qualified handicapped person the opportunity to participate in or
benefit from the aid, benefit, or service;

(ii) Afi’ord a qualified handicapped person an opportunity to participate or
benefit from the aid, benefit, or service that is not equal to that afforded
others;

(iii) Provide a qualified handicapped person with an aid, benefit, or service

that is not as effective as that provided to others;

(vii) Otherwise limit a qualified handicapped person in the enjoyment,
privilege, advantage, or opportunity enjoyed by others receiving an aid,
benefit, or service (Title 34, section 104.4 (b) (1)).

While the regulations require equally effective services, they make it clear that
identical results or levels of achievement are not mandated. Instead, the recipient “must
afford handicapped persons equal opportunity to obtain the same result, to gain the same
benefit, or to reach the same level of achievement, in the most integrated setting appropriate
to the person’s needs” (Title 34, section 104.4 (b) (2)). In particular, recipients cannot or
may not “ utilize criteria or methods of administration (I) that have the efi’ect of subjecting
qualified handicapped persons to discrimination on the basis of handicap, [or] (ii) that have
the purpose or effect of defeating or substantially impairing accomplishment of the objectives
of the recipient’s program with respect to handicapped persons . . .” (Title 34, section 194.4
(10(4)).

There are cases that seem to indicate that discrimination must be intentional before

it violates Section 504. In W (1982) the court said that discrimination

118

under Section 504 requires more than an incorrect evaluation, or a faulty individualized
education plan. “[E] ither bad faith or gross misjudgrnent should be shown before a s 504
violation can be made out, at least in the context of education of handicapped children”
(p. l 171). This is not simply an old case. A 1998 decision in WW3
Qmofianassas reached the same conclusion.
Ontheotherhan¢theNatham9914heM9disal£9flesmffiennadMa(l99l) court

concluded that a plaintiff need not show an intent to discriminate to win a suit under Section
504. That court drew support from the Supreme Courts decision in We
(1985). The Supreme Court was seen as having held that Section 504 was aimed at
unintentional conduct, because the Court had said that “[d]iscrimination against the
handicapped was perceived by Congress to be most often the product, not of invidious
animus, but rather of thoughtlessness and indifference-of benign neglect” (p. 295).

The Eushkin court also refused to require proof of intentional discrimination. The
court said:

Discrimination on the basis of handicap usually results from more invidious

causative elements and often occurs under the guise of extending a helping

hand or a mistaken, restrictive belief as to the limitations of handicapped

persons. A claim under s 504 would be analyzed more readily under a‘

disparate impact” theory where it is claimed that a facially neutral practice has

a discriminatory impact on persons within a protected class (p. 1385).
As the court explained the procedure, the handicapped plaintifi‘ would have to show that he
was otherwise qualified and that his rejection was under circumstances fi'om which it could

be inferred that it was based solely on his handicap. The defendant would then have to

provide evidence that the plaintiff was not an otherwise qualified person or that the rejection

119

was based on something other than his handicap. The plaintiff would then have to show that
the defendant’s reasons were based on misconceptions or factual conclusions without
foundation and that any reasons offered other than the handicap in fact included consideration
of the handicap.

The difference in these cases would appear to be that those requiring intentional
discrimination were cases in which the recipient did not know of either the existence or the
nature of the plaintiffs handicap. In those cases the courts were unwilling to find liability
based simply on some negligence in diagnosis or selecting the best intervention. The court
in W5 (1983) appeared to draw this distinction. While the
court found no requirement of intentional discrimination, its conclusion appears to have been
limited to situations where a plaintiff had shown herself to be handicapped and had requested
services.

Perhaps the most important case to the issue discussed here is W
(1983). Stutts was dyslexic and could read at only the most basic level. He worked as a
laborer for the Tennessee Valley Authority (TVA). He applied to be admitted to a TVA
training program to become a heavy equipment operator. The TVA used the General
Aptitude Test Battery (GATB) to predict the likelihood of success in the program. Because
of his low score on the written part of this test, Stutts was denied admission to this training
program. He was evaluated by “doctors” using non-written tests and found to be above
average in intelligence, coordination, and aptitude for a heavy equipment operator. The TVA

was not able to obtain those non-written test results and could not get its own testing service

120

to give Stutts an oral GATB. The court said that the TVA had not met the requirements of
the Rehabilitation Act by accepting this rejection of the alternate testing they had sought.
“When an employer like TVA chooses a test that discriminates against handicapped persons
as it sole hiring criterion, and makes no meaningful accommodation for a handicapped
applicant, it violates the Rehabilitation Act of l973”(p. 669).

It would appear that the TVA, in Stuns, had not intentionally discriminated. It used
a neutral procedure of selecting participants for its training program based on the GATB.
However, that instrtunent had a disparate impact on learning disabled individuals. The good
faith of TVA is shown by the fact that it sought the results of alternate tests. That good faith
or lack of discriminatory intent was, however, not sufficient to avoid liability under Section
504.

It would follow that this finding for training should also carry over for admission to
programs. In fact, the CodooonderaLRegiuations requires that, with regard to preschool,
elementary, and secondary education in evaluation and placement

Tests are selected and administered so as best to ensure that, when a test is
administered to a student with impaired sensory, manual, or speaking skills,
the tests results accurately reflect the student’s aptitude or achievement level
or whatever other factor the test purports to measure, rather than reflecting
the student’s impaired sensory, manual, or spealdng skills (except where those
skills are the factors that the test purports to measure) (Title 34, Section
104.35 (a) (3) 1988).
The same provisions apply to post secondary education admissions tests with the additional
requirement that the post secondary institutions
May not make use of any test or criterion for admission that has a

disproportionate, adverse afi‘ect on handicapped persons or any class of
handicapped persons unless (I) the test or criterion, as used by the recipient,

121

has been validated as a predictor of success in the education program or

activity in question and that (ii) alternate tests or criteria that have a less

disproportionate, adverse affect are not shown by the Assistant Secretary to

be available. (Section 104.42 (b) (2) 1998).

While these findings do not apply directly to the gifted-handicapped child in elementary or
secondary education, they do apply Section 504 to the task of using of an appropriate
assessment, when admitting handicapped children to programs.

Clearly a school system cannot have a policy that excludes gifted-handicapped
children from gifted programs. But further, they also need to concern themselves that their
screening procedures do also have a disparate impact on handicapped children, who may
attempt to be admitted. A gifted-handicapped child who is otherwise qualified to participate
may bring a Section 504 suit. While all courts have been willing to grant orders that the
recipient change the practices that have a discriminatory impact, at least where the change is
not unduly burdensome, some courts have also been willing to award plaintiffs monetary
damages.

The Americans With Disabilities Act (ADA) addresses three major areas. The first,
not at issue here, addresses discrimination in employment. The other two parts address
discrimination by public entities and by public accommodations.

With regard to public entities, the law provides “no qualified individual with a
disability shall, by reason of such disability, be excluded fi'om participation in or be denied the

benefits of the services, programs, or activities of a public entity, or be subjected to

discrimination by any such entity” (ADA, section 202, 1990). “Public entity” is broadly

122

defined to include any state or local government or any department or instrumentality of any
such government. “Qualified” is also defined so as to exclude an individual who, even with
reasonable accommodations, could not meet essential eligibility requirements. As it turns out,
the most important definition, for purposes of this section, is the definition of “disability.”
The statute defines “disability” as “a physical or mental impairment that substantially limits
one or more of the major life activities . . (ADA, section 3, 1990) or having a record of or
being regarded as having such an impairment.

The statute also provides “No individual shall be discriminated against on the basis of
disability in the fiill and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation by any person who
owns, leases (or leases to), or operates a place of public accommodation” (ADA, section
302(a), 1990). This section addressing public accommodations contains several specific
prohibitions against discrimination. Included are

(I) the imposition or application of eligibility criteria that screen out
or tend to screen out an individual with a disability or any class of individuals
with disabilities fiom fully and equally enjoying any goods, services, facilities,
privileges, advantages, or accommodations, unless such criteria can be shown
to be necessary for the provision of the goods, services, facilities, privileges,
or accommodations being offered;

(ii) a failure to make reasonable modifications in policies, practices, or
procedures when such modifications are necessary to afl'ord such goods,
services, facilities, privileges, or accommodations to individuals with
disabilities, unless the entity can demonstrate that making such modifications
would fundamentally alter the nature of such goods, services, facilities,
privileges, or accommodations;

(iii) a failure to take such steps as may be necessary to ensure that no

individual with a disability is excluded, denied services, segregated or
otherwise treated difi‘erently than other individuals because of the absence of

123

auxiliary aids and services, unless the entity can demonstrate that taking such

steps would fundamentally alter the nature of the good, service, facility,

privilege, or accommodation being ofi‘ered or would result in an undue burden

. . . (ADA section 302 (b) (2) (A), 1990).

The statute is enforceable by court order, monetary awards to the disabled individual and
fines.

While the Rehabilitation Act covers persons with disabilities in regard to agencies
receiving public funding, the ADA is important because it impacts on persons with disabilities
with regard to even agencies who do not receive public funding. What is to count as a public
accommodation is not clear from the statute itself, but the WWW
specifically includes any “nursery, elementary, secondary, undergraduate, or postgraduate
school or other place of education (CFR section 36.104, 1998). The ADA, as a result,

applies to private as well as public schools but with one major exception. Excluded from

compliance with the ADA are “entities controlled by religious organizations” (ADA section

307), so religious schools are not subject to this statute.

 

The most difiicult issue with regard to the gifted-handicapped has been deciding
whether such individuals are disabled for purposes of this statute. The Codoofjegleml
Wm adds to the statute’s definition of disability:

Disability means . . . a physical or mental impairment that substantially limits
one or more of the major life activities . . .

(1) The phrase physical or mental impairment means--
(1) Any physiological disorder or condition, cosmetic disfigurement,

or anatomical loss afl‘ecting one or more of the following body
systems: neurological; musculoskeletal; special sense organs;

124

respiratory, including speech organs; cardiovascular; reproductive;
digestive; genitourinary; hemic and lymphatic; skin; and endocrine;

(ii) Any mental or psychological disorder such as mental retardation,
organic brain syndrome, emotional or mental illness, and specific
learning disabilities; . . .

(2) The phrase major life activities means functions such as caring for one’s

self; performing manual tasks, walking, seeing, hearing, speaking, breathing,

learning, and working. (CFR 36.104)

These definitions can raise a variety of issues, some of which are similar to issues
raised under the Rehabilitation Act. As with the Rehabilitation Act, the disabled individual
must be qualified to participate, with reasonable accommodation, in the program at issue.
The issue of whether a modification would constitute a fundamental change to the program
or service is also similar to issues raised under the Rehabilitation Act. The ADA also makes
it clear that where participation of the individual would constitute a direct threat to health or
safety, participation is not required, and that has led to factual disputes.

The issue that has received much more attention under the ADA is that of what
constitutes a disability. This may make sense, since under the Rehabilitation Act
discrimination on the basis of the disability is the basis for a violation. The ADA is not
violated only by discrimination but also requires more in the way of accommodation, and
requires it of entities that are not receiving the federal firnds that could be seen as balancing
the burdens of the Rehabilitation Act. Where someone has been discriminated against
because of a disability, the issue of whether or not the person is disabled may be less likely

to arise. Where someone is asking for a modification by a public accommodation, that public

accommodation may well be inclined to contest whether or not the individual has the sort of

125
disability included within the ADA’s provisions.
I . E'l'l” ll 5 . 'lll'l'l" !

The existence or not of a disability that fits within the ADA has, for purposes of
learning disabled or otherwise exceptional children, turned on the issue of whether or not their
conditions substantially limit a major life activity. That issue arose in the case of W
W09”). Three Marshall University School of Medicine
students sought to have extra time to take the United States Licensing Examination and also
requested that the exam be given in a separate room. The plaintiffs claimed these
accommodations should be granted as a result of mandates in the ADA. The students all
claimed to have learning disabilities. Two of the students had been diagnosed with Attention
Deficit Hyperactivity Disorder (ADI-ID) and two of them also claimed to have reading and
written expression disorders. They claimed that these disabilities substantially limited them
in one or more major life firnctions.

The district judge did not agree with the students’ claim. He felt that the three
individuals disabilities did not substantially limit a major life activity. He noted that all three
individuals had performed and learned well in comparison to the average person in the general
population. In fact, it was noted that some of the individual had been in gifted programs in
school, or had been a National Honors Student, had high G.P.A.s, and/or had graduated with
degrees, all without any accommodation for the alleged disability. All these accomplishments
were seen by the Judge as showing that they learned better than the average person in the
population.

The facts of this case may make it different from a case involving elementary or high

126
school students who are gifted-handicapped. Nonetheless, while there are differences, the
judge in this case did use an example to explain the courts reasoning, and the example is
troubling. The court said:

Take, for example, two hypothetical students. Student A has average

intellectual capability and an impairment (dyslexia) that limits his ability to

learn so that he can only learn as well as ten percent of the population. His

ability to learn is substantially impaired because it is limited in comparison to

most people. Therefore, Student A has a disability for purposes of the ADA.

By contrast, Student B has superior intellectual capability, but her impairment

(dyslexia) limits her ability so that she can learn as well as the average person.

Her dyslexia qualifies as an impairment. However, Student B’s impairment

does not substantially limit the major life firnction of learning, because it does

not restrict her ability to learn as compared to most people. Therefore,

Student B is not a person with a disability for purposes of the ADA (p. 427).

The opinion also expressly criticized the views of experts in the case, who had argued
that “a person who is not performing up to his or her abilities has a disability within the
meaning of the ADA” (p. 427 n. 5). It is clear that, in the view of this court, a gifted-learning
disabled student performing at an average level has no right to demand accommodation under
the ADA.

Fortunately, not all courts have taken this position. The issue considered in Pogo was
also at issue in W (1998), and the court
there reached a different conclusion. In this case a law school graduate, Dr. Marilyn Bartlett,
had a leaming disorder in reading and requested reasonable accommodations in sitting for the
New York State Bar Examination. The Board had determined that Dr. Bartlett was not

disabled under the ADA requirement, as she had already accomplished more than most

people.

The lower court rejected the Board’s conclusion and went into great detail to find a

127

difi‘erence between this case and Efioe. The court noted that the test in Brio: occurred part
way through the students’ medical education and that court had considered whether or not
there was a substantial impairment with the ability to learn. The bar exam, on the other hand,
occurred after graduation from law school and was required before one could work as a
lawyer. The lower court then saw the ADA issue of disability as addressing whether Dr.
Bartlett was substantially impaired in the ability to work, rather than in the ability to learn as
the Brigg court had considered. The court concluded that she was impaired in her ability to
work, since she could not be admitted to the bar.

The United States Court of Appeals for the Second Circuit was willing directly to
contradict the Brio: court’s opinion. The court noted that the statute requires that the
existence of a disability is to be assessed without considering mitigating measures such as
accommodations or aids. The court said:

In this case, Dr. Bartlett sufi‘ers from a lack of automaticity and a

phonological processing defect that significantly restricts her ability to identify

timely and decode the written word, that is to read as compared to the manner

and conditions under which the average person in the general population can

read or learn. Her history of self-accommodations, while allowing her to

achieve roughly average reading skills (on some measures) when compared

to the general population, “do not take [her] outside of the protective

provisions of the ADA . . .” (p. 329).

The court was unwilling to let the fact that Dr. Bartlett had been able to overcome a disability
to negate the fact that she had a disability.

There is then a split among courts as to whether a learning disabled student who,

because of giftedness, has been able to achieve at an average level merits the protection of the

ADA The New York court has the better argument here. For in the argument of the West

128

Virginia court any blind or deaf student who is gifted and had a reading problem would
qualify under ADA because of the sensory deficit. However, any students who are learning
disabled and gifted as well as having a reading problem would not qualify under ADA as they
will likely do as well as most people in the population.

Rephrasing the hypothetical in Brio: shows the oddness of the conclusion there.
Rather than hypothesizing two learning disabled students, consider four intellectually gifted
students, one blind, one deaf, one with motor difficulties, and one dyslexic. All have been
able to perform at at least an average level, and all ask for some form of accommodation
under the ADA. The Brio: court’s approach would allow all but the dyslexic individual a
cause of action under the statute. The blind student’s ability to see is substantially impaired.
The deaf student’s ability to hear is similarly impaired. The student with a motor difficulty
has a substantial impairment in the ability to walk. Only the dyslexic lacks a substantial
limitation, despite the fact that all are gifted and that each has a handicap that has made it
difficult to reach the potential that gift would otherwise allow.

The Brio: court’s analysis leads to another odd outcome. Under its approach, any
learning disabled student who is in college would not qualify for ADA protection. Any such
student has done better than the average person in the population. Just being admitted to
college would seem to indicate that the student learns as well as, or better than, most people
in the population. Ifthe only claim of handicap was a learning disability, such students would
not be considered substantially impaired in their abilities to learn. and would have no basis to
claim accommodation under the ADA. Yet, such students are routinely granted extra time

on tests, readers or various other accommodations. This widespread practice indicates that

129
the Eriee court’s position is questionable.

There is also another difficulty with the Eriee court’s view. It places too great a value
on how an ADA complaint is phrased. The learning disabled student is viewed as not
substantially impaired, only if the impairment is said to afl‘ect the life activity of learning.
Dyslexia can be seen, however, as a problem of visual perception. It might be argued that the
student’s ability to see has been affected. Since this visual problem has a great effect on
visual perception, it could be seen as substantial.

Lastly, the list of major life activities that must be substantially limited reads as
follows: “functions such as caring for one’s self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working” (CFR 36. 104(2)). The use of “such as”
plainly indicates that the list is not exhaustive. While missing items from the list may have to
be similar to those in the list, reading does not seem too far off. An impairment that
substantially limits the ability to read would appear to be a disability. While the dyslexic
individual, who performs at an average or above average level, may, in the Prise court’s view,
mot be substantially limited in the ability to learn, that person is substantially limited in the
ability to read. The fact that such a person is performing, overall, at an average to above
average level no more negates the existence of a disability than would the fact that a blind
child performs at the same level.

A similar argument might be made for a student with attention deficit disorder, with
or without hyperactivity, who also has managed to compensate in some way and has achieved

at an average or above average level. Symptorrrs of hyperactivity, according to the DSM—IV,

130

include difficulties in concentrating, listening, sustaining activity, organizing, and remembering
( 1994, p. 83-84). The student has an impairment that substantially limits several of his or her
abilities to do such things as concentrate, listen, sustain activity, organize, and remember.
Concentrating, listening, sustaining activity, organizing, and remembering may not be as
similar to the activities listed in the regulations implementing the ADA, seeing, hearing,
walking, learning, etc, as reading is, but they could still be argued to be major life activities.
If that claim is accepted, even a court following the Edge court’s approach would have to
agree that the ADD student has a disability for purposes of the ADA. A court following the
approach of the court in Bartlett would also find a disability, since it would not allow the self-
accomrnodation of the student to negate the existence of a disability in the major life activity
of learning.

Clearly the ADA applies to students who are blind, hearing impaired, mentally
retarded, or sufl‘ering from multiple sclerosis and ought to apply to students with learning
disabilities, even though any of those students may be performing at an above average level.
Gifted-handicapped students attending any non-religious school should, therefore, be eligible
for the same sorts of protections that the Rehabilitation Act provides to students attending
schools receiving federal funds.

E . . . l E l E . .

In actuality, we might not want to give up too quickly on the Reflex decision’s effect
on PL 94-142. They are at least some parts of the Rowley decision which may be helpfiil in
gifted-handicapped students’ efforts to gain services. While PL. 94-142 might help in

demanding the identification of the gifted-handicapped, it is less clear that it would require

131

the provision of additional special education services once the child is identified.

The Supreme Court’s interpretation of PL. 94-142 make clear its view that the act
was intended to insure access more than outcomes. As the Court said, “the intent of the Act
was more to open the door of public education to handicapped children on appropriate terms
than to guarantee any particular level of education once inside” (p. 192). The Court also said
“neither the Act nor its history persuasively demonstrates that Congress thought that equal
protection required anything more than equal access” (p. 200). Justice Blackmun’s
concurrence had the same tone:

Rather, the question is whether Amy’s program, viewed as whole, ofi‘ered her

an opportunity to understand and participate in the classroom that was

substantially equal to that given her nonhandicapped classmates. This is a

standard predicated on equal educational opportunity and equal access to the

educational process, rather than upon Amy’s achievement of any particular

educational outcome (p.21 1).

It seems reasonable to assume that the Court would not require that a gifted program
be provided to handicapped students since it is not required to be provided to the
nonhandicapped students. As a result, Amy could not be expected to be educated to her
maximum potential, when other children in the school system had no right to be educated to
their own maximum potential. It is not likely that every school system educates every student
to the maximum of their potential. The 801119): Court quoted Mills as providing a realistic
standard as to the services to be provided each child when finances preclude meeting the
needs of every child.

Ifsufiicient firnds are not available to finance all of the services and programs

that are needed and desirable in the system then the available funds must be

expended equitably in such a manner that no child is entirely excluded fi'om
a publicly supported education consistent with his needs and ability to benefit

132

therefrom. The inadequacies of the District of Columbia Public School

System whether occasioned by insufficient firnding or administrative

inefficiency, certainly cannot be permitted to bear more heavily on the

“exceptional” or handicapped child than on the normal child (p. 193 n. 15).

While Rowley does not guarantee optimal outcomes, it does seem to recognize a
requirement of equal access. The Court specifically said, “We do not hold today that every
handicapped child who is advancing from grade to grade in a regular public schools system
is automatically receiving a ‘free appropriate public education’” (p. 203, n.25). Perhaps,
then, Roodey should not be read to conclude that the exclusion of a gifted handicapped child
making normal progress from a gifted program, while the child’s nonhandicapped classmates
have access to that gifted program, is not a violation of PL. 94-142. Furthermore, since
Roodey concluded that “Congress sought primarily to identify and evaluate handicapped
children, and to provide them with access to a free public education” (p. 200), failure to use
instruments adequate to discover giftedness in a handicapped child could be seen as a
violation.

In addition to rereading Rowley, there are state cases that may lead to the conclusion
that PL. 94-142 requires not only adequate identification procedures but special education
services necessary to allow the gifted-handicapped child to succeed in a gifted class. In
Michigan, as seen in W (1987), an appropriate
education was held to require the provision of special education programs and services that
are designed to develop the maximum potential of each student. In this case, a deaf girl was

placed by her parents in a special program at the Model Secondary School for the Deaf in

Washington, DC. While that school did not charge tuition or room and board, the parents

133

sought reimbursement for travel expenses to and from Washington necessitated by seasonal
closings of the school. They claimed that the school district had not provided their daughter
with a free and appropriate education, because the plan offered would not have “maximize[d]
her potential.”

The claim of the Barwaczs might have seemed precluded by Rowley, but Michigan
statutes required a program that would maximize the potential of any handicapped student.
The court held that the requirements of state statutes setting out what was an appropriate
education were incorporated in the requirements laid down by PL. 94-142. Thus, in the state
of Michigan, a school district is required by federal law to provide more educational
opportunity than may be available in other states. Other courts have agreed, with the United
States Court of Appeals for the First Circuit, in W
(1985), noting

Congress explicitly defined a free and appropriate public education as an

education which “meets the standards of the State educational agency . . . .”

Where a state has chosen to provide by law greater benefits to handicapped

children than the federal Act requires, we believe Congress explicitly

mandated that the courts - both federal and state - determine whether those

state standards have been met (p. 420).

The Michigan Department of Education tried to argue that, because the Michigan
provision at issue was enacted prior to the Rowley decision, the Rowley decision should
govern its interpretation. The federal district court decided that the maximization standard
should still apply. They did say that the higher standard does not mean that the state had to

seek the best possible school in the nation, but it did have to indicate a willingness to contract

with schools or agencies in neighboring states. It may not be clear, from the Bamaez

134

decision, exactly what constitutes the maximization of potential, but a school system does
appear to be required to go to some lengths to provide, if not the best of all possible
educations, at least as good an education as is practically available.

From the Bamaez decision it might seem that, if Amy had lived in Michigan, her
parents would have had a strong legal precedent for requesting her program help her to
maximize her potential. This may or may not be the case. While the language of the decision
would support that conclusion, the child in Baggage was not said to be gifted. The
maximization of her potential might still have been below a grade a year performance, while
the maximization of Amy’s potential would have exceeded a grade a year progress. A
decision requiring maximization of potential at below grade level does not necessarily carry
over to requiring that a gifted-handicapped child be helped to meet the maximization of his
or her greater potential.

While the result is unclear, schools should examine parents’ request for identification
of giftedness in handicapped children and inclusion of children so identified in gifted
programs. Failing to do so, the district could potentially have to reimburse the parents for
appropriate education found elsewhere. The school has to do its best to provide an
appropriate program, and if maximization of potential is required for the handicapped
population generally, perhaps that same right for maximization of potential should apply to
the gifted-handicapped at least to the point where it is equal to the opportunity enjoyed by the
nonhandicapped gifted child.

Summanaandfionslusim

While the Rowley decision ruled out claims by handicapped students, under PL. 94-

135

142, to an education that maximized their potential to learn at an above average pace, there
are various legal avenues still available to the gifted-handicapped. Where a school system
provides a gifted education program to its nonhandicapped students, the gifted-handicapped
must be allowed access.

The Equal Protection Clause, Section 504 of the Rehabilitation Act and the Americans
with Disabilities Act all prohibit a policy of excluding the gifted-handicapped. At least the
latter two provisions also require that the methods used to identify gifted students not be such
that handicapped children are not able to demonstrate their gifts. The statutes also require
certain accommodations for handicapped children, once they are identified for and admit to
a gifted program. The identification and accommodation issues will be addressed in the

following chapter.

VI
IMPLICATIONS OF THE ARGUMENTS FOR INCLUSION OF
GIFTED-HANDICAPPED CHILDREN IN GIFTED PROGRAMS

Section 504 of the Rehabilitation Act and the Americans with Disabilities Act both bar
discrimination against gifted-handicapped students with regard to their participation in gifted
education programs. These proscriptions have at least two dimensions. First, they ban
discrimination in admission to gifted programs. This discrimination banned may be direct
refusal to admit handicapped children, despite their recognized gifts, or it may be the failure
to use identification measures that are capable of identifying the gifted within the
handicapped population. The second aspect of these statutes is a requirement of
accommodation, once the gifted-handicapped student is admitted to the gifted program. The
student must be afforded the opportunity to succeed, by accommodating the needs of the
student, as long as the accommodations do not change the firndamental nature of the
program.

This chapter will consider the shortcomings of the usual measures employed to
identify potential participants in gifted education programs. Suggestions will also be made
as to how to alter these techniques so as not to screen out qualified handicapped children.
The characteristics of successful handicapped individuals that have allowed them to succeed
will then be examined. Methods of determining the existence of these characteristics to

identify handicapped students, who may be successful in a gifted program, will then be

136

137

presented. Ecological assessment will be presented as an additional method for identifying
gifted-handicapped students. Lastly, the accommodations gifted-handicapped students may
need, and are entitled to, to succeed in a gifted program will be discussed.
IhehadenuasiemflStandathethodqussessment

At present, gifted-handicapped children are often overlooked when schools select
children to participate in programs for the gifted. Group administered achievement or
intelligence tests results will be afl‘ected by a variety of handicaps and abilities. And gifted-
handicapped children are not the only ones who are overlooked by standardized tests. In a
1990 study it was found that up to seventy percent of the regular school age gifted population
are -passed when group testing is used for identification (Humphrey, 1990). The problem
of being overlooked is even more obvious and glaring when it comes to the gifted-
handicapped.

While there could be an intentional omission of the gifted-handicapped from gifted
programs, it is probably a more likely, and certainly more charitable, explanation that the
omission is due to the inadequacies of the present methods of identification. The most
commonly used methods for identification for gifted programs are IQ. tests, achievement
tests, and/or teacher identification. Although standardized tests are hailed by many as being
vehicles for children to gain access to special programs (Sattler, 1992), this observation
certainly does not hold true for gifted-handicapped children. These measures all have flaws
when it comes to identifying gifted-handicapped children, just as they do for identifying
children from other diverse groups.

The disabilities of gifted-handicapped children may obscure and/or suppress their

138

giftedness (Johnson, Kames, & Carr, 1997). A selection process based on the administration
of a single test or even a combination of instruments, if they are not the right instruments for
the purpose, will most likely miss the gifts the gifted-handicapped child possesses. Therefore,
the identification of giftedness in the handicapped must be a more thorough and ongoing
process.
I ll‘ 1 l I . I

Simply giving an IQ. test and/or an achievement test for assignment to special
education programs, as was once done, is no longer sufficient for exceptional children. In
a New York case, Women (1978), a state court, in one of the first
examinations of the use of assessment with exceptional children, concluded that instruments
used in such assessment must be appropriate to the given child’s exceptionalities. Children
having speech or language problems must be assessed with tests such as performance tests,
which will be more appropriate than verbal tests for them. Furthermore, the court also
determined that children must be assessed with more than one assessment approach and that
all available information must be reviewed before placement decisions are made. While these
detemrinations were made in the context of an exceptional child who was not gifted, the
arguments of the preceding chapter indicate that gifted-handicapped children must also be
identified using methods that are capable of seeing through their handicaps and assessing their
gifts. Just as the single measure may over identify the handicapped as retarded, a single
instrument will under identify the handicapped as gifted.

There are other measures that might be far more efi‘ective at identifying giftedness in

diverse populations, including handicapped children, and those methods must be utilized.

139

According to Ford (1996), there is no intelligence or achievement test that can identify gifted
black students, and to optimize identification, there must be comprehensive, dynamic and
culturally sensitive assessment. The comprehensive assessment must generate a profile which
indicates the level and mode of firnctioning within the context of the student’s background
and experiences. The most promising of these assessment approaches are multidimensional
and multirnodal (Ford, 1996). This assessment can insure that the identification process is
inclusive rather than exclusive.

Instruments that measure characteristics that have been identified as correlated to
success among the handicapped population would be important indicators. An ecological
approach, which considers many more factors than just standardized tests, would also likely
be a more efi‘ective method for identifying this population of gifted children. For according
to the ecological point of view, cognition is a life process; it is not a mechanism. It is a
dynamic process and not a static hierarchical system as seen by an IQ. test. Cognition is not
knowledge of the world; it is the person’s ability to deal with and keep in touch with
surrounding environments (Reed, 1996).

Instead, gifted children are usually identified through the use of IQ. and achievement
tests as well as through teacher selection. Many times, an IQ. score is the primary tool used
to gain entrance to a gifted program, and this selection method proves to be problematic for
gifted-handicapped children. Another commonly used criterion for the identification of the
gifted is the use of standardized achievement tests, but these tests too may not be appropriate
for the gifted-handicapped student (Schwartz, 1994). Suggested alternative methods of

identification will be presented later. First, however, the problems inherent in the use of the

140

commonly used methods of identification will be elaborated on to help understand the need
for the implementation of the alternative means for identification of such children to be
proposed.

An important factor in the failure adequately to identify children who are gifted is that
guidelines for the assessment for the gifted are still not common at a the state level. Although
forty-two states have curriculum guides for the education of the gifted, only six have state-
level guidelines for the identification of the gifted. It was noted that this is interesting because
all fifty states do have guidelines for the identification of students with disabilities (Gearheart,
Mullen, & Gearheart, 1993). So it becomes obvious that not just children who are both gifted
and handicapped are being slighted when it comes to assessment, but the whole population
of gifted children is being slighted, as well.

McLoughlin & Lewis (1994) noted that assessment has the potential danger of being
biased in the selection, administration, and interpretation phases. Bias may occur at any point
in the entire assessment process, fi'om who is referred and how they are screened, to the
selection of assessment tools and how data are collected, to how the examiner and student
interact, on into program planning (p. 62).

Claims of bias in tests and testing have often been made by ethnic and cultural
minorities. It is claimed that standardized tests are designed by and appropriate for an
average white, middle-class population. It is argued that, despite a correlation between
complete test results and success, many test items are unfair to cultural and ethnic minorities,
who have had experiences that difi‘er from the white, middle-class background assumed by

the test designers (Sattler,1992). Some of these same concerns may be expressed for the

141
gifted-handicapped population as well. Just as cultural isolation may have deprived a minority
student of the experiences or knowledge relevant to a particular test item, the effects of a
handicap may have put the gifted-handicapped child at a similar disadvantage.

It was noted that many factors will limit the performance of some students on
standardized tests of intelligence and achievement. These factors that may limit the
performance may be environmental, psychological, may be due to different cognitive styles
or due to problems with the tests themselves (Ford, 1996). For some students, scores on the
Stanford-Binet IQ. test increase between ages two and seventeen, yet for some economically
deprived students the scores tend to decrease. Due to fewer environmental opportunities,
these students do not show the benefits often reaped by students who are not deprived. And
due to many disadvantages, children who may be hungry or tired due to poorer home
environments, may not have the same motivation to attend and do well on testing. And, black
students were found to be more field dependent, social, relational, and global in their thinking
and less logical, analytical or field independent in their thinking. Most tests favor field
independent thinking (Ford, 1996). Therefore, due to these factors and the problems with the
test instruments themselves, this group of students will not do as well. These factors will
need to be part of the total assessment process for all children who might be gifted and also
have some disadvantage.

Test bias is the presence of “systematic errors of measurement as opposed to chance
or random, patterrrless errors” (Reynolds & Brown, 1984). The bias referred to, in regard
to a group or members of a group, would find the average score systematically over or under

estimates the true scores for members of that group and for the group overall. So on an IQ.

142

test, for example, certain populations may score below their ability level on the test due to test
bias. The bias may occur due to inappropriate content, inappropriate standardization samples,
examiner or language bias, a belief that they are unable to learn, measurement of different
constructs than those familiar to the group or groups in question, difi‘erent predictive validity
than found in the minority or different culture of the group in question (Utley, Haywood, &
Masters, 1990).

A further complication is that handicaps may make giving the intelligence tests, often
used to identify children for gifted programs, impossible. For example, if a child is deaf or
blind or physically disabled, many of the items on these tests will not be able to be completed.
Ifa child is to examine a picture and determine what is missing, a visually impaired child will
be at a loss to complete such a task. Ifthe item requires comprehending what to do in an
orally stated situation, the hearing impaired child cannot perform the required task. If the task
requires responding in writing to a maze, the child with a spacial visualization problem or a
physical disability will have great difiiculty. It should be obvious that many handicapped
children simply cannot complete a variety of the many subtests often found to be part of IQ.
tests.

The WISC-III, the IQ. test most often given by school psychologists, has subtests
similar to the ones just described. It consists of subtests that measure identification of a
missing part of a picture, recognition of vocabulary words, and the completion of mazes. The
WISC-III manual (1991) details how the testing may be adapted for handicapped children.
Such adaptations include recognizing that, when testing children having physical impairments,

“it is important not to attribute low performance on a cognitive test to low intellectual ability

143

when in fact it may be attributable to motor and sensory disabilities” (WISC-III manual, 1991,
p.37). The authors further state that, depending on the test used and the nature of the
disability, children may be at a disadvantage, if the test is administered in the standard manner.
Physically impaired children may have difiiculty with the Performance subtests, which require
manipulation of test materials, while hearing impaired children may be disadvantaged on the
Verbal subtests.

The authors of the manual do not offer prescriptions for testing handicapped children,
but they do ofi‘er suggestions for assessing handicapped children. As examples, they suggest
that perhaps just the Verbal subtests of the WISC-III might be given to a physically impaired
child, who would be disadvantaged by the Performance subtests, and these scores could be
used as estimates of the child’s cognitive ability (p. 38). They suggest the opposite approach
be used with hearing impaired children, use of the Performance subtests to gain an estimate
of the child’s cognitive ability.

Other suggestions for standardized test administration when given to handicapped
children may include specified adaptations to the tests. As mentioned, when the WISC-III
is given to children who are deaf, the performance scale is often used alone to measure
intelligence, and the verbal scale is often used for children who are blind. Some research
shows even more specified input can be looked at, as far as intellectual skills. For example,
children who have been blind since birth tend to have high means on Digit Span and
Information subtests on the WISC-III, while they have low means on Comprehension and

Similarities (Tillman, 1973) . Further, those children blind from birth who score below 140

144

show deficits in figural items and also in relational items, while those with above 140 I.Q.s
do not show deficits in figural and relational items and instead show patterns similar to other
gifted students (Meeker, 1969). It would appear that interpretations of results for a child
who is handicapped should be done with a thorough knowledge of what is known about test
results and any handicap.

It is also important, however, to note that the test was not standardized with the
modifications suggested, and the manual states that clinical judgement would be called for in
interpreting any of these results. The modifications may invalidate the norms but may provide
valuable qualitative as well as quantitative information on children with handicaps and their
strengths and weaknesses. Other tests are noted to have been designed for use with such
children, and it is suggested that they be used to supplement the WISC-III. Multiple sources
of input are also suggested as always being called for, and these sources should include life
history information on the children.

Generally, most intelligence tests may also fail to recognize gifted-handicapped
children because they are normed on average children and do not necessarily reflect the
abilities of the gifted-handicapped population. For example, the WISC-III is normed on a
population consisting of 2,200 children aged six through sixteen 16 years, with 200 children
from each age group, one hundred male and one hundred female. The sample was drawn
from all geographic areas, from difi‘erent races and ethnicities, and also fi'om a variety of
difi‘erent levels of education among the parents of the nonrring group. Seven percent of the
sample were children who were handicapped and five percent of the sample consisted of

students in gifted and talented programs. All of the children in the sample spoke English.

145

There was, however, no standardization information on children who were gifted and also
handicapped.

Information is provided in the validity section of the manual on studies done on
different samples of exceptional children. These samples include the gifted, the mentally
impaired, the learning disabled, and those with attention-deficit hyperactivity disorder, severe
conduct disorders, epilepsy, speech/language disorders, and hearing impairments. Once again
there was no input on the validity of the test with gifted-handicapped children.

The problems noted make the use of IQ. tests for identification of gifted-handicapped
children problematic. Achievement tests also present some of the same problems for gifted-
handicapped children in that they are also normed on a more “normal” population of students.
They do not account for how this doubly exceptional group of students might be expected
to achieve on such tests. Furthermore, achievement tests are usually paper and pencil tests
which many physically impaired and visually impaired, as well as learning disabled children
with reading problems, will not be able to execute. Due to their handicaps, gifted-
handicapped children also may not have been exposed to the usual material used in specific
grade levels.

I l 11 . .

There are no perfect tests for identifying the abilities of gifted-handicapped children.
The other means usually used to identify giftedness is teacher nomination. Even the use of
teacher identification, which is used a great deal for the identification of gifted students, has
problems related to it, in regard to the gifted-handicapped. The teachers often identify as

gifted the students who are most like themselves. Teachers also tend to like and, as a result,

146

to identify for enrichment programs students who are pleasant and easy to manage in the
classroom, when in fact, the stubborn or egotistical student may be the most gifted (Davis &
Rimm, 1989). Conforming students were also more likely to be selected as gifted than the
highly active and energetic ones (Eisenberg & Epstein, 1981). Some teachers would find it
difficult to relate to gifted-handicapped children and would, therefore, often not select them
for gifted programs. Gifted-handicapped children also would be more likely to place a greater
demand on teachers to meet their classroom needs, and teachers might view them as
classroom problems. Even with the limitations inherent in nominations, it does appear that
they should be part of the assessment process for gifted-handicapped children, if proper care
is taken in their use.

Limited research does indicate that nominations, by teachers and parents, if done
correctly, can identify some children who might be missed by testing (Shore, Cornell,
Robinson, & Ward, 1991). The identification process needs to give attention to identifying
“abilities that are hidden by underachievement, lack of motivation, and cultural handicaps”
(Gold, 1965, p 138). That identification process must supplement the usual testing with a
broader look and with the “sympathetic eyes of teachers who are alert to the faintest glimmer
of potential” (Gold, 1965, p. 138). Teachers do appear to be better identifiers of
underachieving high ability children (Borland, 1978).

What teachers have not been provided with training, nominations of gifted children
has been noted not to be very reliable or valid (Davis & Rimm, 1989). But teachers can be
trained to look for identifiers of gifted-handicapped children which may not at first be obvious

to others. Teachers and parents see these children for many hours and in many situations and

147

are more likely to take note of these hidden attributes of giftedness. For example, in addition
to the usual characteristics and behaviors that can be found in giftedness in general, there can
be behaviors that are masked by handicaps and also behaviors that appear to be specific to the
gifted-handicapped.

The overriding cognitive trait of giftedness is often advanced language and thinking
skills. In some children having handicaps, such as hearing impairments or language
disabilities, this may not be seen. Early reading, often found in gifted children, will not be
noted in children with learning disabilities related to reading or in children with visual
impairments. Quickness and logical thinking skills, are part of another trait found in gifted
children, may not be apparent in children with some kinds of learning disabilities. Yet
another trait of giftedness can be early writing, math, music or art skills, and in some gifted
children having handicaps in motor skills or learning disabilities influencing math, these traits
will not always be apparent. Motivation and persistence are noted to be common traits of
many gifted children, and this is often especially lacking in cultural minorities and gifted-
handicapped children (Ford, 1996).

In addition, the more afi‘ective traits often seen in gifted children may be lacking in
gifted-handicapped children. Gifted children were noted to suffer less depression, to have
better self-concepts, more self-confidence and more independence than average children.
Gifted-handicapped children are likely to feel rejected and to be fi'ustrated and bored. As a
result, many gifted-handicapped children may be extremely disruptive (Eisenberg & Epstein,
1981). Teachers need to be aware that such children will display traits that may not be seen

as positive.

148

Eisenberg and Epstein (1981) found the Renzulli-Hartman rating scales (Renzulli, et
al., 1976) to be an especially good way to help teachers learn what to look for in children that
might signal that the child is gifted-handicapped. In their study they had found that when
teachers were asked to identify gifted-handicapped children from the 60,000 handicapped
children in the New York City Schools, not one student was nominated. But after being given
the Renzulli-Hartman rating scales on Learning, Motivation, Creativity, Leadership, Art,
Music, Drama, and Communications Skills, nominations started to pour in for gifted-
handicapped children.

It was found that some especially good indicators of giftedness could be found fiom
use of the from the Renzulli-Hartman rating scales. These indicators included: having a large
storehouse of information about a variety of topics, unusual for the child’s age, trying to
discover why things are as they are, being a keen and alert observer, becoming especially
involved in certain topics, and preferring to work independently.

It was also found that peer nominations were effective in identifying giftedness, as
peers knew who were the bright and fast-leaming among themselves. Self-nomination was
also effective. An example was noted of a student who nominated himself and then had
himself examined and taken out of special education (Davis & Rimm, 1989).

D l I l . l I l W .

Returning to standardized testing, bias in testing children from diverse populations
might be dealt with in different ways. Suggested Options range fi'om establishing separate
norms to a complete moratorium on the use of standardized testing. Separate norms for the

population might be one alternative (McLouglin & Lewis, 1994). This approach might serve

149

to free diverse groups from norms based on the majority population, but it would also serve
to separate the group from the majority and might not be a beneficial route to take (Alley &
Foster, 1978).

Other options include the use of modifications in the administration of the
standardized tests. This method is used for children with learning disabilities who take
standardized achievement tests. However, whenever standardized administration is altered
the standardization is rendered useless and the process become essentially an informal test
(McLouglin & Lewis, 1994).

Some suggest that it might be helpful to give the test twice, once under standardized
conditions and then to repeat the test with the modified administration. Another possible aid
would be to teach the children with exceptional and diverse backgrounds how to take tests,
as they may also be more unfamiliar with test taking than average children. Still others
suggest that perhaps standardized tests might be replaced by informal tests, but this may not
take care of the bias concern, as informal tests may also sufi‘er from bias (McLouglin &
Lewis, 1994).

The most controversial idea is that there be a moratorium on the use of standardized
tests. This did occur in past decades in the identification of students for special education,
as seen in the ban on the use of IQ. tests with Afiican-American children for any special
education purpose whatsoever as a result of the MM (1971) case in California.
This ban was lifted at a later date for all students other than those suspected of being mentally
retarded.

The bias often found in assessment of minority children extends to any children who

150

are socially difi‘erent and includes handicapped children (Utley, Haywood, & Masters, 1990).
It was noted that the instruments themselves may be valid for assessment of all students, but
biased as to how they are utilized in the decisions and actions that are made with the test
results. The tests may predict aspects of performance and achievement, but they will not
predict how that child might best be taught. For that purpose, an instrument which measures
how a child learns is required.

Assessment requires making an evaluation that has the end product of intervention
that can facilitate students’ development. Assessment must be prescriptive and provide
information about what the students need to learn and help guide and improve instruction.
Because of the multiple and diverse measures, the assessment can also provide information
about accountability, guide policy decisions and provide information usefirl in program
evaluation when diverse and unique populations are involved (Ford, 1996). So while
intelligence and achievement tests may be valid for predicting some correlates of intelligence,
they may not be valid for prescribing the best educational program.

Utley, Haywood, and Masters (1990) suggest Dynamic Assessment, which does
assess how a child learns and helps educators know what to do to help a child learn more
efi‘ectively. They believe that the use of intelligence to try to predict performance should not
be used. Furthermore, they believe that prediction of academic performance should not even
be a part of psychoeducational assessment. They also believe that classification should be
abandoned in favor of recognition of huge individual differences from person to person.
Another important suggestion they make is that the old approach of quick assessment to be

completed in an hour must be abandoned by school psychologists in favor of a lengthier

151

assessment of cognitive processes and how children learn most effectively. In conjunction
with this, teachers would have to adjust their teaching to work on cognitive process learning
rather than focusing on the accumulation of information and skills (Utley, Haywood, &
Masters, 1990).

If intelligence testing, the use of standardized achievement tests, and teacher
identification are all inadequate for identification of the gifted-handicapped, the question
which must be asked is what more effective possible methods might be used. As the
following material will show, research on the gifted-handicapped has found that there are
ways to identify this population more efi‘ectively. There are a wide variety of sources which
may provide insights into the true potential of gifted-handicapped children. The totality of
the examination of these sources has come to be known as an ecological assessment process.
This ecological process scrutinizes areas and aspects of gifted-handicapped children’s lives

that standardized tests and teacher selection fail to be able to pick up and measure.

11 'E' l! . 1 Cl .. E
S lilII 1' 11 Ill

The first step in developing a successfirl ecological approach to assessment has to
include an examination of the characteristics of successful gifted-handicapped individuals.
Only with that examination can it be known what characteristics should be looked for in
assessing the likelihood for success of gifted-handicapped children. Studies have helped to
identify characteristics seen in successful individuals who also have disabilities. Knowing
these many characteristics can enable us to know how to help disabled gifted learners and

how to help parents, teachers, and others may enable gifted handicapped learners to be

152
successfirl.

C. June Maker, a leader in the study of gifted handicapped, identified coping and
learning strategies used by successfirl scientists with disabilities. These characteristics include
extra efi’ort, persistence, reduction of difficulty of the task, positive attitude, and conscious
development of ability (1978, p. 64). Whitmore and Maker (1985) examined five case studies
of students who were gifted and handicapped, and they concluded that environments in
schools and homes where these children succeeded kept perceptions of lirrritations open-
ended, conveyed positive and realistic expectation, encouraged increasing independence,
helped develop self-understanding and coping strategies, provided daily opportunities to build
on successes and enjoy success, pursued positive social experiences, and advocated for
appropriate education.

A study on dyslexic individuals who went on to become successful also pointed to
some factors in ecological systems which may be critical for success of handicapped and
gifted students (Scott, Scherman, & Phillips, 1992). Such factors included having a
supportive person (most often a parent) who helped them believe in themselves. They also
noted that they were not given privileges because of their handicap, they had to do earn what
they received. No one just gave to them in pity for the handicap. All of them reported that
they felt anger when treated badly by others. They commented that adolescence was an
especially diflicult period for them. Interestingly, every person in the study was involved in
extracurricular activities and they felt this helped to gain a perspective of themselves as
successfirl outside of the academic areas, which were often not as positive of an experience

for them. For this same reason, hobbies and interests outside of school were very important

153

to them. They also tended to focus on positive aspects of themselves. All of them liked
challenges and had a strong internal drive. All these individuals felt frustration, both internal
and external, but all learned ways to cope. They all felt they had learned to not give up. They
reported feeling this attitude was learned firom their family and homes and not from their
school experiences.

Studies on identification of Hispanic gifted and talented students indicated that the
characteristics that profile these students included the ability to find many solutions to
problems, liking to try new things, being good at finding other uses for things, an interest in
a variety of things, being observant, creative, and curious, liking to read, being motivated to
learn, and asking questions (Marquez, Bermdez,& Rakow, 1992 p. 123). Although these
characteristics match what we would “see” to be a creative and gifted individual, the
characteristic that is missing is an IQ. score (Schwartz, 1994).

An early environmental study by Werner (1989), although not a study of the gifted or
handicapped per se, examined home, school, and personal variables to identify characteristics
found in impoverished children who excelled or were resilient. She conducted a thirty year
study of 698 children living in Kaui, Hawaii, attempting to determine what factors allowed
seventy-two of the children to excel, even when their environmental conditions were not
positive. Her results indicated that, as toddlers, these resilient children sought out novel
experiences. Throughout their childhoods, they were interested in many and varied hobbies
and activities. They developed an internal locus of control by adolescence. These children
had emotional support fiom at least one individual within the family or community, and they

also often had a favorite teacher who mentored them or served as a role model. The girls

154

were often assertive, achievement-oriented, and independent. All the children who excelled
were involved in school-based extracurricular activities they viewed as important. As adults,
seventy-five percent of these children went on to college.

Terman and Oden (1947) studied gifted individuals having I.Q.s above 140. They
found that four personality factors were displayed by the high achievers in this group. The
four traits included 1) persistence in the accomplishment of ends, 2) integration toward goals,
3) self-confidence, and 4) freedom from inferiority feelings. These traits appear to be
necessary for success in gifted individuals and would also be important for gifted-handicapped
children. Another researcher, Roe (1952), studied the personality traits of highly creative and
productive adults. He found they were all highly autonomous and self-directed. This
research reemphasized the importance of such autonomy and self-direction.

Boodoo, Bradley, Frontera, Pitts, and Wright (1989) examined characteristics that are
present in gifted learning disabled students. They found conflicting characteristics exist which
may prevent such a child fiom being identified and educated appropriately. They found such
students have two general traits of having both extraordinary strengths and severe
weaknesses, and this may well lead to a poor self concept and behavior problems (p.111).
All these observations can enable us both to identify and to know how to help gifted learners
with handicaps and also how to help parents, teachers, and others enable gifted handicapped
learners to be successfirl.

In planning for ecological assessment and programs for the gifted handicapped child,
it would appear coping strategies would be an important skill to focus upon. And the

pygmalion effect, or what you expect is what you get, appears to hold true for these children.

155

Not putting limitations on them because of a disability appears to be critical. Positive social
experiences both in and outside the classroom are also important considerations. Some
person advocating for them and their potential also was important.

Once again, a supportive person appears to be a critical factor for gifted-handicapped
children. It appears this person was not to be found in the school. They needed to both be
challenged and believed in. Adolescence was especially difficult for the gifted-handicapped
children, and they may need extra attention at that time, as they try to “find themselves”.
Hobbies and extracurricular activities appear to be a common and important characteristic of
gifted-handicapped children, who go on to become successful. Developing an internal locus
of control appears to be important, as well.

Many non-traditional gifted students may not have high I.Q.s, but instead may appear
to be creative, curious, and be good problem solvers. These resilient children also seemed
to be superior in creativity and problem solving. They all were involved in extracurricular
activities. All had some person who supported them, and this might have been a teacher or
a parent or someone in the community. They all developed an internal locus of control and
felt they were in control of their lives. These individuals showed the characteristics of
persistence, self-confidence, and they had fi'eedom from inferiority feelings.

Some of the characteristics of successfiil gifted-handicapped individuals can serve as
points to observe in the sort of ecological assessment to be discussed below. Other
characteristics, however, may be assessed through the use of various instruments. Such
assessment must consider the context -- the home, the school, and community -- the type of

giftedness, the level of gifiedness, and whether the giftedness is demonstrated or potential

156

(Ford, 1996). Such factors as environmental, psychological, and different cognitive styles
must be assessed.

Many such nontraditional instruments already exist and may be useful in any
ecological assessment. Besides the use of review of records, teacher and parent interviews,
and observational data, scales and instruments to measure many of the important behaviors
and traits that impact on children’s learning. The Baldwin Identification Matrix and the
Frasier Talent Assessment Profile are two instruments that help look at a broad perspective
of learning from cognitive styles to personality factors (Ford, 1996). The Temperament
Assessment Battery for Children (TABC) asks teachers and parents to assess a child’s
behavior as far as activity level, how adaptable the child is, how persistent the child is, how
distractable the child is, intensity of emotional responses, and likelihood to withdraw fiom
a situation (Gaddis & Hatfield, 1997).

Other efi’ective ecologically oriented instruments usefirl for measuring the ecological
impact of the teacher and the classroom include the Sutter-Eyberg Student Behavior
Inventory (SESBI). This checklist explores the teacher’s perspective of the child-school
interaction by having the teacher identify behaviors that are especially problematic in their
classroom (Gaddis & Hatfield, 1997). Ysseldyke and Christienson developed the
Instructional Environment Scale (TIES) to help systematically analyze the factors in the
instructional environment as possible interacting factors in the academic and behavioral
problems seen in the child (Gaddis & Hatfield, 1997).

ENNcalAssessrnent
The ecological approach to assessment of the gifted-handicapped involves ecological

157

psychology and assessment. Children have unique patterns of systems that they experience
and that influence them in a myriad of ways. Each child has a unique grouping of such
systems which may include school, home, fiiends, organizations, such as day care and
churches, and even government at the local to federal level. All these systems have an impact
on children and the problems they experience will reflect how these many systems connect
and interact to influence the child. No one way of assessing problems will be able to get to
the root of an individual child’s problems. Just administering standardized tests and looking
at the school, or even combining those tests with looking at the home, will often not be
enough to identify the course or source of children’s problems. Each child must be looked
at to understand the systems that can have an influence on the child’s problems. This
perspective is in direct contrast to the views held by many psychologists, who believe that it
their job to take “the system for granted and tr[y] to identify who will fit into it” (Cronbach,
l957,p.679)
W91

Part of the problem and of the failure of school psychologists to identify properly in
this area is due to the very drive toward classification, which has been considered one of the
great advances of medical science. The Medical Model was carried into psychology by the
adoption of the symptom/underlying cause point of view. Any behavior seen as abnormal was
taken to be a symptom of some sort of underlying internal pathology (Carson & Butcher,
1992). Special education bought into this Medical Model, and specific categories and labels
became the norm. A school psychologist‘s assessment of a child with a problem was treated

as the necessary first step of providing a label for the child. The Medical Model was further

158

cemented into special education in that federal firnding, such as PL. 94-142, is based on
putting a label on a child.

Failure was also an important piece of the medical model. No children were given
services, until they failed in the regular classroom and a label had to be affixed. In fact, no
remediation could occur, until this disability or a failure was documented (Pianta, 1990).
Some pe0ple call the Medical Model the “failure model,” because nothing is done to try to
prevent problems. In the Medical Model the source of the problem is believed to be internal
to the child, and remediations focus on fixing the child. Special education was fashioned after
this model, believing that the child must be assessed, and if a label is attached, the child will
be then be “fixed” by placement in special education.

This Medical Model has limited, and continues to limit, how complex problems are
perceived and dealt with by special education and in school psychology. Gifted-handicapped
children present problems for this model, as standardized tests are not suficient for their
identification. Too many of gifted-handicapped children are categorized as handicapped and
only their failures are examined. The giftedeness is never examined. Ifa gifted-handicapped
child succeeds, even minimally, by compensating for the disabilities he or she would never
even be recognized as either gifted or handicapped. The gifted-handicapped child does not
fit the simplistic view of the medical model.

Welder!

Complex problems, such as the gifted handicapped, require a more complex process

of assessment than the present model being used by our schools. Ecological psychology

began to develop in the 19405 when Roger Barker emphasized the need to exarrrine naturally

159

occurring behavior in natural settings. The term “ecological” comes from the Greek word
meaning house. In more general use “ecological” has come to mean “environmental.”
Psychologists who work from an ecological fiarnework stress the interdependence of behavior
and environment. L.S. Vygotsky believed child development to be a dynamic process of
adaptation and readaptation to the social environment. Urie Bronfenbrenner embellished and
expanded on some of both Barker’s and Vygotsky’s ideas.

All the child’s surroundings must be taken into account. For example, suppose it is
found that a child has a lower IQ. This is not going to look the same in any two cases. A
child may have had early and intensive work at home, or a grandparent or fiiend may have
spent a great deal of time introducing the child to new experiences. The parent or others may
teach the child to behave that he or she can do anything and to keep trying until success is
reached. A child may be of a genetic temperament that allows him or her actively to explore
the world. It may be that a local group has a program to provide books and experiences to
the child. Even the local library may play a role, if they have excellent literacy programs and
the child receives such benefits. A child may also receive Head Start services, and benefit
from food programs, or participation in a Big Brother or Big Sister program. How two
different children with the same low I.Q. look and do can be greatly influenced by such
systems. And no one problem source is ever at fault; all the difl‘erent systems work and
interact to create situations.

The difl'erent systems have been conceptualized by Urie Bronfenbrenner (1986) to be
four nested and interactive systems he called the micro, meso, exo, and macro systems.

Looking at the child and problems and the interplay of these systems allows for different

160

perspectives and avenues for assessment and intervention. The microsystem is the most
immediate settings the child experiences directly. It would include the family, home and
school. For children whose home and family have similar values and expectations as the
school, it can be anticipated that the child will have a more positive experience.

The mesosystem is where the microsystems interact. The home and the school may
be very difl‘erent and may cause conflicts to arise. This will require that different interventions
and collaboration between the school and home occur.

The exosystern is more indirect and yet can be significant in its interaction. The local
school system and other organizations in the communities will be in this system. Ifthe local
system has excellent programs to work with families and also to give extra tutoring to
children in need, this would impact positively on children.

The macrosystern extends firrther out into the larger society and includes the federal
government, national educational policy, and the state of the economy. If the federal
government allocates money for programs to aid lower ability children with tutors and
beneficial experiences, this will again impact positively on the child.

Shaftel and Fine (1997), noted several assumptions that underlie the ecosystem
perspective. These include:

1.) Behavior has value that is specific to the setting. What is acceptable in one setting
may not be acceptable in another setting. This why a child may be seen as acceptable by a
teacher one year and as not acceptable the next year by a different teacher. The values,
beliefs and expectations will vary in any two settings.

2.) Deviancy refers to behavior that is discordant with those valued by the setting. It

161

is the behavior and not the person that is deviant, the problem does not stem from the person
but instead from the interaction between the person and the environment.

3.) The “goodness of fit” of the person to the environment must be measured. A child
who feels accepted by a teacher and receives help in times of difficulty will respond
differently than a child who feels the teacher is unaccepting and unhelpfirl.

4.) People within the setting make the value judgement. In order for a behavior to be
considered disturbing an adult must identify it as such. The people, and not the setting,
observe the behavior and decide if it is “good” or “bad.”

5.) There is bidirectionality to the interactions within the setting. It is known that
teachers influence the classroom environment and all the activities that impact on the child.
Teachers’ beliefs about learning, about discipline, and about reinforcements will all affect how
those teachers run their classrooms and what they choose to do in lessons and in response to
problems that occur in the classroom. So, the same child may be perceived and treated very
difl‘erently by fiom one teacher to another.

6.) Ecological systems rather than people need to be changed. Ecological
interventions are aimed at altering the system to effectively meet the needs of all in that
system.

7) Ecological interventions are heuristic and eclectic. There is no single means or
even favored approach to a problem. There are a variety of approaches available, and
whatever methods and ideas might prove to be useful should be tried in an ecological
approach to changes.

8) Ecological interventions may result in outcomes that are unexpected or more

162
pervasive than the specific, narrow problem addressed. Ecological modifications are likely
to cause other changes, some of which may not be expected.

The components of an ecological assessment are multifaceted and must try to deal
with the many variables that make up the child’s ecological system. Such aspects as the child,
acculturation, family and school environments, temperament, overall capacity, and academic
achievement are some of the variables that should be assessed (McLellan & Sanchez, 1997).
How the child learns and other personal qualities must also be explored and included in the
plan for teaching the child.

IheEeolosiaalArzrzmeh

In order to conduct an ecological assessment all these facets must be explored. The
factors a teacher brings to the classroom, the factors a child brings to the classroom, the
physical set up of the classroom, the teacher management style, the curriculum and
instructional materials, auxiliary personnel, and family-school factors all need to be considered
in the assessment ( Shaftel, & Fine, 1997).

It would seem to be obvious that, in order to make judgements about different groups
of individuals, we must understand the different influences on their performance (Armour-
Thomas, 1992). In order to assess students who are different, schools must become aware
of such neglected or misunderstood input when it comes to this under identified group of
gifted students. Armour-Thomas says there are certain factors which must be stressed if the
assessment of this group is to be accurate.

First, our assessment procedures must be sufficiently flexible, diagnostic, and

dynamic to provide not merely the presence or absence of cognitive
competencies assessed at a particular point in time, but must include

163

information about the developing child’s changing ecological conditions that

may have enabled or impeded the manifestation of the competencies

appraised. Second, intellectual assessment practices should ascertain an

individual’s potential for the acquisition of the competencies of interest and

to predict what interventions would most likely lead to the development and

nurturance of such competencies over time. (p.561)

At the very least, and as a start, assessment must be designed to identify those handicapped
children who are gifted.

Ecological assessment may help overcome the shortcomings of other varieties of
assessment. According to John Feldhusen, a major theoretical change occurring in the field
of gifted education is that we now are recognizing that giftedness is not a unitary trait to be
diagnosed at one point in time with a particular test or scale (1992). Gifted learners are
diverse and their development is deterrrrined by many factors from genetic forces to
environmental events at home, school, and community. The field of gifted education is now
reemerging as a field of talent development. This development of talent goes on in many
places and under a variety of circumstances. Many diverse situations and individuals must be
involved in this process. No one test at one point in time can possibly determine this
development.

Assessment procedures, such as Project Search (Search for Exceptional Abilities
among Children with Handicaps) and Retrieval and Acceleration of Promising Young
Handicapped Talented (RAPYHT), have been successful in identifying gifted-handicapped
children. These and other procedures have been developed out of the quest to better identify
the gifted-handicapped. These procedures include such other techniques as the use of

multiple measures, which include informal observation for identification. Most all of these

164

employ a more ecological framework and address many issues other than just intelligence
and achievement scores on standardized tests. Most of these procedures make use of the
ideas that have been developed out of the research on traits found in successful handicapped-
gifted children.

Project Search (Maker, 1977) devised procedures for identifying handicapped gifted
children and also explored how to program for their needs. The project concentrated on
identifying underlying potential rather than demonstrated ability. The students were identified
via teacher observations and other assessment procedures, including clinical observations and
some standardized test instruments.

Merle Karnes model, RAPYHT, demonstrates a workable model for identifying and
programming for preschoolers with gifts and disabilities and has been replicated in over
twenty states. (Johnson, Kames, & Carr, 1997). This work has found that identification of
gifted-handicapped children must consist of multiple measures which include informal
observation. Teachers must expand their knowledge about how disabilities afl‘ect learning in
gifted children. There must be use of technology, and adaptive strategies. Teachers must also
work with self-esteern, as the low self concept that gifted-handicapped children often develop
can obscure their abilities even more and make teacher identification almost impossible. The
emphasis must focus on developing strengths and not the usual remediation of disabilities
(Johnson, Kames, & Carr, 1997). Parents and teachers were taught how to work positively
with the children and the children were given more opportunities to work at higher levels and
be more creative. The higher expectations and the greater opportunities appeared to be what

was needed for these children to advance to higher levels of development. The gifted-

165

handicapped children in this program were rated by their teachers to be above their peers in
listening skills, self-assurance, memory, writing, independence, attention span, and willingness
to try new activities. The program has been expanded to work with children in Head Start
programs. This program Bringing Out Head Start Talents (BOHST) had a positive impact
on teachers and all children, not just the children with potential talent and giftedness.

Findings of research on gifted-handicapped children indicate that contrary to what is
widely believed, it is possible to identify indicators of above average abilities and also talents
in gifted-handicapped children (Johnson, Kames & Carr, 1997). It was also found to be
critical for teachers to have an instrument with which to observe the giftedness and talents in
many natural settings. The research also found that, after gifted-handicapped children are
identified and provided with programs which focus on their strengths and also develop higher
level thinking skills and abilities, these children are able to be successful in regular classrooms.
The findings also note that once these gifted-handicapped children have been identified,
regular teachers have a more positive attitude toward them. Johnson, Kames, & Carr (1997)
suggest that one gifted-handicapped child should be compared to another gifted-handicapped
child as to dimensions that are associated with giftedness. The authors suggest that, in order
to avoid missing one gifted-handicapped children, it is advisable to go with the top ten to
twenty percent of all handicapped children being potentially gifted.

Johnson, Kames and Carr firrther note that classroom teachers need more knowledge
about disabilities and their impact on learning and this should become part of preservice
training for teachers. They also suggest that more counselors be trained to be sensitive to the

gifted-handicapped population and better able to collaborate with the many difl”erent teachers

166

and personnel to help these children with self-concept development and career development.
In their research they found that the best programs for gifted-handicapped children have a
coordinator who advocates for the children and orchestrates an effectively run program that
challenges the children.

Many ecological assessment approaches come out of work with minority students,
such as Black students, Hispanic, and Native American students, who are also gifled. The
concerns are the same that this population of students will not be identified using the
traditional methods of mostly standardized IQ. and achievement tests. A promising
procedure that considers a plurality of perspectives is the Frasier Talent Assessment Profile
(F -TAP). There is growing evidence that students who are assessed for gifted programs via
multiple criteria perform equally well when compared to those who are assessed by traditional
means (Baldwin, 1994, Frasier, 1993, O’Tuel, 1994). This F-TAP format records and
interprets assessment information from multiple sources and then provides programs based
on individual needs.

One instrument F-TAP designed and uses is the PF G (Panning for Gold) observation
form. This observation form is four pages long and looks at the personality and learning
styles, such as motivation, interests, communication, problem solving, memory, inquiry,
reasoning, creativity/unagination and humor, of a student in various contexts. Based on such
information an educational plan will be made and put to use. Besides the personality and
learning style inventories, there is a page for demographic input. There is also a quantitative
step in which interpretations are made of all the subjective and objective data that are

gathered. Such data can then be used to arrive at output through which one can compare the

167

subjective and objective data. This model allows student performance to be evaluated via
objective and subjective information gathered from various contexts (Colangelo & Davis,
1997).

In order to ensure acceptance of the gifted-handicapped child, it is suggested that
inservices must be ongoing to train all personnel in best practices for these children. It will
be imperative that programs have a continuity and that the transitions from level to level are
well planned. And in order for all of this to occur, teacher training programs must train
teachers to become skilled in working with gifted-handicapped children, and the federal
government also needs to play a leadership role in this effort. The work with gifted-
handicapped children must take place at the federal, state and local levels for best effect
(Johnson, Kames, & Carr, 1997).

l I . . l . [ill I B

As a last issue, it must be remembered that both Section 504 of the Rehabilitation Act
and the Americans with Disabilities Act require accommodation of an individual’s handicap.
That right to accommodation is limited to changes that would not alter the fundamental
nature of the program involved. Some guidance as to the apprOpriateness of particular
accommodations may be gained from experience with practices under PL. 94-142. The
accommodations commonly implemented in special education to allow the mainstreaming of
exceptional children do not firndarnentally alter the educational process, and many of those
accommodations would appear applicable to the inclusion of gifted-handicapped children in
gifted education programs. There may, however, be situations in which an accommodation

would destroy the nature of the gifted program, at least for the child receiving the

168
accommodation.

A study of the national trends and practices for programming for the gifted found that
sixteen different types of gifted programming were offered (Cox, Daniel, & Boston, 1985).
These included enrichment in the regular classroom, part-time special classes, full-time
special classes, independent studies, itinerant teachers, mentorships, resource rooms, special
schools, early entrance, continuous progress, nongraded schools, moderate acceleration,
radical acceleration, College Board and Advanced Placement courses, fast-paced courses, and
concurrent or dual enrollment. The most common program, existing in seventy-two percent
of reporting districts, was the part-time special class or pullout option. Enrichment, which
may mean an added area of learning being implemented in the regular classroom but
unfortunately often means just a greater quantity of work for the children identified as gifted,
followed at sixty-three percent. Third came independent study, at fifty-two percent, and
fourth were resource rooms, at forty-four percent. Most gifted children will be found
receiving their programs in a part-time pull out option, while others receive enrichment at
some time and place, or complete independent study, or go to a resource room for special
programming.

While Section 504 and the Americans with Disabilities Act both require
accommodation of an individual’s handicap, it must be remembered that the right to
accommodation is limited to changes that would not alter the firndamental nature of the
program involved. Different handicaps create different obstacles for gifted handicapped
children and should be addressed in any gifted programs (Davis & Rimm, 1989). It is

important to consider the different handicaps and how each might impact on the fundamental

169
nature of the program.
5 '5 I I .

Davis and Rimrn (1989) noted that certain general priorities must be addressed in any
gifted program that includes gifted-handicapped students. Because these student often have
some kind of communication limitations, the programs must have effective ways of
compensating for these limitations. For example, blind students may need to use tape
recorders, can study with sighted fiiends, and can take exams orally. If a visually impaired
student has some sight, there are machines to magnify the printed page. Deafchildren will
need a hearing aid and, perhaps, an interpreter. Orthopedically impaired students will require
wheelchairs, and if they cannot write, they will need a tape recorder, and will also need to
take exams orally. These adaptations should not alter the program for other gifted children
in the program and should not cause the gifted-handicapped children to gain less in the classes
they attend.

For many gifted-handicapped children their gifts may not be found until the aids they
need to communicate are identified. Davis and Rimrn note a program that designed devices
for physically handicapped children that freed them and permitted them to express themselves
artistically. As a result of these devices, talented artists were identified who otherwise would
not have been found (Davis & Rimm, 1989).

Gifted-handicapped children are often rejected by others, do not receive high
expectations from teachers and or parents, and may often feel difl'erent from others. These
and other factors often lead gifted-handicapped children to have lower self-concepts. As a

result, self-concept development must be a part of any program for helping the gifted-

170

handicapped. Ecological changes need to be enacted to help others see gifted-handicapped
children as more capable and to expect more of them. Others in the schools will need to be
helped to see the gifts which might not at first be obvious to them. A few changes in the
social mileau can enable gifted-handicapped children to achieve more and believe in
themselves. These changes can also serve to benefit the gifted and non-handicapped children
in the program.

Due to the lack of understanding about gifted-handicapped children, it will also be
important to do sensitivity training with other children and adults. Gifted-handicapped
children may have problems being accepted and will have to receive coaching in how better
to attempt to be accepted. These kinds of changes may enable gifted-handicapped children
to become more socially accepted.

There are some classroom management ideas which can also help to have gifted-
handicapped children fit in better. Cooperative leaming teams would be one way to help
integrate many different types of learners into a project, when they all have to work together
to complete the project. Peer tutoring is also another way to aid the gifted-handicapped in
the attempt to gain acceptance for them. By working with other students to tutor younger
peers, all students will gain self-esteem, as they play the role of teacher, and better
understanding will be gained as a result of their joint endeavor with one another in this
process.

Due to their handicaps, many gifted-handicapped children become dependent on
others for help. This situation causes them to have poor independent learning skills. Such

skills are critical for effective learning and must be developed and encouraged. If they are

171

to become competent learners who will be able to deal with difficult work, they must learn
to become self-initiated learners who can take on a task and carry it to fi'uition.

Any time there is limited sensory input, there may also be more difficulty with high-
level abstract-thinking skills. Because of the limited sensory input, such students tend to
evaluate the data on a more concrete level. It is suggested that this should not be viewed as
a lack of ability but as an area needing more input. The creative problem solving instruction
so common to gifted programs will be doubly important in the case of gifted-handicapped
children (Davis & Rimm, 1989).

As noted above, if children who are deaf and who are also gifted are to be
accommodated into a gifted program, it would require that interpreters be provided. Would
this provision destroy the nature of the gifted program? The same materials and curriculum
could be utilized for all students in the program, and it would appear that such an
accommodation would not destroy the nature of the gifted program. If the program were
in the form of a pull out or special class, the interpreter could easily fit into such a classroom
set up. It would be no problem for enrichment work, and in a resource room the only
possible problem might be that the rooms used are often small and one more person would
make it diffith to conduct the class. But a schedule could be worked out to have one less
student at the time an interpreter was to be present. Independent study options would present
no difficulties at all.

What about the accommodation of large print books or taped books for children with
hearing impairment visual impairments or some learning disabilities? Would this provision

destroy the nature of the gifted program? Granted, early planning would be needed in order

172

to have these materials available for use in the program, but that should not be a problem once
the planning is completed. This accomodation can easily be used in even a smaller classroom.
With the use of headsets the noise element should be no concern.

As for children who are pulled out for learning disabilities, there should not be any
inconsistencies here either. Ifa child has a learning disability in reading recognition, such as
dyslexia, the child may go to a resource room for instruction in phonics or whole language.
In the classroom, when there is material that must be read, this child may need some
accommodations, such as a reader tutor/pal to model how to read the material, or this could
be done via books on tape or a computer with speech. It is likely, however, that this child
will have strengths in math or some area that may not rely on skill in reading recognition to
succeed and that will be the area that is studied in a gifted program. Therefore the handicap
would not really be as much of factor.

I . . .

There may be situations in which a problem brought on by a child with a handicap
could cause a program that tries to accommodate the child to alter the program so
significantly that the program nature is changed and children in the program are not allowed
to go as far as they otherwise would. Suppose, for example, a deaf child has shown a gift in
musical composition. If the gifted program is in musical performance, this child may not fit
and accommodation to include him or her would change the nature of program. This would
not be required under the current laws. It might be possible to still try to include a deaf child
in some aspects of musical composition but not as regular member. For example, it could

do both the program and child some good by allowing the child to compose something for

173
the performance group.

Other options must be sought for a suitable program for any gifted-handicapped child.
Perhaps this same deaf child might also have an aptitude for math, since musical composition
is often linked to mathematical pattern recognition. Having this child in a gifted program for
mathematics would not cause the same difliculties in accommodation. When a problem arises
in one program, rather than eliminate the child from gifted programs an appropriate program
should be sought.

The problem of having a child who is gifted-handicapped and unable to be
accommodated in a gifted program is not too likely to occur. If a child is actually gifted in
an area addressed by the gifted program, the handicap probably impacts on other areas,
rather than the area the giftedness is found in, and inclusion would not be likely to require any
fundamental change in the area of the program. So a deaf child who is gifted will not likely
be able to become a member of the orchestra for gifted performers and require large
modifications in the workings of the program that would hold back the other students fiom
reaching their potential. An approppriate program to meet the specific strengths of the child
will have to be explored.

Because Section 504 of the Rehabilitation Act and the Americans with Disabilities Act
both bar discrimination against gifted-handicapped students with regard to their participation
in gifted education programs, it is critical that schools and parents know the implications of
these acts. Since they ban discrimination in admission to gifted programs, people must be
aware that this discrimination banned may be direct refusal to admit handicapped children,

despite their recognized gifts, or it may be the failure to use identification measures that are

174

capable of identifying the gifted within the handicapped population. And, the second aspect
of these statutes is a requirement of accommodation, once the gifted-handicapped student
is admitted to the gifted program. The student must be afforded the opportunity to succeed,
by accommodating the needs of the student, as long as the fundamental nature of the program
is unchanged.

There are shortcomings in all the usual measures used to identify potential participants
in gifted education programs. With modifications some these techniques can be used screen
handicapped children for gifted programs. Methods of determining the existence of these
characteristics to identify handicapped students, who may be successful in a gifted program
will be one important aspect of their assessment. Ecological assessment may provide the
most effective method for identifying gifted-handicapped students. While gifted-handicapped
students may need accommodations and they are entitled to enter into and succeed in gifted
programs. All these factors must be considered in any policy making schools and educational
agencies may undertake. It is becoming apparent that it will be necessary for policy makers
to take notice of gifted-handicapped children and their legal right to gifted education.

SummanLandLQnslusim

Discrimination against gifted-handicapped students with regard to their participation
in gifted education programs is legally prohibited. This discrimination applies to both their
admission into gifted programs, whether by refirsal to admit them or to a failure to use
instruments capable of identifying the gifted within the handicapped population, and to the
requirement of accommodation, once the gifted-handicapped student is admitted to the gifted

program. The gifted-handicapped students must be afl‘orded the opportunity to succeed, by

175

accommodating their needs, as long as the accommodations do not change the fundamental
nature of the program.

Measures used to identify potential participants in gifted education programs must be
carefully examined and altered so as not to screen out qualified handicapped children.
Educational personnel must become familiar with characteristics useful in identifying
handicapped students who may be successful in a gifted program. Ecological assessment will
be one effective method for identifying gifted-handicapped students and not discriminating

against them in placement in gifted programs.

VII
OVERVIEW AND POLICY IMPLICATIONS FOR

GIFTED-HANDICAPPED EDUCATION

In the United States, it is estimated that there are over 300,000 gifted-handicapped
children whose educational potential is at risk (Piirto, 1994). These are the children who
could be the firture Einsteins, Edisons, Helen Kellers or Churchills of the world. Many of
these gifted-handicapped children struggle to get by in school, and many do not make it in
school. Something needs to be done to help these children to develop their giftedness, yet
most schools do not seek to identify or provide programs for their gifted-handicapped
children.

Analysis of recent legislation and legal decisions sheds new light on the rights of the
gifted-handicapped to an appropriate education that meets both their need for special
education for their handicap and gifted education for their giftedness. Even the Amy Rowley
case and the fact that comorbidity, or a double diagnosis, such as gifted and handicapped, is
not even allowed under laws such as PL. 94-142 can be viewed from a difl’erent perspective
in light of more recent statutes and cases.

The Supreme Court of the United States, in the Amy Rowley case, has held that the
federal law mandating special education services does not require that a handicapped children

be given educations that maximize their potential. All that is guaranteed is an education that

176

177

provides the greatest likelihood that handicapped children can perform as well as average
children. A child advancing at a grade a year pace has no legal right to demand additional
services, even if the child is capable of much more.

Despite the weakening of PL. 94-142, there are still policy arguments to the effect
that it would be wise for society to insure that the gifted-handicapped are provided with the
opportunities that are, or ought to be, provided to gifted children generally. In fact, the policy
arguments in favor of gifted education generally apply with equal force to the gifted-
handicapped. Policies favoring special education also speak to this population. Furthermore,
arguments against gifted education or special education appear to be weakened when
addressed to the gifted-handicapped.

Perhaps more importantly, while the decision of the United States Supreme Court in
Ln: o o .c .z..ot o ram. . r . n ‘n: too h m to r a (1982)didseem
to remove any force PL. 94-142 might have given to the drive to provide an enriched
education to those handicapped children who might also be gifted, there are other legal
arguments to that end to be found in later statutes and in the United States Constitution. In
particular, the Equal Protection Clause of the United States Constitution has been used in the
past to obtain educational services for the handicapped. Furthermore, Section 504 of the
Rehabilitation Act and the Americans with Disabilities Act both bar discrimination against the
handicapped and demand accommodation of disabilities. Both are, then, possible sources of
a legal right on the part of the handicapped to participate in gifted education programs.
Where gifted programs exist, gifted-handicapped children who are capable must be allowed

to participate.

178

A legal requirement that gifted-handicapped children be included in gifted education
programs is more than a requirement that they not be excluded as a matter of policy. School
districts must also make an effort to identify these children. In particular, the use of
assessment methods that may fail to recognize a child’s giftedness, because of the masking
effect of a handicap, must be avoided. The ordinary indicators are simply inadequate for
children who are gifted-handicapped. If the giftedness of those children is to surface,
alternative, more comprehensive techniques must be employed. It will be the task of the
school psychologist to identify the gifted-handicapped, and the techniques presently most
commonly used are not up to that task. The implications of the policy and legal arguments
presented here will include the need for improved identification methods to insure that gifted-
handicapped children are adequately assessed for inclusion in gifted programs. Assessment
must be more dynamic to search out these hidden talents.

Once identified, the gifted-handicapped must be afl‘orded the opportunity to succeed.
The accommodations necessary for the typical special education student to succeed in a
mainstream environment may also be necessary for the gifted-handicapped student to succeed
in a gifted education program. A school system is not required to make adaptations that
would change the essential nature of the program, but short of such changes, the gifted-
handicapped student must be accommodated.

While the gifted-handicapped have a right to participate in any gifted programs that
a school system may choose to provide its nonhandicapped gifted population, there may be
cases in which a child’s handicap precludes participation in a particular program, but that is

a decision that must be made only after a careful study of the specific program and the specific

179

gifts and disabilities. A system cannot simply choose not to provide gifted-handicapped

students with access, and it may not employ identification methods that screen out

handicapped children who are capable of participation in the gifted program.

There are several particular recommendations that stem fiom the analysis of the policy

and legal issues surrounding the education of the gifted-handicapped.

Parents of handicapped children should not focus solely on their children’s handicaps.
Their children may also be gifted, and parents are in the best position to observe that
giftedness. Parents who recognize a particular talent should bring it to the attention
of the child’s teachers.

Schools should examine parents’ requests for identification of giftedness in
handicapped children and include children so identified in gifted programs. Failing to
do so, the district could potentially have to pay damages or may have to reimburse the
parents for appropriate education found elsewhere.

Single identification instruments should not be allowed to eliminate handicapped
children from gifted programs for which they might be qualified. School districts
would be well advised to employ a variety of instruments, when a handicapped child
is involved, and based on the particular handicap at issue, to select instruments that
are less likely to eliminate a child who could be successful in a gifted program.

The school has to do its best to provide an appropriate program, and if maximization
of potential is required for the below average to average performing handicapped
population, perhaps that same right of maximization of potential should apply to the

gifted-handicapped, at least to the point where it is equal to the opportunity enjoyed

180

by the nonhandicapped gifted child.

Schools should provide accommodations to allow gifted-handicapped children to
succeed, once they are identified for a gifted program. Schools have experience in
providing such accommodations in the mainstreaming of exceptional children, and the
task for the gifted-handicapped will be similar.

The educational research community should continue the development of instruments
that can serve to identify the gifted within the handicapped school age population.
These instruments will be necessary for the schools to meet their duties, and the
universities should provide the development required. Ecological assessment appears
to be an important aspect of this effort.

The educational research community should conduct research on the most effective
accommodations for gifted-handicapped children.

Schools of education must recognize that future teachers with an interest in gifted
education will face the same mainstreaming issues faced by regular education
teachers. They need to be taught how to handle the handicapped child in their gifted
programs.

A collaborative effort must develop among parents, teachers, school psychologists,
and medical and rehabilitation professionals. The needs of gifted-handicapped
children are complex, and insight from a variety of perspectives will be necessary to
address those needs.

Parents and others interested in the gifted-handicapped should organize actively to

advocate for all the suggestions presented. This group should also strive to eliminate

181

negative stereotypes and the restrictive practices that result from such inaccurate

views. The gifted-handicapped themselves, particularly those who have success

adults, can serve as most effective advocates and as role models.

The suggestions offered will help the gifted-handicapped obtain the education they
deserve and to which they are legally entitled. While there may be some expense involved,
the additional services proposed here are similar to those involved in providing for all
handicapped children. Our gifted-handicapped students represent a rich talent pool, one
capable of making significant constibutions to society. The extent to which that happens
depends largely on the success of the kinds of educational policies and practices we adopt to

enhance the intellectual potential of the gifted-handicapped in our care.

APPENDICES

APPENDIX A
LIST OF CITED CASES
Alexander v. Choate, 469 US. 287 (1985).
Anderson v. University of Wisconsin, 665 F.Supp. 1372 (W.D. Wisc. 1987).
Bartlett v. New York State Board of Law Exanriners, 156 F. 3d 321 (2d Cir. 1998).
Barwacz v. Michigan Department of Education, 674 F.Supp. 1296 (W .D. Mich. 1987).

Board of Education of Hendrick Hudson Central School District v. Rowley, 458 US. 176
(1982)

Brown v. Board of Education of Topeka Kansas, 347 US. 483 (1954).

City of Clebume v. Clerburne Living Center, 473 US. 432 (1985).

David D. v. Dartmouth School Committee, 775 F.2d 411 (lst Cir. 1985).

Diana v. State Board of Education, No. C-70-37 RFP (N .D. Cal. 1973).

Hoffman v. the Board of Education, 410 N.Y.S.2d 99 (App. Div. 2d Dept. 1978).
Larry P. v. Riles, 495 F.Supp. 926 (ND. Cal. 1971).

Mills v. District of Columbia Board of Education, 348 F .Supp. 866 (D.D.C. 1972).
Monahan v. Nebraska, 687 F 2d 1164 (8th Cir. 1982).

Murphy v. Franklin Pierce Law Center (unreported opinion), 56 F.3d 59 (lst Cir. 1995).
Available on WestLaw or Lexis.

Nathanson v. The Medical College of Pennsylvania, 926 F.2d 1368 (3d Cir. 1991).

Pennsylvania Association for Retarded Children v. Pennsylvania, 343 F.Supp. 279 (ED. Pa.

182

183

1972).
Price v. National Board of Medical Examiners, 966 F .Supp. 419 (SD. W.Va. 1997).
Pushkin v. Regents of the University of Colorado, 658 F .2d 1372 (10th Cir. 1981).

Rowley v. Board of Education of Hendrick Hudson Central School District, 632 F.2d, 945,
(2d Cir. 1980).

Rowley v. Board of Education of Hendrick Hudson Central School District, 483 F. Supp.
528 (SD. NY. 1980).

S-l v. Turlington, 646 F. Supp. 1179 (SD. Fla. 1986).

San Antonio Independent School District v. Rodriguez, 411 US. l (1973).
Sanders v. Marquette Public Schools, 561 F Supp 1361 (W .D. Mich. 1983).
Sellers v. School Board of the city of Manassass, 141 F. 3d 524 (4th Cir. 1998).
Smith v. Robinson, 468 US. 992 (1984).

Southeastern Community College v. Davis, 442 US 397 (1979).

State ex rel Beattie v. Board of Education, 172 NW. 153 (Wis. 1919).

Stutts v. Freeman, 694 F.2d 666 (11th Cir. 1983).

Washington v. Davis, 426 US. 229 (1976).

Watson v. City of Cambridge, 32 NE. 864 (Mass. 1893).

APPENDIX B
LEGAL RESEARCH METHODS

Legal cases and statutes are most easily found using an electronic data base, such as
WestLaw or Lexis. Such data bases allow text search, so that all cases, or all cases from a
particular state or federal court, using the phrase “special education” or the word “gifted”
within some number of words of the word “handicapped” can be retrieved and the terms
asked for shown in context. Cases can also be retrieved by the name of one of the parties or
by the case’s reporter, volume number and page. Law review articles can also be searched
for words or phrases. The word or words searched may be the title or citation for a particular
case, so that all the law review articles or later cases referring to the earlier case will be
retrieved. The United States Code and state codes can also be searched for words or phrases
to find statutes addressing particular areas.

There are also non-electronic methods for finding cases and statutes. A text book on
the topic to be researched will provide the major cases and statutes in the area. For example,
any text book on special education law will discuss the Amy Rowley case and Public Law 94-
142. Each case will provide cites to the cases and statutes it relied on, so earlier important
cases and the relevant statutes can be located. The cases found can also lead to later cases
on the same issue. Shepard’s Citations lists, for each case, the later cases that discuss or rely

on that case. The later cases can then be retrieved, either electronically or in the case report

184

185

volumes. They, too, will contain cites that may produce new material. Shepard’s also
indicates any later history of the case, so that a higher court reversal or affirmance of the
original opinion will be found.

Relevant statutes may also lead to cases. Federal statutes can be found in the United
States Code or the United States Code Annotated. United States Code Annotated has the
advantage of providing references to any cases interpreting or applying each section of the
statute. The cases listed are firrther subgrouped by the issue discussed. For example, for the
Americans with Disabilities Act, a list of cases discussing the nature of handicaps covered is
provided, as is a list of cases discussing what constitutes discrimination. The annotations also
provide a list of law review articles relevant to the particular section of the code.

Thorough research requires checking and cross checking sources. One case, Case A,
leads to earlier and later cases and to law review articles. The earlier cases may lead to cases
raising the same issues discussed in Case A, but not cited in Case A. The later cases found
by looking to the Shepard’s Citations for Case A may provide their own set of earlier cases
again on the same issue as Case A, but not cited in Case A. Similarly, law review articles
discussing Case A may also discuss cases from other courts on the same issue and not cited
in Case A. Where all these cross checked sources agree, the legal position is well established.

Where they disagree, there is room for argument as to the better result.

BIBLIOGRAPHY

BIBLIOGRAPHY

Alexander v. Choate, 469 US. 287 (1985).

Alley, G. & Foster, C. (1978). Nondiscrinrinatory testing of minority and exceptional children
WWW 1- 14

Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327.
Anderson v. University of Wisconsin, 665 F.Supp. 1372 (W .D. Wisc. 1987).

Armour-Thomas, T .E. (1992). Intellectual assessment of children from culturally diverse
pepulations. W21. 552-565.

Baldwin, A. Y. (1994) The seven plus story: Developing hidden talent among students rn
socioecononrically disadvantaged environments. WM 80-84.

Bake” KG: (1968) WWW
humanlrshaidm. Stanford, CA: Stanford University Press.

Bartlett v. New York State Board of Law Examiners, 156 F. 3d 321 (2d Cir. 1998).
Barwacz v. Michigan Department of Education, 674 F.Supp. 1296 (W.D. Mich. 1987).

Board of Education of Hendrick Hudson Central School District v. Rowley, 458 US. 176
(1982)

Boodoo, G. M. ,Bradley, C..L ,Frontera, RL., Pitts, J. R., & Wright, L. B (1989). A survey
of procedures used for identifying gifted learning disabled children. fiifledfihildfluaneflx,
33, 110-114.

Borland, J. H. (1978) Teacher identification of the gifted: A new look. loumaLfoLthe
W992; 22- 32

Brinkrnan, P. (1996, November 4). Advocates for deaf want to start school in Madison: The

186

187

publicly funded school would have mostly deaf teachers and provide more advanced

instruction Warm p 1A

Bronfenbrenner, U (1986). Recent advances m research on human development In R K.

Silbereisen, K Eyferth, & G. Rudinger (Eds.,) DexeloomentasoetionjiuommMem

oehamomdoomalmhoeyelopmem (pp. 287-309). Heidelberg and New York: Springer-
Verlag.

Bronfenbrenner, U. (1979) - -,, . . -
design. Cambridge, MA. Harvard University Press.

Bronner, A. F. (1921). WWW Boston, MA:

Little Brown.

 

Brown v. Board of Education of Topeka Kansas, 347 US. 483 (1954).

Carson, R.C. & Butcher, IN. (1992). AbnonnaLpsxehologiLanimooemlife (9th ed). New
York, NY: Harper Collins Publishers

City of Clebume v. Clerburne Living Center, 473 US. 432 (1985).

Clark,E. (1997). Braininjury. InBear, G.G. Minke, K..M & Thomas, A. (Eds.,) Childrens
WWW—31mm (pp 315- 326) Bethesda, MD National
Association of School Psychologists.

Code of Federal Regulations, 34 CPR. sec. 104 (1998).

Code of Federal Regulations, 34 CPR. sec. 194 (1998).

Code of Federal Regulations, 36 CPR. sec. 104 (1998).

Colangelo, N. & Davis, G. (1997). Handlmokofgifiedeoueation. Boston, MA: Allyn and

Bacon.

Coleman, M. R. & Gallagher, J. J. (1995). Gifted education: Historical perspectives and
current concepts. In J. L. Genshaft, M. Bireley & C. L. Hollinger (Eds ) Sem'mggrfledmd

WNW (pp 3-16). Austin TX: Pro-Ed.
ColemanMR &Gallaghcr, JJ (1992) WW

0 'ri‘vrirrm ‘. ‘mr tour Ji‘n' t r" ' '1 n ChapelHill,
N.C.: University of North Carolina.

Cox, 1., Daniel, N, & Boston, 13. (1985). W99

188
mmisingoiaejjees, Austin, TX.: University of Texas Press.

Cronbach, II. (1957). The two disciplines of scientific psychology. Amerieanfisxehologist,
12, 671-684.

David D. v. Dartmouth School Committee, 775 F.2d 411 (lst Cir. 1985).

Davis, G.A. & Rimm, SB. (1989). Edueaiionoflhegifieoondjalemfl Englewood Cliffs,
NJ: Prentice Hall.

Diana v. State Board of Education, No. C-70-37 RFP (ND. Cal. 1973).

WW (1994) (4th ed). Washington
DC: American Psychiatric Association.

Eby, 1W, & Smutny, JF- (1990). AthQushtflrlmmnfsrflcdflncam New York,
NY: Longrnan.

Education for All Handicapped Children Act of 1975, Pub. L. No. 94-142, 89 Stat. 773.

Education of the Handicapped Act Amendments of 1990, Pub. L. No. 101-476, 104 Stat.
1103.

Education of the Handicapped Act Amendments of 1986, Pub. L. No. 99-457, 100 Stat.
1145.

Eisenberg. D & Epstein E (1981) WWW
handieapmdohildren, Paper presented at the CEC-TAG National Topical Conference on the

Gifted and Talented Child, Orlando, FL.
Elementary and Secondary Education Act of 1966, Pub. L. No. 89-750, 80 Stat. 1191.

Elementary, Secondary, and Other Educational Amendments of 1969, Pub. L. No. 91-230,
84 Stat. 121.

Feldhusen, J .F. (1992). A case for developing America’s talent; How we went wrong and
where we go now. W9. (4), 231-33.

Feldhusen, J. F. & Moon, S. (1995). Grouping gifted students: Issues and concerns. Crified
W 63-67

Feldman, D. H. (1992). Has there been a paradigm shift in gifted education? In N.
Colangelo S G Assouline & D L Ambroson (EdS) WWW

189

r“ 99 can it or. Ila-,1 ‘roro. ‘ ‘t..r murrtr -..‘r 0'V'Hrr'r (p.

89- 94) Unionville, NY: Trillium Press.

Ford, DY. (1996). '- - - t-' 5 ._ .
W New York, N. Y. Teachers College Press.

Frasier MM (1993) Anabanamultlplunrerlanrtheldenmicatlmmfslfledimderrts
WWW (Report No 1) Athens Ga Georgia

Southern Press

 

Gaddis, L. R. & Hatfield, L. (1997). Characteristics of the learning environment. Students,
teachers, and their interactions. In J. L. Swartz & W. Martin, Jr. (Eds.,) Appliedmbsical
o Hts t it” into Hrlrt‘s.‘rrr W'(pp31-54).
Mahwah, NJ .: Lawrence Erlbaum Associates.

Gallagher, J. J. (1993). The adaptation of gifted programming for learning disabled students.

In L H Fox, L Brody & D Tobin (Ede) Leamrnsfirsahlsdlsrflsdshfldtenmmcatm
andpmsrarnmins (pp 171-181) Baltimore, MD: University Park Press.

Gallagher, J .(1984). Excellence and equity - A worldwide conflict. CrifiedjmemationaLZ,
1-1 1.

Gallagher 1 & Weiss P (1979) Ihecducari9n9fzifledandjalenterlmdcnIsAhisr9nl
W (Occasional Paper 27). Washington, DC. Council for Basic Education.

Gardner, H. (1983). Emmesoflmind, New York: Basic Books.

Gearheart, B. Mullen, R.C., & Gearheart, C. (1993). ExoemionaLindiiddoalLAn
moduotion, Pacific Grove, Ca: Brooks/Cole.

Gifted and Talented Children’s Act of 1978, Pub .L. No. 95-561, 92 Stat. 2143.

Goals 2000: Educate America Act, Pub. L. No. 103-227 (1994), 108 Stat. 125.

Goertzel, V. & Goertzel, MG. (1962). Cradlesofleminenee, Boston: Little, Brown & Co.
Going wrong with handicapped rights. (1980, July 19). W p. 16.

Gold, M.J. (1965). WWW Columbus, OH: Merrill.

Guilford, JP. (1973). Theories of intelligence. In B.B. Wohnan (Ed), Handlmokofgeneral
12519119192): (pp. 630-43). Englewood Clifl‘s, NJ: Prentice-Hall.

190

HR. Rep. No. 99-296 (1985).

Hallahan, DP. & Kaufman, 1M. (1994). Exeeetlenauhlldremlntmeeefieejeseeeial
education (6th ed.). Boston, MA: Allyn & Bacon.

Harnachek, D. (1990) Understanding gifted handicapped youths from a self-concept frame
of reference WW (2&3) 83- 93

Hansford, S. J, Whitmore, J. R Kr,aynak, A..R & Wingenbach, N. G..(l987) mummy

WWW Reston, VA: ERIC Clearing House on
Handicapped and Gifted Children.

Heward, W.L.(1996).
Cliffs, NJ: Merrill.

. '. l Englewood

 

Hewett, F. M. (1987). The ecological view of disturbed children shadow versus substance.
W (3) 61-63

Hollingsworth, L. (1923). WWW: New York: Macmillan.
Hoffman v. the Board of Education, 410 N.Y.S.2d 99 (App. Div. 2d Dept. 1978).

Howley, C B Howley, A & Pendarvis E D (1995) QnefleuLmindsAmkimeWm
andJalenLdexeleemeanAmefieanjeheelina. New York, NY Teachers College Press

Humphrey, J. H. (1990). - -.:., -.
WW Springfield, IL. Charles C Thomas.

Jacob A. Javits Gifted and Talented Student Education Act of 1988. Pub. L. No. 100-297,
see. 4101 et seq., 102 Stat. 130, 269.

 

Johnson, G., Johnson, J, & DeMatta, R (1991) Predictive exploration of educational-failure
paradigms CmdimleumaleiSpeeiaIEdueatienl. 164-180

Johnson, L. J, Kames, M. B. & Carr, V. W. (1997). In N Colangelo & G. A Davis (Eds)
W (2nd ed) (pp. 516-527). Boston, MA. Allyn & Bacon.

Kaplan, R.M. & D.P. Saccuzzo, Eds. (1997). WWW
mama. Pacific Grove, CA: Brooks/ Cole Publishing Company.

Kitano, MK- & Kirby, DF- (1986). WWW Boston:
Little, Brown & Co.

191

Larry P. v. Riles, 495 F.Supp. 926 (ND. Cal. 1971).

Lewis, R-B- & Doorlag, DH- (1995). Ieaehlnaseeealfleeentsmhemmnsttem (4th ed).
Englewood Cliffs, NJ: Merrill.

Maker, C. J. (1977). WWW Reston, VA: The
Council for Exceptional Children.

Marquez, J A., Berrnudez, A. B., & Rakow, S. J. (1992) Incorporating community
perceptions in the identification of gifted and talented Hispanic students. JoumaLof

WWW 117-130

McDaniel, T. R (1993) Education of the gified and the excellence-equity debate: Lessons

fromhistory InCJ Maker(Ed) WW
Wagon (Vol III) (pp. 6-18). Austin, TX: Pro-ed.

McLellan, M & Sanchez, I (1997). Principles and application of ecological assessment for

teachers. 1111. Swartz&w Martinaids), AenliedieeleziealfisyeheleufieLSeheelflitin
CemmunifiesAssessmentandMementien (pp 77- 94) Mahway, N J Lawrence Erlbaum
Associates, Publishers.

McLoughlin, J .A. & Lewis, RB. (1994). W (4th ed.). New York,
NY: Merrill-Macmillian College Publishing.

Meeker, M. (1969).Ihe_stnlen.lre_e£intelleet:_1ts_intemretatiens_andeses Columbus, OH:
Charles Merrill.

Meeker, M. (1977). SQUamingohiligmosg El Segundo, CA: 801 Institute.

Mehan, H., Hertweck, A & Meihls, J .L. (1986). momma-1mm Stanford,
CA: Stanford University Press.

Mills v. District of Columbia Board of Education, 348 F .Supp. 866 (D.D.C. 1972).
Monahan v. Nebraska, 687 F 2d 1164 (8th Cir. 1982).

Murphy v. Franklin Pierce Law Center (unreported opinion), 56 F.3d 59 (lst Cir. 1995).
Available on WestLaw or Lexis.

Nathanson v. The Medical College of Pennsylvania, 926 F .2d 1368 (3d Cir. 1991).

National Association for Gified Children Website. Available at: www.nacg.org/
ParentInfo/index.html.

- - - - - . - ..(1993) Washington,D..:C U S.
Department of Education, Office of Educational Reasearch and Improvement

 

Nelson, K. B. & Ellenberg, J. H. (1986). Antecedents of cerebral palsy: Multivariate analysis
of risk WW1; 81-86

Nowak, J.E. & Rotunda, RD. (1995). W (5th ed.) St. Paul, MN: West
Publishing.

Office of Special Education Programs (1996) MW

mlelememanen_ef_the_mdmdeals_mth_elsaelhnes_eeueanen_aet Available at:
www ed. gov/pubs/OSEP96Aanpt/chaplb. html.

0’ Tuel, F. S. (1994). APOGEE: Equity 1n the identification of gifted and talented students.
WM 75 79

Pennsylvania Association for Retarded Children v. Pennsylvania, 343 F.Supp. 279 (ED. Pa.
1972)

Pianta, R. C. (1990). \Vldening the debate on educational reform: prevention as a viable

alternative Exeeetienalehilrkemie (3) 306-13

Piirto, J. (1994). Inkmedshildreundadeltsflheflexeleememjnmyeatien.
New York, NY: Merrill.

Porter, RM. (1982). The gifted ahndicapped: A status report. W (3), 24-25.
Price v. National Board of Medical Examiners, 966 F.Supp. 419 (SD. W.Va. 1997).

Pushkin v. Regents of the University of Colorado, 658 F.2d 1372 (10th Cir. 1981).

Reed, ES. (1996). W New York,
NY.: Oxford University Press.

Rehabilitation Act of 1973. Pub. L. No. 93-112, 87 Stat. 355.

Rehabilitation Act Amendments of 1992, Pub. L. No. 102-569, 106 Stat. 4344.

Renzulli, JS. ,Smith,L..,H White, AJ., Callahan,CM. &Hartman, R..K (1976) W
W Mansfield Center, CT. Creative

Learning Press.

Reynolds, C.R., & Brown, RT. (1984). W New York,

193
NY.: Plenum Press.

Robinson, S N. (1983). Rowley: The court’s first interpretation of the education for all

handicapped children act of 1975 W; 941 -.964
Roe, A. (1952). W51 New York, NY: Dodd, Mead.
Rothstein, LE (1995). W New York, NY: Longman.

Rowley v. Board of Education of Hendrick Hudson Central School District, 632 F.2d, 945,
(2d Cir. 1980).

Rowley v. Board of Education of Hendrick Hudson Central School District, 483 F. Supp.
528 (SD. NY. 1980).

S-l v. Turlington, 646 F. Supp. 1179 (SD. Fla. 1986).
San Antonio Independent School District v. Rodriguez, 411 US. l (1973).

Sanders v. Marquette Public Schools, 561 F Supp 1361 (W .D. Mich. 1983).

Sapon-Shevin, M (1994) WWW
comm. Albany, NY: State University of New York Press.

Sattler, J .M. (1992). Assossmemofohflom (3rd ed). San Diego, CA: Jerome M. Sattler
Publisher.

Schnur, J .O. & Stefanich, GP. (1979). Science for the handicapped gified child. Rape:
Rescind (2), 26-28.

Schwartz, LL. (1994). W2 Thousand Oaks, CA: Corwin Press,
Inc.

Scott, M. E ,Scherman, A, & Phillips, H. (1992). Helping individuals with dyslexia succeed
in adulthood: Emerging keys for efi‘ective parenting, education, and development of positive

self concept 1eumale£1nstmetrena1£mhelea42(3),l97-204

Sellers v. School Board of the city of Manassass, 141 F. 3d 524 (4th Cir. 1998).
Sen. Report No. 94-168 (1975).

Shaftel, J. & Fine, M. (1997) Ecosystem intervention with teachers. A collaborative

approach Inl Swartz&W Martin(Eds)Appher1Eee1egleal£sxehe1euEQLSehee1flmn

194

W (p 95-114). Mahway, NJ: Lawrence Erlbaum

Associates, Publishers.

Shore, B.M., Cornell, D G., Robinson, A. & Ward, V. S. (1991). W
WW5, New York, NY: Teachers College Press

Shcwalter, E. (1997). W New York:

Columbia University Press.

Silverrnan, L.K. (1989). Invisible gifts, invisible handicaps. W (1), 37-42.
Smith v. Robinson, 468 US. 992 (1984).

Smith, RC. (1996). W Philadelphia, PA: Temple University Press.
Southeastern Community College v. Davis, 442 US 397 (1979).

State ex rel Beattie v. Board of Education, 172 NW. 153 (Wis. 1919).

Stutts v. Freeman, 694 F .2d 666 (11th Cir. 1983).

SmeL &Martin,WE Eds (1997) Annhedmclosrszammhcmmuchmlmthm
WW Mahwah, NJ: Lawrence Erlbaum Associates
Publishers.

Terman, LM. & Oden, M. (1947). WWW
Stanford CA: Stanford University Press.

Thorndike, EL. (1925). WWW New York: Columbia University

Teachers College.

Tillman, J .H. (1973). Intelligence scales for the blind: A review of the implications for
research. W 80-87.

Trefl‘ert, DA. (1989). “WWW NY: Harper.
Trent, J. W. (1994). mm Berkeley: University of California Press.
Wm (1990)-

United States Code, title 29, sec. 794(b)(l998).

Utley, C.A., Haywood, H.C., & Masters, J .C. (1990). Policy implications of psychological

195

assessment of minority children. In H.C. Haywood & D. Tzuriel (Eds), W
W (pp. 445-469). . New York, NY.: Springer-Verlag.

Van Riper C & Emerick, L (1990) Wm
W (8th ed. ). Englewood Cliffs, NJ: Prentice Hall

Van Tassel-Baska, J. (1989). The disadvantaged gifted. In J Feldhusen, J VanTassel-Baska
& K Seeley (EdS) Excellencemedncamthuified (pp 53-69) Denver CO: Love

Vocational Rehabilitation Act Amendments of 1973, Pub. L. No. 93-112, Section 504, the
Bill of Rights for the Handicapped.

Vygotsky, LS. (1962). mm Cambridge, MA: MIT Press.
Washington v. Davis, 426 US. 229 (1976).
Watson v. City of Cambridge, 32 NE. 864 (Mass. 1893).

Werner, E. E. (1989). High-risk children in young adulthood: A longitudinal study from birth
to 32 years WW (1) 72- 81

Whitmore, J.R. & Maker, C.J. (1985). WWW
ROCkVille, MD: Aspen Publications.

Wisconsin Association of the Deaf Web Site, www.wi-deaf. org.

WNW (3rd ed). (1991). San Antonio, TX:
Psychological Corp.

Zirkel, PA (1983). Building an appropriate education from board of education v. Rowley:
Razing the door and raising the floor. W2. 466-495.