Caryl Andrea Oberman, Esq.
The Law Offices of Caryl Andrea Oberman
Andrew E. Faust, Esq.
Sweet Stevens Katz & Williams

Special education for students with disabilities is intended to provide a “basic floor of opportunity” that enables meaningful educational progress to be achieved.  IEPs and their goals are directed toward that end. Gifted education,  GIEPs and their goals,  do not aspire to reach the floor.  By definition, gifted students have already reached it and surpassed it.   Hovering above it, how high is high enough to be meaningful?  Is there a ceiling?

Gifted education is a creature of state law. For decades, Pennsylvania’s gifted mandate was tethered to its requirements for serving students with disabilities, only receiving separate regulatory treatment in 2000. Because of its long history of congruence with special education requirements for students who have disabilities, gifted education in Pennsylvania has always had, and retains to this day, most of the elements associated with special education law, both federal and state, for students with disabilities.  In Pennsylvania, students who are gifted are entitled to child find, multidisciplinary evaluations, individualized education plans (GIEPs) with most of the same bells and whistles as are required in IEPs, and procedural safeguards, including inter alia prior written notice and impartial due process hearings.

GIEPs must be based on gifted multidisciplinary evaluations. No single test may be used to determine giftedness, and a gifted multidisciplinary evaluation must be “sufficient in scope and depth to investigate information relevant to the student’s suspected giftedness, including academic functioning, learning strengths and needs.”  The tests and evaluations used must be administered by certified school psychologists as part of a multidisciplinary team.  The gifted multidisciplinary team must prepare a written report of the student’s educational needs and strengths, make recommendations “as to whether the student is gifted and in need of specially designed instruction, indicate the basis for those recommendations, [and] include recommendations for the student’s programming…”

The GIEP is “a written plan describing the education to be provided to a gifted student.”  The GIEP, based on the multidisciplinary team’s written report and developed within 30 calendar days of the report’s issuance, must contain:

1. A statement of the student’s present levels of educational performance.
2. A statement of annual goals and short-term learning outcomes which are responsive to the learning needs identified in the evaluation report.
3. A statement of the specially designed instruction and support services to be provided to the student.  For a student with a disability identified as eligible under 34 CFR 300.8 (relating to child with a disability), this would include accommodations and modifications in accordance with 34 CFR 300.320(a)(4)(relating to definitions of individualized education program).
4. Projected dates for initiation, anticipated frequency, location and anticipated duration of gifted education.
5. Appropriate objective criteria, assessment procedures and timelines for determining, on at least an annual basis, whether the goals and learning outcomes are being achieved.
6. The names and positions of GIEP team participants and the date of the meeting.

Additionally, the GIEP team must determine “whether the gifted student needs one or more supportive services.”  A student who is gifted is entitled to supportive services if one of the following criteria is met:

1. The service is an integral part of an educational objective of the student’s GIEP, without which the GIEP cannot be implemented.
2. The service is needed to ensure the student benefits from or gains access to a gifted education program.

What a student needs educationally is necessarily determined in reference to goals.  “The only reason a child needs certain programming is to accomplish certain educational objectives.  If those objectives are removed, these needs cease to exist.”  That tandem connection is no less pertinent to gifted cases than to disability cases:  without appropriate and well-defined goals, it is impossible to identify necessary services.

The relatively few cases at the administrative and court levels fault GIEPs that are “cookie-cutter” or otherwise not sufficiently individualized to the needs of the student.  In In re the Educational Assignment of M.G., the administrative Hearing Officer held, and the Appellate Panel affirmed, that the GIEPs were “sparse” and failed to contain substantive information and prescription for progress.  The following goals were held to be insufficiently individualized and inadequate:  “to participate in the Seminar Program for science”, “exploration of a project in the area of science and technology, with mentoring”, “obtain Honor Roll status for a marking period”, “Must complete graduation project- prepare for U. of Pa.”, and “Achieve previous goal- Graduate High School and attend U. of Pa. or other school- Major in Engineering.” 

Goals which were neither “individualized nor capable of being achieved” failed to pass muster in In re the Educational Assignment of D.D. Based on an outdated evaluation report, the annual goals in the GIEP were “1. To help the student monitor his educational progress effectively; 2. To help the student develop and refine communication skills; 3. To develop and refine research skills; 4. To develop and refine higher level thinking skills; 5. To develop and refine creativity.”  Compensatory education of three hours per day was awarded.

The failure of a district to provide adequate current levels testing of a student, and the resulting failure to provide appropriate baselines, coupled with its failure to list any annual goals but rather to include only specially designed instruction, led to an award of compensatory education in In re the Educational Assignment of A.H. See also Special Education Hearing Decision re:  R.M.

In In re: the Educational Assignment of Z.S., the Appellate Panel rejected the appropriateness of a “one size fits all” gifted program not tailored to the student’s particular needs and abilities (an annual goal of “participating in honors/seminar classes” and an objective of “completing work in a timely fashion”).  Failure to provide goals in areas of identified gifted achievement doomed the GIEP in Special Education Hearing Decision re:  S.R.

Gifted education and GIEP goals must, like IEP goals for students with disabilities, be “reasonably calculated to yield meaningful educational benefit and student progress.”  Perennially, one of the most difficult questions in writing appropriate GIEPs is determining what quantum of benefit and progress would be “meaningful”.  In making that determination, the analogy of GIEPs to IEPs for students with disabilities breaks down.  For students functioning below grade level, almost certainly improvement to the point of functioning at grade level is meaningful.  For students who by definition require more challenging or more advanced content than is provided in the standard grade curriculum, above grade level functioning is the baseline.  We expect that a student without disabilities (and most students with disabilities) will make a year’s worth of progress in a school year.  For gifted students whose rates of acquisition and retention of material are often higher than average, is a reasonable expectation more than a year’s progress over baseline in a year? What is the concrete criterion?

When the sky is the limit, how do you limit the sky?