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A Pathfinder on
Legal Aspects of Gifted Education
In New Jersey
INFO 681 – Prof. Edwin Greenlee
Mary Gardner
December 7, 2009
TABLE OF CONTENTS
INTRODUCTION 3
DISCUSSION 3
NEW JERSEY RESOURCES 6
Constitutional Provisions 6
Statutes 7
Regulations 8
Executive Orders 13
Case Law 13
FEDERAL RESOURCES 16
Statutes 16
LAW REVIEW/LEGAL PERIODICAL ARTICLES 17
INTERDISCIPLINARY PERIODICAL ARTICLES 18
ALR ANNOTATIONS AND LEGAL ENCYCLOPEDIA ARTICLES 19
MONOGRAPHS 19
INTERNET RESOURCES 20
Informational Sites 20
Internet Discussion Sites/Blogs 23
ASSOCIATIONS 23
INTRODUCTION
This pathfinder on the law of gifted education in New Jersey is intended for parents of gifted children who wish to learn more about their rights and options in New Jersey’s public school system, as well as anyone who is interested in advocacy in this area. The pathfinder may also be useful as a starting point for additional research for attorneys with no background in gifted education law.
A gifted student may possess an additional status – such as disability or membership in a protected class – that entitles the student to educational services or accommodations under New Jersey or federal constitutional or statutory provisions. While some resources listed in this pathfinder touch on these additional statuses, the focus of the pathfinder is on legal rights arising solely from a student’s gifted status. As there are no federal laws that create or protect a right to gifted education, this pathfinder focuses on New Jersey law.
The text of applicable constitutional, statutory, and regulatory provisions are included verbatim where possible. Longer provisions have been shortened and/or paraphrased. Many of the included provisions are self-explanatory; some are followed by a short statement explaining their significance.
Where there is no Search Process listed, it means that I was already aware of that resource prior to my research for this pathfinder.
DISCUSSION
The New Jersey state constitution mandates the provision of a “thorough and efficient” free public education to all New Jersey children between the ages of five and eighteen years. Article 8, section 4, paragraph 1 of the state constitution authorizes the state legislature to pass laws to establish and maintain a public school system. Statutes passed by the state legislature regarding education are compiled in Title 18A of the New Jersey Statutes (“N.J. Stat.”). The provisions of Title 18A, in turn, are implemented through regulations promulgated by the New Jersey State Board of Education. Education regulations are compiled in Title 6A of the New Jersey Administrative Code (“N.J. Admin. Code”).
Most regulations regarding gifted education are found in Chapter 8 of Title 6A – Standards and Assessment for Student Achievement. Chapter 8 sets forth the regulatory requirements for public school curricula in the form of the New Jersey Core Curriculum Content Standards (“CCCS”). According to the New Jersey State Board of Education website (see the Internet Resources – Informational Sites section below), the CCCS “describe what students should know and be able to do upon completion of a thirteen-year public education and provide local school districts with clear and specific benchmarks for student achievement in nine content areas.” The nine content areas are: Visual and Performing Arts; Comprehensive Health and Physical Education; Language Arts Literacy; Mathematics; Science; Social Studies; World Languages; Technological Literacy; and Career Education and Consumer, Family and Life Skills.
Subchapter 3 of Title 6A governs local school district implementation of the CCCS. Section 1(a) of subchapter 3 mandates that “[d]istrict boards of education shall ensure that curriculum and instruction are designed and delivered in such a way that all students are able to demonstrate the knowledge and skills specified by the Core Curriculum Content Standards” and must ensure that “appropriate instructional adaptations” are designed and delivered for students who are gifted and talented. N.J. Admin. Code § 6A:8-1.3 (Definitions) defines “’gifted and talented students” as “those students who possess or demonstrate high levels of ability, in one or more content areas, when compared to their chronological peers in the local school district and who require modifications of their educational program if they are to achieve in accordance with their capabilities.”
N.J. Admin. Code § 6A:8-3.1(a)5 is the heart of the regulatory mandate to provide gifted education in New Jersey public schools. This section specifies that district boards of education “shall be responsible for identifying gifted and talented students and shall provide them with appropriate instructional adaptations and services.” District boards of educations must establish ongoing K-12 identification processes for gifted students that include multiple measures of giftedness. “Appropriate instructional adaptations and services” should include content, process, products, and learning environment. Districts are to “take into consideration” the PreK – Grade 12 Gifted Program Standards of the National Organization of Gifted Children in developing programs for gifted and talented students.
Under N.J. Admin. Code § 6A:8-3.1(a)1, the State Board of Education is responsible for providing district boards of education with “support materials that suggest a variety of activities and strategies that may assist in the development of local curricula aligned with the [CCCS].” Accordingly, Curriculum Frameworks were put together in each of the nine CCCS content areas to guide the development of curriculum in accordance with the CCCS (see New Jersey State Department of Education Curriculum Frameworks web page in the Internet Resources – Informational Sites section below). Frameworks in most of the content areas specifically address modifications to the curriculum for gifted students, including Language Arts, Science, Social Studies, and World Languages.
N.J. Admin. Code §6A:30 outlines the New Jersey Quality Single Accountability Continuum (“NJQSAC”) system, under which all New Jersey public schools are evaluated and monitored on a three year cycle. Each school district completes a District Performance Review - a self assessment that measures the district’s compliance with performance indicators in each of five areas of effectiveness. Under the Instruction and Program key area, districts are rated on their compliance with the certain requirements regarding gifted education including the presence of a gifted and talented program at all grade levels; the use of multiple measures to identify gifted and talented students; and the provision of appropriate educational services for gifted and talented students, including adaptations in content, product, process, and learning environment.
While district boards of education are accountable under the NJQSAC system for providing “appropriate instructional adaptations and services,” local school districts are given great latitude under the regulations to decide exactly what type of gifted education services are “appropriate” and which students are to receive these services. Parents who wish to dispute local school district decisions regarding the provision of gifted and talented programs should consult the New Jersey Department of Education website “NJ Parents – Law and Policy Page (see the Internet Resources – Informational Sites section below). The “Resolving Disagreements” section suggests several avenues for resolving disputes at the local or county level. If these efforts are unsuccessful, a petition for an administrative hearing may be filed with the Commissioner of Education.
N.J. Stat. §18A:6-9 (Jurisdiction over Controversies and Disputes under School Law Not Relating to Higher Education and Rules of the Commissioner and State Board) and N.J. Admin. Code § 6A:2-1.2(a) (Powers and Duties) give the Commissioner of Education jurisdiction over disputes arising under the school laws (excepting those governing higher education) or under the rules of the state board or of the commissioner. N.J. Admin. Code §§ 6A:3-1.1 to 3-1.17 (Controversies and Disputes General Provisions) outline the administrative hearing procedures to be followed. Determinations of the Commissioner are deemed final agency actions and may be appealed to the Appellate Division of the Superior Court. There have been relatively few administrative or judicial decisions regarding any aspect of gifted education in New Jersey. Challenges of school districts’ decisions regarding entry into, or the administration, structure, or content of, gifted and talented programs have generally been decided in favor of the school district (see the Case Law section below).
Although New Jersey mandates that local school districts provide appropriate educational services to gifted and talented children, the state provides no funding for gifted and talented programs – one of only four states to both mandate gifted education but fail to provide funding, according to the Davidson Institute for Talent Development Gifted Education Policies web page (see the Internet Resources – Informational Sites section below).
Federal law is mostly silent on the subject of gifted education. The United States Constitution contains no guarantees to any public education, leaving the area to the states to regulate. The only significant federal statute currently in effect dealing with gifted education is the Jacob K. Javits Gifted and Talented Students Education Act of 2001 (20 U.S.C.A. § 7253 (2009)) (see Federal Resources – Statutes section below). This statute was readopted in 2001 as part of the No Child Left Behind Act. While the Javits act provides a minimal level of funding for various aspects of gifted education, it does not create or protect any right to gifted education.
Occasionally, plaintiffs have attempted to claim a right to gifted education under federal civil rights statutes such as the Individuals with Disabilities Education Act (“IDEA”). While these cases are outside the scope of this pathfinder, a brief discussion of some of the cases can be found in the American Law Reports article “Special Education Requirements of Gifted Students” (see ALR Annotations and Legal Encyclopedia Articles section below). These suits have so far been unsuccessful, with courts ruling that a student's gifted status alone is not enough to entitle the student to educational accommodations under federal law.
Several articles appearing in both legal and non-legal periodicals in recent years contain extensive discussions of the law of gifted education (see Law Review/Legal Periodicals and Interdisciplinary Periodicals sections below). Recent law review articles have tended to focus on the effect of the federal No Child Left Behind Act on state gifted and talented programs. Perry A. Zirkel has been a particularly prolific author in the area of gifted education law. Professor Zirkel is a member of the faculty of the Lehigh University College of Education, who holds both a Master’s of Law degree from Yale and a Juris Doctor degree from the University of Connecticut.
The Internet is a fruitful source of information for anyone seeking to learn more about the law of gifted education in New Jersey (see the Internet Resources section below). The website of the New Jersey Department of Education is a particularly valuable, containing links to both current and proposed educational regulations, the New Jersey Core Curriculum Content Standards, Frequently Asked Questions about Gifted and Talented Services, and much more. The websites for both the New Jersey Association for Gifted Children and the National Association for Gifted Children also contain much useful information.
NEW JERSEY RESOURCES
Constitutional Provisions
Currency: Updated through amendments adopted in November, 2008
N.J. Const. Art. VIII, § 4, ¶ 1
“The Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years.”
Search Process: I accessed this provision at the official website of the New Jersey State Legislature: http://www.njleg.state.nj.us/lawsconstitution/constitution.asp
I found this site using Google with search string “New Jersey state constitution”>.
Statutes
Currency: These statutes are current with laws effective through P.L.2009, c. 143 and J.R. No. 10.
N.J. Stat. Ann. §18A:6-9 (West 2009) Jurisdiction over Controversies and Disputes under School Law Not Relating to Higher Education and Rules of the Commissioner and State Board
“The commissioner [of education] shall have jurisdiction to hear and determine, without cost to the parties, all controversies and disputes arising under the school laws, excepting those governing higher education, or under the rules of the state board or of the commissioner. For the purposes of this Title, controversies and disputes concerning the conduct of school elections shall not be deemed to arise under the school laws.”
This statute empowers the Commissioner of Education to hear all disputes arising under the education laws of New Jersey. The administrative procedures to be followed are outlined in N.J. Admin. Code §§ 6A:3-1.1 to 1.17 (see Regulations section below).
Search Process: This statute is cited in footnote 238, p. 120 of Zirkel, The Law on Gifted Education (2005) (see Monographs section below).
N.J. Stat. Ann. §18A:6-71 (West 2009) Establishment and Operation of Centers
“That the Commissioner of Education and the State Board of Education shall have the authority and responsibility under this act to plan for, establish, and operate a State-wide system of educational centers for research and demonstration. These centers, in voluntary co-operation with local school districts, shall concentrate upon the development, testing, and installation of ideas and procedures to solve major educational problems facing the State; including but not limited to reading levels of low-income children, early childhood development, the gifted student and the effective utilization of new materials and equipment, educational technology, and patterns of school organization.”
Search Process: This statute is cited in footnote 232, p. 120 of Zirkel, The Law on Gifted Education (2005) (see Monographs section below).
N.J. Stat. Ann. §§ 18A:7A Public School Education Act of 1975 (West 2009)
These provisions mandate evaluation of school districts every three years on their compliance with educational regulations, including those requiring the provision of appropriate educational programs for gifted students. The regulations governing the review process are set forth set forth in N.J. Admin. Code §6A:30 Evaluation of the Performance of School District (see Regulations section below). The review process is called the New Jersey Quality Single Accountability Continuum (NJQSAC).
Search Process: I found this provision mentioned on the New Jersey Department of Education website.
N.J. Stat. Ann. §§ 18A:35-4.16 (West 2009) Chess Instruction for Second-Grade Pupils in Gifted and Talented and Special Education Programs
“Each board of education may offer instruction in chess during the second grade for pupils in gifted and talented and special education programs. The Department of Education may establish guidelines to be used by boards of education which offer chess instruction in those programs.”