and Constance Taylor, Partner
When a student is in an accelerated program for gifted and talented students, it is important to remember that qualification for advanced placement (“AP”) does not mean the student may not also qualify for special education or be identifiable as a person with a disability. When the topic of special education students in AP classes arises, there are two frequently asked questions that we will explore, below.
(1) When a parent requests a special education assessment of a student who is struggling in honors or AP classes, must the District assess, or can the District recommend that the student return to his or her general education non-AP classes?
The Individuals with Disabilities Education Act (“IDEA”) requires a local educational agency (“LEA”) to assess all areas of suspected disability and conduct an individualized education program (“IEP”) meeting within 60 days of receiving parental consent for the assessment. (Cal. Educ. Code §§ 56302, 56302.1(a).) When a gifted student’s parent requests a special education assessment, the District should employ assessment procedures in accordance with the IDEA. It is essential, especially when working with a gifted student, to be mindful not only of any academic deficits, or lack thereof, but to consider whether the student has a physical or mental impairment that may cause the student to require special education.
If it is determined the student is not eligible for special education and related services under the IDEA, or services under Section 504 of the Rehabilitation Act of 1973 (“Section 504”), the District should act as it typically would for a general education student who is not succeeding in AP classes including, if appropriate, a recommendation that the student return to his or her non-AP classes; that is, apply the District’s established eligibility criteria for enrollment in AP classes.
(2) What action may the District take in response to a parent’s request that a special education student who is struggling academically remain in his or her AP classes?
Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973 make clear that the District cannot exclude a student with a disability, solely on the basis of that disability, from the benefit of AP classes. However, a student with a disability must be otherwise qualified by possessing a demonstrated or potential ability that gives evidence of high performance capability and meeting all other District established eligibility criteria. Education Code section 52201 states “gifted and talented pupil” means “a pupil enrolled in a public elementary or secondary school … who is identified as possessing “demonstrated or potential abilities that give evidence of high performance capability … .” If a qualified student with a disability requires related aids and services to participate in an AP class or program, the District cannot deny that student the needed related aids and services.
In a December 26, 2007 letter entitled Access by Students with Disabilities to Accelerated Programs, the Office for Civil Rights (“OCR”) stated an educational agency’s refusal to allow qualified students with disabilities to participate in accelerated programs such as AP classes was inconsistent with the ADA and Section 504. The letter stated the practice of denying access to a qualified student based on disability or the fact that a student had an IEP or Section 504 plan was unlawful. However, OCR further stated there was nothing in Section 504 or the ADA that required a school to admit into AP classes students with disabilities who were not otherwise qualified. OCR stated a school may employ appropriate eligibility requirements or criteria to determine which students shall be admitted into AP classes, provided that students with disabilities are given the same opportunity to compete for the benefit of an AP class.
A review of District policies, school site policies, and current practices, including AP eligibility criteria, and well as consultation with legal counsel, are advisable to ensure policies and procedures for AP students with disabilities (or students suspected of having disabilities) conform with the IDEA and Section 504.