The Courts, the Office of Civil Rights, and Gifted Programming

What Have We Learned?

by Carolyn M. Callahan

click here for the PDF version of this article

gavelOver the course of the past three years a number of school districts have been in the position of responding to the U. S. Office of Civil Rights. These districts have been involved with investigations, lawsuits and/or negotiations in response to charges of discrimination relative to the process of identifying gifted students or the types of programs offered to gifted students.

My involvement as a consultant to these school districts has informed my thinking about the ways school personnel should reflect on their practices and conduct themselves to minimize the distress which naturally accompanies such matters and to maximize the benefits to students from under-represented populations of gifted students. Moreover, these experiences have informed my thinking about the ways in which practices in gifted education are reflected to the public in general and to those in historically underrepresented populations in particular. Please be advised that the observations and suggestions I offer that stem from my experience with these cases are not “legal advice” nor are they to be interpreted as any censure of the efforts that well-meaning school personnel have made to create programs that balance equity and excellence.

Expertise is critical. My first observation is that many school districts do not have the expertise on their staff to evaluate their own efforts to create equitable programs.  When the numbers do not “add up” according to the perceptions of those outside of the school system, school personnel often do not have clear parameters to use as guidelines to judge themselves or to respond to these concerns. The Office of Civil Rights does not offer a specific directive on “how large” the discrepancy between the numbers of a given subgroup identified and served gifted students and the numbers of that group in the general school populations constitutes “discrimination.” Is any difference a cause for concern? Does it take a statistical difference to raise a cause for concern? The schools are left without a clear sense of the size of difference that will instigate an investigation or a lawsuit. No one has a clear answer, but as a general guideline any difference warrants careful self-examination, and that examination is going to be most informative if the district can use an impartial, non-invested, impartial expert with expertise.

Impartial, non-invested expert. While the exhortation is to use an impartial expert, that person is very hard –maybe impossible — to come by. But as a general rule the expert should have little or no vested interest in any finding. The expert who stands to benefit by involvement in the assessment of the situation, the expert who has a test to sell to solve any problem that might be uncovered, or the expert who always takes a stand that schools are “at fault” or always takes a stand that what schools do “is defensible” should be avoided.

A good offense is not defensive. Those who are in the positions of leadership in gifted programs often quickly assume the stance of being “on the defensive” when charges are leveled at the gifted program in their schools. Charges that are leveled are easily interpreted as personal. That is, those who have been involved in the development or implementation of a program feel as if they are being labeled as elitist, as insensitive, or worse, as racist. The response is then to circle the wagons and shut out those who raise the questions rather than opening up hearts and minds so that full consideration can be given to the degree to which demands efforts they may (or may not) have made to create equitable programs suffice in light of current theory, practice and law. When defensive, the danger is that full disclosure is more difficult and openness to change is less likely.

Our professional language is jargon to those in the outside world who judge our behaviors and actions. Further, much of our language carries elitist overtones. For example, we talk of  “higher” level thinking skills, “more advanced” content,  “more complex concepts,” etc.  Use of this language, when perceived as reflecting a better or higher quality education, will naturally evoke concerns about the ways in which decisions are made to offer such opportunities to only white, more privileged students.

Good intentions do not suffice. Sometimes, when issues of potential under-representation are recognized, the actions taken have the appearance of a sincere attempt to address the problem, but the results are disappointing.  While change may begin with good intentions, the proof of the pudding is in the actual change that comes about when those with good intentions are able to make a difference. The changes in identification procedures that are cosmetic and based on the adoption of invalid and/or unreliable instruments or processes may identify more minorities but not provide the services and the scaffolding necessary for success in the curriculum offered. Cosmetic changes or short-term, but limited, changes may temporarily bring about an easing of concerns, but like the results when a patient fails to take a full term of prescribed medication for strep throat, the long term consequences will be more severe than if the problem had been fully addressed.

What Can Be Done

communityCommunity involvement before there are issues is a prophylactic step that can be invaluable to avoiding the investigations and lawsuit. First, reflect on the community and allow the community to reflect on practice. Every gifted program should have an established means of soliciting input from key stakeholders about policies, practices, and outcomes of policy and practices.  While many gifted programs do have advisory groups, those groups are often only representative of the program and parents of current students. Expand the group to include thoughtful representatives of traditionally under-represented groups, to include administrators and teachers who have both considerable experience in the school system and with community issues, and to include some individuals from the community who are reflective and reasonable sounding boards for new ideas and approaches to solving problems.

Listen—really listen. Most often, the signs that there may be problems with either identification or programming for minority students and/or students of poverty are evident long before a crisis arises. If you have an effective, engaged and fully representative advisory board they can bring such issues forward. But as noted above, if the response is defensive rather than proactive  the results will not be effective.

Examine representation of all subgroups on a regular basis. School communities change very rapidly in the current environment and schools and school districts can rapidly change the proportions of minorities, ethnic groups, ESL students, and poverty levels over the course of a very few years. If a school district continues with the same policies and practices in identifying and serving gifted students it may find itself with a disproportionate number of students form one or groups of students. A regular process for reviewing data on both identification and retention of minority and high poverty students will likely prevent later issues.

2013-03-14_GEC_burnell_0262Create talent development programs. One of the underlying issues in the development of talent is opportunity to learn. We all acknowledge that the environments and the experiences of children of poverty are not the same, but in gifted education we too often look to the general education program to address the discrepancies in experiences and to assume full responsibility for addressing the effects of different experiences on children’s readiness to respond to typical school learning experiences and to items on many of our assessment tools. Rather, we should be establishing programs that ensure that all students have exposure to questioning that requires sophisticated and complex thinking, to content that through culturally relevant examples provides students with more advanced knowledge, understanding, and skills, and to curriculum that develops independence of thinking and productivity.

Integrate scaffolding into all curriculum offered to gifted students identified by alternative strategies. The lack of opportunity to learn noted above may mean that students who enter gifted program options lack specific knowledge or skills to be successful, resulting in frustration, and sometimes, unnecessary failure and exiting from the program. Through careful assessment and instructional planning these students can be provided the background for success.

Seek to learn from others, but not as mimics. Many school districts have faced challenges to their programs. Some have successfully navigated a path to resolution using new identification and programming strategies that are valid and defensible. Some have not been so successful. The key is finding reliable and valid assessments and in instituting sound educational interventions that are responsive to the context of the your school district, which may or may not be the same as others. Carefully implementing an assessment of what fits or does not fit your school district is critical.

Finally, evaluate, all program policies and implementation strategies. What are the outcomes of changes made? What worked and what did not work? Why? Not everything will turn out exactly as we expected, but when good faith efforts are assessed and adjustments made on the basis of evaluation data, those persons responsible for judging the effectiveness of the school district in addressing potential inequities are going to be much more favorable in their views of district practice.

Click to return to the GEC Winter 2015 Table of Contents