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A Civil Rights Action for Gifted Children

by Wenda Sheard

Because Leila Levi's son walked at five months, read high school level books in two languages at age five, and enrolled in college at age seven, she never had the traditional experience of raising a baby. But during the past year she's been nurturing a "baby" that may radically change our legal perceptions of gifted children.

Levi's new baby is an age discrimination complaint she filed on August 19, 1999, with the U.S. Department of Education's Office for Civil Rights. In the complaint, she outlined discrimination her son has suffered at the hands of the California Department of Education, the Los Angeles Unified School District, and Santa Monica Community College.

After losing a special education battle with the school district over a proposed independent educational plan (IEP) for her son, Levi looked through laws in an attempt to discover where gifted children fit in the legal and educational picture. After much searching, Levi concluded that because our educational system is based on age, educational discrimination against gifted children must also be based on age.

Levi, who is a teacher by training, peppered her civil rights complaint with educational information. In an effort to guide the Office for Civil Rights into the gifted arena, Levi cited works by Leta Hollingworth, June Maker, Linda Silverman, Alexinia Baldwin, and Ken Seeley.

The premise behind Levi's complaint is that her son and other similarly situated gifted children are denied appropriate educational services due to their chronological age. Of two children both functioning on a tenth grade level, the child who is chronologically age fifteen or sixteen receives appropriate services but the child who is chronologically younger than fifteen or sixteen does not.

Many of us have heard that states forbid children under a certain age to take the GED and thus qualify for college entrance without a high school diploma. California Education Code Section 51429 states that the Superintendent of Public Instruction can issue a high school equivalency certificate to a person who has not completed high school only if that person is at least eighteen years old.

Many of us have heard comments from school district officials that although a fifth grade child is functioning years above grade level, the child's age requires that the child remain in fifth grade. School officials continue to insist on placement according to chronological age despite solid research backing the acceleration of gifted children.

Some colleges refuse to admit young gifted children based on their chronological age. In Levi's case, Santa Monica Community College forbid her son from taking more than six credit hours per term. The college announced the six credit hour limit after Levi's son had successfully completed two years at the college. Levi notes that although administration officials at the college have placed roadblocks in front of her son, professors at the college have been wonderful.

In addition to alleging age discrimination, the complaint alleges discrimination under PL 94-142 (IDEA) because some gifted children's disabilities are masked and/or ignored when those children work at or above grade level. Disabilities which prevent a child from learning at a level and pace appropriate for the child's mental age should be addressed regardless of whether a discrepancy exists between the child's mental and chronological ages.

On November 24, 1999, the U.S. Department of Education Office for Civil Rights issued a decision finding Levi's claims against Santa Monica Community College (Docket Number 09-99-2308) and the Los Angeles Unified School District (Docket Number 09-99-1422) to be complete. Because the federal Age Discrimination Act requires the Office for Civil Rights to forward any complete age discrimination claims to the Federal Mediation and Conciliation Service (FMCS) for a sixty day period of mediation, the Office forwarded Levi's action to the FMCS.

The FMCS has attempted to mediate the age discrimination claims in Levi's complaint. So far, Levi and attorneys from the Office of Civil Rights have met with representatives from Santa Monica College but the Los Angeles Unified School District refused mediation. At this juncture, it appears that mediation is not possible, and a federal lawsuit will be filed by the Office for Civil Rights on behalf of Levi's son and similarly situated children.

What's the good news here? First, it appears that neither the college nor the school district will challenge the factual basis of the allegations in Levi's complaint. Both appear to concede that Levi accurately recited the facts in her complaint. Second, and more importantly from the point of view of all gifted children, the farther up Levi's case proceeds on the legal ladder, the bigger the win for all gifted children.

In the November 24, 1999 decision, the U.S. Department of Education Office for Civil Rights also dismissed Levi's age discrimination claims against the California Department of Education. The Office noted that 34 C.F.R. Section 110.2(b)(1), a regulation implementing the federal Age Discrimination Act, states that the age discrimination regulations do not apply to "criteria for participation in age-related terms" established by federal, state, or local law adopted by an "elected, general purpose legislative body."

Thus, because the California state legislature has established age eighteen as a minimum age for the award of a high school equivalency certificate, Levi's son, who turned nine years old in October, must wait nine more years for such a certificate even though he is a college student. Go figure.

In the dismissal of the California Department of Education from Levi's civil rights action lies two important lessons for gifted advocates. First, when lobbying state legislatures for improvements in gifted education, request a simple, common-sense, global provision prohibiting discrimination against gifted children on the basis of their chronological age. Ask legislators, who are often reluctant to vote for a potentially costly gifted mandate, instead to vote for a presumably cost-free provision prohibiting age discrimination against gifted children.

Second, be alert to any proposed federal, state, or local laws that might establish criteria for participation in age-related terms. Although age-related criteria might be rational when applied to the vast majority of children, age-related criteria simply do not apply to many gifted children. If you see an age-related criterion coming down the legislative pike, rally your gifted forces. Give legislators testimony about the absurd results that age-related criteria have inflicted on gifted children. Lobby for exceptions for gifted children. After all, gifted children are by definition exceptional.

What does Levi's son think of the civil rights action and all his mother's struggles? He says, "It's kind of funny that this whole thing started because she got too tired of fighting and just wanted to sit down and be Mommy. She's always reminded me of Rosa Parks."

It's ironic that in the process of denying Levi's son an appropriate education, administrators at Santa Monica Community College and the Los Angeles Unified School District are providing him with a crash course in real-life age discrimination, civil rights actions, media relations, and legal procedures. And he's learning quickly.

Postscript: After the United States Supreme Court decided Kimel v. Florida Board of Regents on January 11, 2000, the United States Department of Education's Office for Civil Rights told Levi that the Kimel decision will have no effect on the age discrimination portions of her civil rights action. In Kimel, the court held that the 1967 Age Discrimination in Employment Act exceeded Congress' authority. The age discrimination portions of Levi's action involve the 1975 Age Discrimination Act, which prohibits age discrimination in programs and activities operated by recipients of federal financial assistance.

Links:

United States Department of Education, Office for Civil Rights:
www.ed.gov/offices/OCR/

Kimel v. Florida Board of Regents:
supct.law.cornell.edu/supct/html/98-791.ZS.html

A website describing one of Leila Levi's gifted advocacy efforts in Los Angeles:
www.highlygifted.org/

OCR Update: On March 27, 2000, OCR dismissed Levi's complaint against the Los Angeles Unified School District. Although in its earlier decisions OCR apparently understood that the age discrimination portions of Levi's complaint arose because the school district used her son's chronological age to deny him appropriate services, in the March 27, 2000 decision OCR missed this critical point. OCR wrote: "The complainant contends that the district has not offered the student services necessary to meet his special needs based on his superior intelligence, but nothing in AgeDA requires the District to provide such services."

Levi strongly denies OCR's allegation that during a telephone interview she admitted "she no longer alleges that the district, because of the student's age, is preventing the student from taking courses which are appropriate to his ability level."

With regard to the portions of Levi's complaint relating to disabilities, OCR wrote, "Generally, OCR does not make determinations regarding the appropriateness of the identification, evaluation, or placement of students with disabilities, but investigates only alleged violations of the procedures set out in these regulations." OCR found no evidence that the school district had violated IDEA or Section 504 procedures.

On April 28, 2000, OCR dismissed Levi's complaint against Santa Monica Community College. In the complaint, Levi alleged that due to her son's age, the college would not permit him to enroll in more than six credit hours per term. When ruling on the complaint, OCR noted that "AgeDA regulations do not apply to an age distinction contained in that part of a federal, state, or local statute or ordinance adopted by an elected, general purpose legislative body that establishes criteria for participation in age-related terms. 34 C.F.R. Section 110.2(b)(1)(ii)."

What was Levi's reaction to the OCR decisions? "I don't really think of the decisions as a loss. Yes, I felt badly and cried a lot, but I take that energy and try to use it constructively."

Wenda Sheard is a mother of three gifted children, an Ohio-licensed attorney (inactive), and a doctoral student at the University of North Texas. wsheard@home.com She thanks Leila Levi for her assistance with this article.

Copyright © 2000
Gifted advocacy groups may freely reproduce, publish, and disseminate this article.