William & Mary Law Review


Approximately 2 to 5 percent of the American student population qualifies as both gifted and learning disabled. These students, labeled by educators as “twice-exceptional,” generally demonstrate superior cognitive ability, yet also present profound weaknesses in seemingly basic skills. This disconnect in twice-exceptional students’ abilities produces great difficulties for America’s public schools.

Twice-exceptional students, as a result of their disability, can generally qualify for special education services under the federal Individuals with Disabilities Education Improvement Act of 2004 (IDEIA). Once a student qualifies for services under the IDEIA, he is entitled to receive a Free and Appropriate Public Education (FAPE). The IDEIA defines a FAPE as an education that is “provided at public expense ... meet[s] [state] standards ... [is] appropriate ... and [is] provided in conformity with [a student’s individualized education program].” Given the general nature of this statutory guidance, the courts have been largely responsible for determining what constitutes a FAPE. And, while the courts have created relatively clear standards, applying these standards to twice-exceptional students has proven problematic.

Consider the following case: Per Hovem is a twice-exceptional high school senior in the Klein Independent School District who qualifies for services under the IDEIA. He has superior cognitive ability, as shown through intelligence testing, and he makes aboveaverage grades in his general education courses. Yet, despite this, Per’s writing ability is subpar, falling around a second-grade level. In fact, Per and his teachers assert that he takes multiple hours to write paragraphs and fill out one-page forms. Despite these deficiencies, however, Per can read and comprehend at an ageappropriate level. Given Per’s mix of abilities, what supports should the Klein Independent School District provide in order to meet its obligation to provide Per with a FAPE? Would minor accommodations, such as extra time on written assignments, suffice? Or is the school district required to do more?

In making its decision in Per’s case, the Fifth Circuit applied the prevailing standard at the time, Board of Education of Hendrick Hudson Central School District v. Rowley, which held that a school district met its FAPE obligation when a student’s educational program was “reasonably calculated to enable the child to receive educational benefits.” Since Per advanced grade-to-grade in his general education courses, the Fifth Circuit held that minimal accommodations and services were enough to provide Per with a FAPE. Moreover, the Fifth Circuit refused to consider arguments that the school district failed to meet its FAPE requirements based on Per’s inability to meet his full academic potential.

The Fifth Circuit’s holding represented a typical decision under the Rowley standard. Nevertheless, many special education and disability advocates suggested that such results were problematic. These advocates claimed that the Rowley standard was too lenient, allowing school districts to satisfy FAPE requirements without fully addressing students’ needs. Thus, these advocates called for the creation of a more rigorous standard—one that would require school districts to do more for their disabled students.

Advocates’ pleas were seemingly answered when the Supreme Court handed down its 2017 decision in Endrew F. v. Douglas County School District RE-1.Though Endrew dealt with a “traditionally” disabled, non-twice-exceptional student, Endrew clarified the Rowley decision and, by most accounts, raised the FAPE standard by placing a greater emphasis on the student’s individual abilities. Specifically, Endrew held that a student’s educational program should be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Yet, despite advocates’ general belief that Endrew will raise the FAPE standard for disabled students as a whole, there is some evidence that the new standard will have only a slight impact on twice-exceptional students specifically.

To address this claim, this Note will proceed in three main parts. Part I describes the twice-exceptional student population in greater detail. In addition, this Part discusses education law generally, highlighting federal special education law, the FAPE standard, and gifted education. Part II explains why the Endrew decision may not impact twice-exceptional students to the same level it could affect non-gifted, disabled students. Part III then suggests that twice-exceptional students should receive greater protection. This Part argues that amending the IDEIA is unlikely to be successful. Additionally, it proposes that the states individually adopt Gifted Individualized Education Provisions to supplement students’ protection under the IDEIA and ensure that twice-exceptional students’ weaknesses and strengths are both appropriately considered.