Schools often struggle when asked to evaluate or accommodate a high-achieving student who may also have a disability. In some cases, the student is what is known as “twice exceptional” or “2e,” which is a student with a disability who also exhibits high academic aptitude. In other rare cases, the student or their parents may be among those who reportedly seek accommodations not to address a disability, but to get ahead in the rat race of honors and AP classes, college entrance exams, competitive college admissions, and other challenges that face today’s high school students. How do you tell the difference between 2e students and students whose parents are exhibiting what we will call “accommodation-seeking behaviors”? What kinds of accommodations are required for students with disabilities who are nonetheless high achieving? For those of you who will be attending IAASE in Springfield this week, you can join Dana Fattore Crumley and Nicki Bazer for their session, Twice Bitten, Once Shy: Accommodating High Achieving Students Under IDEA and Section 504, on Thursday, February 21 at 10:15 a.m. For a sneak-peak on this interesting topic, keep reading!
So, what makes a student twice exceptional? A student is 2e if the student has outstanding intellectual ability or talent (i.e., is “gifted”) and has a disability that confers eligibility under the Individuals with Disabilities Education Act (IDEA) or Section 504 of the Rehabilitation Act of 1963 (Section 504).
Twice-exceptional students are probably the most difficult cases to identify without deep investigation. . . . [T]eachers of twice-exceptional students might notice they are disengaged from lessons, appearing distracted, disorganized, or even unmotivated to complete work. But teachers can feel unsure how to help these students who need modifications or accommodations because they are exceeding grade-level expectations in certain tasks or subject areas.
Indeed, one of the biggest mistakes we see school staff make with respect to 2e students is to assume that because a student is making good grades or excelling in some areas, the student cannot be disabled. As with any other student, if a student has a disability that requires special education or related services, the student is eligible under IDEA. And if the student has a disability that substantially limits a major life activity and warrants accommodations or modifications in the school environment, the student is eligible under Section 504. Good grades or test scores may be one piece of data considered during an evaluation, but the fact that a student excels academically cannot close the door to eligibility.
How do you distinguish between a 2e student and a student (or student’s parent) who is improperly seeking accommodations without a true disability? Here are a few keys:
- A well-planned, well-executed, and comprehensive evaluation is the first step.
- Focus on tools to identify discrepancies in performance in areas that might not manifest in a student’s grades or test scores.
- Look for changes in performance over time and see if there are any ties to a disability that explain them.
- Include an educator who is trained or who works regularly with gifted students on the evaluation team, as well as any teachers who can shed light on a student’s performance in any outlier subject.
Remember that with Section 504, the bar for eligibility is relatively low; if the student has a disability that substantially limits a major life activity, the student is eligible. With 504, the meat of the analysis for students will often follow the evaluation process, when the team asks what, if any, accommodations or modifications the student needs.
What Accommodations/Modifications are Required?
If a high-achieving student identified as eligible under IDEA or 504 seeks an academic accommodation or modification, are there limits to what must be provided? As a quick reminder, an accommodation changes how a student learns material. A modification changes what the student learns. These terms are often confusing and are often used interchangeably despite their different meanings. If you would like more clarity on the distinctions, join Franczek attorney Jackie Wernz in her upcoming LRP webinar on the issue in March. Regardless of what the changes are called, however, a student must receive the special education, services, and accommodations/modifications that the student’s team determines are necessary.
A common question we receive is whether a school can have an outright ban on accommodations or modifications in honors or AP classes. Students with disabilities can just attend a non-honors course, either with or without accommodations and modifications, right? Wrong. The Department of Education’s Office for Civil Rights (OCR) has found that denying enrollment in an honors or AP course based on disability alone is illegal discrimination. Students cannot be required to leave their 504 plans or IEPs at the door of such classes, either; they must be allowed to use accommodations and modifications required by their plans on the same terms as in other classes.
So, what are those terms? There are limits to the types of accommodations and modifications that must be made to a course under Section 504 or the IDEA. Specifically, if an accommodation or modification would fundamentally alter the nature of the course, it may not be required. As noted above, a blanket decision that any accommodation or modification to an honors or AP class would be a fundamental alteration would not likely pass muster. However, in at least some cases, school district denials of student requests for less homework in high-level classes and programs have been upheld by courts and OCR because they would fundamentally alter the nature of the class or program. The analysis of these issues can be complicated, so it’s always advisable to work with legal counsel when you receive such requests. Moreover, the team should be ready with alternatives to any requested accommodations or modifications prior to any determination that a request would cause a fundamental change.