My daughter has ADHD and is highly intelligent. Her testing shows she is capable of performing at two levels above her current grade. She is in an average non-gifted class and is only getting B’s at grade level. She needs testing modifications and other services (pull-outs), but the school says that she does not qualify for these since she is doing well.
Does FAPE require that the school provide modifications and services so that she can achieve at her level of capability? Can you give me any cases that say this?
This is a frequent area of controversy between parents and schools. Under the IDEA 2004 amendments, the fact that a student is receiving passing grades does not by itself mean that the child is receiving FAPE. 34 CFR § 300.101(c). Further, under the new rules, the school must address the child’s functional and developmental progress. 34 CFR § 300.304 (b)(1).
In addition, although the criteria for evaluating LD are not directly applicable in relation to qualification or level of services for a child with ADHD, the new LD diagnostic criteria includes assessing whether a student demonstrates patterns of strengths and weaknesses in relation to their own intellectual potential. 34 CFR § 300.309 (a)(2)(ii). This supports an agreement by analogy that the same should be true for a gifted student with ADHD.
Finally, although there are no federal interpretations subsequent to the IDEA 2004 amendments, a prior U.S. Department of Education Policy letter indicated that a child’s eligibility should be assessed in relation to their own potential, not in comparison to other children.
Unfortunately, while your child might otherwise also qualify for accommodations under Section 504, the U.S. Supreme Court Toyota case (Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 122 S. Ct. 681 (2002)) suggests that under the ADA and 504, a person must be impaired in comparison to the general population.
A subsequent contrary view was adopted by the U.S. District Court for the District of Columbia, which indicated that a medical student’s level of functioning should be assessed in comparison to other medical students, rather than the general population Singh v. George Washington University, 368 F.Supp. 2d 58 (2005). This would tend to support a right to accommodations for your daughter.