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Expert Q&A

What are the legal rights of a gifted child with non-verbal learning disabilities?

My son has NLD. The school doesn’t recognize this and will not make any accommodations to help him. He is in the gifted program, but isn’t “acting” the way they think he should (focus issues). So now the school wants to move him into a regular classroom without any additional resources (since they don’t recognize NLD.) How do we get them to recognize this and get the help we need?


Dear Betsy,

Your question raises two separate concerns regarding, first, the unwillingness of your district to recognize your son’s non-verbal learning disability, and second, the unwillingness of the school to continue to serve your son in an accelerated or gifted program because he is performing adequately from an academic standpoint, although he is not functioning well in other ways.

IDEA and the special education labeling system do not explicitly list every clinical or medical disorder that may constitute a disability and adversely affect a child’s ability to successfully perform at school. The nature of non-verbal learning disabilities are such that the child may clinically meet the criteria for the diagnosis of a non-verbal learning disability, but not satisfy the educational criteria for one of the thirteen categories for disability.

However, it is worth exploring further whether or not your child does in fact meet the criteria for one or more of the categories of special education eligibility, based on a more careful review of his records and a more thoughtful analysis of the potential categories where he might be eligible.

First, a child with a non-verbal learning disability generally has deficits with respect to visual perception and non-verbal thinking skills. Some of these deficits may manifest themselves in relation to explicit learning disabilities which meet the criteria for specific learning disability. Often, children with non-verbal learning disabilities have deficits in math and written expression which may be documented through more careful analysis of the existing test data or more in depth testing in relation to areas of academic functioning in which the student has relative weaknesses.

Second, a student with non-verbal learning disabilities often has deficits in social perception and interaction. These may meet criteria for eligibility under the emotionally disturbed category or under the speech and language category with respect to deficits in pragmatic language. With respect to the potential areas of eligibility described above, caution should be used with respect to the use of the emotionally disturbed category, as this may lead to misinterpretation or assumptions about the students difficulties or a tendency to group the student with other students with very different emotional or behavioral problems, which would be inadvisable for a student with a non-verbal learning disability.

With respect to your son’s need for accelerated or gifted services, the lack of focus itself may indicate itself a disability which could qualify him for special education or 504 eligibility. In addition, a recent advisory letter from the U.S. Department of Education affirms that the fact that a student is bright and capable of functioning in upper level classes, but is unable to consistently meet the standards of those classes due to their disability, is not by itself justification for removing the child from those classes to put them in easier classes. Instead, consideration of the provision of accommodations or supports in the upper level classes should also be made.

The U.S. Department of Education Office for Civil Rights letter was issued on December 26, 2007. In that policy letter, the Department made several statements that were relevant to your question. First, the Department expressly stated “the practice of denying, on the basis of disability, a qualified student with a disability the opportunity to participate in an accelerated program violates both section 504 and Title II. Discrimination prohibited by these laws…”

Under Section 504 and Title II, “a recipient may not utilize criteria or methods of administration that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability… A public entity also may not impose or imply eligibility criteria to screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully or equally enjoying any service, program or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.”

The OCR statement also indicates, “in general, condition and participation in accelerated classes or programs by qualified students with disabilities on the basis of forfeiture of necessary special education or related aides and services amounts to a denial of FAPE under both part B of the IDEA and Section 504… Participation by a student with a disability in an accelerated class or program generally would be considered part of regular education or the regular classes referenced in the Section 504 and the IDEA regulations. Thus, if a qualified student with a disability requires related aides and services to participate in a regular education class or program, the school can not deny that student the related aides and/or services in an accelerated class or program.”

“For example, if the student’s IEP or plan under section 504 provides for Braille materials in order to participate in the program, and she enrolls in an advanced history class, then she also must receive Braille materials in that class. In the same, it would be true for other needed aides or services, such as extended time on tests, or the use of computers to take notes.”

In addition, although your student may not qualify for eligibility under the special education system, they may qualify for eligibility for accommodations under Section 504 which contains a broader basis for eligibility. Under Section 504, the student is eligible for accommodations if they have any physical or mental impairment which substantially limits a major life activity, including learning. Thus, section 504 is not dependent on the student satisfying a particular disability category contained within the IDEA, such as a specific learning disability.

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