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My ADHD son is now 15 and in the 9th grade. He attends a school of choice in Florida. His school has higher academic standards than a normal public school and he has managed to survive until this year. Now he is being kicked out.

In second grade he scored a 128 on his IQ test and has always scored in the 87-96 percentile of the nation on his standardized tests. The school has admitted that he is smart enough to be at this public school, but he chooses not to do the work and that is the reason he has now failed 3 out of 7 classes. I have repeatedly stated that I wanted a 504 plan for my son and that has never been an option she has given us. For the past 3 years her only solution has been that “we should remove our son from this school and place him in a regular public school where the requirements would be less for him and they would be able to meet whatever needs he has.”

When the 504 plan was written, our input was requested with the understanding that the school could not modify his academic requirements. We have never asked that because we believe, as he does, that he can do the work and he needs the challenge to remain stimulated. Our suggestions were extra time on tests when needed, a set of all books and workbooks be kept at home. We offered to cover the cost of this and asked that his teachers either e-mail us daily, weekly or post upcoming assignments on their web site so we could keep him on track at home. The major cause of his failing grades are due to homework not being done or completed. Not one of our recommendations were implemented.

The solutions they gave are to remind him of assignments on the day they are due and review the late work policy of the class. Another solution they implemented was weekly progress reports to let us know what he did not do. This is not a solution if the teacher will not accept late work. They have told us that “he does not want to do the work because if he did then he would get his act together and just do it”. I have explained that the person responsible for identifying his needs and helping him has not done her job and that is partially responsible for his failure, but they do not care and now he must leave the school. They even took away his extra time on tests with the justification that the teachers felt he did not need it. Can they do this? Can they make him leave this school of his choice?

What can I do about this? Any help you can give me will be greatly appreciated. My husband and I are desperate to help him and can not do it alone. He has never been a problem student except where his ADHD is concerned (forgetful, looses homework, trouble completing tasks in a timely manor, etc.) and is now frustrated and beginning to show signs of depression over failing.

Thank you ,
A concerned parent

Dear Concerned Parent,
Your question, like several others addresses above, raises the issue of the rights of a child who is gifted but has a disability. It also raises the question of the interaction of special education with section 504 protections.

For information on the rights of a child who is gifted, see prior answers. With respect to the interaction of special education and Section 504, schools may not choose to use one law or the other law exclusively. Both the IDEA and Section 504 apply to all public schools. As such, if a child qualifies for either law, they are entitled to the protections of that law.

A school can not pigeon-hole a child into a particular disability category and limit the provision of services for accommodation based on the child’s disability category or the categorical nature of the program in which they have been placed. Thus, the child that has been labeled “other health impaired”, may be a starting place in determining which services and accommodations that the child has eligibility for, but should not limit the services or accommodations that the child receives.

All services and accommodations, under both special education and section 504, are supposed to be determined based on the individual and unique needs of the child, not based on the available program. Thus, for your purposes, the choice should not have to be to receive special education services or Section 504 services. Instead, it should be based on a determination of what would be best for the child’s needs under either of these laws.

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