Legal Mailbag – 3-17-22

By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Mailbag Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagatcasciacdotorg.

Dear Legal Mailbag:

I am blessed to be an elementary principal in a town where “all the children are above average,” just like Lake Wobegon. The challenge this week is the parent who has repeatedly asked that her “brilliant” daughter who just turned four be admitted to kindergarten this fall. She doesn’t want to delay her daughter’s admission to Princeton by the extra year.

I have explained to this parent that, to be admitted to kindergarten this fall, her child must turn five on or before next January 1, and her daughter will miss that cut-off by over two months. But that requirement has not dissuaded this parent. She has even asked that we formally identify her as gifted so that she will get special assignments and not be bored with the instruction provided to the “regular” kindergarten kids.

I started out being supportive and gentle, but when she asked for the fourth time yesterday, I was exasperated, and I told her that “no” is my final answer. Today, she emailed me to ask how she can appeal my decision. Can she?

An Average Joe


Dear Average:

You are correct in your understanding of the law. Connecticut General Statutes, Section 10-15c, provides that a child must turn five years old on or before January 1 following the beginning of the school year to be eligible for free school privileges. But there is more to the statute, and you are not the ultimate decision-maker here.

In relevant part, Section 10-15c provides:

The public schools shall be open to all children five years of age and over who reach age five on or before the first day of January of any school year, . . . provided boards of education may, by vote at a meeting duly called, admit to any school children under five years of age.

Thus, your Board of Education can admit this child to school in the fall. But this ambitious parent has two problems in making such a request.

First, while boards of education have the authority to admit children under five years of age, they have no obligation to consider such requests. In other words, this parent can ask, but the Board of Education is not required to admit the child to school early, or even to consider the request formally.

Second, such requests may only be granted by a board of education at a public meeting. While the identity of the child would be kept confidential, a board’s vote admitting a child early is perforce public. Boards of education may be concerned that a vote granting one child early admission to school may invite other parents to make similar requests, especially in a town like Lake Wobegon

Legal Mailbag also notes that the parent has asked that her child be identified as “gifted.” Given that the daughter is not even in school, that request is premature. However, once the daughter is admitted to school, the parent does have the right to request an evaluation to determine whether her daughter is gifted.

In Connecticut, the definition of “children requiring special education” includes not only children with disabilities, but also students who are gifted or talented, i.e. children who have “extraordinary learning ability or outstanding talent in the creative arts, the development of which requires programs or services beyond the level of those ordinarily provided in regular school programs but which may be provided through special education as part of the public school program.” Conn. Gen. Stat. § 10-76a(5). Since children requiring special education must be identified, procedures must be in place for the identification of gifted and talented children. The special education regulations in Connecticut clarify that the PPT personnel responsible for the identification and evaluation of gifted and talented children is “a group of certified or licensed professionals who represent each of the teaching, administrative and pupil personnel staffs, and who participate equally in the decision making process.” Regs. Conn. State Agencies § 10-76a-1(14). These regulations further clarify that only students in grades kindergarten through twelve enrolled in the public schools are entitled to be identified and evaluated to determine eligibility for gifted and talented services. Regs. Conn. State Agencies § 10-76d-1(b).

Since 2019, school districts have been required to provide electronic notification to parents when a child is identified as gifted or talented, which must include the following information:

  • an explanation of how such student was identified as gifted and talented, and
  • the contact information for (A) the employee of the school district in charge of the provision of services to gifted and talented students, or, if there is no such employee, the employee of the school district in charge of the provision of special education and related services, (B) the employee at the Department of Education who has been designated as responsible for providing information and assistance to boards of education and parents or guardians of students related to gifted and talented students, pursuant to section 10-3e, and (C) any associations in the state that provide support to gifted and talented students.

Conn. Gen. Stat. Section 10-76xx.

Moreover, as required by Section 2 of Public Act No. 21-199, no later than July 1, 2022, boards of education must adopt a policy for the equitable identification of gifted and talented students, which policy must require the use of multiple methods of identification of gifted and talented students that are in compliance with guidance provided by the State Department of Education.

Finally, parents can even challenge a decision not to identify a student as gifted or talented through a due process hearing. Regs. Conn. State Agencies § 10-76d-9(c)(2). However, while school districts may establish programs for gifted and talented students, they are not required to provide services to identified gifted and talented students (as compared to identified children with disabilities, who are entitled to services). See Conn. Gen. Stat. § 10-76d(c). When parents challenged this distinction on equal protection grounds some years ago, the Connecticut Supreme Court upheld this distinction. See Broadley v. Meriden Board of Education, 229 Conn. 1 (1994). Accordingly, gifted and talented students are simply entitled to participate in programs for such students as school districts may establish.