I. INTRODUCTION II. LEGISLATIVE HISTORY OF GIFTED EDUCATION A. Federal Legislation B. State Laws III. LITIGATION INVOLVING GIFTED STUDENTS IV. MCFADDEN V. BOARD OF EDUCATION FOR ILLINOIS SCHOOL DISTRICT U-46 A. Standing B. Student Assignment Plan C. English Language Learners D. Gifted Program V. DISCUSSION A. Recruitment Issues B. Recommendations for Practice VI. CONCLUSION

I. INTRODUCTION

The educational rights of the estimated one to five million children in the United States who are gifted and talented is an issue of enduring significance for all who are interested in schooling, but especially for students of color who are disproportionately under-represented in such programs. (3) As important as this issue is, the status of the rights of gifted students remains a topic that has received scant attention in academic law reviews. (4)

On the one hand, the United States has endeavored to make major, if imperfect, strides in providing equal educational opportunities for minority students following Brown v. Board of Education, (5) Using Brown as the impetus, the federal government subsequently addressed the rights of children from economically disadvantaged backgrounds under the Elementary and Secondary Education Act of 1965, presently incorporated in the No Child Left Behind Act (NCLB). (6) The federal government then aimed to prevent sex discrimination in education under Title IX of the Education Amendments of 1972. (7) Finally, the rights of students with disabilities received significant and far-reaching protection under the 1975 enactment of the Education for All Handicapped Children's Act, now known as the Individuals with Disabilities Education Act (IDEA). (8)

Surprisingly, though, little has been done under federal or state laws to ensure the educational rights of the 6.7% of American students, regardless of race, who are identified as gifted, a rate that has remained consistent in recent years. (9) Interestingly, these data, from 2004 and 2006, are the most current on students who are gifted, a tacit indication of the neglect they face in American schools.

Thirty years ago the authors of A Nation at Risk observed that "[o]ver half of the population of gifted students do not match their tested ability with comparable achievement in school." (10) The authors of this report observed that "most gifted students, for example, may need a curriculum enriched and accelerated beyond the needs of other students of high ability." (11) Sadly, educational leaders and lawmakers have yet to take adequate steps to meet the needs of gifted children, especially insofar as many of these students become bored, drop out, or do not reach their full potential because they are not sufficiently challenged by existing programming. (12) The upshot is that the educational needs of children who are gifted and talented, especially those from two racial and ethnic groups, are neglected with the result that they have been left behind in terms of being identified and served equitably.

In light of issues surrounding the educational needs of gifted students, mainly those who are under-represented in existing programs, the remainder of this article, which is divided into four substantive sections,...