New Glarus Parent Files Request for Summary Judgement On Behalf of Gifted Education in Wisconsin

State gifted education advocate and Madison attorney Todd Palmer recently filed a request for a judicial “summary judgement” in the matter of “Todd Palmer v. The State of Wisconsin Department of Public Instruction and Elizabeth Burmaster.” As he explained it to me in layperson’s terms, a summary judgment “is a procedure wherein a party (me) asks the judge to render a decision based on the record. I am essentially arguing that the factual issues here are undisputed, therefore the judge can render a decision without a trial. I have every expectation that this motion will decide all relevant issues (one way or the other) and therefore we will avoid a trial. The state (DPI) must respond to my motion on or before 12/1/06.” Todd expects a decision from Judge Nowakowski sometime in January, 2007.
The complete document has been posted on the Madison United for Academic Excellence (MUAE) website —
Here is the Introduction:

This case is about a state agency purposely ignoring statutory mandates that require educational opportunities to be provided to an entire class of underserved and at-risk children — specifically those labeled as “gifted and talented.”
At their core, the issues before this Court are straightforward: Can a state agency ignore a legislative directive to promulgate rules governing this underserved class of children? Alternatively, can a state agency unilaterally transfer this rulemaking responsibility to local units of government in contradiction of a clear legislative directive? The clear answer to both issues is no.

Here, these issues arise in the context of the Wisconsin Department of Public Instruction’s (“DPI”) failure — for nearly 20 years — to promulgate rules which implement and administer the gifted education mandates set forth in Wis. Stat. 118.35(2) and 121.02. In these two statutes, the Legislature clearly directed DPI to:
1) “BY RULE establish guidelines for the identification of gifted and talented pupils.” See Wis. Stat. 118.35(2).
2) “PROMULGATE RULES to implement and administer” the legislative mandate that each school board “provide access to an appropriate program for pupils identified as gifted or talented.” See Wis. Stat. 121.02(1)(t) and (5).
3) “PROMULGATE RULES to implement and administer” an auditing program to ensure that school boards are providing gifted students with access to appropriate programs. See Wis. Stat. 121.02(2) and (5).
To date, DPI has not promulgated rules meeting these directives. Instead, DPI has perpetuated a regulatory environment for nearly two decades whereby Wisconsin’s 426 school boards have had: (a) no rules for identifying the gifted children within their district which require specialized services; (b) no rules defining what specialilzed educational services must be provided to these students once identified; and (c) no rules defining how DPI will unilaterally audit school boards to ensure compliance with these gifted education mandates.
In the absence of these rules and DPI’s total abdication of its responsibilities, school districts have largely ignored their obligations owed to gifted children and many are openly planning to severely cut or altogether eliminate gifted programs in the future. This is a serious situation. Former State Superintendent of DPI, Herbert Grover, described the status of gifted education in Wisconsin as follows:
Research continues to show that, as a group, gifted and talented children are the most underserved pupils in public schools. Too often, these pupils are ignored, restricted, or underachieving and, if not part of the typical dropout statistics, have become in-school dropouts.

In order to educate yourself about the status of gifted education in Wisconsin, I encourage you to read the entire brief.
For additional background, here is the link to a previous entry about Todd’s March, 2006, lawsuit against the DPI:
Link to the DPI Gifted Education home page:

4 thoughts on “New Glarus Parent Files Request for Summary Judgement On Behalf of Gifted Education in Wisconsin”

  1. Laurie, out of purient curiosity, do you know how DPI (and/or MMSD for that matter) defines
    “Talented and Gifted Student”?

  2. From the DPI website:
    Pupils enrolled in public schools who give evidence of high performance capability in intellectual, creative, artistic, leadership, or specific academic areas and who need services or activities not ordinarily provided in a regular school program in order to fully develop such capabilities (from s. 118.35(1), Wis. Stats.).

  3. From the DPI website — the page entitled “Gifted and Talented – Definition of Terms”:
    Gifted and talented — Pupils enrolled in public schools who give evidence of high performance capability in intellectual, creative, artistic, leadership, or specific academic areas and who need services or activities not ordinarily provided in a regular school program in order to fully develop such capabilities (from s. 118.35(1), Wis. Stats.).
    The best I can offer from the MMSD website (Gifted and Talented section):
    The mission of the Madison Metropolitan School District is to ensure that every student has the knowledge and skills needed for academic achievement and a successful life. Among the beliefs underlying this mission is the belief that every child has the right to realize his/her full potential.
    The goal of Talented and Gifted (TAG) programming is to make certain that K-12 students can consistently access learning opportunities that are challenging, systematic and continuous based on learning profile, readiness and student interest.
    There is no such thing as a “typical” gifted child. Student learning experiences, therefore, must include a broad range of opportunities that provide students with the Next Level of Challenge (NLC) and allow them to develop their talents. TAG programming that provides the NLC should occur in the classroom through curricular differentiation. TAG Programming options may also be available in other settings.
    TAG programming is determined by ongoing evaluation and assessment of individual student needs. Classroom differentiation is documented using a Classroom Action Summary (CAS) which examines whether the learning needs of the student are being met. Each school has TAG resource support for ongoing consultation. This support includes professional development to implement differentiated practices in the classroom and facilitation of the Individualized Student Educational Plan (InStep) process.
    You see, David, this is exactly the problem Todd is hoping the court will address: no one has taken the responsibility for developing a meaningful, workable definition. The DPI has reneged on its legislated responsibilities (both to define and to audit the delivery of services). As well, the DPI has allowed districts like ours to get away with doing very little or nothing for its gifted students.
    The MMSD does not believe in any kind of identification or labeling (at the high end of the performance distribution). You will often hear administrators say that’s because “every child is talented and gifted.” That’s hog wash, of course. I believe as deeply as the next person that every child is a precious gift to this world and has areas of special strength and ability within their own overall profile of abilities. But if you think of truly exceptional ability — bona fide talent and giftedness — as being one-and-a-half or two standard deviations above the mean on the performance distribution, well, there just isn’t room for all children up there. Not even if you think of all of Gardener’s many forms of intelligence as completely independent from one another (which they’re probably not).
    BTW, one standard deviation above the mean is approximately the 84th percentile; 1.5 standard deviations above the mean is approximately the 91st-92nd percentile; and two standard deviations above the mean is approximately the 97th-98th percentile. In the education literature, it isn’t uncommon to find people talking about the top 10-15% of students as academically gifted and in need of special services (unless they are talking about the profoundly gifted).

  4. I hate politics, the consequences of which is often the opposite of what is desired.
    Personally, I think this lawsuit is poorly thought out. The political clout necessary to achieve appropriate success is not present.
    A worst-case scenario. The District Court rules in favor of Palmer on all issues. As a consequence, DPI promulgates a definition of “gifted” as being the profoundly gifted.
    The rule itself will be promulgated by a subset of influential superintendents (the public will not be invited), who, under financial pressure from the State, businesses, and taxpayers without children (or with children in private schools) and Fed pressure from the NCLB (which is focused on underachievement), will define “gifted” to limit their resource and financial exposure.
    Of course, the theoretical argument will be made that for the less than profoundly gifted, the regular school program is sufficient in order to fully develop these students’ capabilities (see Wis Stat 118.35(1)). “We have proof that hetergeneous classes do work and the lower 99% can be effectively instructed within our regular classrooms.”
    After such a rulemaking, electing responsive school board members will be irrelevant, and the filing of effective local legal causes of action against individual school boards for 1) not creating programs, 2) not creating programs with input from parents; 3) eliminating such programs; 4) not including top 15% in the “gifted” category will be foreclosed.
    Result, decreasing local control of education.
    Yes, the public does tend to last think of controlling the system locally, instead always gravitating to where there seems to be a softer spot which can be mined, usually those will more authority, and higher up the political food chain.
    The problem of course, is the higher up the chain of authority you go, the less these folks know and the less they care. They simply have no interest in the day-to-day success or failure of the system, and, if they care at all about the issues (except their political hides), their interests are strategic and long term, measured election-units or 5-year plans.
    As a parent or for those truly interested in children’s education, the timeframes are measured in “tomorrows”, “next semesters”, and “next years”.

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