by Michael Kaelber, Esq., Coordinator of Continuing Legal Education and Research, LEGAL ONE
In February 2025, the New Jersey Department of Education issued its updated Strengthening Gifted and Talented Multilingual Learner Identification guidance document. The document was developed by the NJDOE Strengthening Gifted and Talented Education Advisory Committee and gifted multilingual learner experts in partnership with the New Jersey Department of Education.
The guidance was an update of the original November 2018 guidance document, which was necessitated by the 2023 revisions to the Bilingual Education administrative code, N.J.A.C. 6A:15. The original document was created as the result of a legislative enactment, P.L. 2017, c. 171, codified at N.J.S.A. 18A:35-6.1, which required the Commissioner of Education to develop guidance on identifying English language learners (ELL) for gifted and talented programs. The legislative goal was to assist school districts in identifying K-12 ELL (now multilingual learners; MLs) students who are gifted and talented, match them with programs that will help them achieve in accordance with their full capabilities and provide guidelines on appropriate identification methods that may reduce the underrepresentation of ELL students in G&T programs.
Legal Obligation to Identify and Support Gifted Multilingual Learners
Historically, MLs have been significantly under-represented and gifted and talented education programs. For example, based on data from the Fall 2022 NJSMART report, MLs represent 8.9% of the overall New Jersey student population but make up only 1.7% of the total New Jersey gifted and talented population. This failure to identify gifted and talented MLs raises serious legal concerns.
Under federal and state law, school districts have a legal obligation to ensure meaningful participation of MLs in the district’s educational program, including equitable access to gifted education programs. The U.S. Department of Education Office for Civil Rights in its January 7, 2015, Dear Colleague Letter indicated that under Title VI of the Civil Rights Act of 1964, MLs cannot be excluded from G&T programs due to their lack of English proficiency. Further guidance in Ensuring Meaningful Participation in Advanced Coursework and Specialized Programs for Students Who Are English Language Learners is available through the U.S. Department of Education Office for Civil Rights. Similarly, under the New Jersey Law Against Discrimination, school districts must ensure that gifted MLs are identified and supported to the same extent that other gifted learners are supported.
New Jersey has further signaled its support for equal access to gifted education through adoption of the Strengthening Gifted and Talented Education Act (SGTEA) P.L. 2020, c.338. That law requires that “School districts shall ensure equal access to a continuum of gifted and talented education services. The identification process shall include consideration of all students, including those who are English language learners and those with Individualized Education Plans or 504 plans.” The law defines gifted and talented students as “students who possess or demonstrate high levels of ability in one or more content areas when compared to their chronological peers in the local school district and who require modifications of their educational program if they are to achieve in accordance with their capabilities.” See N.J.S.A. 18A:35-35 and N.J.A.C. 6A:8-1.3. For a deeper discussion of the SGTEA, see the article Addressing Accountability, Transparency, and Equity in Implementation of Gifted and Talented Education Requirements.
The Strengthening Gifted and Talented Multilingual Learner Identification Document – An Overview
The NJDOE guidance document provides tools to assist districts in implementing an ongoing identification process for gifted and talented multilingual learners in kindergarten through grade 12. Although the document focuses on multilingual learners, many of the research-based practices discussed can apply to all learners who are identified as gifted and talented (G&T).
The population in K-12 schools across the United States has become increasingly more diverse in recent years. Data show that multilingual learners (MLs) are the fastest growing population in today’s public school system (National Center for Education Statistics, 2024). Statistics show that the percentage of New Jersey students identified as MLs is steadily increasing (NJDOE 2022-2023 School Performance Report). While the population of MLs has increased significantly, they remain significantly underrepresented in G & T programs.
Why Are Multilingual Learners Underrepresented in Gifted Programs?
The NJDOE guidance document identifies many of the reasons that multilingual learners are underrepresented in G&T programs. The reasons include:
- MLs often have special talents valued within their own cultures; talents or behaviors that are not historically recognized as characteristic of G&T students in the United States.
- Identification measures can limit access for MLs due to these factors:
- Standardized tests for identification are often administered in English, not the native language of the ML.
- An overreliance on achievement measures for identification rather than assessing aptitude.
- Many assessments used to identify giftedness are not normed on MLs.
- Cultural and linguistic competencies are not considered when selecting identification instruments or procedures.
- Lack of fluency in English is often mistakenly equated with a lack of higher order and critical thinking skills.
- Criteria for selecting gifted students may over-rely on objective versus subjective measures.
- Intelligence quotient (IQ) and standardized tests performance are often the sole factors in determining giftedness.
- MLs may be required to meet the minimal scores on multiple subject area assessments. For example, if a student scores at the highest ranges on the nonverbal or quantitative subtest of an aptitude assessment, some school districts will also require the student to score at advanced levels in all other subtests to qualify for services. MLs, like all gifted learners, may not be advanced in all subject areas.
- Reliance on referrals from parents, guardians, and/or teachers for gifted services may place MLs at a disadvantage. Caregivers may not be aware of the school district referral window timeline due to language barriers. Teachers also may not recognize the potential and ability of MLs due to language barriers.
- Teachers who are untrained on the characteristics of gifted learners, and specifically gifted MLs, often fail to recognize the potential in learners who may not be well behaved “good students.” Additionally, ingrained cultural biases and adherence to deficit thinking may limit teachers’ ability to recognize gifted abilities in MLs.
- The guidance document provides three pages of tables of the characteristics of gifted MLs and strategies for educators and strategizing for more effectively identifying gifted MLs that readers are encouraged to review carefully.
The guidance document provides three pages of tables of the characteristics of gifted MLs and strategies for educators and strategizing for more effectively identifying gifted MLs that readers are encouraged to review carefully. Included below are excerpts from one of those pages, to illustrate some of the reasons gifted and talented MLs may not be identified.
As the guidance document discusses in great detail, the challenges to identify gifted MLs may include a lack of district assessments in the native language of students, biases in standardized testing, limited access to advanced programs, and a lack of professional learning for educators to recognize and nurture giftedness in diverse students.
How Can We Ensure That Identification of MLs for Gifted and Talented Programs Is Equitable?
The NJDOE guidance document provides detailed recommendations that can help to ensure equitable identification of MLs for G&T programs and services. These recommendations can support districts in developing more inclusive identification practices in the following phases: the referral process, the data collection with multiple measures process, and the match students to services process.
Equitable Identification of Gifted MLs: The Referral Process
For example, the guidance identifies the following strategies to enhance your district’s referral process:
- Use multiple referral sources including teachers, caregivers, universal screening test scores, and student and/or peer referrals.
- No one referral source should ever be the only referral source.
- Use universal screening (ability and achievement measures) to allow students to demonstrate performance and potential, particularly to identify students who otherwise are not referred by teachers or caregivers.
- Train teachers, who are asked to refer students for G&T, in recognizing the behaviors, characteristics, and traits of gifted learners.
- Invite ESL teachers and other special-area teachers to refer students for gifted services.
- Avoid relying solely on caregiver or teacher referrals because these referrals can be influenced by biases and subjective opinions.
- Use non-verbal aptitude measures as universal screeners to demonstrate potential and allow MLs who are not referred by caregivers or teachers the opportunity to be considered for gifted services.
- Train teachers to understand that MLs might demonstrate giftedness in ways different from peers, and to recognize behaviors that might indicate gifted abilities beyond language proficiency.
- Communicate and publish identification information and referral procedures in relevant multiple languages on the district’s website for parents and caregivers.
The document also outlines detailed recommendations related to the use of multiple measures to more effectively identify gifted MLs, how to effectively match ML students with specific G & T services, how to evaluate the identification process, and key considerations for professional learning for teachers.
Conclusion
The recently revised Strengthening Gifted and Talented Multilingual Learner Identification guidance document is a terrific resource for educators. Along with the recommendations set forth in this article, the guidance contains a number of excellent resources that can assist school districts and their educators in identifying and providing gifted services to multilingual learners, a growing population in New Jersey that has traditionally been underserved in the gifted and talented community. By embracing the recommendations in the guidance document, school districts can meet their legal obligation to ensure equal access to gifted and talented education programs and services for all multilingual learners.