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(1) Schools shall provide educational services to gifted and talented students that are commensurate to their needs, and foster a positive self-image.

(2) Each school shall comply with all federal and state laws and regulations addressing gifted education.

(3) Each school shall provide structured support and assistance to teachers in identifying and meeting diverse student needs, and shall provide a framework for considering a full range of alternatives for addressing student needs. SEE ADMINISTRATIVE CODE COMMITTEE OBJECTION THAT FOLLOWS: At its December 15, 1989, meeting, the Administrative Code Committee unanimously voted that this rule is invalid because it mandates a gifted and talented children program in each school district. Section 20-7-902 (1) , MCA, provides that "a school district may identify gifted and talented children and devise programs to serve them". The code section thus makes establishment of the program discretionary, at the choice of the school district. An administrative rule is invalid if it conflicts with a statute. See 2-4-305 (5) and (6) (a) , MCA. The committee, which has general legislative branch oversight over the adoption and application of administrative rules, has done extensive research into the validity of this rule and considered the matter at numerous committee meetings. This objection is authorized by, and is published pursuant to, 2-4-406 , MCA, which also provides that once the objection is published the agency that adopted the rule bears the burden, in any action challenging the legality of the rule, of proving that the rule or portion of the rule objected to was adopted in substantial compliance with sections 2-4-302 , 2-4-303 , and 2-4-305 , MCA. That section also provides that the court may award costs and reasonable attorney fees against the agency if the court finds that the agency failed to meet its burden of proof and that the rule was adopted in arbitrary and capricious disregard for the purposes of the statute that authorized the rule. The Administrative Code Committee's objection to the rule does not constitute a vote or opinion on the question of the desirability of gifted and talented children programs, but rather, an opinion solely on the issue of whether the rule violates the Montana Administrative Procedure Act found in Title 2, Chapter 4, of the Montana Code Annotated in that the rule makes mandatory what the Montana Code Annotated makes discretionary.

History: 20-2-114, MCA; IMP, 20-2-121, MCA; NEW, 1989 MAR p. 342, Eff. 7/1/89; AMD, 2000 MAR p. 3340, Eff. 12/8/00.

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