Politicians 'fooled' by special ed bill, claims lawsuit

JEFFERSON CITY, Mo. -- Lawmakers were "fooled" into supporting the repeal of a 30-year-old state law that required Missouri school districts to provide special educational services sufficient to maximize the abilities of disabled students, a lawsuit challenging the constitutionality of the statutory change contends.

The revision, which was approved in 2002, dropped the high -- but rarely followed -- state standard in favor of a lower federal requirement that schools must simply offer services beneficial to special education students.

State Sen. Bill Foster, R-Poplar Bluff, handled the bill in the upper chamber and added the amendment at issue in the lawsuit. Foster said there was no attempt at legislative chicanery.

"It wasn't a secret amendment," Foster said. "I explained it, and I am convinced everyone in the Senate knew what they were voting for."

Foster said he assumes members of the House of Representatives were equally aware of the bill's provisions.

The bill cleared the Senate 27-2 and was sent to Gov. Bob Holden following a 146-1 House vote during the final week of the legislative session.

However, Michael Finkelstein, managing attorney for the Missouri Protection and Advocacy Services of Jefferson City, noted that within three days 66 state representatives who voted for the bill signed a petition urging the governor to veto it. Finkelstein said the implication was some lawmakers weren't aware of the Senate changes.

"It hasn't been lawfully legislated," Finkelstein said. "The facts show it was done by trickery and deceit."

Finkelstein's agency is a federally funded public watchdog group that monitors compliance with special education laws. It brought the case against the Missouri State Board of Education on behalf of Ian McEuen, a Boone County student with disabilities.

Cole County Circuit Court Judge Thomas J. Brown III upheld the bill in November. The case was appealed to the Missouri Supreme Court, which will hear arguments Sept. 3.

The lawsuit challenges the constitutionality of the process by which the bill was passed rather than the validity of the measure's contents.

The Missouri Constitution forbids enactment of legislation that contains provisions exceeding the scope of the original bill or that aren't reflected in the measure's title. The intent is to avoid deception.

As originally approved by the House, the bill simply sought to limit the extent of judicial review in disputes over a disabled student's individual education plan. Foster's Senate floor substitute added language repealing the maximization standard.

The Senate change exceeded the intent of the House version, Finkelstein said.

Nixon's opinion

In his legal brief filed on behalf of the State Board of Education, Attorney General Jay Nixon said there were no constitutional problems in how the bill was passed and that the plaintiffs are seeking to overturn a legitimate policy change with which they disagree.

"The authority of the reviewing court is to interpret statutes, not make them," Nixon wrote. "However, that is precisely what appellants are asking of this court under the guise of this challenge."

A Department of Elementary and Secondary education official said that although the maximization standard had been on the books since 1973, it was ill-defined and schools instead followed the clearer federal law that was enacted in 1975. However, a 2001 state appeals court ruling said schools had to comply with the state law.

Melodie Friedebach, DESE's assistant commissioner for special education, said Foster's bill simply maintained what in practice had been the status quo.

If districts had been forced to comply with the old law, it could have proved overly costly, Foster said.

"We definitely want to educate every student to the best we can afford," Foster said. "But the word 'maximize' doesn't give you any parameters, any limits."

Finkelstein said the repeal of that standard shortchanges students with disabilities.

"It is a dumbing down to minimal standards," Finkelstein said.

The case is Ian McEuen and Missouri Protection and Advocacy Services v. Missouri State Board of Education and Missouri Department of Elementary and Secondary Education.

mpowers@semissourian.com

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