Special education protest heads to Supreme Court

JEFFERSON CITY, Mo. -- An advocate for disabled students on Wednesday urged the Missouri Supreme Court to invalidate legislation that, due to a last minute change allegedly unknown to many lawmakers, repealed a rarely followed state law requiring school districts to provide a higher level of special education services than mandated by federal law.

As originally approved by the House of Representatives, the disputed 2002 bill sought to limit the extent of judicial review when parents and school officials differ on the suitability of an individual education plan developed for a disabled student.

However, during the hectic final days of the legislative session, state Sen. Bill Foster, R-Poplar Bluff, introduced a substitute version that also repealed a 30-year-old statute instructing districts to provide services sufficient to maximize the abilities of disabled students.

During arguments before the Supreme Court, Michael Finkelstein, managing attorney for Missouri Protection and Advocacy Services, said Foster's addition wasn't compatible with the measure's original subject or clearly reflected in the bill's title, both violations of state constitutional provisions intended to guard against the deceptive passage of legislation.

When the bill returned to the House for a final action, Finkelstein said many representatives weren't aware of the change or the consequence of their votes.

"The legislature was repealing the policy of the state of Missouri that all children with special needs have their abilities maximized," Finkelstein said.

Finkelstein's agency is a federally funded public watchdog group that monitors compliance with special education laws. It challenged the legislation on behalf of Ian McEuen, a disabled student in Boone County.

A ruling in McEuen's favor would reinstate the higher standard. The court will issue an opinion at a later date.

Several judges asked questions skeptical of Finkelstein's claim. Judge Duane Benton noted the bill was just two pages long, not one of the textbook-sized measures that are common at the end of a session.

"Just the barest glance at that reveals what it's doing," Benton said.

The bill cleared the Senate 27-2 and 146-1 in the House. Within days of passage, however, 66 state representatives upset with how the measure was handled sent a letter to Gov. Bob Holden urging a veto. Holden signed the bill into law over those objections.

Foster has denied any intent to deceive his colleagues.

Defending the measure, assistant attorney general Curtis Thompson said that while Finkelstein represents a sympathetic constituency, his argument is insufficient to overturn a legitimate legislative action. Thompson said the fact that bill was changed late in the legislative process, a common practice, was irrelevant.

"There is no constitutional time limit on when an amendment has to be made," Thompson said.

Judge Laura Denvir Stith told Finkelstein the court has never previously weighed the point at which legislation is passed when determining validity.

"You are asking us to adopt a new doctrine or new standard of review for bills passed in the final week," Stith said.

Although the measure repealed an existing law, it had little practical effect. Since the state's old maximization standard wasn't defined, most districts had always adhered to the clearer federal standard that simply requires schools to provide disabled students with an appropriate education that yields a benefit.

Lawmakers dropped the higher requirement in response to a state appeals court ruling that said districts had to comply with the long-ignored maximization standard, which could have proved expensive.

Judge Richard B. Teitelman asked whether the court could accept Finkelstein's argument "without doing dramatic damage to the legislative process."

Finkelstein said it would fix a flaw in the process by ensuring lawmakers are aware of what they are voting for.

"It's pretty revolutionary to ask people to know what they're doing," Judge Michael A. Wolff quipped in response.

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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