Counterpoint: IDEA'S LRE Mandate: Another Look

Abstract

Our purpose in writing the article on the legal implications of the least restrictive environment (LRE) mandate of the individuals with Disabilities Education Act (IDEA) was to begin a dialogue on the legal ramifications of the inclusion movement (Osborne & DiMattia, 1994). That is why we asked to have it placed in the Perspectives section of the journal. Judging from the response we have received thus far, we have succeeded (Courts Perched to Speed Schools' Inclusion Pace, 1994). Yell's (1995) well-written response to that article makes a valuable contribution to the dialogue we hoped to begin. He has done an excellent job of presenting an alternative point of view. We wish to stress that although we do not agree with most of his criticisms, we appreciate the time and effort he has taken to add to the debate. PERSUASION AND THE COURTS First, Yell (1995) is correct that our choice of words in our description of how courts operate was not accurate. As he indicated (p. 578-581), we should have said that a decision of one court may be persuasive in other jurisdictions, not that it will be persuasive. We were attempting to show that a court hearing a case of first impression in its jurisdiction will be influenced by decisions of courts in other jurisdictions on a similar issue. That court will consider the opinion of the prior court and, if it feels that the reasoning is sound, will be persuaded by it and will issue a similar ruling. However, a court is not bound by any decisions made by courts outside its jurisdiction. That is why the federal law is often interpreted differently in various parts of the country. The majority of Yell's response to our article deals with our interpretation of the most recent inclusion cases and the implications we have offered to the education community. We will confine ourselves to a few general comments. JUDICIAL ACTIVISM AND THE LRE Overall, Yell seems to think that we have stated our case in terms that are stronger than necessary. In particular, he objects to our use of the term judicial activism. We are not alarmists, and we are not trying to scare anyone. We feel that our basic premise, however, is valid: A trend toward judicially ordered inclusionary placements has begun. We agree that judges will not overturn the decisions of educators on placement matters if the educators have complied fully with the law as interpreted by the courts and have made those decisions in accordance with predominant educational theory. We also agree that in most of the cases where inclusionary placements have been ordered, the school districts in question did not follow proper procedure. However, we feel that the recent LRE decisions indicate that judges are placing greater importance on the least restrictive environment mandate and are not giving educators as much deference in this area as they had in earlier cases. This is not a point we can empirically prove; however, it is an opinion that is based on over 20 years of analyzing court opinions and legal trends. As we attempted to show in the Court Interpretations of the LRE Mandate section of our article, initially the LRE provision was relegated to secondary status by the courts. Early courts felt that it was more important for a child to receive an appropriate education, and the location where that education was provided was clearly of secondary concern. If educators felt that a segregated environment was necessary, these early courts generally deferred to their judgment without raising too many questions. The tone of the recent decisions, particularly Oberti v. Board of Education of the Borough of Clementon (1992, 1993) and Board of Education, Sacramento City Unified School District v. Holland (1992, 1994), is much different. These courts expected school districts to provide uncontroverted proof that placement in the general education environment was not feasible. These courts also did not give the LRE mandate secondary status when balanced against the provision of an appropriate education. …