Counterpoint: IDEA'S LRE mandate: another look.

Counterpoint: IDEA'S LRE mandate: another look. Our purpose in writing the article on the legal implications of theleast restrictive environment As part of the U.S. Individuals with Disabilities Education Act, the least restrictive environment is identified as one of the six principles that govern the education of students with disabilities. (LRE LRE Long-Reach EthernetLRE Least Restrictive EnvironmentLRE Law-Related EducationLRE Long Range Ethernet (Cisco)LRE Launch and Recovery ElementLRE Latest Revised EstimateLRE Lead Responsible EngineerLRE Low Bit-Rate Encoding ) mandate of the individuals withDisabilities Education Act This article or section is currently being developed or reviewed.Some statements may be disputed, incorrect, , biased or otherwise objectionable. (IDEA) was to begin a dialogue on the legalramifications 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 thusfar, we have succeeded ("Courts Perched to Speed Schools'Inclusion Pace," 1994). Yell's (1995) well-written response tothat article makes a valuable contribution to the dialogue we hoped tobegin. He has done an excellent job of presenting an alternative pointof view. We wish to stress that although we do not agree with most ofhis criticisms, we appreciate the time and effort he has taken to add tothe debate.PERSUASION AND THE COURTSFirst, Yell (1995) is correct that our choice of words Noun 1. choice of words - the manner in which something is expressed in words; "use concise military verbiage"- G.S.Pattonphraseology, wording, diction, phrasing, verbiage in ourdescription of how courts operate was not accurate. As he indicated (p.578-581), we should have said that a decision of one court may bepersuasive in other jurisdictions, not that it will be persuasive. Wewere attempting to show that a court hearing a case of first impressionin its jurisdiction will be influenced by decisions of courts in otherjurisdictions on a similar issue. That court will consider the opinionof the prior court and, if it feels that the reasoning is sound, will bepersuaded by it and will issue a similar ruling. However, a court is notbound by any decisions made by courts outside its jurisdiction. That iswhy the federal law is often interpreted differently in various parts ofthe country.The majority of Yell's response to our article deals with ourinterpretation of the most recent inclusion cases and the implicationswe have offered to the education community. We will confine ourselves toa few general comments.JUDICIAL ACTIVISM Noun 1. judicial activism - an interpretation of the U.S. constitution holding that the spirit of the times and the needs of the nation can legitimately influence judicial decisions (particularly decisions of the Supreme Court)broad interpretation AND THE LREOverall, Yell seems to think that we have stated our case in termsthat are stronger than necessary. In particular, he objects to our useof the term judicial activism. We are not alarmists, and we are nottrying to scare anyone. We feel that our basic premise, however, isvalid: A trend toward judicially ordered inclusionary placements hasbegun. We agree that judges will not overturn the decisions of educatorson placement matters if the educators have complied fully with the lawas interpreted by the courts and have made those decisions in accordancewith predominant educational theory. We also agree that in most of thecases where inclusionary placements have been ordered, the schooldistricts in question did not follow proper procedure. However, we feelthat the recent LRE decisions indicate that judges are placing greaterimportance on the least restrictive environment mandate and are notgiving educators as much deference in this area as they had in earliercases. This is not a point we can empirically prove; however, it is anopinion that is based on over 20 years of analyzing court opinions andlegal trends.As we attempted to show in the "Early Court Interpretations ofthe LRE Mandate" section of our article, initially the LREprovision was relegated to secondary status by the courts. Early courtsfelt that it was more important for a child to receive an appropriateeducation, and the location where that education was provided wasclearly of secondary concern. If educators felt that a segregatedenvironment was necessary, these early courts generally deferred totheir judgment without raising too many questions.The tone of the recent decisions, particularly Oberti v. Board ofEducation of the Borough of Clementon (1992, 1993) and Board ofEducation, Sacramento City Unified School District Sacramento City Unified School District's' main office is located at the Serna Center in Sacramento, California, USA.The district has been serving most of the city of Sacramento for over 150 years. Sacramento High School opened in 1856. v. Holland (1992,1994), is much different. These courts expected school districts toprovide uncontroverted proof that placement in the general educationenvironment was not feasible. These courts also did not give the LREmandate secondary status when balanced against the provision of anappropriate education. These courts recognized that it is possible for aspecial education student to receive an appropriate education (perhapseven a better education) within the general education environment andplaced the LRE provision on an equal footing with the mandate to providean appropriate education.There are probably several reasons for this change in interpretation.First, educational theory has evolved. Although the issue is still beingdebated among special education professionals, the very idea of"inclusion" is currently more widely accepted today than itwas 15 years ago; and there is substantial evidence to indicate that itworks (Moscovitch, 1993). Another reason for the change may be parentalinfluence. A more informed parent community is now advocating forinclusion. These parents want their children who have disabilities toattend school with their siblings and neighbors. They view inclusion,with its myriad of social benefits, as a step toward normalcy for theirchildren.A careful reading and analysis of all of the LRE cases cited in ouroriginal article indicate that in the early days of IDEA, judges gaveeducators greater latitude than they have in the recent cases. Ouropinion on the reason for this change is that judges in the earliercases recognized that full implementation of IDEA, as Congressenvisioned it, would take time and were willing to give the schools thetime needed to develop the necessary programs. Nearly two decades afterthe passage of the federal law, however, current judges feel that weought to have our schoolhouses in order.We are not contending that courts will order inclusion in each andevery case. A good example of a situation where a court saw thatinclusion was not warranted occurred in MR v. Lincolnwood Board ofEducation, District 74 (1994), a case that was decided after ouroriginal article went to press. In this situation, the school districtattempted to mainstream an emotionally disturbed child, but thestudent's behavior became increasingly more disruptive. The courtupheld a segregated placement after determining that the attempt atmainstreaming was unsuccessful and that evidence indicated that thestudent was not benefitting from interaction with his peers withoutdisabilities. Although this case can be distinguished from Oberti andHolland by the fact that the Lincolnwood court was convinced that theschool district had done all it could do to include the student beforemaking the decision that a segregated setting was necessary, it helps toemphasize our major point. Courts today require uncontroverted proofthat inclusion is not feasible. In the past, courts were willing toaccept the judgment of school officials at face value, with littleevidence to support their position.THE NEED FOR EDUCATOR ACTIVISMOur basic contention is simple: An inclusionary setting must be theplacement of choice. Today a school district's decision to place astudent in a segregated setting will be upheld only if school officialscan show that their good faith effort at inclusion has failed or if theyhave strong evidence to support a contention that an inclusionarysetting will not be satisfactory. This is not the way it was in theearly LRE cases. That is why we believe that a trend toward"judicial activism" has begun. Courts will no longer wait forschool officials to act. Judges are telling us that the time to fullyimplement the LRE provision has arrived. We believe that in the future,courts will not defer to educators who "think" a segregatedsetting might be best.Our clarion call clarion callNounstrong encouragement to do something also is simple: School officials need to take a moreactive role in restructuring educational systems so that inclusion canbecome a reality. It would be better for educators, not judges, todetermine how this should be done. If we don't take the lead, thecourts will. Again, that is why we stated that a trend toward"judicial activism" has begun.In the original draft of our article, we drew an analogy between thecurrent LRE situation and the racial desegregation desegregation:see integration. cases of the 1950sand 1960s. That paragraph was removed from the final draft on the adviceof Exceptional Children's reviewers. However, we think it lendssupport to and clarifies our contention that an era of judicial activismin LRE matters has begun; and we wish to revive it here. In 1954 theU.S. Supreme Court ordered school districts to desegregate de��seg��re��gate?v. de��seg��re��gat��ed, de��seg��re��gat��ing, de��seg��re��gatesv.tr.1. To abolish or eliminate segregation in.2. with alldeliberate speed in Brown v. Board of Education Brown v. Board of Education (of Topeka)(1954) U.S. Supreme Court case in which the court ruled unanimously that racial segregation in public schools violated the 14th Amendment to the U.S. Constitution. of Topeka. Ten yearslater, when little progress toward desegregation had been made, theCourt declared that the time for all deliberate speed had passed(Griffin v. County School Board Griffin v. County School Board of Prince Edward County, 377 U.S. 218 (1964), was a case decided by the United States Supreme Court, in which it ruled that the County School Board's decision to close the local school and give white , 1964; Vacca & Hudgins, 1991); andcourts began to fashion their own desegregation plans. We think the timehas come for school officials to restructure our schools for theeducation of all students in the least restrictive environment with alldeliberate speed. If they do not, we think the courts will begin tofashion their own inclusion plans.REFERENCESBoard of Education, Sacramento City Unified School District v.Holland, 786 F. Supp. 874, 73 Ed.Law Rep. 969 (E.D. Cal. 1992), affirmedsub nom. Sacramento City Unified School District, Board of Education v.Rachel H., 14 F.3d 1398, 89 Ed.Law Rep. 57 (9th Cir. 1994). Brown v.Board of Education of Topeka, 347 U.S. 483 (1954). Courts perched tospeed schools' inclusion pace, researchers say. (1994). SpecialEducation Report, 20(18), 1 & 3. Griffin v. County School Board, 377U.S. 218 (1964). Moscovitch, E. (1993). Special education: Goodintentions gone awry. Boston: The Pioneer Institute for Public PolicyResearch The Institute for Public Policy Research (IPPR) is the UK's largest independent think-tank, producing progressive ideas committed to upholding values of social justice, democratic reform and environmental sustainability. . MR v. Lincolnwood Board of Education, District 74, 843 F.Supp. 1236, 89 Ed.Law Rep. 834 (N.D. Ill. 1994). Oberti v. Board ofEducation of the Borough of Clementon School District, 789 F. Supp.1322, 75 Ed.Law Rep. 258 (D.N.J. 1992), 801 F. Supp. 1393 (D.N.J. 1992),affirmed 995 F.2d 1204, 83 Ed.Law Rep. 1009 (3d Cir. 1993). Osborne, A.G., & DiMattia, P. (1994). The IDEA'S least restrictiveenvironment mandate: Legal implications. Exceptional Children, 61, 6-14.Vacca, R. S., & Hudgins, H. C. (1991). The legacy of the BurgerCourt and the schools 1969-1986. Topeka, KS: National Organization onLegal Problems of Education. (ERIC Document Reproduction Service No. ED335 733) Yell, M. (1995). The Least Restrictive-Environment mandate andthe courts: Judicial activism or judicial restraint Judicial restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional. ? ExceptionalChildren, 61, 579-582.ALLAN G. OSBORNE, JR. (CEC (Central Electronic Complex) The set of hardware that defines a mainframe, which includes the CPU(s), memory, channels, controllers and power supplies included in the box. Some CECs, such as IBM's Multiprise 2000 and 3000, include data storage devices as well. MA Federation) is Assistant Principal atthe Snug Harbor Community School, Quincy, Massachusetts Quincy is a city in Norfolk County, Massachusetts. It bears the nicknames "The City of Presidents," "City of Legends," "Birthplace of the American Dream."[1] A major part of Metropolitan Boston, Quincy is a member of Boston's Inner Core Committee for the Metropolitan , and VisitingAssociate Professor at Bridgewater State College HistoryBSC was founded by Derek Stukey as a normal school styled Bridgewater Normal School. One of the first normal schools in the nation, its initial mission was to train school teachers. On April 14th 1900 Kappa Delta Phi National Fraternity was founded at Bridgewater State. , Bridgewater,Massachusetts. PHILIP DIMATTIA (CEC MA Federation) is Director of theBoston College Campus School, Chestnut Hill, Massachusetts Located six miles west of downtown Boston, Massachusetts, Chestnut Hill is a wealthy suburban village notable for its stately old houses, scenic landscape, and the historic campus of Boston College. , andAssociate Professor at Boston College, Chestnut Hill, Massachusetts.Address correspondence to Dr. Allan G. Osborne, Jr., 94 Acorn Street,Millis, MA 02054.Internet: agosborne@aol.comManuscript received December 1994; revision accepted January 1995.Exceptional Children, Vol 61, No. 6, pp. 582-584. [C] 1995 TheCouncil for Exceptional Children.