In their article, The IDEA's Least Restrictive Environment Mandate: Legal Implications, Osborne and DiMattia (1994) have done a yeoman's job in reviewing the litigation concerning the least restrictive environment (LRE) mandate. The article was thoroughly researched and is very readable. I wish, however, to point out a small but crucial error in the author's interpretation of court authority and take issue with a critical contention of the authors regarding judicial activism in the recent LRE cases.
In their article, Osborne and DiMattia stated, "A court's decision is binding only within that jurisdiction; however, it will be persuasive in other jurisdictions" (p. 7). The first part of this statement is correct; the second part is not. A court's decision may be persuasive, but there is no certainty that it will be persuasive. Although the error seems rather small, it is crucial if we are to correctly understand the authority of court decisions. Persuasive authority comes from a source that is not controlling. For example, the Daniel R. R. v. Board of Education (5th Circuit, 1989) decision has proven to be very persuasive; it is a decision that is well reasoned. That is, courts that are not controlled by the Daniel decision (i.e., courts in other circuits) have chosen to follow it in arriving at their decisions. On the other hand, a case that was discussed by the authors, Roncker v. Walter (6th Circuit, 1993) has not proven to be persuasive. In fact, in the Daniel decision, the appeals court stated that they found the test used in Roncker to be too intrusive and did not follow it. In attempting to understand the LRE case law, therefore, we need to understand which decisions are controlling and which are persuasive--and that not all cases will be persuasive.
I also take issue with a critical contention made by the authors. This contention is that the courts have recently been taking a "more activist stance" (p. 6) in LRE litigation and that the courts may be "growing impatient with school officials for not having been more proactive in developing effective programs for students with disabilities in less restrictive environments" (p. 6). Clearly, current litigation has favored plaintiffs in actions against school districts; but to argue, as Osborne and DiMattia did, that this represents a "new era in LRE case law" (p. 6) represents an overreading of these cases. In legal teaching and research, people tend to exaggerate the importance of case law and underrate the importance of legislative law (see Cohen, Berring, & Olson, 1989). I believe that the authors have made such an exaggeration.
A NEW ERA OF JUDICIAL ACTVISM?
Do these cases represent "a new era of judicial activism in LRE cases" (p. 10)? This statement by Osborne and DiMattia (1994) seems representative of a contention the authors repeatedly made that the courts may be taking an activist position in ruling on LRE matters. The position of the authors is that "if school districts do not take the initiative to restructure their educational programs so that the LRE mandate can be fully implemented, they may be forced to do so under court orders" (p. 13, emphasis added). The accumulative effects of these statements make one think of the courts as juggernauts marching into battle with recalcitrant school districts, with the intent of taking away their educational decision-making powers and substituting court orders for these judgments. Though the authors occasionally seemed to moderate this position, the general tenor of the article seems to be one of "Here comes the judge!"
Judicial activism, as discussed by Osborne and DiMattia and defined by Black's Law Dictionary (Black, Nolan, & Nolan-Haley, 1990), is a theory of judicial behavior that advocates the judiciary's basing their decisions not on precedent or an analysis of legislative law, but rather on what the judges determine to be fair and just for the public welfare. These decisions sometimes intrude on legislative and executive domains. …