Turning 40 – Are the Purposes of Chapter 766 Being Achieved? – An Invitation

A year from now, in September 2014, we will celebrate the 40th anniversary of the effective date of the special education reform act known as “Chapter 766.” (Although Chapter 766 was adopted in 1972, its full implementation was delayed for two years to allow educators and agencies time to prepare.)

Chapter 766 included a Purpose Section to describe the findings and purposes behind the Act.  Its key sponsors wanted to clarify the goals of the Act and the reasons for some of the changes it would bring about.  While that Purpose Section is not part of the codified general statutes of Massachusetts, it is printed in full in the first footnote to Chapter 71B in the annotated edition of the statutes and is referred to from time to time by courts and hearing officers.

We now, some forty years later, have an opportunity to look back at those findings and purposes and consider to what extent the aims embodied in Chapter 766 have been achieved.  Parents, advocates, educators and administrators are bound to have a wide variety of perspectives on this question. We would like to provide a forum on this blog for some of our readers’ thoughts and opinions on that subject.  We will also contribute our own thoughts from time to time, but for now, we would like just to open this up and invite you to comment.  Succinct and thoughtful comments are greatly welcomed; lengthy diatribes, not so much!

What follows is the purpose section of Chapter 766; fire away!

The General Court [note: this term means the legislature of Massachusetts] finds that past development of special education programs has resulted in a great variation of services to children with special needs with some children having a greater educational opportunity than others in less favored categories or environments.  The General Court further finds that past methods of labeling and defining the needs of children have had a stigmatizing effect and have caused special education programs to be overly narrow and rigid, both in their content and their inclusion and exclusion policies.

In the light of the policy of the commonwealth to provide an adequate, publicly supported education to every child resident therein, it is the purpose of this act to provide for a flexible and uniform system of special education program opportunities for all children requiring special education; to provide a flexible and non-discriminatory system for identifying and evaluating the individual needs of children requiring special education; requiring evaluation of the needs of the child and adequacy of the special education program before placement and periodic evaluation of the benefit of the program to the child and the nature of the child’s needs thereafter; and to prevent denials of equal educational opportunity on the basis of national origin, sex, economic status, race, religion, and physical or mental handicap in the provision of differential education services.

This act is designed to remedy past inadequacies and inequities by defining the needs of children requiring special education in a broad and flexible manner, leaving it to state agencies to provide more detailed definitions which recognize that such children have a variety of characteristics and needs, all of which must be considered if the educational potential of each child is to be realized; by providing the opportunity for a full range of special education programs for children requiring special education; by requiring that a program which holds out the promise of being special actually benefits children assigned thereto; and by replacing the present inadequate and anti-equalizing formula for distribution of state aid for special education programs with an equalizing one which encourages cities, towns and regional school districts to develop adequate special education programs within a reasonable period of time.

Recognizing that professional services and resources must be made available to cities, towns and regional school districts on a regional basis if this act is to be implement successfully, and within a reasonable period of time, this act strengthens and regionalizes the division of special education in the department of education and provides for and urges meaningful cooperation among agencies concerned with children with special needs.

Recognizing, finally, that present inadequacies and inequities in the provision of special education services to children with special needs have resulted largely from a lack of significant parent and lay involvement in overseeing, evaluating and operating special education programs, this act is designed to build such involvement through the creation of regional and state advisory committees with significant powers and by specifying an accountable procedure for evaluating each child’s special needs thoroughly before placement in a program and periodically thereafter.

Curiously, the Purpose Section just quoted did not call specific attention to one of the Act’s most important features.  In what was perhaps its most radical provision, Chapter 766 established a due process system under which disputes between parents and school districts could be decided by impartial hearing officers.  (Federal special education law followed that model a short time later in the Education of All the Handicapped Children Act (now “IDEA”).)  From the outset, some school-side spokespersons have attacked the due process provisions of Chapter 766 and IDEA, often advocating for legislative changes to water down the authority of due process agencies over school districts, complaining about the demands that accountability makes on the schedules and obligations of teachers and administrators, and asserting the purity of school district’s motives and the excellence of their professional services that they argue should never be called into question.

Had we to supply the rationale now for the due process provisions of Chapter 766 and IDEA, we would state the need for a fair, evidence-based system by which an objective and impartial adjudicator can be educated about a child’s needs and the options for meeting those needs under the standards of the law, decide what services and placement s/he is entitled to under that law, and issue orders to ensure that s/he is provided with those services and placement.  It would be great if school districts could be trusted always to make decisions with only the best interests of a child in mind. The reality, however, is that economic constraints, lack of sufficient staff and training, political pressures from groups inside and outside of schools, and other factors make it nearly impossible for a school district always to act completely objectively in its decisions about students with expensive extra needs, and the best of all the imperfect solutions to this communal problem available in our democratic tradition is to establish and maintain a system of impartial due process to resolve disputes.

Please feel free to comment on the due process feature of Chapter 766 along with any of the other purposes described in the Purpose Section as we consider together the evolution and, by implication, the future of this nearly 40-year-old revolution.

–Bob Crabtree

Robert Crabtree is a partner in the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts.

9 thoughts on “Turning 40 – Are the Purposes of Chapter 766 Being Achieved? – An Invitation

  1. During the past few months I have thought a lot about our revolutionary Chapter 766. My autistic daughter, Mary Ann, will celebrate her 50th birthday at the end of December. She recently was diagnosed with breast cancer and has had one mastectomy at Emerson Hospital in Concord, followed by two weeks across the road in rehab. It has amazed me no end first, how well she has done with this medical challenge and second, the incredible skill and communication we have experienced with all the doctors, nurses, and other staff at the two facilities, plus her residential staff. All have been totally accepting , understanding, and sympathetic with her. Some even were eager to learn more about autism! As I have thought about this situation, I realize how much our world has changed in the last 40 years. Before 766 (and other changes in state and federal law) most of the people serving Mary Ann in this challenge would have kept social distance from her. Further, they would have had no idea how to communicate with her or me and it would not have occurred to them that Mary Ann should participate in the crucial decisions about her treatment.

    We have a lot to celebrate, perhaps even more than we realize! Mary Ann and I owe a huge debt of gratitude to Bob Crabtree, Larry Kotin, the late Michael Daly, Speaker Bartley, and to the members of the 41+ organizations in the Coalition for Special Education.

    Martha Ziegler, Founder and original Executive Director of the Federation for Children with Special Needs, author My Daughter, My Teacher: Mary Ann, Autistic in English and Spanish, iUniverse 2010

  2. Chapter 766 grew out of model legislation developed by the Council for Exceptional Children, under a grant from the U.S. Bureau of Education for the Handicapped. I was a special assistant to Edwin W. Martin, the director of the Bureau, and one of my assignments was to report on its ongoing implementation. Because the Massachusetts law was such a success, we had a much easier time winning support for the federal law. And I am convinced that Chapter 766 would not have been such a success if it had had a different (and necessarily inferior) group of “founding fathers: Michael Daly and David Bartley in the legislature, Greg Anrig and Bob Audette in the State Department of Education, and Martha Ziegler, who is far and away the best parent advocate the country has produced over my professional lifetime. It was extraordinary that these people were in the positions where they were most needed. And they had exactly the right temperaments for their roles.

    Asked if he thought that special education was straining school budgets, not long after the law was enacted, Education Commissioner Gregory Anrig responded to an NPR interviewer that the question pre-supposed that the order in which programs were adopted had any bearing on their right to exist. No one asked, he said, if the budgets of vocational or bi-lingual or physical education should be cut based on the dates of their creation. When I asked Special Education Director, Bob Audette what he had seen in a boy who was severely developmentally delayed that had caused him to adopt him, Bob replied that I should ask his son directly.

    Martha Ziegler is the Nelson Mandela of the parent movement. She has never backed away from challenging authority. But she has always cared more about reconciliation and improving services than about settling grievances and jockeying for position. As the director the Federation for Children with Special Needs, she developed a model for generic parent organizations, As the director of our national parent program, she provided technical assistance to develop similar centers in all of the states, and was the most respected parent in the country. And the parent movement has never functioned as well, without her. One has only to read her comment here, to see how balanced and lucid she is.

    • I love having so many authors in my life. It makes the book so much more fun to read knowing the author! I have a lot of respect for you because of your hard work and your writing talent.

  3. A comment from Barbara C. Cutler, Ed.D.:

    There is no doubt that Chapter 766 was a giant achievement. Have we achieved all we hoped for? Not quite.

    I remember before 766 the “choices” were institutionalization, stay at home, or if you were lucky and well behaved, a class in a church basement. When I testified at the State House for 766, I spoke of our Town Census which wanted to know about my age, occupation, my school age children, – and my dog! What about my child with a disability and no school program? Interested in my dog but not my son! That was life before 766 – children with special needs did not count in census or otherwise. When 766 passed every child was entitled to an education, – recognition at last.

    A free and appropriate education for all. At first we were thrilled with the collaboratives. To have a school for your child even if it was segregated and in another town was fine so we were grateful. We did not know that 766 was the first step towards Inclusion which we were promoting a couple of decades later. and is still to be fully implemented.

    At the same time that Special Education was being implemented, Behavior Modification arrived and was the main method for those individuals who were communicatively and/or cognitively handicapped. It was basically a control model and in 1974 I started one of the first programs using B-mod with adolescents, most of whom had never been in school.

    Both models – inclusion and behavior mod are limited when used alone; Inclusion when it means putting an individual in a regular class without supports, and behavior mod relying on control (coercion?); both techniques without seeking to understand the challenges of each disability, and then providing the supports that would make for full inclusion. Understanding the need for individualized supports brought on by the disability need not be expensive or complicated.

    Caveat: be wary of the so-called evidenced based procedures which has become a euphemism for ABA. Biologist Martin Cross said “Theory determines what you see.” If you look through a narrow lens you will see what you expect to see, and miss the larger picture.)

    Other places where there is still work to be done lie in the complaint system which tends to favor the schools over parents and students, and in the growing development of charter schools (especially in large cities) where all too often troubled students, students with disabilities and those from dysfunctional families are left behind. Money needs to be infused into public schools, not withdrawn particularly for for-profit private charter schools.

    A large part of the last 40 years I have worked with families, students and schools. I have seen successes, good teachers and programs. I have seen adult programs grow in a society that educates its children and adolescents based on the principle each individual has a right to be here. And I have seen some failures too.

    But I am mindful of a man who at age 6 was sent to Belchertown because there was no school or place in the community for him. Echolalic that he was, in times of emotion he could be heard saying “you have to learn to defend yourself,” the legacy of life in the institution.

    Yes. 766 is a great success and we must be vigilant in our work to keep it moving forward.

    – Barbara C. Cutler, EdD

  4. I feel much the same as Mike Daly did when he described our collaboration (he in his role as House Chairman of the Education Committee and I as the Speaker) that led to the enactment of Chapter 766 as one of our proudest achievements. Mike and I were both teachers before we entered politics. We were each intimately aware of some of the shortcomings within our public education system – especially as that system neglected children with disabilities – and it was in the special education reform act that we each felt we’d best realized the goals we shared to use the power of our offices to improve that system.

    As for how well the purposes of 766 have been achieved, I believe that in large part they have done so beautifully, with great numbers of students who, before Chapter 766, would likely have fallen through the cracks now served with fine-tuned teaching and supports. At the same time, for many reasons – fiscal, political and otherwise – all too many children are still under-served across the state, and some of the basic systems we put in place to hold school systems accountable have proven effective primarily for families with means and not so much for those without.

    While special education services are required to be provided to children who need them, and while we established a process in Chapter 766 under which parents could ask impartial hearing officers to listen to evidence and decide whether a district’s offerings were sufficient to meet a child’s needs, genuine access to that process depends on having solid experts, extensive evidence, knowledgeable advice from professionals who are well-versed in the complexities of the process, and the time and energy to press through to the finish – all of which are out of reach to the vast majority of low or even moderate-income parents.

    While it is apparent to me that Chapter 766 purposes have been achieved and sustained for many students over the 40 years of its implementation, the inability of parents without means to access the due process system has left a great many of their children behind when their districts short-cut or deny services that they need. I understand that there are some legislative proposals in the works today that could help in some measure to reduce some of the barriers to due process for parents with low or moderate means: one to reinstate the right to reimbursement of attorneys fees for parents who prevail at a point short of the extreme expenses of a full hearing; one to include experts’ fees in reimbursement to parents who prevail; and one to shift the burden of proof from parents to school districts. I understand that these initiatives all seek to correct for Massachusetts parents the very negative impact of three U.S. Supreme Court decisions, all written since the turn of the century, that have each undermined parents’ ability to fight for needed services. I support them all.

    – David Bartley

    • Dear Speaker Bartley; After 40 years of unsuccessful trying, I still maintain that this law should be named the Bartley Daly Law. That recommendation is even more important today, when we have fuller understanding of the revolutionary progress the law has brought first for thousands and thousands of children and families here in Massachusetts but ultimately for millions of children and families across our nation. You and House Committee Chairman Michael Daly, plus Bob Crabtree, Larry Kotin, Connie Rizoli, and many many more hard workers, including parents, achieved a historic victory that must be recognized. Martha Ziegler

  5. In 1977 at my middle school in Florida, I was walking to my biology class when I saw the back of a student in a wheelchair rolling down a ramp to a different part of the school. I stopped at the sight. I had never seen a student in a wheelchair at school before. I wondered where he/she was going as I had never been to that part of the school before. I did not see the student or others like him/her again. In 1999 I was standing in line to see a ghost story at one of Salem’s historic homes as part of their annual Halloween Festival. There were a group of high school students, numbering around 13, with 2 students in wheelchairs also in line. A worker came out and said that the wheelchairs would not be allowed/could not fit into the buildings and those students would not be able to see and hear the performance. The standing students responded that they would “all go in together to see the show or none of them would go”….and after some discussion they lifted their classmates in the wheelchairs up the steps and through the doorway and into the old house. In 2001, I became the mother of a child with a disability and began the journey —
    these memories resurfaced and I am forever profoundly grateful to you very smart people who led the way many years ago. All of society has benefited.

  6. We want to express our thanks to Bob Crabtree, Larry Kotin, and all the others who were involved in passing Chapter 766 in 1972. We became involved with special education when our son was four years old in 1993 and we stayed involved until his high school graduation in 2008. During that time we became aware of the state and federal special education laws and the importance of an appropriate education for all children.

    We are grateful that all children today are able to attend public schools. It is shocking to look back and realize that many children were excluded from school before Chapter 766. We are also grateful for the due process rights that protect children and parents.

    When we began studying the state regulations, we realized how well written and practical they are. One example is the clear definition of effective progress in the MA regulations, which is vague and open to many interpretations in IDEA. It is an excellent definition of progress that all parents should be aware of for their children.

    As we approach this 40th anniversary year of the implementation of chapter 766, we feel that much has been accomplished. The revolution that began in 1972 has ensured that children with disabilities will be included in school. Yet many problems remain, especially with funding. Parents have to take on a greater role as advocates for their children since many school districts might cut back services or deny them altogether due to budget constraints. Knowledge of both the federal and state laws is essential for a good outcome.

    Special education can work for parents and their children if parents educate themselves about their rights and work as their child’s advocate. We are proud of Massachusetts for being the first state in the nation for ensuring that all children have a right to a public education.

    Judith Canty Graves and Carson Graves
    co-authors of “Parents Have the Power to Make Special Education Work” by Jessica Kingsley Publishers.

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