by Robert K. Crabtree, Esq.

Governor Frank Sargent signed Chapter 766 into law on July 17, 1972. With a two-year delay to allow for school systems to upgrade their special education services and procedures, Chapter 766 aimed to ensure that children who were unable to learn effectively because of intellectual, emotional, or other challenging conditions would be provided with specialized instruction and supports in environments designed to ensure their progress in accordance with their learning potential. The new law required: (1) that children who were thought to be struggling with particular learning, emotional or other challenges be evaluated by experts; (2) that teams of educators, evaluators and parents consider and act on the findings and recommendations of such evaluations; (3) that individualized programs and placements be developed to enable children to progress despite their disabilities; (4) that parents be afforded the right to independent evaluations at their school systems’ expense if they disagreed with the school’s evaluations; and (5) that disputes that could not be resolved locally may be adjudicated by impartial hearing officers on appeal. 

Twice before on key anniversaries of Chapter 766, we have invited interested persons to comment on how effective Chapter 766 has been in its implementation over the decades, on what problems have arisen and from what quarters (e.g., courts, BSEA action, later legislative amendments, and so forth), and on what solutions might still be needed to improve the legislative underpinnings and the effectiveness of the law. Click here to view comments from the 45th anniversary and here to view comments from the 40th.

Since the last round, Chapter 766 has, like all other aspects of our communal lives, been sorely tested by the onslaught of the Covid-19 pandemic and its evolving variations. Children and their educators have had to adapt to learning and teaching by internet protocols, and much of the result has constituted a frustrating and, in some cases, impossible ordeal, especially for children who desperately need in-person, hands-on teaching and an environment where both academic and social navigation skills can be taught and practiced in real life. 

How have the standards, procedures and protocols that are fundamentally set out in Chapter 766, IDEA and their regulatory frameworks held up in the midst of the COVID-19 pandemic? It is our impression that though shaken as if by a series of earthquakes, the essential structure of these laws has held – the building stands though bent and broken in places. Nonetheless, children with the sorts of challenges that special education law is designed to address have suffered disproportionately, and of those, children and families from groups that historically have been victimized by discrimination have suffered even more from the lack of in-school, hands-on teaching. In addition, many children who would probably have progressed normally under ordinary conditions have been so undermined by the isolating conditions of the pandemic and by ineffective on-line teaching efforts that they have themselves developed identifiable disabilities – emotional, behavioral and learning challenges – that now must be addressed.  IDEA and Chapter 766 protocols are still there to meet those children’s needs, but the growing numbers of children in need of specialized instruction and supports must be attended to and the system expanded to ensure that their needs will be met. 

As when we asked the question before, we think that Chapter 766 has succeeded in reducing stigma, teaching to the needs of many more children effectively, and enabling parents to play an effective role as members of their children’s teams. Also as before, however, we must point out that some legislative and judicial setbacks have undermined the reach and power of the law. These include the actions of the Massachusetts legislature in 2001 that reduced the required standard for the quality of a child’s services from maximum feasible progress to the federal standard, now vaguely worded by the Supreme Court in Endrew F. v. Douglas Cnty. Sch. Dist., 137 S. Ct. 988, 1001 (2017), as that “reasonably calculated to enable the child to make progress appropriate in light of the child’s circumstances”; the decision of the Supreme Court in Schaffer v. Weast, 546 U.S. 49 (2005), that effectively placed the burden of proof on parents instead of schools in special education disputes; the Supreme Court’s decision in Buckhannon v. West Va. Dep’t of Pub. Health & Human Res., 532 U.S. 598 (2001), that undermined access to the courts in civil rights cases by conditioning plaintiffs’ entitlement to recover attorney’s fees on their obtaining a court order in their favor (thus undermining the chances of settlement in many cases and depriving parents of fees even when their legal action was a catalyst to settlement); and another Supreme Court decision, Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006), holding that, even when a parent wins in court, parents are not entitled to recover their expert witness expenses along with their attorney’s fees. Each of these disappointing Supreme Court decisions could be effectively set aside if the state legislature were to set a different standard. There have been efforts to do so in Massachusetts; to date none has succeeded. Parents and advocates should not abandon these efforts, however, but should take heart, stay organized, and press ahead in the spirit of the original Chapter 766.

When we asked our question in 2019 (45 years after the effective date of Chapter 766), Larry Brown, Ph.D., who had served as the head of Massachusetts Advocates for Children for years, provided an answer that rings just as true today. He said: “It would be a terrible mistake to judge 766 by looking only at what still needs to be done, because more will always need to be done. All of us together pulled off a revolt against the ugly status quo that was rather quickly begun by locking in rights and due process procedures for children with special needs, thus altering the responsibilities and expectations of public schools forever. And it is a revolution that will last because of the power of parents and advocates that embodied it. Like all revolutions, it began from the ground up and involved ordinary people from many different walks of life. We were naïve, we were resolute, we were demanding, and we learned as we went. But this is always the way of monumental social change movements. Ordinary people embody the most extraordinary capacities of humans, and we began something that will never end but will always have to be nurtured in order to sustain it.”

Our recently departed colleague, and my friend for more than 53 years, Larry Kotin, would say – as he did when he first read Larry Brown’s comment – “Amen to that”!!

Robert K. Crabtree is of counsel within the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts.  He is a founding member of the firm.