Chapter 766 is 50 Years Old; Are Its Purposes Being Achieved?

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. 

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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.

Thoughts of Our Departed Friend, Larry Kotin

by Robert K. Crabtree, Esq.

I write with sadness at the passing of my friend and colleague Larry Kotin on May 12 at the age of 81, and also with deep gratitude for our personal and working relationship of more than 52 years.

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I met Larry in 1970 when he worked with the Massachusetts Law Reform Institute (MLRI). I was in my first year as Research Director for the Legislature’s Joint Committee on Education. Larry came by with a proposal to provide for community control of schools within urban districts – a mechanism by which residents could assume some share of governance over their local schools.  Though we talked a few members into signing on, the legislation quickly foundered on the rocks of complexity, squabbles over power-sharing in school districts, and cost. 

But the relationship that began with that undertaking was just the beginning!  Larry’s purposeful enthusiasm and sense of mission and his facility with the language of law and policy struck quite a responsive chord in me that led to a collaboration we proceeded to enjoy for more than fifty years. That working relationship was marked throughout by Larry’s deep kindness, sharp creativity, and enduring commitment to finding ways to direct governmental resources toward effectively serving the needs of underserved populations. 

Chief among the products of our early collaboration was the signing of Chapter 766 into law by Governor Frank Sargent on July 17, 1972 – 50 years ago. Working through MLRI, Larry had been assigned to the Massachusetts Advisory Council on Education (MACE). His mission was to analyze the patchwork of statutes then in effect concerning special education in the Commonwealth and to design model legislation to reform that deeply flawed system. Larry’s proposed statutory models served as the proto-drafts for an entire new structure which aimed to ensure that the teaching and supports that a child receives would be based on individualized expert evaluation of the child’s particular needs and potential and would be designed according to the best current pedagogical science. More, in a turn that was much in keeping with the “power to the people” spirit of those years, Larry’s drafts sought to establish a powerful set of parental rights: (1) to participate throughout the evaluation, planning, and implementation of special education services; (2) to secure publicly funded second opinions by independent experts when parents did not agree with the school’s own evaluations; and (3) to appeal a school system’s actions or failures to act to independent adjudicators (BSEA hearing officers) when necessary.   

At the same time, my boss, Rep. Mike Daly of Brighton, who was sitting as a member of the Task Force on Children Out of School (now the Massachusetts Advocates for Children), assigned me to research special education reform options from the MACE study and other resources around the country and to piece together a draft proposal to rebuild from the ground up the Commonwealth’s system for educating and supporting children with disabling conditions. The resulting draft legislation was filed by Rep. Daly with Speaker David Bartley. After an extensive vetting involving numerous meetings with stakeholders across the Commonwealth and the adoption of a number of key amendments (including a “purpose” section that I recall drafting on the floor of my apartment at the time!), it was signed to become Chapter 766. That statute changed lives not only in Massachusetts but across the nation, as it became the model for the federal special education law now known as the Individuals with Disabilities Education Act (IDEA).

The core of Larry’s ideas survived the meat-grinder of the legislative process intact, and the changes that grew out of the legislative process leading to enactment greatly strengthened the resulting statute. In that process, as his original work was altered amendment by amendment, Larry and I conferred countless times with each other and with other key advocates, especially including Speaker Bartley’s staff member Connie Kaufman and, leading the charge for parent advocacy groups, Martha Ziegler, who became the founder of the Federation for Children with Special Needs, and equally eloquent and passionate members of the Task Force, Larry Brown and Hubie Jones. Throughout this process Larry put ego aside and never second-guessed the changes that had to be made to satisfy the competing demands of the initiative’s many stakeholders in order for the bill to reach the Governor’s desk. As he sometimes observed during lunchroom conversations over current affairs, the perfect is too often the enemy of the good. In the case of Chapter 766 the great good wrought by its robust overhaul of special education law was certainly worth the price of a few concessions.

Skipping ahead to 1980, Larry found me working at a large corporate law firm and invited me to lunch on the Boston Common one day to discuss an idea he had for creating a new general practice law firm. His vision was that it would not be a “boutique” serving only the needs of families with children or adults struggling with disabilities but would provide quality legal services of all kinds – real estate, corporate, employment, estate planning, intellectual property, and so forth.  The idea was brilliant, as it turned out. As we have found over some 41-plus years as Kotin, Crabtree & Strong, LLP, maintaining a core practice in special education and disability law has provided a great cross-fertilization of legal skills and, frankly, business appeal that has served our clients and our attorneys extremely well. I credit Larry with the amazing foresight to imagine this business model could work. Perhaps his young years helping his dad delivering milk and collecting bills in upstate New York seeded a unique array of skills and interests in Larry that helped him marry his commitment to education reform and equal justice to a practical business sense that was key to our firm’s success.

As an advocate, Larry modeled kindness, humor, and sharp intelligence in the service of our clients. With adversaries, clients, expert witnesses, and fellow advocates alike, he was unfailingly positive, respectful, and creative in the search for solutions to our clients’ needs. He also brought a quirky sense of humor to the work that often enabled people in difficult conversations to move to solutions. 

Larry had a charming, wry, and self-effacing sense of humor. He loved to tell of receiving a report card in elementary school on which the teacher wrote “Lawrence tries hard!” He frequently offered diagnoses, albeit unlicensed – of himself, of his colleagues … of anyone, really, with whatever arm-chair psychiatric label he thought fit the subject – tongue in cheek, of course. Working with law students and young attorneys, he insisted, also tongue-in-cheek we supposed, that one was not sufficiently committed to the work of an attorney if s/he was not waking at three in the morning to worry about a case. With all that, he put family above all other priorities and guarded his time with them and in pursuit of activities to refresh his soul (he tried the trombone, he danced, he ice-skated, he developed a stand-up comedy routine …). In that light, he sometimes reminded his colleagues, as we aged, of Mark Twain’s observation that “the graveyards are full of indispensable people.”

Even at this length, I have only touched the surface of our friend’s many ways of making this a better world. He did – always – “try hard” … and by God, he succeeded. 

With love and gratitude, I wish him rest and peace.

Bob

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.

45 Years Old – Are the Purposes of Chapter 766 Being Achieved?

September 2019 will be the 45th 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.)

Five years ago we checked in with readers to invite their comments on whether the stated purposes of Chapter 766 were being met.  Comments from some of the advocates and political leaders who were behind the legislation in 1972 were eloquent, insightful and heartfelt. They included, for example, the following from Martha Ziegler, a great civil rights leader whose work in 1972 organizing the widely disparate interest groups of the world of disability advocacy into a cohesive lobbying force was a key factor in the success of the movement, as was her later work founding and presiding over the Federation for Children With Special Needs. Continue reading

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! Continue reading