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.

U.S. DOE and DESE Make Clear: Districts Must Provide FAPE During School Closure and Timelines Remain in Effect

The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), signed into law on March 27, 2020, contains a provision allowing the U.S. Secretary of Education, Betsy DeVos, to recommend that Congress waive certain requirements during the COVID-19 pandemic, including requirements under the Individuals with Disabilities Education Act (“IDEA”).  Many attorneys and advocates for students with disabilities feared that the Secretary would seek congressional approval to excuse school districts from complying with all of IDEA’s provisions during the current crisis.  Such approval, if granted, could have relaxed IDEA’s substantive obligations, such as the requirement that school districts provide a free appropriate public education (“FAPE”) to students with disabilities, during periods of school closure and/or could have tolled or extended IDEA’s procedural obligations, such as the requirements that district perform evaluations and re-evaluations within specific timeframes. Continue reading

Issues in Special Education that Candidates Should Address

We are posting a link here to an article written by Bob Crabtree, of counsel with KC&S, regarding some of the critical issues surrounding special education and disability rights that candidates running for legislative and executive offices should address.  Though IDEA is a federal law, states can establish increased requirements for special education and these are therefore issues to discuss with candidates for state office as well.  The issues discussed in the article include: inadequate special education funding; the weakening of required standards governing IEPs; judicial decisions about recovery of attorneys’ fees and related costs; and the burden of proof in special education proceedings. 

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

House 518 Would Require Transportation and Increased Funding for Recovery High Schools – a Proven Resource in a Troubled Time

Readers may recall a number of posts we have entered over the past few years regarding Recovery High Schools. Massachusetts currently has five such high schools – in Boston, Brockton, Beverly, Worcester and Springfield – and they have each proven to be an excellent support for high school age students who are struggling to disengage from drug and/or alcohol dependence/abuse. A Recovery High School’s ability to provide a solid high school education along with appropriate services and supports to such students, in the company of peers who are struggling with the same issues, is critical to the success of this resource. The alternative – returning to the student’s home high school – is all too often disastrous, as a student’s fragile beginning toward recovery can so easily be crushed by a school district’s lack of supports while a user subculture of peers eagerly draws the student back into its mix. Continue reading

Selective Service Registration for Men with Disabilities

Recently, Attorneys from the Special Education and Disability Rights practice group and the Estate Planning and Estate and Trust Administration practice group at Kotin, Crabtree & Strong, LLP, attended the annual conference for the Federation for Children with Special Needs.  During the conference, one parent approached us and asked whether her son, who is eighteen years old and has significant disabilities, really needed to register for the Selective Service.  It was an intriguing question, one that we had not heard before, and so we looked into it. Continue reading

Vigil for the Abuse Registry (Dana’s Law/Nicky’s Law)

We have represented numerous children and adults with disabilities who have been abused by caregivers in their residential schools and group homes. On occasion, the perpetrators of that abuse have been found to have previous allegations of abuse substantiated by the Disabled Person Protection Commission (DPPC).  While there has been an accessible registry of individuals with criminal charges maintained by the Commonwealth’s Department of Criminal Justice Information Services, known as CORI, there has been no corresponding registry for DPPC findings.  Continue reading

Act Now or We May Lose Mass Health Funding for Special Needs Students

While we don’t usually pass along notices issued by others, we think that the alert below from the Council of Parent Attorneys and Advocates (“COPAA”) deserves your immediate attention and action.  We urge our readers to let their concerns be heard, as federal legislators appear to be acting behind closed doors to reduce Medicaid funding drastically in whatever provisions will be proposed to replace the Affordable Care Act.  Continue reading

Amendments to the Massachusetts Anti-Bullying Law

On April 24, 2014, Governor Deval Patrick signed An Act Relative to Bullying in Schools, which amends the 2010 anti-bullying law.  The Massachusetts House and Senate overwhelmingly supported the legislation, which was authored by the Attorney General’s office and sponsored by Representative Alice Hanlon Peisch (14th Norfolk) and Senator Sonia Chang-Diaz (2nd Suffolk).  The amendment changes the bullying law in four principal ways.  (An earlier amendment, effective July 1, 2014, had previously changed the law’s scope by broadening it to include bullying and harassment not only by peers, but also by school staff.) Continue reading