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Friday, September 13, 2013

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

From Special Education Today

By Robert K. Crabtree, Esq.
September 12, 2013

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 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 at times 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.

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NOTE: This article was posted concurrently in FCSN Newsline, the quarterly newsletter of the Federation for Children with Special Needs, for which we are gathering comments. Please write below and let us know how Chapter 766 has affected your family or, for educators and other providers, your professional lives.

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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.

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Robert Crabtree is a partner in the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston. He is also a principal author of MA Chapter 766.

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