April 21, 2019

Archives for December 3, 2015

The Culture of Law (Part 16): Hacking the Law (Redux)

rhodesIf we’re unwilling to either let Iain McGilchrist’s culture predictions come to pass without a tussle or wait for whatever unpredictable developments cultural evolution might serve up, we need to get proactive. We might try hacking the law and its culture.

“Hacking” has become the new shorthand for initiative, self- improvement, DIY, entrepreneurialism. Take a moment and Google “hacking for better ______.” Fill in the blank however you like: home, health, money, relationships, law, religion… and you’ll be amazed (at least, I was) at the hits you’ll get. I mean, “What Would Jesus Hack” in The Economist?! Or how about this Harvard “Hackathon,” staged to solve a problem that has long perplexed (and probably depressed) scholars:

Legal scholars can spend years or decades researching a topic, then publish an article in the most prominent law reviews and academic journals, only to find the work never reaches public consciousness. In the past the only way to remedy that situation was to get a mainstream news outlet to write about your research. . . . Now there’s a second option — get computer programmers to build an app based on your work.

The radical fringe element of the hacking world is still out there: you find it in the online “hacktivist” collective Anonymous; it’s probably also responsible for the “Die Hipster Scum!” t-shirt I saw the other day. But mostly, hacking has gone mainstream. In fact, it’s been gentrified — so says a brilliant analysis recently featured in online Aeon Magazine: “How Yuppies Hacked the Original Hacker Ethos,” by radical financial thinker Brett Scott. The whole article is worth a read, but here’s a taste:

Unlike the open uprising of the liberation leader, the hacker impulse expresses itself via a constellation of minor acts of insurrection, often undertaken by individuals, creatively disguised to deprive authorities of the opportunity to retaliate.

It’s a trickster spirit, subversive and hard to pin down.

Gentrification is the process by which nebulous threats are pacified and alchemised into money. A raw form — a rough neighbourhood, indigenous ritual or edgy behaviour such as parkour (or free running) — gets stripped of its otherness and repackaged to suit mainstream sensibilities.

We are currently witnessing the gentrification of hacker culture. The countercultural trickster has been pressed into the service of the preppy tech entrepreneur class.

Silicon Valley has come to host, on the one hand, a large number of highly educated tech-savvy people who loosely perceive themselves as rebels set against existing modes of doing business.

Thus the emergent tech industry’s definition of “hacking” as quirky-but-edgy innovation by optimistic entrepreneurs with a love of getting things done. Nothing sinister about it: it’s just on-the-fly problem-solving for profit.

We need to confront an irony here. Gentrification is a pacification process that takes the wild and puts it in frames. I believe that hacking is the reverse of that, taking the ordered rules of systems and making them fluid and wild again. The gentrification of hacking is… well, perhaps a perfect hack.

True, the gentrified version of hacking takes the subversive, outlaw edge off, which gives change agents a voice in even the stodgiest forums — including the law. But sometimes we need that edge, and would miss it if it were to vanish altogether.

The Aeon article ends with “Go home, yuppies.”

“Die, Hipster Scum.”

Same dif.

For a fascinating anthropological study of Anonymous, check out Hacker, Hoaxer, Whistle-Blower, Spy: The Many Faces of Anonymous. And, just for the fun of it, compare the cultural dynamics you see there to a vastly different kind of culture in another anthropological study, When God Talks Back: Understanding the American Evangelical Relationship With God. Trust me, put those two side by side, and you’ll never think about culture the same ever again.

And speaking of the gentrification of a radical culture, there may not be a more extreme example (hackers aside) than the gentrification of the annual ultra-bizarre cultural experiment know as Burning Man.

We looked at the subversive hacker culture as an agent of change in the law a couple times in the Future of Law series earlier this year, along with related topics such as the democratization of the law and open source/access. Both the Future and Culture of Law series will be collected in a new book, The Law It Is A-Changin’, to be out in early 2016.

Tenth Circuit: “Some Educational Benefit” Required for Free and Appropriate Public Education Under IDEA

The Tenth Circuit Court of Appeals issued its opinion in Endrew F. v. Douglas County School District on Tuesday, August 25, 2015.

Endrew “Drew” F. has autism. He was enrolled in Douglas County Public Schools, but in 2009, after a particularly rough fourth grade year, his parents rejected the district’s proposed Individualized Education Plan (IEP) for the fifth grade year and instead enrolled him in Firefly Autism, a private school in which he is thriving. Drew’s parents submitted a tuition reimbursement request to the Douglas County School District, seeking reimbursement under the Individuals with Disabilities Education Act (IDEA) because the school had failed to provide Drew with a free appropriate public education (FAPE). Drew’s parents argued that because Drew was making minimal progress and had escalating behavioral issues, he was being denied a FAPE. The district declined to pay Drew’s tuition at the private school.

Drew’s parents sought a due process hearing with an ALJ, who ultimately found that Drew had received some educational benefit in the public schools and therefore was receiving a FAPE. The federal district court affirmed the ALJ’s finding, and Drew’s parents appealed to the Tenth Circuit.

The Tenth Circuit first evaluated the strictures of the IDEA, noting that the Act does not prescribe a substantive level of achievement for the education to be considered appropriate. Under Supreme Court and Tenth Circuit precedent, the individual need only show “some educational benefit.” The Tenth Circuit then addressed the IDEA provisions which allow parents to seek tuition reimbursement from a district, noting that parents who take unilateral action do so at their own financial risk. The Tenth Circuit next set forth the two-step process for determining whether a district provided a student with a FAPE: (1) whether the district complied with the IDEA’s procedural requirements, and (2) whether the IEP is reasonably calculated to enable the child to receive educational benefits.

Turning to the parents’ procedural arguments, the Tenth Circuit rejected the parents’ argument that they were not adequately informed of Drew’s progress because although the notes on the IEP were inadequate, there was record support that Drew’s parents communicated with the special education teacher regularly. The parents also argued that the district failed to provide a FAPE because it did not address Drew’s escalating behavioral difficulties, but the Tenth Circuit again rejected this argument, finding the district had requested a behavioral assessment but it was scheduled for after the parents pulled Drew from the district and therefore never occurred.

The Tenth Circuit next turned to the parents’ substantive arguments regarding Drew’s fifth grade IEP. The parents contended that because the fifth grade IEP was similar in all material aspects to previous IEPs, Drew’s lack of progress on those past IEPs was dispositive of whether the fifth grade IEP was reasonably calculated to lead to educational benefit. The parents also contended that the ALJ failed to consider the impact of Drew’s escalating behavioral problems in determining the IEP was reasonably calculated to provide Drew an educational benefit. Finally, the parents asserted that recent Tenth Circuit case law changed the standard by which the IEP should have been evaluated from “some educational benefit” to “meaningful educational benefit.”

The Tenth Circuit first disagreed with the parents’ contention that its recent case law signaled a shift in precedent, finding that the neither the previous panel nor the current panel could change the precedent absent en banc review or a new Supreme Court decision. The Tenth Circuit also noted that the distinction between “some educational benefit” and “meaningful educational benefit” was semantic. The Tenth Circuit found no error in the ALJ’s reliance on the “some educational benefit” standard. The Tenth Circuit then evaluated whether Drew progressed on the prior IEPs and found that he did. Although it was “without question a close case,” the Tenth Circuit found that Drew received more than a de minimus benefit and therefore affirmed the ALJ. The Tenth Circuit similarly rejected the parents’ contentions that the district failed to address Drew’s escalating behavioral concerns or the ALJ ignored them. The Tenth Circuit found record support that the district began implementing a behavioral intervention plan before the parents pulled Drew from the district.

The district court and ALJ were affirmed.

Application Period Open for Vacancy on Custer County Court Bench

On Wednesday, December 2, 2015, the Colorado State Judicial Branch announced a forthcoming vacancy on the Custer County Court, created by the appointment of Hon. Peter F. Michaelson to the Eighteenth Judicial District Court, effective January 1, 2016.

Eligible applicants must be qualified electors of Custer County and must have graduated high school or attained the equivalent degree. Application forms are available on the Colorado State Judicial Branch website and are also available from the ex officio chair of the Eleventh Judicial District Nominating Commission, Justice William Hood, III. Applications must be received by 4 p.m. on December 16, 2015. Anyone wishing to nominate another must do so no later than 4 p.m. on December 9, 2015.

For more information about the vacancy and the application process, click here.

Tenth Circuit: Unpublished Opinions, 12/2/2015

On Wednesday, December 2, 2015, the Tenth Circuit Court of Appeals issued no published opinion and ten unpublished opinions.

Lemmons v. Houston

Miller v. Wulf

Morman v. Campbell County Memorial Hospital

DeAtley v. Keybank National Association

Benton v. Addison

Robinette v. Fender

Marner v. City of Aurora

Russell v. New Mexico Interstate Stream Commission

Frazier v. Miller

Nichol v. Falk

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.