NEGLIGENCE: CRIPPLING CONSEQUENCES OF BAGLEY V. MT. BACHELOR AND LIABILITY EXPOSURE TO THE SKI INDUSTRY

Bagley v. Mt. Bachelor[1]will likely have a significant negative effect on negligence suits against ski operators.[2]Specifically, the Oregon ski operators may be held to a strict expert standard for terrain parks.[3]More generally, if Bagely sets a legal trend, the whole ski industry would probably suffer from more negligence lawsuits based on non-enforceable liability releases.[4]  Bagely creates an “expert” snowboarder/skier standard for the ski operator when “even in the context of [an] expert snowboarding in defendant’s terrain park.” The court held that the “defendant was in a better position than its invitees to guard against risk of harm created by its own conduct.”[5]However, it is important that courts enforce liability releases in the situation involving an injured skier/snowboarder where the ski operator was not grossly negligent and the injury resulted from a skier/snowboarder jumping in a terrain park because the enforcement of liability releases is essential to the ski industry.[6]

Here, this case turns on this court’s reasoning that snowboarder/skiers are invitees under Oregon law, and the ski resort must create safe human made features even for the expert snowboarder/skier in a ski run designed with jumps.[7]By not enforcing the release, the ski operator has additional liability for the skiers/snowboarders’ voluntary actions in expert terrain parks.[8]

A court moreover could argue that terrain parks are just too dangerous for the general public.[9]For example, BASE jumping in national parks is an extremely dangerous sport where even if a private company was allowed a park permit, the risk of death likely would be too great of a risk to overcome with a liability release.[10]In contrast, ski terrain parks are a common standard in the ski industry and an appeal in the sport.[11]Slope style and boardercross are both Olympic sports that require the construction of terrain parks.[12]If ski operators had to create terrain parks to an Oregon court expert standard, those world famous Olympic events would likely cease to exist. As a matter of international policy, the ski industry would not benefit from the burdensome repercussions of an expert standard for terrain parks. Thus, Bagley’sexpert standard would likely undermine the essential appeal of the sport.

The enforcement of liability releases consequently is an essential aspect of the ski industry. These releases prevent the ski operator from excessive negligence litigation for an inherently dangerous sport.[13]In ski resort liability cases, the ski operator strongly argues that negligence liability waivers are enforceable when the ski operator does not offer an indispensable public service.[14]The enforcement of liability releases also is an essential aspect of the ski industry because skiing/snowboarding may involve deadly accidents.[15]Thus, in the situation involving an injured skier/snowboarder where the ski operator was not grossly negligent and the injury resulted from a skier/snowboarder jumping in a terrain park, the court should enforce the liability release.

[1]Bagley v. Mt. Bachelor, Inc., 356 Or. 543, 572 (2014).

[2]Dillworth v. Gambardella, 970 F.2d 1113, 1117 (2d Cir. 1992).

[3]Bagley, 356 Or. 543, 572.

[4]Dillworth, 970 F.2d at 1117.

[5]Bagley, 356 Or. 543, 572.

[6]Dillworth, 970 F.2d at 1117 (Use of liability releases)

[7]Id.

[8]Id.

[9]See Use of the National Parks, 36 CFR 2.17(a)(3) (Dec. 1, 2017, 11:00AM), https://www.nps.gov/policy/mp/chapter8.htm [https://perma.cc/QFC8-JMAJ] (parachuting or BASE jumping, whether from an aircraft, structure, or natural feature, is generally prohibited from high risk of injury or death).

[10]Id.

[11]Joel Muzzey, Outlaw Revival: Riding and Remembering the First Snowboard Park, TransWorld SNOWboarding (Jan. 19, 2017), https://snowboarding.transworld.net/photos/outlaw-revival-riding-remembering-first-snowboard-terrain-park-bear-mountain/ [https://perma.cc/VG94-CYZD].

[12]Olympic Snowboarding History, Olympic(Dec. 1, 2017), https://www.olympic.org/snowboard-equipment-and-history%5Bhttps://perma.cc/UWK8-QXNX%5D (snowboarding became an Olympic sport in 1998).

[13]Dillworth v. Gambardella, 970 F.2d 1113, 1117 (2d Cir. 1992).

[14]See, e.g., Malecha v. St. Croix Valley Skydiving Club, 392 N.W.2d 727 (Minn. App. Ct. 1986) (upholding an exculpatory agreement entered into between a skydiving operation and a patron); Chepkevich v. Hidden Valley Resort, 607 Pa. 1, 2 A.3d 1174 (2010) (holding enforceable skiing release); Pearce v. Utah Athletic Foundation, 179 P.3d 760 (Utah 2008) (enforceable bobsledding release); Benedek v. PLC Santa Monica, LLC,104 Cal. App. 4th 1351, 129 Cal. Rptr. 2d 197 (2002) (enforceable health club release); Henderson v. Quest Expeditions, Inc., 174 S.W.3d 730, (Tenn.Ct.App.2005) (enforceable whitewater rafting release).

[15]Stamp v. Vail Corp., 172 P.3d 437, 449 (2007).

Nobel Prize- Importance of an Executor

The creation of the Nobel Prize depended on the executors of Alfred Nobel’s estate.[1] In the will of the Swedish scientist Alfred Nobel, he created international prizes in 1895.[2] After Mr. Nobel invented dynamite in the 1800s, he made a huge fortune selling his invention to mining and military operations.[3]

From 1901 to present, the Nobel prize has been awarded over 570 times to over 900 different people or organizations.[4] In 1888, a French newspaper mistakenly reported that Mr. Nobel died and called him the “Merchant of Death.”[5] After Mr. Nobel read the article, it is believed that he made a final will giving over 90% of his assets to the creation of the Nobel Prize Foundation.[6] However, Mr. Nobel upset his surviving family with his final will because most of his assets were not bequeathed to them.[7]

In Mr. Nobel’s will, Ragnar Sohlman and Rudolf Lilljequist were named executors.[8] The will read: “As Executors of my testamentary dispositions, I hereby appoint Mr. Ragnar Sohlman, resident at Bofors, Vamland, and Mr. Rudolf Lilljequist, 31 Malmskillnadsgatan, Stockholm, and at Bengtsfors near Uddevalla. To compensate for their pains and attention, I grant to Mr. Ragnar Sohlman, who will presumably have to devote most time to this matter, One Hundred Thousand Crowns, and to Mr. Rudolf Lilljequist, Fifty Thousand Crowns; – Alfred Bernhard Nobel, will dated Paris, 27 November 1895.”[9]

To establish the Nobel Prize, Sohlman spent several years.[10] The will did not detail the rules for selecting award recipients.[11] As a further difficulty, Sohlman had to gather all of Mr. Nobel’s assets spread across several European countries.[12] One anecdote describes how Mr. Sohlman and Mr. Lilljequist decided to move most of Mr. Nobel’s assets to Sweden, but they feared that the French government would prevented that vast amount of money (roughly $150 million) from leaving its country.[13] As a result, the executors traveled around Paris with a horse and carriage collecting shares, bonds and legal documents of the Nobel estate. Then, the assets were shipped to Sweden on rail as registered luggage.[14]

Here, Nobel’s will is an interesting example of the application of the “dead hand.”[15] In this context, Nobel’s dead hand was an overwhelmingly huge hairy one. The creation of the Nobel Foundation is unique because the foundation acts like an investment company and is tax exempt from all taxes in Sweden and in the United States.[16] Also, the monetary award is roughly $100 thousand for the recipient.[17] Further, separate committees  complete the actual selection process for the award.[18] As stated earlier, the structure and guidelines for the Nobel Prize are the creation of Mr. Sohlman and were not actually in Mr. Nobel’s will.[19] Fortunately, Mr. Sohlman was an exemplary executor who understand Nobel’s intent in his will for the creation of the Nobel prizes.[20] Thus, one’s dead hand is only as good as his executors.[21]

[1]See The Conundrum of Alfred Nobel, National Geographic 8-11 (July/August 2017) (summarizing historic context and facts surrounding the Nobel Prize creation).

[2]Id.

[3] Evan Andrews, Did a Premature Obituary Inspire the Nobel Prize, History (Dec. 9, 2016), http://www.history.com/news/did-a-premature-obituary-inspire-the-nobel-prize [https://perma.cc/Z3QA-B434].

[4]Nobel Prize Facts, Nobelprize (Mar. 4, 2018), https://www.nobelprize.org/nobel_prizes/facts.

[5]See supra note 3.

[6]See supra note 1.

[7]Id.

[8]Id.

[9]Full Text of Alfred Nobel’s Will (Feb. 15, 2018), https://www.nobelprize.org/alfred_nobel/will/will-full.html [https://perma.cc/S73F-JF5P].

[10]See supra note 1.

[11]Id.

[12]Id.

[13]Id.

[14]Id.

[15]See, e.g., Garrett Ham, The Problem of the Dead Hand, GarrettHam (Sept. 20, 2013), https://www.garrettham.com/dead-hand/ (discussing the limitations of the deceased to control the living).

[16]See supra note 1.

[17]Id.

[18]Id.

[19]Id.

[20]See Ragnar Sohlman – Executor of the Will, Nobelprize (Mar. 5, 2018), https://www.nobelprize.org/alfred_nobel/will/sohlman.html (summarizes how Sohlman executed Nobel’s will).

[21]See Ham, supra note 15.

Janus v. AFSCME: Compelling Union Dues in the Public Sector

The Supreme Court is set to hear Janus v. AFSCME, a case which will determine whether employees represented by a public sector union under a collective bargaining agreement, but not full union members in good standing, should be required to pay agency fees to the public sector union. The ruling will potentially determine the future of labor unions in the United States.

At the outset, the controlling law is that of In Abood v. Detroit Board of Education, 431 U.S. 209 (1977). In that case the Supreme Court upheld a Michigan law which permitted public employers to require its employees to pay agency fees in lieu of union dues for employees who did not wish to join the union, against a First Amendment challenge. The rationale in Abood was based on equity, that even the non-union member employees were covered by the collective bargaining agreement between the union and the employer and therefore benefitted from the union representation.[1] The decision was limited, however, in that the agency fees were capped only to an amount necessary to cover the costs of union activities that benefited the non-union employees.[2] Moreover, the representative union could not expand the agency fees to cover “the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to [the union’s] duties as collective-bargaining representative.”[3] This solution seemed simple and straightforward: non-union employees paid the agency fee, the union kept dues and agency fees separate and used agency fee funds only to the benefit of the non-union employees. But, one of the primary tools used by unions is political speech, and that is the central issue in Janus.[4]

The appellant, Mark Janus, argues that there is no distinction between a union engaging in political speech by endorsing candidates and pushing legislation and engaging in the collective bargaining process with the State.[5] The argument surmises both processes are so inextricably intertwined that requiring an agency fee to be paid by non-union employees mandates political speech, and is contrary to the First Amendment.[6] If the Supreme Court finds for Mark Janus, what will be the lasting effect on public sector unions, and what are the workable solutions?

A forecast of diminished membership and funding might be the most impactful and lasting effect public sector unions would experience. Diminished membership will likely occur as union members realize that they do not have to pay union dues or an agency fee to be covered and protected under the industry collective bargaining agreement. The problem then becomes the ability of the union to collectively negotiate when funding for negotiation purposes wanes. Thus, hamstringing public sector unions at the negotiation table with state agencies.

            If the Supreme Court determines that the agency fee should not be required, then it should also rule that those employees who elect to work as non-union member employees are designated as at-will employees or individual contractors outside of the protections and coverage of the collective bargaining agreement. Another alternative might be to require more stringent accounting by public sector unions, such as a separate account designated only for agency fees to eliminate any potential comingling of funds, or frequent account reporting to agency fee payers. Either option preserves the integrity of public sector collective bargaining and maintains a more equal playing field

[1] Abood v. Detroit Board of Education, 431 U.S. 209, 221-222 (1977).

[2]  Id. at 235-36.

[3] Id.

[4] See Janus v. Am. Fed’n of State, Cty. & Mun. Employees, Council 31, 851 F.3d 746, 748 (7th Cir.), cert. granted sub nom. Janus v. Am. Fed’n, 138 S. Ct. 54, 198 L. Ed. 2d 780 (2017)(“the existence of an Illinois law requiring that he pay fees to the Teamsters, the union required to bargain on his behalf.”); see also Robert Iafolla, Public worker tells top U.S. court that mandatory union fees violate First Amendment, Reuters Legal (Nov. 30, 2017).

[5] See Janus v. Am. Fed’n of State, Cty. & Mun. Employees, Council 31, 851 F.3d 746, 748 (7th Cir.); see also Iafolla, supra note 4.

[6] See Janus v. Am. Fed’n of State, Cty. & Mun. Employees, Council 31, 851 F.3d 746, 748 (7th Cir.); see also Iafolla, supra note 4.

 

C.T.E., Professional Athletes, & The Military

Professional sports leagues and clubs, and the branches of the military need to test for chronic traumatic encephalopathy, or C.T.E., prior to and during the service of a player or service member. C.T.E.-the “punch drunk syndrome”[1]-is a degenerative brain disease caused by the release of a protein called Tau.[2] Recent research and evidence strongly suggests that Tau proteins form in the brains of individuals who suffer repetitive hits to the head over a period of years.[3] It is an increasingly serious issue in sports right now as concerns for player safety become more pressing.

C.T.E. develops as Tau proteins form clumps in the brain.[4] These proteins slowly spread, killing brain cells and causing atrophy in the brain.[5] Athletes as young as seventeen years old have been diagnosed, though most who suffer from the disease do not exhibit any signs or symptoms of the disease until their late twenties or early thirties.[6] The most common symptoms being impulse control issues, aggression, depression, paranoia, memory loss, confusion, erratic behaviors, focus issues and disorganized thoughts, as well as difficulties with balance and motor skills.[7] The list of athletes diagnosed with C.T.E. is alarming, and not until recently[8] could C.T.E. be diagnosed while someone was alive.[9] For athletes, military service members, contact sports leagues, particularly the National Football League, C.T.E. is life or death. Some questions in tort and contract arise in relation to these individuals and entities. Does assumption of the risk/contributory negligence apply as a defense?  How does C.T.E. affect an athlete’s or a service member’s mental capacity to sign and be bound by contract to play or serve in the military? How is the duty to mitigate damages affected?

Applicability of Assumption of Risk, Contributory Negligence, or Comparative Fault Defenses

A tort claim for negligence requires there be a duty, a breach of that duty, and the breach of the duty was the proximate cause of some harm that resulted in damages. Generally, there is an express assumption of risk when a player or military service member “expressly states a desire to assume a risk or has signed a waiver or release which contains language of assumption of risk,” and is typically indicated by a written document that applies “only between the participant and the organizer, operator, or promoter and not between the participants themselves.”[10] Assumption of risk is incorporated into contributory negligence and comparative fault statutes amongst the states as affirmative defenses to liability under negligence theories. Generally, contributory negligence bars any recovery for a plaintiff that also acted negligently, and comparative fault is a percentage-fault question that limits a plaintiff’s recovery by the plaintiff’s percentage of fault.

Professional athletes and military service members could be said to have assumed the risks associated with C.T.E. by express agreement and waiver, and thus subject to contributory negligence and comparative fault defenses. The negligence in question, however, does not go to assuming the risks of playing or serving in the military, but to a duty of reasonable care regarding the information available to both parties at the time of executing the respective contracts.[11] The actors, the professional sports leagues, teams, or clubs and the branches of the military, create a risk of physical harm on the part of the athletes and service members by not subjecting them to C.T.E. testing during medical evaluations. It is similar to an informed consent[12] action but with additional contractual implications.

The Contractual Implications: Informed Assent?

True consent to what happens to one’s self is the informed exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each.[13]

If an athlete or service member is unaware of a potential C.T.E. diagnosis prior to entering into an agreement to play or serve, they may lack the legal capacity necessary for mutual assent because of the deteriorating effects of C.T.E. This is especially true when one party knows or reasonable should know the risks associated and do not disclose as much to the other party.[14]

Professional sports leagues and the individual clubs, as well as, the military employ doctors who perform physical examinations of every individual prior to and after entering into the league, team, or military service. Nearly every physical attribute of the athlete or service member is known. Except C.T.E. diagnosis. If the new testing procedures prove effective in the diagnosis of C.T.E. then the leagues, teams, and military will have access to evaluate the mental health of all they employ. It will also assist the athlete or service member in making an informed decision to enter into a contract and assume the risks associated (repetitive head trauma) with professional sports and military service. As an area where torts and contracts are intertwined-”contorts”-requiring the C.T.E. testing developed by Boston University ensures informed mutual assent. Informed mutual assent precludes an athlete or service member to claims of negligence or medical malpractice by organization doctors which would thereby extend to the organization through the doctrine of respondeat superior.

[1] C.T.E. Resources, Concussion Legacy Foundation (last visited Nov. 19, 2017), https://concussionfoundation.org/CTE-resources/what-is-CTE.

[2] Id.; What is C.T.E.?, Brain Injury Research Institute (last visited Nov. 19, 2017), http://www.protectthebrain.org/Brain-Injury-Research/What-is-CTE-.aspx.

[3] Concussion Legacy Foundation, supra note 1.

[4] Id.

[5] Id.

[6] Id.

[7] Id.; Chronic Traumatic Encephaly, Alzheimer’s Association (last visited Nov. 19, 2017) http://www.alz.org/dementia/chronic-traumatic-encephalopathy-cte-symptoms.asp.

[8] Jonathan D. Cherry et al., CCL11 is increased in the chronic traumatic encephaly but not in Alzheimer’s disease, PLOS One, Sep. 26, 2017, available at http://journals.plos.org/plosone/article/file?id=10.1371/journal.pone.0185541&type=printable.

[9] Concussion Legacy Foundation, supra note 1.

[10] 30 Am. Jur. Proof of Facts 3d 161 (Originally published in 1995).

[11] See Restatement (Third) of Torts: Phys. & Emot. Harm § 7 (2010)(“(a) An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.”). See also Restatement (Third) of Torts: Phys. & Emot. Harm §§ 18 (2010) and 40 (2012) for the tort of negligent failure to warn (§ 18) and the liability in special relationships, principally employer-employee relationships § 40.

[12] See generally 79 A.L.R.2d 1028, § 2 (Originally published in 1961) Informed consent is within the scope of medical malpractice, but in informed consent the doctor does not relay to the patient sufficient information to a medical procedure and thus any consent given not sufficiently informed. HOwever, in some cases the doctor is permitted to withhold information if its disclosure would be harmful to the patient. Id.

[13] Canterbury v. Spence, 464 F.2d 772, 780 (D.C. Cir. 1972).

[14] See Restatement (Third) of Torts: Phys. & Emot. Harm §§ 18 (2010).

Ethical Considerations for Attorneys Using Cloud-Based Servers to Store Client Information

The Illinois State Bar Association recently addressed the issue of whether Lawyers could store client information on cloud-based servers. See ISBA Professional Conduct Advisory Opinion No. 16-06. Given the increasing popularity of cloud-based services like Dropbox, Microsoft OneDrive, and Google Drive as means for easy file storage and sharing, the Illinois State Bar’s Ethics Opinion provides some much-needed guidance for attorneys.

Lawyers using cloud-based services usually contract with third-party internet service providers to store client information in a remote location not controlled by the lawyer. Id. According to the Illinois State Bar Association, the lawyer’s lack of direct control over the servers on which client data is stored raises ethical concerns of competence, confidentiality, and proper supervision of non-lawyers. Id. Although the Illinois State Bar declined to provide specific requirements for lawyers when choosing and utilizing outside providers for cloud-based services, it did provide some useful guiding principles and considerations. See id. A lawyer’s duty to provide competent representation requires that he keep abreast of changes in the law and its practice, “including the benefits and risks associated with relevant technology.” Id. As such, the Illinois State Bar believes lawyers who use cloud-based services must obtain and maintain a sufficient understanding of the technology they are using to properly assess the risks of unauthorized access and/or disclosures of confidential information.” Id. Lawyers are thus required to make a due diligence investigation when selecting a cloud provider. Id. The Illinois State Bar’s Ethics Opinion offers a non-exclusive list of reasonable inquiries and practices for lawyers contemplating cloud-based services. See id. These include:

  1. Reviewing cloud computing industry standards and familiarizing oneself with the appropriate safeguards that should be employed;
  2. Investigating whether the provider has implemented reasonable security precautions to protect client data from inadvertent disclosures, including but not limited to the use of firewalls, password protections, and encryption;
  3. Investigating the provider’s reputation and history;
  4. Inquiring as to whether the provider has experienced any breaches of security and if so, investigating those breaches;
  5. Requiring an agreement to reasonably ensure that the provider will abide by the lawyer’s duties of confidentiality and will immediately notify the lawyer of any breaches or outside requests for client information;
  6. Requiring that all data is appropriately backed up completely under the lawyer’s control so that the lawyer will have a method for retrieval of the data;
  7. Requiring provisions for the reasonable retrieval of information if the agreement is terminated or if the provider goes out of business.

Id. A few of the above inquiries and practices underscore the importance of properly supervising the third-party cloud service providers to ensure that their actions do not result in a breach of the lawyer’s duty of confidentiality. The Illinois State Bar Ethics Opinion makes it clear that a lawyer’s due diligence at the time he enters into an agreement with a cloud service provider will be inadequate to avoid an ethical violation should a breach of confidentiality later occur due to a failure of the provider or due to the actions of hackers. Id. This is because a lawyer has ongoing obligations to protect confidential client information and to supervise non-lawyers under Rules 1.6 and 5.3. Id. Lastly, as future advances in technology can render a lawyer’s current reasonable protective measures obsolete, the Illinois State Bar believes that “a lawyer must conduct periodic reviews and regularly monitor existing practices to determine if the client information is adequately secured and protected.” Id.

The Illinois State Bar’s careful consideration of the ethical challenges posed by ever-increasing use of cloud-based services in the legal profession is commendable. It provides helpful guidance to attorneys who are already using cloud-based services as well as those who are contemplating cloud-based services but are unsure how to implement them in an ethically responsible way. In today’s technological world, advisory ethics opinions like Illinois’ are vital as they help maintain the integrity of the legal profession.

A NEW GENERATION OF YELLOW JOURNALISM: New Media, Censorship, and the First Amendment Part II

Technology and society have changed since the days of yellow journalism. The readership of the New York World and the New York Journal did not extend much further than the New York City area. Any fake news they printed stayed within New York City limits. At present the internet and more specifically social networks allow news organizations to reach a much broader reader base. Most modern-day consumers turn to the internet for their news. Some go to trusted websites others turn to comedy shows, and some go to their social media news feeds. While competing for a reader’s money is fundamentally different from competing for clicks to a website the headlines still need to be attention grabbing to generate the number of views that web page advertisers want to see. This has led to headlines such as ‘Pope Francis Shocks World, Endorses Donald Trump for President’ and the briefly popular ‘The Amish Commit Their Vote to Donald Trump; Mathematically Guaranteeing Him A Presidential Victory’. These and other similarly false articles made their rounds on social media.

In addition to blatant content censorship, Facebook censors in another way. Facebook creates echo chambers. Like what the New York papers were doing in 19th century giving the reader what they like and what reflects their ideals. In the 19th century it was national pride and anti-Spanish, pro-Cuba sentiment. Today the content is specific to each user. Given this awesome power to guide users’ thoughts in a way that makes George Orwell’s 1984 seem like present day the public has demanded that Facebook do what government cannot. Shield them from the fake news that has begun to pollute the echo chambers of their news feeds, people have demanded that Facebook become the arbiters of truth lending more credence to news stories that appear in their news feed. In response to these public outcries for action Facebook has created a method for removing fake news detailed here.

However, the public’s demand for Facebook to further censor their news feed and Facebook’s, admittedly, limited capitulation flies in the face of the First of Amendment. The cure for fake news is not Big Brother sorting the false statements from the true statements for us; it is for ourselves and others to think critically about our sources and if we have reason to doubt and distrust what we have read. Then it is incumbent upon ourselves to speak truthfully to share the facts (not alternative facts) and allow others in turn to form their own opinions of our work. There is no reason to deny the purveyors of fake news a place in our news feed; some people may derive entertainment from reading the outlandish stories in much the same way many find The Onion (http://www.theonion.com/) to be an enjoyable read. The Onion itself is among most prolific purveyors of fake news. I know what I ask is not easy, but it may be necessary to allow the market place of ideas to thrive.

Sources:
A Time Line of Yellow Journalism http://fs2.american.edu/wjc/www/yellowjo/timeline.html
Alcott and Gentzkow: Social Media and Fake News in the 2016 Election Available at: https://web.stanford.edu/~gentzkow/research/fakenews.pdf
How A Prankster Convinced People The Amish Would Win Trump The Election https://www.buzzfeed.com/ishmaeldaro/paul-horner-amish-trump-vote-hoax?utm_term=.qigKA6mdz#.kmdgM9lVw
From Hate Speech To Fake News: The Content Crisis Facing Mark Zuckerberg http://www.npr.org/sections/alltechconsidered/2016/11/17/495827410/from-hate-speech-to-fake-news-the-content-crisis-facing-mark-zuckerberg
What Facebook Is Doing to Combat Fake News https://www.scientificamerican.com/article/pogue-what-facebook-is-doing-to-combat-fake-news/
Facebook Details Its New Plan To Combat Fake News Stories http://www.npr.org/sections/thetwo-way/2016/12/15/505728377/facebook-details-its-new-plan-to-combat-fake-news-stories

IEPs: Individual Education Plan or Incredibly Exasperating Plan

Individualized Education Plans (hereinafter IEPs) are critical for the educational progress of children with disabilities. An IEP as defined under 20 U.S.C. § 1414(d)(1) is a “written statement for each child with a disability” that includes information regarding the child’s current education level and performance, annual goals, progress reports on the child’s ability to meet those goals, lists of services and resources in place to be provided to the child, and a description of the extent the child will participate with nondisabled students in classes and activities.

The Supreme Court case, Endrew v. Douglas County School District, decided earlier this year should have had parents dancing in the streets. It held that to meet the obligations of the Individuals with Disabilities Education Act (IDEA), IEPs should be created with the goal of educational progress for a child with a disability in mind. The broad focus of IEPs encourages children with disabilities to become thriving students by increasing access to resources and educational goals. However, the Endrew case, while well-intentioned, did nothing to help parents and guardians of those children with disabilities understand the IEP so that they may ensure that their children are getting access to the resources needed for them to thrive.

IEPs are written in highly technical language, making it difficult for the average parent to understand. As a result, the fiercest advocates for these children are potentially excluded from doing so, simply because they cannot understand the document. Moreover, these parents are forced to spend hundreds of dollars to hire an advocate to navigate them through the IEP process. When it comes to one’s child, most parents are willing to do anything for them and may be prohibited when crucial documents are drafted with such highfalutin and technical language that they cannot fully comprehend.

A parent or guardian knows their child better than anyone. They know what will allow their child to succeed. They have probably been to every doctor and therapy appointment. They have probably researched their child’s particular disability in depth. They have spent years developing strategies and learning what steps to take in order for their child to succeed, but are precluded from advocating for their child simply because of a piece of paper they cannot understand. This piece of paper has such power. It determines a child’s access to resources over the course of the school year.

One concerned parent of a child with autism noted:
They are written in legal language and terminology that most parents do
not understand. Parents tend to assume that the school automatically
knows what the children need and just sign off on the IEPs due to the
language. Additionally, if parents have questions regarding the
document, the school tends to send the message that it’s inconvenient to
take time to over things in a broken down or simplified way. Frankly,
many parents put too much trust in the education administration because
of the jargon used. And not to say that all school systems fall into the
category of doing what’s best for their bottom line, but that’s been our
experience.
-Brittney Effler

Brittney Effler is a mother to a three-year-old boy on the autism spectrum with childhood apraxia of speech about to begin pre-school. He may be on the spectrum, but he is capable of doing just about anything when given the correct resources. A parent knows best, but without being able to assess what an IEP is actually providing for a child, how can a parent advocate zealously for a child? For a child on the spectrum, every resource counts. It could mean the difference between verbal and non-verbal, socializing and making friends, or even gaining a level of independence that every child is entitled to no matter what disability they may have.

The spirit of the Endrew case cannot be achieved for as long as IEPs remain inaccessible to the majority of parents and guardians. The responsibility is on the parents and guardians to advocate for their child to ensure their child makes progress and does not plateau, but they cannot do so if they do not understand the document that states how the school system plans on achieving success for each and every child.