There are some interesting parallels between football and our justice system. The similarities aren’t really accidental, but the result of our efforts to preserve a sense of fairness in fierce contests that have such clearly defined winners and losers.
In its pursuit of fairness during this college football season, for example, the National Collegiate Athletic Association broadened its experimentation with instant replay to increase the accuracy of the officials’ calls, which are often significant and sometimes decisive in a game’s outcome.
Instant replay has been in use in the National Football League for some time now, and NFL officials, coaches, teams and fans have gotten used to the process. Still, the NCAA chose to make one aspect very specific. Its rule change states, “There must be indisputable video evidence for an on-field officiating decision to be changed…”
This is the sports rule equivalent of what we call the “burden of proof” in our justice system. In the NCAA football standard, the ruling of the officials on the field stands, unless whoever is challenging that decision can produce, via the video replay, indisputable evidence that it was wrong and should be overturned.
In our justice system, the burden of proof concept is a bit more complicated. In a recent United States Supreme Court decision, Justice Sandra Day O’Connor cited a legal authority (“McCormick on Evidence”) as describing burden of proof as one of the “slipperiest members of the family of legal terms.”
The case, Schaffer vs. Weast, involved a special-education student whose parents were unhappy with their school district’s instructional plan for him. More specifically, the case focused on the legal question of whether the school district or the parents had the obligation to prove the instructional plan was either inadequate or acceptable. The court decided the parents had the burden of proof.
One aspect of the case has a direct parallel to football’s instant replay system. There is a separation of the burden of proof into two aspects: burden of evidence and burden of persuasion. A football coach who challenges a call by the officials has no ability to produce evidence. The video record is entirely in someone else’s hands and, to a large degree, controlled by the same officials whose judgment is being challenged.
In the same way, a student or a parent who brings a dispute over special education to court has very little access to the statistical data or other information that might have an impact on the decision. That is generally in the hands of the school district being challenged.
In cases involving special education, the Individuals with Disabilities Education Act (IDEA) anticipated the burden of proof issue and gave the school districts primary responsibility for producing the evidence, even when it was defending itself.
What the IDEA legislation didn’t anticipate were the economic implications of special education – more specifically, the burden of cost. And the economics involved in that burden is another of those “slipperiest” of things.
The Everett School District is one of 12 now suing the state for failing to provide adequate funding for special education. According to the school districts’ calculations, the state is short-changing them by about $100 million a year.
From a direct economic cost standpoint, the outcome of this case – in the sense of who wins – is not significant. It matters very little to the economy generally, or to taxpayers who end up with the bill, whether the money comes out of the state’s treasury or the school district’s.
Of far greater economic interest will be any unintended consequences of the state’s defense in the lawsuit, which involves audits and analysis of actual expenditures by school districts. This could underscore a key shortcoming of the special-education system: control of economic costs.
Because Congress chose to ignore the costs of special education when it created the IDEA law, states and school districts were legally bound to provide the education, essentially without regard to economics.
For the most part, parents of special-education students are reasonable people, and this has helped keep budgets from bursting. Still, special education manages to be heartwarming, heart-breaking, effective, questionable and often staggeringly expensive – all at the same time. And it has been extremely difficult, both emotionally and legally, to establish any real standards of cost-effectiveness for it.
Ultimately, the economics of special education will force us to confront the issue. This confrontation will take place in our courts, and the key legal issue will be the burden of proof: who gets to say how much is effective, and how much is enough. And that is when, just as in a hotly contested football game, all our efforts to ensure fairness will pay off.
James McCusker is a Bothell economist, educator and consultant. He also writes “Business 101” monthly for the Snohomish County Business Journal.
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