The UNC Academic Scandal: Examining the School’s Response to NCAA Allegations
A generation of college sports fans have grown up associating the University of North Carolina at Chapel Hill with “paper classes” as much as basketball tradition. UNC acknowledged “academic irregularities” that resulted in thousands of students over 18 years receiving high grades in courses that provided little or no instruction and required little effort. According to the information released by UNC, nearly half of the participants identified in the irregular classes were student-athletes. News of the paper classes began surfacing about five years ago, and the NCAA infractions case involving the matter may finally be nearing resolution in 2017.
Over the summer UNC made public its response to the NCAA Enforcement Staff’s allegations of five severe breaches of conduct. UNC has been represented by the law firm Bond, Schoeneck & King in Kansas City with Rick Evrard as lead counsel. During my years on the Enforcement Staff I worked on several cases with Rick and other BSK attorneys representing schools in my investigations and always appreciated their professionalism and experience with the NCAA infractions process; BSK is widely considered to be the best boutique law practice representing schools in NCAA infractions cases.
The UNC response to the allegations, authored by the BSK firm, sets up an intriguing battle between the school and the Enforcement Staff before the NCAA Committee on Infractions (COI) over several issues. Among UNC's many arguments against the allegations are three key areas that I examine below:
1. Some Enforcement Staff allegations overreach into areas of academic oversight that are beyond NCAA jurisdiction.
2. The NCAA statute of limitations prohibits the Enforcement Staff from alleging several of the violations.
3. The NCAA had the necessary information to conduct this inquiry prior to UNC’s last major infractions case in 2011 and should be barred from bringing these allegations at this time.
1. Some Enforcement Staff allegations overreach into areas of academic oversight that are beyond NCAA jurisdiction. For example, one of the Enforcement Staff’s allegations is that UNC failed to adequately monitor the academic department containing the irregular courses, and the College of Arts and Sciences failed to effectively address the use of the courses by students, including student-athletes.
As UNC wrote in its response, “The NCAA has no authority over the operations of an academic department, much less the quality of the courses it offers to students in general.” UNC’s argument on this point is basically that while the academic department offered courses that have been determined to be of questionable academic integrity and gave many student-athletes an unjustified academic boost, those courses were open to the entire student body, and this should be a matter of academic department control that is appropriate for handling by the academic authorities that oversee UNC, such as accrediting bodies, but not by an athletics organization.
It will be interesting to see how this point of contention is dealt with by the COI. If the COI agrees with the Enforcement Staff that NCAA violations arose from a failure by the College of Arts and Sciences to maintain the academic integrity of courses that were offered to all students, other schools may consider auditing all courses that have unusually high numbers of student-athletes earning unusually high grades and evaluating the academic rigor of those courses to try and avoid possible NCAA scrutiny.
Academic misconduct that unintentionally includes some student-athletes along with the general population of students and was not part of a scheme to provide student-athletes with inappropriate academic assistance has historically been an area that the Enforcement Staff has avoided reviewing. Even with a favorable ruling on this allegation, I would not expect the Enforcement Staff to go fishing for similar paper classes on other campuses.
Nonetheless, if other legitimate violations came up on a campus and during an investigation it was discovered that there was an easy course on campus that many student-athletes took to earn a high grade, it is conceivable that the Enforcement Staff could probe deeper into the easy course after a favorable ruling in the UNC case. It is also possible that whistleblowers at other schools would contact the NCAA to report what they believe are comparable paper classes that should be investigated, and journalists may produce stories exposing questionable classes that are used by students, including student-athletes, to earn high grades.
However, the same slippery-slope concerns were raised by schools a few years ago when the NCAA ventured into new territory by penalizing Penn State for its handling of Jerry Sandusky’s sexual assaults on campus, and there have not been subsequent NCAA cases seeking to penalize schools for similar criminal misconduct by staff. The scope and seriousness of the UNC academic irregularities make it a unique case, and I believe the Enforcement Staff would consider it an outlier rather than a license to investigate academic units at schools.
2. The NCAA statute of limitations prohibits the Enforcement Staff from alleging several of the violations. Just as in civil and criminal legal proceedings, a statute of limitations applies to NCAA infractions cases. As UNC points out in its response to the allegations, NCAA Bylaw 19.5.11 states, “[a]llegations included in a notice of allegations shall be limited to possible violations occurring not earlier than four years before the date the notice of inquiry is provided to the institution or the date the institution notifies (or, if earlier, should have notified) the enforcement staff of its inquiries into the matter.”
It appears that UNC and the Enforcement Staff disagree on the four-year period to be used. This case has had such a unique timeline over so many years that identifying the dates to include within the statute of limitations is not as straightforward as one might assume. UNC argues that based on its interpretation of the statute of limitations, a key allegation that impacts two other allegations should be thrown out because everything the Enforcement Staff alleges in it falls outside the allowable time period.
This will be another intriguing decision by the COI that could dramatically impact the Enforcement Staff’s case. I predict the COI will allow the Enforcement Staff’s evidence and related allegations that UNC is questioning to remain part of the case based on the exceptions under Bylaw 19.5.11 that say allegations are not subject to the four-year limit if they, “indicate a pattern of willful violations on the part of the institution or individual involved, which began before but continued into the four-year period,” or “indicate a blatant disregard for the Association’s fundamental recruiting, extra benefit, academic or ethical-conduct bylaws…”
3. The NCAA had the necessary information to conduct this inquiry prior to UNC’s last major infractions case in 2011 and should be barred from bringing these allegations at this time. UNC makes a double-jeopardy argument here: Just as a criminal defendant does not have to defend himself a second time against the same or similar charges after a verdict is rendered, schools should not face the threat of an infractions case after the Enforcement Staff reviewed and did not act upon the same or similar information that was available in a previously concluded infractions case.
The Enforcement Staff investigated UNC athletics and had an infractions hearing with the school in 2011. During that case involving violations unrelated to the current case, the questionable classes were discovered by the school and the Enforcement Staff, and the Staff chose not to make allegations at that time. UNC argues that the NCAA had its chance to investigate and bring allegations then and further argues that it kept the Enforcement Staff apprised of its ongoing inquiry into the “paper classes” since its 2011 infractions hearing, and the Enforcement Staff consistently refrained from making allegations.
The Enforcement Staff can argue that when UNC released the “Cadwalader Report,” a 131-page report by a law firm the school hired to conduct a comprehensive investigation of the “paper classes,” that constituted new information in October 2014 that the Enforcement Staff had the right to follow up on. UNC had several counterarguments in its response, including that the Cadwalader interviews were not conducted under the guidelines for Enforcement Staff interviews and therefore should not be used as evidence in an NCAA infractions case and that some of the information in the Cadwalader report was known to the NCAA prior to the previous infractions case and thus cannot be considered new information.
UNC’s August response to the NCAA allegations was enough to prompt an unusual prehearing with the COI. Last week UNC participated in a confidential prehearing before the COI that was expected to consider the three disputed areas summarized above. Prehearings conducted by the COI are extremely rare – none of my infractions cases in nine years on the Enforcement Staff involved a procedural prehearing with the COI and the school. The outcome of the prehearing is not known – now we can only wait to learn more about whether and when a full infractions hearing on the allegations will be held and if any allegations raised by the Enforcement Staff could be eliminated from consideration based on the procedural, statutory and evidentiary objections raised by UNC.
I would encourage anyone who is interested to follow the Carolina Commitment website for the latest releases from the school related to the case. NCAA bylaws prohibit the NCAA from making announcements on pending infractions cases, so whatever UNC makes public on its website is probably the most complete information you can get until a final decision is rendered by the NCAA Committee on Infractions.