UNC’s response to the amended Notice of Allegations: the strongest arguments

UNC academic scandal explained

The University of North Carolina at Chapel Hill endured a multi-year NCAA investigation into a system of fake classes taken by thousands of students, roughly half of them athletes, that spanned three decades.
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The University of North Carolina at Chapel Hill endured a multi-year NCAA investigation into a system of fake classes taken by thousands of students, roughly half of them athletes, that spanned three decades.

North Carolina on Tuesday released its response to the NCAA’s amended Notice of Allegations, and the response is essentially an exercise in exposing the fact that the NCAA has been powerless to handle the bogus African Studies classes at the heart of the investigation.

These were classes that existed for 18 years and ones that included little to no instruction, no faculty oversight and demanded little work – only a paper that often received a high grade regardless of its quality. Athletes, about 4 percent of the student body, accounted for nearly half of the enrollments.

The key part to remember now, though: The NCAA hasn’t found those classes to be in violation of any rules and bylaws. Does that mean the NCAA is OK with the classes? Does it mean the classes simply don’t fit into its rulebook?

The underlying reasons aren’t as important as the reality that the NCAA has now twice issued a Notice of Allegations at UNC. And in both the original NOA and in the amended one, the classes themselves were cleared, in effect, of having violated NCAA rules.

Jay Bilas, for one, wasn’t surprised by UNC’s response. Bilas, an ESPN college basketball analyst and an attorney, has been an outspoken critic of the NCAA. He has also become a trusted voice in NCAA compliance matters, the UNC case included.

“It’s largely what I expected,” Bilas said of UNC’s response, “and I think UNC’s right in its response, that this is an issue of the NCAA’s jurisdiction in regard to academic issues.”

And the NCAA’s jurisdiction, Bilas said, is essentially nonexistent in what happened at UNC. Bilas acknowledged that “people don’t want to hear” about how the UNC case doesn’t fit into the NCAA rulebook.

But that, he said, is the reality. He told a brief story about how presidents of colleges and universities told the NCAA, “years and years ago (to) stay out of our curriculum.”

“Really what academic fraud means to the NCAA is a person or persons helping an athlete improperly get one over on the university,” Bilas said. “And that’s not what happened here, in large measure.”

In its response, UNC argued, again and again, that bogus African Studies courses and the problems raised by them were beyond the purview of the NCAA. Here’s a look at 10 of UNC’s strongest arguments in its response, followed by an analysis of them:

1. The Amended Notice of Allegations refer to core academic issues of course structure, content, and administrative oversight that are beyond the scope of authority granted to the NCAA by its members. Such matters concern fundamental issues of institutional and academic integrity, not athletics compliance, and the University has addressed them with its accreditor. They are not the proper subject of an NCAA enforcement action.

The overarching theme of UNC’s response is summed up right here. It’s a theme that UNC returns to again and again throughout its response. The gist is this: The problems at the heart of this case go well beyond the scope of the NCAA’s jurisdiction.

2. The Amended Notice of Allegations concerns issues known to the NCAA when it issued the previous Infractions Report in 2012. Before the Committee’s October 2011 hearing, the NCAA and the University investigated the academic irregularities in the (African and Afro-American Studies) Department and whether ASPSA employees provided impermissible academic assistance to student-athletes. The NCAA considered and resolved most of that alleged conduct in 2012, and the remainder should have been raised in that proceeding. Under Bylaw 19.8.3, the NCAA’s prior decision on those matters is “final, binding, and conclusive,” and issues raised in the previous investigation cannot support allegations in the current ANOA.

Here is another important, albeit smaller, part of UNC’s overall argument. Basically, that the NCAA knew about problems in the AFAM department during an earlier investigation into improprieties within the UNC football program, and that when the NCAA knew about those problems it chose not to pursue them or make them a part of that earlier case. As noted in our story about this, the scope and depth of the problems in the AFAM department expanded considerably after 2011. Nonetheless, UNC is arguing that the NCAA knew enough to do something about this case then, and declined.

3. Each of the Amended Notice of Allegations is untimely under Bylaw 19.5.11, the NCAA’s four-year statute of limitations, for the reasons explained in Section II.D.

Though perhaps not as powerful as some of UNC’s other arguments – namely that the core of the case is beyond the scope of NCAA rules, or that the NCAA knew about problems within the AFAM department before ruling in the football investigation – this argument is nonetheless important. UNC is saying here that all of the allegations it faces conflict with the NCAA’s statute of limitations bylaw.

4. The University raises these jurisdictional and procedural issues not to excuse the underlying conduct, or to escape accountability for those events before its accreditor or elsewhere, but rather to ensure mutual adherence to the rules that govern NCAA enforcement actions, including this one.

Another recurring theme in UNC’s response: We’re not trying to excuse nearly two decades of bogus classes in which athletes accounted for nearly half of the enrollments – we’re just saying that this whole thing doesn’t really fit anywhere under the NCAA rulebook.

5. The ANOA raises fundamental questions about the reach of NCAA authority to core academic functions of its members, and about how that authority has been exercised in this case. Further, given the unusual history of events that is discussed throughout this Response, the ANOA raises a number of jurisdictional and procedural issues under the NCAA constitution and bylaws that need to be addressed prior to a discussion of the University’s responses to the allegations.

In other words: Before we take on each individual allegation, let’s talk about how the NCAA’s own rules and bylaws don’t cover what happened here.

6. The NCAA’s constitution and bylaws do not extend to matters related to academic structure, content, and processes on a member institution’s campus. This most basic limitation impacts any analysis of this case.

In the newspaper world, editors often like to talk about nut grafs, which are structured paragraphs that tell readers what a story is about. Nut grafs are often high in a story and the point of them is to, well, get to the point and establish where the story is going. If there’s a nut graf in UNC’s response, this might be it.

7. After the Cadwalader Report (also known as the Wainstein Report) was issued, the enforcement staff initially expressed to the University its desire to revisit the case because it anticipated individuals who were previously unavailable might now be available for interviews. While this did not occur, the staff engaged in additional extensive investigation in 2014 and 2015 related to the anomalous courses and the other irregularities in the (AFAM) Department. The NCAA concluded yet again that anomalous courses did not violate NCAA bylaws prior to issuing both its NOA and its ANOA.

UNC is making the point, once again, that the NCAA Enforcement Staff never found the bogus classes themselves to constitute an NCAA rules violation.

8. The University reasonably relied to its detriment on the resolution of the 2010-11 investigation with the 2012 Infractions Report and these repeated reassurances in recruiting staff and students-athletes. Staff and student-athletes, in turn, reasonably relied to their detriment in accepting employment and deciding to enroll at the University, believing that the University would not be subject to the risk of future sanctions for conduct previously investigated and resolved. The long delay between the NCAA’s first receiving notice of the anomalous courses and the other academic irregularities in August 2011 and its current enforcement action only underscores the unfairness of the situation.

UNC is arguing, perhaps subtly here, that the long, drag-it-out nature of this case has been a punishment of its own kind, and a kind of unofficial sanction. The university mentions the burden this case has had on staff and athletes who arrived believing that any NCAA investigative matters were in the past. What’s not mentioned, though, are the athletes who never arrived at UNC because of this mess and how long it has taken to resolve. This argument won’t carry the weight that others will, and likely won’t have much of an effect, if any, on how this case is handled. Still, it’s interesting that UNC included it, and that it is arguing, in effect, that the long, winding investigative process has been its own kind of penalty.

9. The University has recognized its failings related to its lack of proper oversight over the (AFAM) Department, which led to the anomalous courses being created and offered to thousands of students over many years. The University has made extensive efforts to correct and overcome them, but those failings, as serious and regrettable as they are, do not present NCAA rules violations that are punishable under NCAA Constitution 2.8.1. …. The ANOA does not allege that the academic counselors in ASPSA violated any rules through their recommendation of anomalous courses to student-athletes. Inasmuch as the anomalous courses were offered to the student body in general and therefore did not violate any NCAA rules, there can be no restriction on ASPSA assisting student-athletes in enrolling in the courses.

Here are UNC’s arguments against the two most serious components of the failure to monitor charge. The NCAA Enforcement Staff alleged that the university failed to monitor the AFAM department and its scheme of “anomalous” courses, and that the university failed to monitor academic support program members who sent athletes into those “anomalous” classes. UNC’s response: Monitoring AFAM isn’t something that an athletic department would do, and thus doesn’t fall under NCAA rules. And, since the classes didn’t constitute a violation, what’s the problem with academic advisers enrolling athletes in them?

10. The academic irregularities – grave as they were – do not, however, constitute a lack of institutional control under the NCAA constitution and bylaws. The University acknowledges that information was available that should have prompted questions about the anomalous courses and that it should have identified and investigated them sooner. As explained in Section II and in response to Allegation 4, however, the anomalous courses did not violate NCAA rules. Neither the courses nor student-athlete enrollment in them are the subject of an allegation in the ANOA.

And here is UNC’s response to the lack of institutional control charge, which is the most serious allegation the university faces. It’s an argument that’s similar to the one UNC used against part of the failure to monitor charge. That is, if the classes at the heart of this case don’t represent an NCAA violation, then how is it appropriate to levy allegations of misconduct related to classes that don’t violate NCAA rules? The entire lack of institutional control allegation is based on the premise that individuals in the athletic and academic administrations didn’t “identify or investigate anomalous courses” in the AFAM department. But, at the same time, the NCAA Enforcement Staff concluded that those classes did not constitute a rules violation. That was always a weakness in the NCAA’s argument against UNC, and the university exposed it in its response. The question now is what the NCAA Committee on Infractions will think.