(revised 8/23/17)
After six years and three sets of allegations, the NCAA has not charged UNC with "academic fraud."
At first -- from Oct 2011 to early 2014 -- the NCAA said there were no violations.
Then, in 2014, the NCAA Enforcement Staff opened (re-opened?) an investigation, which led to UNC being charged with violating Impermissible Benefits rules in May 2015. That charge was subsequently dropped and replaced with a Failure to Monitor allegation in the Apr 2016 Notice of Allegations.
After a Committee on Infractions procedural hearing, and the Panel's questioning of NCAA Enforcement's "framing" of the allegation, the Enforcement staff, rather than charging UNC with institutional academic misconduct, reinserted the charge Impermissible Benefits into a 3rd set of allegations.
Through it all, the Enforcement Staff never alleged a violation of NCAA's "academic misconduct" rule. This evolution of charges wasn't due to new discoveries or material changes to the facts of the case. The shifting in allegations was due to the vagaries of what, how or even if NCAA bylaws applied.
The one element in the material facts of the case that did change during that time frame was the inquiry and assessment by UNC's accrediting body, the Southern Association of Colleges & Schools, Commission on Colleges (SACSCOC). UNC was the subject of not one but two SACS reviews: the first in 2013; the second in 2015.
The first review was resolved in May 2013, after which UNC provided a follow-up monitoring report one year later. Nothing from those proceeding evoked an NCAA reaction. Even though SACS had challenged the legitimacy of credits awarded in the "irregular" classes, UNC did not deem them "fraudulent" in an NCAA context. NCAA Enforcement and academic affairs staffs either didn't either or didn't take notice.
But SACS took a second look at UNC after the October 2014 Wainstein Report was released. This review resulted in the school being placed on a period of probation. The point of SACS probation isn't to punish for past deficiencies but to serve as a watchful period while UNC demonstrated the effectiveness of reforms in response to "academic fraud."
SACS's accreditation assessment had no bearing on any potential violation of NCAA rules regarding so-called "impermissible benefits." Extra benefits for athletes are strictly the NCAA's concern. Any nexus between SACS and NCAA is academic integrity. Neither the 2013 nor the 2015 SACS assessment have ever translated to NCAA charges of institutional academic misconduct.
Why?
The Enforcement staff explained in its input to the infractions hearing panel that it has not charged UNC with NCAA academic misconduct rules violations because "the institution did not deem the courses to be fraudulent." That is the only explanation the Staff has ever given. Now, the matter is in the hands of a hearing panel before the NCAA Committee on Infractions (COI). In the NCAA's infractions process, the COI is independent of the Enforcement staff, with a relationship to Enforcement that is somewhat analogous to a judge/jury's relationship to a prosecutor.
Will the Panel probe the Enforcement staff at the hearing on the reasoning behind not presenting academic fraud charges?
Will the Panel question UNC on why it didn't deem courses in question to be fraudulent?
Will answers to those questions prompt the Panel -- despite the Enforcement Staff's failure to do so -- to introduce a finding of a 10.1-(b) violation: the NCAA's academic misconduct bylaw?
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| http://www.ncaapublications.com/productdownloads/D111.pdf |
If the COI Panel should be willing to consider 10.1-(b), I maintain that all the pieces for such a finding have long been a part of the record. I just don't know if those pieces are in the record assembled for the COI Panel. Since academic fraud has not been the focus of the Enforcement Staff's case, it's possible the keys to contradicting UNC's failure to "deem the courses to be fraudulent" aren't in that record; or that they are buried deeply enough that the Panel won't notice without a "prosecutor" drawing the Panel's attention to them.
The NCAA shouldn't be in the business of making assessments of member institution academic quality; but the NCAA ought to rely on the agency whose business it is to make such assessments. There is no justifiable reason why SACS's determinations should be segregated from NCAA's proceedings with regard to institutional academic misconduct that impacts athletes.
The COI Panel should take the documentation listed below and challenge UNC to defend, for the record, why it has not, and still does not, consider the academic credit for "irregular" courses to be fraudulent. In doing so, it should also contrast UNC's response with what the institution conceded to SACS, even as early as 2013. I'd even suggest the Panel chair exercise his discretion and invite a representative of SACS to appear at the hearing to put UNC's claim of credit legitimacy to the test.
The Panel should also call the Enforcement staff on the carpet and ask if it had examined UNC's dialogue and concession to SACS, and why UNC actions and responses to SACS do not constitute an implicit (if not explicit) admission of "fraudulent academic credit."
Depending on how UNC and the Enforcement staff answer those questions, the Panel could find "academic misconduct violations" substantiated; and, with its reliance on SACS' assessment, the NCAA need never stray out of its so-called "lane." All assessments of curricular rigor, policy violations, credit integrity, etc. have been done by the University and its accrediting body. All the NCAA need do is reference it as it would pertain to NCAA bylaw 10.1-(b).
Step 1: UNC/SACS determined academic misconduct:
The diagram above is the NCAA's own illustration of 10.1-(b) applicability. "Step 1" is deferred to the school. Only the school (and/or it's accreditor) can decide what is or isn't academic misconduct. NCAA doesn't have a different, specialized definition. To the contrary, the NCAA uses whatever definition the school or its accrediting body uses.
Identifying academic misconduct does not necessarily result in substantiation of an NCAA academic misconduct violation, mind you. To reach that determination, one must also navigate the secondary "steps" in the chart above; but the 1st of those steps IS the sole discretion of the institution.
Did UNC deem academic misconduct had occurred? If that isn't already intuitively obvious, then it can be shown that the answer is "yes" from any of the following UNC/SACS references:
- Review of Courses in the Department of African and Afro-American Studies (by Deans Hartlyn & Andrews), May 2, 2012 http://carolinacommitment.unc.edu/files/2012/05/HartlynAndrews-report.pdf
- Report of the Special Subcommittee of the Faculty Executive Committee, July 26, 2012 http://www.unc.edu/news/12/4.pdf
- Academic Anomalies Review Report of Findings (by James Martin/Baker-Tilly), December 19, 2012 http://carolinacommitment.unc.edu/files/2013/01/UNC-Governor-Martin-Final-Report-and-Addendum-1.pdf
- Report of the UNC Board of Governors Academic Review Panel, February 7, 2013 http://www.unc.edu/news/12/THE-REPORT-OF-THE-UNC-BOG-ACADADEMIC-REVIEW-PANEL-2_7_13.pdf
- SACSCOC Report of the Special Committee, May 2, 2013 https://oira2.sites.unc.edu/files/2017/07/Report-of-the-Special-Committee.pdf
- Investigation of Irregular Classes in the Department of African and Afro-American Studies at UNC-Chapel Hill (Wainstein/CWT), October 16, 2014 http://carolinacommitment.unc.edu/files/2014/10/UNC-FINAL-REPORT.pdf
- Letter from SACS to UNC-CH, November 13, 2014 https://oira2.sites.unc.edu/files/2017/07/UNC-Chapel-Hill.pdf
- UNC Response to the SACSCOC Letter, January 12, 2015 https://oira2.sites.unc.edu/files/2017/07/UNC-Chapel-Hill-Report-to-SACSCOC-Redacted-for-Public-Release.pdf
No.s 1, 3, 6 and 8 above are known to the Factual Items (FI) in the NCAA case record before the COI hearing panel. It is unknown whether the panel members have the other references at their disposal or if they've reviewed them.
But UNC identified the academic misconduct by a former institutional employee all the way back, starting in September 2011, which was first documented in the Hartlyn-Andrews Report (#1 above).
This had been affirmed by Martin Report (#3 above) when the NCAA Academic & Membership Affairs (AMA) provided its input in March 2013 on whether or not bylaw violations had been evidenced at that point in time.
It is beyond question that UNC, UNC's Board of Governors and SACS all affirmed the behavior was the result of academic fraud or misconduct. The real question is whether or not this misconduct is a matter for the NCAA. For a violation of 10.1-(b), identifying academic misconduct isn't enough. "Step 2" (was fraudulent credit awarded to an athlete) or "Step 3" (did athlete played despite erroneous eligibility certification) must be substantiated for there to be an NCAA academic misconduct violation.
Is there evidence of either of those?
Step 2: UNC conceded Fraudulent Academic Credit to SACS
An academic misconduct violation can occur in either of two ways. For this article, I'm only going to address "fraudulent academic credit." Without any other explanation other than its July 17th, 2017 response to UNC, all we know is that UNC's not having deemed any courses to be fraudulent is the reason that Enforcement has not alleged a violation of Bylaw 10.1-(b):
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| NCAA's Written Reply, July 17, 2017 |
- SACSCOC Report of the Special Committee, May 2, 2013 (supra) https://oira2.sites.unc.edu/files/2017/07/Report-of-the-Special-Committee.pdf
- UNC's Information about Accrediting Agency Decision, June 20, 2013 June https://oira2.sites.unc.edu/files/2017/07/SACSCOCDecisionBackgroundJune202013.pdf
- UNC's Q&A about the Accrediting Agency Decision, June 20, 2013 https://oira2.sites.unc.edu/files/2017/07/QuestionsAnswersAccrediting-AgencyDecisionJune202013.pdf
In these references, dating all the way back in mid-2013, UNC ceded that the "irregular" course credits could not "count" toward degree requirements:
UNC's only reason for the lack of impact on degrees already-awarded is its administrative policy "sealing" transcripts one year after graduation. UNC had originally proposed a similar "water under the bridge" approach with degrees yet to be awarded, but SACS rebuffed that proposal saying that would call into question the "integrity of the degrees." UNC acquiesced and provided remedies in those instances to correct the main deficiency: improper assessment of student knowledge/work. "Sealing" transcripts and preventing changes to credits already awarded doesn't grant legitimacy to those credits.
In essence, it was SACS's determination -- and UNC's admission -- that credits from those "irregular" courses were deficient to the point of being invalid. Having already identified the academic misconduct of institutional staff members (Step 1), UNC should have self-reported a 10.1-(b) violation once SACS compelled UNC to deem those credits counterfeit.
UNC didn't. Instead, UNC has sought to insulate itself from 10.1-(b) by creating a faux distinction between those few students whose degrees were impacted and the many more who had already graduated and who were administratively beyond the reach of SACS. It's as if its transcript "sealing" policy makes past credits immune from any legitimacy questions. But an administrative policy of sealing transcripts does not inoculate against "fraudulence."
Neither does UNC's argument that there was no evidence that academic credit was awarded to students who didn't do work they were assigned. That may absolve students of their role in the misconduct, but it doesn't salvage credits from the effects of fraudulence due to institutional misconduct. It was the unauthorized grading practices of the secretary that caused the credits to be deficient; not the work of students.
Another rationale provided by UNC that has been consistently cited in the attempt segregate the issue from NCAA jurisdiction is the claim that student-athletes received no favorable treatment relative to non-athletes. This argument may be relevant to "impermissible academic assistance" but is irrelevant to NCAA's "academic misconduct" bylaw.
Contrary to some claims, SACS never determined credits for "irregular" courses to be legitimate. SACS doesn't have any say over degrees already awarded. Its charter is to accredit schools to award future degrees, and so can only impact degrees yet to be conferred. But that doesn't mean SACS didn't have an opinion on the merits of any credits already awarded for those "irregular" classes. SACS president Belle Wheelan urged UNC to "make whole" those degrees. For SACS, UNC's transcript sealing policy didn't redeem the legitimacy of those awarded credits.
The final question for the COI Panel regarding 10.1-(b) "fraudulent academic credit" would be if the credits were arranged "for…an enrolled athlete." Does this bylaw mean that the misconduct motives had to be specifically for athletics interests? Or does it simply cover situations in which student-athletes were among those who had received the fraudulent academic credits, regardless of motive?
If the latter, then all the Panel needs to do to substantiate that athletes were recipients of the fraudulent credit is to reference the "irregular" course enrollment data in the Wainstein/CWT Final Report-EXHIBITS, October 16, 2014 (tables starting ~pg 90). The infractions Panel can't just sanction UNC for general misconduct. There needs to be specific instances cited where a "student-athlete" received a fraudulent credit. The table from the Exhibits above lists 1800+ athletes who enrolled in and presumably received passing credit from these "irregular" Type 1 courses. The University and NCAA certainly have access to specific names. They don't even need all 1800+.
If an athletics-driven motive for the fraud is, indeed, elemental to NCAA's academic misconduct, then it becomes more problemmatic and the Panel will have to weigh the evidence and determine if UNC's "narrative" that the misconduct did not have an athletics eligibility agenda holds water. This need not be proven beyond a shadow of doubt, but how much the Panel would weigh the opinion of the Wainstein Report versus contradiction by UNC's defense team is a great unknown.
UNC has played a shell game with the NCAA by trying to insulate its academic issues that were addressed by SACS from NCAA jurisdiction. The NCAA need not, nor should it, engage in any assessment of a member school's curricular offerings or legitimacy. But the NCAA can, and should, defer to the assessment performed by the school with its accrediting body, as well as the concessions the school has made to that body.
UNC's only reason for the lack of impact on degrees already-awarded is its administrative policy "sealing" transcripts one year after graduation. UNC had originally proposed a similar "water under the bridge" approach with degrees yet to be awarded, but SACS rebuffed that proposal saying that would call into question the "integrity of the degrees." UNC acquiesced and provided remedies in those instances to correct the main deficiency: improper assessment of student knowledge/work. "Sealing" transcripts and preventing changes to credits already awarded doesn't grant legitimacy to those credits.
In essence, it was SACS's determination -- and UNC's admission -- that credits from those "irregular" courses were deficient to the point of being invalid. Having already identified the academic misconduct of institutional staff members (Step 1), UNC should have self-reported a 10.1-(b) violation once SACS compelled UNC to deem those credits counterfeit.
UNC didn't. Instead, UNC has sought to insulate itself from 10.1-(b) by creating a faux distinction between those few students whose degrees were impacted and the many more who had already graduated and who were administratively beyond the reach of SACS. It's as if its transcript "sealing" policy makes past credits immune from any legitimacy questions. But an administrative policy of sealing transcripts does not inoculate against "fraudulence."
Neither does UNC's argument that there was no evidence that academic credit was awarded to students who didn't do work they were assigned. That may absolve students of their role in the misconduct, but it doesn't salvage credits from the effects of fraudulence due to institutional misconduct. It was the unauthorized grading practices of the secretary that caused the credits to be deficient; not the work of students.
Another rationale provided by UNC that has been consistently cited in the attempt segregate the issue from NCAA jurisdiction is the claim that student-athletes received no favorable treatment relative to non-athletes. This argument may be relevant to "impermissible academic assistance" but is irrelevant to NCAA's "academic misconduct" bylaw.
Contrary to some claims, SACS never determined credits for "irregular" courses to be legitimate. SACS doesn't have any say over degrees already awarded. Its charter is to accredit schools to award future degrees, and so can only impact degrees yet to be conferred. But that doesn't mean SACS didn't have an opinion on the merits of any credits already awarded for those "irregular" classes. SACS president Belle Wheelan urged UNC to "make whole" those degrees. For SACS, UNC's transcript sealing policy didn't redeem the legitimacy of those awarded credits.
The final question for the COI Panel regarding 10.1-(b) "fraudulent academic credit" would be if the credits were arranged "for…an enrolled athlete." Does this bylaw mean that the misconduct motives had to be specifically for athletics interests? Or does it simply cover situations in which student-athletes were among those who had received the fraudulent academic credits, regardless of motive?
If the latter, then all the Panel needs to do to substantiate that athletes were recipients of the fraudulent credit is to reference the "irregular" course enrollment data in the Wainstein/CWT Final Report-EXHIBITS, October 16, 2014 (tables starting ~pg 90). The infractions Panel can't just sanction UNC for general misconduct. There needs to be specific instances cited where a "student-athlete" received a fraudulent credit. The table from the Exhibits above lists 1800+ athletes who enrolled in and presumably received passing credit from these "irregular" Type 1 courses. The University and NCAA certainly have access to specific names. They don't even need all 1800+.
If an athletics-driven motive for the fraud is, indeed, elemental to NCAA's academic misconduct, then it becomes more problemmatic and the Panel will have to weigh the evidence and determine if UNC's "narrative" that the misconduct did not have an athletics eligibility agenda holds water. This need not be proven beyond a shadow of doubt, but how much the Panel would weigh the opinion of the Wainstein Report versus contradiction by UNC's defense team is a great unknown.
UNC has played a shell game with the NCAA by trying to insulate its academic issues that were addressed by SACS from NCAA jurisdiction. The NCAA need not, nor should it, engage in any assessment of a member school's curricular offerings or legitimacy. But the NCAA can, and should, defer to the assessment performed by the school with its accrediting body, as well as the concessions the school has made to that body.
