Not Athletics-Driven

I created this blog in contradiction to Bradley Bethel's "Coaching the Mind." The play on words of this blog's title, inverting Bethel's "Coaching the Mind" was to convey my contention that the academic scandal at UNC was driven by athletic motives. Bethel, of course, staunchly disagrees.

It's been 48 hours since UNC posted the NCAA's revised Notice of Allegations (NOA), and after reading it forwards, backwards and inside out, all I can deduce is that the NCAA must agree with Mr. Bradley. The NOA wasn't amended, in the sense that the word usually means. It was rewritten, entirely removing any culpability for violations from anyone associated with the Athletics Department and its Academic Support Program for Student Athletes (ASPSA), which, during the time frame specified by the NOA, was functionally, if not officially, a part of the Athletics Department.

Instead, according to the new, revised (hard to call it "amended") NOA, the Athletics Department, ASPSA and the student-athletes were impacted by, not party to, the negligence and academic malfeasance of faculty and leadership in the administration and College of Arts & Sciences. Jan Boxill would be the lone exception, though she straddled the boundary between the Athletics Department and the College, having a foot in both the Philosophy Department as faculty and in ASPSA as an academic advisor to Women's Basketball (WBB) student-athletes.

It's almost as if Bradley Bethel wrote the Notice of Allegations for the NCAA enforcement team. Even the application of Lack of Institutional Control (LOIC) in Allegation 5 was revised and corresponds now more closely with how Bethel has interpreted the NCAA principle, in contrast to the NCAA's own explanation of LOIC.

This turn of events all but blows the point of this blog out of the water. I don't consider my criticism of UNC's handling of the scandal to be that of a "banner chaser," meaning one who is guided by sports rivalry and taking delight in the prospect of athletics sanctions. I only reluctantly focused on the NCAA's enforcement process because I couldn't see any other mechanism for holding the university's athletics interests accountable for the scandal if the university, itself, was unwilling to police itself. The Southern Associations of Colleges and Schools (SACS) would be a preferable enforcement agency, given that it WAS an academic failure, but they lack the armament to punish sufficiently to address the incentives that, I argue, were the cause of the scandal and that which I maintain the University still has failed to acknowledge or address (athletics eligibility and academic time contraint relaxation for athletes). For SACS it's either probation or accreditation removal, and the latter is just never going to happen.

But if this NOA presages anything, it's that NCAA seems unwilling (or impotent) to compel the University leadership, administration and its booster power brokers & fans to acknowledge what really drove this scandal. It'll forever remain an academic failure, not caused by athletic motives of eligibility engineering. Barring some unforeseen turn of events or revelation of new information, I'm going to have to learn to live with that.

There are some mysteries about this NOA, though, that I hope will be answered in time.

1. Allegations 4 (Failure to Monitor) and 5 (Lack of Institutional Control) involving Boxill providing impermissible benefits to student-athletes and the failure of oversight that allowed"anomolous" courses to persist are restricted to the period of time from the Fall of 2005 to the Summer of 2011. I can find no explanation for that.
2. There are no Factual Information (FI) exhibits. Why? Perhaps they were redacted before public release of the NOA?
• Answer: Because the FIs require review for privacy protection, they were removed to facilitate release and will be made public after review is completed. (link)
3. The "anomolous" courses are cited by Allegations 4 and 5 as one of the examples of misconduct that should have been caught were it not for failure in faculty and ASPSA supervision, but no where does the NCAA explain what it was about the "anomolous" courses that was improper from an NCAA bylaws perspective.
• It appears UNC officials agree and have echoed the NCAA's own claims that assessment of academic quality or rigor should be out of its (NCAA's) "wheelhouse" and did not result in violation of any NCAA bylaws. (link)
4. How can the allegation of LOIC stand without the deeper and broader allegations of at least the first edition of the NOA? The allegations as they are rewritten don't amount to LOIC.
• It appears UNC officials agree and have challenged the Failure to Monitor and Lack of Institutional Control allegations on these grounds. (link)
5. Why is "athletics" included in the phrasing of Allegations 4 and 5 "individuals in the athletics and academic administrations on campus, particularly in the college of arts and sciences" when nowhere in the NOA is anyone from athletics charged with responsibility for any infractions? All explanatory language assigns responsibility soley to College of Arts & Sciences and institutional leadership.
• Possible answer: if the NCAA considered the question about the independent-style courses raised at the December 2006 Faculty Athletics Committee meeting as an example of the instance in which campus leadership failed to act on knowledge of possible anomolous classes, then that could include culpability of  then-Athletics Director Dick Baddour and then-Associate Director John Blanchard, as well as then-director of ASPSA Robert Mercer, who also could have been considered "athletics" administration.
• In its response, UNC affirms that it considers no athletics department personnel were responsible for the issues. UNC has not acknowledged ASPSA staff or leadership as being Athletics Department personnel during the timeframe covered by the allegations, and the termination, resignations or reassignments of Baddour, Blanchard, Mercer or former football coach Butch Davis have not been characterized by UNC as penalties for failures or misconduct related to the allegations. (link)

It could be Spring 2017 before a final Public Infractions Report is published and we learn if the Committee on Infractions recognizes these questions or accepts UNC's response.

For me, unless something changes, I must concede to UNC's "victory" in averting significant NCAA sanctions. As such, I will shift focus away from the Athletics Department, and back to Faculty, university and ASPSA leadership culpability, since I do agree with Bethel (except for his defense of ASPSA) that  it was their failure that enabled this academic failure. Unlike Bethel, I don't look past the athletics-driven agenda of that portion of the institution. Letting the Athletics Department off the hook doesn't mean the scandal wasn't athletics-driven. Since the Athletics Department appears to be on the path to exoneration, I believe more accountability is required for those that the NCAA charges but doesn't name. I will expect the University to do so in it's response to the NCAA request for information in the last section of the NOA: (Note: the University's response has been published.)

Amy Herman

Background Information

A couple of days ago, I posted this article about "LOIC" as it pertains to the NCAA's Case No. 00231 re. UNC. In that article, I argue that Lack of Institutional Control is tied to the NCAA member institution's compliance actions and processes and not some loss of control of some rogue faculty or staff. To be charged with LOIC means NCAA enforcement is alleging that an institution's compliance efforts were unsatisfactory.

Vince Ille, senior associate Athletics Director, has been UNC's lead compliance officer since July 2012, hired by Director of Athletics Bubba Cunningham in the wake of the previous football and tutor scandal. Amy Herman had been assistant director for compliance for 11 years, and had been promoted to associate director for compliance in early 2011 by Cunningham's predecessor, Dick Baddour.

In July 2012, Herman announced her resignation. There was no indication from UNC nor Herman that the decision was pressured by the NCAA troubles; and Herman would go on to be hired by Duke University to serve as its Assistant Director of Compliance a year later, in 2013.

Since Herman's departure in 2012, the University of North Carolina has undergone four additional inquiries:

• The independent review by former Governor Jim Martin and the Baker-Tilly team into the Irregularities found in the African and African-American Studies Department.
• The subsequent independent review by Kenneth Wainstein
• The review by the Southern Association of Colleges and Schools - Commission on Colleges (SACSCOC) accreditation agency
• Re-opened investigation by the NCAA coincident with the Wainstein investigation

In May 2015, the NCAA delivered a Notice of Allegations (NOA) of infractions to UNC, the most noteworthy of which was Allegation #5: Lack of Institutional Control. The NOA covers the period from Fall 2002 to the Summer 2011: the period of time during Amy Herman's role as UNC's officer in charge of compliance. Remember, "LOIC" is a charge against an institution's compliance program.

Normally, I wouldn't blame someone in the position of Herman for the failure. I could see how someone in her position could be blindsided if certain faculty and counselors had engaged in activities that would lead to academic fraud; or in this case who could have predicted that the NCAA would pursue an impermissible benefits angle vice academic fraud? But the NCAA's decision to allege Lack of Institutional Control would seem to land at Herman's feet.

Kenneth Wainstein reported Herman's role in the scandal this way (pg 126):

In the supplement document release to the Wainstein Report, there is an item illustrating the basis for Wainstein's conclusion and characterization of Herman's relationship to the scandal. In a 2008 email between Herman and one of the academic counselors to student-athletes, Brent Blanton:

My Commentary

I think it's fair to say that Herman -- nor anyone charged with monitoring NCAA rules compliance -- is responsible for assessing academic quality or rigor of curricula a school provides for student-athletes. Just as the NCAA seeks to distance itself from auditing its members academic self-determination, compliance staff are not in the business of questioning or critiquing how faculty run their classes.

Kenneth Wainstein concluded that though Herman, like many others, was aware of the "easy" status of the so-called "paper classes," she (also like many others claim) was not aware of the fraudulent aspects of the arrangement, particularly that administrative assistant Debbi Crowder was grading and administering classwork as proxy for Dr. Julius Nyang'oro.

She was -- obviously, if only from the communique above -- aware of the "infamous" reputation of the classes and clearly exposed to the "nudge, nudge, wink, wink, say no more" sentiment among staffers like Blanton (who the University would later fire).  Additionally, it would be fully within her purview to audit whether or not these "infamous" classes were being  arranged for or accessed by student-athletes or by counseling staff for student-athletes, or delivered by faculty, for the benefit of student-athletes either solely or disproportionately.

Given that the NCAA's decision to pursue violations for "impermissible benefits" violations vice academic fraud was not predicted by many prior to the delivery of Notice of Allegations to UNC in 2015, it might seem like 20/20 hindsight to say Herman failed in her diligence to identify and protect the university from the impact of what Wainstein called a "shadow curriculum."  Wainstein did relate that Herman's focus when it came to the question of "paper classes" was whether they were available to all students; which they were.

This "available to all students" argument has been a staple defense, not simply of Herman, but of everyone who had some knowledge of paper classes. Not a single person, including those the University would subsequently discharge and/or penalize for their roles in the scandal, have accepted any responsibility. Herman, herself, was never charged nor criticized (except by some private individuals and commentators). Duke, when contacted by concerned alumni, has stood by its hiring of Amy Herman.

But much has been revealed since then and if (big "IF") UNC does wind up being sanctioned for Lack of Institutional Control, then that is a finding, specifically, of a failure in UNC's compliance.

How that wouldn't taint Amy Herman as a compliance official, particularly in light of her cavalier communication with one of those fired for participating in what UNC, itself, agreed was academic fraud, I can't answer. But it should concern Duke University.

Lack of Institutional Control (LOIC)

One of the most serious NCAA rules violations that a member institution can commit is Lack of Institutional Control, often shortened to LOIC.

It was allegation No. 5 in the May 2015 Notice of Allegations issued to UNC-Chapel Hill (Case No. 00231):

The NCAA's LOIC charge is commonly misunderstood; and, in discussions and debate of UNC's case, this error has been quite evident in the months since UNC posted the NOA for public release.

It seems that Doc Kennedy of Tar Heel Blog may have gotten the ball rolling with his June 4th, 2015 article: Four Things We Learned from the NOA. Bradley Bethel followed a day later on his Coaching the Mind blog: UNC's Lack of Institutional Control: Not an Athletics-Driven Scandal.

Kennedy and Bethel -- and the countless others who have argued the same point that the LOIC allegation charged the UNC College of Arts & Sciences and not the Department of Athletics -- make a fundamental error, misunderstanding what the NCAA means by LOIC. I bring this up because in the past few weeks since NCAA President Mark Emmert made reference to an amended Notice of Allegation being expected soon in the UNC case, there has been a resurgence of opinions expressed saying LOIC was charged against the academic portion of the institution and not the athletics department.

In a nutshell, here are the NCAA's own words in bullet format about what LOIC means:

None of those duties are delegated to the faculty or any office within the College of Arts & Sciences. To say that "UNC’s alleged LOIC was the result of a complacent Arts & Sciences (A&S) administration" is wrong and misunderstands what the NCAA means by LOIC.

There truly would be "something a little unique" had the "NCAA charged the academic side of UNC's house with failure to monitor Boxill and failure to regulate the AFAM mess." But it didn't.

What Kennedy, Bethel and so many others have focused on, in their defense of the athletics department and desire to assign total responsibility on "the academic side of UNC's house," is this passage from the NOA:

That is from the Allegation No. 5 LOIC language; however, it is not describing what action(s) resulted in the institution committing LOIC. It's relating the violating actions of the previous allegations to failures in how the University did (or didn't) respond or prepare.

LOIC is a compliance failure, not a failure to monitor; and if the University has delegated responsibility for compliance to the Athletics Department (which I believe 100% of NCAA member institutions do), then that's a failure of the Department of Athletics as an essential component of "institutional." Faculty leaders -- deans and department chairs -- are not responsible for:

At UNC-Chapel Hill, those responsibilities do belong to the Athletics Department.

The very fact that the problems were the result of the combined failures of the Athletics Department, the College of Arts & Sciences -- and most importantly, the Academic Support Program for Student-Athletes (ASPSA) that straddled the bounderies of both departments -- is what makes the failure an institutional one. It's neither an academics-side only failure nor an athletics-only failure. It was both academic leadership + athletics leadership who failed. LOIC is not possible without a failure in athletics. If it truly had simply been a failure of the College of Arts & Sciences to monitor its staff, then Allegation No. 5 would not have been included.  Attempting to argue that the NCAA was alleging LOIC of the "academic side of the house" and not the Athletics Department is -- well, forgive me for being blunt -- ignorant.

Now, I will say that IF Kennedy and Bethel are right and the NCAA actually DID intend for the NOA to convey the meaning they describe, then Kennedy would be absolutely right. It would be a unique and ground-breaking precedent-establishing use of the LOIC allegation, and the NCAA would be guilty of following a path incongruent with its entire enforcement history. If academic rigor is out of it's "wheelhouse," charging faculty with LOIC certainly is. I suppose, given the NCAA's enforcement and executive decision missteps in recent years, such a precedent might not be surprising.

And if that IS what the NCAA intended, then UNC would have an easy time arguing that the LOIC charge should be dropped. But there's no way that allegation can be allowed to stand and result in sanctions under that interpretation. Thus, if LOIC does survive any NOA revision and UNC is sanctioned, then it will have confirmed the standard and accepted understanding of the NCAA's meaning of LOIC.