New Article in BusinessWeek re: UNC Scandal

[PackMan97]

The attorney can make that claim, but the client is UNC-CH, is not a private person. As a public institution, don't they have to respond to FOIA requests? They can certainly conceal justify not complying with the request if it violates privacy laws, but otherwise, I assume they have to cough it up.

That's simple, they have the attorney keep the records.

Early when it was just FB, UNC quickly talked to employees about not writing down notes, about not sending emails, about not doing things that would expose UNC to a public records request. One of their favorite tactics was making sure a lawyer was present and they were the ones that took notes.

[Atlanta Duke]

Does this mean unc will get to control what is and what is not in the report that is shared with the public? If yes, then this is all a big waste of time just like the Martin fraud.

DBR posters who practice in North Carolina obviously can provide better guidance than I can, but here is my guess as to how this might play out.

Assuming UNC does not elect to release the full report you can bet the N&O will be filing suit for the full report. Internal investigations are subject to the attorney-client privilege. Under the North Carolina public records act, written communications to a state agency are exempted from mandatory disclosure if they are:

made within the scope of the attorney-client relationship by any attorney-at-law serving such governmental body, concerning any claim against or on behalf of the governmental body or governmental entity for which the body acts, or concerning the prosecution, defense, settlement or litigation of any judicial action, or any administrative or other type of proceeding to which the governmental body is a party or by which it is or may be directly affected.

N.C. Gen. Stat. § 132-1.1(a)

In 2012, the N&O filed suit under the public records act to get records relating to UNC's investigation of allegations concerning the football program that were under investigation by the NCAA. Superior Court Judge Howard Manning held that the NCAA investigation was an administrative proceeding within the meaning of the North Carolina statutes, so attorney-client communications and trial preparation materials related to the investigation would be protected. Judge Manning further held that with regard to information submitted by UNC to the NCAA:

[R]edactions in the public version of the document were appropriate to protect employees and academic student records. However, portions of the response relating to impermissible benefit violations resulting in sanctions and ineligibility are not protected and must be disclosed in unredacted form. In the Court’s words, “the cloak of secrecy must be lifted and the sun let in for all to see.”

http://www.newsroomlawblog.com/2012/...cords-dispute/

At this time, there is no NCAA administrative proceeding to cite as grounds for not releasing the report. And if there were to be a NCAA enforcement action, UNC presumably would be turning the Wainstein report over to the NCAA, at which point any privilege would be waived if Judge Manning's rationale were applied in any disclosure action filed by the NCAA.

Use of the NC open records act to obtain this sort of information has greatly distressed a UNC law student who appears to bleed Carolina blue. In a 2013 law review comment titled Giving Away the Playbook: How North Carolina’s Public Records Law Can Be Used to Harass, Intimidate, and Spy, the author expressed his concern that:

Nothing in North Carolina law indicates that Roy Williams’s half-time plays are protected from a public records request.

http://nclawreview.org/documents/91/6/fairchild.pdf

[cato]

Any guesses as to how often UNC will claim client-attorney privilege in response to freedom of information requests by the press?

It sounds like the attorney will be merely conducting an investigation, not providing confidential legal advice (or preparing confidential work product). I don't think the report would be privileged, at least in CA.

[ChicagoHeel]

I used to post somewhat regularly but have been away for a while, primarily because this scandal has dampened my enthusiasm for college sports. I still watch with passion- couldn't sleep after we beat you last month- but that passion is mixed with guilt. Call it cognitive or emotional dissonance.

I would place myself among those alumns to whom Jason is referring. I am disappointed, although not completely surprised, by the level of denial among the UNC community as well as the repeated attempts to make this issue about Mary Willingham rather than academic fraud. Regardless of what you think of Willingham's data or motives, it is clear that we offered a very large number of fake courses that disproportionately enrolled athletes. The idea that it is all the work of a single rogue chair, which is the story UNC is peddling, is ridiculous. Universities, even ones where there is little oversight of a department, simply don't work that way. Others had to know what was happening. The bottom line is that it is quite possible, although far from proven, that some person(s) at UNC engaged in academic fraud to keep our athletes eligible, possibly including members from the national championship team. I would like to see a full investigation of that allegation, although I don't expect one.

I know most of you are convinced that Duke is different and that such a thing could never happen to you, but I thought that about UNC too. This is part of a larger conversation about the relationship between academics and revenue sports that I think the country needs to have. Given the money sports generate, there is just too much of an incentive to admit students that are fundamentally unprepared to succeed, or even survive, in the university without hours and hours of tutoring, which their schedules of practices and travel make exceedingly difficult. That doesn't mean I think that other universities are engaging in fraud the way UNC potentially was, but at this point I no longer trust that any high profile program is really comprised entirely of student-athletes.

I know several UNC alums (and I am sure there are many, many more out there) who are disgusted at the way the school has handled all this. They want to get back to the real Carolina Way where educating the kids was almost as important as winning games. But, most of them are keeping quiet and not making waves. I would not be at all surprised if Grauer felt similarly.

And, it is worth noting, that if he tried to insert himself into the editorial process to slant coverage toward UNC, it would be a huuuuge journalistic scandal. He wants no part of that!

-Jason "BusinessWeek is just killing Carolina on this thing. I love it!" Evans

[Matches]

That's simple, they have the attorney keep the records.

Early when it was just FB, UNC quickly talked to employees about not writing down notes, about not sending emails, about not doing things that would expose UNC to a public records request. One of their favorite tactics was making sure a lawyer was present and they were the ones that took notes.

Attorney-client privilege only covers communications with an attorney. UNC can't make an otherwise-discoverable document privileged just by putting it in its attorney's possession.

If the report itself is being prepared by the attorney, one could argue that is is attorney work-product, and therefore privileged. Not sure how that interacts with a FOI request though. Having made a show of commissioning the report, though, UNC would look awfully ridiculous to then claim the results are confidential and refuse to share them.

(Not that they don't already look completely ridiculous at this point, but still...)

[gumbomoop]

I used to post somewhat regularly but have been away for a while, primarily because this scandal has dampened my enthusiasm for college sports. I still watch with passion- couldn't sleep after we beat you last month- but that passion is mixed with guilt. Call it cognitive or emotional dissonance.

I would place myself among those alumns to whom Jason is referring. I am disappointed, although not completely surprised, by the level of denial among the UNC community as well as the repeated attempts to make this issue about Mary Willingham rather than academic fraud. Regardless of what you think of Willingham's data or motives, it is clear that we offered a very large number of fake courses that disproportionately enrolled athletes. The idea that it is all the work of a single rogue chair, which is the story UNC is peddling, is ridiculous. Universities, even ones where there is little oversight of a department, simply don't work that way. Others had to know what was happening. The bottom line is that it is quite possible, although far from proven, that some person(s) at UNC engaged in academic fraud to keep our athletes eligible, possibly including members from the national championship team. I would like to see a full investigation of that allegation, although I don't expect one.

I know most of you are convinced that Duke is different and that such a thing could never happen to you, but I thought that about UNC too. This is part of a larger conversation about the relationship between academics and revenue sports that I think the country needs to have. Given the money sports generate, there is just too much of an incentive to admit students that are fundamentally unprepared to succeed, or even survive, in the university without hours and hours of tutoring, which their schedules of practices and travel make exceedingly difficult. That doesn't mean I think that other universities are engaging in fraud the way UNC potentially was, but at this point I no longer trust that any high profile program is really comprised entirely of student-athletes.

I'm pleased - very much so - to see ChicagoHeel back on EK. This is a strong, heartfelt post, and much of it can't have been easy to write. I'd fervently hope - as the rest of this angry post will attest - not to be in denial if Duke were embroiled in an analogous scandal.

On denial at UNC, the single most disturbing thing I've read since the scandal started is the response of the UNC faculty who attended the special faculty meeting convened by Chancellor Folt on 1/17/14, at which Provost Dean blasted Willingham's research as "a travesty." To which, according to the Bloomberg BusinessWeek article linked in this thread's OP, "The assembled scholars erupted in applause."

So despicable do I find this, that I try to explain it away. Maybe, I think, the vast majority of the UNC faculty in attendance were somehow self-selected, Heel sports fanatics. Maybe, I think, there just weren't all that many faculty there, and those who aren't in denial knew what Folt and Dean had in mind, and didn't want to sit there and listen to more coverup. Maybe, I think, there were lots of faculty there, and enough "erupted in applause" that the BusinessWeek author or source simply recorded their immediate response, but [still thinking/rationalizing] missed the stunned silence of many others.

At least, thank heaven, the article did record one prof's pointed retort to the despicable applause: PolSci Prof Frank Baumgartner "mused aloud about the university's focusing on Willingham as a form of coverup."

Subsequent to this travesty - i.e., Folt/Dean's performance and the applauding faculty goons - Folt and Dean began to backtrack, admitting years of academic oversight failure and shameful, horrible things. I doubt they want the whole truth to come out. I doubt they want even half of it to come out.

And I wonder whether the applauding "assembled scholars" have backtracked. I wonder whether they've been criticized by not-in-denial colleagues, by lots of such colleagues, not just Jay Smith and Frank Baumgartner. Having admired the scholarly work of several UNC faculty, I wonder, what is the percentage, roughly, of pathetic apologists among UNC's faculty scholars? I wonder, most of all, whether I'd be in denial if it were Duke.

An eruption of applause, indeed.

[hurleyfor3]

I would place myself among those alumns to whom Jason is referring. I am disappointed, although not completely surprised, by the level of denial among the UNC community as well as the repeated attempts to make this issue about Mary Willingham rather than academic fraud. Regardless of what you think of Willingham's data or motives, it is clear that we offered a very large number of fake courses that disproportionately enrolled athletes. The idea that it is all the work of a single rogue chair, which is the story UNC is peddling, is ridiculous. Universities, even ones where there is little oversight of a department, simply don't work that way. Others had to know what was happening. The bottom line is that it is quite possible, although far from proven, that some person(s) at UNC engaged in academic fraud to keep our athletes eligible, possibly including members from the national championship team. I would like to see a full investigation of that allegation, although I don't expect one.

I know most of you are convinced that Duke is different and that such a thing could never happen to you, but I thought that about UNC too. This is part of a larger conversation about the relationship between academics and revenue sports that I think the country needs to have. Given the money sports generate, there is just too much of an incentive to admit students that are fundamentally unprepared to succeed, or even survive, in the university without hours and hours of tutoring, which their schedules of practices and travel make exceedingly difficult. That doesn't mean I think that other universities are engaging in fraud the way UNC potentially was, but at this point I no longer trust that any high profile program is really comprised entirely of student-athletes.

Thanks for posting. I think the difference between what is going on at UNC, and what could happen if it took place at Duke, is the extent of complicity among everyone at unc.

Most of what I'd say has already been said, but if something like this broke out at Duke, a lot of the faculty, and most of the trustees, would be making a lot of noise. Yeah, I know David Rubenstein tried to buy the Original Rules of Basketball and all the trustees get really good tickets (confirmed from talking to one in an airport after an ACC Tournament). Still, I look at the UNC BoT and see mostly good old boys -- all but two have NC addresses; it is telling that one that isn't is the chairman of Bloomberg. Would Duke's board act the same way? I'll let others decide. Duke does have the advantage of being private, so it would be easier to have a few people "resign" and such.

As always, its not the crime so much as the cover-up.

[77devil]

And at up to $990 per hour, it'll be quite the waste of money, too. The linked article says taxpayer money nor tuition money will be used.

UNC spin. Money is fungible. Presumably the foundation will have less to contribute toward university operations producing the same burden on taxpayers and tuition payers.

[77devil]

For those with access to HBO, the next installment of Real Sports will include a long form segment on academic issues in college sports. The piece is broader than UNC, though it appears that it will be prominently featured as Mary Willingham is front and center in the promo.

[Atlanta Duke]

For an excellent article on how internal investigations operate and the hazards of hiring your regular outside counsel (which UNC has not done) this NYT article on GM's dialing up an internal investigation in response to a pending criminal investigation is instructive

http://nyti.ms/OrToc7

In its recall crisis, General Motors is doing what many scandal-plagued companies do. It’s trying to manage the problem with an internal investigation.

[Newton_14]

I'm pleased - very much so - to see ChicagoHeel back on EK. This is a strong, heartfelt post, and much of it can't have been easy to write. I'd fervently hope - as the rest of this angry post will attest - not to be in denial if Duke were embroiled in an analogous scandal.

On denial at UNC, the single most disturbing thing I've read since the scandal started is the response of the UNC faculty who attended the special faculty meeting convened by Chancellor Folt on 1/17/14, at which Provost Dean blasted Willingham's research as "a travesty." To which, according to the Bloomberg BusinessWeek article linked in this thread's OP, "The assembled scholars erupted in applause."

So despicable do I find this, that I try to explain it away. Maybe, I think, the vast majority of the UNC faculty in attendance were somehow self-selected, Heel sports fanatics. Maybe, I think, there just weren't all that many faculty there, and those who aren't in denial knew what Folt and Dean had in mind, and didn't want to sit there and listen to more coverup. Maybe, I think, there were lots of faculty there, and enough "erupted in applause" that the BusinessWeek author or source simply recorded their immediate response, but [still thinking/rationalizing] missed the stunned silence of many others.

At least, thank heaven, the article did record one prof's pointed retort to the despicable applause: PolSci Prof Frank Baumgartner "mused aloud about the university's focusing on Willingham as a form of coverup."

Subsequent to this travesty - i.e., Folt/Dean's performance and the applauding faculty goons - Folt and Dean began to backtrack, admitting years of academic oversight failure and shameful, horrible things. I doubt they want the whole truth to come out. I doubt they want even half of it to come out.

And I wonder whether the applauding "assembled scholars" have backtracked. I wonder whether they've been criticized by not-in-denial colleagues, by lots of such colleagues, not just Jay Smith and Frank Baumgartner. Having admired the scholarly work of several UNC faculty, I wonder, what is the percentage, roughly, of pathetic apologists among UNC's faculty scholars? I wonder, most of all, whether I'd be in denial if it were Duke.

An eruption of applause, indeed.

Great post G. I stand side by side with you in the digust of the faculty that are either in said denial, or worse, care so much about the athletic success, that they are not bothered by players not getting a fair education. I fear though, that there are several in both categories.

[MCFinARL]

Great post G. I stand side by side with you in the digust of the faculty that are either in said denial, or worse, care so much about the athletic success, that they are not bothered by players not getting a fair education. I fear though, that there are several in both categories.

Yes, and there may be a third category operating here. Many university faculty (everywhere, not just at UNC) are extremely protective of their own prerogatives and can suffer from tunnel vision. It's quite possible some might have opposed Willingham just because she was investigating the quality of the education some students were receiving--which they might perceive as a potential threat to their own academic freedom even if they were not implicated in any way in this case. The administration's willingness to defend faculty "independence" by attacking Willingham might have appealed to some faculty from a political/institutional perspective regardless of what they thought about the actual situation of student athletes or the Af-Am classes, or whether they cared about Carolina basketball.

This is not a defense--just another possible explanation.