With the decision of the NCAA on the last two unresolved UNC football players handed down on Monday, it might be worthwhile to take a look at two issues that have driven how the University has handled its public responses to the football unpleasantness: FERPA and Student Due Process.
The Family Educational Rights and Privacy Act (FERPA) (known in legalese as 20 U.S.C. § 1232g; 34 CFR Part 99) is a Federal law that protects the privacy of student education records. The law applies to any school that receives funding from the Federal government, which is pretty much every elementary, secondary, and collegiate institution in the country.
The law guides the review and release of information contained in the nefarious "permanent record" that your middle school teacher always warned you about. Specifically, the law states schools cannot release any educational record information without specific written consent except in the following instances:
- School officials with legitimate educational interest;
- Other schools to which a student is transferring;
- Specified officials for audit or evaluation purposes;
- Appropriate parties in connection with financial aid to a student;
- Organizations conducting certain studies for or on behalf of the school;
- Accrediting organizations;
- To comply with a judicial order or lawfully issued subpoena;
- Appropriate officials in cases of health and safety emergencies; and
- State and local authorities, within a juvenile justice system, pursuant to specific State law.
Schools may disclose, without consent, "directory" information such as a student's name, address, telephone number, date and place of birth, honors and awards, and dates of attendance.
Notice none of those allowable releases include sunshine law requests or local media who want to write a story. Notice also that judicial orders and subpoenas are included, but remember that the NCAA does not have subpoena power. This information can be released to the NCAA under the "appropriate parties in connection with financial aid to a student" exception because athletic grants-in-aid are dependent on NCAA eligibility requirements.
Fans and ABCers alike have accused UNC of hiding behind FERPA, but the law is pretty clear that the University cannot release any educational records without the express written consent of the players themselves. People who have been out of college for a while or do not have kids in school over age 18 may be shocked to learn UNC cannot even release grades to a parent without a student's written permission. I can promise you that would not have gone over well in my house in the late 80s when I was enrolled at UNC, as my dad would have said (in fact, I think did say) "I pay the tuition, so I get the grades." Not so fast, Pops. Not according to FERPA you don't. If UNC is prohibited by law from releasing a student's grades to his parents, then there is no way they are going to have a press conference to tell the media the result of Kendric Burney's Honor Court hearing. (If he wants to tell a local TV station what happened, that's a different story.)
So why has UNC released information in relation to the agent prong but not the academic prong? Because the agent issues and the benefits received are not federally-protected academic records. Student grades, school-issued disciplinary actions, and honor court proceedings do fall under the auspices of FERPA. It really is that simple.
It is important to note that there is a difference between official UNC pronouncements and what is being said behind closed doors. Some ABCers have said it is hypocritical for UNC to maintain a public posture of citing FERPA while the football coaching staff is privately telling recruits the scope of the investigation. Again, there is official and unofficial. Ultimately anything a coach may say, short of revealing FERPA-protected information, is simply an opinion or an assumption. You can bet that UNC's rivals are spreading their own opinions and assumptions about the football program's future on the recruiting trail.
The second issue relates to student due process. In the education field, education is considered a basic right and the law requires that whenever a student is denied an educational opportunity, the student must be allowed the opportunity to plead a case and appeal the denial. This happens from long-term suspensions in middle and high school to suspensions and expulsions in college, and in other situations in between.
Courts have held that participation in athletics is a privilege and not a right, and the denial of that participation, even by the NCAA, is not subject to due process protections. Nevertheless, the NCAA does have a due process procedure, which is appeal to the reinstatement committee after an athlete has been declared ineligible.
Declaring a student-athlete "permanently ineligible" is the NCAA equivalent of the death penalty for an individual and is rarely used outside of issues involving amateurism (agents, improper benefits, playing professionally, etc). Given that is the most severe individual penalty, it is logical to assume that a reinstatement appeal would be nearly automatic.
Again, ABCers and others have questioned the motivations behind UNC's appeals on behalf of the six players who were declared ineligible in some form or another by the NCAA. They have suggested that UNC should just take its medicine for the transgressions and move on, but a closer look shows that UNC's reinstatement appeals have fallen into two categories: general appeals and an appeal of the harshness of the penalty.
UNC filed reinstatement appeals on behalf of Robert Quinn and Greg Little, who were found to have received improper benefits in the neighborhood of $5,000 each. These appeals seemed to be procedural and part of a larger process, particularly given that both players would have had eligibility remaining. Besides, according to a ChaRaleigh Observer report from the summer, "The NCAA does not quantify a 'point of no return' or an upper limit on the monetary value of expenses before a student-athlete would be unable to repay the amount and retain his or her eligibility." (Note: Marvin Austin was dismissed from the team and was never formally declared ineligible by the NCAA. Read into that what you will.)
On the other hand, UNC has objected to the harshness of the penalties assessed to Deunta Williams and Kendric Burney, and now to Devon Ramsay and Michael McAdoo. Williams was found to have accepted $1,426 of improper benefits, which have been revealed to include the NCAA determining the equivalent cost of hotel lodging for crashing at Omar Brown's house. Williams received the NCAA's customary maximum penalty of 30% of the season for benefits over $1,000, even though Williams was shown to have paid all but $450 of the $1,426. UNC felt Williams should have been penalized for the $450 amount.
In Burney's case. the NCAA handed down a six-game suspension, or 50% of the season, as he was shown to have received $1,333 in benefits and had repaid all but $575; as in Williams' case, Burney paid for some but not all of his benefits. In this case, UNC argued that 50% of the season was above standard NCAA guidelines, and in both cases since the players had paid for most of the trips themselves, there was no intent to receive improper benefits. Of course the NCAA denied both appeals.
Now in the cases of Ramsay and Michael McAdoo, the NCAA has again levied the harshest possible penalty and UNC has again chosen to appeal the ruling. A quick Google search of NCAA documents shows that only one other academic case has resulted in a player being declared permanently ineligible. Even the far-reaching academic fraud at Florida State, which involved multiple tutors and an academic support supervisor and touched 61 athletes in 10 sports did not result in a declaration of permanent ineligibility for those involved. Nearly all of the other rulings of this type are the result of amateurism or benefits violations (see Quinn, Little, and Kentucky basketball recruit Enes Kanter, who was ruled PI for having played pro basketball in his native Turkey).
This does not appear to be an attempt for UNC to be above the law or to not accept the consequences of the NCAA. It would simply seem that UNC is playing out the process and asking for consistency in how the school is being dealt with. For all of the ABCers who have claimed that Carolina is skating on the NCAA issues need only look at the severity of the penalties for Williams, Burney, Ramsay, and McAdoo and see that UNC has often received the maximum sanction - or more - throughout this investigation.
There is one final issue that burns with pundits and ABCers, and that is the fact that the two UNC wins in which Devon Ramsay played will not be forfeited. Whether or not this is the result of UNC's cooperation, or the lack of cooperation by Jennifer Wiley, or an admission by the NCAA that they missed something, whatever the reason it is not like it is without precedent. NC State was not penalized with forfeiture of wins when Charles Shackleford admitted to taking over $60,000 in improper benefits from agents and boosters while playing for the Wolfpack (although State did have to repay NCAA tourney revenue); and Duke has still never been penalized in any way after the revelation of Corey Maggette's amateurism infractions with AAU coach Myron Piggie. So again, it is not like UNC is getting away with something.
Given the apparent low success rate of NCAA appeals, there is little reason to hope that the penalties assessed against Ramsay and McAdoo will be overturned. There will be a final accounting of all the issues in this whole sordid mess and the NCAA will rule how they are going to rule, regardless of what the local media, ABCers, Dick Baddour, Holden Thorp, or Butch Davis have to say. Until then, there is still football to be played and the life of the program goes on day-to-day.