Thursday, March 3, 2016

Letter From Wainstein Contradicts Report

Butch Davis was UNC's first scapegoat in the AFAM paper-class scandal.

Davis began coaching at UNC in 2006 and was fired in the summer of 2011, soon after suspicions about Julius Nyang'oro's classes surfaced. UNC's first investigation, conducted the following year by two A&S senior-level deans, was limited, without good reason, to the years 2007 – 2011.

During my interview with Davis for my documentary, he explained, "It was like everybody wanted it to just be about my tenure. It was just going to be about football. Maybe at the end, we can tie this up in a nice little bow, and it will be, we’ll fire the head coach, we’ll blame it all on the football program, we’ll kick it to the curb, and we’ll be able to move on."

Davis's firing and that first investigation reveal much about UNC's priorities, though few have been perceptive enough to see that. What UNC's most strident critics fail to understand about the University is that its academic prestige, reflected by its status as a Top 5 public university, is far more important than its national championships in sports. Even more important, on a practical level, is the school's accreditation. A school can persist after losing its championships: it cannot persist after losing its accreditation.

Thus, over the past five years of investigations and reforms and firings, UNC has been concerned first and foremost with protecting its academic prestige and its accreditation. The first strategy was to appoint two senior-level deans to conduct an investigation into a department within their own college and limited to the years of the fired football coach. If the UNC chancellor at the time had been serious about investigating the problem, he would have appointed deans from outside A&S and not restricted the years of the investigation. However, in an effort to deflect attention away from the A&S administration, UNC seemed to believe they could simply implicate Davis, if only indirectly, and then move on. Of course, that did not work.

Even the subsequent, now infamous, Martin Report, which critics have decried as an athletics whitewash, actually shielded the A&S deans from the scrutiny they deserved. Although Martin declared the scandal academic rather than athletic, his judgement was generic: he never pointed a finger at the particular deans who, we later learned, knew about the paper classes but did nothing about them. As a former academic himself, Martin seemed unwilling to censure those who could have been his peers.

The final investigation, conducted by Kenneth Wainstein, is a brilliant work of scapegoating. Although Wainstein did reveal that at least four deans knew about the paper classes, his report glosses over their knowledge and actions to emphasize the alleged culpability of low-level academic counselors for athletes. Wainstein's "factual narrative" even leaves out Senior Associate Dean Bobbie Owen's admission that an athletics official expressed concerns to her about the paper classes and that she replied to him that the issue was one of faculty autonomy. That admission is buried in what is essentially the report's notes (p. 104). In addition, Wainstein's report never even mentions that Fred Clark was not just an associate dean but the associate dean to whom the Academic Support Program for Student-Athletes directly reported. Like Owen, Clark, an otherwise model educator, asserted that the paper classes were a matter of Nyang'oro's autonomy as a faculty member (p. 107). The academic counselors received that message of faculty autonomy, which is exactly why they did not question the paper classes further.

Yet Wainstein, whom the University paid $3.1 million, shrewdly depicts the academic counselors as complicit with Nyang'oro and his assistant Deborah Crowder, allowing the University to treat the scandal as if it were the result of a few low-level individuals associated with athletics rather than a systemic, administrative problem requiring extensive academic reform.

Before I go on, I want to be clear: I do not believe there was a conspiracy between UNC and Wainstein. A conspiracy was unnecessary. Wainstein is a powerful man, and the powerful have an unspoken agreement among themselves to blame the powerless. Wainstein composed his report to do just that and thereby attract future contracts from powerful institutions that can likewise afford to pay him millions of dollars to write similar reports that scapegoat the powerless.

Despite Wainstein's fastidiousness in crafting his narrative, his report has subtle, though profound, flaws. Thanks to Butch Davis's attorney, Wainstein himself has exposed the most significant flaw.

In his report, Wainstein essentially alleges that, whereas the deans only knew that the paper classes did not require attendance, the academic counselors further knew that Crowder was managing the classes without Nyang'oro's involvement. Wainstein's primary evidence against two of the academic counselors is an alleged email and a now infamous slide from a PowerPoint presentation they gave to Butch Davis's coaching staff. That slide reveals that students in the paper classes did not have to attend class, take notes, meet with professors, or pay attention. Instead, the slide reveals (though the media has ignored this fact), students had to write a 20 – 25 page paper.

Again, that slide and an alleged email are Wainstein's primary pieces of evidence that two of the academic counselors knew Crowder was managing the classes without Nyang'oro's involvement. Wainstein writes,

Their slide presentation to the football coaching staff in November 2009 and their email urging players to submit their papers before Crowder’s retirement – “Debbie Crowder is retiring . . . if you would prefer that she read and grade your paper rather than Professor Nyang’oro you will need to have the paper completed before the last day of classes, Tuesday, July 21st” – is clearly evidence of their full knowledge about these classes (p. 64).
Wainstein also cites that slide to suggest that Butch Davis had some knowledge of the paper classes. Davis and his attorney, however, do not agree, and they let Wainstein know in a letter. (I highly recommend reading the letter in its entirety here.) Wainstein's response is what is most important for this blog entry. In a letter to Davis's attorney, Wainstein writes,
While there was evidence that Coach Davis was made aware of the particularly low academic expectations in the AFAM seminar classes that were described in the November 2009 ASPSA PowerPoint presentation to the football coaches, the presentation did not address the absence of faculty involvement in the classes or the fact that the papers were assigned and graded by an office administrator.
That sentence directly contradicts his report. In his report, Wainstein states that the PowerPoint slide "is clearly evidence of their full knowledge about these classes." Yet in his letter, Wainstein writes that the slide "did not address the absence of faculty involvement in the classes or the fact that the papers were assigned and graded by an office administrator."

The significance of that contradiction cannot be overstated. Wainstein's letter completely nullifies one of his two primary pieces of evidence against the academic counselors. Indeed, that PowerPoint slide, as bad as it may appear, does not indicate that anyone knew Crowder was grading the papers on her own.

So what of the other piece of evidence?

The other piece Wainstein cites in his report is an alleged email from the counselors saying, “Debbie Crowder is retiring . . . if you would prefer that she read and grade your paper rather than Professor Nyang’oro you will need to have the paper completed before the last day of classes, Tuesday, July 21st.” Here is the problem: that statement is not actually from an email. It was not even written by the two counselors in question. It was part of a flyer written by a tutor, and that tutor, even Wainstein acknowledges, was unaware Crowder was not a faculty member (p. 118).

Thus, Wainstein's primary evidence against the two counselors who were my closest colleagues is null. Wainstein's evidence does not demonstrate that they were "aware of every irregular aspect of these paper classes.”

Elsewhere in his report, Wainstein cites another email from academic counselor Cynthia Reynolds:
In one email to a football operations coordinator, AndrĂ© Williams, during the second summer session of 2009, Cynthia Reynolds, the Associate Director for ASPSA and Director of Football, wrote that “Ms. Crowder is retiring at the end of July . . . if the guys papers are not in . . . I would expect D’s or C’s at best. Most need better than that . . . ALL WORK FROM THE AFAM DEPT. MUST BE DONE AND TURNED IN ON THE LAST DAY OF CLASS.” As reflected in that email, the football counselors were painfully aware that many of their charges would not get the grades they “need” to remain eligible if someone other than Crowder graded their papers (pp. 21 – 22).
Note the last sentence. Somehow Wainstein reasons that an email sent from one academic counselor is evidence of what multiple counselors knew. Frankly, that reasoning defies logic, and that is all I need to say about that.

The two other academic counselors have emphatically insisted they did not know Crowder was managing the classes without Nyang'oro's involvement. In addition, they had received the message from the deans that Nyang'oro had the autonomy to conduct the classes however he saw fit. Therefore, again, contrary to Wainstein's allegation, the counselors were not "aware of every irregular aspect of these paper classes.”

The remaining question is whether Reynolds knew Crowder was managing the classes on her own. I have not talked with Reynolds, and so I cannot answer that with certainty. Nevertheless, consider the case of academic counselor Wayne Walden, whom Wainstein also accuses of being fully complicit. Walden acknowledged that he knew Crowder did some of the grading; however, Wainstein did not report everything Walden told him. Wainstein left out Walden's testimony that he believed Crowder was some kind of approved teaching assistant. That is why Walden did not question Crowder's grading. I suspect the same was true of Reynolds.

When all the facts are considered, neither Walden nor the two academic counselors with whom I worked can fairly be accused of collusion, and I suspect the same is true of Reynolds. That leaves Jan Boxill, but I hope to give her an opportunity to speak for herself soon.

Regardless, if not for the most egregious flaw in Wainstein's investigation, we would not still be talking about all this. Wainstein, who, again, was paid $3.1 million, chose not to record his interviews. In every other investigative scenario I am aware of, recording the interviews is standard procedure. Without recording, no transcripts could be produced in Wainstein's investigation, thus allowing him to report or exclude whatever he wanted. He even told one former academic counselor that he would be writing his "impressions." Apparently, impressions are what $3.1 million buys you.

There are other flaws in Wainstein's report, but they are less critical to undermining his narrative. Most important to understand about the Wainstein Report is that Wainstein chose not to record his interviews, which allowed him to present a skewed narrative that scapegoated low-level academic counselors and has biased the University's and the public's interpretation of the evidence.

Critics have interpreted the University's handling of the scandal backwards. UNC has been trying to protect the deans more than its championship banners. Butch Davis was the first scapegoat, and, though he did collect a sizable paycheck, he will likely never again be able to do what he loves. The academic counselors who were fired made less than $40,000 per year and have been forced to find new careers. Meanwhile, the deans continue to enjoy their upper middle-class lifestyles and careers and have taken no responsibility for their negligence.

Although I am no fan of the NCAA, I believe they are conducting a more objective investigation into the paper classes than Wainstein did. That is why I expect their final ruling will not be as damning as critics hope.

In conclusion, consider the words of Malcolm Gladwell from the Bill Simmons podcast. Although Gladwell said the following about the report on the New England Patriots' deflated footballs scandal, I believe these words equally apply to the Wainstein Report:
[That] Report, such as it was, was a piece of astonishing garbage. I mean, just because a report is produced at great cost by a fancy-sounding law firm and a lawyer with a long reputation does not mean it clarifies the issues or represents an intelligent and thoughtful analysis of the issues. That report was just bullshit.

Acknowledgements: Thanks to Butch Davis for interviewing with me and for sharing a number of documents. I will include extended interview scenes with him in the bonus features of my film's DVD/Blu-ray.