UNC Academic Scandals Will be Reviewed Using Wainstein’s ‘Prudential Concern’ Standard?

This is pretty rich. UNC, having gone through the embarrassment of having hired a former governor to help cover the tawdry decade-long trail of academic fraud, has now landed on the notion of hiring Ken “Prudential Concern” Wainstein, he of the Miami “independent” review.  (See http://bit.ly/1eeD6Zv; see other earlier posts, http://wp.me/p15xE1-t6   Wainsteirn Authorized NSA surveillance ;  The Fatuous NCAA Enforcement Review Report: Julie Roe Lash Got Bagged to Save Emmert and Remy.  http://wp.me/p15xE1-sE; http://wp.me/p15xE1-qt;  Badly Flawed NCAA Enforcement Review Uses Ouija Board – Not Rule of Law- to Find Violations http://wp.me/p15xE1-qo).

Most people don’t understood what Wainstein did. He competently figured out that there wasn’t a damned thing he could find anywhere in writing (and he looked everywhere) which had been violated when the NCAA Miami investigator hired an outside attorney. But note what he did: instead of telling NCAA Executive Director Emmert that he’d blown the whole thing out of proportion, and that nothing serious, really, had been done wrong, he pulled a new standard of conduct out of the air: that the NCAA’s investigator had violated “prudential concerns.” Yes, prudence was at the heart of Wainstein’s finding in that case. Prudence: the kind of thing you violate when you send out invitations to your Flag Day veranda tea party and the invite is set in the wrong font.  Wainstein was also so bold as to suggest that the NCAA investigator had violated member’s expectations. Member expectations? How in the world could Wainstein have had any possible perception as to member expectations within a fractious, stubborn, sometimes warring, but certainly disparate set of members such as those who make up the NCAA? The notion was, and remains, fatuous.

Wainstein gave cover, though, to Emmert, rather than bluntly telling him in his report: I don’t have a clue what you were so worked up about.

Emmert had boxed in Wainstein by his hyperventilated, pre-investigation, jump-the-gun comments; Wainstein then gave Emmert the “white-shoe law firm” cover as regards the Miami investigation, but he also left Emmert boxed in.

Because if Wainstein’s Miami-related review is to be believed, he set just about the highest possible standard for reviewing human conduct one could choose:  was it prudent? This is a higher standard than: 1) is one of the parties guilty of criminal conduct?; 2) did one of the parties engaged in negligent behavior (measured by a preponderance standard)?; 3) was there a written in-house NCAA employee standard of conduct which was violated? (there was not, according to Wainstein); 4) was there an in-house, unwritten, de facto standard of NCAA employee conduct which was violated? (it appeared that the hiring of the investigator which Emmert had earlier squawked about was consistent with past practice in that office, but Wainstein, curiously, never bothered to follow up on that lead); or 5) were there any professional ethical standards violated? (there were, again, no violations found by Wainstein.) 

So that’s Wainstein’s extremely high standard, to be applied to the UNC cesspool. I’m not optimistic, but if Wainstein has his ‘prudential conduct’ notebook with him, will he find (as he should) that, for example, the former governor of North Carolina violated that “prudential concern” standard, with impunity?

Prudence. Did it accord with kindness, etiquette, good-heartedness?

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About brewonsouthu

Michigan and Big Ten fan, former lawyer, with interest in college sports and NCAA oversight and decisions, and sports generally.
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