Wainstein’s UNC White-Shoe Review: Email Trails and the Insider’s Hokey Pokey Line Dance

The Ken Wainstein UNC report penetrated a twenty-year academic fraud at UNC.  At least it’s now plain that Mary Willingham deserves an apology for all the vitriol she’s absorbed, which should have been directed toward the many staffers and faculty in on the fraud — including all the coaches briefed in 2009 with a PowerPoint outlining the courses taken by athletes which didn’t even require them to “stay awake.”

Other people have adequately outlined the basic conclusions from Wainstein’s thorough review, but might have overlooked the extent to which the elements of Wainstein’s forensic “white-shoe-review” technique (which were also on display in his UMiami “investigation of the NCAA investigation” report) not only reflect his unique bias, but also result in reports which combine some strong, well-founded conclusions with fabricated facts or principles at odds with the evidence before him.

1. Always start with the email trail:  Wainstein and his team first “conduct[ed] an extensive email and document review,” which included review of 1.6 million emails using 48 key search-words. Broad email review has been the cardinal rule — a cookbook, mandatory first step — in any any forensic review, since the ubiquitous use of email to conduct business began 25 years ago.

2. Then use that email gold-mine to plot out your review: “We then used,” Wainstein instructs, “those emails to craft our investigation strategy.”

3. Go soft on the motives of participants: Wainstein gets a starry-eyed when analyzing the motivations of central protagonists Debbie Crowder (who, Wainstein notes, felt that it was her “duty” to help others who struggled with difficult courses as she had as a UNC undergrad), and Mr. Nyang’oro, the department chair who, Wainstein reports with fawning approval, claimed that his sham courses were conducted because he was, early on, haunted that two student-athletes who had flunked out later ended up either in jail or murdered. (This echoes Jim Tressel’s preposterous 2011 explanation for having long-concealed information that his players had been trading with a tattoo-parlor owner, because that owner had been involved, Tressel had “heard,” with some events which sometime long ago involved a murder.)

Wainstein is, in many ways, circumspect. But he shows here an almost devil-may-care propensity to parrot these “noble intent” excuses which overlook the adult wisdom that beginning intent often morphs, as Shakespeare or Conrad point out, into a bricolage of mixed-motives toward power, status, money, and social acceptance. Wainstein might want us to believe that he is naive, but his report, and his process, belie any such claim of naivete.


4. Wainstein Likes to Do the Hokey-Pokey —  Give cover to the big-shots: As I pointed out in a previous post (Badly Flawed NCAA Enforcement Review Uses Ouija Board – Not Rule of Law- to Find Violations ), Wainstein’s UMiami/NCAA report was almost universally misinterpreted. That report registered one central, well-founded, and honest conclusion: that there existed zero written rules, laws, regulations, department policies — anywhere – which were violated by the NCAA staffers. Had Wainstein been completely honest, he would have ended his analysis there. (See also Wainstein Touted Emmert’s Miami “Prudential Concerns” AND Authorized NSA Surveillance).

But Wainstein knew that, six months earlier, the NCAA’s Emmert had shot his mouth off to the press, excoriating his staff for their conduct — long before he could have the benefit of Wainstein’s investigation. So Wainstein decided to fabricate an additional finding, merely to give cover to his fellow “white-shoe” Emmert. Wainstein made-up, out of thin air, his widely-quoted “prudential concern” standard, which he said was violated by the NCAA staffers. Without guffawing, or even coughing into his sleeve, Wainstein even claimed that this novel, never-before-identified “prudential concern” standard was based upon his personal assessment of NCAA members “expectations.”  I still have no idea exactly how anyone would reduce to writing a cogent definition of a “prudential concern;” I’m even more intrigued as to how, absent reference to a Ouija Board, Wainstein could’ve discerned any kind of consensus as to “member’s expectations.” At Miami, then, Wainstein applied the old “insiders don’t criticize insiders” rule by just making stuff up.

And Wainstein, consistent with his white-shoe-protection pattern reflected in the UMiami report, has now gone to similar great — and disingenuous —  lengths to protect the UNC big shots who had previously been involved with oversight and investigation of UNC’s 20-year fraud.

Here’s Wainstein, at p. 10 (I’ll call this the “Capable and Good Faith Review” Finding):

“It is clear from our review of these reports that each of the previous inquiries (by ex-Gov. Martin, and others) was conducted very capably and in good faith by those charged to undertake them.”  

This broad spoonful of honey, in one fell swoop spread out over the shoddy shameful past efforts by UNC insiders to only appear to investigate academic improprieties, is nonetheless directly contradicted by Wainstein’s own finding two pages later in his report (I’ll call this the “No Email Review” Finding”):

A comprehensive review of email and other electronic documents had not been conducted in the prior investigations. Although Governor Martin’s team had collected and reviewed a sub-set of the relevant emails, there had not been the sort of broad email review that is a necessary ingredient of a comprehensive investigation.” (p. 12)

Wainstein here states the shocking truth: all past investigations or reviews violated the Cardinal Rule of forensic review which Wainstein himself exalts at the start of his report: review all emails.

But his ‘No Email Review’ Finding directly contradicts Wainstein’s ‘Good Faith and Capable Review’ Finding.  In fact, I’ll re-word the latter finding, to make it accurate, by changing only a few words:

“It is clear from our review of these reports that each of the previous inquiries (by ex-Gov. Martin, and others) were NOT conducted capably, and NOT CONDUCTED in good faith by those charged to undertake them.”

Because the above re-wording is the only conclusion which, I submit, can be drawn in the circumstances, Wainstein’s astonishing attempt to give blanket exoneration to all those assigned to oversee and investigate before him needs to be called out for what it is: false, lacking in any factual foundation, and disingenuous. And purchased. Bought and paid for by UNC, when they hired him. This is Wainstein, for-hire, and what he sells is the appearance of white-shoe absolution — at very high hourly rates.

Wilfull Blindness: This “oh, let’s pretend, and just say we forgot to review all the emails” trick used by Governor Martin and every administrator with any supervisory authority during the entire 20-year fraud, others at UNC is a common sleight of hand used by many NCAA members within a “self-reporting”-based regulatory system: “If we don’t review the emails, then we really don’t know, and then – magic! – we have nothing to self-report!“). For example, when OSU got the letter from the U.S. Attorney informing them that players’ memorabilia had been discovered at the tattoo-parlor, OSU never even bothered, before filing its self-report with the NCAA, to review Jim Tressel’s emails. And even when, a month later, while reviewing for some other  lawsuit, they came upon Tressel’s email string 9 months earlier showing that he’d known all along, OSU failed to then do a comprehensive review of all of Tressel’s emails.  As Fleetwood Mac says, “Baby — I don’t wanna know …” — but the law has a better description for this pattern of behavior: “willful blindness.

Wainstein’s grand deception here offers insight into his white-shoe bias: he is constructing a damning review of the conduct of UNC underlings, but consistent with the notion that “insiders don’t criticize insiders,” (alternately stated as, “white-shoe guys don’t criticize white-shoe guys) Wainstein here boldly attempts to give the “insiders” a “get-out-of-jail- free” card. Seen in this light, Wainstein’s starry-eyed endorsement of the “noble” motives of Crowder, D’Yangoro, Martin and all the many others, has an obvious intent, and is not based upon Wainstein’s gullibility.

Wainstein’s falsehood is at the very heart of the lingering UNC “problem”: the record shows not just 20 years of academic fraud. It shows a pattern of oversight and “investigation” by top brass so fraught with wilfull  blindness that it might border on racketeering. By NCAA bylaw, it is obviously 20 years of “lack of institutional control.”

[UNC has already been chastized for its past failure to apply investigation cardinal rule #1; here’s the March 2012 NCAA Committee on  Infractions report which found significant academic and agent-contact violations within the football program at UNC: “Had even a cursory review of her institutional emails been performed, the administration would likely have learned of the existence of the academic fraud, recognize the need to do more than just terminate the employment of the former tutor, and address the problem by admonishing student athletes not to have further contact with her of the academic fraud was clearly set forth in the emails, as evidenced by its discovery once the emails were reviewed as part of the 2010 investigation.”]

But the entire NCAA regulatory framework is a de facto Insiders’ Hokey-Pokey Line Dance, and Ken Weinstain Wants to Hokey Pokey: Wainstein’s patently false p. 10 finding that prior investigations were “capable” and “in good faith” will,  I guarantee, be repeatedly waved in the air by UNC, to show the public, the press and the NCAA that its “institution” never “lacked control.” Wainstein’s fee to UNC for writing this report is worth every penny, because Wainstein has delivered to the UNC insiders a big, undeserved present, wrapped in a falsehood.

And, because the entire NCAA regulatory framework is a de facto insiders’ hokey-pokey line dance, particularly including those Committee on Infractions hearings, in which all  participants line up with good humor, silk ties, elegant pant suits, sonorous pronouncements about “a whole host of” high principle, and hold the bouncing hips of the genial, good-natured insider ahead, Wainstein’s false finding will likely carry the day.

Wainstein has laid the groundwork here for the NCAA to avoid doing what it should — slam the school with findings that 1) the school has lacked institutional control for twenty years; and 2) during some latter portion of those twenty years, at least, that lack of institutional control has included “willful blindness” by a long hokey-pokey line of major UNC administrators, ending with Governor Martin and Chancellor Thorp. Wainstein not only protected that insider’s hokey-pokey line dance: he is now, with his confectionary false findings in the Miami and UNC reports, hoppin’ and jumpin’ in the middle of that line — a line which still has, at its head, also dancin’ but raging, college sports’ Mad Bull of Wins and Gross Income.

The lesson from the UNC Wainstein report?: The hokey-pokey really is what it’s all about.



About brewonsouthu

lawyer, with interest in college sports and NCAA oversight and decisions, and sports generally.
This entry was posted in Ken Wainstein, UNC Academic Fraud. Bookmark the permalink.

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