By Joshua J. Despain
After recent investigations at Pennsylvania State University, the University of Miami, and many other highly criticized NCAA actions, it is easy for critics to point out that the NCAA’s so-called “overreaching and unlawful” mistakes are not isolated incidents. An attorney familiar with NCAA enforcement said the problems with the Miami investigation defy the “basic understanding that there is a notion of due process to an N.C.A.A. investigation.” But the U.S. Supreme Court does not obligate the NCAA to obey the Due Process Clause in the Fifth and Fourteenth Amendments of the U.S. Constitution the same way it obligates the government. In the 1988 NCAA v. Tarkanian decision, the Supreme Court decided the NCAA was not a state actor, and as such, its commands to member institutions do not convert into state action and do not have to follow the government’s due process rules. The NCAA can discipline its student-athletes in any manner it deems appropriate, “no matter how unfair that . . . may be.”
That “private actor” obstacle can be avoided by means of another branch of the federal government: the Executive Branch via the Department of Education (“DOE”). Of all the efforts to address NCAA due process after Tarkanian, none so far have invoked the DOE and its reformative capabilities. The DOE is an untapped yet viable resource for student-athletes, coaches, and other advocates who desire more procedural due process within the NCAA.
As it executes the President’s policies and carries out Congress’s laws, the DOE is already involved in investigations, enforcement, publicity, and other activities to improve American education. The DOE could reasonably make room for student-athletes and their due process rights as part of its influence and responsibility, with or without express legislative authorization. However, with expectations from a specific legislative act that bolsters the DOE, the DOE would resolve this controversy with added clarity and force. The DOE can do this efficiently and effectively, without overstepping the bounds of separated powers among the branches.
At present, the most significant interaction between the DOE and the NCAA occurs when the DOE challenges schools that practice or permit discrimination in their athletics programs (i.e., enforcing Title IX of the Education Amendments of 1972), although the DOE is beginning to affect the NCAA in other ways (such as Clery Act investigations). The DOE actively administers the equal protection from Fifth and Fourteenth Amendment doctrine in American public education through its Office for Civil Rights (“OCR”). As of yet, Congress has directed the OCR’s vision to the “significant civil rights or compliance problems” of discrimination based on race, sex, disability, and age. To root out discrimination, the OCR conducts routine inspections of compliance systems and promptly looks into complaints. If the OCR cannot correct any discovered noncompliance informally, Congress authorizes the DOE to suspend or refuse federal subsidies to the offending school, or even refer the case to the Department of Justice.
Even now, the DOE could reasonably extend its investigative and prosecutorial power to enforce and ensure due process at federally supported institutions. Because due process is a Fourteenth Amendment counterpart to equal protection and antidiscrimination, the DOE can begin improving due process rights for student-athletes and coaches independent of any new legislative push. The OCR has already broadly interpreted its legislative directives under the discretion of the Department of Justice, the President, or the OCR itself. The OCR explicitly addresses discrimination against sexual orientation, religion, speakers of foreign languages, or immigration or citizenship status, despite that action being beyond the congressional mandates of race, sex, age, or disability. Though adding athletic due process to the OCR’s mission is not as harmonious as simply attaching another subset of discrimination, due process is connected to equal protection, making it a natural fit with the OCR’s current strategy.
With another act to reinforce the six acts already underpinning the scope of the OCR, the DOE could undoubtedly watch over the NCAA’s due process by creating a preemptive administrative hearing. Following the example of previous attempts by Congress, the Secretary of Education could be expected to “provide[] . . . any other due process procedure the Secretary determines by regulation to be necessary”—one viable method being the OCR—and Congress would expressly charge the DOE to oversee the realization of “a formal administrative hearing” with “not less than one appeal” that would stay any NCAA ruling. With this statutory authority, the DOE can detail its own regulations and procedures—with the import of law—for what such a formal administrative hearing would entail. Administrative law and courts regularly deal with questions of employment, reputation, and other questions similar to those present in an NCAA Committee on Infractions (“COI”) hearing, and so an administrative court’s due process standard is compatible. An administrative-style process would include an impartial judge and the cross-examination of witnesses for the opposing party.
Besides adapting student-athletes’ proceedings to an administrative law framework, the DOE could also, with legislative permission, employ its subpoena power on behalf of the NCAA. Though it seems counterintuitive to critics’ wish to offset the NCAA’s strength, the DOE loaning this power to the NCAA would ensure more due process because it would compel otherwise uncooperative witnesses to the proceedings and require them to face cross-examination. A number of college sports experts have recognized the value of subpoena power and have voiced their support for granting it to the NCAA. The DOE can act as a proxy for the NCAA and compel witnesses to the new administrative hearing that the Secretary will have created, witnesses who would not otherwise testify voluntarily in the NCAA’s current infractions process.
The DOE’s direct actions could not expand beyond the universities that accept financial assistance from the federal government. Because the NCAA is not a federally funded program, the DOE would lack the jurisdiction to actually enter, inspect, and renovate COI hearings or other NCAA practices. Furthermore, in light of the NCAA’s status post-Tarkanian, the OCR and the DOE cannot expect the NCAA’s procedures to automatically mirror those of a public university until the government officially labels the NCAA a state actor.
But a legislative directive can be precise and forthright enough that, even indirectly, it could likely spark some NCAA reforms. Presently, a school charged with a violation can either choose to: (1) follow through with NCAA instructions and dismiss a coach, impose a postseason ban, etc., despite due process irregularities; or (2) disobey the NCAA’s order and maintain due process, but risk more NCAA sanctions or even expulsion, which would subsequently result in a virtually irrelevant athletic program. But if an appropriate bill passes and the DOE implements due process policies and regulations, the choice becomes: (1) follow through with NCAA instructions, and break the law; or (2) disobey the NCAA’s order and risk expulsion, but follow thelaw. Though members will still feel the pressure that would come with straying from NCAA rulings, their threats to depart the NCAA (or their forcing the NCAA’s threat of expulsion) would now have the weight of civil obedience behind them, and would send a more urgent and empowered message to the NCAA. Changes would then likely be forthcoming—possibly before a single institution actually relinquishes its membership—in the NCAA’s interest of public policy, public image, and avoiding the appearance of circumventing federal law.
Of course, many lawmakers balk at the idea of an upstart executive agency, or of granting more responsibility to the government. But the OCR is one outpost of the vast American bureaucracy that has increased productivity and efficiency over time. In the past three decades, OCR staff has downsized by half while its caseload has quadrupled, and yet it resolved thousands more cases in 2012 than in 2008. Comparing President Obama’s first term to President Bush’s second term, 24% more cases came to the OCR, yet the office resolved 38% more of them within 180 days of filing. Adding another category of cases, similar to those that are already routine for the agency, would likely present a less strenuous burden than one might suppose.
If Congress restrains the DOE from enforcing reformative policies, because no bill passes or because Congress is wary of DOE intrusion into the NCAA, at the very least the DOE can perform one of its four main activities, that of a national spotlight. As the Secretary of Education advises the President, gives speeches, publishes articles, appears in the media, or makes personal visits to colleges, he or she draws nationwide attention to education issues. The incumbent Secretary, Arne Duncan, has already given such a platform to the graduation rates of NCAA basketball teams. More than just raising awareness, his message was successful in exacting change, and contributed to the NCAA’s announcement in August 2011 that it would ban teams with low graduation rates from postseason competition. The Secretary has the attention of the President, media outlets, and the American people to impact social policy, and armed with a legislative act, could use these resources to advance student-athlete due process.
The debate over NCAA due process may be settled in the courtroom after NCAA v. Tarkanian, but itis far from settled in classrooms and locker rooms, on fields and on courts, as student-athletes, coaches, and their advocates clamor for more constitutional defenses against the disproportionate power of the NCAA. These groups have another, underutilized channel for achieving change in the Executive Branch. The DOE, especially reinforced with a legislative enactment, has the ability to scrutinize due process in the NCAA’s disciplinary hearings and make a lasting impact. This executive agency can become another factor—a game changer—in the campaign for more athletic due process.
J.D., The University of Iowa College of Law, 2015; B.A., Brigham Young University, 2011. The full version of this note can be found in Joshua J. Despain, From Off the Bench: The Potential Role of the U.S. Department of Education in Reforming Due Process in the NCAA, 100 Iowa L. Rev. 1285 (2015).
