Does a "Diploma Mill" School Have a Defamation Claim Against the NCAA?

Last week the NCAA released its second list of high schools from which it will no longer accept transcripts that supposedly provide easy academic solutions for high-profile athletes. According to Pete Thamel of The New York Times, none of the 25 disqualified schools on either list are recognizable athletic powerhouses, with the exception of maybe Christopher Robin Academy in Queens where New York City students have long gained high school credits during the summer and winter breaks ("N.C.A.A. Schools' List Stirs More Controversy"). However, the NCAA also announced a separate list of 22 schools that it had cleared for prospects for only the fall of 2006 and that will be subject to review by the NCAA, which list includes some traditional prep powerhouses with strong academic traditions such as Oak Hill Academy in Virginia, Bridgton Academy in Maine and Fork Union Military Academy in Virginia.

According to Steve Smith, who has coached basketball at Oak Hill for 23 years: "Its embarrassing to be on the list with some of those schools. Twenty-two schools in the whole country, and we're one of them. To me, it makes the N.C.A.A. look like it's not credible." Oak Hill president Michael Groves added: "I'm absolutely stunned on a couple of levels. I've never spoken with anyone from the N.C.A.A. I'm a bit outraged that I'm learning about a list from reporters that's damaging Oak Hill's reputation."

Last month on the blog, I discussed how a claim against the NCAA by an affected prep school alleging a constitutional violation would most likely fail because the U.S. Supreme Court has made clear that the NCAA is not a state actor when it establishes rules and regulations pertaining to academic standards to be followed by its member schools. But the statements made by Smith and Groves at Oak Hill have connotations of a possible defamation claim against the NCAA, which could possibly be a much tougher case for the NCAA especially since Oak Hill is obviously not a voluntarily member of the NCAA and thus not subject to its rules and regulations. Under most state defamation laws, entities may be defamed with respect to institutional characteristics such as honesty and efficiency.

In a defamation case, Oak Hill's damages would most likely be presumed because its inclusion on the list of 22 schools would be a libel action (in slander, a plaintiff typically must prove pecuniary loss). Oak Hill could argue that the fact of being included on the list is essentially a statement made by the NCAA that Oak Hill's (or any other school on the list for that matter) quality of education is poor and that some or all of its offered courses are simply not worthy of recognition by any college or university. Such statements are most likely "defamatory" by definition because the list is a national publication that could easily deter prospective students (athletes and non-athletes) from enrolling.

It would also seem that the NCAA would have a difficult burden to prove the truth of its assertions when Oak Hill has such a strong academic tradition (Oak Hill opened in 1878, costs $21,000 a year in tuition and has about 50 staff members). Indeed, the NCAA didn't even visit Oak Hill's campus. According to NCAA representative Kevin Lennon, irregularities in paperwork caused the NCAA to flag some schools despite not having visited them and that a "time crunch" prevented the NCAA from visiting every school. Smith said: "I'm sure if they come visit, we'll be off the list. But you can't take back what they already did. To me, it's a total sham, a joke." Oak Hill is not the only school listed that wasn't visited by the NCAA. The Associated Press reported that Lt. Gen. John E. Jackson Jr., president of Fork Union Military Academy in Virginia, said NCAA officials have neither visited its campus nor expressed specific concerns about its curriculum either.

It's interesting that the NCAA chose to single out specific schools by name. Couldn't the NCAA instead have listed all of the specific criteria that a high school must meet in order for a transcript to be accepted (i.e. minimum number of faculty members, minimum number of hours of instruction in the classroom, etc.)? The NCAA might want to reconsider what it's doing on this one....

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