With some astonishment I have witnessed an extraordinary set of events involving The Pennsylvania State University over the past year. I have read the Special Investigative Counsel Report, hereafter the Freeh Report, and its appendices regarding the administration of The Pennsylvania State University and actions of Joe Paterno, its football coach.
I have a PhD in economics from Penn State and have loyalties to it and the three other institutions I have degrees from or studied at and worked as a Professor for over my 30+ years in academia. My concerns are for all these institutions and all higher education institutions as a result of these events. I also have served as an expert witness for the Department of Justice in matters involving incidents of criminal activity including child abuse. For private and public clients I have reviewed cases involving public and private sector administrative behavior such as racial discrimination, wrongful termination and public policy over the past 30 years.
The primary concern, which is the welfare of the children Jerry Sandusky molested, has been addressed by our criminal justice system. As is often the case justice is served, however, it is too little, too late for those victimized. We all regret this outcome but recognize that it occurs in part because of our adherence to the protection of the rights of all involved, victims and the accused. We can hope that the course of life these children of abuse should have enjoyed can be made whole and become triumphant despite the horrific treatment they received at the hands of Sandusky. The commitment to appropriate remedies to assist them on their journey to remake their lives is an important obligation of our society. Our society is known worldwide for meeting these challenges. Just ask the senior citizen bus monitor abused by the students. We look forward to the way in which the $60 million dollar fine imposed by the NCAA is used to help the victims in this case.
The focal point of this analysis is the pseudo-Justice and ambiguity that emerges in the wake of such disturbing criminal behavior.
Frequently before the courts intervene in notorious criminal cases reports are written and actions are taken by non-judicial entities that are used to make judgments that should be the proper jurisdiction of the courts. The case of Penn State should give us pause as we observe damage being done to our institutions and individuals outside the rule of law.
My concern is that people have been fired, reputations ruined, and NCAA sanctions of profound impact on the community of Central Pennsylvania and the institution of Penn State University as a result of the allegations of administrative misconduct involved in this case. It is only when the trials of Schulz and Curley are completed that we will know according to the law what to make of what happened at Penn State.
I am evaluating the Freeh Report and NCAA sanctions which have been acted upon before the judicial process is completed in this situation. This is a case against the rush to judgment at Penn State. Unfortunately Joe Paterno will never be heard from again. His reputation will remain ambiguous forever.
The origin of the Freeh Report is the desire by the current Penn State administration to have at its disposal a document to guide its overhaul of administrative practices at Penn State. The context is the handling of the allegations of sexual abuse of children by Penn State coach Jerry Sandusky in 1998 who was also retired yet affiliated with Penn State in 2001 when an additional incident occurred. His relationship with Penn State continued to 2011. The Freeh Report was prepared following a non-judicial investigation. It is not meant to be a second trial of criminal behavior by Sandusky. It also was not intended to be the civil trial transcript of proceedings against Penn State administrators and Joe Paterno. Unfortunately the NCAA and many people are treating the Freeh Report as if it embodied both. This has led to chaos and the use of pseudo-Justice in place of the Rule of Law. Evaluating ten or more years of administrative activity in the context of a child abuse scandal is like evaluating your sailing skills in a hurricane. Much that is relevant to the question will be blown away by the storm no one would ever have sailed into knowingly. You are not sailing when you’re in the water drowning.
The duly constituted courts of the State of Pennsylvania have recently adjudicated the predatory, sick, and disgusting behavior of Jerry Sandusky (retired coach 1999 at Penn State) now a convicted pedophile and a man to be deemed among his like as the scum of our society. In his case the proper court and jury of his peers have rendered a verdict and he will be remembered with the likes of Tim McVeigh, the Unabomber, Jeffrey Dahmer and others who presume to destroy the lives of others. Due process and justice have been served. Constitutionally Sandusky was given due process which is the ground on which society rests its integrity for the decision to diminish the life, liberty and pursuit of happiness for crimes against the society that guarantees those rights.
However, in the case of the institution of Penn State the non-judicial Freeh Report falls short of the standards of judicial practice and due process that the Constitution guarantees. The Freeh Report reads like a dossier of J Edgar Hoover on someone or something that he has put in his free fire zone. The reason this disconnect occurs is because when read as a legal indictment it is unbalanced and overly aggressive in stating its conclusions, however, when read as a management document designed to prescribe what Penn State must do in the aftermath of the firing of a whole administrative culture it might work effectively for the new administration. Those reading the Freeh Report should keep in mind that it was created to serve the later purpose.
I trust that former FBI director Freeh would not accept this report as the basis for legal action. He might accept it as the basis for an investigation by a court that had the jurisdiction and subpoena power necessary to develop a discovery process where evidence must pass the test of admissibility. That also would involve a discovery process open to those being charged to see all the documents, and witnesses statements prior to the judicial proceeding. The Freeh Report is freestanding with no standards for its creation beyond people’s willingness to trust the investigative instincts of the authors. Most importantly conclusions from the material reviewed simply does not receive the scrutiny that would include examination of alternative explanatory hypotheses for the meaning of documents, e-mails, statements by witnesses and most importantly inferences as to state of mind and intent of those being investigated by the authors. Importantly, the Freeh Report uses a standard of “it’s more reasonable to conclude” (page 16) to base conclusions on, rather than the more well-recognized court standards of “preponderance of evidence” or the more restrictive “beyond a reasonable doubt.”
Significantly the Freeh document treats all information regardless of time sequence as the basis for the conclusion that there was massive institutional failure. The frame of reference is now. The decisions were made in sequence based on what the administration and Joe Paterno knew at the time. The Freeh Report as a tool useful in administrative restructuring can adopt this approach but it is not applicable to determinations of right and wrong.
For example, the 1998 incident was reported to the authorities both at the University and to the authorities in the appropriate jurisdiction in Centre County. An investigation was conducted involving Sandusky and the child and parent. The evidence gathered included the Seasock (Counselor) and Schreffler (Detective) yielding 90 pages of reports presented to the District Attorney who chose not to prosecute. This is indisputable. This result is obviously an injustice to the child and places a protective umbrella over Sandusky who remained innocent until proven guilty. This tragic outcome may be a result of the Chambers (Psychologist) report being unavailable to the investigators (Lauro and Schreffler) because of conflict of interest issues. The Special Investigative Counsel “did not find any evidence of interference by University administrators with the 1998 Sandusky investigation.”
Sandusky is assured in 1998 through lack of prosecution that no finding of guilt is possible, and therefore no action taken, as if he were guilty, would be legal. Sandusky would have a remedy for actions taken to deprive him of his rights without due process. As nauseating as this is in light of revelations 10 years later, that’s the situation.
At the time there was no basis for action to be taken by Penn State that would diminish Sandusky’s employment, compensation or standing in the community. The Penn State administration in fact does distance their relationship from Sandusky. One looking from the outside at this reality might conclude that they played ball with Sandusky. One looking at the real world would conclude that given no indictment they had to deal with him in good faith, though it seems clear that the allegation had influence where by July 1, 1999 Sandusky’s employment with the University was terminated. Joe Paterno made it clear; Sandusky would never become head coach, though there were expectations in Sandusky’s mind. His retirement package and recognition seemed appropriate for someone who had not been indicted for the crime he obviously committed. This is the consequence of having a standard of presumption of innocence and standards governing the grounds for prosecution. I don’t recommend getting rid of these.
The administration at Penn State and Joe Paterno in particular received information from Michael McQueary based on an incident on February 9, 2001. He told Joe Paterno on February 10, 2001 that he had observed Sandusky in what appeared to be an inappropriate activity with a boy in the shower at a Penn State facility. This was the wrong thing for McQueary to do at this time. McQueary is a citizen first and foremost and as a direct witness to a felony committed against a child he should have stopped the activity, acquired the child’s name and called the police. Sandusky is formidable, but have you seen McQueary? There is simply no excuse for that failure.
Joe Paterno passed the vague description of this activity on to his superiors and they concluded that what they had been told was at best hearsay, vague and reminded them of the unproven accusations of the past case in 1998. The conclusion of the now secondhand and third-hand recipients of this vague accusation was to not act because there appeared to be no certainty that a crime had been committed.
The protective umbrella over Sandusky provided in 1998 by the County Attorney remained in place. It is unimaginable that University Counsel would recommend, based on the vague allegations of McQueary, that Penn State University officials report what they did not observe directly to the police. The one with the duty both morally and rationally to accomplish that purpose would be McQueary. He did not make such a report to the proper authorities combined with the willingness to serve as an eyewitness to a crime. As it later became apparent he had not seen enough to know whether it was a crime or not. In reviewing this evidence provided through the testimony of McQueary, the jury, in the case of this (ultimately unnamed in court) child, found Sandusky not guilty on the count of sexual intercourse with a minor.
From February of 2001 to the revelations of 2011 the Penn State administration and Joe Paterno received no other information that Sandusky was engaged in sexual assault of children on the Penn State campus. This would include the two janitors, who seem to have a much clearer picture of the nature of the sexual assaults than McQueary, who never came forth with information that would’ve been probative to the police in an investigation in 2000.
Are the decisions to not prosecute in 1998, to not intervene by McQueary and not report to the police, and to not report to the police by the janitors due to the cowardice of the Penn State administration or the power of Joe Paterno? I don’t think so. These children remained at the mercy of a monster named Sandusky for 10 years because those are the costs of the presumption of innocence when those who know the facts fail to come forward to our duly constituted authorities with evidence admissible in court that a crime has been committed.
Whether the power of Penn State and Joe Paterno was foremost in the minds of those who had information on Sandusky and thus were prevented from taking action is a dubious conclusion. The investigators engaged in ipso facto reasoning here. The notion that this power would be used against them is without a basis. If they used this baseless concern as an excuse for their failure to carry out their duties as citizens they made a horrible mistake. Shame on them! They could just as easily have concluded that the power of Penn State and Joe Paterno, combined with their hard evidence, could be used to end the career of this pedophile. They should have told the police. Penn State and Joe Paterno never had the power to investigate or litigate or subpoena evidence in such a matter so they should not have informed Penn State in any case. The police would do that, as occurred in 1998. Had Penn State punished them for their accusation they would have a cause of action.
Penn State’s only previous role was as a respondent to an investigation conducted by the Centre County Attorney in 1998 to a similar accusation where a finding that insufficient evidence existed for prosecution was made by the County Attorney. Penn State and Joe Paterno in 2001 had everything to gain by a proper investigation into Sandusky and his activities by the Centre County Attorney. Penn State did not hide this information to stay out of the public eye. Sandusky was already in the public record with Penn State identified as a source of information in the 1998 investigation. No firestorm of bad publicity had occurred in 1998. Why would it occur in 2001? However, a flimsy or unsubstantiated allegation against Sandusky would have substantial consequences.
In bringing the French Revolution to literature, Charles Dickens invoked the powerful imagery of Mme. DeFarge to make a profound point crucial to understanding the role of the rule of law among civilized people. Mme. DeFarge, whose pointed finger and the fateful words, “J’ accuse!,” uttered from her wretched mouth, was enough to lead to the guillotine and death to people who were innocent. This created a bold image of why accusation is not a basis for conviction and thus justice. Our commitment through our constitutional framework to the presumption of innocence and trial by jury under the laws of our land are designed to prevent such egregious behavior.
A society made up of citizens who lack courage when duty calls will also lack justice. Duty presented itself to those with direct knowledge. Those who accuse others, who don’t act on rumors and unsubstantiated accusations, of cowardice may want to see in their dreams the pointed finger of Mme. DeFarge cast their way and ask if that is enough to convict them of heinous crimes. None of us want that nightmare and our Constitution provides that protection to each of us. It is a treacherous step to place the duty of protecting these rights on those who only have hearsay, vague descriptions and innuendo at their disposal. The aggressiveness based on that foundation, which the Freeh Report seems to be used to justify, would have been a perilous guide for the Penn State administration and Joe Paterno to have followed in 2001. Making unsubstantiated accusations would be dangerous in the hands of those presumed to be so powerful. Remember Madam DeFarge.
Paterno may have been crowned a king in his own time. This may be a dangerous vanity and Penn State may be too enamored of the power of football to characterize its image. Those are issues separate from Sandusky and the protection of children. Just because these images intimidate the timid, they cannot be presumed to be why neither Sandusky nor the children were managed properly by citizens and the authorities we designate to protect the innocent and punish the criminals. We must recognize when agendas for change or disillusionment with administrative groups create a side show that obscures our ability to identify those who truly failed us as citizens. In this case the Freeh Report has that effect.
This Freeh Report in the eyes of some readers gives an impression that it is acceptable to not call the police when you witness something that needs to be investigated as a potential crime. You should notify your employer, for example, who has no power to deal with criminal allegations. The surprised employer has unsolicited, unsubstantiated information they are not in a position to evaluate. This is like telling your taxi driver that you smelled smoke in the crowded theater you just left instead of telling theater management that you smell smoke so they can implement a controlled exit plan. In both cases you can claim that you informed someone, however, the consequences are vastly different. If you observe any suspected criminal act report that to the police no matter what! That simple clear message gets lost in the misuse of the Freeh Report. If you saw someone drowning after an assault would you call your boss at the local pizza joint and expect them to call the police or would you call 911? If you call the pizza joint and they are unable to call out because their lines were full, is the drowning their fault? Is the failure to notify 911 of the assault the fault of the Pizza parlor?
Is it the case that major college football has come to place revered successful coaches and national powerhouse football programs in positions to dominate decisions about reputation and image at a great many important and powerful academic institutions? This is a question that must be answered. Any competent analyst would prove this hypothesis in the affirmative before any investigation of this effect on this specific incident would be undertaken. The Freeh Report fails this standard of analysis. It cross contaminates investigation of the child abuse incidents with its investigation of the administrative behavior of Penn State. Its conclusions are unreliable and lack validity on the issue of the legal duties the administration had as a result. The Freeh Report was not intended for that purpose. It is a guide to the evaluation of past administrative decision-making by the current administration at Penn State.
The Freeh Report was instituted by Penn State after precipitously firing the administrative officers and Joe Paterno who had dealt with the child abuse issue raised by Sandusky’s conduct. Those who acted precipitously bear the burden of having answered the question above in the affirmative as a basis for the firings. My 30 years of trial experience as an expert witness nationally tells me that they are on thin ice. What seems most apparent is that the newly constituted administration without Paterno needed legitimacy. The Freeh Report seems to serve this purpose primarily since it methodologically is incapable of determining that Penn State and Joe Paterno hid from the public the Sandusky crimes. The 1998 investigation into child sex abuse by Sandusky was a matter of public record at the time and Penn State publicly participated in that investigation. Why would Penn State and Joe Paterno hide from the public information in 2001? The reason was that there was nothing to report; the information they received was unverifiable, vague and speculative on its face.
The Clery Act of 1990 is only just now being investigated for compliance by the US Department of Education at Penn State. It requires that crimes be reported and a determination has yet to be made whether all allegations of sexual misconduct must be reported.
What should be reported? For example, a student reports being fondled while leaving class and then retracts the allegation. Report this? In addition, what form allegations reported should take is as yet unresolved. That determination could substantially change the scope of The Clery Act in these cases. For example, based on the McQueary information what should the Penn State administration in 2001 have made public? This would involve going to the police and reporting to the Board of Trustees of Penn State. The police and the Board of Trustees of Penn State are both subject to freedom of information inquiry and public disclosure requirements. Which of the following possibilities for the disclosure would have stopped Sandusky and caused the County Attorney to prosecute Sandusky for the alleged crime against a child?
- Jerry Sandusky, Penn State assistant football coach, is alleged to have had sexual relations or at least inappropriate contact or maybe just took a shower with an unknown child on the Penn State campus according to graduate assistant Mike McQueary, who did not report this to the police. This happened February 9, 2001. Bold, but not immune from libel concerns.
- An unnamed person is alleged to have had sexual relations or possibly inappropriate contact or took a shower with an unnamed child on the Penn State campus according to an unnamed source who did not report this to the police. This happened recently. Weak and useless, but safe.
- Anything in between these two extremes (you need to write it, everything I come up with reads very strangely). Just ambiguous.
- Treat the McQueary information as speculative and unreliable unless he reports to the police and an investigation begins. At that time you announce the investigation and report under the Clery Act. This has a chance and it does not depend on the filing of charges. If an investigation is launched then at the very least a trained investigator has determined that the stated facts necessitate confirmation by a police authority and most likely a criminal lawyer has concurred.
These issues will be major points of contention in the legal investigations and trials to come. It is wise to remember that any representations made under the Clery Act are a matter of public record with the attendant requirement that they be accurate, factual and the truth. Given the situation in 2001 how would you report this incident under Clery Act.
The act requires :
If the institution maintains a campus police or security department, the institution must keep a daily crime log of alleged criminal incidents that is open to public inspection. The Handbook for Campus Safety and Security Reporting.
What specific words would you use to report the McQueary allegations? As you can see the devil is in the details. Let me know what would have been perfect.
We can be thankful that the duly constituted jury found Sandusky guilty on 45 of 48 criminal charges and have put him away from children for his remaining wretched life. The Freeh Report would not have done that. That is the job of our duly constituted courts. It is here and here alone that the forces to protect the children emerge with legitimacy and force.
Enter the NCAA, an institution governing intercollegiate athletics. The NCAA controls and can sanction member institutions in sports related activities by virtue of their membership in the NCAA. Jurisdiction in this case relates to football at a member institution such as Penn State. The questions the NCAA legitimately can ask would be related to what Penn State and Joe Paterno knew about sexual abuse of children by someone in the football program at Penn State. Even this is stretching the NCAA jurisdictional boundaries. Until this investigation the NCAA would normally investigate incidents related directly to football in a situation like this. NCAA intervention normally is determined depending on the answer to the following question “was he/she acting in their capacity as an assistant coach when XXX happened?” Yes or no? Yes, the NCAA proceeds. No, the NCAA has been unpredictable. In the Sandusky case the answer is no. How do we assess the NCAA decision to intervene at Penn State?
Until the revelations of 2011 the Penn State administration only had two incidents where it had knowledge relating to Sandusky and allegations of child molestation. The first was a 1998 incident which was in the public record. The County Attorney, with the participation of the Penn State administration, the child and the mother, Centre County police and a professional counselor, determined there was no basis for prosecution. The second incident in February of 2001 was the vague report of McQueary to Joe Paterno which he passed immediately onto his superiors in the Penn State administration. This information was vague and indefinite regarding any sexual molestation and he could not identify the child. The information had not been presented to the police by the only eyewitness to the alleged incident.
The Penn State administration faced the kind of choice they were hired to make. I cannot imagine a legal counsel who would recommend that the administration make public the allegations of Mr. McQueary. The lawyer for the University would clearly understand that Mr. Sandusky would immediately have a cause of action for defamation of character and libel that would look very strong relative to the unverifiable and vague information provided by McQueary, particularly given his inability to identify the child subject to abuse.
It is here where those reviewing the situation in good faith part ways. One faction contends unequivocally that the administration chose to hide this information and exercised its power to protect Sandusky not the unknown child. The other faction takes the position that the Penn State administration made a reasonable decision at the time to treat this as an unsubstantiated allegation that certainly would not be prosecuted by the County Attorney. My view is that the facts at the time in 2001 would clearly support the decision that was made. I believe the other view is driven by all the information known in 2011 including the tragic continued attacks on children by Sandusky and is an unreasonable way to view the 2001 situation.
The NCAA has followed the first faction logic relying entirely on the Freeh Report. This is a decision they will likely regret. By imposing sanctions on Penn State based on the deviant behavior of a coach whose connection to football and sports at Penn State ended in 1999 based on an allegation that was not prosecuted (1998) and one that was unsubstantiated (2001) and numerous others (1996-2011) that the administration at Penn State were unaware of, reduces their credibility in an area of jurisdiction and enforcement where they have little or no credibility to begin with.
Importantly the NCAA now has staked out territory where they must, in all fairness to Penn State, etc., investigate all allegations of sexual abuse and misconduct by coaches, players, sports related administrators and staff, ex-players, ex-coaches and sports related ex-administrators and staff at all member institutions.
At the very least they must rely on ex parte investigations of dubious relevance to the specific issues of sports related impropriety if they cannot conduct their own. NCAA is beyond its core competency in any such investigation. It is frightening to contemplate where this will take collegiate athletics and the NCAA. Not everyone loves the NCAA, but even they might not wish this curse on the institution.
The sanctions imposed by the NCAA also have disturbing effects. NCAA states that they are designed to prevent the continuation of bad behavior by member institutions. In fact, this may be true in intent, but is quickly lost in the public arena. Everyone recognizes that it punishes those who had nothing to do with the prior acts and who are clearly innocent. This observation will clearly outweigh the intentions, and to the cynical, the NCAA will simply be outmaneuvered by those under pressure to win at every institution treated like Penn State.
What is likely to happen is that teams like Penn State will come to be viewed as underdogs, unfairly punished. When the 65 scholarship Penn State team faces off against the 85 scholarship Ohio State team the cheers will be for Penn State among many fans except the most diehard Buckeye fans. It’s like Appalachian State versus Michigan a few years ago, at the end of the game who was being cheered, who was jeered at the game in Michigan? The NCAA becomes the bad guy and Penn State and its far-flung community and local economic interests suffering unfairly at the hands of the NCAA will become the heroes of the day.
When I was at Penn State from 1969 to 1974 Joe Paterno and Penn State were newly emerging heroes soon to be given enhanced powers and deified. The NCAA has done nothing by imposing sanctions to prevent that process at any institution it handles in the fashion it has handled Penn State. In fact, a smart marketer might just portray the Penn States of the future as underdogs and the American public will cheer them on. These unintended consequences would likely undermine the NCAA intentions.
If the judicial proceedings find Schultz and Curley guilty and in defiance of the Clery Act (1990) I will accept that without question because I believe in due process and presumption of innocence. Those two constitutional protections are trampled on by those who use the Freeh Report and the NCAA sanctions as proof that the Penn State administration and Joe Paterno are criminals. The outrage is cathartic but it is not going to fix the problems the Sandusky revelations have identified. The means used by this monster to endanger and manipulate children should never exist again. For example, what kind of oversight should exist to deal with groups like Second Mile? How do we get answers to questions like this? One means would be to follow the ongoing litigation Penn State will face for years to come. The trials will help us find the devil in the details.
The Clery Act of 1990 is only just now being investigated by the US Department of Education at Penn State. It requires that crimes be reported and a determination has yet to be made whether all allegations must be reported. That would substantially change the scope of the Clery Act in this case and beyond. That issue will be a major point of contention in the legal investigations and trials to come. The consequences of failure to comply could be profound. It could cause a reduction of federal research funding at Penn State. That will definitely help abused children and improve college athletic related behavior! What’s the link? Compliance only because of unrelated sanctions is not a long term solution.
There is a need to make sure the Freeh Report and the NCAA sanctions do not unduly influence the Clery Act investigation. Prior to this firestorm, Penn State was like most universities; not very attentive to Clery Act requirements. Why? Was it rampant sexual misconduct on campuses? Was it funding issues and priority setting by administrations? The implications of failure to clarify the best practice for reporting under the Clery Act are very significant well beyond the current Penn State investigation. The Clery Act is important and compliance must be improved nationwide.