A Critical Endorsement of the Past Chairs Statement Regarding the Freeh Report and NCAA Consent Decree

During the course of the University Faculty Senate Meeting held Tuesday August 28, 2012 (e.g. Faculty Senate August 24 Meeting Agenda) Kim Steiner an eminent former Chair of the University Faculty Senate introduced a  "Statement by a Group of Past Chairs of The Pennsylvania State University Faculty Senate Regarding the Freeh Report, the NCAA Consent Decree, and Their Academic Implications August 28, 2012." On motion made at the end of the meeting, the Senate will consider endorsing this statement at its October 2012 meeting.

 (Pix (c) Larry Catá Backer 2012)

I have given this Statement sustained and serious consideration, analyzing it critically.  There is much in that Statement that is worthy of serious consideration, but there are also important lacunae that weaken the analysis and misdirect its focus. Putting aside questions of the utility of this exercise (e.g. Statement of Senate Chair Made at the Aug 28, 2012 Meeting), I conclude that I will support the motion for Senate endorsement of the Statement at the October 201232 meeting.  This post includes a copy of the Statement and my critical assessment. 

Here is the Statement:

Statement by a Group of Past Chairs
of The Pennsylvania State University Faculty Senate
Regarding the Freeh Report, the NCAA Consent Decree, and Their Academic Implications
August 28, 2012

As the world now knows, horrible crimes against vulnerable young boys were committed by a prominent member of the Penn State community. We, an ad hoc group of past chairs of the University Faculty Senate, share the widespread concern for the victims, are outraged and deeply saddened that this happened in our community, and support efforts to redress the wrongs and remedy their root causes.

We also are concerned that the broader circumstances around the Sandusky crimes have become distorted in the current hyperbolic media environment to the detriment of the entire Penn State community. Much of this has been fueled by the investigation of the Freeh Group and their report. Their investigation appears to have been reasonably thorough, given that it could not subpoena testimony. However, as a document in which evidence, facts, and logical argument are marshaled to support conclusions and recommendations, the Freeh Report fails badly. On a foundation of scant evidence, the report adds layers of conjecture and supposition to create a portrait of fault, complicity, and malfeasance that could well be at odds with the truth. We make no judgment of the culpability of those individuals directly surrounding the Sandusky crimes. We lack sufficient knowledge to do so, and we are content to wait until guilt or innocence is adjudicated by the courts. But as scientists and scholars, we can say with conviction that the Freeh Report fails on its own merits as the indictment of the University that some have taken it to be. Evidence that would compel such an indictment is simply not there.

More central to our concerns are the recent sanctions levied against Penn State by the National Collegiate Athletic Association (NCAA) and, more importantly, the rationale for those actions and their negative impact on the academic well-being of the University. The NCAA did not conduct its own investigation of the Penn State situation, but rather drew its conclusions from the findings of the Freeh Report. The NCAA Consent Decree, which substantially embellishes the initial Freeh findings in both tone and substance, claimed no standard of proof for its conclusions but nonetheless required Penn State to accept the Freeh Group’s assertions as fact.

The NCAA actions were not predicated on any rulebook violations by members of the football team, the crimes committed by a former assistant coach, or even the alleged concealment of those crimes by University officials. Rather, the NCAA based its actions on the sweeping assertion that a culture permeating every level of the Penn State community places the football program “in higher esteem than the values of the institution, the values of the NCAA, the values of higher education, and most disturbingly the values of human decency.” The NCAA further alleges that “the culture exhibited at Penn State is an extraordinary affront to the values all members of the Association have pledged to uphold and calls for extraordinary action,” and it states that the sanctions are intended to change this culture.

These assertions, from the middle of page four of the Consent Decree, are the sole predicate for the NCAA sanctions, yet the NCAA cites no document that proves their truth, as the Freeh Report certainly does not do so. Not only are these assertions about the Penn State culture unproven, but we declare them to be false. As faculty members with a cumulative tenure at Penn State in the hundreds of years, and as former Faculty Senate chairs with intimate knowledge of the University stretching back for decades, these assertions do not describe the culture with which we are so very familiar. None of us has ever been pressured or even asked to change a grade for an athlete, nor have we heard of cases where that has occurred. We know that there are no phantom courses or bogus majors for athletes at Penn State. Some of us have privately witnessed swift and unyielding administrative actions against small transgressions, actions taken expressly to preserve academic and institutional integrity. We have performed our duties secure in the knowledge that academic funds do not subsidize the athletic program. We have been proud of the excellent academic record of our student-athletes, and of the fact that the Penn State has never before had a major NCAA sanction. And we have taken pride in an institutional culture that values honesty, decency, integrity, and fairness. It is disturbing in the extreme to have that culture’s very existence denied by the NCAA.

The NCAA has used its assertion of collective guilt to justify its collective punishment of the entire University community, almost all of whom had absolutely no involvement in or knowledge of the underlying crimes or the administration’s allegedly insufficient response. The damaging rhetoric used by the NCAA to justify its sanctions has unjustly injured the academic reputation, financial health, and general well-being of the University. These outcomes are in contradiction to the stated ideals of the NCAA, ideals for which Penn State has been an exemplar among universities.

Further, in reaching beyond its authority of regulating intercollegiate athletics and by sanctioning Penn State for non-athletic matters, the NCAA has significantly eroded Penn State’s institutional autonomy and established a dangerous precedent. The NCAA Consent Decree “requires” the University to adopt all of the recommendations in the Freeh Report, recommendations with implications that permeate almost all aspects of institutional activity. Under normal circumstances, the merits of the report’s recommendations would have been carefully evaluated by the Administration, the Board, and the Faculty Senate and adopted or ignored as appropriate. Instead, what were suggested by the Freeh Group as possible corrective actions now are required by the NCAA. In our view, many of these seem to make good sense but others misjudge the nature of academic institutions and may well be counterproductive. In any event, policy changes such as these should be made with careful deliberation and not by precipitous and heavy-handed fiat. We do not dismiss the need to examine and improve the way Penn State operates. The shock of the crimes that occurred here clearly underlines the need for greater vigilance and stronger policies. However, the sweeping and unsupported generalizations by the Freeh Group and the NCAA do not provide a satisfactory basis for productive change. The NCAA has departed from its own procedures in administering these sanctions, which are unprecedented in their rationale and severity. The sanctions are deeply unjust to the University and unfair to its students, and they should be regretted by all who care about the integrity of academic sports programs for which the NCAA is supposed to be the guardian.

This Statement is worthy of serious consideration. I suspect it may be endorsed by the Senate in its October 2012 meeting.  I am generally sympathetic to its broad outlines. I tend to take a different view of the problem of the Freeh Group Report.  It is true enough, as the Statement suggests, that there are potentially significant substantive deficiencies in both the character of the evidence and the conclusions reached.  But that should come as no surprise, considering the well understood limitations of the investigation.  The critical errors came from the way the university and outside parties chose to treat the Freeh Group's efforts and their willingness to invest the Freeh Group Report with a legitimacy it did not deserve.  That is not so much an inherent failure of the Freeh Group Report as a consequences of the choices made by the Board of Trustees in deciding how to manage the work of the Freeh Group through its special investigation task force, and as well a consequence of the university to vest the Freeh Group with a legitimacy that in retrospect might have been over-broad. The university itself chose to accept the Freeh Group Report "as is."  The independent members of the Board of Trustees evaluate and direct its agent, the Freeh Group, with respect to its information gathering work; it also chose not to take on for itself the task of analysis of the evidence and conclusion. To all appearances, then, it might have been reasonable to assume that the university had itself endorsed both the fact finding and conclusions of the Freeh Group Report, whatever its flaws and limitations.

And so the bottom line: There is nothing inherently wrong with the assembly of factual information assembled by the Freeh Group and set out in its report, as incomplete or flawed as it might be judged when critically analyzed.  Indeed, the evidentiary work of the Freeh Group is as capable of analysis by anyone as it was bu its authors, as the Past Chairs Statement itself well evidences.  The real weakness of the report lies in its conclusions and recommendations.  It was here that the Freeh Group overstepped its authority and changed its role from an agent of the Board of Trustees to a substitute for the Board.  That extension of authority was neither authorized by the laws under which Penn State was constituted nor necessary. It was the obligation of the independent members of the Board of Trustees to receive the information prepared by its agents, and with their guidance, perhaps, and the guidance of others, to engage in the difficult task of drawing conclusions and making recommendations for changes in the institution.  That is the essence of their role as members of the Board.  The independent members of the Board chose not to take charge of the report of its agent, and allowed the Freeh Group to appear to effectively exercise governance authority.  It would then be as useful to consider the lessons of that choice going forward in the context of university givernance reform as it is to focus singularly, as the Statement appear to do, only on the unfortunate and no doubt contestable conclusions and recommendations produced by the Freeh Group.

Acceptance of the conclusions and recommendations of the Freeh Group without any engagement by the independent members of the Board is the critical step that links the Freeh Group conclusions to the NCAA investigations.  That action, or failure to act, by those on the Board with the authority to act (or to choose not to act) more than anything inherent in the Freeh Group Report, gave the NCAA investigation all of the support it needed to reasonably rely on not merely the evidence produced by the Freeh Group but also its conclusions and recommendations in fashioning its sanctions positions then presented in the form of a diktat to the university. It is this critical element of analysis that tends to be lost in the emotions of the debate about Freeh Group Report, and in the focus of the Statement.  To fail to consider this does this institution a disservice, as it seeks to move forward; it contributes to the misdirection of responsibility to the agent (Freeh) and away from the principal. 

It follows, then, in this context that it might well have been reasonable for the NCAA to treat the Freeh Group report in its entirety with the same legitimacy that the university itself had appeared to lend it. I agree, though, that the NCAA failed in its own race to sanctions by ignoring its own procedural rules and effectively bullying one of its members in a fairly ruthless way.  The NCAA will likely rue the day it abandoned procedural fairness and deliberation in sanctions cases when, as is likely, another university violates its rules. It is important for the NCAA to be reminded, at every opportunity, of its own failures of governance and leadership, its failures of applying ethical standards consistently, as the NCAA wrestles with the next round of sanctions investigations.  Taken, together, then, the Statement gets to the right conclusion, though it takes a path that is perhaps too focused on one of the parties to the creation of the mess that this entire process represents.

Where I think I differ most from the Statement is on the issue of culture.  I agree with both the authors of the Statement and President Erickson, that the idea of Penn State culture is contextual--much of what is commonly understood as Penn State culture, including its academic and social cultures remains strong and untainted.  Anyone would be hard pressed to disagree with the Statement on that point.  But I am not sure that either the NCAA or the Freeh Group meant to paint with so broad a brush.  The central point of the culture indictment of Penn State focuses on governance cultures extending from the top to the bottom of the institution.  In particular, it focused on uncontrolled and unaccountable power within the Penn State administration, one with particularly pernicious effects on one aspect of Penn State's operations--its management of its sports activities in general and its football program in particular. That culture of governance--uncontrolled and unaccountable power--permeated the governance of athletics and might have tainted governance generally by setting a "tone at the top" that might have been replicated elsewhere.  This might come closer to the understanding of the culture and athletics issue highlighted by the NCAA that President Erickson understood when he stated: "It is important to know we are entering a new chapter at Penn State and making necessary changes.  We must create a culture in which people are not afraid to speak up, management is not compartmentalized, all are expected to demonstrate the highest ethical standards, and the operating philosophy is open, collegial, and collaborative."  Penn State President Erickson’s statement regarding NCAA Consent Decree, July 23, 2012.

Despite these troublesome elements, it is possible to endorse the Statement in good conscience.  The Statement, in general terms, serves as a reminder that as we move forward with necessary and important reforms, those who judge the university are not themselves without fault.  The NCAA has provided its own indictment of the very system, the integrity of which it sought to protect, by its willingness to pervert that system for particular and specific ends.  And that knowledge might help in the consideration of approaches to necessary reforms at Penn State. Overall, then, the Statement makes an important point that needs to be underlined, even as we work hard to move forward. In the end the conclusion of the Statement likely represents accurately the opinion of a majority of the Senate: "We do not dismiss the need to examine and improve the way Penn State operates. . . . However, the sweeping and unsupported generalizations by the Freeh Group and the NCAA do not provide a satisfactory basis for productive change." That conclusion alone is worth endorsing.