Saturday, August 25, 2012

My Thoughts on the Questions Posed for the Senate Forensic Discussion on the NCAA and Big 10 Sanctions

The Penn State University Faculty Senate's first meeting of this academic year is scheduled for Tuesday August 28, 2012 (e.g. Faculty Senate August 24 Meeting Agenda).  Among the many important items up for consideration, and one that has generated a substantial amount of interest (e.g. Chris Rosenblum, Penn State Faculty Senate questions NCAA sanctions, Freeh findings, Centre Daily Times, August 23, 2012) is a forensic session to discuss the NCAA sanctions and the report of the Freeh Group, the university's response to the sanctions and the role of the Senate.

(Pic (c) Larry Catá Backer 2012)

This post sets out the materials provided by for forensic convener, Senator Keith Nelson, Penn State Liberal Arts: (1) brief description (from the Senate Meeting Agenda; and (2) the extended statement and forensic questions.  And because I will not have a chance to participate in what is likely to be a very interesting and useful discussion, I have provided some of my own thoughts here about the important questions raised by Senator Nelson.

First, then, the Agenda Statement:

Discussion of the NCAA and Big 10 Sanctions
The recent NCAA sanctions accepted by Penn State obviously touch on many issues of long interest to the Faculty Senate. Accordingly, it is appropriate to have an open discussion of our perceptions of these sanctions and of where they fit in the landscape of past sanctions of other universities and colleges by the NCAA, of shared governance at Penn State and our responsibilities as the Senate, of the process by which the final sanctions were negotiated and agreed to by President Erickson, and whether as a body the Senate would like to make a statement to the NCAA and/or to the public.
Fifteen minutes have been allocated for presentation and discussion. Extended statement and forensic questions are posted at
Submitted by Keith Nelson, College of the Liberal Arts senator

There appears to be a sentiment, held by enough people to make it worth considering, that Penn State's response to the NCAA sanctions may be an illustration of the institutional structures that guarantee that the University will not deal with the failures of governance that ultimately produced the crisis of last November and so precipitated the Freeh Report and NCAA and Big 10 sanctions. Some also appear to believe that these same structures produced the original failure in the first place. This forensic may reflect this or related dissatisfaction leading the university to the present day. While the forensic can provide a vehicle for the articulation of a form of that dissatisfaction in one or more public statements,  it might also serve the useful purpose of contributing the the reform of university culture and structures that are at the heart of Penn State's obligations under the NCAA consent decree and the recommendations of the Freeh Group Report.  It is my hope that, gathered together, the representatives of the University faculty will continue the hard task of developing input that will help the faculty better contribute to that reform effort and also that it might provide us some guidance going forward, as well as for our administrators and Board as they also continue their efforts to respond in ways that are meaningful and that continues to reflect sincere responses to the expectations of all stakeholders. 

The entire extended statement produced by Senator Nelson for the forensic can be accessed here.  I will only refer to the principle part of each of the seven questions put forward followed by my thoughts about eachThe answers are long and detailed, well merited by the thoughtful and important question asked.  For those with little appetite for the longer responses, I have also provided a short summary response.  The extended discussion follows.

Short summary response: Questions 1 and 2 focus on the nature of the Senate's response to the NCAA and Big 10 respectively, and if there should in fact be a formal, public response from the Senate. Questions 3 and 6 touch on the need to modify the Senate's existing role within University governance so as to ensure a greater role for the faculty in this. Questions 4 and 7 then focus on the mechanisms to achieve that modification to meet specific objectives: verifying that the Senate is being consulted more pro-actively and for asserting a right to such verification though either explicit policy or formal agreement with the administration of some kind. Question 5 then touches on the need for the Senate to reach out to other faculty bodies for consultation. 

 Questions 1 and 2: A public response from the Senate is not inappropriate, so long as it makes it clear that the UFS expresses only the sentiments of the faculty (as their representative organization) and that this response is directed to the administration and board of Trustees of the university for further action or formal transmittal to non-university organizations. The response might also be made available to the NCAA monitor. Such a response ought to avoid conclusions that simply oppose, praise or condemn either the decisions of the NCAA and Big 10 or the conclusions of the Freeh Group Report, and instead should reflect the consultative and academic role of the faculty: it should reflect analysis, investigation, the testing  of hypotheses and the weighing of the evidence supporting to conclusions and judgments of our own and that contribute to the necessary changes Penn State has already committed to undertake. 

Questions 3 & 6: The Senate can do much by changing its own culture and practices to more aggressively utilize its consultative, advisory, and forensic authority.  But the Senate should also consider structural changes through its Self Study Committee, to be charged this year with a thorough review of Senate operations, organization and its role in shared governance. 

Questions 4 & 7: The Senate should avoid locking itself into rules but could usefully develop standards that would guide administrators and others on the expectations of behavior in furtherance of shared governance.  While it may be useful to consider the creation of a Senate ombudsperson, it miught be more effective for the Senate to develop a direct relationship with the new university compliance and ethics officers.

Question 5: Better outreach is a good thing. In essence the Senate ought to practice what it preaches with respect to consultation and shared governance. Building governance networks with other Senates and related organizations is worthwhile.

QUESTION ONE. Should the Faculty Senate send the following review and comments document (or a document similar to it) to the NCAA Board and to the NCAA Sanctioning Committee?

Question 1:  Like Senator Nelson, many may regret the lack of faculty consultation around the NCAA sanctions.  Reducing the scope of use of consultation does little to advance the argument about the vibrancy of shared governance at Penn State when it appears to be invoked except when it really counts.  Many might also conclude that the demand for secrecy was hardly a plausible excuse for the failure to consult.  Surely the Senate leadership would have been as capable of keeping confidences as the many administration officials consulted in the process of negotiating the consent decree.  And, indeed, as this forensic amply demonstrates, Senate acceptance of the decision and its support of the University President and the Board of Trustees (Statement of the Penn State University Faculty Senate Chair Larry Catá Backer Regarding the NCAA Consent Decree and the Sanctions Declared by the Big 10) does not necessarily translate into a deep "buy-in" among the Senate rank and file.  Nor need it.  The Senate membership ought to be able to consider and question every aspect of the work of third parties, including that of the Freeh Group and the NCAA, even as it stands behind the University administration and Board of Trustees going forward. That discussion might have been most usefully exercised at the time of decision, but where that does not occur, then it is plausible for the Senate to consider and analyze, in good faith and dispassionate way, the entirety of the context within which the university has committed to a set of extensive obligations going forward.  The Senate, some might conclude, hardly contributes to shared governance, unless it first contributes.  So my bottom line:  the Senate ought to be able to assess the Freeh Group Report and the NCAA on its substance and process, if a majority of its members believes this serves the interests of the faculty and the university community.

But the Senate remains well embedded within the governance structures of the university.  The Senate does not speak for the university.  It ought not to take on for itself, nor is it authorized to take on, any communication to persons or entities outside the university. The Senate acts well within its authority to consider in forensic, by data gathering and analysis, and the like, of the most critical assessment of actions taken by and the consequences of decision making within the university. And the Senate does its duty to the university when, as in this forensic, it chooses to adopt such statements as it deems worthy, directed to university officials authorized to make decisions that bind the university. Indeed, as Chair, I welcome that sort of work on the part of the Senate, work that is evidence of a healthy atmosphere of accountability and communication within the university. Those actions, statements, analyses and conclusions are well directed to our governance partners--the university administration and Board of Trustees--if this body chooses to adopt and transmit them.  But, the Senate ought not to presume an authority it does not have, nor ought it to be seen to be attempting to engage in an action that might appear to others to seek to assert such authority. It is for that reason that, while I have no qualms about this Senate endorsing such statements as it deems, in its wisdom, useful for the good of the university, including those suggested in the forensic, and to direct them to the appropriate body--the administration or the Board--I am not convinced that the Senate acts within its governance prerogatives when it seeks to direct statements that might affect the university's relationships with third parties. None of this, of course, should be taken as a suggestion that individuals, or even groups of individuals, may not speak as they like, or communicate with whom they want, or associate with others for the purpose of communicating, all activities that come within the protections afforded to all citizens and residents of this country, and protected by our courts. That would include statements going to every aspect of the processes and conclusions and consequences of the Freeh Group Report, the NCAA and Big 10 Sanctions and the like. That individual, personal or group activity  is a wholly a wholly different matter than one that seeks to induce the institutional voice of the faculty to speak in that capacity to others, including the NCAA.  My bottom line:  any Senate public statement or action on either the Freeh Group Report or the NCAA Big 10 Sanctions are best directed, if directed at all,  to the Board of Trustees and the University administration and not to persons or entities outside the university if the intent is to induce action or reaction on their part as if the statement came form the university.  It may also transmit these views, analysis and conclusions to, and seek action in its own right from, outside monitors or officials whose role includes hearing from university stakeholders. 

As to the substance, the issue is a closer one.  One the one hand, perceived or actual failures of the Freeh Group and the NCAA with respect to the scope and quality of their investigations, deliberations or assessments might be useful.  This is especially so because such faulty efforts have had a tremendously important negative effect on Penn State's reputation.  To the extent that these efforts were flawed, and that those flaws could be understood as unnecessarily increasing the reputational damage to Penn State, it has caused Penn State unwarranted additional harm to its reputation (e.g., Penn State Prepared for the Release of the Freeh Group Report (July 10, 2012);  In Anticipation of NCAA Sanctions Against Penn State: Asymmetric Process in the Service of Gesture (July 22, 2012)). That would certainly be the case if, as some have argued, the Freeh Group, unaccountable except perhaps to their own consciences, undertook an investigation that might, in retrospect seem incomplete and uneven.  It would also be the case if the NCAA and Big 10 sanctions were excessive, however one measures these things, and themselves evidence of the sort of disregard of cultures of process fairness and transparency that are now somewhat perversely demanded of Penn State.  In either case, such flaws and errors, if real, could ultimately reflect poorly on the reputations of the Freeh Group or the NCAA in time and perhaps help restore something of the excessive loss of reputation of Penn State.  But neither Report nor sanction were  But it is unclear how that would aid Penn State.   On the other hand, even if one were to believe this, and strive to make a statement to that effect, it is also clear that the actions against Penn State were not wholly arbitrary or baseless.  The university has admitted as much.  And board, administration and Senate have begun the difficult work of attempting the sort of reforms of governance culture, and the integration of sport into the academic life of the university that might better be the focus of our efforts.  Critical introspection is always useful, and something the Senate is well equipped to undertake.  To that extent there is little wrong with taking a position, after appropriate time for reflection and discussion, about the value of the action of others that have affected the university.  To some extent the Special Task Force chaired by John Nichols is undertaking that effort--it might be useful to expand that committee's charge.  But I prefer to remain focused on reform going forward.   My bottom line:  Analysis may well reveal good evidence of the flaws, some significant, in the substance of these actions and the process through which these actions were made; but these will serve the Senate and the university community best if used to help gauge the response the university is now required to undertake and the reforms it should make to better integrate athletics into the academic life of the university and to eliminate cultures that might encourage uncontrolled and unaccountable power.  

QUESTION 2. Should the Faculty Senate prepare and send a similar document to Big 10 officers?

Question 2:  My views on the first question apply in equal measure to the second.  I believe the Senate can examine and comment on the entirety of the context around which the Big 10 acted.  It can make its views known.  But it ought to engage in that exercise, to the extent it might, in good faith, believe it serves the university, within the institution.

QUESTION 3. How can the Senate, within existing PSU structures, best work to achieve a stronger role in university planning, monitoring, decision-making, and governance overall than it has achieved in the past?
Question 3: This, for me, is an important question, one worthy of long and sustained discussion.   To that end, it is my intention, within the next several weeks to charge a special task force to engage in a self-study of the Senate's organization, role and effectiveness and to propose changes. It does the Senate little good to complain and fail to act. The Senate is quite capable of a substantial measure fo monitoring even now.  It also has the ability to expose those areas and situations where monitoring is blocked--if it has the will and the courage to do so. This is, then, to some extent, an internal challenge, and one that requires something of a culture shift, perhaps, that mirrors that which our critiques outside the university have suggested is appropriate for administration and board,    

At the same time, as Senator Nelson's question makes clear, effectiveness in governance requires a substantial amount of cooperation by our governance partners.  In this respect it is never enough to emphasize the rhetoric of shared governance, but to actually engage in the practice of shared governance--not merely when it is convenient, but when it is hard.  I do not doubt that everyone's hearts are in the right place; I do not suspect that there is any conscious effort to reduce or stymie shared governance.  But the actual practice of shared governance and the development of a common understanding of what that means in practice; the importance of consistency; the critical nature of transparency not merely as an aspect of reportage but as an instrument of engagement, are actions and practices that require lots of practice.

QUESTION 4. Should the Senate work toward a new and explicit signed memo of understanding between the PSU President and the Faculty Senate on when and how and on what issues the President will seek full input and consent from the Senate before making significant decisions?

Question 4: I understand the value of Senator Nelson's suggestion that the Senate consider some sort of explicit contract-like arrangement on consultation.  I worry, though, that such an approach would do more harm than good in the long run.  First, shared governance to work effectively must be built on both trust and a common governance culture.  When relationships are structured around a contract, the result might be to inject a potentially adversarial element into the relationship.  More importantly, contracts tend not to be useful in defining a long term working relationship when structured as a series of rules.  Parties lock themselves into positions that may become irrelevant, requiring constant need to reform and amend the agreement; ultimately the contract many become a distraction, focusing more energy on its interpretation than on the consultation culture it was meant to foster.  

On the other, Senator Nelson may be onto something if he means to suggest the usefulness of developing a set of standards or principles that may help guide administration, board and Senate on the contours of good governance, especially with respect to the consultative role of the Senate.  Standards are useful means of memorializing shared values.  They serve as a reminder of the nature of the commitment and of the form that this commitment ought to take. I would be happy to work together with the board and administration on a statement of principles that might be a useful tool for governance and strong evidence of the commitment of this university to controlled and accountable power.

QUESTION 5. Should the Senate move toward more frequent consultation with the national organization of Faculty Senates, the Coalition on Intercollegiate Athletics (COIA), concerning suggested reforms and other issues?
 Question 5:  Senator Nelson raises a good point here.  The University Faculty Senate could do a better job of maintaining stronger ties with other Senate and related organizations.  To some extent, the framework of such relationships is already in place. Some of our members have been active in such organizations and generous in sharing their work with the Senate.  But it may be useful to seek to find ways in which that framework could be better developed.  More importantly, it might be useful to develop transparency mechanisms so that information may be shared with Senate rank and file, and unit faculty governance organization throughout the university. 

QUESTION 6. How can the Senate best work to modify certain aspects of PSU institutional structure so as to achieve a stronger Senate role in university planning, monitoring, decision- making, and governance overall than it has achieved in the past?
Question 6: Question 6 is, of course, related to Question 3.  Both, I believe, require the same approach.  I am not sure that the authority of the Senate might need to be augmented as much as that the Senate must now learn to better exercise legislative, consultative and forensic muscles it already has.  That requires not so much structural changes, but cultural and attitude changes within the Senate.  Yet it requires more:  a more vigorous and engaged Senate requires a certain amount of trust and an assurance that the actions of its members , in the furtherance of shared governance, are not made the subject of direct or indirect retaliation. The Senate would appreciate confidence building measures on this front and is working toward producing policy that may serve to enhance this aspect of governance.  At the same time, it is anticipated that the work of the Senate Self Study Committee will examine and on the basis of that examination will suggest appropriate structural modifications. 
QUESTION 7. Should the Senate secure funding for and authorization of a new faculty position, an Ombudsman for the Senate, who would have power to monitor all university matters including athletic programs and who would report solely to the Faculty Senate?

Question 7:  The idea of an ombudsperson may be a good one.  The focus on monitoring and engagement is equally important.  The Senate already engages in a substantial amount of monitoring; perhaps it needs to re focus some of those efforts to better cover emerging areas of importance.  A discussion of those areas and the ways of improving monitoring might be useful.  On the other hand, the idea of adding a Senate ombudsperson may present substantially more challenges.   It adds a layer of engagement where non may be necessary and might complicate rather than simplify communication within the Senate and between the Senate and administrative officials. It may duplicate effort without adding substance.  It is possible, then, that such a function may be unnecessary.  Indeed, that might be the case if the Senate were assured that  it would be permitted to engage directly and independently with university compliance and ethics officers, as well as with whatever athletics compliance committees or mechanisms are established pursuit to the consent decree or otherwise. I would rather ensure that the university compliance officer, risk management officials, general counsel and ethics officer can speak openly and candidly with relevant Senate standing committees in furtherance of their work than to add an additional layer of official whose authority would be ambiguous.  My cautions suggest only that there may be a lot of work that might be undertaken to make a good case for this type of position, and it may be worth consideration by the Senate Self-Study Committee 

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