Saturday, November 5, 2016

On the U.S. Department of Education Final Program Review Determination Re Penn State's Clery Act Compliance Before 2011 and Its Assessment of a $2.9 Million Fine

"This letter is to inform you that the U.S. Department of Education (Department) intends to fine the Pennsylvania State University (Penn State; the University) a total of $2,397,500 based on the violations of statutory and regulatory requirements outlined below." So begins the official notification, with justification and explanation, of the largest fine assessed to date by the federal government against a university for violation of that cluster of statute and regulation usually shorthanded as the Clery Act.   It is possible that the University will contest this fine, though it is hard to speculate on what grounds. That alone might be cause enough to think about the implications of this fine and its underlying causes, as American universities consider these ramifications for their own operations.

To some extent, the letter, and the action was not unexpected by the wider community in the United States. It was a long time coming--the investigation began almost five years before.  What is especially interesting is both the odd logic of the letter and what it suggests, not about Penn State's failures before 2011, but those of the government itself. Equally interesting, perhaps more so, is the determination of the university itself, in its heroic efforts to move forward, to seek to obliterate the past, one might think, as if it never happened. One can only end an analysis of action and reaction with a sense that the lessons learned may well have been the wrong ones--both for the United States, and for the university it has sought to make an object lesson to advance its own agendas. 

The U.S. Government's letter may be accessed HERE.  

My thoughts follow along with the statement of high University officials follows and for background, the story as reported by the Associated Press.

There are a number of things that might be worth considering as one reads the Departments' Findings and the University's response.

1.  There is very little connection between the historical analysis and the present condition of the University.  And, indeed, that singular break in patterns of behavior appear to play no role in the Audit or in the determination of punishment. To that extent, at least, Penn State's response is both accurate and compelling. By the time the Department got around to issuing its findings, the conditions that ought to have have cause worry in 2011 had substantially disappeared.  And those conditions and operational cultures had disappeared through a process that was remarkable both for its transparency (virtually anyone with an interest could watch or read the progress reports) and its scope. 

2.  Given the substantial changes implemented by the University, one then has to wonder the purpose and value of the assessment of the fine.  Clearly the fine was meant to serve as punishment. Yet that punishment produces no incentive to change behavior--behaviors had already changed.  Moreover, this sort of financial punishment does little to help anyone who might have been aggrieved by the failures of the University. The Report wrings its hands over the course of a number of pages worrying about the ability of parents and students to make the right choices based on accurate information--and yet they do not suggest that any such individuals were material and adversely affected by those failures in fact. Indeed, in this context the fine assumes the character of a punishment and without reference to harm--just increasing the risk of harm. As such, the fine can be understood as punishment for materially increasing the risk of harm irrespective of the extent of harm actually suffered. But that is an odd business for the state.  Certainly it is not an unlawful business--the state has been collecting fines of this sort for as long as we have tolerated a growing regulatory apparatus in the United States.  But its lawfulness doe snot automatically make it good policy. 

3.  It follows that the fine may serve no positive purpose--other than to protect the majesty of the state--and might well produce negative effects among the community of universities to which the fine is meant to serve as a signal. Let me suggest the contours of these arguments.  

With respect to the first, it is particularly telling that the fine is not put to good use.  Might it have been better for the Department to have assessed the fine and insisted it be used by Penn State for the purpose of making the injured whole or of bettering its already modified programs? Better still, might the fine have served a better purpose to require substantially more training among administrators about the appropriate construction of a healthy administrative culture in which the threat of substantial fines ought not to be the driver of reform? Clearly neither of these possibilities were considered.  And why should they? The bureaucratic mind extends only as far as the preferred reading of the quasi-adjudicatory authority permits. And indeed, to have done more than assess a fine might well have been risky for the administrators who chose to take that course. And, indeed, bureaucracies are not meant either to be responsive or creative--theirs is the exercise of a mechanical discretion. That makes the last alternative even less feasible--to direct that money to the victims whose suffering should have remained at the center of all this effort.

The negative effects of the fine are easy to see. First, for risk averse institution (and universities appear to be increasingly risk averse in all respects (e.g. here) the size of the fine will have the intended effect.  Universities will over regulate to ensure that  there is not the slightest possibility that some bureaucrat responding to pressure from politicians or ambitious or zealous in her own way, might seek another "triumph" like the investigation and fining of Penn State. But that does not advance the policies that the Clery Act was meant to further.  It merely glosses over those objectives with a heavy fog of bureaucratic formalism compliance with which is meant to suffice. One already feels the effects--the stream of constant notices of crime and criminality will make it as hard to accurately gauge  crime on campus as if no information had been provided.   People either tune out the barrage of information or find it impossible to process accurately. Second, in their zeal to comply, universities may begin to trample on other rights.  One sees this already in the perversion of the great project that was Title IX, a perversion that has begun to eat its own. 

4.  The conflation of general reporting deficiencies with the emotionally augmenting power of the imagery of the savagery of the Sandusky crimes is also troubling. One might read the Department's long letter as an effort to piggyback a host of infractions (which in the aggregate are serious enough in their own right) onto the emotionally compelling transgressions that touched on the University's failures to confront the issue of child sex abuse early enough and aggressively enough, to justify the size of the punishment for one set of infractions on the basis of the horror caused by the other. That is hardly the way one ought to engage in the sort of rigorous and dispassionate bureaucratic fact finding which was supposed to mark this report. There may be a brute satisfaction in knowing that one gave the offender what "it had coming." The classic case was the conviction of mobsters in the last century for tax evasion and to punish for the crimes of murder, racketeering etc. for which trial was impossible. But that analogy is hardly appropriate here. 

5. The deficiencies of the Department's approach offers little cover for those of the University. The University has, and quite rightly, sought to move forward rather than wallow in the past.  That policy has been central to its success in overcoming the cultural deficiencies of the pre 2011 era and seeking to fashion another.  Yet its success in that respect remains an open question--one which the University at times seems to prefer not to either ask or answer. That is a pity. The pity grows to something strong when one begins to sense that anyone who seeks to draw wider lessons and to confront the past for lessons for the future--at the University or for American universities generally--may be discouraged.  And when that discouragement becomes something stronger--especially when one seeks to monitor and assess universities, well. . . .   One cannot make the past disappear by pretending it never happened, or that it happened "to others" or in an era that no longer exists.  And yet that appears t be the great danger for the university now as it seeks to respond to this admittedly flawed Department Review.    

6.  Worse, universities increasingly appear to take the position that problems like these, and their solution, start and end with faculty, students and staff.  Compliance runs downhill, like risk.  As a consequence, there appears to be a growing tendency to believe that all programs of compliance, and all socialization and acculturation necessary to reduce university operational risk (for those are the terms sometimes used to think through these issues) must begin and end with faculty, staff and students. That is a lamentably short sighted and arrogant position. It is also quite risky for the university. Compliance must start at the top.  Acculturation must be driven from the top.  And the top must lead by example. And yet, at some universities, that these might well be considered subversive thoughts suggests the distance that must still be traveled before the normative promise of laws like the Clery Act may be realized. Until senior level administrators begin to understand that they must set the example, and that they must bear the greatest responsibility for compliance, there will be little effective movement forward and of things like this, and this.   

7.  And setting the example requires self discipline enough to avoid making faculty and students pay for the failures of administrative culture and the price of its correction.   Altogether too frequently in large institutionalized universities, like in large corporate enterprises, the costs of compliance are "passed down" to consumers and labor. Were universities ere academic factories there might be a point in considering the utility of this simpleminded short term thinking.  However, universities with public service missions ought to know better and ought to avoid the far too easy choice of mimicking industry. That is the great temptation and danger that the fine poses for Penn State--as well as for similarly situated American universities--the temptation to use these past administrative failures to punish current and future faculty and students. This is the temptation to seek to reduce academic budgets to "pay for" these fines, and judicial verdicts, and out of court settlements, and administrative public and private body fines and the like. This is the temptation to use academic productivity to subsidize the growth of enormous bureaucracies of compliance which must be funded by shrinking tenured faculty in favor of easier to manage and to terminate fixed term faculty. This is the excuse for everything from raising senior administrator salaries (for their "heroic efforts" in managing the university's relationship with outside bodies) while providing far smaller increases for faculty doing more with less. And this is the temptation to move from an instructional to a punitive approach to the management of students and well as staff--not that the university ought to be blamed for that, the federal government has itself indicated a preference for punishment over education, of measuring and data gathering over training and experience, in its management of the education of the youth of this country.  And here both government and administrators may be complicit in the greatest tragedy of the fine and what it appears to signal with great gusto. 
University Leadership to Review Clery Audit Findings.

Penn State provided the federal government with unfettered access to all requested information in the Department of Education review. This review, in scope and duration, is unprecedented by the Department of Education. The review is focused on past incidents, policies and procedures from 1998-2011. We have just received the report today and are in the process of conducting a thorough review so that we may better understand its findings. We will comment further when our thorough evaluation of the department's 239-page report has been completed.

While regrettably we cannot change the past, today the University has been recognized for significantly strengthening our programs since 2011. The safety and security of our University community is a top priority and we are dedicated to full compliance with the Clery Act and the Drug Free Schools and Communities Act.

Today, Penn State has robust Clery training and collection processes in place. We have many initiatives, including 18 focused on fighting sexual assault and misconduct, with the creation of new positions, mandatory employee training, a universal hotline and many others. Part of our process includes regular evaluation of our efforts, the analysis of best practice and incorporation of learnings into our operations. For a list of Penn State's major efforts, visit

The university recognizes that Clery Act compliance cannot be an end unto itself, but is rather part of a broader culture of compliance. We will continue our numerous and vigorous efforts to create a culture of reporting, safety and accountability, and have integrated compliance at every level.

Eric J. Barron

Penn State President

Feds investigating Sandusky fine Penn State a record $2.4M


Nov. 04, 2016

HARRISBURG, Pa. (AP) — Federal officials looking into how Penn State handled child sexual-abuse complaints against former assistant football coach Jerry Sandusky hit the university with a record $2.4 million fine Thursday, saying it violated campus crime reporting requirements, failed to warn people about potential threats and fostered a belief among athletes that rules didn't apply to them.

The fine was the result of a five-year investigation begun as Sandusky's 2011 arrest raised questions about what administrators had known about him.

A report by federal officials said Penn State officials disclosed in June that 45 people have claimed they were Sandusky's victims. His 2012 conviction and decades-long prison sentence stem from allegations involving 10 boys.

The U.S. Department of Education concluded Penn State largely ignored many of its duties under the 1990 Clery Act, which promotes transparency about campus safety.

"When we determine that an institution is not upholding this obligation, then there must be consequences," department Undersecretary Ted Mitchell said.

The Department of Education found Penn State violated regulations by not warning students and employees about Sandusky after administrators were told he abused a boy in a team shower in 2001 and as officials were being summoned to a grand jury and the scope of his behavior was becoming clearer a decade later.

Sandusky, due in court Friday as he seeks to have his conviction overturned, still had access to football facilities as his arrest neared. A team official asked for Sandusky's keys, the report said, but Sandusky refused and said handing them over might be construed as an admission of wrongdoing.

"In short, a man who was about to be charged with violent crimes against defenseless minors was free to roam the Penn State campus, as he pleased," the report said.

Penn State said the report was being reviewed and noted that since 2011 it has implemented "robust" training and is continuing "vigorous efforts to create a culture of reporting, safety and accountability."

The Department of Education said Penn State's police department concealed its investigation into an earlier report involving Sandusky and a boy in a team shower. Police didn't record the 1998 matter on their daily crime log even though university policy required the log describe the type, location and time of every criminal incident.

The university argued police couldn't determine whether the interaction rose to the level of a sex offense and because it was unclear a crime occurred there was no need to log it. But the Department of Education noted campus police logged far less serious matters, including someone sleeping in a stairwell.

"In light of these entries, Penn State's contention that the reported incident of a middle-aged man inappropriately touching an 11-year-old boy, while naked and showering with him, didn't rise to the level for inclusion in the daily crime log strains credulity," the Education Department wrote in its report .

. . .

Investigators said they also found Penn State underreported crimes in annual statistics submitted to the government. In 2002, the university said it had no forcible sex offenses, but investigators said they found campus police received reports of 12 such crimes.

. . .

The report said Paterno was seen during most of his tenure as a disciplinarian and generally didn't interfere in police investigations or ignore bad behavior by his players. But when the university began to reform its student disciplinary process, he resisted efforts to apply the changes to the football program, it said.

The previous record Clery Act fine was $357,500 against Eastern Michigan University in 2007, reduced to $350,000 in a settlement.


Associated Press writer Jennifer C. Kerr contributed from Washington, D.C. Sisak reported from Philadelphia.

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