Sunday, July 29, 2012

Penn State Senate Council Meets; Votes to Establish a Task Force to Consider Imlementation of Freeh Group Recommendations

On July 12, 2012 the Freeh Group delivered its report to Penn State (see, Statement of the Penn State University Faculty Senate Chair and Chair-Elect on the Release of the Freeh Group Report).  The Freeh Group Report contained a findings and conclusions based on its reading of the evidence it was able to collect and also provided a substantial number of recommendations for governance changes at the university.  Because the University Faculty Senate is an important stakeholder in governance, a special meeting of the University Faculty Senate Council was held on July 18, 2012 for the purpose of considering the Penn State University Senate's response to the recommendations of the Freeh Group Report. 

At that meeting, the Senate Council voted ot establish a committee to consider the Freeh Group recommendations and to help develop proposals for changes grounded in those recommendations ot the extent appropriate.  The official minutes of the meeting may be DOWNLOADED HERE. The official minutes set forth the authoritative record of the meeting. 

This post provides an informal summary of the meeting.  In the event of conflict the formal minutes will be regarded as authoritative.  My thanks to my colleague Dr. John Nousek for the great job of organizing these informal notes. The slides of the PowerPoint Presentation made by Chair Backer at the meeting may be accessed HERE.

Friday, July 27, 2012

Practicing Transparency at Penn State and the Consequences of Failure

The recent meeting called by the Penn State board of Trustees (The Penn State Board of Trustees and the NCAA: "Punitive" Sanctions and "Unfortunate" Process Choices) reminds us that transparency and engagement--even at the highest administrative levels of the university remains merely a work in progress.

(Pix from

But a failure of university officials and board members to practice what they are now preaching, and more importantly, a failure by our senior administrative leaders to "drill down" that culture of transparency and engagement to unit and department administrators, and soon, can have some repercussions with respect to which the university will have little control.  This post considers two of them--the first is legislative action by the state, increasingly impatient with what appears to be an "all talk no action" strategy and the press, frustrated by an inability to work, as it must, as a medium for transparency in its information dissemination aspect.  The NCAA Consent Decree can be DOWNLOADED HERE.

Wednesday, July 25, 2012

The Penn State Board of Trustees and the NCAA: "Punitive" Sanctions and "Unfortunate" Process Choices

On Wednesday July 25, 2012, the Penn State Board of Trustees met for discussion in a non-scheduled and informal session.  The object was a consideration, after the fact, of the NCAA sanctions and the decision to accede to them.  "A person who was not authorized to talk about the meeting and spoke on the condition of anonymity told AP the trustees were to confront Erickson over his acceptance of NCAA sanctions that will cost Penn State tens of millions of dollars and likely cripple its football team for years." Report: Penn State trustees question signing of NCAA decree, USA Today Sport, July 25, 2012.

(From Andrew J. Rohterham, A Penn State Trustee Searches for Answers, Time, Nov. 15, 2011)

What emerged appears to be reassuring but surprising:  the board appears to consider the sanctions punitive, the board considers that the decision itself might suffer from procedural infirmities, and the board conceded that in the face of procedural regularities their choices were unpalatable.  Decide for yourselves.  The official statement from the Board of Trustees is set out below along with portions of a news report of the event published in the Miami Herald.

Monday, July 23, 2012

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

(Pix from Faculty Senate 101: An Introduction, Onward State, August 2010)

The Pennsylvania State University Faculty Senate renews its expression of deep sorrow for the pain and suffering of the victims of sexual misconduct, a sorrow we share with the Penn State community. The University Faculty Senate also renews its commitment to doing its part to help rebuild the University’s administrative and governance culture, ensuring that athletics remains a strong and vibrant part of an internationally reputed university that is equally well regarded for its cutting edge scholarship and research, excellence in teaching and service to our communities in Pennsylvania and beyond.

The University Faculty Senate is also specifically committed to helping to right the wrongs that were done and to improve policies to guide members of the university community in doing the right thing. To that end, individually and collectively, the University Faculty Senate rededicates itself to incorporating the highest ethical values in its own operations and in the conduct of each of its members throughout the three components of our mission—research, teaching and service. We also believe in the importance and educational value of athletics as a core part of that mission.

Like others, we believe that the Penn State University must accept responsibility, collectively, institutionally and, with respect to those who failed in their individual duty, personally as well. We understand that our academic peers and others will judge us, perhaps no less harshly than we will judge ourselves. We understand that the institutional failures of our leadership over the past decade and more will have significant consequences for the university community. The University Faculty Senate acknowledges its own failures—it must be more vigorous in affirmatively engaging its role in university shared governance.

Part of accepting responsibility involves accepting the judgment of our peers. On July 23, 2012, we have received the decisions of the NCAA and the Big Ten Council of Presidents and Chancellors on the scope of sanctions to be imposed on Penn State. We will respect those decisions and join President Erickson in accepting their consequences for the university and its athletics programs.

We appreciate the emphasis in the NCAA’s decision on the importance of guarding against unchecked and unaccountable power, and welcome the greater willingness of our Board of Trustees and senior administrators to include the University Faculty Senate in discussions and decision-making. This inclusion, which we expect to increase in light of the recommendations of the Freeh Group Report, the import of the NCAA decision, and the renewed commitment to open, transparent shared governance, will contribute to the stronger integration of the highest ethical standards, from the top of our administrative structures to departmental and athletic team officials. The University Faculty Senate has already begun to work with our athletics leaders to forge new and innovative ways to integrate athletics into the academic life of the university, innovations that we expect will respect the highest aspirational objectives of both sport and academics. We believe that Penn State will create the template for academic-athletics integration for the coming decades. That leadership role, we hope, will serve as a model for U.S. universities, whose programs may also require change to avoid suffering from the same structural deficiencies.

Going forward, the University Faculty Senate will continue work with the senior administrators and members of the Board of Trustees in implementing the decisions of the Big Ten Council of Presidents and Chancellors and the NCAA. We will be active participants in the construction of a more robust and integrative structure to incorporate athletics more intimately into the life of the university. This includes implementation of the Athletics Integrity Agreement, the Compliance Council it envisions, and the implementation of related recommendations of the Freeh Group Report.

This is a very sad moment in the history of this great institution. But this is an institution that can learn from its mistakes and emerge all the stronger for the experience. We cannot undo past harm, we can just do our best to do right by those who have been hurt; we can, however, improve ourselves to better avoid future harm. Along with all of the members of the Penn State community—faculty, students, alumni, administrators, board members and supporters—we will do our part to ensure a better future for Penn State.

Larry Catá Backer
2012-2013 Chair University Faculty Senate
W. Richard and Mary Eshelman Faculty Scholar & Professor of Law,
Professor of International Affairs

Sunday, July 22, 2012

In Anticipation of NCAA Sanctions Against Penn State: Asymmetric Process in the Service of Gesture

It appears to remain as true today, as it has in every age, that emotional issues tend to put tremendous pressure on systems built to provide people with an assurance of fair process consistently applied.  The horrendous crimes for which Mr. Sandusky has been convicted is now producing its perhaps equally important and necessary secondary effects--these targeting the institutions that made it possible for Mr. Sandusky to act virtually unimpeded.  

(Pix from Possible Penalties for Penn State, Onward State, July 22, 2012)

On Monday, the NCAA will add to the mix by announcing a set of sanctions against Penn State.  The sanctions decisions, like those of the Paterno statue, come fast on the heels of the Freeh Group Report.  That Report, for reasons unknown, appears to be taken more and more as some of "Truth" that may be unquestioningly accepted, perhaps based on some sort of blind faith in the individuals who produced it, or perhaps as a matter of convenience, and without any sense of a need to test the findings of the Freeh Group Report or wait for the conclusion of judicial or other proceedings where accused or implicated are given the opportunity to respond.  This is a difficult exercise, especially in periods, like this one.  Circumstances appear to call for swift action because of the nature of the crimes committed and its offense against law and moral standards. But the danger has passed, and a rush to judgment merely substitutes one kind of danger for another. The call of emotion is excusable in children; but we are not children.  We each in our own way are expected to serve our university, community and society precisely in those hard cases where the temptation to eviscerate process in the service of emotional release runs deep.  

Yet these are neither ideas nor values that trouble those who are paid to do better at the NCAA.  Its leaders are poised to impose sanctions without even the minimal due process protections of a Committee on Infractions hearing.  Hysteria and strategic calculation are sufficient to overcome duty and principle, it seems.  Sad.  And the satisfaction of the mob appears to be  reward enough.  Sadder still.  

Though they are formally scheduled to release their decision on Monday, by Sunday afternoon, ESPN was reporting leaks of the likely sanctions.  The ESPN report is set out below in relevant part--the emphasis from the original are mine.  What the reader may find most extraordinary is the irony. . . . the case against Penn State's administration in the Freeh Group Report centered on the willingness to cede virtually all authority over athletics to a small, unchecked, and unaccountable group of university leaders. The NCAA appears to be doing exactly the same thing in order to end-run process and race to judgement for reasons unknown.

Removing the Paterno Statue--Statement of President Erickson

In this country, at this university and at this time, symbols appear to have become far more important than substance.  Intangibles--values, governance, conduct--are too difficult to grasp and much too complex to afford the momentary satisfaction of action-fulfillment.  And thus it is that the Penn State community and its spectators have focused almost unrelentingly on the issue of a piece of statuary that currently (but not for long) sits next to the Penn State football stadium.  The statue has been transfigured from a piece of metal-work in the image of a coach recently deceased to what to some may well be the incarnation of university itself.  Sad, but hardly unusual in these times.  But what to do?

 (Pix from Tina Hay, About the Paterno Statue, The Penn Stater, July 17, 2012)

A number  of solutions might have been considered.  The statue could have remained unmolested; it could have been modified to add additional statuary or commentary (perhaps an additional memorial) to remind one that the message of the image might be more complex; it could have been moved, perhaps to a sports museum and used as part of a teaching moment about the strengths and weaknesses of humans, their capacity for greatness and their propensity to err; it could have been melted and turned into medals or other objects for sale to the faithful; it could have been stored in the way that family embarrassments were once hidden from view in the early 20th century  (recall the family circumstances in Kafka's Metamorphosis); it could have been removed pending a determination of final disposition. 

The University President has made his decision on the matter.  President Erickson also expressed views about the removal of the Paterno name from the library, something that might also be further discussed in the future. The University Faculty Senate played no role in either decision. As an individual, I respect these choices and present President Erickson's announcement here without  comment.

Tuesday, July 17, 2012

Senate Council Meeting to Consider the Senate's Role in Responding to the Freeh Group Report

In a message to the University community in the wake of the release of the Freeh Group Report, President Erickson reminded us:  "This is not the end of the process, nor will it be the end of a number of investigations or inquiries into the University. We will continue to cooperate fully with all agencies and will communicate these interactions with you, our community. We plan to analyze the many recommendations made in the Freeh Report and begin implementing a number of them as quickly as possible. " (Rodney Erickson, A message from President Rodney Erickson to the University community, July 16, 2012).

Our President also had an important message for rank and file faculty:  
I would ask that your response to this public scrutiny be to continue your excellent work in the classroom, the lab, the office or wherever you are making your mark in this world and on behalf of Penn State. It is through your diligence and dedication that the world will again view Penn State as a force for advancement and good. (Ibid.).  

(Pix from Excerpts from the report on Penn State, Sandusky, Greenwich, July 13, 2012)

The Senate has heard President Erickson's call to duty, diligence and dedication in the conduct of everyone's obligations within the university.  It will, as the President urges, respond to public scrutiny by redoubling its efforts and rededicating itself to complying with the obligations that it has been given and which it members have undertaken.  With thanks to President Erickson we will do our part  as an important part of university governance, at least until that time may come when the Senate's role in governance--either formal or functional--is eliminated. 

This post describes the initial Senate institutional response--on July 18, 2012, the Senate Council of the Penn State University Faculty Senate (Senate Council Roster) will meet to discuss first steps in considering the institutional faculty's response to the Freeh Group Report and its engagement in shared governance as the university moves forward with what may be significant changes in governance and governance culture at Penn State.  

Re-Imagining the Relationship Between Board of Trustees and University Faculty Senate: An Interim Report and Request From its Chair

John S. Nichols, Professor Emeritus and Chair, Special Committee on University Governance, has just posted a short interim report on the progress of the committee he chairs, that is meant to "study the Board’s structure, functions, practices and responsibilities as they relate to the Board’s interactions with the University community and to make recommendations for improving communication."

The Committee, at the moment is "specifically interested in hearing suggestions for improving the Board’s communication and interaction with the University community."  Please participate. 

The short report follows.  I thank the Special Committee for its work to date and look forward to closely engaging with the results of its work as eventually reported to the Senate and university communities.  

Sunday, July 15, 2012

Drawing the Wrong Lessons From the Sandiusky Scandal for Institutional Reform and Athletics: John Feinstein on "The Lesson of Penn State"

John Feinstein has written an interesting opinion essay that is worth considering.  John Feinstein, No Pedestals for Coaches, The Washington Post, July 13, 2012 (republished in the Washington Post on July 15, 2012 as "The Lesson of Penn State" and also published elsewhere under a variety of titles. See, e.g.,  John Feinstein, The Coaching Lesson of Penn State, The Washington Post News Service and Bloomberg News, July 15, 2012. 

The Philadelphia Inquirer, July 15, 2012)

The essay is worth reading both for the point is makes and perhaps more importantly for it own analytical failures.  While the essay rejects the idea of the "leader" coach, it is still far too invested in the ideal of the "leader" president, and indeed, in the ideology  of singular leadership at a university, to suggest much but a substitution of one potential weak link in governance for another.

Thursday, July 12, 2012

Statement of the Penn State University Faculty Senate Chair and Chair-Elect on the Release of the Freeh Group Report

The Pennsylvania State University Faculty Senate again expresses its deep sorrow for the pain and suffering of the victims of sexual misconduct and again joins with the Penn State community, led by President Erickson and the Board of Trustees, in efforts to make right the injustices they have suffered.

The University Faculty Senate welcomes the release by the Freeh Group of its report. Like many of you, the members of the Senate will be reviewing the Report closely and in particular with respect to those matters that touch on the Senate’s role in University shared governance. That review will strive to be as transparent and inclusive as possible. The Senate's review will be especially mindful of the need to ensure that all Penn State faculty and staff are accorded fair treatment via a fair process that is consistently applied. The Senate also looks forward to working with the University administration and the Board of Trustees to ensure that proposals in the Report for changes to university operations and procedures are considered in the spirit of and continue to build on our strong traditions of shared governance.

For official information, please contact university spokesperson Dave La Torre, who can provide you additional details. (Dave La Torre -, mobile: (717) 608-6337).

Larry Catá Backer
2012-2013 Chair University Faculty Senate
W. Richard and Mary Eshelman Faculty Scholar & Professor of Law,
Professor of International Affairs

Brent Yarnal
Chair-Elect University Faculty Senate
E. Willard & Ruby S. Miller Professor of Physical Geography and Associate Head
Department of Geography


Download Freeh Group Report HERE

Download Freeh Group Press Release HERE.

Tuesday, July 10, 2012

Penn State Prepared for the Release of the Freeh Group Report

In a press release notable for its subtle reminder of the connection made by some between the former employment roles one of the principals in the Freeh Group, the firm hired to investigate the events surrounding the indictment of Mr. Sandusky, and the legitimacy of the content of the report of that investigaiton, Penn State transmitted the following message to its internal and external stakeholders via its Press Release portal, Penn State Live:

Louis Freeh, the former FBI director and federal judge who has led an independent, external investigation into all aspects of the University's actions related to child abuse allegations against former assistant coach Jerry Sandusky, has just announced he will release the findings of his investigation at 9 a.m. Thursday, July 12, at online.

We look forward to seeing the report on July 12 and reviewing Freeh's recommendations. The Board of Trustees will be holding a regular meeting this week at Penn State Worthington Scranton, and the University will provide a response on Thursday in Scranton at a time and location to be announced. (Results of Freeh investigation to be released July 12, Penn State Live, July 10, 2012).

This post considers briefly some of the ramifications of this report, and especially the potential role of the University Faculty Senate once the Freeh Report is made available. 

Wednesday, July 4, 2012

Penn State's Cultures of Silence: A View From Outside In and Inside Out

The Sandusky scandal has produced a number of distinct stories about Penn State.  For some, Sandusky represents the story of a predator that betrayed a trust; for others it is the story of administrative arrogance in the face of bad conduct by a protected inferior, for still others it is a story of managerial indifference.  Like an accordion, the reality of the Sandusky story can be expanded or contracted to suit the needs and objectives of the speaker.

(Pix of Frank Noonan, from Dennis Owen, State police head stands by criticism of Paterno, Penn State, ABC 27 News, July 3-4, 2012)

Each of these versions of the Sandusky story produces a different focus and reaction.  For some, it requires focus on education and training respecting pedophiles and the management of children on campus, for others it is an indictment of the cultures of administration, for still others it is a conformation of the collusion between administrators and boards.  For many, the trial and conviction of Mr. Sandusky, coupled with an emphasis on training in the management of children on campus is sufficient and that, now resolved, should permit Penn State to resume its pre scandal operations as if little has changed.  For Pennsylvania State Police Commissioner Frank Noonan, the problem runs both deeper and in another direction--in the cultivation of cultures of reprisal and silence that remains a troubling part of university life.  This is story related in a recent news story.  Dennis Owen, State police head stands by criticism of Paterno, Penn State, ABC 27 News, July 3-4, 2012.

This post considers that story and its implications for Penn State in general and the Penn State University Faculty Senate in particular.