Without (Much) Comment: "Judge throws out ex-Penn State president’s conviction"

He shall take the two goats and present them before the LORD at the doorway of the tent of meeting. Aaron shall cast lots for the two goats, one lot for the LORD and the other lot for the scapegoat. Then Aaron shall offer the goat on which the lot for the LORD fell, and make it a sin offering. But the goat on which the lot for the scapegoat fell shall be presented alive before the LORD, to make atonement upon it, to send it into the wilderness as the scapegoat.  Leviticus 16:7-10

Two stories are worth consideration.  They mark the next stage of a morality tale that started with Pennsylvania's efforts to respond to the horrible events that eventually resulted in the conviction of a member of the Penn State Football coaching staff for immoral acts against children.   They remind us of the complicated relationship between the state, its institutions, and the people who populate both in the shadows of law and justice.

The stories touch on the recent decision by a judge to overturn the conviction of former Penn State President Spanier of his conviction for misdemeanor child-endangerment, the only charge that the state was able to secure a conviction in the long and tortuous process of finding administrators to bear the responsibility for failed institutional duty.  In commentary I note merely remarks made April 13, 2012: Penn State’s New Reality; Reflections by the Penn State 2011-2012 Fellows--Four Lessons Learned About University Governance in Crisis.

Without Comment: Judge Grants Mike McQueary's lawyers $1.7 million; had awarded McQueary nearly $5 million in November

(Pix credit HERE)

There is little need for comment here. . . . other than to remind people that sometimes the most important morality plays tend to unfold at the margins of larger events. And there is a great moral here, and perhaps substantial fodder for considering ethics over passion within university administrations, when large institutions facing events that pose substantial challenges.

On the Penn State NCAA Sanctions Settlement--What Might it Mean for North Carolina . . . and the NCAA?

(Pix (c) Larry Catá Backer 2015)

This today from Penn State News:

Board of Trustees approves terms of proposed NCAA lawsuit settlement
January 16, 2015

UNIVERSITY PARK, Pa. – By a unanimous vote, the Penn State Board of Trustees today (Jan. 16) approved the terms of a proposed settlement of the lawsuit relating to the Endowment Act. According to the settlement, the July 2012 Consent Decree between Penn State and the NCAA has been dissolved, and all punitive sanctions eliminated.

Under the terms of the new agreement:
$60 million will be dedicated in Pennsylvania to helping children who have experienced child abuse and to further prevent child abuse. Of the $60 million, the Commonwealth will receive $48 million to help provide services to child victims. Penn State will use $12 million to create an endowment that will be a long-term investment in expanding our research, education and public service programs to help eradicate child sexual abuse. All parties agree strongly that caring for victims and providing support for programs that help address the problem of child sexual abuse is of paramount importance.
The compromise restores 112 wins to the Penn State football program.
All other punitive sanctions also have been eliminated.

This post includes the statements of Penn State University's President and the Chair of its Board of Trustees.  Some comments then follow, not on what this means for Penn State--that is fairly obvious.  Instead I focus on the potential consequences of this agreement for the NCAA and its current investigations into scandals at other universities. 

Salar Ghahramani on Fiduciary Duty and the Governor as a University Trustee

As the Board of Trustees of the Penn State University is wrestling with issues of its organization.  This self study responds in part to the scandals of 2011 and the subsequent recommendations of the Freeh Group, the dictates of the NCAA sanctions consent decree. Others have participated in the discussion, including the Pennsylvania Auditor General and the University Faculty Senate.  The Auditor General has already delivered his report urging structural changes to the board of Trustees. The University Faculty Senate will deliver its recommendations soon. I will do the same in the coming days.

(Pix (c) Larry Catá Backer 2013)

But the review of the organization and operation of the Penn State University Board of Trustees is also producing some very interesting and useful academic studies. One is worth noting:  My colleague Salar Ghahramani, Assistant Professor of Business Law and International Law & Policy, Penn State University, has just posted a paper titled "Fiduciary Duty and the Ex Officio Conundrum in Corporate Governance: The Troublesome Murkiness of the Gubernatorial Trustee's Obligations Toward a University." The paper examines the role of nonprofit corporate directors in general and analyzes the governor's role as an ex officio trustee of Penn State in particular. The paper is worth a careful read and some discussion, not just among academics but within the Senate and the Board of Trustees.Ghahramani concludes that "the constant tensions that the current paradigm condones (those between public governance objectives and private corporate governance principles as defined by centuries of fiduciary law), cannot be sustained."

The abstract follows.

Comments on the Consideration of a Senate Resolution in Praise of University Leaders

 (Pix (c) Larry Catá Backer 2012)

In a prior post, Senate to Consider Resolution in Praise of University Leaders (Oct. 31, 2012), I announced that at its December 2012 meeting, the Penn State University Faculty Senate will consider the following resolution, proposed at the October Senate meeting by Senator Thomas O. Beebee, Liberal Arts: 

In light of the Freeh Report, the NCAA sanctions, and the conviction and sentencing of Jerry Sandusky, the Faculty Senate of the Pennsylvania State University wishes to convey its deepest sorrow in the face of these crimes, and to extend its sympathy to all victims of these proven criminal actions. The Senate furthermore hereby:

·   Expresses its support for President Rodney Erickson and the Board of Trustees in their efforts to bring greater transparency and accountability to university governance;

·   Affirms its commitment to furthering the cultures of excellence at Penn State: cultures of teaching, of scholarship and research, of service, of student philanthropy, and of student athletics;

·   Pledges its own best efforts, through its committee work, Senate Council, shared governance, and plenary meetings, to continually making Penn State a better place to work and live, and an environment where cultures of excellence can flourish.

I invited comments to aid the Senate in its deliberations.  I received many.  Some of them were posted as comments to the original message.  I received many more.  This post includes a number of comments received but not posted, along with those posted earlier as comments.  I note the following as you consider these posts: (1) a number of commentators feared to provide identifying information because they thought retaliation would be likely; that this feeling still runs so deep ought to cause us great concern; (2) the more intemperate comments were omitted; (3) emotions still run deep among some members of the Penn State community; it is not clear that ignoring or marginalizing this group is the best way top deal with the emotion; (4) it is not clear what others who declined to write in think; it would be a mistake to think that these comments express the universe of reactions. 

Without more ado, here are the comments.  I hope they help senators decide how they will approach the issue of the approval of the resolution.

Senate to Consider Resolution in Praise of University Leaders

(Pix (c) Larry Catá Backer 2012)

At its December 2012 meeting, the Penn State University Faculty Senate will consider the following resolution, proposed at the October Senate meeting by Senator Thomas O. Beebee, Liberal Arts: 

In light of the Freeh Report, the NCAA sanctions, and the conviction and sentencing of Jerry Sandusky, the Faculty Senate of the Pennsylvania State University wishes to convey its deepest sorrow in the face of these crimes, and to extend its sympathy to all victims of these proven criminal actions. The Senate furthermore hereby:

·   Expresses its support for President Rodney Erickson and the Board of Trustees in their efforts to bring greater transparency and accountability to university governance;

·   Affirms its commitment to furthering the cultures of excellence at Penn State: cultures of teaching, of scholarship and research, of service, of student philanthropy, and of student athletics;

·   Pledges its own best efforts, through its committee work, Senate Council, shared governance, and plenary meetings, to continually making Penn State a better place to work and live, and an environment where cultures of excellence can flourish.

What do you think?  Please either post comment here or send comments to me for distribution prior to the meeting.

Advisory Group on Freeh Group Recommendation Implementation

 

This from Penn State Live on the establishment of a University wide Freeh Group Recommendation Implementation Committee:

Michael Bérubé: On the Road From the Paterno Family Professorship in Literature at Pennsylvania State University

Michael Bérubé explains why he resigned the Paterno Family Professorship in Literature at Pennsylvania State University.

The explanation appears in the Chronicle of Higher Education, Michael Bérubé, Why I Resigned the Paterno Chair, Chronicle of Higher Education, October 15, 2012.  The article is reproduced below. Professor Bérubé is now the Edwin Erle Sparks Professor of Literature at Penn State.

The Obligations of Transparency--Omnidirectionality, Mutuality and Good Faith

I have been writing of the obligations of transparency in its two principal forms.  As communicative transparency, this embodies the obligation on the part of the speaker to provide a sufficient amount of information in a timely manner that conveys what is necessary for stakeholders to understand actions undertaken, or that acknowledges communication received or that explains the nature of basis of a decision.  As engagement transparency, it provides  information sufficient for stakeholders to fully participate in decision making to the extent appropriate to the decision.  I have also suggested the challenges to institutional programs of actions in the face of failures of communicative and engagement transparency, and the potential for significantly adverse distraction from even significantly positive institutional objectives.

(Pix (c) Larry Catá Backer 2012)

Both forms of transparency assume only the perspective of the holder of information.  It suggests, in effect, that transparency involves a unidirectional activity from a harvester and distributor of information to a set of information consumers.  But reality paints a different picture. First, every participant in transparency activity serves simultaneously as a producer and consumer of information. Second, interactivity posits not merely the obligation to produce information but also the obligation to receive it.

In a prior post I suggested the consequences of a failures to produce and distribute information in a unidirectional context (e.g., On the Importance of Transparency and the Relentless Pursuit of Knowledge in the Sandusky Affair--Governance in a New Era). This post suggests the consequences of failures of interpretation, and the distortions of transparency possible where transparency is conducted as a uni-directional exercise and where the parties acknowledge a right to information but not the obligation to receive it.  Failures of mutuality can distort the communicative and engagement aspects of transparency. Penn State again provides a good illustration of the failures of mutuality in communication--in which the production of communication that adheres to the forms of transparency might mask agendas far removed from the formal object of a transparency project.

On the Importance of Transparency and the Relentless Pursuit of Knowledge in the Sandusky Affair--Governance in a New Era

The longer I serve as Chair of the Penn State University Senate the more convinced I am of the importance of transparency.  And I do not mean the simpleminded sloganeering that passes for transparency among administrators eager to sound good but change none of their habits, or of faculty who like the word as a fetish but fail to embrace the obligations inherent in the concept.  I mean transparency in its two forms: engagement transparency and communicative transparency.  The former requires the production and dissemination of information necessary for key stakeholders to fully participate in shared governance.  The latter requires the publication of information that clearly provides information justifying or explaining actions taken.  

(Pix (c) Larry Catá Backer 2012)

It is not enough to speak transparency as some sort of rhetorical trope or to wave it about like a wand that makes everything better.  Transparency is work,.  In stressful times, failures of transparency, especially where such failures go to the legitimacy of decision making and to the legitimacy of the system of governance in place, can make a bad situation worse.  Penn State provides a lesson in the good and bad of movement toward a more transparent governance structure.  Large institutions, in today's world, are constantly monitored by external organizations even if they are successful in reducing the effectiveness of internal monitoring and even as they seek to severely control the flow and content of information.  This post provides examples of the good and bad that is emerging as a result.  There are lessons here for all large organizations.

Donald Ford on Football Culture at Penn State

Donald Ford, Dean and Professor Emeritus at Penn State, has shared with me an important assessment, viewed through the critically important lens of history, of Penn State faculty culture surrounding PSU football.   

(Pix from This is where the Joe Paterno statue used to be)

Dean Emeritus Ford has kindly given me permission to post his thoughts, and I am extremely pleased to be able to share them.  These comments add a significant nuance to the "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" and to my own critical endorsement of that statement (e.g., A Critical Endorsement of the Past Chairs Statement Regarding the Freeh Report and NCAA Consent Decree).   I really appreciate it.  I welcome comments and reactions.

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. 

Statement of Senate Chair Made at the Aug 28, 2012 Meeting

The Penn State University Faculty Senate held its first meeting of this academic year on Tuesday August 28, 2012 (e.g. Faculty Senate August 24 Meeting Agenda).  I have spoken to the forensic discussion requested by one of our Senators to consider the NCAA sanctions and the university's response (e.g. My Thoughts on the Questions Posed for the Senate Forensic Discussion on the NCAA and Big 10 Sanctions).

(Pix (c) Larry Catá Backer 2012)

This post includes the remarks I made at the start of the meeting,

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.

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.

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

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.

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 Time.com, 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.  

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. 

(From Mike Jensen, Colleges look at management of sports programs in wake of Freeh report

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.