The Freeh Report and the Failure of Trustees

The past few months have been troubling for those who
believe that Trustees must exercise more aggressive oversight roles on today’s
college and university campuses. At the University of Virginia, the board of regents (temporarily,
it turns out) sacked President Teresa Sullivan, yet struggled to articulate a
reason for doing so. Then, when they did so–seeming to demand more on-line
classes, seeming to criticize the German and Classics Departments–the board’s
vision conflicted with defenders of high standards. At University of Southern
Maine, meanwhile, the board stood aside amidst a
slow-motion coup against President Selma Botman–an effort that aimed, as one of
the plotters privately admitted, to show that “the faculty really are the
center of the universe.”

Release of the Freeh Report at Penn State should provide a reminder of what happens when a university Board abandons its appropriate oversight role. As Louis Freeh stated in a press conference Thursday morning, the evidence shows that former president Graham Spanier, former coach Joe Paterno, and two former university officials made an “active agreement to conceal” the possibility of crimes committed by Jerry Sandusky.

Freeh noted in his public remarks that while “the function of a Board is to create an atmosphere of accountability,” at Penn State, “the board failed in its oversight of the senior officers of the University.” The former FBI director’s comprehensive document identifies (p. 127) “weaknesses of the University’s culture, governance, administration, compliance policies, and procedures for protecting children.”

                                                                    ‘A Favorable Land deal’

In the report (p. 101), Trustees recalled a sense of “rubber stamping,” including the Board’s approval of a Sept. 2001 selling of university land (for the same price for which the university had purchased the property) to Sandusky‘s charity. (The report describes this arrangement as a “favorable land deal.”) Throughout the decade-plus after the first report of a possible crime against Sandusky, the report found that the Board allowed itself to be “marginalized”–especially on matters related to Paterno. Indeed, laxness by the Board permitted the athletic department “to become a closed community.”  This problem extended well beyond the Sandusky affair: a few days ago, the Chronicle revealed that Paterno had regularly attempted to bypass university disciplinary procedures for his players, and seemed to obtain the support of former president Spanier in his efforts.

By bringing some new information about Sandusky‘s 1999 retirement, the report raises doubts about the Board in another way. In 1999, Sandusky was “paid a very large, unprecedented amount of money” when he retired; he also was given “unprecedented access” to the football program after retirement, while receiving an appointment as professor emeritus. Freeh’s team found no evidence that these sweetheart deals were related to a police inquiry into Sandusky‘s 1998 incident with a boy in the shower.

Sandusky‘s retirement brought him not only the lump-sum payment but appointment at emeritus status. Yet established structures  required then-provost Rodney Erickson–now the president of Penn State–to sign off on the decision. Despite the ex-coach’s insignificant academic credentials, Erickson signed off, even as, he wrote at the time, he hoped that “not too many others” noticed the move. This decision proved fateful, since the university counsel would subsequently claim that his emeritus status meant Sandusky couldn’t be banned from the campus unless he was convicted of a crime. When the Board fired Spanier following public revelations of the charges against Sandusky, it quickly named Erickson as the new university president. Given the Freeh Report’s condemnation of the culture of Penn State, the Board’s decision to appoint as president a longtime Penn State official–and not even to bother with a national search before doing so–has to raise questions anew about the Trustees’ priorities and conduct.

There is one hero in the report. An unidentified trustee e-mailed President Spanier after word of the Sandusky investigation broke, asking what was going on. When Spanier complained that the trustee wanted too much transparency and then tried to parry the trustee on (specious) grounds that people who testified before the grand jury couldn’t talk about what they said, the Trustee shot back, “What is the outcome on this? I frankly think that, despite grand jury secrecy, when high-ranking people at the university are appearing before a grand jury, the university should communicate something about this to its Board of Trustees.” Depressingly, Freeh’s investigators could find no other information about Trustees pressing for more information about the inquiry, even though the Patriot-News had broken news of the investigation months before charges were brought.

Sandusky was convicted of assaulting two boys after the 2001 incident; it would seem that Penn State‘s legal liability toward them, in particular, would be massive. That’s all the more so as the report discovers a ham-handed attempt to conceal: in the two days in which the Penn State leadership made the decision not to report to police Sandusky’s 2001 alleged assault, “unique” e-mails among the three top Penn State leaders replaced proper names and ID’s with “generic references.”

Beyond the Board and its fate (Freeh didn’t directly reply to a question as to whether the Board should resign), the report’s findings shine attention on the NCAA. To take one example of the organization’s penchant for seeming to stress picayune violations, the NCAA punished the Boise State football program for allowing incoming freshmen, in the summer before they enrolled, to sleep on a couch or the floor in apartments of current football players. Boise State‘s an upstart team, and it has far less institutional clout than does Penn State. But if the NCAA finds providing couches for incoming students is worthy of sanctions, what possible punishment could be merited by a university whose leaders were shown to have made an “active agreement to conceal” possible child rape lest its revelation harm provide bad p.r. for the school?

A final point: whatever its failures, and they were massive, the current Penn State Board deserves enormous credit for hiring Freeh and giving him fre
e rein to produce a report that followed the evidence.