Historic Fine for Penn State

Identifying a football culture that protected athletes and officials, the Education Department will fine Penn State U nearly $2.4 million for failing to notify students about assistant coach charged with sex abuse and for failing to disclose other campus crimes.

November 4, 2016
 
Penn State football fans on campus

Bringing to an end a five-year investigation into sex offenses involving a former assistant football coach, the U.S. Department of Education announced Thursday that it will fine Pennsylvania State University nearly $2.4 million for failing to comply with federal crime disclosure laws.

The fine covers 11 findings that the university violated the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act and the Drug-Free Schools and Communities Act. It is by far the largest fine ever imposed under the law. In a scathing report, the department said the university’s “football culture” was partially to blame for some of the violations.

“For colleges and universities to be safe spaces for learning and self-development, institutions must ensure student safety -- a part of which is being transparent about incidents on their campuses,” Ted Mitchell, the department’s under secretary, said in a statement. “When we determine that an institution is not upholding this obligation, then there must be consequences.”

The largest previous fine for violating the Clery Act was the $350,000 paid by Eastern Michigan University in 2008. The university failed to notify the campus that a student had been murdered in a residence hall in 2006. A subsequent investigation found the university committed several other Clery violations.

The investigation at Penn State took a similar path. The department began its investigation in 2011, following the arrest of the assistant football coach, Jerry Sandusky, for child abuse and amid allegations that some university officials had been aware of the abuse, which began at least 15 years earlier. The university fired both its president, Graham Spanier, and famed head football coach, Joe Paterno, during the resulting scandal. While the Education Department’s investigation was prompted by allegations that university officials turned a blind eye to Sandusky’s actions, the review turned up many other violations of the Clery Act that were unrelated to the football program. 

The department said that while Sandusky was first indicted on the sex abuse charges five years ago, “even prior to the Sandusky indictment, the university had significant evidence that Sandusky posed a danger to the campus community.” In 2008, a local high school removed Sandusky as a volunteer coach after he allegedly sexually abused a young boy. In May 2010, Juniata College refused to hire Sandusky for a volunteer position after he failed to pass a routine background check. Beginning in January 2010, the university cooperated with the Pennsylvania attorney general’s office, which was investigating Sandusky. 

At no point -- not in 2008, not in 2010 and not during the attorney general’s investigation -- did Penn State “take any action to warn the campus community about the potential risk posed by Sandusky’s continued presence on campus,” according to the department. When the allegations became public and the university tried to confiscate Sandusky’s keys to the football operations building and other campus facilities, he refused to return them. Despite Sandusky still having access to campus buildings, the university did not issue an emergency notification.

“The university knew that some of those vicious sex offenses against minors occurred on the Penn State campus while Sandusky had unfettered access to campus buildings and facilities,” the department said in a letter it sent to the university Thursday. “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 department] determined that Penn State’s University Park campus was a beehive of activity for children, yet the university failed to issue an emergency notification when senior officials knew of the forthcoming charges against Sandusky.”

In its report, the department also “identified numerous instances where cultural and climate factors in the football program adversely affected campus safety operations, primarily involving the student conduct process.” University officials told the department’s investigators that there was “a discernible sense among some athletes that the rules did not apply to them equally,” and that Paterno “repeatedly resisted attempts” to discipline his athletes through the typical student conduct process.

The department described the program as though it had “walls built up around” it. 

“What ensued was an overlong and dysfunctional standoff between the football program and student affairs officials with the president positioned somewhere between the two sides,” the department stated. “Some members of the football team, aware of the conflicts, took the program’s attitude toward the student conduct process as license to break the rules.”

The department said its investigation "showed that some victims were afraid to come forward if the assailant was a Penn State athlete," and that some who did come forward "were subjected to threats or other pleas" to drop the charges. "In both cases," the department stated, "the validity of Penn State’s crime statistics, a key component of the disclosures required by the Clery Act, were adversely affected."  In addition, the report said football administrators kept a list of prominent local lawyers to provide to football players -- but not to other students -- who were facing disciplinary actions.

In 2002, a Penn State football player was accused of sexual assault and was suspended for two semesters. Unbeknownst to the student conduct officials who suspended the student, the player was still allowed to travel with the team and play in the Capital One Bowl that year. In numerous other cases, “athletic department and football program officials questioned the nature or severity of sanctions imposed for various offenses.”

In 2007, a group of football players allegedly broke into an apartment to confront a man who had reportedly disrespected a teammate. Paterno, through his personal assistant, sent an email to the president and athletic director, saying, “I want to make sure everyone understands that the discipline of the players involved will be handled by me as soon as I am comfortable that I understand all the facts.” Later, when one of the players failed to appear for a meeting about the incident with a student conduct official, the athlete said that Paterno had told his players that if they visited the student conduct office, they would be “thrown off the team.”

In 2009, another football player was accused of sexual assault. When he reported to the student conduct office to discuss the incident, according to the department report, his first question was, “Does football know I’m here?”

Failing to Retain Records

The department’s investigation also revealed that, from 2008 to 2011, Penn State “did not have sufficient staff to ensure compliance with the Clery Act,” and so it largely ignored its Clery-related responsibilities. The university did not retain records related to campus crime statistics from 2008, 2009 and 2010, though the Clery Act requires colleges to retain records for at least three years. And from 1998 to 2008, it did not develop, publish or distribute a comprehensive drug and alcohol prevention program, as required by the Drug-Free Schools and Communities Act.

The university also failed to maintain an accurate and complete daily crime log, to publish and distribute annual security reports, and to issue timely warnings when crimes occurred on campus.

From 2008 to 2011, Penn State failed to “properly classify” reported crimes for Clery Act purposes and did not properly compile and disclose many of those crimes, the department said. In 2008, the university failed to disclose 101 crimes that occurred on campus, including a forcible sex offense, four aggravated assaults, a robbery, two burglaries, a motor vehicle theft and 92 liquor, drug abuse and weapons violations. This continued through 2011, with the university failing to disclose a total of 230 other campus crimes, including four forcible sexual assaults, seven aggravated assaults, seven burglaries, two motor vehicle thefts, one case of arson and 209 drug abuse and liquor violations.

Compiling and disclosing such crime statistics is the core requirement of the Clery Act. More than $2.1 million of the nearly $2.4 million fine stems from this violation.

“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,” Penn State said Thursday in a statement. “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.”

Alison Kiss, executive director of the Clery Center for Security on Campus, said while it’s true that there’s no changing the past, she hopes the historic size of the fine will spur other institutions to bolster their efforts to be in compliance with the Clery Act.

“The fine is significant, but so is the department’s report,” Kiss said. “Another institution can look at these findings and proactively find areas where they are lacking. It provides an opportunity, almost like a Dear Colleague letter, for colleges to look at Clery closely and at what they are doing and whether they are offering enough support and training to the people on the ground doing this work.”

The department’s $2.4 million fine is not the only sanction that Penn State has received for failing to appropriately respond to Sandusky’s crimes. In 2011, the National Collegiate Athletic Association announced a similarly historic series of sanctions against the university. Though the NCAA does not have rules specifically dealing with sexual abuse, the association’s leaders decided to fine Penn State $60 million, bar the football program from postseason play for four years, reduce the team’s number of scholarships by 10 per year for four years and vacate all football victories from 1998 to 2011.

The decision led to several lawsuits against the NCAA, and soon the association began rolling back many of the sanctions. It ended the scholarship reduction and postseason ban two years early.

The $60 million fine became the focus of one lawsuit, which was originally meant to determine where the penalty should be spent but gradually became a referendum on the NCAA’s authority to impose sanctions in the first place. As part of a settlement in that case, the NCAA restored the 112 football wins it had previously vacated.

In its statement Thursday, Penn State said it has since improved its procedures for addressing sexual assault and other crimes on campus.

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

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