The DOE and Penn State By Charles P. Scheeler, JD The US Department of Education recently announced an unprecedented fine against Penn State University: $2.4 million for failures to report on-campus sexual assaults in violation of the Clery Act. The Clery Act is a consumer protection law that requires universities to publish information about assaults occurring on campus and issue timely warnings to students and others so they can take precautionary measures. …
The DOE and Penn State
The US Department of Education recently announced an unprecedented fine against Penn State University: $2.4 million for failures to report on-campus sexual assaults in violation of the Clery Act. The Clery Act is a consumer protection law that requires universities to publish information about assaults occurring on campus and issue timely warnings to students and others so they can take precautionary measures.
The DOE’s fine has implications far beyond Penn State. It should serve as a wake-up call to all universities who position high-profile athletics programs as the marquee feature of their school.
The DOE report describes behavior that occurred from 1998 to 2011. During the 2002–2003 school year, Penn State student athletes made up just 1.6 percent of the student body. However, they accounted for 50 percent of the sexual assault charges. According to the DOE report, in 2005, a Penn State football player assaulted a young woman, stating, “Girl, you know you want this. I’m a football player, you know you want this.”
There was a longstanding conflict between the Student Affairs office and the football program over who would handle discipline of football players accused of misconduct. Joe Paterno, Penn State’s head football coach, reportedly told his players that they would be “thrown off the team” if they cooperated with school officials in investigations into their own, or their teammates’, misconduct. E-mails show it was the football coach telling the university president how athlete misconduct would be handled. This should go without saying: It’s supposed to be the other way around.
But Penn State was far from alone in fostering such a climate. The scandals at many other schools provide other examples of student athletes behaving unconscionably toward women. The tragedy is not that the Penn State situation was an outlier; it is that it is far too common.
The good news is that progress is being made as these scandals shine a light on the dark underside of college athletics. Along with former Senate Majority Leader George Mitchell, I served as the NCAA-appointed monitor for Penn State’s athletics program during 2012–2015. As is detailed in our public reports, Penn State has made enormous progress in establishing effective institutional controls over its athletics program, and it has become a leader in campus sexual assault prevention. Other schools would be well advised to follow Penn State’s model. Thanks to vigorous enforcement efforts by the DOE, sexual assault prevention is at the top of virtually every university’s concerns. The NCAA has been at work as well, instituting reforms regarding the student athlete experience.
But much more remains to be done. At the core of this is money. Top head football or basketball coaches can make over five million dollars a year, many times what the university president makes. These coaches are under enormous pressure to win, and that makes them want to play their “best” players. But these coaches send the wrong message when they appear to condone sexual assault, as Penn State did when it permitted a student accused of sexual assault to play in a bowl game during Coach Paterno’s tenure.
Another complicating factor is that university trustees and influential alumni too often back the coaches, not the administration, when there is conflict. They are often generous donors, and they want their school’s teams to win, too. The modern university’s ability to pay for its nonrevenue sports is often dependent on its on-field success with the revenue sports.
These economic headwinds mean universities will always be challenged to balance their monetary interests against their educational mission, as well as their duty to provide for the safety of their students. So it is vitally important to remember the primary purpose of universities: to educate, not entertain.
Reaffirming the educational mission means fostering a culture where academics trumps athletics. Many of the 119 initiatives that Penn State has undertaken are designed to do just that, and other universities would do well to follow Penn State’s lead. Most importantly, the university administration must control the athletics program, and the university’s board must support the administration’s primacy.
Universities everywhere are teaching the wrong lessons if they condone these athletes’ unlawful behavior. They compound this sin if they exploit athletes for financial gain without adequate safeguards to ensure good educational outcomes. If they are serious about fulfilling their mission of higher education to this generation of college students, universities must vigorously promote a culture that puts the welfare of all students ahead of on-field success.
Charlie Scheeler is senior counsel at DLA Piper LLP and served as the monitor of Penn State’s Athletics Integrity Agreement. He also serves as a trustee at Johns Hopkins University. The views stated are his own.
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