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NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, THE BIG TEN CONFERENCE AND THE PENNSYLVANIA STATE UNIVERSITY
George J. Mitchell DLA PIPER LLP (US) November 30, 2012
Table of Contents Page I. II. III. IV. INTRODUCTION AND SUMMARY .............................................................................. 1 THE MONITORSHIP AND THE MONITOR’S RESPONSIBILITIES.......................... 6 THE MONITOR’S ACTIVITIES THIS QUARTER ...................................................... 13 OBSERVATIONS AS TO SPECIFIC AREAS .............................................................. 17 A. Athletics Department “Integrity Program” and Related Reforms ....................... 18 1. 2. 3. Overview of the Athletics Department .................................................... 19 Code of Conduct for Intercollegiate Athletics ......................................... 21 Organization, Staffing, and Oversight ..................................................... 22 a. b. c. d. 4. 5. 6. B. Athletics Integrity Officer and Athletics Integrity Council ......... 22 Athletics Department Compliance Staff ...................................... 23 Team Monitors ............................................................................. 24 Organizational Structure .............................................................. 24
Athletics Department Policies.................................................................. 25 Improvements to Security for Athletics and Recreational Facilities ....... 26 Changes in Facilities for Academic Support for Student-Athletes .......... 29
Enhancements to Other University Policies ........................................................ 30 1. University Policies for the Protection of Minors ..................................... 31 a. b. c. 2. 3. AD39: Minors Involved in University-Affiliated Programs ....... 31 HR99: Background Checks......................................................... 33 AD72: Reporting Suspected Child Abuse .................................. 34
AD74: Compliance with the Clery Act ................................................... 35 University Police Department Policies .................................................... 36
Page C. D. E. Clery Act Compliance.......................................................................................... 37 Changes in University Governance and Administration ..................................... 40 Training and Education ........................................................................................ 44 1. Training Required Under the AIA ........................................................... 44 a. b. c. d. 2. Athletics Department Training .................................................... 45 Training on Clery Act and Mandated Reporter Responsibilities ............................................................................ 47 University Police Department Training ....................................... 48 Tracking and Coordination of Training Activities....................... 49
University Educational Initiatives............................................................ 49 a. b. c. The Rock Ethics Institute ............................................................. 50 National Conference on Child Sexual Abuse .............................. 50 Other Sexual Assault and Child Abuse Awareness Activities ...................................................................................... 51
Compliance Hotline and Other Components of Disclosure Program .................. 54
CONCLUSIONS AND NEXT STEPS............................................................................ 56
INTRODUCTION AND SUMMARY On July 23, 2012, the National Collegiate Athletic Association (“NCAA”) entered into a
binding Consent Decree with The Pennsylvania State University (“Penn State” or the “University”) to address asserted violations of the NCAA’s Constitution and By-laws based on a report by Freeh Sporkin & Sullivan LLP dated July 12, 2012 (the “Freeh Report”). The Freeh Report concerned acts of child sexual abuse committed by Gerald A. Sandusky, a former Penn State assistant football coach. On August 28, 2012, Penn State entered into an Athletics Integrity Agreement (“AIA”) with the NCAA and the Big Ten Conference to implement aspects of the Consent Decree. I was appointed the independent athletics integrity monitor (“Monitor”) pursuant to section III of the Consent Decree and article IV of the AIA. I retained my law firm DLA Piper LLP (US) to assist me in that role. The AIA requires me, as the Monitor, to prepare a written quarterly report to Penn State, the Big Ten Conference, and the NCAA regarding the University’s implementation of the provisions of the AIA. This is the first quarterly report. Since my appointment, I have met and interviewed many individuals at Penn State, including Board of Trustees Chairman Karen B. Peetz, President Rodney A. Erickson, acting Athletic Director David M. Joyner, football head coach Bill O’Brien, members of the faculty, administrators, and student leaders. My colleagues have met with many others. Our goals in these meetings have been to hear directly from the Penn State community about the efforts that are underway to implement the requirements of the AIA; to gain a foundational understanding of the operation of the Athletics Department and its relation to the governance of the University; and to discuss related matters. We have received the University’s full cooperation during this initial period of the monitorship. Our requests for access to University personnel have been granted without
The University and its outside counsel have been responsive to our document
requests. Based on our work to date, Penn State’s Board of Trustees and its administration appear determined to implement, swiftly and in good faith, the recommendations for reform that were identified in the Freeh Report, and to fulfill the commitments that the University made in the Consent Decree and the AIA. The University has dedicated substantial time and resources to accomplishing these objectives. Many of the Freeh Report recommendations have been
implemented already, while implementation is well underway of other recommendations that will take longer to complete. Before the AIA was finalized, Penn State already had established an administration response team, led by three senior administrators, to oversee the University’s assessment and implementation of the Freeh Report recommendations. It also had begun to implement some of those recommendations. The administration response team meets weekly to assess and drive progress on the Freeh Report recommendations. The Board of Trustees established its own response team, led by Vice Chairman Keith E. Masser, which oversees the work of the administration response team. An activity matrix developed under the leadership of these teams tracks progress and is updated regularly on a public website.1 A third group, the Freeh Response Advisory Council, includes representatives from the student body, the staff, the Faculty Senate, the Academic Leadership Council, and the Hershey Medical Center, as well as the faculty athletics representative, Professor Linda Caldwell. It meets biweekly to review reports on the status of ongoing work from, and to provide feedback to, the administration and Board response teams. Our team has attended nearly all of the meetings of the administration response team and
See www.progress.psu.edu. 2
of the Freeh Response Advisory Council. We also have attended meetings of the Board of Trustees and of its various committees that have been held since my appointment. The University’s efforts have resulted in tangible achievements. Many formal policies have been revised or adopted, including policies to govern background checks for University employees, access to University athletics and recreational facilities, protection of children involved in University-affiliated activities, and the duties to report possible child abuse. During the past summer, new background check procedures were followed for thousands of employees who were involved in Penn State sports camps. More than 9,600 individuals have been trained as to their duties as mandated reporters of suspected child abuse under Pennsylvania state law, and roughly 2,600 “campus security authorities” have been trained about their reporting responsibilities under the federal Clery Act.2 The University created and staffed a new position in its police department dedicated to ensuring compliance with the Clery Act. It has established the Athletics Integrity Council required by the AIA; is now recruiting an athletics integrity officer; has added compliance staff in the Athletics Department; has changed some reporting relationships in that department to better integrate it with the University’s administration; and has drafted and is in the process of adopting a new Code of Conduct for Intercollegiate Athletics. The Athletics Department also has begun a critical review of security arrangements for the many buildings and venues that are subject to its oversight, and some changes in security practices already have been implemented in conjunction with the adoption of the new policy on access to those facilities. The University also has demonstrated a commitment as an institution to addressing the grave problem of child abuse that the Sandusky case laid bare. There appears to be unanimity Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act of 1998, Pub. L. No. 101-542, 104 Stat. 2385 (codified at 20 U.S.C. § 1092(f)). 3
within the Penn State community that one outcome of this tragedy should be greater awareness of the prevalence of child abuse in society generally and the devotion of more University resources to prevent it where the University can play a role in doing so. The University established the Presidential Task Force on Child Maltreatment to bring together a broad spectrum of faculty from across the University to coordinate and develop research, clinical practice, outreach, and education on child maltreatment. In December 2011, the University announced the establishment of the Penn State Hershey Center for the Protection of Children, which is dedicated to the study, research, prevention, and treatment of child abuse. In October 2012, the University hosted a two-day national conference on child sexual abuse that was attended by nearly 400 persons from 27 states. The Freeh Report recommends that the University organize a broad based effort to “vigorously understand and examine the Penn State culture in order to” reinforce the University’s commitment to protecting children and to “establish values and ethics-based decision making and adherence to the Penn State Principles . . . .”3 Culture is susceptible to many interpretations. But in the aftermath of this tragedy, it is essential that Penn State foster an environment where employees, faculty, students, and others in the community are comfortable that they will not face retribution for reporting possible misconduct, regardless of the circumstances. A culture where building custodians do not report obvious wrongdoing because they fear for their jobs (as the Freeh Report described) is not acceptable.
The Penn State Principles are: (1) “I will respect the dignity of all individuals within the Penn State community”; (2) “I will practice academic integrity”; (3) “I will demonstrate social and personal responsibility”; and (4) “I will be responsible for my own academic progress and agree to comply with all University policies.” See http://www.psu.edu/ur/principles.html. 4
The senior leadership of Penn State, starting with Chairman Peetz and President Erickson, endorse and support this concept without reservation. Penn State is a large institution with diverse constituencies and viewpoints, however, and significant cultural change cannot be expected to occur in less than a semester. Led by the Freeh Response Advisory Council, the University is developing a multi-disciplinary approach to address this difficult task. Recently, that Council discussed several possible approaches to doing so. Meanwhile, as we address below, many of the University’s other reforms touch upon this overarching objective. The University leadership’s determination to move forward in implementing the requirements of the Consent Decree and the AIA has drawn broad support. But it also has been criticized by some in the Penn State community who have taken strong exception to the criticism of Penn State’s culture in the Freeh Report and in the Consent Decree. Others have criticized the decision to accept the NCAA sanctions, which they insist could have been, and should have been, resisted. Criticism is likely to continue and even to intensify in 2013 as the criminal trials of former senior Penn State officials occur. However, not all of those who have expressed these dissenting views resist change. Many, especially those whose criticism is focused on what they allege to be the sweeping and unfounded assertions of the Freeh Report, nonetheless favor Penn State’s putting this issue behind it and moving forward. The right to dissent and to publicly express contrary views is, of course, fundamental in our society, and those rights are especially necessary in institutions of higher learning. But the interviews we have conducted to date, while reflecting only a small segment of the broader Penn State community, suggest that these dissenting views are in the minority. Indeed, at a meeting on October 16, 2012, the Faculty Senate declined to adopt faculty resolutions – opposed by student leaders – that were highly critical of both the Freeh Report and the Consent Decree.
The leaders of the University have listened to and considered all points of view, but they do not appear to have been deterred from taking the steps necessary to address the perception that the events that led to the Consent Decree were attributable in part to a culture that elevated the football program above other important institutional priorities. Penn State appears to be working diligently to address this issue. I have been impressed by the depth and breadth of the commitment and loyalty of those in the Penn State community. These can be powerful tools when they are accompanied by a recognition that critical self-analysis will strengthen the institution and is essential to restoring its hard-earned reputation for excellence. The University remains in the early stages of this process of analysis, debate, and change. It is too soon to judge the ultimate result. But I believe that Penn State is off to a very good start. II. THE MONITORSHIP AND THE MONITOR’S RESPONSIBILITIES On November 4, 2011, the Commonwealth of Pennsylvania criminally charged Sandusky, a former assistant football coach and professor emeritus at the University, with multiple crimes involving sexual abuse of minors. He was found guilty of 45 criminal counts on June 22, 2012 and is serving a sentence of 30 to 60 years in prison. Criminal charges also were filed against the University’s Athletic Director Timothy M. Curley and its Senior Vice President Finance and Business Gary C. Schultz arising from their alleged failure to report allegations of child abuse by Sandusky. On November 1, 2012, Graham Spanier, the former president of the University, was indicted for alleged perjury and obstruction of justice in the Sandusky criminal investigation and for allegedly endangering the welfare of children. Soon after the original criminal charges were unsealed in 2011, a task force of the Penn State Board of Trustees engaged former federal judge Louis J. Freeh and his law firm Freeh
Sporkin & Sullivan LLP to conduct an investigation into the University’s role in the Sandusky allegations. The Freeh Report sets forth the findings and recommendations of that investigation. The publication of the Freeh Report and its findings led to discussions between the NCAA and the University about whether there had been violations of NCAA rules as a result of the conduct of University officials alleged in the report. Effective as of July 23, 2012, the University entered into a binding Consent Decree with the NCAA and the Big Ten Conference. I played no role in the discussions concerning the Consent Decree; I was not contacted by the NCAA until after the Consent Decree was finalized. In the Consent Decree, the NCAA concluded, based on the findings in the Freeh Report and the findings of the jury in Sandusky’s criminal trial, that “Penn State breached the standards expected by and articulated in the NCAA Constitution and By-laws.” These included a “failure to value and uphold institutional integrity demonstrated by inadequate and in some instances non-existent controls and oversight surrounding the athletics program . . . ,” a “failure to maintain minimal standards of appropriate and responsible conduct[,]” and a “lack of adherence to fundamental notions of individual integrity” by individuals involved in the University’s intercollegiate athletics programs.4 Based on these conclusions, the Consent Decree set forth sanctions that the NCAA stated were intended to penalize the University for its violations and
Consent Decree, § II. NCAA member institutions commit themselves to advance a set of principles supporting the NCAA’s purpose to “initiate, stimulate and improve intercollegiate athletics programs for student-athletes and to promote and develop educational leadership, physical fitness, athletics excellence and athletics participation as a recreational pursuit.” NCAA Const., § 2.01. These principles include, among others, “to uphold the principle of institutional control of, and responsibility for, all intercollegiate sports in conformity with the constitution and bylaws of this Association.” NCAA Const., § 1.2(b). 7
“to change the culture that allowed this activity to occur and realign it in a sustainable fashion with the expected norms and values of intercollegiate athletics.”5 In the punitive component of the Consent Decree, the NCAA imposed: a $60 million fine to be paid over five years into an endowment for programs preventing child sexual abuse or assisting the victims of such abuse; a four-year ban on the Penn State football team’s participation in postseason play; and a four-year reduction in football grants-in-aid. The NCAA also vacated all wins of the Penn State football program from 1998 to 2011. In addition, the NCAA imposed a five-year probation period on the University.6 In the corrective component of the Consent Decree, the NCAA required Penn State to adopt all of the recommendations for reform delineated in chapter 10 of the Freeh Report and to take all reasonable steps to implement those recommendations, “in spirit and substance,” by December 31, 2013.7 The NCAA also required Penn State to enter into an athletics integrity agreement with both the NCAA and the Big Ten Conference that would require Penn State to institute an “Integrity Program” including, among other things: the appointment of an
independent integrity officer for the Athletics Department; the creation of an athletics integrity council responsible for oversight of the ethical, legal, and compliance obligations of the Athletics Department; the creation of a mechanism to report or request advice with respect to compliance issues in the Athletics Department; the development of an athletics code of conduct; the
Consent Decree, § III.
In the Consent Decree, the NCAA reserved the right to pursue further sanctions against individuals after the conclusion of pending criminal proceedings. The NCAA permitted football student-athletes to transfer to other institutions with no loss in NCAA eligibility, and also provided that football student-athletes would not lose existing grants-in-aid at Penn State provided that they continued to meet the academic eligibility requirements. Consent Decree, § III.A.
Consent Decree, § III.B. 8
establishment of training “that addresses issues of ethics, integrity, civility, standards of conduct and reporting of violations”; and the periodic certification that each intercollegiate athletics team and the whole Athletics Department has continued to satisfy applicable “ethical, compliance, legal and University obligations.”8 The corrective component of the Consent Decree also required the University to appoint for a five-year period an independent athletics integrity monitor who would be charged with evaluating and preparing quarterly reports on Penn State’s progress in carrying out these obligations. The monitor was to be selected by the NCAA in consultation with Penn State and the Big Ten Conference. Soon after the Consent Decree was signed, I was contacted by the NCAA staff about whether I would be willing to serve as the monitor contemplated under the Consent Decree. Thereafter, my colleagues and I met with representatives of both the NCAA and the University about that potential assignment, began background work, and were kept apprised of discussions among those parties and the Big Ten Conference concerning the provisions of the athletics integrity agreement that would set forth the parameters of the monitor’s work. The NCAA and the University entered into the final AIA on August 28, 2012. The Big Ten Conference executed that agreement the next day. The Monitor is not a party to the AIA.9 The AIA confirms Penn State’s commitment to promote “compliance with the NCAA and Big Ten rules and regulations as well as with the NCAA’s and Big Ten’s standards of integrity for its member institutions.”10 As mandated in the Consent Decree, the AIA reiterates Penn
Consent Decree, § III.B.
In September 2012, the University and DLA Piper LLP (US) entered into a separate agreement governing the terms of my appointment as Monitor.
AIA, § I. 9
State’s obligation to implement all recommendations contained in chapter 10, section 5.0 of the Freeh Report by the end of 2013; requires the University to review, assess, and “implement in an appropriate way” the other recommendations in chapter 10 of the Freeh Report; sets forth a number of “integrity obligations” that the University must undertake; and more specifically describes the Monitor’s responsibilities and authority.11 The AIA reiterates that the Monitor performs an independent role. The Monitor is not an agent of Penn State, the NCAA, or the Big Ten Conference. The NCAA may replace the Monitor at will, after first consulting with Penn State and the Big Ten Conference, but Penn State may not remove or replace the Monitor.12 Under both the Consent Decree and the AIA, the Monitor is contemplated to serve for a term of five years. The AIA permits this term to be either extended or shortened in the NCAA’s discretion, but in no event will the term be less than two years.13 As Monitor, my responsibility is to evaluate Penn State’s efforts to satisfy its obligations under the Consent Decree and the AIA, to issue quarterly reports about those efforts to Penn State, the NCAA, and the Big Ten Conference, and, if appropriate, to recommend additional reforms “to enhance compliance with NCAA rules and regulations.”14 More particularly, the AIA calls upon the Monitor: . . . to review and monitor the University’s compliance with the AIA and the systems, processes and procedures to comply with the NCAA Constitution and Bylaws and Big Ten Handbook, including, but not limited to, the principles regarding institutional control, responsibility, ethical conduct, and integrity reflected in the NCAA Constitution and Bylaws and Big Ten Handbook. The Monitor shall also review the
11 12 13 14
The AIA applies only to Penn State’s University Park campus. AIA, § IV.A. AIA, § IV.A. Consent Decree, § III.B. 10
activities of the Athletic Department and all Covered Persons to ensure that their conduct and relationships with the athletics program are appropriate under the AIA, the NCAA Constitution and Bylaws and the Big Ten Handbook.15 The Monitor will prepare a written quarterly report to the University’s Board of Trustees, the Big Ten, and the NCAA regarding the University’s execution and maintenance of the provisions of the AIA. The Monitor will make recommendations to the University to take any steps he or she reasonably believes are necessary to comply with the terms of the Consent Decree, the AIA, and the Freeh recommendations, and to enhance future compliance with [sic] NCAA Constitution and Bylaws, rules and regulations and Big Ten Handbook and rules and regulations.16 The AIA sets deadlines for Penn State to satisfy many of its obligations. Other
undertakings, by their nature, will never be complete but will require ongoing commitment and vigilance. Within 120 days of the AIA’s effective date, Penn State shall: appoint an athletics integrity officer; establish an athletics integrity council (which will include the athletics integrity officer, faculty members, and senior administrators, among other individuals); create and distribute a code of conduct for athletics and written policies and procedures governing an athletics integrity program; and institute a disclosure program that includes a hotline permitting anonymous reports or requests for guidance concerning Penn State’s compliance with the AIA, Penn State policies, the NCAA Constitution and By-laws, the Big Ten Handbook, and “the principles regarding institutional control, responsibility, ethical conduct and integrity” reflected
“Covered Persons,” as defined in the AIA, § II.B.2, means:
[A]ll student-athletes who participate on any University NCAAsanctioned intercollegiate athletics team; all coaches and all managers of any of the University’s NCAA-sanctioned intercollegiate athletics teams; all University staff and other University employees who are directly involved with any of the University’s NCAA-sanctioned intercollegiate athletics teams; the University’s Board of Trustees individually and collectively . . . ; the President of the University; and all members of the Athletics Director’s Executive Committee.
AIA, § IV.B. 11
in those documents.17 The deadline to complete these 120-day commitments is December 26, 2012. Several of these reforms have been implemented already, and Penn State appears to be on track to achieve the others by that deadline. Even after the deadline to institute the AIA’s integrity obligations, Penn State will be required to assess and take steps to reinforce an environment centered on principles of institutional control, responsibility, ethical conduct, and integrity. By no later than June 30th of each year, a “Team Monitor” for each intercollegiate athletics team must provide a report to the athletic director and athletics integrity council concerning any issue that arose in the past year and the remedial actions that were taken in response. The Team Monitor also must certify that the team is in compliance with “the NCAA Constitution and Bylaws and the Big Ten Handbook, and the principles regarding institutional control, responsibility, ethical conduct, and integrity” reflected in those documents.18 Similarly, every “Covered Person” must certify annually by no later than June 30th that he or she has completed educational programs concerning “the NCAA Constitution and Bylaws and the Big Ten Handbook; the principles regarding institutional control, responsibility, ethical conduct, and integrity reflected in the Constitution and Bylaws; and the Athletics Department’s own Policies and Procedures.”19 Beginning with this first quarterly report, and throughout the monitorship, the Monitor will evaluate and report on Penn State’s efforts to implement the AIA and the Freeh Report’s
See AIA, § III.
AIA, § III.B.3. A “Team Monitor” is “a named coach, manager, or appropriate administrator for each University NCAA-sanctioned intercollegiate athletics team” who is “assigned to monitor and oversee activities within his or her team relating to compliance with the AIA and other relevant standards and obligations.” AIA, § III.B.3.
AIA, § III.D.1. 12
recommendations and, more generally, on the reforms implemented by the University in the wake of the Sandusky scandal. III. THE MONITOR’S ACTIVITIES THIS QUARTER Upon my appointment as Monitor, my team and I developed a work plan that would allow us to meet with representatives from each principal constituency in the Penn State community, beginning immediately, to discuss the University’s efforts to comply with the requirements of the AIA and the Consent Decree. Since the beginning of the fall semester, I or my colleagues have been present on the University Park campus almost every week for meetings and interviews. We also have participated in regular conference calls with those within the University who are working on these matters. Soon after my appointment, we issued a request for documents to the University, through its General Counsel Stephen S. Dunham. We have supplemented that request as called for as a result of what we have learned during the course of our work. To date, the University has provided approximately 6,700 pages of documents in response to those requests, including policies, procedures, organizational charts, university publications, correspondence concerning the implementation process, training materials, compliance-related documents, NCAA and Big Ten Conference-related documents, and Faculty Senate documents relating to intercollegiate athletics. Our team also gathered publicly available documents that were relevant to our work, and we conferred with attorneys from the law firm of Saul Ewing LLP to discuss, collect, and review relevant documents gathered by Judge Freeh and his staff. During this first quarterly period, we met with more than 150 administrators, faculty members, Board of Trustees members, and student and alumni leaders, some of them on several occasions. Among other persons, we met with Chairman Karen B. Peetz; President Rodney A. Erickson; acting Athletic Director David M. Joyner; Associate Athletic Director for Facilities 13
and Operations Mark Bodenschatz; Associate Vice President for Public Safety Steve Shelow; Clery Act Compliance Coordinator Gabriel R. Gates; present and former Faculty Senate leaders Larry C. Backer and John Nichols; General Counsel Stephen S. Dunham; Senior Vice President for Finance and Business David Gray; Vice President for Administration Thomas Poole; Associate Vice President for Human Resources Susan Basso; Senior Vice President for Development and Alumni Relations Rod Kirsch; University Risk Officer Gary Langsdale; Associate Athletic Director for Compliance Matthew Stolberg; the head coaches for all Penn State varsity intercollegiate athletics teams, including head football coach Bill O’Brien; and Faculty Athletics Representative Linda Caldwell. On September 18, 2012, I attended a meeting with approximately 30 student leaders that was organized by Vice President for Student Affairs Damon Sims. We also have met with other senior administrators and staff in the Athletics Department, the University Police Department, the Office of Internal Audit, the Office of the Corporate Controller, and the Morgan Academic Support Center for Student-Athletes. The principal areas of inquiry in these meetings have been: the plans for implementation of the recommendations in the Freeh Report and of the AIA’s requirements, the status of those efforts, and views as to how to most effectively implement those reforms; the existing governance and oversight of, and internal controls for, the Athletics Department; the University’s policies and procedures governing security for facilities overseen by the Athletics Department; the University’s policies and procedures for the protection of children involved in Universityaffiliated activities; the culture of the University, in particular in its relationship with intercollegiate athletics; and views within the Penn State community of ways in which the Monitor could best serve a constructive role in the implementation of reforms under the Consent Decree and the AIA.
During this first quarterly period, our team has attended a number of meetings of the Board of Trustees and its committees. Even before the AIA was signed, I met with Chairman Peetz and President Erickson and we monitored public sessions of Board meetings on August 25 and 26, 2012. We attended meetings of the Board and a number of its committees that were held on September 13 and 14 and November 15 and 16, 2012. Portions of these Board meetings included public comment sessions for members of the Penn State community concerning the Sandusky matter and its aftermath and other subjects.20 Members of our team attended weekly meetings of the administration response team that was formed by the University’s Board and administration to oversee the implementation of the Freeh Report’s recommendations. We also attended regular meetings of the Freeh Response Advisory Council, which is a broader committee tasked with maintaining open lines of communication about the AIA and the Freeh Report recommendation implementation process. We attended the first meeting of the Athletics Integrity Council established in accordance with the AIA, which was held on November 14, 2012. On September 7, 2012, members of our team met with the Faculty Senate’s Special Committee on University Governance, which is composed of current and former faculty members, University staff, and students. The meeting included representatives from
Penn State’s Altoona, Erie, and Hershey campuses, enabling us to gain some further understanding of the concerns and perspectives of those constituencies. On October 16, 2012, a member of our team attended a regular meeting of the Faculty Senate, during which that body
After discussions with the University’s general counsel and its outside counsel, we did not attend the closed portion of a meeting of the Board of Trustees on October 26, 2012 at which the Board discussed pending and threatened litigation by Sandusky’s victims based on a determination that those discussions would be subject to the attorney-client privilege. We monitored the public session of that meeting. 15
debated, and ultimately did not adopt, motions concerning the Freeh Report and the Consent Decree. We monitored sessions of ongoing training programs run by the University in accordance with the recommendations in the Freeh Report and the requirements of the AIA. On
September 14, members of our team attended a training session for the Board of Trustees on compliance with NCAA rules and the trustees’ responsibilities under them, as required by the AIA, and a separate training session on the Board’s responsibilities as “mandated reporters” of suspected child abuse under Pennsylvania law, as called for in the Freeh Report. On October 17, 2012, members of our team attended an NCAA rules education meeting conducted by the Athletics Department’s compliance team. On November 16, 2012, a member of our team
attended a Clery Act training session that was provided to the members of the Board of Trustees. We retained Guidepost Solutions, LLC, a consulting firm experienced with security protocols for educational institutions generally and for athletics venues and facilities in particular, to assess and provide recommendations with respect to security issues for University buildings and facilities associated with the Athletics Department. In addition, I met with Gary Langsdale, the University’s risk officer, to discuss his office’s role on campus, its coordination with the Board of Trustees’ Audit and Risk Committee, and its activities relating to University Policy AD39, which concerns the protection of children involved in University-affiliated activities. We reviewed existing scholarship concerning best practices for university governance in general and the governance and oversight of intercollegiate athletics departments in particular, including reports prepared by the United States Department of Education, the Congressional Research Service, the NCAA, the National Association of Intercollegiate Athletics, the
Association of Governing Boards of Universities and Colleges, the Coalition on Intercollegiate Athletics, the John S. and James L. Knight Foundation’s Commission on Intercollegiate Athletics, the American Association of University Professors, the American Council on Education, the Faculty Athletics Representatives Association, the National Association of College and University Attorneys, and The Drake Group. We met with Professors R. Scott Kretchmar and John S. Nichols, who have examined these matters in their academic careers, to discuss their views on these and related issues. We also attended a panel discussion on the “Future of the NCAA and its Membership” hosted by Penn State’s John Curley Center for Sports Journalism. The panelists included two former NCAA presidents, an assistant managing editor for USA Today, the University’s former faculty athletics representative, and the executive director of the Knight Commission. We reviewed publications that have been critical of Penn State and the Freeh Report, including a review of the Freeh Report that was issued by the alumni group Penn Staters for Responsible Stewardship on September 13, 2012 and a special report on Penn State’s governance structure that was issued by the auditor general of the Commonwealth of Pennsylvania in November 2012. IV. OBSERVATIONS AS TO SPECIFIC AREAS There are many recommendations in the Freeh Report, some of which can be satisfied more quickly than others. The University has completed or nearly completed implementation of many recommendations. Of the 119 recommendations contained in the Freeh Report, the
University is considering not implementing roughly a half dozen. Those recommendations are the subject of an internal review as to whether their implementation would be in the best interests of the University and would further the objectives of the AIA and Consent Decree. None of them was among the recommendations in chapter 10, section 5 of the Freeh Report, which 17
concerned the Athletics Department. If the University decides not to implement a particular recommendation, the AIA requires it to notify and obtain the consent of the NCAA and the Big Ten Conference. The University has committed to follow this process and to confer with the Monitor in the course of its deliberations. A. Athletics Department “Integrity Program” and Related Reforms
A central requirement of the AIA is for Penn State to “establish and maintain an Integrity Program” for the Athletics Department that includes several components, including: (1) implementing the recommendations in chapter 10, section 5 of the Freeh Report; (2) appointing an athletics integrity officer and establishing an athletics integrity council; (3) adopting a code of conduct for athletics; (4) implementing or updating policies and procedures regarding the operation of the Integrity Program; (5) establishing and following a training and education program on NCAA and Big Ten Conference rules and the principles of institutional control, responsibility, ethical conduct, and integrity underlying them; and (6) establishing a disclosure program for identifying rules violations and providing guidance on questions about compliance.21 Several of these components must be completed by the end of December 2012, others by the end of 2013. Many reforms will require continuing attention and annual certifications. During this first reporting period, the University has made substantial progress toward satisfying these obligations.
AIA, § III. 18
Overview of the Athletics Department
Penn State’s Athletics Department oversees 31 varsity intercollegiate athletics teams and approximately 800 student athletes at the University Park campus.22 It supervises a variety of other on-campus activities, including sports camps for children and youth. In November 2011, Athletic Director Timothy Curley was indicted and took administrative leave. A member of the Board of Trustees, David M. Joyner, M.D., was named acting athletic director soon thereafter and resigned from the Board. He reports directly to President Erickson, who has stated that this arrangement will continue through the end of President Erickson’s term in 2014 when his successor will have the opportunity to recruit and select the next athletic director.23 There are approximately 350 employees in the Athletics Department, with nine senior administrators reporting directly to Dr. Joyner. The University’s varsity intercollegiate athletics teams generate sufficient revenues in the aggregate to support themselves financially. Other Athletics Department programs are funded with general funds from the University. The Consent Decree imposed a $60 million fine and directed that “[n]o current sponsored athletic team may be reduced or eliminated in order to fund” it.24 The University will pay the fine in five annual installments of $12 million, which will be funded by the Athletics Department. In addition to the fine, the University estimates that the Athletics Department will lose aggregate postseason revenues from the Big Ten Conference of approximately $13 million as a result of the Consent Decree.
Men’s and women’s ice hockey programs were introduced beginning in the 2012-13 academic year, bringing the total number of varsity programs to 31 when indoor and outdoor track are counted as different teams.
Penn State has announced that it will not renew Mr. Curley’s contract when it expires. Consent Decree, § III.A. 19
The academic achievements of Penn State’s student-athletes have been impressive. The Morgan Academic Support Center for Student-Athletes provides student-athletes with academic and other support and information about Penn State, NCAA, and Big Ten Conference academic eligibility requirements. The University most recently reported an aggregate intercollegiate athletics programs graduation success rate of 88 percent, 8 percentage points higher than the Division I average. The football program’s graduation rate was 91 percent, 23 points higher than the average for major college programs, seventh among those programs, and second in the Big Ten Conference.25 The average grade point average for Penn State’s varsity teams was 3.03 in fall 2011 and 3.07 in spring 2012. The faculty athletics representative, Professor Linda
Caldwell, serves an important role in maintaining the proper relationship between intercollegiate athletics and the University’s academic mission.26 Through the Morgan Center and otherwise, student-athletes also are encouraged to get involved in their community. During the 2010-11 academic year, varsity student-athletes
contributed over 3,200 hours of community service. This total rose to nearly 6,000 hours for the 2011-12 academic year.
Federal Graduation Rate Report for http://fs.ncss.org/docs/newmedia/public/rates/index.html.
Nominated by the Faculty Senate and appointed by the president, the faculty athletics representative is a tenured full professor responsible for “represent[ing] the faculty in all matters related to varsity athletics at University Park.” The faculty athletics representative plays a role in certifying student-athlete eligibility, participating in investigations of possible violations of NCAA or Big Ten Conference rules, assisting in the formulation of the University’s position on proposed rules, administering the NCAA coaching certification examination, assisting in obtaining rules waivers, and representing the University at meetings of the NCAA and Big Ten Conference, and periodically reports to the Faculty Senate on competition schedules and studentathlete academic performance. 20
Code of Conduct for Intercollegiate Athletics
Under the AIA, Penn State was required to develop, implement, and distribute a written code of conduct for athletics within 120 days. On November 16, 2012, the Board of Trustees approved the Code of Conduct for Intercollegiate Athletics, which also has been approved by the Athletics Integrity Council. The University appears to be on track to fulfill this AIA requirement by the deadline next month. Before writing its code of conduct, the University undertook a benchmarking exercise to assess similar governance documents at peer institutions. A draft then was prepared and
circulated for comment to the Athletics Integrity Council and the Freeh Response Advisory Council. A working draft of the code of conduct also was provided to the Monitor for our review and comment and was reviewed by the Board of Trustees’ Committee on Legal and Compliance. As required by the AIA, the code of conduct reiterates the Athletics Department’s commitment to full compliance with the NCAA Constitution and By-laws, the Big Ten Handbook, and the principles regarding institutional control, responsibility, ethical conduct, and integrity reflected in those documents. It conveys the University’s expectation that all “Covered Persons” will comply with the same governing documents and principles. It requires “Covered Persons” to report suspected violations of NCAA or Big Ten rules, or Athletics Department policies. And it provides for confidentiality and a policy of non-retaliation for persons making such reports. The code of conduct will be circulated for review and signature by “Covered Persons,” who include student-athletes, coaches, administrators, team managers, and others including the members of the Board of Trustees.
Organization, Staffing, and Oversight a. Athletics Integrity Officer and Athletics Integrity Council
The AIA requires that, within 120 days of its effective date, Penn State shall appoint an athletics integrity officer and establish an athletics integrity council. The University is on track to satisfy these requirements by that deadline. The University created a position description for an athletics integrity officer, which was reviewed by both the NCAA and the Monitor before it was published. It has established a national search committee led by Professor Caldwell. The search committee has interviewed a number of candidates and expects to fill this new position in the near future. As the AIA requires, the athletics integrity officer will report to the University’s director of compliance (itself a new position for which Penn State currently is conducting a search) and will have regular and direct access to the president and the Board of Trustees, or an appropriate committee thereof.27 The athletics integrity officer will meet periodically with the NCAA and the Big Ten Conference to report on Penn State’s compliance with the AIA.28 The athletics integrity officer will supplement the work performed by the existing associate athletic director for compliance. Once hired, the athletics integrity officer will become chairman of the newly formed Athletics Integrity Council. The Council will hold meetings at least quarterly and will report to the Board of Trustees. On October 17, 2012, President Erickson named its initial members. They are: the vice president for administration; the associate athletic director for compliance; the faculty athletics representative; two professors from the Faculty Senate’s Committee on Intercollegiate Athletics; the vice provost for academic affairs; and the vice president for student
AIA, § III.B.1. AIA, § III.B.1. 22
affairs. Damon Sims, the University’s vice president for student affairs, is acting as chairman of the Council until the athletics integrity officer has been hired. The Athletics Integrity Council held its first meeting on November 14, 2012, which representatives from our team attended. During that meeting, the Council discussed revisions to its proposed charter, which the Monitor previously had reviewed, and it more recently approved and adopted the final version of that governing document. There was a consensus at the initial meeting that the Council should meet more frequently than quarterly in order to provide more effective support for the athletics integrity officer. b. Athletics Department Compliance Staff
The Freeh Report recommended that the University increase the staffing and resources available to the athletics compliance office. Judge Freeh had made interim recommendations to that effect in early 2012.29 In July 2012, the Athletics Department hired an additional compliance professional and created a new position to work on financial aid issues, both reporting to Associate Athletic Director for Compliance Matthew Stolberg. Mr. Stolberg has been provided authority to review the possible investment in software to aid in eligibility monitoring, which can be labor intensive given Penn State’s population of over 800 student-athletes. The current staffing of five full-time employees is in line with the athletics compliance staffs at other universities in the Big Ten Conference, and Mr. Stolberg and others we interviewed believe that compliance staffing levels are now adequate. We have been told in interviews that before recent changes the athletics compliance office had been understaffed. The University continues to evaluate compliance
Freeh Report, ch. 10, Recommendation 5.5. 23
staffing levels, and it is considering the addition of another full-time staff member to assist with eligibility certifications. c. Team Monitors
The AIA requires the appointment of “Team Monitors” for each of Penn State’s 31 intercollegiate athletics teams as part of the “Integrity Program.” These Team Monitors are required to report annually any “issues or problems that have arisen during that year and any corrective action taken in response” and to certify that his or her team is in compliance with applicable rules of the NCAA and the Big Ten Conference.30 In consultation with the Monitor, the University has developed a certification form for this purpose. The University intends to name the head coach of each intercollegiate athletics team to be the “Team Monitor” for their teams. The athletic director has scheduled a meeting with all head coaches in early December to discuss their responsibilities as Team Monitors and to provide training on the new Code of Conduct for Intercollegiate Athletics. d. Organizational Structure
The Freeh Report also recommended that Penn State review and revise the organizational structure of the Athletics Department.31 Several organizational changes have been made in response to this recommendation, including: providing for the associate athletic director for compliance to report to the University’s new director of compliance in addition to the athletic director; providing for the Athletics Department’s human resources manager to report to the Office of Human Resources in addition to the athletic director; changing the direct lines of reporting for the associate athletic director – football from the head football coach to the athletic
See AIA§ III.B.3. Freeh Report, ch. 10, Recommendation 5.1. 24
director; and adding a reporting line to the University’s chief marketing officer for the associate athletic director for business relations.32 As required by the NCAA’s principles of institutional control and responsibility, the University’s president retains the ultimate responsibility and final authority over the “administration of all aspects of the athletics program.”33 This authority includes approval of the budget and extends to all members of the athletics program’s staff and those who purport to act on behalf of or promote the institution’s athletic interests.34 Football head coach Bill O’Brien has embraced the University’s efforts to meet its obligations under the Consent Decree and AIA. Several other Penn State head coaches have praised his leadership in permitting a reduction in the football team’s roster by ten players to open slots for men to compete in other sports. Coach O’Brien agreed to open the Lasch Building, which previously had been reserved for use by the football team only, to use by other varsity programs, and he made time previously set aside for the football team available for other sports in Holuba Hall. He also regularly attends head coaches’ meetings with other coaches and administrators, and he has attended several meetings of the Faculty Senate Committee on Intercollegiate Athletics, including one held during his first week on campus. 4. Athletics Department Policies
As discussed below, the University has adopted and is now implementing a new security policy governing access to athletics and recreational facilities on its campuses. The Athletics Department also has drafted and adopted the Code of Conduct for Intercollegiate Athletics that is
The Athletics Department’s financial officer already reported directly to the University’s controller in addition to the athletic director.
NCAA Division I Manual, Constitution, Article 2.1.1 (2011-2012). NCAA Division I Manual, Constitution, Article 2.1.1-.2 (2011-2012). 25
discussed above. In addition, the AIA’s “Integrity Program” also requires the University to develop or update its written policies and procedures in the Athletics Department to take into account the AIA’s requirements relating to integrity and institutional control.35 Before the Consent Decree was entered into, there was a preexisting intercollegiate athletics policy manual in place at Penn State. Relevant portions of that manual now are being revised by a working group composed of representatives from the Athletics Department, the general counsel’s office, the University’s outside counsel, the acting chair of the Athletics Integrity Council, and the faculty athletics representative. Drafts of these revised policies are being made available to the Monitor. The University expects to complete the revisions to that manual by the deadline established under the AIA, which is 120 days after the AIA’s effective date. Once adopted, the revised policies will be discussed in the Monitor’s next quarterly report.36 5. Improvements to Security for Athletics and Recreational Facilities
The Freeh Report recommended that the University “evaluate security and access protocols for athletic, recreational and camp facilities and modify as necessary to provide reasonable protections for those using the facilities.”37 This recommendation was among several that the University began to implement even before the Freeh Report had been issued. As previously noted, the Monitor has retained Guidepost Solutions LLC to assist with the evaluation of the University’s implementation of this recommendation.
AIA, § III.C.2.
The University also is in the midst of revising its existing policies to provide for national searches to fill key Athletics Department positions. This policy, as well, is expected to be completed by the end of 2012.
Freeh Report, ch. 10, Recommendation 5.2. 26
Effective as of July 11, 2012, the University adopted new Policy AD73: “Accessing Athletic and Recreational Facilities.” Under the policy, a valid University identification card is now required to gain access to Penn State “Athletics facilities” and “Recreational facilities,” and access to those facilities is limited to designated categories of individuals.38 “Athletics
facilities,” which are those designated for specific intercollegiate athletic programs, are open only to student-athletes and authorized athletics personnel and only during their normal hours of operation. “Recreational facilities,” which are those typically designated for recreational activity not affiliated with intercollegiate athletics, may be used only by those with a valid student or faculty/staff/retiree identification card, and up to “one related guest,” during normal operating hours. Any exceptions to these restrictions must be in writing and be approved by the
appropriate facilities office. Prior to the adoption of Policy AD73, University athletics facilities often were open to the public. The new, more restrictive policy has drawn criticism locally, particularly from those who were accustomed to use of Penn State facilities. However, the “open door” policy that had been followed by the University was exceptional when compared with policies followed by similar institutions.39 To support the requirements of Policy AD73, the University is in the midst of evaluating and revising protocols for access to its athletics, recreational, and camp facilities. We have observed that signage has been posted at athletics and recreational facilities stating the new policy. The Athletics Department, under the leadership of Associate Athletic Director for
Facilities and Operations Mark Bodenschatz, and in conjunction with the University Police
Some institutions have permitted non-University affiliated persons access to athletics facilities for a fee. 27
Department and others, is undertaking a strategic security assessment of these facilities as part of a plan to implement the physical changes that will be needed to enforce the policy at all facilities. Some facilities already had been scheduled for physical improvements for other reasons, and the University has stated its goal to complete upgrading all of the necessary security measures by the end of 2013. The University has undertaken to amend its lease and usage agreements with third parties who use University athletics or recreational facilities to require those entities to comply with all University policies. This includes Penn State’s baseball stadium, Medlar Field at Lubrano Park, which under pre-existing agreements is managed by an unaffiliated minor league baseball team. During the first reporting period, our team, accompanied by Guidepost personnel, toured nearly every athletics and recreational facility on the University Park campus to gain familiarity with their operation, personnel levels, physical access points, and current security technology. We also have requested and received a variety of documents and information to better understand the University’s work to enhance safety at those facilities. Criminal activity occurs on the University Park campus as it does on all major university and college campuses. The University has responded to such incidents by, among other things: increasing communication and enforcement of Policy AD73; increasing the presence of University police and security officers in high-risk areas; positioning visible surveillance cameras in affected areas; increasing the number of facilities staff on duty; posting signage alerting patrons to recent incidents and encouraging their vigilance and prompt reporting to security personnel; and conducting strategic security assessments to evaluate additional security measures and deterrence mechanisms.
Despite the efforts described here, one publicized lapse in facility security stands as a reminder that physical security requires vigilance. On the eve of Jerry Sandusky’s sentencing in October 2012, a reporter from the Washington Post entered the Lasch Building at approximately 10:30 p.m. The front door was unlocked; no guard manned the security desk. The reporter entered the building and wandered around the lobby before entering the locker room. No one encountered the reporter during his time inside the building. The reporter subsequently wrote an article about this event.40 The University promptly investigated this incident. We have been informed that access was possible because a maintenance worker had unlocked the front door approximately four hours earlier and allowed it to remain unsecured in violation of University policy. The University reminded the custodians and Lasch Building staff that Policy AD73 requires doors to the facility to remain locked, even while a student receptionist is on duty. The design and implementation of an electronic card swipe access mechanism for the Lasch Building is one of the security measures that is to be installed at this facility, which will assist in future compliance with these procedures. 6. Changes in Facilities for Academic Support for Student-Athletes
The Freeh Report recommended that the University “integrate, where feasible, academic support staff, programs and locations for student-athletes.”41 The spaces that the Morgan Center uses for academic support for student-athletes are located in four different facilities at the University Park campus, which results in the separation of the Morgan Center’s staff as well as the segregation of academic support for the football team from the support provided to other intercollegiate teams. The University began to consider the problem underlying this
Wise, Mike, “Jerry Sandusky Sentencing Brings an End to Sordid Tale, But No Closure for Victims,” Wash. Post, Oct. 9, 2012.
Freeh Report, ch. 10, Recommendation 5.4. 29
recommendation before the Freeh Report was issued. The Athletics Department is working with the Morgan Center and the University’s administration to address this issue. Potential
resolutions include the consolidation of all of the Morgan Center’s operations into a single space or the reduction of the number of spaces out of which it operates to two. B. Enhancements to Other University Policies
The Freeh Report, the Consent Decree, and the AIA recommend or require Penn State to adopt a wide range of new or enhanced policies other than those applicable to the Athletics Department. The Freeh Report included many recommendations for new or improved policies on background checks, protection of children, reporting of suspected child abuse, improved University police procedures, and other areas. Many, but not all, of these recommendations and requirements have been implemented by the end of this first quarterly reporting period. The recent enhancements to University policies were not written on a blank slate. A December 2011 Penn State report identified 34 pre-existing policies and guidelines addressing University values and expectations that were consistent with the subsequent recommendations in the Freeh Report and the requirements of the AIA. In 2010, the University created a website on “University Ethics” with the objective of preventing unethical conduct and managing conflicts before they arise. On that site, the University reaffirmed its commitment to the highest standards of professional and ethical conduct, reiterated the Penn State Principles, and provided links to the Student Code of Conduct, other existing University policies on ethics and integrity, and policies on protection from retaliation.42
See http://www.universityethics.psu.edu. 30
University Policies for the Protection of Minors
The need to provide stronger procedures for the protection of children from sexual or other abuse on University property or in connection with University-affiliated activities is central to addressing the issues raised by the Freeh Report. In the period leading up to this first quarterly report, Penn State has strengthened or adopted several policies that are directly related to protecting minors on campus. a. AD39: Minors Involved in University-Affiliated Programs
On June 7, 2012, the University published a significantly revised Policy AD39: “Minors Involved in University-Sponsored Programs or Programs Held at the University and/or Housed in University Facilities.”43 The revised policy improved and clarified procedures, requirements for training and clearances, and responsibilities and reporting requirements for individuals supervising minors on campus. Specific updates included: background check guidelines for authorized adults; mandated reporter training obligations; self-disclosure of arrests or convictions; requirements for two or more authorized adults to be present at all times during programs for minors; and guidelines related to communications and transportation of minors. Under Policy AD39, “Authorized Adults” participating in a program involving minors must attend annual, mandatory training on protecting minors from abusive treatment and on mandated reporting requirements for suspicions of child abuse.44 The activities of Authorized
http://guru.psu.edu/policies/AD39.html. The policy applies at all Penn State campuses except the Hershey Medical Center/College of Medicine, University Health Services, and legal clinics at the Dickinson School of Law, which will continue to employ their own preexisting policies.
“Authorized Adults” are “Individuals, age 18 or over, paid or unpaid, who interact with, supervise, chaperone, or otherwise oversee minors in program activities, or recreational, and/or residential facilities. This includes but is not limited to faculty, staff, volunteers, graduate and undergraduate students, interns, employees of temporary employment agencies, and 31
Adults are carefully restricted. At least two Authorized Adults must be present during all interactions and activities with minors, and an Authorized Adult may not enter a minor’s room, bathroom, or similar area without another Authorized Adult present. Authorized Adults must stay in separate accommodations. They are forbidden from engaging in corporal punishment or abusive conduct, may not pick up or drop off minors at their homes, and are forbidden from providing alcohol, drugs, or sexually explicit materials to minors. If an Authorized Adult learns of any type of assault or abuse, he or she must report it to the program’s director who must then report the incident to a child abuse hotline followed by prompt written notification to the Pennsylvania Department of Public Welfare. The program director also must notify University Police, the University’s general counsel, and the risk management department. If a dangerous or potentially dangerous situation is suspected, minors will be removed from the situation and the incident must be reported in writing to University and Pennsylvania authorities. All allegations require the removal of an adult suspected of misconduct from the program until the allegation has been investigated and resolved. Programs involving minors are required to adopt additional procedures, including procedures for notification of parents or guardians in the event of an emergency and procedures that will permit parents or guardians a method for contacting the participating child, among many other requirements. Non-University groups using University facilities for programs
involving minors are required to provide evidence of their compliance with Policy AD39 at least 30 days before their use of the facilities.
independent contractors/consultants. The Authorized Adults’ roles may include positions as counselors, chaperones, coaches, instructors, etc.” 32
HR99: Background Checks
Effective as of September 19, 2012, the University adopted new Policy HR99: “Background Check Process,” which combines and revises provisions in several previously existing Penn State policies.45 It sets forth the process for background checks of all persons who are 18 or older and are hired by the University to work in any capacity. The background checks policy applies to all academic and non-academic employees, volunteers, adjunct faculty, temporary employees, consultants, and contractors, as well as any other individuals in the University’s employ. The revised policy was modeled on an Ohio State University policy but also required retroactive background checks to be performed on many existing employees in senior leadership positions or other positions of authority. Those subject to a new background check included persons with access to master keys, facilities, or confidential information, or those having contact with children in University settings. Under Policy HR99, a standard background check for a prospective employee, volunteer, consultant, or contractor will include a criminal history check, a sex and violent offender registry check, and an educational credentials verification. Some positions also require additional
checks, including review of the individual’s motor vehicle record, a credit history check, employment verifications, license verifications, and other job-specific verifications as needed. The required background checks must be completed before the person begins work at the University. The policy also requires periodic updates of background checks, or additional background checks of current employees, when reasonable grounds arise.
http://guru.psu.edu/policies/OHR/hr99.html. The previous policies were: HR69 (Conducting Employment Investigations), HR95 (Academic Appointment Background Checking), and HR96 (Reference and Background Checking for Other-Than-Academic Appointments).
AD72: Reporting Suspected Child Abuse
Effective as of June 7, 2012, the University adopted new Policy AD72: “Reporting Suspected Child Abuse.” The policy requires all employees of the University annually to complete mandated reporter training, essentially reiterates for University personnel the mandated reporter requirements of Pennsylvania law governing child abuse, and provides that any employee who willfully fails to report a case of suspected child abuse will face “disciplinary action, up to and including, dismissal.”46 Under the policy, and under Pennsylvania law, a mandated reporter who in the course of his or her employment comes into contact with children and has reasonable cause to suspect that a child has been abused is required to report that suspicion to ChildLine, a 24-hour hotline operated by the Pennsylvania Department of Public Welfare (1-800-932-0313), and file a written report within 48 hours. If the mandated reporter suspects that a child is in immediate danger, he or she is instructed to call 911 for assistance. Policy AD72 states that “Penn State University requires all University employees who have reasonable suspicion of abuse to make a report, with an exception [for] any confidential communications made to a University-employed attorney, or confidential communication made to University-employed member of the clergy.”47
See http://guru.psu.edu/policies/AD72.html; see also 23 Pa. Cons. Stat. §§ 6311, 6313. As Policy AD72 explains, mandated reporters under Pennsylvania law include, but are not limited to, any licensed physician, osteopath, medical examiner, coroner, funeral director, dentist, optometrist, chiropractor, podiatrist, intern, registered nurse, licensed practical nurse, hospital personnel engaged in the admission, examination, care or treatment of persons, Christian Science practitioner, member of the clergy, school administrator, school teacher, school nurse, social services worker, day-care center worker or any other child-care or foster-care worker, mental health professional, peace officer or law enforcement official. Pennsylvania law provides exceptions for reporting suspicions learned in the course of confidential communications to a member of the clergy or confidential communications made to an attorney.
In preparation for summer camps, Penn State began mandated reporter training of its employees several months before the final version of Policy AD72 was adopted. By June 2012, nearly 1,900 employees had received training on their obligations as mandated reporters. As of the date of this report, more than 9,600 persons (including the members of the Board of Trustees) have received mandated reporter training. 2. AD74: Compliance with the Clery Act
On October 10, 2012, the University adopted Policy AD74: Compliance with the Clery Act.”48 The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act of 1998, Pub. L. No. 101-542, 104 Stat. 2385, requires Penn State and other “eligible institutions” to collect information on campus crime statistics and campus security policies and to prepare and distribute an annual security report about those matters. It also requires campus police departments to maintain daily logs of crimes reported to the department and to make that information, to the extent feasible, available for public inspection.49 The Freeh Report criticized the University’s compliance with the Clery Act and made several recommendations about ways that it could be improved. In Policy AD74, the University sets out the “parameters for compliance” with the Clery Act for “campus security authorities” who are affiliated with Penn State. As the policy explains, “campus security authorities” are those persons who, because of their function for the University, have an obligation to notify the University when they learn of alleged “Clery Crimes” (homicide, sex offenses, robbery, aggravated assault, burglary, motor vehicle theft, and arson). They
include not only police and security officers but also administrators, coaches, faculty advisors, and resident student advisors.
http://guru.psu.edu/policies/AD74.html. See 20 U.S.C. § 1092(f). 35
Policy AD74 requires the University to identify “campus security authorities” and ensure that those individuals understand their reporting obligations under the Clery Act. The policy also provides that Penn State will work with the University Police and Public Safety Department to create and conduct Clery Act training programs. As of the date of this report, the University has conducted Clery Act training sessions for approximately 2,600 of the estimated 3,000 “campus security authorities” who have been identified by the Office of Human Resources. The policy also states that the University shall maintain a daily crime log and a daily fire log and make them available for public inspection upon request. 3. University Police Department Policies
In addition to the requirements of Clery Act compliance in AD74, the Freeh Report recommended that the University Police Department review and revise its records management procedures and improve its policies and practices regarding categorizing and reporting criminal conduct by Penn State students, faculty, or staff.50 In addition to engaging in a review of its records management procedures, the University Police Department has worked with the Office of Human Resources to create an internal database to aggregate reports of employee misconduct. In addition, University policies AD39 (“Minors Involved in University Sponsored Programs . . .”) and HR99 (“Background Check Process”) obligate all employees and persons engaged by the University to work with minors to self-disclose criminal arrests and/or convictions within 72 hours. Planned mandatory annual training under these policies includes employee confirmation of their understanding of this obligation.
See Freeh Report, ch.10, Recommendation 6.4. 36
In October 2012, in response to the Freeh Report’s recommendation that the police department establish protocols to timely assign an incident number and offense classification to all complaints received by the department, the University Police Department drafted Policy/Procedure No. 40 on incident reporting. The draft policy requires the use of uniform documentation methods for incidents, the recording of any arrest on campus as an incident, the referral of incidents of student misconduct to the Office of Student Conduct, and the referral of incidents of employee misconduct to the Office of Human Resources. comprehensive procedural specifications for reporting these incidents. C. Clery Act Compliance It also establishes
As discussed previously, the federal Clery Act requires universities that receive federal funding to collect, compile and report specified campus crime data.51 The University’s lax compliance with its Clery Act obligations was a subject of criticism in the Freeh Report, which noted the lack of clarity as to who was responsible for compiling and reporting the information required under the Act, and the limitations on compliance that arose from delegation of Clery Act responsibilities to an officer in the University Police Department who lacked the time, resources, or training necessary to fulfill that role. The Freeh Report recommended that Clery Act compliance be assigned to a dedicated employee in the University Police Department who should be provided sufficient resources for that task. Other recommendations included: establishing a University policy for compliance with the Clery Act; identifying with specificity the persons who are “campus security authorities” under the Act; providing and tracking periodic training of “campus security authorities” about their duties under the Act; coordinating notice of incidents and threat warnings
See supra at 35-36; see also 20 U.S.C. § 1092(f). 37
among the offices of the vice president for student affairs, the general counsel, and the chief compliance officer; reviewing Clery Act reports with the chief compliance officer, the Board of Trustees, and the President’s Council; and arranging for periodic audits of Clery Act compliance.52 Penn State has completed the implementation of many of the recommendations relating to Clery Act compliance and has made good progress toward the implementation of most of the recommendations by the end of 2012. According to the Freeh Report, the Freeh group made preliminary suggestions for Clery Act reforms in January 2012, and the Freeh Report acknowledged that many of those recommendations, including the hiring of Gabriel R. Gates as a dedicated Clery Act compliance coordinator within the University Police Department, had been accomplished by the time the Freeh Report was issued.53 In connection with the search for a new Clery Act coordinator, the University developed a work plan in early 2012 that outlined a framework for effectuating compliance with the Act, including standardization and education plans. That work plan has provided a road map for implementation of the Clery Act since then. An important initial component of that work plan has been standardization of Clery Act compliance across all of the Penn State campuses, which has been a focus of Mr. Gates’s efforts this year. As previously discussed, a University policy on Clery Act compliance, Policy AD74, was developed under Mr. Gates’s supervision and was put into place in October 2012. A uniform Clery crime reporting form also was developed and introduced, as were procedures for directing
Freeh Report, ch.10, Recommendations 4.1 to 4.5.
See Freeh Report, ch. 8, § V. In addition to his Clery Act responsibilities, Mr. Gates is also designated the campus safety survey administrator and also plays a role in ensuring compliance with the Higher Education Opportunity Act, the Higher Education Act, the Family Educational Rights and Privacy Act, the Health Insurance Portability and Accountability Act and Occupational Safety and Health Administration guidelines. 38
such reports to Mr. Gates from any of Penn State’s campuses while assuring anonymity where required. Audit procedures and an annual reconciliation of arrest records and Clery Act statistics also have been introduced both at the University Park campus and at the Commonwealth campuses. The University hired Margolis Healy & Associates, LLC to assist Mr. Gates in developing the University’s mandatory annual security reports under the Clery Act and ensuring that those reports meet or exceed the Act’s reporting requirements. Training and education is the second component of the Clery Act work plan. As an initial step, the University reviewed roughly 30,000 job descriptions to determine which individuals within the Penn State community were “campus security authorities” within the meaning of the Clery Act. “Campus security authorities” include: (1) University police and security guards; (2) individuals responsible for monitoring buildings and residence halls on campus who have security access but who are not a member of University police or security guards; (3) people or offices to whom alleged criminal offenses must be reported; and (4) officials at the University having significant responsibility for student and campus activities.54 The University determined that there are approximately 3,000 people who meet the definition and require Clery Act compliance training. Training sessions began in June, when an outside firm provided a two-day seminar for approximately 50 University leaders, who then began to conduct training programs for the other “campus security authorities” at their campuses. Penn State expects to complete the remaining training by the end of 2012. Once a “campus security authority” has received this initial classroom training, he or she will be required to complete an online recertification course once a year that the University plans to be ready to introduce by January 2013. Mr. Gates also has led
See http://guru.psu.edu/policies/AD74.html. 39
Clery Act awareness initiatives for groups including the Board of Trustees, the Council of Campus Chancellors, the Faculty Senate, the President’s Council, and other student, faculty, and administrator organizations. Mr. Gates stated that Penn State has become a leader in Clery Act compliance as a result of these efforts. He has received numerous inquiries from other institutions of higher education about Penn State’s program and how it has been implemented. D. Changes in University Governance and Administration
The Board of Trustees “is the corporate body established by the charter with complete responsibility for the government and welfare of the University and all the interests pertaining thereto including students, faculty, staff, and alumni.”55 The Board vests in the University’s president the “authority for day-to-day management and control of the University,” including the creation of policies and procedures.56 Proper delegation of the Board’s duties depends on its “continuing awareness of the operations of the University,” which the Board satisfies through its receipt and careful consideration of reports from the president or his or her designee and by requiring “information or answers on any University matter with which it is concerned.”57 The Board’s non-delegable duties include, among others, the “selection, support, compensation . . . and evaluation of the President of the University”; setting the University’s goals and approving policies and procedures necessary to attain them; reviewing and approving the University’s budget; and carrying out any other duty imposed by law, government directive, or custom.58 The Board also must keep the citizens of the Commonwealth of Pennsylvania
55 56 57 58
Standing Order IX (1)(a); see 24 Pa. Cons. Stat. Ann. § 2532. Standing Order IX(1)(b)(1); see Pa. Cons. Stat. Ann. § 2541. Standing Order IX(1)(b)(2). Standing Order IX(1)(c)(1)-(4); see Pa. Cons. Stat. Ann. § 2541. 40
informed of the “University’s performance of its role in the education of the youth of Pennsylvania”; help the president develop and maintain “effective relationships between the University and the various agencies of the Commonwealth . . . and of the United States of America which provide to the University assistance and direction”; and otherwise fulfill its role as the “final repository of all legal responsibility and authority to govern the University.”59 Over the past year, the structure and composition of the Board of Trustees has changed. Before November 2011, the Board had three committees. It now has six: the Committee on Academic Affairs and Student Life; the Committee on Audit and Risk; the Committee on Legal and Compliance; the Committee on Finance, Business and Capital Planning; the Committee on Governance and Long-Range Planning; and the Committee on Outreach, Development and Community Relations.60 In addition, the Committee on Finance, Business and Capital Planning has three subcommittees on architect/engineer selection, finance, and human resources. The Committee on Legal and Compliance has a subcommittee on legal. As necessary and appropriate, these committees and subcommittees invite relevant University administrators to participate in meetings on matters in their areas of responsibility. For example, the University’s director of internal audit and the University’s risk officer regularly attend and make presentations to the Committee on Audit and Risk while the University’s general counsel regularly meets with the Committee on Legal and Compliance. These
administrators also confer with the relevant committees outside of regularly scheduled meetings. The Board’s membership has changed in the past year due to both the regular cycle of elections and appointments and fallout from the Sandusky scandal. The charter provides for the
See Standing Order IX(1)(d), (e); 24 Pa. Cons. Stat. Ann. § 2532.
The Board expanded the number of standing committees from three to five at its March 16, 2012 meeting and later split the Committee on Audit, Risk, Legal and Compliance into two separate committees. 41
Board to consist of 32 trustees, but currently there are two vacancies:
appointee and one alumni-elected trustee. The alumni vacancy resulted from the resignation of former Chairman Steve A. Garban on July 19, 2012, who resigned following the release of the Freeh Report because his “presence on the board [had] become a distraction and an impediment to [Chairman Peetz’s] efforts to move forward and continue the Board’s most important work . . .”61 At the Board’s September 2012 meeting, Chairman Peetz announced that the alumni trustee vacancy would not be filled immediately but instead would be filled as part of the next regularly scheduled election for alumni trustees because of practical challenges that would be associated with a special election to fill the vacancy for only a short term. In October 2012, Governor Thomas W. Corbett, Jr. nominated Kathleen Casey to fill the open gubernatorial appointment. No action was taken by the Pennsylvania legislature on that nomination before the 2012 legislative year closed. In November 2011, the Board of Trustees removed Graham B. Spanier as president and named Rodney A. Erickson, who was executive vice president and provost, as his successor. While the Board has pledged support for President Erickson, some trustees have criticized the Board’s treatment of former football head coach Joseph V. Paterno, the findings of the Freeh Report, and the decision to accept the NCAA sanctions reflected in the Consent Decree and the AIA. Notwithstanding this criticism, however, the Board has accepted the need to implement reforms and repeatedly has affirmed the University’s commitment to doing so. The “tone at the top” of the University as privately and publicly expressed by Chairman Peetz and President Erickson, and as echoed by many trustees and administrators, indicates that its leadership is dedicated to enhancing oversight and governance practices at the University;
Letter from Steve Garban to Chairman Peetz dated July 19, 2012. 42
building a preeminent compliance and integrity program; becoming a leader in addressing the issues of sexual assault, relationship violence, and the sexual abuse of minors; and still ensuring the maintenance of Penn State’s historically high standards in academics and athletics. The Board recently adopted new procedures for public comment at Board meetings to foster more open communication and transparency. It also has formed its own response team to work with the administration response team and the Freeh Response Advisory Council in tracking the implementation of the recommendations in the Freeh Report. The members of the Board and Chairman Peetz have responded promptly to the Monitor’s requests for information and have provided the Monitor with access to meetings, personnel, and information as requested. The Freeh Report recommended providing orientation for new trustees on ethics and oversight responsibilities in the current regulatory environment.62 The general counsel’s office currently meets with new trustees to fulfill this function, and the Board’s Legal and Compliance Committee is reviewing whether any enhancements to this orientation process are necessary. The Freeh Report also recommended that the trustees and senior administrators undergo training on Clery Act obligations and reporting procedures.63 This training occurred in a session attended by a member of our team on November 16, 2012. In addition, on September 14, 2012, the Board of Trustees received training on the University’s policies on the protection of children and the reporting of suspicions of child abuse, which a representative from the Monitor’s team also attended. Additional structural reforms to the Board of Trustees may be forthcoming. On
November 15, 2012, the auditor general for the Commonwealth of Pennsylvania released a special report entitled Recommendations for Governance Reforms at the Pennsylvania State
Freeh Report ch. 10, Recommendation 3.2.1. Freeh Report, ch. 10, Recommendation 3.4.6. 43
University After the Child Sex Abuse Scandal.64 The report addressed the structure, composition, and operation of the Board of Trustees and made several recommendations for changes in addition to those made in the Freeh Report. Among the recommendations were: to provide for the governor of Pennsylvania to be a non-voting trustee; to prohibit the president of the University from serving as a member of the Board or its committees; to impose term limits for Board members; to restrict the ability of trustees to be employed by the University or of University employees to serve as trustees; to subject Penn State to Pennsylvania’s Right-toKnow Act and its Ethics Act without exemption; and to take other measures to improve the Board’s transparency and accountability to the public. The Faculty Senate’s Special Committee on University Governance is expected to issue its own recommendations in the near future. At a Board meeting on November 16, 2012, Chairman Peetz stated that it is the Board’s intention to consider these recommendations to determine what additional governance reforms may be appropriate. In reaching that conclusion, the Board intends to consult with experts in the field including the Association of Governing Boards of Universities and Colleges. E. Training and Education 1. Training Required Under the AIA
The AIA requires Penn State to implement a comprehensive and continuing training program. As part of the required “Integrity Program,” all “Covered Persons” must have annual training that addresses the NCAA Constitution and By-laws, the Big Ten Handbook, and the
Jack Wagner, Auditor General, A Special Report: Recommendations for Governance at the Pennsylvania State University After the Child Sex Abuse Scandal, November 2012. As the auditor general acknowledges, “the structure [of the Board of Trustees] is prescribed in legislation, further detailed in Penn State’s charter as revised by court decrees resulting from University requests, and is also addressed in Penn State’s bylaws and the board’s standing orders.” Id. at 1; see 24 Pa. Cons. Stat. Ann. § 2541. Some potential governance changes could be effected by Board action alone while others could require an act of the legislature. 44
principles regarding institutional control, responsibility and ethical conduct, and integrity embedded in those documents and in the Athletics Department’s own policies. The Board of Trustees (who are “Covered Persons”) also must receive training focused upon its role in the oversight of the Athletics Department. The University must certify annually that all Covered Persons have completed this training. The Freeh Report included its own recommendations for training programs, and those recommendations are incorporated into the AIA through its requirement to implement the recommendations in chapter 10, section 5 of that report. Many of the Freeh Report’s The
recommendations relate to recommendations for new or revised University policies.
recommendations include Clery Act training for Athletics Department employees and other “campus security authorities,” specialized child sexual abuse training, and “mandated reporter” training on suspicions of child abuse for those involved with University-affiliated programs involving children. There has been a substantial effort to accomplish these new training requirements in the months leading up to this initial report. However, substantial work remains, given the large population within the University of persons for whom training of one type or another has been recommended. a. Athletics Department Training
As previously mentioned, the Board of Trustees received a training session on the NCAA Constitution and By-laws at its September 2012 meeting. All “Covered Persons” must receive the AIA mandated training by no later than June 30, 2013, and annually thereafter. The
University has told us that it is preparing the training program required by the AIA and expects to complete this first annual requirement on a timely basis.
Even before the Freeh Report and the Consent Decree, Penn State’s athletics compliance office already provided mandatory, monthly training on applicable NCAA, Big Ten Conference, and Penn State rules for all intercollegiate athletics coaches in regular rules education meetings. That practice has continued during the current academic year. Members of our team attended one of these rules education meetings on October 17, 2012. The compliance staff is in the process of updating its training to highlight ethics and integrity training required by the AIA and to reflect the new enforcement structure adopted by the NCAA board of directors on October 30, 2012. One-on-one rules education meetings also are held for new coaches and staff. In
addition, the athletics compliance office offers compliance orientation and training sessions for other interested groups, including parents, agents, alumni, faculty, the President’s Council, sports camps, sports medicine staff, strength and conditioning staff, the ticket office, and others connected to intercollegiate athletics. The human resources team within the Athletics
Department provides educational programming, including panel discussions on subjects such as gender violence prevention; leadership, teamwork and ethics; overcoming disabilities; inclusion, team building, and the core values of respect, dignity and integrity; and diversity. The Freeh Report separately recommended that employees in management-track programs within the Athletics Department be included in management training programs provided to other University managers. The University is in the process of drafting an action plan to ensure that this occurs, and Dr. Joyner has encouraged Athletics Department staff to take advantage of professional development courses. While not required by the AIA, the Athletics Department offered various educational sessions in the aftermath of the Sandusky scandal to support the intercollegiate athletics staff in
its efforts to cope with its impact. On November 30, 2011, Athletics Department personnel attended a program on “Coping with Trauma.” On December 12, 2011, the intercollegiate athletics staff attended a briefing that addressed the Sandusky matter, the status of the University’s response, and their psychological effects on the department. In March 2012, the Athletic Council for Diversity and Inclusion offered an NCAA workshop on organizational culture and climate presented by the NCAA’s director of professional development. In addition, on April 3, 2012, the University hosted Navy SEAL Commander Mark McGinnis who spoke to student-athletes on “Leadership in Challenging Times” to help the students gain lessons from this crisis. b. Training on Clery Act and Mandated Reporter Responsibilities
Penn State’s implementation of new Clery Act procedures and training has been discussed above. Separately, the University has provided training for more than 9,600
individuals on their duties under Pennsylvania law and University policy as “mandated reporters” of suspicions of child abuse. Between May and July 2012, the University provided training for more than 1,900 persons involved in summer camp activities on the Clery Act and mandated reporter requirements. The Center for Workplace Learning and Performance in the University’s Office of Human Resources oversaw this effort. The University reported its
intention to require this training on an annual basis, commencing with online re-certifications in 2013. The Freeh Report recommended that mandated reporter training be conducted for all University leaders, including faculty, staff, coaches, volunteers, and interns as to the requirements of Pennsylvania law, which now have been reiterated in University Policy AD39.65
See 23 Pa. Cons. Stat. § 6311. 47
The Center for Workplace Learning and Performance has developed a mandated reporter training program that currently is being administered across all campuses. An online training module also is under development. The University has taken an expansive view of those required to participate in the training program, including not only mandated reporters but also other members of the University community. University Police Chief Tyrone Parham told us that his department has seen an increase in the number of reports of child sexual abuse since the commencement of mandated reporter and Clery Act training. He estimated that his department received approximately six new calls related to potential child sexual abuse since November 2011, most of which concerned historical incidents of child abuse revealed to counselors or staffers at the University’s summer camps. According to Chief Parham, the incidents had been or currently are under investigation in the relevant county where the alleged abuse occurred. Chief Parham explained that the camp staff had been sensitized to the issue to the point of seeking guidance on whether to report historical incidents of child abuse suffered by adults who are now in their 40s. He did not believe such conversations would have occurred before the University instituted its training regimen and before public awareness of reporting requirements and mechanisms became so widespread. c. University Police Department Training
The Freeh Report recommended the standardization of police training across all campuses as well as the provision of child sexual abuse training to investigators. The University reported that it already is in compliance with the first recommendation insofar as law enforcement standards and practices are consistent across all University campuses that have a University police presence, and this was confirmed in interviews with the University police chief and Associate Vice President for Police and Public Safety Steve Shelow. University Police Department Policy and Procedure No. 9 on Training Standards and Procedures, issued on 48
January 1, 2012, establishes minimum training standards and provides guidelines for the development of supplemental training for University police and security officers. The policy codifies the standardization of training for officers and security units. The members of the University Police Department completed the mandated reporter training session in July 2012. In addition, department members attended the child sexual abuse conference sponsored by the University in October 2012. Members of the department completed a four-day training program regarding child sexual abuse in September 2012. The department has scheduled further child sexual abuse training for the remaining University police officers in December 2012. d. Tracking and Coordination of Training Activities
The Office of Human Resources and the University’s IT Training Services group are engaged in efforts to improve the tracking of the mandatory training being conducted across all of the University’s campuses. It is essential that the University establish an auditable record to support its required certifications that mandatory training has been completed by all appropriate personnel. This effort is part of a larger plan to centralize the human resources function, another Freeh Report recommendation. 2. University Educational Initiatives
The Freeh Report recommended that the University organize a broad based effort to “vigorously examine and understand the Penn State culture,” to reinforce the University’s commitment to protecting children, and to “establish values and ethics-based decision making and adherence to the Penn State Principles . . . .”66 Penn State is a large and diverse institution, and cultural change cannot be expected in less than a semester. While the University continues
Freeh Report, ch. 10, Recommendation 1.1. 49
to discuss approaches to addressing these issues holistically, several initiatives already are underway. a. The Rock Ethics Institute
The University’s Rock Ethics Institute is partnering with the Schreyer Institute for Teaching Excellence to cultivate resources and support workshops for faculty and graduate students teaching courses relating to sexual violence and child abuse. As part of this project, the Institute has begun to compile online resource materials and to make them available on its website.67 In spring 2013, the Institute will host a workshop on sexual violence to bring together faculty who conduct research in this area and external experts in the field of sexual violence. The Institute also has posted online a guide entitled “Resources for Ethical Deliberation” to assist educators engaged in discussions about the Sandusky crisis in their classrooms and help members of the University community navigate the ethical issues raised by the crisis.68 The Rock Ethics Institute’s website also hosts a “Speak Up” blog available to members of the University community to share thoughts on how to process, respond to, and progress forward from these events.69 Finally, the Rock Ethics Institute hosts a Penn State Principles Curriculum to support members of the University community in their efforts to uphold these principles. It includes online modules and academic integrity vignettes for students and power point presentations on the Penn State Principles and the faculty handbook for faculty. b. National Conference on Child Sexual Abuse
On October 29-30, 2012, the University hosted “The Child Sexual Abuse Conference: Traumatic Impact, Prevention and Intervention.” The event drew eleven nationally-recognized
67 68 69
http://rockethics.psu.edu/leadership/stopsexualviolence/. http://rockethics.psu.edu/deliberation.shtml. http://rockblogs.psu.edu/responses‐to‐crisis‐at‐penn‐state. 50
experts, academics, survivors, and spokesmen and was sold out within three weeks of its announcement. Experts who spoke at the conference included Dr. David Finkelhor, Director of the Crimes Against Children Research Center at the University of New Hampshire, and Dr. Lucy Berliner, Director of the Harborview Center for Sexual Assault and Traumatic Stress and Clinical Associate Professor at the University of Washington School of Social Work and Department of Psychiatry and Behavioral Sciences. Keynote speakers included the former boxer Sugar Ray Leonard and Elizabeth Smart, a kidnapping and child sexual abuse survivor.70 Nearly 400 people from 27 states attended the conference. c. Other Sexual Assault and Child Abuse Awareness Activities
During summer 2012, the division of student affairs revised two learning modules for incoming undergraduates – Penn State Aware and Penn State SAFE – which first had been introduced during the preceding academic year. Penn State Aware is a learning module about rape, sexual assault, Pennsylvania sexual violence laws, University policies on sexual assault, and resources for victims. Penn State SAFE is an alcohol education module that includes discussions of sexual assault. As of September 2012, the University reported that these two modules had been completed by over 12,000 first-year students. A third learning module on “Sexual Violence Education at Penn State” is available to all students online. In addition, the Center for Women Students offered 17 sexual assault programs for over 650 participants in the past year while also providing support, advocacy, and counseling for victims of sexual assault. Its website publishes location-specific sexual assault resource
information for each University campus as well as general information about sexual assault.
The Center for Ethics and Religious Affairs held three seminars in 2012 on relevant topics that focused on, or incorporated elements relevant to, child sexual abuse. As part of its partnership with the Pennsylvania Coalition Against Rape and the National Sexual Violence Resource Center, throughout the month of April the University hosted several educational and public awareness programs to mark Sexual Abuse Awareness Month and National Child Abuse Prevention Month. The month-long theme of the activities was the promotion of positive expressions of sexuality and healthy behaviors. As was reported nationally, Penn State Professor Jonathan Marks incorporated discussion of the Sandusky scandal in his entry-level philosophy course on ethical leadership. In the course, Professor Marks sought to apply class discussions on assigned readings and theories to the Sandusky scandal at least once a week to engage students in tangible applications of ethical issues.71 The University’s library system has amassed an interdisciplinary research guide dedicated to child abuse and maltreatment. Certain portions of the research guide are available to University students while other portions are publicly accessible. The purpose of the guide is to help researchers and the general public learn more about the subject and to increase the knowledge base on child abuse and maltreatment. The guide provides several common
definitions of child abuse, links to general databases, links to education and behavioral sciences databases, links to legal databases, links to medical and health databases, and links to social sciences databases, all containing scholarship pertinent to the study of child abuse. The site has received significant and steady traffic.
Rohan, Tim, “Penn State Students Explore Sandusky Abuse Scandal,” The New York Times, October 25, 2012. 52
The interdisciplinary (and non-partisan) Center for Democratic Deliberation continues to offer resources to the University community in the wake of the Sandusky crisis to help community members reflect on the issues it raised. One resource available on its website, called “Deliberation in the Midst of Crisis,” specifically was created to foster discussion of the Sandusky child sex abuse scandal, help people think critically about its central issues, and promote community deliberation.72 Several events also have been organized on campuses other than University Park. On January 24, 2012, the Center on Children and the Law at the University’s Dickinson School of Law sponsored a panel discussion for faculty, students, and staff called “Responding to Child Sexual Abuse: Legal, Medical, and Ethical Perspectives.” Penn State Harrisburg hosted a panel discussion on January 31, 2012 called “Understanding and Reporting Child Abuse.” On
March 28, 2012, Penn State Berks hosted a presentation by the Berks County District Attorney’s Office and representatives from the Children’s Alliance Center covering investigations of child abuse, mandatory reporting processes, investigative techniques and resources available. On April 3, 2012, the International Male Survivor Organization screened the film “Boys & Men Healing” at Penn State Altoona followed by a panel discussion. In early 2012, the University formed the Presidential Task Force on Child Maltreatment as part of the launch of its new Center for the Protection of Children. This interdisciplinary task force is tasked with inventorying current resources and expertise on the prevention and treatment of child maltreatment at the University. The task force is led by co-chairs Susan McHale, Professor of Human Development and Director of the Children, Youth and Family Consortium and Social Science Research Institute, and A. Craig Hillemeier, Vice Dean for Clinical Affairs
and Chair of the Department of Pediatrics and Medical Director at Hershey Children’s Hospital. The task force developed and presented a white paper accepted by the administration in September 2012 and entitled “An Initiative to Advance Research, Practice, Education and Outreach on Child Maltreatment: The Penn State Network on Child Maltreatment.” The
initiative will involve hiring up to 12 new faculty members over three years across numerous disciplines and colleges who will work together under the umbrella of the University’s Children, Youth and Families Consortium. F. Compliance Hotline and Other Components of Disclosure Program
Another component of the “Integrity Program” required by the AIA is for Penn State to create a “Disclosure Program,” including a hotline, for named and anonymous individuals to disclose, report, or request advice on issues related to compliance with the AIA, NCAA, or Big Ten Conference rules, and principles of institutional control, responsibility, ethical conduct, and integrity that are reflected in them.73 The disclosure program must emphasize a “non-retribution, non-retaliation policy” and include the ability to report information anonymously. The athletics integrity officer is to be responsible for administering the program and investigating reports. Penn State has had an ethics and compliance hotline in place since 2005, which is administered by the University’s internal audit department and managed by an outside firm. Originally aimed at reporting instances of alleged financial misconduct, it later was expanded to cover reports of fraud, theft of University assets, problems concerning financial controls, conflicts of interest, Athletics Department compliance, human resources concerns, research compliance, and many other matters. The hotline can be accessed either by telephone at (800)
AIA, § III.E. 54
560-1637 or via the internet.74 It permits reports to be made anonymously. In 2009, 2010 and 2011 the hotline received 34, 34 and 40 calls, respectively. During 2012 (through September), the hotline received 110 reports, representing a significant increase in activity that the director of internal audit attributed to increased publicity of the hotline on the University campuses. On November 28, 2011, the University introduced a new hotline for victims of assault. The hotline is run by a third-party vendor that provides this service to a number of other institutions of higher learning across the country. The Center for Counseling and Psychological Services confidentially coordinates and oversees the hotline. The hotline’s operators are
available 24-hours-a-day, seven-days-a-week to members of all University campuses. As the director of the Center for Women Students stated, “[p]rovision of this service is an additional part of Penn State’s commitment to make sure victims and observers of victimization have access to a full spectrum of campus and community resources.”75 The Freeh Report recommended that the University more regularly and prominently publicize the hotline. The report acknowledged that the University already had taken steps to satisfy this recommendation.76 During 2012, the University has undertaken a concerted effort to publicize its hotlines and reporting mechanisms, both old and new, to the community at large. It has done so through posters, postcards, email, University newswire reports, and promotion at sporting events. The University reported that it is in the process of assessing whether social media is an appropriate venue for advertising the hotlines and, if so, what specific form of social media is optimal.
http://www.mycompliancereport.com/brand/psu. resource hotline,” November 28, 2011,
“University launches victim http://live.psu.edu/printstory/56545.
See Freeh Report at 128. 55
Instead of introducing a new hotline dedicated exclusively to fulfilling the disclosure program requirements of the AIA, Penn State intends to enhance the functionality of the existing compliance and ethics hotline to satisfy those requirements. The AIA permits this if the other requirements of the disclosure program are met.77 The University intends to add prompts that will direct callers with athletics compliance concerns to appropriate operators, who will elicit information to be transmitted to the athletics integrity officer or another appropriate person at Penn State charged with investigating the disclosure or otherwise responding to the inquiry. Other AIA requirements for the hotline, including a non-retaliation policy and the ability to make anonymous reports, already are built into the structure of the existing hotline. In addition, beginning with the University’s 2012 summer session, President Erickson began a new practice of sending an email reminder to all students, faculty, and staff “to be mindful of their individual responsibility to help keep the University a safe and ethical institution” and describing the various methods for reporting suspected illegal or unethical conduct. V. CONCLUSIONS AND NEXT STEPS Penn State is off to a very good start in its efforts to implement the reforms mandated by the AIA. It is conducting far more than a “check the box” exercise; those responsible for the individual reforms appear to be making a good faith effort to implement them in a manner that will improve the functioning of the University. Much remains to be done, however. This report notes the many important reforms that must be completed by 120 days after the effective date of the AIA, which will fall within our next quarterly reporting period. These include: appointment of the athletics integrity officer;
See AIA, § III.E. 56
installation of that officer as the chair of the newly established Athletics Integrity Council; implementation of the newly adopted Code of Conduct for Intercollegiate Athletics; finalization of the Athletics Department revisions to its manual to incorporate policies and procedures related to the required Integrity Program; and finalization of implementation of the required Disclosure Program. In addition, before our next report is due, the AIA requires the University to:
distribute the Code of Conduct for Intercollegiate Athletics to all Covered Persons; obtain certifications from all such persons that they have read and will abide by the Code; and distribute all integrity policies and procedures to all Covered Persons. Our next quarterly report is due at the end of February 2013. At that time, we will assess compliance with all of the milestones due since this report. In accordance with our mandate, we will continue to reach out to Penn State’s various constituencies to better understand the challenges and opportunities for improvement that the institution faces and to use the knowledge gained from this outreach effort to continue to make recommendations to the University regarding compliance with the AIA’s requirements.
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