Read more about sexual assault and rape lawsuits.

The fallout from the child molestation scandal at Penn State continues with a thousand articles saying roughly the same thing and a handful of in-depth reports, like Sports Illustrated’s This is Penn State piece, which explains a lot about what Happy Valley was like:

Outgoing, accessible (his home phone number is in the campus directory) and philanthropic, Paterno was the benevolent despot. But he was a despot nonetheless. Org chart be damned—unlike Schultz and Curley, Paterno is not classified as a senior staff member—he ran the place. “He built this university, he built this town, and everybody knows it,” says longtime State College resident Mark Brennan, a journalist who chronicles Penn State athletics. In 2004, Curley and Spanier visited Paterno at his home to suggest that, at age 77 and after a 3–9 season in ’03, he should retire. Paterno, in effect, told them to get off his lawn. They acceded. He went on to coach eight more years. There were less dramatic if more literal examples too. Cindy Way, a Penn State alum who lives in town, once took a shortcut across the grass near the on-campus skating rink. Paterno jumped out of his car and told her to take the sidewalk. “It was,” she says, “like being scolded by God.”

But this post isn’t only about Penn State, not specifically, but about a much broader problem with colleges and universities in America: a warped sense of priorities that downplays sexual misconduct.

When a billion-dollar institution (Penn State’s annual expenses exceed $1.5 billion) experiences a catastrophic administrative failure — like allowing a child molester to systematically rape numerous children over the course of decades — people start looking for answers. Eyes often turn towards the lawyers: what did general counsel know? What did general counsel recommend? It’s old hat for “tort reform” advocates to say lawyers have their hands in everything and to complain lawyers are ruining the economy or lawyers are taking all the fun out of life, so everyone presumes that lawyers are involved up and down the administrative chain at a nationally-known university like Penn State.

Or maybe not:

Very little is known about the role that Penn State’s general counsel played during the various stages of the university’s sexual abuse crisis—or is playing now. But one thing’s clear: She wasn’t anywhere near Penn State when the allegations first surfaced.

Cynthia Baldwin is the first general counsel that Penn State has ever had, hired in January 2010. (Her distinguished career has included many years on the bench, including two years on the Pennsylvania Supreme Court, and past membership on Penn State’s board of trustees.)

She may have been hired because a grand jury was investigating whether former football coach Jerry Sandusky used campus facilities to sexually assault boys he met through a charity he founded for underprivileged children. The grand jury investigation that led to Sandusky’s indictment began the year before Baldwin was hired, but she wasn’t available to confirm or deny a connection.

It’s no stretch to say that a lot of lawyers’ jaws hit the floor when they read that. No general counsel? Who was advising the administration, outside counsel? As Sports Illustrated notes, we’re not even sure who outside counsel was, and if they represented both the university and other related entities:

The grand jury report and the attorney general assert that [local] lawyer Wendell Courtney was counsel for both Penn State and The Second Mile in 1998, at which time he was told by Schultz about the ’98 allegation involving Sandusky. Courtney did not return SI’s phone calls but publicly denied he was the counsel to The Second Mile at that time. Which account is true?

It’s nuts. And it’s part of what went terribly wrong at Penn State. Business executives often grumble about their lawyers existing for the primary purpose of saying “no” to every idea, but there’s a reason for that: lawyers are trained to be risk-averse. They’re trained to hear that someone is raping children in the shower and to exclaim, My God, we have to report this or some of us will go to jail and all of us will get sued. Worrying-about-liability isn’t really the heroic response we would hope most people would have to hearing about child rape, but it certainly would have served the children of The Second Mile and Penn State a lot better than the twisted moral hierarchy that put a football program’s reputation above the safety of children, turning Happy Valley into Ursula K. Le Guin’s Omelas.

Which brings me to the broader point of my post. Coincidentally, less than a week after the Jerry Sandusky grand jury presentment was filed, Yale University, my alma mater, released its response to the outside Advisory Committee on Campus Climate tasked with investigating Yale’s handling of sexual misconduct allegations. The Committee was appointed following the Office of Civil Rights announcing an investigation into potential Title IX violations at Yale.

As is always the case with serious issues, there was some frivolity, too, with a number of people (like the Wall Street Journal) wrongly assuming the complaints were about the lewd antics of a fraternity desperate for attention, but the core issue is serious and disturbing. Rape is endemic to college campuses:

“Women ages 16 to 24 experience rape at rates four times higher than the assault rate of all women,” making the college (and high school) years the most vulnerable for women. College women are more at risk for rape and other forms of sexual assault than women the same age but not in college. It is estimated that almost 25 percent of college women have been victims of rape or attempted rape since the age of 14.

(U.S. Department of Justice, Office of Community Oriented Policing Services, Acquaintance Rape of College Student Guide.)

Some people quibble about the numbers. Would it be okay if it wasn’t one-fourth of college women were victims of rape or attempted rape but instead, say, one-sixth? It’s a huge problem, one that dwarfs the trivial nonsense that seems to occupy our collective attention. Many of our colleges and universities, from Happy Valley to New Haven, have a culture that is too dismissive of sexual misconduct. College rape victims are routinely ignored by university administrators more worried about appearances than safety and justice. Survivor advocates have been complaining for decades about the problem.

What does it take to get change? Why did Penn State finally get a general counsel and fire those who covered up sexual abuse of children? Why did Yale finally reform its sexual misconduct policies?

One word: liability. Morals? Ethics? I’m sorry to say most institutions have them only in the abstract. Money, however, talks, and it makes institutions listen.

As a plaintiffs’ lawyer I have to take a lot of crap from a lot of people about how detrimental my job is to society. Here’s the truth: getting colleges and universities to protect children and young adults is just like getting car manufacturers to protect drivers and passengers. When an executive car company thinks about making the safe decision or the cheap decision, two words come to mind: “Ford Pinto.” The cars we ride in today are immeasurably safer because of that.

Schools, however, can often absolve themselves of blame except for the absolute worst case scenario, like with the Sandusky cover-up (even then, the cases are by no means open-and-shut — if Penn State wants to drag the victims through years of difficult, draining litigation to get any compensation, they can do it). Colleges and universities can be liable for rape or sexual harassment under Title IX (that’s how the Women’s Law Project sued Penn State), but it’s a high bar for legal relief. The tort reformers and the opponents of Title IX have it exactly backwards: the problem with universities is too little legal oversight (consider Penn State), not too much. If we want to make our campuses safer, we need to make the bar for compensation lower.

We’ve tried reasoning with colleges and universities. We’ve tried imploring them. It doesn’t work. Unless they think they’re going to feel it in their endowments, they’re not going to feel anything at all. Hopefully with a new general counsel in place at Penn State, and university counsel across the country watching two administrators at Penn State go through criminal prosecution and the university itself face extensive civil liability, we’ll see some meaningful improvement.


    Thanks for highlighting the need for change at campuses across America and the role impact litigation plays in it. As you said, it is a high bar for relief under Title IX. Litigation is never easy. Another option for victims is to file with OCR, which enforces Title IX, but is a challenging process that is generally ineffective ( Do you know how many schools in violation of Title IX have lost their federal funding (OCR’s “stick”)? ZERO (

    So, between the two enforcement options, litigation is a much more promising way of reforming schools. But it certainly has its limitations. With a lawsuit, you might be able to get hefty compensation for the victims (as you say, “money talks”) and new policies and practices that will help victims. But it probably won’t be enough to change societal norms, the values that prize a football team over the safety of women (athletes are disproportionately perpetrators of campus sexual assault, But what is most shocking to me about Penn State is that football trumped the safety of even children. I’m used to seeing women treated as second-class citizens, but children? Wow. That’s a very sick culture in Happy Valley.

    Let’s hope Penn State administrators and everyone else who supports an environment of entitlement and privilege for Penn State’s athletic department learn a very important lesson here. It’s going to take a lot to change a campus culture that enabled a pedophile to rape so many children. And I thought the University of Colorado at Boulder (Simpson v. Univ. of Colo., 500 F.3d 1170 (10th Cir. 2007) and University of Arizona (J.K. v. Ariz. Bd. of Regents, 2008 U.S. Dist. LEXIS 83855) were about as bad as it got.

  • Guest

    Much of the Sandusky scandal occurred post-Catholic Church scandal. Given that, PSU should have been afraid of tort liability and acted accordingly. That they didn’t seems to cut against your theory that tort law is a great deterrent and has made society measurably safer and better. That’s not an argument against tort liability, necessarily, but I credit safer automobiles, for instance, almost wholly to improved engineering and technology advances, not lawyers.

    However, I write mostly though to complain about the SI piece you quote. The piece makes PSU’s geographic isolation, its rah-rah chants (We are… Penn State), the lack of last names on football jerseys, the more intense focus on academics for student athletes, and its delicious ice cream all seem a sinister part of the Sandusky scandal. Oh, and apparently the chow halls at Dear Old State are seething with violence, the regular site of knife fights between criminal football players. And, because JoePa yelled at some girl about where to walk on campus once, he is deemed, in the view of the SI author, to be king / god of PSU and all surrounding areas.

    As a 2002 PSU alum who lived in University Park and the surrounding areas for four years, I never once saw Paterno outside of a football game, he never yelled at me, told me where to walk, graded a single one of my papers, or lectured during any of my courses. Probably because he was a 75+ year old man concerned with running a football team, not administering an institution that expends nearly a billion and a half dollars annually and enrolls 40,000 students at the main campus alone. And, maybe JoePa likes to tell people where to walk because he is shares at least some stereotypical qualities of elderly men. I also never saw a knife fight, or any sort of fight, at a dining hall, just happy people eating lots of tasty food. But, I guess I’ve got my head in the sand, since Peachy Paterno is probably made out of people.

    Of course, none of the great things that JoePa did will forgive his moral failings in this mess, but the good things that he did are not somehow wrapped up with the bad. I would hope that sensible people could understand that.

    • Guest

      I don’t think anyone has forgotten that “JoePa” did some good things, but if all the allegations are true, then the bad far outweighs the good. There’s something about the school’s culture that allowed this scandalous, criminal behavior to go on for as long as it did. Penn State isn’t the only school like that, unfortunately, but it does seem like an extreme example.

      The threat of litigation is certainly not going to work as a deterrent in every case. Sometimes other factors–like the prestige of all mighty football on an isolated campus–outweigh the risk of liability. But at least it’s a factor universities should consider. Based on the type of work I do, I can tell you that other schools are paying attention to what has happened at Penn State and doing what they can to limit liability in ways that make students safer (sexual harassment training, new policies and procedures, audits, etc).