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.