The Post-Accountability Era
I’m pretty dubious about David Post’s argument that the NCAA levied against Penn State is unfair to Pennsylvania taxpayers, for the reasons I discussed earlier in the week: it proves to much. Presumably, this would also apply to a civil suit — when state institutions make actionable mistakes, the taxpayers for better of worse should be on the hook. (Of course, Post may well believe in the monarchical doctrines regrettably revived by the Rehnquist Court holding that states should in fact be immune from liability when they violate the rights of their citizens. These doctrines are, however, deeply wrong, as well as not actually being in the Constitution.)
Anyway, that’s the least of it. From there, we move on to the worst “Leave Joe Paterno Alloooonnnne!” argument ever. In addition to avoiding the implications of the fact that Curley, Schultz and Spanier reversed a decision to properly report Sandusky after speaking with Paterno, there’s this:
It’s worth thinking about. Would we really want Paterno to have anything to do with the investigations? He should’ve called the DA? “This is Joe Paterno – I’d like an update on the Sandusky investigation”?
I’m sure that Paterno had many motives for sticking his hands in his ears on this one – some of them being dis-honorable. Sandusky’s a pal – I don’t want hear this horrible stuff about him. It’s just horsing around, I’m sure – just like the priests. Etc.
But what was going on in Paterno’s mind is unknowable – the question is: what did he do, or not do, and was that decision morally defensible or not. I’m not so sure he didn’t do (not do) just want he should have (not) done. There were two investigations (conducted by people who should have uncovered Sandusky’s crimes, but didn’t) – one of which (2002) Paterno himself initiated by contacting University officials. It is not unreasonable or morally indefensible to say: the football coach’s role, at that point, is over. Perhaps he even did the right thing.
First of all, after McQueary’s eyewitness account, what investigation? Of course, it should have been the state, not Paterno, who conducted the investigation into Sandusky. It would be bad for Paterno to interfere with an ongoing state investigation. But there was no state investigation, because the allegations were covered up, at a minimum with Paterno’s assent and much more likely based on his active intervention. Paterno’s responsibility was to ensure that an appropriate investigation took place. It didn’t happen, he knew it wasn’t happening, and he did nothing about it. What his precise motives for this failure are are completely irrelevant.
And second, Paterno can’t be held accountable for his disastrous inaction because…he was too powerful? Are you shitting me? I know this increasingly represents what the rule of law now means de facto in this nation of ours, but one rarely hears it defended this explicitly. At least Bill James’s argument that Paterno was a weak, isolated figure is (while empirically wrong) internally consistent. This is just self-refuting.
when was the accountability era? Was I sick that day?
plus one.
right after the Post-Pun era
That was my immediate thought. I certainly cannot remember or think of any period of elite accountability in our history.
I’m thinking Oedipus. Regardless of what you think of stabbing out your own eyes with a brooch, you have to admit that he held himself accountable.
“when was the accountability era? Was I sick that day?”
14 March 1757
see Byng, John
Post’s argument is weird. The NCAA is a private organization, no? If the taxpayers don’t like the fine, they are free to leave the organization and not pay it.
I think he’s trying to trick all the liberals into taking a libertarian position.
Is this actually true? I don’t know the terms of Penn States affiliation with the NCAA, but mightn’t they be contractually obligated to submit to its judgment?
i had the same curiosity. i mean, suppose (not that this would happen), penn state said “we’d rather just discontinue our football program?”
I don’t know that they could wall off the football program like that. I imagine if you leave the NCAA in one sport, you’re leaving it in all sports.
hogan, i wondered that too, and it certainly sounds like it makes sense.
but even so, suppose penn state said that, said “over emphasis on athletics resulted in apalling criminal behavior, and therefore, we are returning to true amateur sports status, and what we’re going to have here on campus is the great intramural sports program ever, but we are leaving the ncaa.”
would they still be liable for the fine?
and if the answer is no, we’ve got the answer to post’s concern on its own merits: the citizens of pennsylvania don’t have to be on the hook. they simply have to let penn state be a college that isn’t part of the ncaa.
As a practical matter (apart from the rules or the legal aspects of the situation), if Penn State said that they would not abide with the NCAA sanctions and were willing to quit the NCAA over it, it’s hard to imagine that the NCAA would do anything other than wash their hands of the matter and say that it’s not their problem. If Penn State wants to self-expel themselves to avoid doing anything about this issue, fine. Then Penn State can’t compete with NCAA-member schools any longer and loses out on the revenue from that.
Bear in mind that $60 million is the revenue from one season of football. It’s a stiff fine, but let’s have some perspective here: there’s a reason why Penn State signed that consent decree PDQ.
so that natural follow-up question is: is there any sport other than football where penn state is accruing significant revenues from participation in the ncaa?
Not really. The basketball program has had a few one-and-done appearances in the NCAA tournament in the past couple decades, and even made the sweet sixteen in 2001, but it’s never going to draw the kind of top talent that the Kentuckys, North Carolinas, Dukes, etc. do.
Outside of football and basketball, none of the other sports really make any money.
Basketball, presumably.
But it isn’t just that. Their women’s volleyball team has won national championships. I wouldn’t like being the one to tell them they can’t do that any more because Joe Paterno was an asshole and we’re too cheap to pay for our crimes.
You don’t even have to look it up. Without question, football far and away provides the most revenue to Penn State.
But that’s the point I’m making: the taxpayers of PA will never be on the hook for those NCAA fines. The football program can absolutely afford to pay that off and much else besides. If this is on the backs of any group, it’s on the backs of the “student/athletes” who compete without adequate compensation.
This is true. NCAA member schools aren’t allowed to sanction other sports outside of the NCAA window. So it’s leave the NCAA altogether or not at all.
And the argument that they can leave doesn’t really work. If they leave the NCAA, they’d be left without anyone to play, because there’s no alternative to the cartel. Leaving the NCAA is paramount to shutting down their athletic department, so dismissing complaints about the NCAA with “well they’re free to leave” is akin to the glibertarian argument that you can always quit your job if your boss abuses you.
well, brien, what we’re talking about here is post’s point.
if we’re now talking more generically (and unrealistically), why is it essential that penn state be part of the ncaa? i realize that there are tons and tons of penn state alum and supporters who wouldn’t want to leave the ncaa, but let’s put that aside for the moment and simply address the mechanics: it’s different than quitting your job. there may or may not be a replacement job available.
quitting the ncaa means you’re quitting big-time sports. it doesn’t mean you’re quitting education, which is supposed to be your mission.
I don’t care if they do or not. I’m just pointing out that Penn State can’t just decide they don’t want to pay the NCAA’s fine because membership is voluntary. To do that they’d have to shutter ALL of their NCAA sanctioned programs, all the way down to the archery team.
Well I take that back: they could in theory just shut down the football program, if you then assume that the NCAA would drop the issue and not just transfer the punishment elsewhere.
but brien, note what i said at 1:01: fine, they withdraw from the ncaa and they develop the world’s best intramural on-campus sports program and encourage 100% student participation.
again, this isn’t, of course, ever really going to happen, but i don’t see a problem with leaving the ncaa altogether, and if they don’t want to because so many pennsylvanians wouldn’t want to see that happen, then post should stfu, because then the state is making a choice.
I can see why that might change things for you, but what about Post?
Assuming he leans libertarian, freedom of contract would be his default position. We Libbies are less likely to recognize as force that which isn’t physical coercion. Penn State still has the freedom to opt out, its just that the consequences of such a choice suck.
But hey, they voluntarily joined the NCAA. No one put a gun to their head. We need good-ol-fashioned libertarian meanness now.
They can always join (and dominate) the NAIA.
and offer scholarships — up to 24 full scholarships for football
Finally Ave Maria will get the asskicking they so richly deserve.
Reportedly, Victim 2 (the one from the 2001 “investigation”) has come forward, and is planning to sue Penn State. He’s got voicemails from Sandusky in September 2011 where Sandusky clearly tries to manipulate him into lying to the police, should they contact him.
Penn State’s going to be auctioning off each brick of the Lasch building by the time the civil verdicts are done.
I’m so sick and tired of the apologists and their intellectual dishonesty. Yeah, Paterno stuck his “hands on his ears.” That’s all. These guys are either bold-faced liars or they haven’t bothered to familiarize themselves with the evidence prior to forming an opinion and expressing it publicly.
And if the taxpayers and the football players are “innocent” like the apologists all contend, then what were the victims who were raped by Sandusky only because of the felonies committed by Paterno. et. al. in conspiring to cover-up Sandusky’s crimes? The University, like any other entity, is responsible for the actions of its employees. Its employees committed multiple felonies and permitted a serial rapist to continue to prey on young boys for over a decade. The University has now been punished for these crimes. Get over it.
Clarification; the university is responsible for the actions of its employees while operating in official capacities.
My understanding is that if all this had happened off-campus and involved no use of university equipment, locales, or resources (say if Sandusky had been real careful never to shit where he eats) then even given similar levels of knowledge on the part of the participants, Penn States liability would be a LOT more limited than it is now. Not non-existent, but much less.
Sort of like if I’m running a meth lab in my basement. If I get busted for this, the guys I work for aren’t really liable. If they KNOW I was running a meth lab and didn’t say anything, they’re exposed to personal liability to depending on the state laws involved, but the company probably isn’t liable. If they actively helped to cover it up in order to continue to retain my services, there’s more liability directed at the company, and if I were running said meth lab ON company property and they knew and did nothing, the company is definitely on the hook and will probably be listed as a co-conspirator.
Liability law is tricky. There’s a reason there are entire law firms that specialize in JUST that.
the university is responsible for the actions of its employees while operating in official capacities.
There is no dispute that the University employees who covered up for Sandusky were acting within the course and scope of their employment and that such cover-up resulted in the raping of additional kids. They were also made aware of his pedophilic propensities in 1998, but permitted him to continue to hold himself out as an honorary coach with access to football facilities. Moreover, the University employees ignored a reporting statute in 2001 while acting within the course of their employment, and liability can thus be established through such conduct as well because a duty to protect future victims was created by their failure to fulfill their statutory duty to report Sandusky to the proper authorities.
The post 1998 victims will face various obstacles in court, but whether the University can be held liable for the individuals’ misconduct under general negligence principles is not one of them.
Corporate personhood is a bitch in situations like this.
This is actually the one area in which corporate personhood is a good thing. While I think that the people responsible for this should lose their reputations and livelihoods, it would suck if the institution itself couldn’t also be held liable.
That said, there are plenty of ways to establish corporate liability without the fiction of personhood.
Oh, I agree. Just pointing out that it can also reach around and bite them on the ass.
More LGM posts need to have someone explicitly ask “are you shitting me?”
Our public discourse needs more people to publicly say that.
Well, if this defense was something the SCOTUS could rule on I’m sure Roberts would be all over “too powerful to damage”.
It seems to be the rule of law. Where before America, it was just the Rule.
Does anyone here understand this sentence? Because I don’t.
Yeah, that one pulled me up short too. I realized after a bit that I could figure it out if I wanted to. Then I decided that it wasn’t really worth time and effort trying to parse it. Truly a stupid post.
Don’t do what Donny Don’t does.
Do be do be do.
(Sorry, very old joke.)
To be is to do – Socrates
To do is to be – Sartre
Do Be Do Be Do – Sinatra
Do be a Do-bee – Miss Kathy
I understood it to mean that the author is an idiot.
my fear remains that this (and, of course, the not-to-be-forgotten lawsuits to come) will be all the punishment, and the board, which is ultimately accountable, will skate free.
i don’t know anything about how the penn state board is selected, but if i were the governor of pennsylvania, i’d be looking long and hard at my options to shitcan all of the board and start over.
I don’t think it’s clear that much blame, if any, lies with the trustees. They acted swiftly in firing those who were complicit in the cover-up; regardless of their motivations, their actions were correct.
And of course I haven’t seen any evidence at all that they knew before any of the rest of us did.
At this point I’d like to see them #retroactively fire Paterno. Not sure I’d be on board for trying to collect back wages from his estate…but not sure I WOULDN’T be, either.
Judging from the Freeh report, they were profoundly incurious about what was happening over the last year or so. Spanier gave them some sketchy reports, and no one followed up.
this is the key point, which we discussed yesterday on paul’s follow up about the law school in camden.
there is a point where profound in-curiosity crosses the line into fellow traveling with criminals. the penn state board, in my estimation, crossed that line.
craigo, the way i look at it, the question here, as scott noted in his title, is accountability.
we have a complete failure of senior management. in that context, the board is also culpable for failing to select and/or supervise appropriately the right people.
being on a board has to mean something more than showing up for a few meetings a year, rubberstamping what the president tells you, and collecting your check.
so the hell with every single member of that board, even the good ones i’m sure existed.
Don’t tell Romney this, or you’ll just be criticizing people for being successful!
I agree completely with your point here. Every company is run like a blind trust. CEO’s company lost a ton of money? Not his fault, someone further down the chain made the decision!
If we inferred from their liability what CEOs and Trustees actually did, then we’d come to the conclusion they weren’t even involved in administrating.
The governor of PA is a TeaHadi. Very little chance of that.
Not to mention the governor actually sits on the board of trustees — is he to shitcan himself?
He was also the AG during the time many of the crimes were committed, and has received criticism for his own role in that case. He basically wants this thing to go away quietly, and inserting himself into the story further by pursuing action against the BoT isn’t part of that plan.
Five are ex officio (the governor, some cabinet members and the president of the university), siz are appointed by the governor, nine are elected by the alumni association, six are elected by county agricultural societies, and six “representing business and industry endeavors” are selected by the trustees.
thanks for doing the homework, hogan! i do have to love the reminder of penn state’s roots as an agricultural school with the board representation for county agricultural societies!
so, if i were the guv? i’d fire my 6 appointees and replace them, i’d call on the board to fire 6 representing business interests and replace them, and i’d hope by setting this example, other board members would be replaced as well.
i do realize that i’m dreaming.
howard, to do that and not be called a huge hypocrite, the governor should also fire himself…
since this is an entirely hypothetical discussion (since by and large, if you’re a board member of a major institution, you’re a 1-percenter almost by definition and you don’t have to play by the rules the rest of us do), fine: let him say “i failed too and so i’m appointing the lieutenant governor in my stead” or something along those lines.
the refusal to draw a bright line is what created this apalling criminal environment in the first place; if the goal is to clean up the mess (as opposed to making the mess go away, which is the real goal of course, as tonycpsu said at 1:14), then fear of being called a hypocrite shouldn’t be the reason not to do it.
The problem, however, is that this all goes back to decisions made as early as 1998. The make up of the board has changed quite a bit over the past 14 years or so.
again, bearing in mind that this is entirely hypothetical, that’s life.
i felt the same way about the bank bailouts, for example: i don’t care whether any individual bank board member was a good or bad performer, asked the right questions or didn’t: the price of bailout funds should have been a new board.
btw, i don’t know enough to know whether penn state board members are paid (i assume they are); i feel slightly less harsh about it if they were volunteers. but i feel no sympathy at all if they were paid.
I think they are not paid- for all of the state institutions I am aware of, Regents/Visitors/Trustees are not paid.
The real issue here is the hateful, bigoted discrimination Minor-Attracted Persons like Jerry Sandusky are subjected to
It’s no different than the lynchings African-Americans were once subjected to.
Shorter JenBob: I have no understanding of the concept of consent.
That’s not true! He understands the concept of consent when it comes to taxation.
“Consent” is a bourgeoisie social construct invented by unjust power hierarchies to justify Pedophilaphobia.
Wow, JenBob just digs the hole deeper and deeper.
Shut up, hateful bigot. You’re no different than a racist in the 1950s.
You are on the wrong side of history, bigot.
Bigot. Racist. Heterosexist. Pedophilaphobe.
Jennie seems to have given this issue a good deal of thought. I wonder why?
I want freedom for ALL people to explore their sexualities. Minor-Attracted Persons will no longer sit at the back of the bus.
End the hate!
Well someone here obviously insulted the pedicabs in City Center. Better hope Atrios doesnt find out.
Though that might not be it.
I think (s)he is revealing his/her real self and attractions. Nice to see her/him admit publicly to being a moral monster.
Oh, look, it’s JenBob! Offering proof that he’s in no way bigoted against homosexuals whatsoever, nunh-unh.
He doesn’t care who they fuck, remember.
Well, he honestly doesn’t give a fuck about anyone else.
You people always return to homophobic bigotry, like dogs to their vomit.
Racist! Bigot! Homophobe! Pedophilaphobe! Bestialaphobe! HATEFUL FUCK WE WILL DESTROY YOU!!
For love and tolerance, of course.
I’m fairly sure you’ve made your point, though I very much doubt it is the one you think you’re making–if your thought processes are even sufficiently coherent that you HAVE a point in mind, which, of course, is very much open to doubt.
Who are you to deny children the right to explore their sexualities with an older man?
Bored now.
Meh. I was bored with him/her before (s)he even started this.
I was thinking more in these terms (warning: graphic violence in dim light)
Children can consent to get a sex change now, right? So why can’t they consent to sex within the context of a loving, monogamous relationship with an older man?
I think you got lost – this isn’t a libertarian blog.
BIGOT! PEDOPHILAPHOBE! Uhhh.RACIST!
We will SMASH you and you will be on the wrong side of the Inevitable March of History ™.
Hope one of the legal eagles here is aware of & looking at this:
wherein
& then Mirengoff’s (“I haven’t followed the Penn State child molestation scandal closely. My interest in sports is an interest in sports, not investigations of crimes by people involved (or formerly involved) with sports.”) anonymous friend goes on for quite a few paragraphs.
Also a part two which I haven’t looked at (to which Mirengoff attaches his name). And probably won’t.