OREGON S 32ND ANNUAL SCHOOL LAW CONFERENCE

Transcription

1 OREGON S 32ND ANNUAL SCHOOL LAW CONFERENCE Eugene, Oregon December 7, 2012 PENN STATE: LESSONS FOR OREGON SCHOOL DISTRICTS Kathryn Wells Murdock Attorney at Law K a t h r y n We l l s M u r d o c k k. w. m u r d o c k 6 g m a i l. c o m

2 Penn State: Lessons for Oregon School Districts Introduction State College, the home of Pennsylvania State University, is 2,671 miles from Eugene, Oregon. The arrest of Penn State former coach Gerald Sandusky for sex abuse of boys last November dealt with higher education, not K-12 districts. The 45 counts of child sex abuse occurred in Pennsylvania. Penn State President, Graham Spanier, who was ousted for his alleged inaction within a week after Sandusky s arrest, had a connection to Oregon only by serving at one time as the Provost and Vice-President for Academic Affairs at Oregon State University. The Penn State personnel directly involved are now out of office, jailed, fired, or dead. So why give attention in Oregon to this far away scandal? It s all about The Report Regarding Pennsylvania State University, hereafter referred to as The Report. The Report is a prototype that could be used for any education institution. It may have focused on Penn State, but its eight categories of recommendations comprise a blueprint for prevention of child abuse, including responsibilities for oversight by the Board, development of policies and procedures, and training for every person in every program. Additionally, it includes recommendations for rebuilding the public trust. The Penn State s Board of Trustees, within a month of Sandusky s arrest, retained Louis Freeh, a former Director of the FBI, to conduct an independent investigation. His team of investigators included lawyers (one of whom was a former Navy SEAL), former prosecutors, Pennsylvania and Delaware police officers, and FBI agents. The team had many decades of experience investigating sensitive issues. They reviewed over 3.5 million s and other documents, and conducted 430 interviews. They had one mandate: to investigate the matter fully, fairly, and completely, without fear or favor. The 2

3 resultant report was reviewed by no one, including the Board, before its release on July 12th. An investigation of such magnitude by investigators of such expertise clearly is not within the reach or budget of a school district, but The Report is public information. It is difficult and disturbing reading. While the wrongs done to the child victims cannot be remedied, at least we can use The Report s recommendations for the protection of Oregon students. See full text at thefreehreportonpsu.com. Beginning November 5, 2011, football fans watched and listened in disbelief as the winningest collegiate football program in America began to implode. When the former Penn State assistant football coach was arrested on 45 counts of child sex abuse which occurred primarily in the Penn State football facilities, that was only the beginning. Within the week, the President of the university stepped down under pressure, and Gary Schultz, the Vice-President for Finance and Business, who also oversaw the campus police, and Tim Curley, the Athletic Director were fired, all for alleged failure to report child abuse. Most shocking, Jo Pa, Joseph Paterno, head football coach, with a coaching career of 61 years at Penn State, was also fired for alleged failure to report. On July 22nd, the bronze statue of Coach Paterno was removed from its place in front of the football stadium. On July 23rd, the NCAA, based primarily on the findings in The Report, issued unprecedented sanctions against the Penn State Nittany Lions. The sanctions included a 60 million dollar fine which must go to external programs preventing child abuse or assisting victims and may not be used to fund such programs at the university according to ESPN s statement of the NCAA sanctions. The public at large listened in disbelief as the facts emerged. How could such high profile and open grooming behavior have continued for over a decade without question, detection or reporting to law enforcement. If it happened at Penn State, could it happen in your district? That question, along with how can it be prevented, and how to rebuild if it would occur, are the topics for discussion in this paper. 3

4 I. Could It Happen in My District? ~ or Beware of Sacred Cows and Knuckleheads Do you have an employee or volunteer who is so committed, so loved by students and parents, that he or she is above reproach and it is unthinkable he or she would harm any child? Do you have any person you don t make follow all those procedural rules because the rules really seem to be written for others? Do you have persons or a program so valuable to the district, so activity-filled that it feels embarrassing to ask them to take the time to complete the usual compliance training and and paperwork? Do you have anyone who does goofy things, even unacceptable antics on occasion, but who has such a good heart and good intentions (and often has been around forever and comes from a good family ) that you excuse those eccentricities? Do you have an outstanding event or program in your district-an art, athletic, academic or music program that essentially defines your district? Maybe a championship team or a magnet school that has attracted media accolades? If you answer yes to any of the above questions, your district may be at risk. 4

5 Malcolm Gladwell in The New Yorker, September 24, 2012, says, The pedophile is often imagined as the disheveled old man baldly offering candy to preschoolers. But the truth is that most of the time we have no clue what we are dealing with. (Gladwell, page 87). Referring to Psychologist Carla Van Dam s book, Identifying Child Molesters, Gladwell reminds us, that a pedophile is someone adept, not just on preying on children, but at confusing, deceiving, and charming the adults responsible for those children. (Gladwell, page 85). No one is more charming than the modest hero. In 2002, U.S. Senator Rick Santortum honored Gerald Sandusky for his work with foster children with an Angels in Adoption award. President G.W. Bush had praised Sandusky s Second Mile as one of the President s Thousand Points of Light in Jack McCallum wrote in Sports Illustrated in 1999, If Sandusky did not have such a human side, there would be a temptation around Happy Valley [the sobriquet for State College] to canonize him. (Gladwell, p.87) Just a week later Bill Lyon of the Philadelphia Inquirer wrote, In more than one motel hallway, whenever you encountered him and offered what sounded even like the vaguest sort of compliment, he would blush and an engaging, lopsided grin of modesty would wrap its way around his face. (Gladwell, p.87) Jerry Sandusky was a clown, a cut-up, a hugger and a jokester, but nothing defined him so much as surrounding himself with boys. He and his wife adopted six, and were foster parents to countless more. In his 2000 autobiography, Touched, Sandusky talks extensively about his antics, such as water balloon fights in college and running afoul of a lifeguard for horseplay with his children in a public pool. According to Joe Posnanski, author of the 2012 biography, Paterno, Joe Paterno did not like Sandusky. Paterno found Sandusky s goofiness exasperating, and the trail of kids following him, irritating. Paterno and others at Penn State thought of Sandusky as an emotional, impulsive knucklehead, relates Posnanski. Hugging kids, showering with kids, and taking individual kids to bowl games was not the norm, but coming from an emotional knucklehead, who was nationally recognized for his good deeds with disadvantaged kids, no one suspected the dark motives behind Sandusky s horseplay. 5

6 Besides the persona of an apparently harmless knucklehead with a heroic heart for underprivileged young boys, Sandusky had assured his long term access to victims through a protective and opportunistic environment. He was in the football world where excessive physicality is acceptable; he had a supervisor so intent on football he functioned with no oversight or supervision; he had sophisticated well-meaning professionals locating and referring thousands of potential victims to him through the Second Mile charity; and his retirement package allowed him lifelong unrestricted access to the Penn State recreational facilities, the ultimate candy to entice his victims. II. How Can It Be Prevented? ~or It s All About the Culture Although Gerald Sandusky has been sentenced to years and the leaders at Penn State who failed to report the abuse are all now gone, the focus should not be on individual failings, but on the institutional failings that allowed such travesties to occur. These institutional failings, investigated and illuminated in The Report, are the touchstones every school district can reflect upon in terms of their own district for prevention of child abuse. It is not surprising that in The Report s eight categories of findings and recommendations, the first category deals with the culture. Pennsylvania State University, established in 1855, has a long tradition of pride in its students and faculty, who in turn hold the university in high esteem. It has enjoyed a laudable reputation for its culture of educational excellence, exemplified by the football program tying with Stanford University in 2011 for the high graduation rate of its football players. The notion that football can elevate a university has been part of the culture since Joe Paterno s Grand Experiment, emphasizing success in the classroom as 6

7 well as on the football field. This began when he became head coach of the Nittany Lions in Beaver Stadium at Penn State was expanded six times in Paterno s years as head coach, growing from a capacity of 46, 284 in 1966 to 106,572 in (The Report, page 129) There is a downside to such unprecedented success, as The Report notes. There is an over-emphasis on The Penn State Way as an approach to decision making, a resistance to outside perspectives, and an excessive focus on athletics that can, if not recognized, negatively impact the University s reputation as a progressive institution. This excessive focus on athletics unfortunately played out in the 2001 incident reported by graduate assistant and former quarterback, Mike McQuery, of a incident where he saw Sandusky showering with a young boy and heard sexual sounds. McQuery went to Paterno. When asked by his biographer, Posnanski, if he had considered going to the police, Paterno, replied, To be honest with you, I didn t...i tried to look through the Penn State Guidelines to see what I was supposed to do. It said I was supposed to call Tim [Curley, Athletic Director]. So I called him. (Gladwell, p.90) The decision-making process surrounding this incident, as documented in s, shows The Penn State Way was heavily influenced by the football program. Tim Curley, Athletic Director, in an of 2/27/01 to Gary Shultz, Vice-President for Finance and Business, and President Graham Spanier, wrote, After giving it more thought and talking it over with Joe [Paterno} yesterday,--i am uncomfortable with what we agreed were the next steps. I am having trouble with going to everyone but the person involved. I think I would be more comfortable meeting with the person and tell him about the information we received. I would plan to tell him we are aware of the first situation [a 1998 allegation by a parent which was archived with the University Police, PSU, (Exhibit 5E, The Report)]. I would indicate we feel there is a problem and we want to assist the individual to get professional help. Also, we feel a responsibility at some point soon to inform his organization and maybe the other one about the situation. If he is cooperative we would work with him to handle informing the organization. If, not, we do not have a choice and will inform the two groups. Additionally, I 7

8 will let him know that his guests are not permitted to use our facilities. What do you think about this approach? (Exhibit 5H, The Report) It is significant that only one day before, Schultz, in an , had laid out a clear path of next steps to the Athletic Director, saying, Tim, I m assuming that you ve got the ball to 1) talk with the subject ASAP regarding the future appropriate use of the University facility, 2) contacting the chair of the Charitable Organization; and 3) contacting the Dept of Welfare. (Exhibit 5G, The Report) Both the President of the University and the Vice-President for Finance and Business capitulated to the Athletic Director, supporting a humane approach. Wrote Schultz, Tim and Graham, this is a more humane and upfront way to handle this. Said Spanier, This approach is acceptable to me; it requires you to go a step further and means that your conversation will be all the more difficult, but I admire your willingness to do that and I am supportive. The only downside for us is if the message isn t heard and acted upon, and we then become vulnerable for not having reported it. But that can be assessed down the road. The approach you outline is humane and a reasonable way to proceed. (Exhibit 5H, The Report) Absent from the documented decision-making are any words of concern for the humane protection of the victims. Taking into account the available witness statements and evidence, it is more reasonable to conclude that in order to avoid the consequences of bad publicity, the most powerful leaders at Penn State University- Messers. Spanier, Schultz, Paterno and Curley- repeatedly concealed critical facts relating to Sandusky s child abuse from the authorities, the Board of Trustee, Penn State community and the public at large. (Remarks of Louis Freeh in Conjunction with Announcement of Publication of Report Regarding the Pennsylvania State University, July 12, 2012) The Report recommends the Board of Trustees take action to create a values-centered and ethics-centered community where the needs of children are placed above the needs of adults, and where anyone who sees or suspects child abuse will feel empowered to report the abuse. Throughout The Report s recommendations there is the theme that the university culture, in terms of commitment to children, must be all inclusive. No 8

9 program or person should be above or outside or excused from the priorities, policies, and practices established by the Board. Recommendations to Penn State regarding culture which are applicable to school districts are paraphrased below: A. Examine and understand your culture in order to ~reinforce commitment of all district educators to protect children ~create strong sense of accountability among the district s leadership, ensuing the inclusion of and commitment by all programs and personnel ~establish values and ethics-based decision making as the standard for all faculty and students ~promote an environment of transparency in the management of the district B. Conduct open and inclusive searches for new employees and provide professional training for employees who undertake new responsibilities C. Benchmark district practices and policies with similarly situated institutions, focusing on continuous improvement, and make administrative, operational and personnel changes when warranted D. Communicate regularly with students, faculty, parents and the community regarding significant policies and issues, especially for new policies The next category of recommendations in The Report deals with policies and procedures. The Report found that the absence and poor enforcement of existing policies relating to the protection of children and employee misconduct created an environment where leaders were able to make decisions based on avoiding the consequences of bad publicity. 9

10 The Report s recommendations regarding administration, policies and procedures applicable to school districts are paraphrased below: A. Evaluate the span of control of top leaders to ensure their duties are realistic and the person is capable of oversight and control B. Upgrade head of Human Resources to a position reporting directly to the Superintendent C. Limit disregard of Human Resources policies and rules by individual departments and programs D. Centralize Human Resource functions such as background checks, hiring, promotions, terminations and training E. Develop job descriptions for all new key leadership positions, and incumbent positions if none exist F. Update, standardize, and centralize background check procedures G. Require updated background checks for employees and volunteers every five years H. Audit periodically the effectiveness of background check procedures and the self-reporting system for employees I. Develop mechanisms to provide and track all employee training mandated by state and federal law and district policies J. Update computer use policies and regularly inform employees of the expectations and employer responsibilities with regard to electronic equipment and data K. Develop procedures to ensure the district retrieves immediately any keys and access cards from unauthorized personnel L. Advertise senior executive positions externally and engage educational search professionals to broaden the talent pools for these positions M. Implement consistent, state of the art records management and retention procedures 10

11 N. Provide sufficient support and oversight of the office working with student discipline to make certain that all students follow the same standard of conduct O. Designate an individual or committee to review all new and modified policies P. Develop guidelines for creating, standardizing, reviewing and up-dating all district policies Q. Review periodically all district policies for relevance, utility and necessity, and modify or rescind as necessary R. Establish a list of core policies that unequivocally apply to every program and every person in the district; minimally these should include child abuse re porting, sexual harassment, bullying in the workplace, and child safety The fourth category of recommendations address compliance with the multiple state and federal laws pertaining to risk and reporting misconduct. The Report attributes incomplete implementation of the federal Clery Act of 1990 as a contributing factor to the failure to report the 2001 sexual abuse incident. It is notable that the Clery Act which requires reporting of crime on or near any public or private university that receives federal funds was essentially non-existent on the Penn State campus. One campus security staff member was tasked with enacting all of the requirements of the law on top of all other duties, and he had not been fully trained. Few university officials were aware of the law and its requirements, and in 2011 the university policy was still in draft form. Given the fact that the Clery Act had its origins in Pennsylvania with a much publicized sexual assault and murder of Jeanne Clery in her dorm room at Lehigh University, it is especially disturbing that the law was not fully implemented eleven years later at another Pennsylvania university. The U.S. Department of Education is currently investigating the issue at Penn State. Federal monies can be withheld, and fines can be levied at $27,500, for each incident of non-compliance of the Clery Act. 11

12 Many of the recommendations in this category are specific to the Clery Act which is not applicable to K-12, but the recommendations that are applicable to school districts are paraphrased below: A. Update regularly and prioritize the district s list of institutional risks; determine the appropriate implementation and audit schedule of those risks and present the results to the Board periodically. B. Send a communication to all students, faculty and staff at the beginning of each school year that encourages the reporting of misconduct, describes the channels for direct or anonymous report, and explains the whistle blower policy and protection from retaliation. C. Publicize the employee misconduct hotline regularly and prominently through every school, through social media networks and the webpage of the district. The fifth category, Athletic Department; Integration and Compliance, is largely Penn State specific, as over the years the athletic department supporting the highly successful Nittany Lions was permitted to become a closed community. Within this program, there was little personnel turnover or hiring from the outside, and intense internal loyalty. Many school districts have their own version of the Nittany Lions. It may be an arts program, a championship sports team, Olympics of the Mind, We the People competition, a spelling bee, a choral program, moot court, an outstanding academic department or a magnet school, often led by a larger than life personality. It is something that defines the best in the school or district, and often is the subject of media coverage. Outstanding people and programs give students, faculty and staff pride, and garner community support. Only when they become above the law, policies and rules, do they become a risk; a fertile environment for misconduct and decisions based on aggrandizement of that program, rather that the safety of children. 12

13 The recommendations applicable to school districts are paraphrased below: A. Integrate all programs and activities into the broader culture of the district B. Establish a list of core policies that unequivocally apply to every program and every person in the district; minimally these should include child abuse reporting, sexual harassment, bullying in the workplace, and child safety C. Ensure and document that all new hires and volunteers have the basic training and understanding of district policies necessary for effectively carrying out their responsibilities and the core policies D. Evaluate regularly and revise as appropriate the security and safety protocols of all programs that function away from the school campus or classroom E. Benchmark with other districts to determine appropriate standards of training and safety practices F. Conduct national searches for candidates in key positions Although most school districts do not have separate police departments, they do have school resource officers who are members of local law enforcement agencies and security monitors. At Penn State, the police department was one more responsibility of the Vice-President for Business and Finance. The University Police Department promptly responded to the 1998 complaint about Sandusky s conduct but the sensitivity of the investigation and the need to report on its progress to a senior administrator could have compromised the extent of its inquiry. (The Report, page 140) The importance of independence and external training are as relevant to school districts as to the university. The recommendations applicable to school districts are paraphrased below: A. Provide the director of safety operations with sufficient resources and administrative authority to operate effectively and independently B. Assure that the administrator with oversight over district security has the training and time to effectively exercise oversight C. Review records management procedures and controls and revise where needed 13

14 D. Establish protocols to assign a timely incident and offense classification to all complaints of abuse or violence received; include final disposition E. Establish policy to ensure that all police reports alleging criminal conduct by district faculty or staff are reported to the office of human resources F. Arrange for an external examination of the security personnel organization and training G. Implement standards and training consistent with established practices of law enforcement personnel in dealing with similar issues The seventh category of recommendations deals specifically with improving safety for the population that is not the norm on the university campus, children. The Report discusses the uneven and uncoordinated application of policies regarding non-student minors at Penn State, which as a result, Sandusky was allowed to conduct football camps at University Park and three Commonwealth campuses without any direct oversight by University officials. The University s background check process also was arbitrarily applied and on-site supervision at camps was sometimes provided by staff members who had not been fully vetted. (the Report, page 142) Because children are the primary population in school districts, district policies are generally focused on children; however, a number of the recommendations of The Report with their insight into the importance of safety have value for districts. Additionally, like universities, districts often permit outside groups to use their facilities for summer camps or other programs during non-class time. The recommendations applicable to school districts are paraphrased below: A. Increase the physical security in all areas frequented by children and used in non-school time camps or programs; more is aways better B. Require abuse awareness and reporting responsibilities training to all district leaders, administrators, faculty, staff and volunteers 14

15 C. Develop and maintain an inventory of all non-school sponsored activities conducted on district premises D. Provide information to parents regarding the district s safety protocols and reporting mechanisms for suspicious or improper behavior III. How Can We Recover? ~ or How to Show That Monsters Can No Longer Roam Free Malcolm Gladwell, in a sweeping generalization says, When monsters roam free, we assume that people in positions of authority ought to be able to catch them if only they did their jobs. (Gladwell, page 84) The charming and deceptive nature of a predatory child molester, a priority to protect a powerful program, and a lack of supervision and oversight by those in charge, all combined at Penn State to create an environment where monsters could roam free. In Section II., How Can It Be Prevented, the elements of culture, policies and enforcement are discussed in the recommendations. These elements are the result of innumerable, but consistent, day to day, often unnoticed acts and attitudes that together create trust in the school environment. While trust is one of the strongest bonds that can exist between people or organizations and their communities, it is also the most fragile. It may also be one of the most difficult to rebuild. This section addresses the recovery and rebuilding. Although not specifically mentioned in The Report, the first step to rebuilding trust is acknowledgment and apology for the wrongdoing, combined with a commitment to correction. In an organization, this often falls not to the wrongdoer, but to the person with oversight responsibility. The new President, Rodney A. Erickson, appointed to replace Graham Spanier, said on July 22, 2012, as part of his response to the NCAA sanctions imposed against Penn State, The tragic child sex abuse that occurred at our university altered the lives of children. Today as everyday, our thought and prayers continue to be with the victims of Mr. Sandusky and all other victims of child abuse. That 15

16 is a compassionate, child-centered statement, but better yet, is the statement by Kenneth C. Frazier, a Board member, who also is the President and CEO of Merck and Co. On July 12, after The Report was released, he said simply, Our hearts remain heavy, and we are deeply ashamed. An event like this can never happen again in the Penn State University community. The next step in rebuilding trust is to implement as many of the recommendations as are applicable, but even if every one was fully implemented, that would not be sufficient. As any institution moves forward after public disgrace, the leaders must monitor the changes and communicate that to the public. This is not self-promotion; this is transparency. If changes were promised, the progress toward fulfilling those promises must be reported. The recommendations applicable to school districts are paraphrased below:! A. Designate an internal monitor to oversee the implementation of recommendations initiated by the Board or administration B. Chair a panel of individuals responsible for developing and implementing the recommendations C. Select a practical and diverse number of people from the district and community to provide insight and recommendations to the monitor D. Report accomplishments regularly to the Board and to the community E. Conduct a review of the district s progress after one year and provide findings to the district and to the public F. In reports to the public, continue to reinforce the transparency of the district operations and the district s continued openness to receive any reports of misconduct 16

17 In a July press conference, reported by the Philadelphia Inquirer, Board Chairman Karen Peetz, Board member Kenneth Frazier, and President Rodney Erickson faced 70 reporters. The first question was about when the Board was going to resign. Chairman Peetz was clear that the Board was not going to resign. We must restore trust in our community. We don t expect it to happen overnight. We will earn it back as we move forward and develop a culture of transparency and accountability. Said Frazier, We are accountable for what happened here. The President added words of hope, Penn State s best days are ahead of us. That s what rebuilding trust is all about. 17

18 Bibliography Antonia, KJ Dell, Examining Whether Times Have Changed When Sex Abuse Charges!! Surface, NY Times, October 19, 2012 Erickson, Rodney, Penn State s Response, The Opinion Pages, NY Times, October 12,!! 2012 Freeh, Louis, The Report Regarding Pennsylvania State University,!!!! thefreehreportonpsu.com, July 12, 2012 Freeh, Louis, Full Text of Louis Freeh s Statement on Penn State, ABC Action News,!! 6abc.com, July 12, 2012! Gammage, Jeff, Penn State Trustees: We Take Responsibility, But We Won t Step!!! Down, Philadelphia Inquirer, philly.com, July 13, 2012 Garner Dwight, The Flawed Hero of Penn State Sports, A Review of Paterno by Joe!! Posnanski, NY Times-Books, August 20, 2012 Gladwell, Malcolm, A Critic at Large: In Plain View, The New Yorker, September 24,!! 2012 Goldsmith, Phil, Tough Lessons Learned From the Fall of Joe Paterno, Juvenile Justice! Information Exchange, jjie.org, November 10, 2011 Peetz, Karen, Remarks of Board Chair During September 14 Regular Meeting, Penn!! State Live-The University s Official News Source, live.psu.edu! Penn State Sanctions: $60M, bowl ban, ESPN.com, July 24, 2012 Posnanski, Joe, Paterno, Simon and Schuster, 2012 Thamel, Pete, Shaken by Scandal, A Changed Penn State Is Moving On, NY Times,!! June 22, 2012 Wojciechowski, Gene, Not death but something like it, ESPN.com, July 23,