The media coverage of the Penn State crisis is huge. It should be huge, but not for the operational reason of the coverage, which has to do with the cultural centrality of football in America. The coverage should be huge because the Penn State crisis is representative of the West’s deep-rooted confusion over what constitutes justice and how justice conforms with a society’s institutional success indicators. The coverage also relates to the West’s misplaced trust in tax-funded bureaucracies.
This is going to become “The Paterno Affair.” It will be too tempting for historians and columnists to avoid. It is the classic definition of a tragedy: the story of a successful giant who falls because of a moral failure.
But it is more than a tragedy. It is a marker. It illustrates what has gone deeply wrong in American society and, beyond that, the West? Am I overstating the case? Let me explain.
First, with respect to civil justice, let me present the case for the two most fundamental principles of Western civil law: (1) victim’s rights; (2) crime prevention. The first identifies what must be central to civil law — the victim, not the state and surely not the criminal. The second addresses the question of the protection of future victims. The second issue is institutional: the asserted legal sovereignty of the university. This has become even more of an issue with the coming of tax funding of universities.
I begin with the second issue: the university.
THE SUPPOSEDLY SOVEREIGN UNIVERSITY
The West has developed two unique and crucial institutions: the university and the jury. The first has always been at war with the second.
The mark of the university’s claim to legal sovereignty is the black academic gown. Judges wear them. So do graduates and professors. So do clerics. From the earliest days, universities demanded equal sovereign status with church and state. It was an illegitimate claim, but it has stuck.
College professors got their money from students in the old, old days. Students would not pay the flakes. Students’ standards prevailed. They established the success indicators. The substandard professors — always in the majority — hated this. It forced them into a free market. They changed the rules. Students henceforth paid the college. Mediocre professors run the college: majority rules. “He who can, does. He who can’t, teaches. He who can’t teach, administers.” This has been true for 800 years of university life.
The university was a collection of semi-autonomous colleges. They established boundaries. They demanded autonomy from the cities in which they were located. This was the origin of the phrase, “town and gown.” The mark of this autonomy was the university police force. The professors and the students claimed near-immunity from city councils and city police. The university police’s #1 task was to keep city police off campus. Only secondarily were the university police to establish order on campus.
Add to this state funding since about 1870 in the United States, and decades earlier in Prussia, the modern university’s academic model. The state now asserts jurisdiction over the university. It pays; so, it sets the rules. This jurisdiction is separate from, and quietly in opposition to, the city’s geographical jurisdiction. The university substitutes its hierarchical system of courts for the city’s. The city’s system of justice is based on the jury. The university’s is based on administrative law: judges and police combined in one non-elected autonomous system.
The university’s system of administrative law is the origin of Western civilization’s systems of civil law. The great legal historian Harold Berman wrote in 1983 that bureaucratic administrative law is the greatest single threat to the Western legal tradition and therefore Western liberty. (Law and Revolution, Harvard University Press) I agree with him.
It was this system which led to the Paterno Affair.
GOING THE EXTRA MILE
To assess the Penn State crisis, I rely on a New Testament principle: “And whosoever shall compel thee to go a mile, go with him twain” (Matthew 5:41). This is the principle of the second mile.
The theological context of this principle of action was Jesus’ so-called sermon on the mount. He presented a series of short principles of life. There is no other list comparable to it in Western civilization.
This principle, known widely as “going the extra mile,” is a fundamental principle of success — in business, marriage, and everything else. An individual selects an area of life in which he hopes to excel. He decides to make this area a priority — maybe his top priority. He decides that he will not remain content with satisfactory work. He adopts excellence as a way of life.
No one can do this in every area of life. He does it in a select few. He must decide which areas of life deserve such supreme attention and self-discipline. He must decide what the moral standards of success are. These are not objective measures, although we hope that they are not in conflict with objective success indicators, which are sometimes numerical. He must also identify the objective success indicators. These will not be the same in each field. Making a monetary profit inside a marriage is not a wise success indicator for marriage. If it were, husbands would become pimps.
The judicial context of Jesus’ principle was the Roman Empire. The Jews were under Rome’s domination. They were under Roman law and Roman troops. In this context, Jesus recommended peace. The context was coercion: “whosoever compel thee.” In such a situation, do not fight. Go the second mile. Stand out as a cooperative person.
Why? Because this will buy you time. It may buy you future leeway. You gain a reputation as a willing subject, not a troublemaker. In a tyrannical social order, becoming a troublemaker sends a signal to those in authority: “This guy thinks he can make our lives difficult. Let’s teach him a lesson.”
There are seeming exceptions in history. Jesus is the main one. His life demonstrated the principle to the extreme. He became the victim of a corrupt legal order. He lost in the short term, but He won in the long run by submission. He did not adopt violence. In literature, there are also exceptions. Uncle Tom and Billy Budd come to mind. But the authors show that the tyrants are the real losers.
The principle of going the extra mile also works in areas of life that are not governed by coercion.
THE SECOND MILE
In a strange twist of events, “The Second Mile” is the name of the youth organization run by former Penn State assistant coach Jerry Sandusky. He is accused of using his position as a way to recruit pre-teen boys for sexual exploitation.
He will get his day in court. He is judicially innocent until proven guilty — a fundamental principle of Anglo-American civil law that keeps the state at bay. But the odds are against him, given the nature of the accusation and the fact that there are multiple accusers. If convicted, he will receive what amounts to a life sentence. That’s because in prison, this crime puts you at the bottom of the inmates’ moral hierarchy. He had better request to be put in solitary confinement. He will be at risk of the ultimate negative sanction within the hierarchy. He is quoted as telling a victim’s mother in 1998, “I wish I were dead.” He will likely get his wish sooner than he thinks.
Let us now consider Paterno. He has been fired without his “day in court” by the trustees of Penn State. They met in closed session and fired him. He received word of this about 15 minutes before the media did. The system of administrative law rules on campus. So does the principle of “find a sacrificial lamb.” But Paterno was no lamb. He was a ram, as his won-lost record indicates.
He had been head coach for 46 years. He was by far the most successful football coach in tier-one football: more wins, two national championships, and two national titles. The team’s record was 8-1 when the Board fired him.
More important, he had the reputation as being squeaky clean. There were no recruiting violations. There were no under-the-table payoffs by alumni to top players. But none of this helped him in his hour of crisis.
He made one mistake nine years ago. He did not go the extra mile.
TRAPPED BY EVENTS
When a low-level member of his coaching staff informed him of Sandusky’s sodomizing of a pre-teen boy in the showers at Penn State, Paterno reported this to the university’s athletic director. The athletic director told another bureaucrat, who had authority over the university’s police department. This fact was made clear by the Attorney General of Pennsylvania. They in turn did nothing. They may have misinformed the civil authorities. They have been suspended. They are charged with perjury. They are now paying defense attorneys. They will pay a great deal.
The civil law is clear: such suspected crimes against minors must be reported to the civil authorities by employees of every educational institution, from day cares to graduate schools. It is a crime not to report them. But Paterno ignored this. He told the athletic director instead: an agent of a rival system of authority, the university.
Sandusky was not employed by the university. The only authority that the university had over this matter was geographical: the showers. But the defense of geographical autonomy has been central to universities for 800 years. Paterno spent his adult life in this environment. When he thought “lawful authority,” he thought “Penn State University.”
A witness is judicially trapped. He must report the infraction or else be at risk of prosecution later. If an employee reports it to a superior in the institution, he will not be prosecuted. He passes legal responsibility up the chain of command. With respect to objective criteria, he will escape legal sanctions.
Let’s be clear about this. The reason why Paterno and his assistant are not legally liable in a civil court is because the civil law recognizes the university as a separate legal jurisdiction. Reporting the crime to a second-tier university bureaucrat gets them off the legal hook.
If this sounds nuts, that’s because it is. It has been nuts for 800 years.
The moral problem is this: What if those up the chain of command remain silent? The person who reported the crime now has a problem. Should he push the bureaucrats to take action? Or should he circumvent the stonewalling and go to the police?
The low-level graduate assistant did not go to the city’s police. He passed the responsibility to a university bureaucrat, at Paterno’s recommendation. According to the New York Times, “Upon learning about a suspected 2002 assault by Sandusky of a young boy in the football building’s showers, Paterno redirected the graduate assistant who witnessed the incident to the athletic director, rather than notifying the police.” He and Paterno met legal requirements. But the question is: Was he off the hook morally? I have seen nothing in the media that even raised this question. All attention is on Paterno.
When you are at the top of your game, you are held to a higher level of accountability by the public. With greater authority comes greater responsibility. Jesus taught this, too.
And that servant, which knew his lord’s will, and prepared not himself, neither did according to his will, shall be beaten with many stripes. But he that knew not, and did commit things worthy of stripes, shall be beaten with few stripes. For unto whomsoever much is given, of him shall be much required: and to whom men have committed much, of him they will ask the more (Luke 12:47-48).
The Board of Trustees fired him. As members of an agency legally in charge of the university, they thought they had to take decisive action. They imposed what became in retrospect a zero-tolerance rule. They did not legally have to get Paterno’s side of the story, and they didn’t. They had the right to fire him, and they did.
They did what Paterno did not do in 2002. They went the extra mile. They did not sit on the sidelines to wait to see what would happen. They saw the buck as landing on their desk. They decided that it would stop there.
DO ASK, DO TELL
It is clear to me what Paterno should have done. He should have pressed the assistant to spell out in detail what he saw. He should have pressed very hard. If the young man remained evasive, he should have demanded that he accompany him to meet with Sandusky. If the young man had then come clean about witnessing a felony, Paterno should have asked him to accompany him to the police. The police should have been informed. Here is what is obvious to me: the university’s chain of command was peripheral to the problem, given the magnitude of the accusation.
What is appalling in all the reporting is this: no one asks a simple question. “Who contacted the boy’s parent?” As agent of the boy, the parent had the responsibility of protecting him. The parent was left out of the loop. Am I the only one who sees this? Who defends parental rights? Why didn’t the assistant see this from the start? Why didn’t anyone in the chain of command see it?
Not until 2010 did the grand jury learn of all this. Here is the sequence of events.
March 1, 2002: A Penn State graduate assistant enters the locker room at the Lasch Football Building. In the showers, he sees a naked boy, known as Victim 2, whose age he estimates to be 10, being subjected to anal intercourse by a naked Sandusky. The graduate assistant tells his father immediately and Paterno the next day; Paterno reports the incident to Tim Curley, Penn State athletic director.
March 27, 2002 (approximate): Curley tells the graduate assistant that Sandusky’s locker room keys are taken away and that the incident has been reported to The Second Mile. The graduate assistant is never questioned by university police, and no other entity conducts an investigation until the graduate assistant testifies in Grand Jury in December 2010.
If this list is accurate, then the graduate assistant should have followed through. He should have kept pressing this issue. He should have gone to the city’s police. His father should have pressed his son to take action. Paterno should have done the same. The young man went to adults for counsel. Either he did not make it clear what he had witnessed, or else he did not receive good counsel. Paterno has said this:
It was obvious that the witness was distraught over what he saw, but he at no time related to me the very specific actions contained in the grand jury report. Regardless, it was clear that the witness saw something inappropriate involving Mr. Sandusky. As Coach Sandusky was retired from our coaching staff at that time, I referred the matter to university administrators.
The graduate assistant was the only witness. He had primary authority. Yes, the man at the bottom of the institutional chain of command had the primary authority. Yet the media have ignored him. Everyone has ignored him. This is because modern man does not understand the judicial centrality of the witness. This is a major weakness of modern civil law.
We live in a society that has lost both its moral and judicial bearings.
CAREERS IN TATTERS
Because of what Paterno had achieved in his career, he was still on the payroll at age 84. This is unheard of in college coaching. Only Eddie Robinson of Grambling exceeded Paterno: 57 years at one school, but with one fewer win. Paterno achieved the record in his final game in late October. But even Robinson ran out of time. He was fired because of his won-lost record in later years. Paterno was still at the top of his game in terms of objective success indicators.
Not going the extra mile with respect to the accusation of a felony that is regarded by the public and also inmates as being at the top of the list of crimes trumped all other success indicators. His won-lost record did not matter.
He issued a statement. “This is a tragedy. It is one of the great sorrows of my life. With the benefit of hindsight, I wish I had done more. My goals now are to keep my commitments to my players and staff and finish the season with dignity and the rest of my life doing everything I can to help this university.” He is correct. He should have done more. His statement also said: “I grieve for the children and their families, and I pray for their comfort and relief.” This is the correct attitude. They are the victims. From beginning to end, they have been the victims. No one came to their aid.
Football is not as important as protecting pre-teen boys from men who exploit them sexually. Future victims of such exploiters deserve protection from adults, and the civil law recognizes this. Little boys are not expected to go the extra mile when dealing with their exploiters. Inmates in maximum security prisons understand this. The Board of Trustees understood this. Paterno didn’t. He did not break the civil law, but he broke a fundamental principle of the moral law. Children deserve protection. Adults who are in a position to protect them must go the extra mile to provide it.
Paterno is still in shock. He shouldn’t be.
The president of the university also was fired. The media are generally ignoring him. He was not a famous man. He had raised a huge amount of money. He performed well in terms of measurable success indicators. He was a well-paid fund-raiser. Now he is an unemployed ex-bureaucrat in disgrace.
In the U.S. Navy, if a commander “bends his ship’s iron” in a crash, he is demoted. There are no excuses. There is zero tolerance. Those who serve understand this. They are expected to go the extra mile.
THE MOMENT OF DECISION
We do not always know when this comes, but it comes.
Paterno nine years ago took a halfway measure to deal with a major issue that had been placed in his hands. This was a ticking time bomb in his career. Finally, the bomb exploded.
He was in a judicial bind. To go to the city police with only an accusation from someone who did not have a corroborating witness was a real threat to his career. It would have placed him on the firing line if the grand jury dismissed this. He had to make a decision: either push this up the chain of command to mid-level bureaucrats and let it drop, or go straight to the police. He made the wrong decision.
He was dealing with a zero-tolerance crime. His failure to take decisive action was not something that would stay under the rug if the rug was ever lifted. He did not perceive this at the time. He did not perceive it for years. Now he does. Too late.
This is the problem of making the right judgment. We are supposed to do this every day. But not all situations are equal. We are required to assess the situations in terms of a hierarchy of values. In this case, the highest value was the protection of the boy. The graduate assistant should have been carrying a gun. He should have made a citizen’s arrest. But, as we all know, universities do not allow second amendment rights on campus. Second best, he should have picked up a heavy implement and hit the guy so hard on the head as to incapacitate him — better yet, kill him in one blow. Barring that, he should have physically intervened with no weapon. Next was the legal requirement to report this to the proper authorities — the issue of the correct chain of command. Next on the list was the imposition of civil sanctions against the jury-convicted criminal for past crimes. This is victim’s rights in action.
Here is where Paterno made his bad call. He did not give the young man good counsel. He did not press the issue. He did not go to the city’s police. The university was peripheral to the legitimate chain of authority. All it did was to supply the venue: showers. Yet Paterno expected second-tier bureaucrats in a tax-funded bureaucracy to do the right thing — to do what he failed to do.
When you rely on salaried bureaucrats to do the right thing by exposing the bureaucracy’s operations to public criticism, you rest on a weak reed.
There are times in every person’s life when he cannot pass the buck without breaking a moral law. He may not break a civil law by doing nothing. He may not break a law of bureaucracy by staying quiet. But he breaks a moral law.
If we lived in a random universe, this would not set us up for a fall. But that is not our universe.
In every area of our lives, we are faced with moral decisions. We should do our best to pay closer attention to the moral law than to the system of institutional success indicators that rewards us or punishes us. The success indicators are rough guidelines for day-to-day decision-making. They are impediments to our judgment when they reward short-term decisions that do not rock the boat but threaten to sink it, and us with it.
In matters judicial, the primary questions are these: (1) Who is the victim? (2) Who represents the victim? (3) What is the role of the witness, who is the crucial agent of justice? Because we are not trained from youth to understand this hierarchy of justice, the West is adrift. The incidents at Penn State illustrate the extent of this drift. Nobody in the media seems to perceive the context of Penn State: filling tax-constructed football stadiums on Saturdays more than anything else.
The Paterno Affair is not a tempest in a teapot. It is more like an explosion in the bowels of the Titanic.
Published on November 11, 2011. The original is here.