The darkest chapter in Pennsylvania State University’s history reads now as a distant passage. It has been four years since Jerry Sandusky, the longtime Nittany Lions defensive coordinator, was indicted on charges of sexually abusing young boys. It has been three years since he was sent to prison.
But, even after all that time, many people here say that the university has never truly come to grips with what happened. To date, the closest thing that Penn State has provided in the way of a definitive account of the Sandusky saga is a 267-page report submitted by the former FBI director Louis J. Freeh, who was hired by the board in late 2011 to investigate the university’s handling of the matter. Mr. Freeh’s damning conclusion was that the most powerful men at Penn State, intent on protecting the reputation of the university’s football program, conspired to cover up Mr. Sandusky’s abuse of children.
But uncertainty persists about the accuracy of Mr. Freeh’s findings. And it is those misgivings that have helped to drive a wedge between two factions of Penn State’s Board of Trustees, who sharply disagree about the prudent way forward. Is it better, as a majority of trustees have concluded, to leave to the courts any lingering questions about university administrators’ culpability? Or does the board have a moral and fiduciary obligation, as some members see it, to investigate those questions itself?
The dispute has contributed to an environment so toxic that no one on the board seemed surprised when a handful of trustees recently sued their own university.
“It’s just part of the world we live in at Penn State,” says Keith E. Masser, the board’s chairman.
A Contentious Lawsuit
Among the 36 voting members on Penn State’s board, nine are elected by alumni. They vied for positions on the board in the wake of the Sandusky scandal, campaigning on a platform that stressed the need for greater transparency and a message that the board should be purged of those who handled the abuse fallout. They are backed by Penn Staters for Responsible Stewardship, a nonprofit group that gives its influential endorsement to watchdog-style candidates.
In April, seven of these trustees filed suit against the university, seeking unfettered access to an estimated 3.5 million documents and interview notes compiled and composed during Mr. Freeh’s investigation. A recent court ruling ensures they will get just that, setting up a potentially contentious retreading of the Sandusky scandal.
The plaintiffs, all of whom have joined the board in recent years, are highly skeptical of Mr. Freeh’s conclusions. They seek, if warranted, to clear the names of those the report condemns, including that of the late Joe Paterno, Penn State’s storied football coach.
Their quest puts them at odds with the majority of the board, whose members, in 2014, approved a resolution to shelve any discussion about reviewing the Freeh materials until after legal proceedings, including the criminal trials of three former administrators, have concluded. Before the lawsuit, Penn State had offered up the documents to the interested board members, as long as the names of individuals were redacted. But the alumni trustees found that condition unacceptable.
“If you don’t know who is talking to whom, what’s the use of looking at the Freeh materials?” says William F. Oldsey, one of the plaintiffs. “That’s a useless exercise.”
Mr. Freeh’s report builds a four-pronged case against Mr. Paterno, along with Graham B. Spanier, the university’s former president; Timothy M. Curley, the university’s former athletic director; and Gary C. Schultz, a former interim senior vice president. (All but Mr. Paterno, who died in 2012, face criminal charges for covering up. The accused, who no longer hold executive positions at the university, have denied any wrongdoing, and on Friday a Pennsylvania court dismissed some of the charges against them.)
The Freeh report contains potentially disturbing evidence, including a particularly troubling email exchange between Mr. Spanier and Mr. Curley, whom the former president appears to praise for reporting an abuse allegation to the Second Mile charity, where Mr. Sandusky groomed his victims, rather than to law enforcement.
But, taken together, the evidence strikes Mr. Oldsey and others as thin gruel. Absent more-definitive proof, he says, Penn State has irresponsibly let stand a narrative that the men are guilty of terrible crimes.
“The way those people have been treated by this university is the epitome of disloyalty,” he says, “and it sickens me.”
Divisions Exposed
The trustees’ lawsuit lifts the veil on growing distrust between the alumni-elected members and their colleagues.
In one filing, the board’s alumni representatives described the university as “disingenuous,” accused Penn State and its lawyers of “underhandedness,” and characterized their positions as “simply not true.”
“The prolonged effort by the university to tarnish the petitioner trustees’ reputations is nothing short of desperate,” the plaintiffs wrote.
Indeed, questioning the plaintiffs’ trustworthiness was central to Penn State’s legal strategy. If the board members were granted access to the documents, Penn State argued, they were sure to blab about what they had found, thereby violating their duties to keep the materials confidential. The university cited an egregious pattern of such breaches, but said to list them in a public document would only “exacerbate harm to the university.” Later, Penn State filed under seal a detailed account of what it described as the trustees’ tendencies to disclose secrets.
As the lawsuit unfolded, Eric J. Barron, the university’s president, entered the fray. In an open letter to the plaintiffs, Mr. Barron deemed “outrageous” their suggestion that the university should cover their legal fees, which are estimated at $400,000.
“It is difficult to fathom why you would squander university resources in such a manner,” Mr. Barron wrote. “The university will not pay you to sue us.”
Mr. Barron argued that the trustees’ lawsuit put the very future of public safety at Penn State at risk because granting board members unredacted access to the materials would send a message that cooperating witnesses in future cases should reasonably fear exposure.
Trustworthiness
In the midst of litigation, a little hardball is not too surprising. But there is evidence to suggest that the disagreements have bled into the overall governance of the university.
“The problems in the Penn State board are so deep that it would be less than fully truthful to say they don’t affect everything the board does,” says John Hanger, who represents the state’s governor as a nonvoting member of the board.
The board’s alumni-elected members, for example, were initially passed over for committee-leadership appointments. On a board as large as Penn State’s, much of the work is delegated to committees, giving leaders of those groups significant influence at the university. In 2014, Mr. Masser, the chairman, made clear that his new colleagues would not ascend the ranks of power if they did not learn to behave themselves.
In an email to the board, Mr. Masser responded to concerns from alumni-elected representatives, who felt marginalized because they had, at the time, been denied committee chairmanships. While pledging his “desire to work with every single trustee regardless of our differences,” Mr. Masser went on to delineate all of the ways in which his colleagues had undermined the “very trust, confidence, and mutual respect necessary to serve in leadership roles.”
Many of Mr. Masser’s grievances boiled down to trustees’ taking public positions at odds with the board. Doing so, he argued, “disrupts essential elements of board functioning.”
“Rather than being ‘marginalized’ by the board,” the chairman wrote, “the natural effect of the deliberate actions of these trustees has been to isolate themselves from their fellow trustees.”
In a recent interview, Mr. Masser acknowledged that the denial of committee appointments was one way to enforce the board’s standing orders, which include a provision that trustees “publicly support decisions reached by the board” and “extend good will to one another.”
“As board chair,” he said, “one of the ways you can hold them to account is to choose leaders you can trust.”
In 2015, Mr. Masser appointed a member of the alumni-elected group as chairman of the board’s committee on outreach, development, and community relations.
To the extent that Penn State’s board has factions, its unique composition may be a contributing factor. The 38 members, two of whom are nonvoting, represent a broad range of Pennsylvania interests, including gubernatorial appointees, elected representatives of agriculture societies, business and industry executives, students and professors.
Conflicts arise, Mr. Masser said, when trustees see themselves more as legislators representing their constituencies than as members of a cohesive governing board.
“There’s people out there trying to make this board look dysfunctional,” he said, “but I would argue strongly against that.”
Indeed, there are plenty of outward signs to suggest that the university as a whole is in good health. Application numbers dropped just after the Sandusky scandal, but a record number of students — nearly 131,000 — applied to Penn State in 2015. Fund raising has exceeded $200 million a year for the last six years, and the $271.1-million total in 2014 was the second highest in the university’s history.
But the board faces some systemic problems. It has been criticized as too large, which can be a recipe for trustee disengagement and leads to concerns that power will be consolidated in the hands of a few.
Penn State’s board has three times as many voting members as the average public-university board, according to preliminary data that the Association of Governing Boards of Universities and Colleges is expected to release this spring.
Rather than reduce the board’s size after the Sandusky scandal, as some state officials had proposed, Penn State actually increased its membership, from 30 voting trustees to 36. In some quarters, the move was interpreted as an effort to marginalize the power of the alumni-elected trustees and a slate of new gubernatorial appointees.
“They ran the risk of losing control,” says Anthony P. Lubrano, an alumni representative to the board. “That was their primary concern. It had nothing to do with good governance.”
That charge troubles Keith W. Eckel, who is chairman of the board’s Committee on Governance and Long-Range Planning. If anything, he says, the Sandusky scandal demonstrated that Penn State needed more committees, including audit and risk, and people of diverse experience were required to lead them. Implying another motive, he says, “would go to my integrity.”
No Easy Answers
For better or worse, the trustee’s lawsuit has forced the hand of the board to do something it has long resisted. Members of the board’s majority, who have rejected previous calls to re-examine the Freeh report, are sure to do so now — if only to act as a check on the alumni-elected trustees’ investigation.
The court has placed strict parameters of confidentiality on the trustees, who are permitted to discuss their findings only with fellow board members and their lawyers. That sets up another potential dispute. Assuming the trustees find errors or unsupported claims, they would need the blessing of a majority to publicly refute parts of the report or to reject it outright.
Thus far, the board has been careful to say it has never accepted or rejected Mr. Freeh’s conclusions, only his recommendations.
But where does all of this lead? From the university’s perspective, many of the deleterious consequences of the Freeh report, which was used to justify NCAA sanctions against Penn State, have been rendered moot. The football team’s wins have been restored and a postseason ban has been lifted.
“Where’s the decision that we’re going to make that’s based on the Freeh report?” asks Mr. Barron, Penn State’s president. “It’s hard to see that there is one.”
It is easy to second-guess the motives of the alumni-elected trustees, who are often dismissed by critics as football enthusiasts determined to restore dear old “JoePa’s” legacy. They are used to being described as “joebots.”
But Mr. Paterno’s loyalists can be found throughout the board. Robert Capretto, a gubernatorial appointee who played football for the legendary coach, says he too wants to revisit the report. Mr. Capretto concedes that he is motivated in part by his desire to exonerate the coach, and potentially other administrators.
“If I told you that wasn’t one of my goals, besides being a good fiduciary, I’d be lying to you,” he says.
Yet after paying $8.1 million to Mr. Freeh for an investigation and settling numerous lawsuits with Mr. Sandusky’s victims, Penn State’s board has still never taken a clear position on where blame rightfully rests. It has instead left that question to the courts, telling the public it may take or leave Mr. Freeh’s theory of the case.
It is up to someone else, the board has effectively said, to determine whether Penn State’s leaders and heroes sacrificed the safety of children for the love of football. It is this proposition that, all these years later, continues to tear Penn State apart.
Jack Stripling covers college leadership, particularly presidents and governing boards. Follow him on Twitter @jackstripling, or email him at jack.stripling@chronicle.com.
