The Paterno Affair and Western Liberty
by Gary North: Europe's
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
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.
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
issue is institutional: the asserted legal sovereignty of the university.
This has become even more of an issue with the coming of tax funding
I begin with
the second issue: the university.
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
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.
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
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 from 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.
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.
and Revolution, Harvard University Press) I agree with him.
It was this
system which led to the Paterno Affair.
THE EXTRA MILE
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.
context of this principle of action was Jesus's 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.
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.
context of Jesus's 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.
this will buy you time. It may buy you future leeway. You gain a
reputation as a willing subject, not a trouble-maker. In a tyrannical
social order, becoming a trouble-maker 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.
of going the extra mile also works in areas of life that are not
governed by coercion.
In a strange
twist of events, "The Second Mile" is 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
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.
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
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 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 Parterno 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 school was 8-1 when the Board fired
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.
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, he told the young
man to report this to a couple of second-tier university bureaucrats.
These men had authority over the university's police department.
fact was made clear by the Attorney General of Pennsylvania.
The young man did what Paterno advised. 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.
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.
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."
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.
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?
graduate assistant did not go to the city's police. He passed the
responsibility to a university bureaucrat, at Paterno's recommendation.
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.
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).
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
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
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?
2010 did the grand jury learn of all this. Here is the sequence
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.
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
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.
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.
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.
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.
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.
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.
He is still
in shock. He shouldn't be.
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 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.
MOMENT OF DECISION
We do not
always know when this comes, but it comes.
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
Parerno 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.
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.
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.
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?
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.
Affair is not a tempest in a teapot. It is more like an explosion
in bowels of the Titanic.
North [send him mail]
is the author of Mises
on Money. Visit http://www.garynorth.com.
He is also the author of a free 20-volume series, An
Economic Commentary on the Bible.
2011 Gary North
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