Where Discretion Meets the Road

Sometimes the rule-making busybodies accidentally have to make real decisions as a result of their rules.

In 1990 a federal law called the Clery Act, named for a 19 year old girl raped and murdered at Lehigh University, was enacted. It mandates American schools keep records of crimes committed on campus. Schools are required to create a program to collect and manage crime information including crime logs, an annual security report, periodic warnings as a result of crime information and statistics. Compliance is monitored by the Department of Education, which can impose civil penalties (up to $27,500 per violation) against institutions for each infraction and can suspend institutions from participating in federal student aid programs.

Penn State did not report any of the Sandusky violations, of course. Moreover, it actually has never created any of the infrastructure required by the law 12 years ago.

The University's vulnerability is more than that of the NCAA. This is a huge federal violation and Penn State seemingly violated every aspect of The Clery Law. The possible penalties are gigantic and it appears that some leeway, some discretion, will be involved in how the administrative bodies respond. And how should they? For example, no school could survive the elimination of student aid should it be withdrawn. As a state university, Penn State is also supported by state taxes. The citizens of Pennsylvania might well be outraged at this behavior with virtual any response possible. Federal grants are another problem; Penn State gets over 400 million dollars in research grants. What if they are moved?

The problem is intense for the university. As these laws are written with some latitude, a number of possible responses are allowed. But wouldn't one expect the maximum response? After all, what could possibly be worse than what this school did? Concentration camps? Affiliation with al Qaeda? Doing human trials for Biopreparate? 

The original intent behind the NCAA's rules are not to protect athletes, they are to keep the competitive field fair. Penn State's athletic programs were protected--and advantage gained--by their silence on Sandusky. But the problem is vastly bigger than that. The NCAA has inadvertently become involved in a terrible problem and their response should be savage. But what about the other laws and responsibilities? If these laws were written to be taken seriously then some very serious results should be coming Penn State's way and the NCAA's decisions should be the least of their worries.