The U.S. Department of Education on Thursday issued a 242-page report, accompanied by a 35-page letter, announcing the results of its Clery Act investigation of Penn State and proposed $2.4 million fine for violations of the law requiring universities to report and notify the public about campus crime.
The investigation was the most sweeping in the act’s history, and the fine would be the largest ever imposed for violations. It began on Nov. 9, 2011, when the department notified the university it was beginning a review of its Clery compliance, days after former Penn State football assistant coach Jerry Sandusky was arrested on child sexual abuse charges and two administrators were charged for allegedly failing to report a 2001 allegation against Sandusky.
Since 2011, Penn State has made significant changes to its compliance and safety measures, but the education department was looking back on how the university handled crime reports dating back to 1998, when at the time, the first known allegation against Sandusky was made. The results went beyond solely how the Sandusky case was handled and took a broad look at how the university reported campus crime throughout that period. The vast majority of the overall fine, in fact, has little to do with the Sandusky matter and is more related to how Penn State handled crime reporting in general.
The Department’s Clery Act Compliance team reviewed voluminous records related to Penn State policies, university police incident and investigative reports, disciplinary files and overall crime statistics. The investigation also included reviews of the Louis Freeh report, a Pennsylvania Auditor General report on university governance and the Critique of the Freeh Report commissioned by the family of Joe Paterno, among other documents.
The team monitored the Sandusky trial, where The Second Mile founder was convicted on 45 counts of child sex abuse in 2012, and related court cases and investigations. They also spoke to current and former students about their experiences.
What resulted, according to the department, were ’11 serious findings of Clery Act noncompliance related to the University’s handling of Sandusky’s crimes and the university’s longstanding failure to comply with federal requirements on campus safety and substance abuse.’
Though Penn State was hit with the record fine — which it can still appeal or settle — it avoided the most disastrous penalty, a suspension of its Title IV eligibility — the section of the Higher Education Act that allows students at the school to receive federal student aid.
‘Serious lapses in Clery Act compliance in the future could negatively affect the University’s Title IV eligibility,’ the report stated.
The report is critical of oversight by the university’s senior leadership and Board of Trustees during that time, and claims that inadequate control was exercised over the Department of Intercollegiate Athletics. But it goes out of its way to dismiss the idea that Sandusky’s crimes and Penn State’s compliance failures were the result of a ‘football culture.’
‘Like the Freeh Group, our investigation identified numerous contributory factors that cannot be easily reduced down to simple platitudes,’ the report says. ‘In dissecting the issues, it is very important to be clear about what this case is about and what it is not. Sandusky is responsible for the crimes that he committed. Criminal charges are still pending against other former University officials who were indicted for their [alleged] failure to take action that could have stopped a predator and protect children. While there can be no doubt that Sandusky was empowered and abetted over many years, those acts must not be in any way imputed to the vast majority of Penn State officials who knew nothing of these crimes and were not in a position to stop them.’
The review team said that many of the officials interviewed were ‘found to be caring, professional, and dedicated to the students and the institution that they serve.’ They also were ‘deeply distressed and expressed profound sadness and anger throughout their meetings with Department officials.’
The report also defends students and alumni, some of whom ‘were nearly inconsolable and said that they feared that they would never feel the same way about their school again.
‘While steps must be taken to ensure that such atrocities do not happen again, Penn State students should never have to bear the burden for what happened at their University.’
Following is a closer look at department’s 11 findings. The report largely found that steps taken by the university since 2011 have brought it into compliance.
1. Clery Act violations related to the Sandusky matter
Proposed fine: $27,500
– A May 1998 report to Penn State Police alleging that Sandusky inappropriately touched an 11-year-old boy in a campus locker room shower was not recorded in the daily crime log and was later classified under ‘administrative information’ when no charges were filed. The report notes that around the same time, the crime log recorded less serious reports, such as minor accidents and a man sleeping in a stairwell. ‘In light of these entries, Penn State’s contention that the reported incident of a middle-aged man inappropriately touching an 11-year-old boy, while naked and showering with him, did not rise to the level for inclusion in the daily crime log strains credulity,’ the report states
– The 2001 report by then-graduate assistant Mike McQueary of seeing Jerry Sandusky in a shower with a boy was not recorded in university campus crime statistics for that year, no timely warning was issued and it was not recorded in the police crime log. McQueary reported the incident to Joe Paterno, who then reported it to former Athletic Director Tim Curley. All three were considered what the Clery Act describes as ‘campus security authorities,’ which include team coaches, according to the report, and so the university had an obligation to report it.
– Penn State took no action to notify the university community after those incidents, after a grand jury had begun investigating or after it was clear charges would be issued against him.
2. Lack of administrative capability
Proposed fine: $27,500
– Penn State ‘largely ignored many of its Clery-related responsibilities,’ during the time period the report stated and as such lacked administrative capabilities to comply with Clery and the Drug-Free Schools and Communities Act. The university failed to employ sufficient staff for compliance or provide compliance funding and training for university police and campus security authorities.
The report states that in 2007, former Penn State Police Chief Steve Shelow approached former vice president Gary Schultz about hiring a compliance coordinator. Schultz, the report said, agreed the position was needed but that there was no money for it because of other priorities.
3. Omitted and/or inadequate annual security report and annual fire safety report policy statements
Proposed fine: $37,500
– A review of the university’s Annual Security Reports found more than 85 separate policy violations. ‘Penn State failed to develop numerous required statements of policy, procedure, practice, and programs or to include adequate statements of required policies in its ASRs during the review period and, very possibly, since the enactment of the Clery Act.’
The report said the policy failures suggested ‘a serious administrative impairment.’
4. Failure to issue timely warnings in accordance with federal regulations
Proposed fine: None
– Penn State failed to issue timely warnings to its community for hundreds of Clery-reportable crimes between 1998-2011. At the same time, the school issued crime bulletins for crimes that didn’t require Clery reporting, such as theft and criminal mischief.
5. Failure to properly classify reported incidents and disclose crime statistics from 2008-2011
Proposed fine: $2,167,500
– Between 1998-2011, Penn State failed to compile and publish accurate and complete crime statistics. Violations included errors in classifying crimes, identification and disclosure errors, improperly stating a reported crime had been “unfounded,” poor record keeping documenting multiple Clery-reportable crimes in a single incident report.
Cited among the violations was the 1998 report about Sandusky, which was not reported on the police crime log and was later classified under ‘administrative information.’
Numerous incidents that were misclassified, the report said, ‘resulted in under-reporting of crime statistics to the campus community.’
6. Failure to establish an adequate system for collecting crime statistics from all required sources
Proposed fine: $27,500
– Penn State had only collected crime statistics from direct reports to university police and other law enforcement agencies, but Clery requires they be collected from anyone identified as a ‘campus security authority,’ which includes a wide range of positions numbering nearly 4,000, according to the report. Examples included Clery-reportable crimes reported to the Center for Women Students, CSAs who worked with students who sought special accommodations because of trauma, the Office of Human Resources and the Office of Fraternity and Sorority Life.
7. Failure to maintain an accurate and complete daily crime log.
Proposed fine: None
In reviewing university crime logs from 1998-2011, the department found Penn State failed to accurately and consistently record in its daily crime log all incidents of crime. The logs ‘did not accurately and consistently record the nature of the offense, the date, time, description and general location of the crime, and the disposition. There were reported incidents of crime listed in the daily crime logs that did not match the descriptive narratives on the PSUPD officer’s incident reports.’
8. Reporting discrepancies in crime statistics published in the annual security report and those reported to the department’s campus crime statistics database
Proposed fine: $27,500
The department said that crime statistics submitted by Penn State did not match those that were published in the Annual Security Reports distributed to students and staff between 2002-2011. It also stated that data from a particular year would in some instances change when the following year was updated with three-year data.
9. Failure to publish and distribute an annual security report in accordance with federal regulations
Proposed fine: $27,500
Penn State could not prove that it distributed its Annual Security Report to all current students and employees by the required date of each year during the review period.
10. Failure to notify prospective students and employees of the availability of the annual security report and annual fire safety report
Proposed fine: $27,500
Penn State did not provide ‘a clear and conspicuous notice to prospective students and employees’ about its Annual Security Report and Annual Fire Safety Report during the review period. The report noted various methods in which the notifications were issued made it so that some may have received notice and some not. The department also referred to finding 9 and noted that ‘the notices that did reach various prospective applicants often led them to reports that, even once they became available, were so lacking in accurate and complete required content that the campus safety, crime prevention, and consumer protection objectives of the Clery Act could not be achieved.’
11. Failure to comply with the Drug-Free Schools and Communities Act
Proposed fine: $27,500
– The act requires all schools receiving federal funding to certify they have established drug and alcohol abuse education and prevention programs and provide notification to all students faculty and staff with specific information about the program. The department said that none of the documents provided during the review met the requirements and that certain required information was left out entirely in multiple years.
