The NCAA and Penn State: A Contrarian View (you expected otherwise?)

As I’ve mentioned before, one of my best friends is an administrator at Penn State University. He had nothing to do with any of the current turmoil—he wasn’t there yet when Jerry Sandusky was roaming the sidelines and the showers—but it falls to him and others like him, people who didn’t look the other way, to clean up the mess. I don’t think this influences what I’m about to say, but I mention it in the interest of full disclosure.

This morning the National Collegiate Athletic Association laid down “staggering” sanctions against Penn State, and online polls are asking if they were severe enough. Yes, there is an option to say that the scandal is none of the NCAA’s freaking business (absolutely true, but—of course—chosen by less than a quarter of respondents), but if you just want to say the penalties were too harsh, you’re out of luck. Glad the media have decided for us how we should respond.

The sanctions include a fine of $60 million (plus loss of Big 10 bowl revenues, another $13 million) [EDIT: It turns out the denial of Bowl proceeds was a Big 10 decision, not an NCAA decision. Apologies for the error.], all of which money will go to non-Penn State-related programs to prevent child sexual abuse; vacating all of Joe Paterno’s wins since 1999, dropping him from 1st to 5th on the list of winningest coaches; a four-year ban on post-season play; and the ability of any player, including recruits who haven’t played a down, to transfer to another school and play immediately, without the normal one-year wait. There are those who think the penalty will be more crippling to the future of the Penn State football program than the “death penalty”—a complete suspension of the program for a specified period of time—would have been.

Of course, there’s considerable debate—and not just from NCAA skeptics like me—about whether the NCAA has any jurisdiction in this case whatsoever. Their job—at which they fail rather spectacularly—is to enforce the proverbial “level playing field,” not to play cops and robbers. But whereas at least three of the last seven Heisman Trophy winners were very likely to have been taking illegal payments or otherwise scamming the system, and multiple major universities have found to be cheating, sanctions for those schools have been insignificant in comparison.

Let me explain. I am not suggesting that players’ getting free tattoos is a worse crime than covering up for a sex offender. But it is more problematic—or should be so—to the NCAA, whose job ought to be to enforce its rules about amateurism, scholastic progress and the like, and to leave the real criminality to the police and similar authorities. Really, we’re talking about the same creeping authoritarianism that I often complain about with respect to schools, except that now we’re talking about an athletics organization that seems considerably more interested in strutting its propriety than in actually deserving the reputation it seeks.

This isn’t just me saying this, as I suggested earlier. Here’s what an ESPN article has to say:

A former Committee on Infractions chairman and current Division I Appeals Committee member told ESPN.com's Andy Katz on Sunday the NCAA's penalizing of an institution and program for immoral and criminal behavior also breaks new ground….

“This is unique and this kind of power has never been tested or tried,” the former chair said. “It's unprecedented to have this extensive power. This has nothing to do with the purpose of the infractions process. Nevertheless, somehow (the NCAA president and executive board) have taken it on themselves to be a commissioner and to penalize a school for improper conduct.”

The chair said that the NCAA was dealing with a case that is outside the traditional rules or violations. He said this case does not fall within the basic fundamental purpose of NCAA regulations.

“The purpose of the NCAA is to keep a level playing field among schools and to make sure they use proper methods through scholarships and et cetera,” the chair said. “This is not a case that would normally go through the process. It has nothing to do with a level playing field. It has nothing to do with whether Penn State gets advantages over other schools in recruiting or in the number of coaches or things that we normally deal with.”

The NCAA, the chair said, had never gotten involved in punishing schools for criminal behavior.

“The criminal courts are perfectly capable of handling these situations,” the former chair said. “This is a new phase and a new thing. They are getting into bad behavior that are [sic.] somehow connected to those who work in the athletic department.

Moreover, there is no way to excuse the NCAA’s blithe circumvention of their own due process procedures. It’s difficult to find much sympathy for the Paterno family, but they’re right about this, taken from their statement this morning in response to the NCAA’s announcement of the sanctions:

That the president, the athletic director and the board of trustees accepted this unprecedented action by the NCAA without requiring a full due process hearing before the Committee on Infractions is an abdication of their responsibilities.

I completely agree. Current Penn State President Rodney Erickson’s complete capitulation to the NCAA goons is, frankly, a dereliction of duty. He’s as big a craven jackass as his predecessor; it’s just the identity of the Other Guy that has changed. Paterno ran Spanier’s Penn State; the NCAA runs Erickson’s.

That ESPN article cited above also says this:

The NCAA took unprecedented measures with the decision to penalize Penn State without the due process of a Committee on Infractions hearing, bypassing a system in which it conducts its own investigations, issues a notice of allegations and then allows the university 90 days to respond before a hearing is scheduled.

After the hearing, the Infractions Committee then usually takes a minimum of six weeks, but it can take upward of a year to issue its findings.

But in the case of Penn State, the NCAA used the Freeh report—commissioned by the school's board of trustees—instead of its own investigation.

So the NCAA, in other words, is butting in where it has no business, and violating its own rules in the process. But, as they say in the infomercials, that’s not all.

Put simply, there is no way that these sanctions can avoid hurting the innocent. The sexual abuser is long gone. The coach who looked the other way is dead. The president who facilitated the cover-up was fired. True, there are probably some other folks involved who are still at the university, but my guess is that there aren’t many. I took my current job in 2001, roughly the time frame we’re talking about with respect to Penn State. There has been at least one, often more than one, change in every job up the chain of command from me: Director of the School, Dean of the College, Provost, President. No one, as far as I know, has served for more than two three-year terms as a member of the Board of Regents, and there have been several different Chairs of that body. Only one of my seven full-time departmental colleagues from that year is still here, and she came the same year I did. If we extrapolate from there to Penn State, we can only conclude that most of the guilty are gone, even if they weren’t fired.

So who is being punished? Players who came to Penn State in part for its winning tradition, but also for its squeaky-clean reputation. This wouldn’t apply to new recruits, but certainly the upperclassmen would have enrolled at Happy Valley confident that they were joining one of the most reputable programs in the country. And they were. Indeed, one could make the case that Joe Paterno was, in all things but one, a model coach. Unfortunately, that exception was a lack of moral courage when he needed it most. But spare me the sanctimony about how you (not you, Gentle Reader; you, talking head or former coach or whatever) would have reacted differently. Perhaps you would have. I know that I hope I would have… but know it? I can’t say that, and, alas, neither can anyone else.

True, the NCAA has arranged it so that players can transfer elsewhere without penalty. That would be to abandon their friends and academic programs (the NCAA is big on academics… except when it isn’t) to transfer on about two weeks’ notice before fall practice begins to a place where they don’t know the system, didn’t go to spring practice and can’t find their way around campus without a map. What’s particularly significant here is that the “good kids,” the ones the NCAA purports to care most about, are the ones most adversely affected because they’re more likely to stay at Penn State. The ones who care only about football, and they are manifold, however much the NCAA would like to pretend otherwise: they’ll transfer to some other school where football rules the university: to Alabama or Auburn or Notre Dame or Oregon or Southern California or Florida or Ohio State or… sigh.

And, of course, it’s not just the players, but the coaches who had nothing to do with the scandal, the cheerleaders and marching band who don’t get to go to a bowl game, the local businesses that won’t attract as many customers when the team loses lots of games for lots of years into the future, as now appears more likely than not. Yes, it’s inevitable that the innocent will suffer in cases like this. What’s different here is that it is almost exclusively the innocent who will do so.

One of the ironies in this case is that, in vacating all those Paterno victories (Idiot Local Sports Guy on the Radio says the NCAA “just couldn’t” allow him to be #1 in wins), the NCAA now places former Florida State head coach Bobby Bowden at the head of the list for victories by an FBS (Division I) coach. Yes, that would be the same Bobby Bowden who made pious proclamations about how he loved his dear friend Joe Paterno, but the statue needed to come down. It’s also the same Bobby Bowden who ran one of the most corrupt programs in the country, whose own win total was reduced by the NCAA because he was linked to wholesale academic cheating (you know, something the NCAA actually ought to be concerned about), and who was… erm… asked to retire under yet another ethics cloud. Plug “Bobby Bowden academic scandal” into Google and you’ll get 70,000 hits; “Bobby Bowden the cheater” generates 112,000. Whew. Glad that Paterno guy isn’t topping the list anymore.

It's also worth mentioning, by the way, as Jeff Eisenberg points out:

The irony of the NCAA’s punishment is Penn State will keep nearly all its victories from the 30 years convicted child sex offender Jerry Sandusky was an assistant coach. During the years in which he served as defensive line coach, linebackers coach and defensive coordinator, Penn State amassed 309 victories, only 19 of which were vacated by the NCAA’s ruling.

Penn State will find itself settling lawsuits and paying tens of millions of dollars to those brutalized by Jerry Sandusky: and they should. With an endowment just short of $2 billion, they can afford it. As a loyal fan of the Kansas Jayhawks, who would be thrilled with a 4-8 season this year, I can also tell you that there is no God-given right to play in a Bowl game. And there really is plenty that’s good about Penn State that has nothing whatsoever to do with football; an opportunity to re-define itself as a first-rate academic institution isn’t entirely a bad thing, even if “opportunity” looks more like desperate necessity right now. They’ll be fine.

All that said, the NCAA couldn’t care less about what is fair. They are interested in two things only: their own power and their image, independent of whether they deserve it. They care more about censoring mascots than about real problems, and they care more about appearing ethical than in being so. No other organization (well, outside politics and religion, at least) could as brazenly ignore its own rules, interfere in matters where it has no legitimate interest while reeking of its own self-proclaimed piety, or exercise power simply because it can.

The NCAA, in other words, is grandstanding. In other news, water is wet.

New York’s Cynical Pretense of an Anti-Cyber-Bullying Law

About thirty years ago, New York State, where I lived at the time, was considering raising the drinking age back to 21. The legal age had been dropped to 18 during the Vietnam War, as there wasn’t really a good rebuttal to the argument that it didn’t make sense that 19-year-olds could be drafted and sent half-way around the world to fight and die in an unpopular war, but they couldn’t have a beer.

When the war was over, however, that argument went away, and politicians of all stripes, pressured by Mothers Against Drunk Driving and other such organizations, felt the need to seem to be doing something about the fact that far too many people were being killed and injured because of drunk drivers. The key word here is seem. Raising the drinking age may well have been a net minus in terms of real safety: there was a short-term drop in drunk driving accidents, but that turns out to have been attributable to there being no new (legal) drinkers on the road for three years. As soon as that period was up, drunk driving rates went straight back to essentially where they had been.

And, of course, making drinking illegal for the majority of college students had little real effect on whether they drank, but rather on how they drank. Unable to have a legal drink, college students simply tagged alcohol on to an existing drug culture; the incidence of binge drinking skyrocketed.

Any reasonable person could have foreseen all this. That sentient human could also tell you how to radically reduce drunk driving: increase the penalties. $1000 fine, 7 days in jail, and loss of license for a year for a first offense; and no whining about how you’re not going to be able to get to work—you should have thought of that before you decided to start up a two-ton weapon. Ah, but that might mean that the politicians themselves and/or their fat-cat contributors could perhaps be inconvenienced after that three-martini lunch or one too many nightcaps at the country club.

Ah, but they could seem like they were trying to solve the problem if they agreed to raise the drinking age: post-adolescents seemed like a good group to pick on. They don’t vote very often, and they have no money to contribute to campaigns. And it certainly seems plausible that they’re a good part of the problem.

They weren’t, of course. In fact, the state commissioned a study to prove their case, which I heard about because my wife was working for the Cooperative Extension at the time. The study showed that, per mile driven, the people most likely to be driving drunk weren’t 18- to 20-year-olds at all, but women over 60. Oops. Needless to say, there was no attempt to restrict the drinking and/or driving habits of Aunt Matilda, and, for politically obvious reasons the report, as far as I know, was never made public. But facts seldom matter to politicians, and on they went, raising the drinking age and strutting about what public-spirited boys and girls they were.

This post isn’t really about the drinking age, of course, but about the phenomenon I just described: the felt need by some virtually all politicians to pretend to do something, even if any rational person can see through the charade. That’s why you couldn’t take nail clippers onto an airplane for several years after 9/11, for instance.

Today, we got another example. New York Governor Andrew Cuomo (right) signed a bill today that the Huffington Post describes in their headline as a “Strict Measure Fighting Cyber Bullying in Schools.”

Bullshit.

The bill is useless, in that it doesn’t actually criminalize the behavior it purports to address. There was apparently much hand-wringing about what to do if a cyber-bully is only 14 or 15. Seriously, how do these people feed themselves? You deal with a teenaged cyber-bully the same way you deal with the one who’s always picking fights or selling drugs or anything else illegal (of course, this would require the fortitude to actually make cyber-bullying illegal): you turn them over to the police. Nope, not in New York. Not even as an option, apparently.

The bill requires school employees to report to their administrations (N.B., not law enforcement) any incidents of bullying or harassment; of course, there’s a written report required, too. Schools are to be required to designate a particular administrator to receive these reports. So what we get is not merely another layer of bureaucracy, but an outright endorsement of the unseemly intrusion of schools into every aspect of their students’ lives. The bill’s proponents freely grant that most cyber-bullying happens outside school hours, when neither party is on school property. Any rational approach to the problem would start with the fact that what happens outside school is none of the school’s damned business, whether or not out-of-school behavior can be contorted to potentially cause “disruption in the learning environment,” or whatever the latest jargon might be.

Importantly, too, it’s only schools that are required to adopt this initiative. If you’re a teacher and one of your students experiences something that even the most paranoid parent or social worker might consider bullying, you’d better cover your ass and report it. If you’re the church youth minister, however, you’re under no such obligation. And since the gutless legislature couldn’t bring themselves to actually call cyber-bullying a crime, there’s really no role for the police.

This legislation, of course, purports to build bridges between the schools and law enforcement, but it really seeks to circumvent the latter. (See my recent commentary on the apparent reversals of jurisdictions between these two systems.)

Cyber-bullying is a real issue. Crafting a statute that creates substantive protections while at the same time allows for the free expression of ideas and avoids criminalizing petty grievances: this isn’t easy. A solution requires, at the very least, an honest appraisal of the situation and an honest analysis of the efficacy of the proposed solution. Needless to say, New York politicians provide neither.

70% of New York students think cyber-bullying should be a crime. Let’s start there. Then we turn legitimate cases over to the police, keep the schools out of kids’ private spheres, and make it clear that bullying in any form will not be tolerated. Yes, train teachers to be cognizant of warning signs, but those folks are paid to teach, not spy on their students.

When I first saw this story, I posted it on the Curmudgeon Central Facebook page, writing:

Forgive me if I think this is about as stupid a law as could be passed. Bullying still isn't a crime, but teachers (and apparently only teachers) are required to report it. All this does is further legitimize the intrusion of schools into students’ lives, provide one more form teachers have to fill out, absolve other adults from responsibility, circumvent the actual legal system, and provide false assurance that something is being done when, in fact, it isn’t. This is cynicism at its worst.

Yeah, pretty much.

The Jurisdictions Here are Backwards... Aren't They?

Both of these stories have been around a while, but I didn’t get a chance to post on them when they first appeared, and it seems to me that they fit together in a way that hasn’t yet been discussed by anyone whose commentary I’ve read.

First up is a story out of Houston. Diane Tran is an honors student at Willis High School. She works a full-time job and a part-time job, and goes to school full-time, taking advanced placement and dual-credit courses as a high school junior. She uses the money she earns to support two siblings; her parents divorced and both left town. Not surprisingly, even the most focused and responsible adolescent will sometimes buckle under that kind of pressure. Ms. Tran sometimes overslept, and missed school because of it.

Her case ended up in the Justice of the Peace court of Lanny Moriarty, who (of course) sentenced her to 24 hours in jail and a $100 fine for truancy. Yes, really. Moriarty, of course, is a moron, as only a Texas Republican can be. He sputtered “If you let one [truant student] run loose, what are you gonna do with the rest of ‘em? Let them go too?” Well, no, sir, you’re supposed to exercise a little judicial discretion: that’s why you have your cushy job, because you are alleged to have more critical thinking skills than a banana peel. Sorry to have over-estimated you. Because if you want to use someone like Ms. Tran as the vehicle by which to “send a lesson,” the only lesson in question is that you are a heartless douchebag who shouldn’t ever be allowed into a courtroom except as a defendant (again).

It didn’t take long for an on-line petition on Ms. Tran’s behalf to get started, initially with a goal of 5,000 signatures. That number was shattered within an hour or so. The petition closed with over 277,000 virtual signatures, when Moriarty, his profound unfitness for office now trumpeted around the world (the Internet is sometimes a wonderful thing), decided to cut his losses, reverse himself, and vacate the charges. Oh, did I mention the $100,000+ in donations to Ms. Tran?

Somehow I suspect that Mr. Moriarty might not run unopposed next time, as he did last. He’s not important enough to be this embarrassing.

The other case is from Indiana, where three 8th-grade girls were suspended for the remainder of the school year for joking (obviously) on Facebook about which of their classmates they’d like to kill. As Gavin Rose, an ACLU lawyer, points out:

The fact of the matter is that no reasonable person looking at this conversation would think that these girls were going to go out and inflict harm on anyone. If you make a legitimate threat against someone ... you don't follow it up with an emoticon.

Moreover, the “threats” were not directed at the presumed “victims,” as they were visible only to the Facebook friends of the girls. Of course, some officious mother called attention to the posts, and the Facebook conversation, conducted outside school hours, on personal rather than school computers, was seen by idiot administrators (apologies, as ever, for redundancy) as somehow disruptive to schoolwork—it would have to be, as even the megalomaniacs as Griffith Middle School don’t claim jurisdiction otherwise.

I am reminded of one of the first essays I wrote in this iteration of my blogging life, about Gloria Gadsden, who was suspended by her employer, East Stroudsburg State University, for posting the following two Facebook status updates: “Had a good day today, didn't want to kill even one student.:-) Now Friday was a different story ...” and “Does anyone know where I can find a very discrete [sic] hitman, it's been that kind of day.” No rational person would think there was any real threat to anyone involved here, but educational administrators at any level don’t necessarily meet that “rational person” threshold.

And so we have the ACLU filing a lawsuit to protect what they describe, quite accurately, as “teenage banter.” The salient part of the ACLU suit follows:

At no point in this conversation were the girls expressing any actual intentions to inflict harm on any person, nor were they threatening or attempting to intimidate any person. Rather, they were simply engaging in a casual conversation and joking with one another. A reasonable person would interpret the entirety of the conversation as made in jest, and would not interpret any portion of the conversation—or the conversation as a whole—as threatening or as a true threat.

The conversation did not cause an actual disruption at school, nor was it likely to or foreseeable that it would substantially disrupt the school or the educational environment. All three (3) girls attended school for the entire day after this conversation took place, and nothing out of the ordinary occurred. To their knowledge, the conversation was not even mentioned at school by any person, and it certainly was not mentioned by them.

But that, of course, didn’t stop the Amalgamated Hand-Wringers from punishing a trio of 8th-graders for the crime of acting like teenagers while on their own time.

As I wrote in April of 2010 about the Gadsden case,

I have an inkling that about midnight at some tech rehearsal somewhere along the line, I’ve probably told my stage manager not that I’d like to kill some actor or designer or props person, but that I was going to do so. I never followed through, though, curiously enough. I don’t recall ever posting on Facebook that I’d like to kill a student, a colleague, or a boss, but I might have… if I did I, like Prof. Gadsden, would have been careful to ensure that anyone with an IQ over room temperature would know I was joking. And I’m certain that I’ve volunteered to be the “discreet hitman” (I’d have spelled it correctly) for a friend. I was, however, never actually engaged to perform such duties. One of my favorite people, a former student, now a teacher, posted a Facebook status not long ago that suggested her desire to “beat someone to a pulp.” I even endorsed that sentiment because… wait for it… I’m not a moron, and I know—not just think, know—that she didn’t plan, literally, to commit assault.

We saw the same phenomenon play out in the case of Widener law professor Lawrence Connell, whose obviously hypothetical scenario about killing his dean got him in deep doo-doo. Inability to recognize humor, even humor we don’t think is terribly funny, is a crippling malady in an irony-rich society such as ours. It is sad that so many people in the education hierarchy seem to suffer from this affliction.

But there’s something else that ties these two cases together—apart, that is, from the rampant stupidity of the people with decision-making power. What I find fascinating is how the logical jurisdictions of the school system and the courts seem to have reversed. Once again, Gentle Reader, I remind you that I am not a lawyer, and that I’m arguing what should happen, not what current laws dictate. This is, in short, another When They Make Me Tsar© musing.

OK, so I wonder if I’m alone in this. When I first read about Diane Tran’s story, my first thought wasn’t that Lanny Moriarty is a cretinous yahoo, although that idea did occur pretty quickly. My first response, however, was to wonder what the hell Ms. Tran was doing in a courtroom at all. I suppose I had some dim recollection of students being charged with some sort of legal transgression for truancy and/or chronic tardiness, but it makes no sense. And, as an intriguing if perhaps over-wrought article by Sarah Seltzer on AlterNet suggests, the incarceration of teenagers for the most minor of transgressions ultimately independent of even minor-scale criminality poses a series of rather disturbing questions about American culture in general. In other words, even if we leave out the whole backstory to Ms. Tran’s case—say she’s just an ordinary kid with an ordinary family, getting ordinary grades—one is still tempted to wonder what the hell she’s doing in court.

Truancy is, in a reasonable universe, its own punishment. And if Ms. Tran can successfully complete her coursework without necessarily being in class every day, it’s really not a matter for the courts. True, some courses have legitimate attendance requirements, and the school should have the right to deny advancement to students who fail to comply with those rules. But I’m hard-pressed to understand a rationale for transferring the decision-making power out of the hands of the schools themselves.

Conversely, what happens outside school hours and outside school property is none of the school’s concern, yet there are myriad instances of absurd intrusions into students’ private lives: the Indiana case discussed here, the Illinois case of a principal’s prowling through a student’s Facebook account, the Kansas case of a school district going apoplectic because of a student’s Twitter feed… you get the picture.

If, for example, in the Indiana case, there really was a suspicion that this trio of (barely) adolescent girls was plotting some sort of violence, then the authorities—the criminal justice system, in other words—needed to be called in. But either that didn’t happen, or the cops took one look at the alleged “evidence,” laughed in the sniveling administrators’ faces, and told them to call back if and when there was anything a sane person would deem problematic. In my dream scenario, they also prescribed a couple of bowls of All-Bran.

When They Make Me Tsar©, in other words, school decisions will be made by schools, and non-school activities will be regulated only by legitimate law-enforcement authorities, and only to the extent that there is probable cause that a real crime has been committed or is about to be committed.

I know, I know. I’m a cockeyed optimist. But I’d rather be from South Pacific than Les Mis on this one.