Penn State Scandal: Passing on Reforms in 2004 Solidified Culture of Secrecy

Penn State didn't have to be in the position it finds itself in now. It didn't have to be worrying about its future in college football or the NCAA as a whole. It could have taken the lead on transparency and accountability eight years ago.

Instead, it punted.

According to documents acquired by ESPN, Penn State's board of trustees—the governing body that was responsible for sacking president Graham Spanier and football coach Joe Paterno as the Sandusky scandal erupted, and which largely escaped blame in the ensuing Louis Freeh report—passed on an opportunity to strengthen its oversight of Penn State's administration in 2004.

What's worse, Spanier may be at the heart of the decision to skip the reforms.

Here's more from ESPN:

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Seven members of Penn State's board of trustees proposed sweeping reforms that would have strengthened the board's oversight power of Spanier and other campus leaders, including Paterno, according to documents obtained this week by "Outside the Lines." The group told the full board, "Decisions scrutinized with the benefit of hindsight need to withstand the test of being informed decisions."

But the board never took a vote on the proposal. Spanier and then-board chairwoman Cynthia Baldwin considered the reforms -- and [...] said no, three current trustees say.

Two trustees said Freeh's investigators had asked them and other trustees about the 2004 good-governance proposal and appeared determined to find out why it had not been adopted. One trustee also said Freeh's investigators told them they had obtained emails between Spanier and Baldwin and others discussing the merits of the trustees' proposal. The trustee also said Freeh's investigators said that the emails showed "Spanier and Baldwin put a stop" to the good-governance proposal. "They didn't want the added scrutiny," the trustee said.

"It was a big, missed opportunity," said Al Clemens, another longtime trustee. "Back in 2004, we just knew there wasn't enough accountability, and it seemed like a reasonable step to try to protect the university. It seemed like the right thing to do."

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Now, the board was being kept in the dark about all of this Sandusky business by Spanier. It had no reason to believe Spanier was up to anything sinister at the time—much less a cover-up of this magnitude. We can know that now—eight years, one grand jury investigation and one Freeh report after the fact. But back then, it wasn't something that would have even have been on the board's radar.

But this wasn't Spanier and Penn State's only attempt to avoid outside scrutiny. Aside from the obvious non-reporting of the alleged incidents in 1998 and 2001, remember that, thanks to Pennsylvania state law, Penn State and three other large universities are exempt from public records laws.

According to a lengthy Poynter.org report, Spanier was integral to the exemptions that the schools received in 2008 when Pennsylvania's records laws were being rewritten. His rationale at the time? To protect soda pop contracts and "intellectual property":

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Spanier pleaded in 2007 with state lawmakers to exempt schools from open records laws. “Subjecting Penn State to Right to Know does far more than feed the prurient interests of newspaper editors who are looking for a headline about how much Coach [Joe] Paterno makes,” testified Spanier, one of the school leaders most sharply rebuked in the Freeh report.

Spanier warned lawmakers at the time that if his school had to disclose its files to the public it could lose “lucrative partnerships” with vendors like Nike and Pepsi, which require non-disclosure. Spanier said revenue from intellectual property would fall because bidders would know too much. He said donors to the school want to remain anonymous and that the disclosures would lead to an erosion of privacy rights for people who work at the school or are mentioned in the files.

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It's clear that Spanier was so interested in shielding the Sandusky information from public sight that he probably wouldn't have fully complied with the 2004 reforms that would have given the board of trustees the power to oversee his business.

The Freeh report mentions multiple instances where Spanier had an opportunity to advise the board of what was going on and never did; to assume a rule change would have altered that course of history is to misunderstand human behavior.

But still, at the very least, it would have allowed Penn State to come a little closer to the light, and perhaps it could have brought some of this information into that light long before now. Preventing the Sandusky abuses was never going to happen, but it's entirely possible that the public would have learned about them in 2001 if Penn State were subject to normal record laws.

But hey, according to Spanier, Pepsi contracts are what really need to be protected at Penn State. Mission accomplished.