US Department of Education hopes to extract record fine against university for long-term history of sustained noncompliance, including in 2011 scandal
The Department of Education is poised to exact a record $2.4m fine to Penn State University for its mishandling of sexual assault incidents that include the infamous child sex abuse crimes committed by Jerry Sandusky.
The proposed fine, which will surpass the departments previous highest penalty for a case of this nature by more than $2m, was immediately hailed by victims advocates as a warning shot to other colleges.
This signals a significant change in how seriously the department is taking its enforcement responsibilities, said S Daniel Carter, a longtime campus safety advocate. It is a major shift that is important for all higher education institutions in the United States.
The fine comes nearly five years to the day after a child sex abuse scandal rocked the Penn State community with revelations that senior administrators had failed to act on reports that Sandusky, an assistant football coach, was sexually abusing young boys. The revelations, in November 2011, plunged Penn State into a federal criminal investigation. A separate, searing report by the former director of the FBI confirmed that Penn States president, its athletic director, the head of its campus police, and Joe Paterno, the schools revered football coach, were all exposed as having played key roles in a cover-up of Sanduskys crimes.
Amid the conflagration, the department of education quietly opened up an inquiry into whether Penn State officials had violated the Clery Act, a 1990 act of Congress that requires colleges to track and publicly disclose crimes that occur on campus or in the vicinity.
But of all the investigations into Penn State, said Carter, it may be this one that has the greatest implications for other schools which mishandle cases of sexual misconduct.
The significance is in the sheer breadth and detail of the investigation. Whereas previous education department probes have covered only a few years of alleged violations, the duration of Sanduskys crimes forced investigators to search for Clery Act infractions dating all the way back to 1998.
Investigators concluded that Penn State had committed 11 different violations from 1998 to 2011, ranging from a failure to maintain a daily crime log to a failure to issue timely warnings about a crime to the campus community. A major failure came when the school failed to notify the campus about the forthcoming charges against Sandusky.
In short, a man who was about to be charged with violent crimes against defenseless minors was free to roam the Penn State campus, as he pleased, the report said.
In the largest individual fine, the department has proposed penalizing Penn State $2,167,500 for a failure to properly classify reported incidents and disclose crime statistics from 2008-2011.
The overall fine was that large because in this case, the department uncovered a long-term history of sustained noncompliance, said Carter.
Penn State said the report was being reviewed and noted that since 2011 it has implemented robust training and collection processes under the Clery Act.
Carter could think of few other probes that cover such a long period of time. But the steep fine proposed for Penn State was not just a function of the span of time investigators covered.
This is the first major investigation to be concluded by a new education department division dedicated solely to probing Clery Act violations, he noted. And they could be putting their stamp on what Clery Act enforcement is going to look like in the years going forward, Carter said.
The departments report gave more detail about the accusations against Sandusky, who was sentenced to several decades in prison in late 2012. The report said Penn State officials disclosed in June that 45 people have claimed they were victims of Sandusky, who was convicted of abusing 10 boys.
The education department said Penn States police department concealed its investigation into a 1998 report involving Sandusky and a boy in a team shower. Police didnt record the matter on its daily crime log even though university policy required that the log describe the type, location and time of every criminal incident.
The report also disclosed new details about Paterno, including that he once had his secretary email university officials to say he would take care of disciplining players involved in a 2007 fight at an off-campus apartment building. Paterno, who was seen at the time as a disciplinarian, then texted two of the players to advise them on avoiding the campus adjudication process.
When the school attempted to reform its disciplinary system, the report said, Paterno resisted. What ensued was an overlong and dysfunctional standoff between the football program and student affairs officials with the president positioned somewhere between the two sides, the report said. Some members of the football team, aware of the conflicts, took the programs attitude toward the student conduct process as license to break the rules.
Carter said the record-shattering fine was in keeping with a trend: for the past two decades, the education department has steadily increased its penalties for schools that violate the Clery Act.
In the early 2000s, fines exceeding five figures were incredibly rare. Only twice between 2000 and 2010 did the department impose a six-figure penalty, and the median fine during that period was $55,000. Then, from 2011 to 2014, the department doubled the rate at which it slapped universities with six-figure penalties, and the median fine increased to $110,000.
Penn State could negotiate for a settlement amount of less than $2.4m. But the college is still likely to pay a record penalty. To date, the largest fine a college has paid for Clery Act violations is the $350,000 Eastern Michigan University paid in 2007.
When we determine that an institution is not upholding this obligation, then there must be consequences, said Ted Mitchell, undersecretary at the education department.