Matt Zemek: Conversation on Penn St, Part 1

Matt Zemek: Conversation on the Penn State situation, Part 1

By Matt Zemek

Part 2 Thursday, Part 3 Friday

Penn State: The Adult Conversation

With all the shouts for a death penalty filling inches of column space, it's hard for the people of Penn State University – students, alumni, residents of State College – to feel that the national conversation is generating light instead of heat. The Freeh Report has been digested. It's now time to move the conversation forward.
Now that the weekend has come and gone, marking more than four days since the release of the Freeh Report on the Jerry Sandusky nightmare at Penn State, it's reasonable to say that the nation has poured out its anger and fury. These initial tidal waves of disgust and pitchfork-wielding passion were predictable, and it was no use to try to stand against them. However, now that these emotions have been expelled from the nation's psyche, it's time to begin a new conversation about Penn State, an adult conversation, a conversation that will acquire many different dimensions.

A conversation this nation and its families need to have.

Let me briefly establish the framework for this conversation. People who regularly put forth opinions and craft editorial commentaries (as I do) often get sucked into the trap of thinking that one must advance an opinion on an issue even when the facts do not lend themselves to a quick or easy conclusion. The "have a take, any take" mentality is pervasive, and I often fall into its clutches. What I occasionally manage to do – far less than I should – is to devote commentaries to the process of asking questions instead of arriving at premature answers. This is an art – and a way of seeing – Americans must rediscover… not just in the realm of sports, but in national politics (especially in the months before another presidential election) and contemporary culture.

Put yourself in the position of a Penn Stater today… not Graham Spanier or Tim Curley or Gary Schultz or any of the people who were aware of what Jerry Sandusky was doing in the late 1990s or early 2000s, but the citizens and students who attended the university, got a quality education, cheered at football games, and had no way of knowing what Joseph Vincent Paterno was doing behind the scenes. These people are not at fault for what happened. These people want their school to change – and be changed – as a result of this awful episode. These people want a substantive, productive exploration of the problems that led to the sexual abuse of minors on their campus, and to the protection of the man responsible for that heinous crime. Penn Staters have been thrust into a terrible, awful emotional environment. The weight of grief and heartbreak falls heavily on them. They deserve a conversation which respects them, and that kind of conversation is one that honestly confronts the scope and magnitude of this tragedy.

In order to generate a mature, adult discussion – one that truly surveys the entirety of the problem instead of firing off sound-bite-laden "insta-takes" and non-solution solutions – you have to ask questions and probe the relevant tension points before arriving at answers worthy of such a complex problem, situated in the midst of unspeakable emotional wreckage. The conversation has been framed. Let's now begin it in earnest, realizing that such a discussion cannot be contained to one column or one advancement of ideas.

The core of this conversation could start in many places, but a good structural basis for a meaningful exploration of the Penn State situation can be found in the fact that the NCAA does not have precise bylaws or standards in place for the punishment or policing of the offenses committed by administrators in State College.

There are two reasons for using the inadequacy of NCAA bylaws and standards as a starting point in this pursuit of meaning at Penn State. The first reason is that society will continue to arrive at moments when previous legal parameters or cultural understandings fail to encompass or predict the capacity of human persons to somehow reach uncharted territory.

The Founding Fathers of the United States could not have been able to reasonably predict how reproductive and contraceptive technologies would throw their country into chaos, 197 years after the Declaration of Independence. Modern life has attained such bewildering complexity, offering hundreds of nuanced situations that outstrip the language and imagination of texts such as the Bible and the United States Constitution. Various interpretations of these texts are valid, but in the absence of precise language that is specific to all the technologies (some wondrous, some horrifying) Americans have unleashed over time, it is a plain fact of life that humans must wrestle with texts. There is an undeniable, unpreventable push-and-pull, give-and-take dynamic at work here.

What does this mean? Many things, but most centrally, that societies need to step back every 50 or 80 or 120 years, take a deep breath, and revisit – en masse – the collection of issues surrounding them, realizing that modern technologies and emergent conceptualizations of problems have surpassed the limits of current legal understandings. The Catholic Church did this in the past 150 years with its two Vatican Councils. The United States did this with its constitutional convention (it desperately needs another one).

The NCAA requires just such a moment, and it's hard to imagine that Americans would find the notion the slightest bit objectionable or controversial. This leads to the second reason for beginning this conversation with an exploration of the NCAA's inadequacies: there's a difference between the NCAA that exists and the NCAA we wish for in our dreams.

Donald Rumsfeld, the former United States Secretary of Defense, caused a stir in this country when he told American soldiers in 2004 that "You go to war with the army you have--not the army you might want or wish to have at a later time." This is not just the story of the NCAA as well, but the story of various institutions as they lag behind technological and conceptual advancements, failing to remain fully relevant as arbiters of fundamental conflicts in society's inexorable forward march.

When this Penn State story first broke in November, the contours of today's debate were shaped. Back then, it was already apparent that two basic camps had formed on the matter of NCAA intervention. One camp felt that the NCAA had no business being involved in such an affair because law enforcement and federal agencies were going to put the lead actors in jail. The other camp felt that the NCAA had an "in" at Penn State because of a lack of institutional control.

Let's wait to try to answer the "LOIC" question. What's especially important to note in the wake of the Freeh Report and the evolving legal climate surrounding Penn State is that the situation is more complicated than first grasped in November of 2011. The possibility of United States Department of Education penalties related to non-compliance with the Clery Act will have much to say about how this case should be handled. The role of the Pennsylvania State Legislature and Governor Tom Corbett must also be factored into the larger political calculus. The competing forces at work here are too numerous to allow for a simple "yes or no" answer to the matter of NCAA intervention. College sports' governing body has to take its place in a long line, and certainly not at the front of it.

What lingers, then, in the debate about the NCAA's place in punishing Penn State is that there are questions about the organization's legal AND ethical standing. There are certainly some commentators who think the NCAA has no basis for intervening in the Penn State situation on both legal and ethical grounds, but for others, the matter isn't as clear-cut. There are some who think the NCAA should stay out of State College simply because it lacks the legal/statute-provided capacity for doing so. Other commentators think that it's allowable (given that the NCAA's bylaws offer a few "catch-all" provisions) to intervene, but hardly advisable, since the NCAA has looked foolish and draconian on matters of far lesser weight and severity in the recent past (Ohio State tattoos, the Reggie Bush affair at USC, and so on).

One can see how the NCAA is squarely immersed in two specific tensions on the Penn State matter. One tension is between legality and past actions as bases for and sources of institutional legitimacy. The other primary tension exists between the desire to abide by current, set-down statutes and – on the other hand – the desire to revise written-down policies so that justice may prevail in the future. These two tensions give rise to the conversations Americans need to begin in the wake of the Freeh Report, and that's what we'll explore tomorrow in part two of this series.