December 12, 2011

This scandal at Penn State involving Assistant Coach Jerry Sandusky

molesting young boys is just getting started. The Media loves these cases and are more than willing to concentrate the countries revulsion into what George Orwell called a “2 minute hate.” The only rules are that nobody is to notice it involved an adult male with a boy.

To recap what is alleged to have happened, back in 2002 a Graduate Assistant in the athletic department named Mike McCreary was in the Lasch Football Building at Penn State. He says he saw Assistant Coach Jerry Sandusky in the shower with a 10 year old boy. McCreary reported it to his boss, Head Coach Joe Paterno. McCreary later testified to a Grand Jury about what he saw in 2008. Paterno and the President of the University have both lost their jobs over this and more heads are expected to roll before it’s all over. Sandusky has been arrested and plead not guilty.

The rap against McCreary is that he should have gone to the police or perhaps to the university President instead of reporting it to Paterno. This is the part of the story I find interesting. Why didn’t McCreary do more at the time? My guess is it’s because he found himself in an impossible position where no matter what he did would end with disaster. Here are some circumstances to consider….

In 2002 Penn State had a University Policy Manual which was supposed to govern students and faculty. You can find it on line. One section AD-29 deals with “intolerance.” Intolerance is defined as “an attitude, feeling or belief” which leads someone to “intimidate, threaten or show contempt for other individuals…based on characteristics such as…sexual orientation..” This is because “As an educational institution, the University has a mandate to address problems of a society deeply ingrained with bias and prejudice.”

To enforce this policy or “mandate” Penn State had a “Report Hate” hotline as well as a web site where accusations of “intolerance” could

be forwarded to the school administration. Think Germany in 1938. Or any PC college campus in the United States in 2011.

How serious were they about this? In 2006 the women’s basketball coach Rene Portland was fined $10,000 and sent to diversity training after a ritual humiliation in front of the press. Her crime? She said publically that lesbianism  wouldn’t be allowed in her basketball program. In 2007 Coach Portland, one of the winningest coaches in the history of women’s sports [600 wins for Penn State], was fired.

OK, that was the attitude of Penn State and their official policy. Now consider the position of grad student McQueary. Graduate Assistants are the bottom of the academic totem pole. They have finished undergraduate school and have a bachelor’s degree. They’re working on an advanced degree and are sort of quasi University employees. Not quite faculty and not quite students. Their status and job security are exactly zero. That’s what McQueary was in 2002. When he confronted Sandusky  his choices were these: Physically attack Sandusky and get into a fight with a large, naked football coach and a naked boy in the shower room of the Football Building.[ Even saying it makes it sound crazy] Or he could skip school protocol and go directly to the police. If successful he’d be the one who brought down Coach Paterno and Penn State football. If Sandusky denied it he’d better hope the kid’s testimony holds up. He’d also better hope the police and Prosecutor are ready to go to charge based on his testimony and a 10 year olds. Remember the Michael Jackson trial? If they don’t support him he gets accused of “intolerance” and his career is over before it even begins. Either way he’s never going to be hired by another university. At the moment he saw this happen he became radioactive. Any time his name comes up on a job application he’s going to be tagged as “that Penn State guy.”

In negligence law we have what’s called the Emergency Doctrine. It says that if you are confronted with an emergency, not of your own making,

you can be forgiven making a wrong decision that you wouldn’t have made if it hadn’t been an emergency. In this case McQueary walked in on an emergency. It was something he neither anticipated nor had experienced before. His decision was to report what he saw to the Head Coach Joe Paterno and not the police.

The right decision? Probably not. Understandable? Probably yes.

Excusable? We’ll have to see. If I had to guess I’d say Mike McQueary was and is finished in football. Certainly big time football. Nobody is going to hire him or anybody else even remotely connected with this fiasco. He won’t be fired right away. The Whistleblower Protection Act will probably protect him from Penn State.  But he won’t be hired elsewhere either.  There always has to be a first person killed in a war.

In this case I think that first casualty was Mike McQueary the moment

he looked into that shower room.

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