Federal officials probe Penn State for possible Clery Act violations
By Jenna Johnson,
As Jerry Sandusky awaits sentencing on 45 child-sex-abuse convictions, several investigations continue to examine the role of Penn State University leaders in the scandal, including a probe of whether the university violated a federal campus-safety law.
Five days after the former assistant football coach was arrested in November, the U.S. Department of Education launched an investigation into Penn State’s compliance with the Clery Act, which requires prompt public alerts of safety threats, annual disclosure of crime statistics and other steps to protect campus communities.
Federal officials declined to discuss the scope of the investigation. But a Nov. 9 letter from the Education Department to Penn State requested a long list of documents, including logs of all incidents of crime reported to any campus security authority from 1998 to 2011.
“They’ve asked for absolutely everything,” said S. Daniel Carter, who has been a campus security advocate for more than two decades and works for a foundation started by families of victims of the 2007 Virginia Tech massacre. Carter said the Penn State investigation may be the department’s largest to date.
When federal officials investigate a school after a high-profile incident, they typically broaden the search to the school’s handling of safety issues over a number of years, according to records that the department has made public. Usually these probes cover one to three years, maybe as many as five or six — but nowhere near the 13 at issue with Penn State.
A Penn State spokesman said the university is cooperating but declined to comment further.
The Clery Act, signed into law in 1990, was named for Jeanne Clery, who was raped, tortured and murdered in 1986 in her dorm room at Lehigh University in Pennsylvania. The ultimate penalty under the law is loss of federal aid funding. Officials have never gone that far, instead imposing fines of up to $27,500 per violation.
In the past five years, the Education Department has ramped up Clery Act enforcement. It now has a staff dedicated solely to conducting investigations. It also has partnered with the FBI to audit a random sample of universities, a practice that has revealed widespread problems with crime data reporting and a lack of policies to ensure compliance.
In 2007, the department fined Eastern Michigan University $357,500 — the largest Clery Act penalty to date — for not notifying the campus community that a student had been murdered in her dorm room in December 2006 and that the killer was at large. Instead, school officials led the campus to believe that the student died of natural causes. Two months later, a man was arrested and charged with her rape and murder. Soon after, Eastern Michigan’s president and two top administrators were accused of covering up the crime and fired.
The fine was later reduced to $350,000. Of the 13 Clery Act violations found at the school, three were related to the 2006 murder. The others resulted from a review of 2003, 2004 and 2005 data.
In 2011, Virginia Tech was fined $55,000 for what federal officials said were failures to issue prompt alerts during a gunman’s rampage that left 32 people dead in April 2007. An administrative judge this year overturned the fine, ruling that the university had issued a timely warning. The final decision in that case rests with Education Secretary Arne Duncan.
At the heart of the Penn State case is this question: When school officials were alerted to Sandusky’s behavior, did they meet legal requirements for documenting those incidents and announcing any threats?
Last week, in a report the university had commissioned, former FBI director Louis Freeh used the word “failure” in describing Penn State’s implementation of the law. Specifically, Freeh noted:
●As of November, Penn State’s Clery Act policy was still in draft form and had not been formally implemented. Although the school offered training to employees starting in 2007, the athletic department did not participate.
“The football program, in particular, opted out of most of the University’s Clery Act, sexual abuse awareness and summer camp procedures training,” the report reads. “The Athletic Department was perceived by many in the Penn State community as ‘an island,’ where staff members lived by their own rules.”
Since then, the school says it has formalized policies and hired a full-time Clery Act compliance officer, among other actions.
●When a mother reported to university police in May 1998 that Sandusky had inappropriately touched her 11-year-old son in a Penn State locker room shower, notes were kept in an “ ‘Administrative Information’ file,” the report said, but never publicly documented.
Early in that investigation, Penn State Police Chief Thomas Harmon e-mailed Gary Schultz, a vice president who oversaw the police department, writing: “We’re going to hold off on making any crime log entry. At this point in time I can justify that decision because of the lack of clear evidence of a crime.” Charges were never filed.
The Clery Act requires recording all reported crimes, even those that do not result in charges.
●In 2001, assistant coach Mike McQueary says, he saw Sandusky sexually assault a young boy in a locker room shower. The next day, McQueary made a report to head coach Joe Paterno, who alerted other officials. They ultimately decided not to involve the police.
Three Penn State officials — Schultz, President Graham Spanier and Athletic Director Tim Curley — agreed over e-mail to advise Sandusky to seek “professional help” and bar him from bringing children to campus, among other things. In agreeing to this plan, Spanier wrote that the “only downside for us is if the message isn’t ‘heard’ and acted upon, and we then become vulnerable for not having reported it.”
Under the Clery Act, the two coaches and the athletic director are considered “campus security authorities” who are obligated to report serious incidents to police for inclusion in annual crime reports and to decide if a campus alert is necessary.While Schultz and Spanier might not have had the same legal obligation, the report said, “they should have ensured that the University was compliant.”
Alison Kiss, executive director of the Pennsylvania-based Clery Center for Security on Campus, which was started by Clery’s parents, said the Freeh report raised questions about Penn State’s compliance with the law. “You kept seeing a missed report and a victim. Another missed report, another victim,” Kiss said. University officials “have a lot on their plates, but they need to pay attention.”