Constitution Daily

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Penn State's civil liability may be tied to Supreme Court precedents

July 12, 2012 by Scott Bomboy


A damning internal investigation of Penn State and its former assistant coach Jerry Sandusky might lead to more awareness of the civil liability of some public universities.

The findings, released in a 267-page report, could lead to more civil lawsuits against Penn State. Ironically, Penn State might have avoided some or all civil liability if it had agreed to be constitutionally protected as part of Pennsylvania's official state-run school system.

The Freeh Report

The detailed report on the Sandusky scandal was compiled at the university’s request by former FBI director Louis Freeh, and it leaves no stone unturned.

The Freeh report includes e-mails and handwritten notes from former Penn State leaders that may have enabled Sandusky’s activities as a now-convicted child molester.

The Penn State Board of Trustees was expected to make a statement on Thursday afternoon, in the wake of the extraordinarily frank report it had commissioned.

The report blasts the late Joe Paterno and three other officials, and it also criticizes trustees for inaction after learning about the Sandusky grand jury.

No Sovereign Immunity?

The 11th Amendment to the Constitution established sovereign immunity for the states--basically, it protects states from being sued in federal court by citizens of other states (or of other nations).

The concept has survived multiple Supreme Court challenges. For example, the court's decision in Alden vs. Maine in 1999 reaffirmed the protection of states from civil lawsuits. The majority opinion was written by Justice Anthony Kennedy.

The 14 state-run universities in Pennsylvania enjoy sovereign immunity as part of the state government. That means they aren’t subject to civil lawsuits. But four schools are considered separate, state-related institutions: Pitt, Temple, Lincoln, and--you guessed it--Penn State.

Penn State may not be protected from civil lawsuits because of its past legal efforts to be a “state-related” school independent from the 100 percent state-run university system.

In November, the Legal Intelligencer said Penn State would have a tough task proving that it was protected.

"What was perhaps a trivial detail for some—that Penn State is a state-related university and not a member of the Pennsylvania System of Higher Education—now becomes a key distinction that could extend the university's liability into an eighth digit," the law journal said.

Penn State could pursue a legal case to argue that it is protected under sovereign immunity, although there are no signs of that happening yet.

The school also has said its insurance will cover civil liability claims, but McClatchy Newspapers recently reported that Penn State was battling its insurer over the issue.

Clery Act Violations

Freeh also found that the Penn State athletic program frequently violated the federal Clery Act, which requires schools to report sexual assault incidents as a condition of receiving federal financial aid.

Under the act, Penn State faces fines for each unreported incident involving Sandusky on campus.

The Freeh report says then-president Graham Spanier was unaware of the school's plans to comply with the Clery Act in November 2011, even though the act was passed in 1990.

Right to Know Law

A separate legal issue is Penn State’s exemption from the state’s Right to Know Law, which is Pennsylvania’s version of an open-reports law.

Journalists had demanded access to the same e-mails that Freeh had for his report, but Penn State remains shielded from providing e-mails to reporters because it has an exemption from the state’s Right to Know Law.

Instead, Freeh released his report, along with selected e-mails, to the public, the press, and Penn State trustees at the same time. (However, some of the internal e-mails were leaked to reporters in advance.)

Penn State and three other state-affiliated schools are exempt from much of the state’s Right to Know Law, because they are managed independently of the state-run school system.

In the early 1970s, Penn State officially became a"state-related" university that was not run by the Pennsylvania Higher Education System.

Spanier had fought to keep Penn State's Right to Know Law exemption, claiming it helped the school maintain research and development secrets, and kept confidential donors private.

Ironically, Penn State might pay a steep financial price for that decision.

The controversy over Penn State’s open records exemption has been hotly debated since November 2011, when Sandusky was arrested and charged with dozens of sex abuse counts.

He was convicted in June 2012 and will likely spend the rest of his life in prison.

Scott Bomboy is the editor-in-chief of Constitution Daily.

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