Constitution Daily

Smart conversation from the National Constitution Center

Title IX could lead to Penn State death penalty

July 16, 2012 by Scott Bomboy


An act that is part of the historic Title IX law for college sports could put a temporary end to Penn State’s legendary football program.

Last week, there were multiple calls in the media for the National Collegiate Athletic Association to shut down Penn State’s football program after the release of Louis Freeh’s internal investigation.

However, the NCAA might be limited in its power to impose a “death penalty” on Penn State’s football program. Such as act would shut down Penn State football for one or two years, and it would curtail its ability to offer scholarships.

Because Penn State doesn’t have a history of punishments for past NCAA violations, the death penalty is problematic for NCAA officials.

But the real power to shut down the Penn State football most likely lies in Washington, D.C., as part of a separate Department of Education investigation into Penn State.

Education Secretary Arne Duncan could cut all federal financial aid to Penn State as part of a Title IX amendment called the Clery Act.

It would be a crippling blow to the school, and such a threat could put Penn State in a position to take action against its own football program as a preventative measure.

The power of the Clery Act

Duncan has confirmed last year his department was investigating Penn State for Clery Act violations.

Title IX of the Education Amendments of 1972 is best-known as a civil rights law that requires equity for men and women in any educational program that receives federal money.

The Clery Act punishes colleges that don’t report crimes on or near campus, or crimes involving students. In the past, the punishments have been fines.

Link: Read Full Clery Act

The biggest fine on record is $357,000 at Eastern Michigan University when a murder went unreported to the campus population. The base fine was $27,500, but it became much larger due to multiple violations related to that one incident.

However, the alternative punishment under the Clery Act is the suspension of federal financial student aid to the offending university. The Education Department has never used its version of the death penalty by suspending aid to a school.

The Penn State internal investigation, led by Freeh, claimed four top Penn State officials--Joe Paterno, Graham Spanier, Gary Schultz and Tim Curley--knew about allegations involving former assistant football coach Jerry Sandusky as early as 1998.

Last month, Sandusky was convicted on 45 child-abuse counts. Schultz and Curley still face perjury charges.

In the Penn State case, eight of the 10 victims in Jerry Sandusky’s trial said they were assaulted on the Penn State campus by Sandusky.

One victim said he was assaulted 50 times by Sandusky on campus, local hotels or at Sandusky’s home.

In a 1998 incident involving another victim, Sandusky groped a boy in a Penn State gym shower. And in a 2001 shower incident, assistant coach Mike McQueary witnessed a sexual assault in a Penn State shower.

The report from Freeh included notes and e-mails that top Penn State officials knew of both incidents at the school. The first incident was investigated by local police. The second incident was never reported by school officials.

John Infante, an NCAA bylaws expert who also runs his own blog and writes for the NCAA, says Education Department sanctions could be in play.

"The death penalty for football and major Clery Act sanctions are the same thing, just different in degree," Infante wrote on his Twitter account. "Students have to transfer, people lose their jobs, the character of the institution changes for a long time if not forever."

“At this point I still think the odds of the school being shut down or crippled by the DOE is more likely,” Infante also said.

In a 2009 interview, a Penn State official, Anna Griswold, said the school disbursed $953 million in annual aid, half of which was in federal loans.

Penn State’s football program, in comparison, brings in a $50 million annual profit.

Odds against the death penalty (for now)

Despite a public outcry to shut down Penn State football, there would be considerable financial, legal and political barriers.

The enforcement of Clery Act fines have been challenged in court. A decision to cut off all or part of Penn State’s federal students’ financial aid could face legal challenges, especially on behalf of students.

And then there is the issue of financial aid death penalty. Would all federal financial aid be suspended to Penn State, or just some money?

Would the Education Department, as part of the Obama administration, take such a drastic act during an election year?

The NCAA and the federal government would also probably wait for the perjury trials involving Curley and Schultz to conclude.

A judge still hasn’t set a trial date, which could be months away and in the middle of football season.

There’s also prospect of the Pennsylvania attorney general indicting former Penn State president Spanier as part of the perjury case.

Another issue is the prospect of civil lawsuits against Penn State on the behalf of victims. Attorneys would likely discourage the death penalty because it could affect Penn State’s ability to compensate victims.

There is a chance the NCAA could cite a “lack of institutional control” at Penn State as grounds for shutting down the football program for one or two years.

More likely, the Penn State board of trustees could act to sanction the school. Under NCAA rules, self-imposed sanctions at colleges can be harsher that those issued by the NCAA.

The board commissioned the Freeh report and promised action. Under this scenario, Penn State would wait for the conclusion of the Curley and Schultz perjury trial, and issue its own sanctions for the following football season.

Those acts could include the suspension of the football program, a cut in football scholarships, and a ban on bowl appearances.

Self-sanctions could also head off any stricter actions by the Education Department or the NCAA.

Related Constitution Daily Stories

Constitution Check: Does failure to strike down a law mean it has been upheld? Portman seems to lead in vice presidential sweepstakes Famous Americans killed, involved in duels Burr vs. Hamilton: Behind the ultimate political feud

Sign up for our email newsletter