Syracuse University, Penn State used different approaches

In a span of four days last fall, trustees at Syracuse University and Penn State hired outside law firms to investigate how each school handled sex abuse scandals on campus. Eight months later and one week apart, the reports went public.

That’s where the similarities end.

SU’s trustees maintained some control over the investigation into how SU handled allegations that assistant basketball coach Bernie Fine had molested a ballboy. The trustees co-authored a report that praises Chancellor Nancy Cantor and faults the university’s law firm for shortcomings in the university’s response.

Penn State’s trustees relinquished control over the investigation they launched into how Penn State handled child molestation allegations against retired assistant football coach Jerry Sandusky. The resulting report by an outside law firm blamed Penn State’s former president and three other administrators for covering up Sandusky’s crimes.

SU’s 52-page report was written and released by a special committee of three SU trustees—all alumni—and the independent law firm the trustees hired. Neither SU nor the Paul, Weiss, Rifkind, Wharton & Garrison law firm will explain what role each played.

Penn State’s 267-page report was written and released July 12 by the law firm the trustees hired, one headed by former FBI director Louis Freeh.

On July 5—in the middle of a traditional summer vacation week—SU posted its report online and the chancellor issued a press release. No one on the special committee, at the university, or Paul, Weiss, Rifkind, Wharton & Garrison will say anything more about how the report came together.

SU trustees’ apparent hand in its “independent” report opens the school up to criticism, according to several experts. But the experts said that SU’s process—not Penn State’s—is more typically followed by private institutions conducting internal investigations.

SU’s findings

SU’s report says the university should have done more to alert the campus and community about sex abuse allegations against Fine.

Overall, however, SU’s report says the university acted professionally and in good faith when it learned of allegations against Fine in 2005. That was when former SU ballboy Bobby Davis alleged Fine had molested him when he was a child.

Cantor made a “genuine and substantial effort” to find truth to Davis’ allegations and she did not try to sweep the allegations “under the rug,” according to the report.

The report says the university should have notified police about Davis’ claims. Four sentences later, the report says the university’s law firm, Bond Schoeneck & King—not Cantor—was responsible for not alerting police or advising someone at SU to do so.

The report says Cantor should have told SU trustees about the allegations but excuses her for failing to do that, saying the chancellor had no “intention or desire to conceal any aspect of this matter from the board.”

Penn State’s report

The Penn State report—and the sex abuse scandal it investigated—could not be more different.

Freeh’s report shreds Penn State leadership, citing four administrators—including former president Graham Spanier and head football coach Joe Paterno—who it says, showed total disregard for the safety of children for nearly 14 years. It also says the board of trustees did not ask the right questions or create a culture of accountability.

The report is damning for Penn State, a school with a rabid football fanbase violently shaken by the conviction of Sandusky on 45 counts of child sex abuse involving 10 victims.

For Penn State, the consequences continue to unfold. The NCAA announced Monday a batch of never-before-seen sanctions on Penn State that include a $60 million fine, 14 years worth of vacated wins and a loss of 10 scholarships.

The fallout at SU has been less severe. Federal authorities are investigating Fine, but he has not been charged with any crime. The university fired Fine, 66, Nov. 27 after 36 seasons. Four men accused Fine of sexual abuse, but two have recanted. Unlike at Penn State, there are no known witnesses to any wrongdoing by Fine.

The conclusive reports are different because the situations are different, say those paying attention to both scandals.

Different approaches

Freeh and Penn State have gone out of their way to make clear that Freeh’s report was independent and was released to the public and its board of trustees at the same time. Both were tactical moves, according to experts, to show Penn State’s commitment to transparency and reform.

SU chose a different route; one, those same experts say, that is more typical of an internal investigation by a university or a corporation.

The special committee tasked with determining if SU acted in good faith included three trustees. All are lawyers: committee Chairman Deryck Palmer, a New York City bankruptcy lawyer; board of trustees Chairman Richard Thompson, a health care attorney in Washington, D.C.; and board executive committee member Joanne Alper, a retired Virginia circuit court judge.

The special committee shared the report with SU’s Board of Trustees before making it public. Trustees were informed of the contents of the report in a conference call held July 5, the day the report was released, said emeritus, or non-voting, trustee Joyce Hergenhan.

Hergenhan said Palmer and attorneys from Paul, Weiss briefed the board on the report and took questions during the 90-minute meeting.

“They were very responsive to all the questions,” she said.

SU is not talking

Freeh made a statement and answered questions the morning his report was released. Hours later, Penn State’s new president, its board chair and vice chair also made public statements and answered reporters’ questions. The three Penn State officials said they took full responsibility for the failures cited in Freeh’s report, were “deeply ashamed” and were devoted to regaining the community’s trust.

Cantor issued a statement July 5 but has turned down repeated requests for interviews. So have the three SU trustees on the special committee and attorneys at Paul, Weiss.

SU officials have declined to reveal who wrote its report, if the board or anyone else at SU edited it, or specifics about how the investigation was conducted.

Spokesmen from SU and the New York City-based Paul, Weiss firm maintain all questions are answered in the report. Paul, Weiss offered an off-the-record interview, which the paper declined.

Thompson, president of SU’s board of trustees and a member of the special committee, declined to answer questions about how the committee’s review was conducted.

“We just feel the report is complete and speaks for itself,” said Thompson “There is not anything we are able to add.”

Hergenhan and several other emeritus trustees said the report was thorough.

“I’m pleased with the way Syracuse University handled it and the way the board of trustees handled it,” said trustee Michael Dritz.

What experts say

Attorney Gloria Allred and others The Post-Standard asked to read the report offer differing opinions.

Allred, who is representing original Fine accusers Davis and his stepbrother, Mike Lang, has called SU’s report “a whitewash” and “laughable.”

Michael Poliakoff, vice president for policy at the American Council of Trustees and Alumni, said SU’s report has credibility issues.

“There is clearly an appearance of a lack of independence when you have the governing board involved in the investigation rather than hiring a totally independent and well reputed figure to do it,” Poliakoff said. “The real need is for somebody to come in who is not going to be afraid to criticize everybody, including the board.”

Poliakoff noted that the State University of New York brought in former New York State Court of Appeals Justice Judith Kaye to independently investigate a basketball scandal at SUNY Binghamton.

Poliakoff said the SU trustees report took “a deferential tone” toward Cantor. As an example, he pointed out this passage: “Each member of the Special Committee has worked with the Chancellor, and knows that she is a person of utmost integrity who is open in her dealings with the trustees and others.”

“The tone of this report is not one that will inspire confidence in the independence of the investigation,” Poliakoff said.

But other experts praised SU’s effort.

Attorney David DuMouchel, of Detroit, led an investigation at Eastern Michigan University in 2007 into that school’s cover-up of the murder of a student. DuMouchel said SU smartly hired Paul, Weiss and the report was well-done.

Any time the “investigators” are tied to the organization they are examining, however, the door is open to criticism, DuMouchel said.

“Every internal investigation you do has this happen,” DuMouchel said. “Half the people aren’t going to like it. If you find misconduct the people that you’re pointing the finger at are going to say it’s a witch hunt. And if you find no misconduct, people go, ‘What the hell did you expect? Look who paid the bill.'”

Merrill Schwartz, director of research for the Association of Governing Boards of Universities and Colleges, said both of SU’s investigations—in 2005 and in 2012—are typical of others in higher education and the corporate world. It’s common for universities to hire their own attorneys to conduct investigations, or to appoint trustees to do it, she said.

“I would say that actions taken by the Syracuse board were a very reasonable and appropriate way to respond to their concerns,” said Schwartz, whose organization consists of more than 1,200 colleges and universities, including SU and Penn State.

Penn State’s response was highly unusual, Schwartz said.

“The board’s decision at Penn State to employ the former director of the FBI to work independently with a law firm to conduct the investigation is, I think, unprecedented,” she said. “The seriousness of the charges motivated the board to take this unprecedented action.”

A Boston public relations expert who specializes in crisis communication said allowing SU trustees to guide the report leaves questions about its accuracy and credibility.

“I suspect there will still be some lingering doubts about the objectivity of the report because three sitting trustees conducted it,” said Ashley McCown, president of Solomon McCown & Co. “You can look at that and wonder, ‘Was there some softening and shading in the language of the findings in deference to the chancellor?’ If you have a completely outside, objective person you don’t run the risk of anyone saying that.”

Faculty response

Some SU faculty members were skeptical of the report’s findings, including law and public policy professor Patrick Cihon.

He said the report does not make clear how much work the trustees did and how much was done by the law firm.

“That makes me wonder how much you can rely on this,” said Cihon, head of the SU chapter of the American Association of University Professors. “I’m not surprised they didn’t find any wrongdoing—I could have told you that before it started.”

Cihon was one of the faculty members who helped form a faculty and staff committee to examine SU’s policies on internal investigations. The head of that committee, political science professor Kristi Andersen, also questioned the use of trustees to conduct the review.

“In terms of the public perception, the way that SU did it still allows for the perception that the trustees are protecting the institution,” Andersen said.

Andersen said the faculty-staff committee plans to issue its own report by December.