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Rule of Law

No Middle Ground: Exit Joe Paterno

November 10th, 2011 - 5:43 am

With a decision last night by the Penn State University board of trustees, Joe Paterno is gone.  In our modern disposable world, Joe Paterno has been a constant since 1966.   His sideline presence in State College was sure as the golden arrival of autumn.

Paterno won the 1982 and 1986 college football national championships.  He also had undefeated seasons in 1968, 1969 and 1973.  Under the screwy method for selecting the national champion back then, his teams were bypassed those three years.  In a just system, Paterno helmed five championships.  By any measure, Paterno occupied elite air shared only by the likes of Bear Bryant, Bernie Bierman and Frank Leahy.

Nothing elicits strong opinions like the facts which led to Paterno’s demise.  (Explicit and disturbing grand jury report here). I, for example, think the Supreme Court’s 5-4 decision in Kennedy v. Louisiana was wrong. It would not trouble me greatly to see Jerry Sandusky face the same fate Patrick Kennedy faced in Louisiana before another Kennedy, this one wearing robes, was the deciding vote to convert his death sentence to a life sentence for raping his eight-year-old stepdaughter. Anyone who rapes a child, in my view, should face the same fate as a murderer.  The Eighth Amendment cannot contain the penalties worthy for such behavior. But alas, it does.

On the other hand, I believe Paterno is a good man, perhaps too attached to a slower American era. In that time, when Sandusky’s behavior was so alien, so unfamiliar and sickening, one might rationalize and minimize it rather than act on it. That’s what landed the Catholic Church in so much trouble, but more on that in a moment.

I confess a bias. A few weeks after earning my Eagle Scout award in 1984, a letter arrived from Penn State. It was a hand signed note from Coach Paterno congratulating me and giving me a pair of tickets to a Penn State game. He noted he was the “recruiting chairman” for the Boy Scouts of America for Pennsylvania in the year I joined — 1979. Any boy who earned his Eagle from that class got a note from Joe and tickets.

If you have any familiarity with Scouting you know that most of what now ails our nation has an answer in Scouting. It is a good and important program, and Coach Joe made me especially proud that day to be a part of it.

I don’t purport to argue Paterno should stay on as coach, or is free from blame. But there are a couple of errors surrounding this mess. First of all, Paterno did report details of the events in the shower to Senior Vice President Gary Schultz. Schultz oversaw the Penn State police department, a real police force with arrest powers. Sure, Sandusky was seen lurking around PSU facilities for the next decade, but what did Schultz tell Paterno the outcome of Paterno’s report to him was? That is something the media quick to crucify Paterno should consider.

On the other hand, I heard a “legal expert” on WMAL-AM in Washington defend Paterno by saying in America “we have no duty to report crimes.” Wrong. When it comes to child sexual abuse, many states have abandoned that notion and imposed a duty to report. But Paterno didn’t have any legal obligation under Pennsylvania’s duty to report for a variety of reasons. For starters, Paterno wasn’t a witness. Nor was the child under his care or custody.

Paterno also appears to be one of the few people who truthfully testified to the grand jury in this mess. In fact, he will be the lead witness against the indicted athletic director Curley and Schultz. He told them the sexual nature of the report, and under oath they denied he told them.

Most troubling is that the Penn State police department had received a separate report about Sandusky in the showers with young boys. They “investigated” in the same way the Justice Department went after the New Black Panther Party — that is to say, in name only.

It is the moral obligation, however, that has led to Paterno’s exit. Even if Paterno did everything right under the law, one wonders what he thought of the heinous sins of Sandusky in the ensuing decade when spotting him on PSU facilities after getting rid of him as a coach in 1999. Perhaps Paterno was told by Schultz the case was investigated thoroughly and there was no merit to it. If that happened, then the Penn State board may well have acted rashly in firing Paterno last night. But where was Paterno’s outrage?

Did Paterno ever confront Sandsusky? Would you have?

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