Dershowitz: Legal Versus Moral in Penn State Scandal

Friday, 18 Nov 2011 11:33 AM

By Alan Dershowitz

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In my legal ethics class at Harvard Law School, a spontaneous debate broke out over whether Joe Paterno got a bad rap for being fired. As in any good law school class, all sides of the issue were presented vigorously and articulately.

First, we discussed whether Paterno had any legal obligation to report to the police what his assistant coach, Mike McQueary,told him he saw in the locker room. The virtually unanimous view was that he had no legal obligation to do anything — not even to do what he did, namely relay the conversation to his immediate superior, the director of athletics.

Unlike many European countries, most American states place no affirmative duty on citizens to report even crimes they have themselves seen, and certainly no duty to report crimes that others have told them about.

I’m not aware of any Pennsylvania law, in effect at the time of these events, that would have imposed any such legal duty on Paterno. The fact that he did report the conversation to his superiors would seem to immunize him from any legalliability, either criminal or civil.

This conclusion was based on what is currently in the media. There may be facts not known to the class that could change the legal landscape.

Several students immediately sought to probe the distinction between legal and moral obligations. This being a class on legal ethics, this distinction is often central to our discussions.

In the classroom, the issue often arises in the context of information confidentially given to a lawyer by his client. In such situations, the lawyer may have conflicting obligations: a legal obligation to confidentiality of his client; and a moral obligation to try to prevent continuing conduct that could harm others. But Paterno is not a lawyer, and McQueary was not his client.

He was free, therefore, to disclose the conversation to anyone he chose, and it seems likely that McQueary actually wanted him to turn the information over to the proper authority, so that Jerry Sandusky would not be able to continue doing what McQueary had seen him do.

The moral question, therefore, is whether Paterno did enough by simply conveying the information one step up in the hierarchy to the athletic director, and doing nothing further. Reasonable people can, and do, disagree over the answer to this question.

Some take the view that Penn State is a rigidly hierarchical organization, and that in such an organization, it is sufficient to report to one’s superior.

Others point out that the Catholic Church too, is a hierarchical organization, and when priests reported abuse to their bishops and the bishops reported the abuse up the hierarchy, the problem persisted.

Yet others take the view that if Penn State is a hierarchy like the Vatican, then Paterno was “the Pope,” and the buck stopped with him. He, not his superiors, was the person responsible for reporting the episode to the police.

That seems unfair in light of the fact that popes can’t be fired, and yet Paterno was discarded like a bag of putrid garbage, when it served the interests of the board of directors to distance themselves from him.

The president, who was also fired, was apparently the highest official to whom the information was transmitted, although it isn’t clear precisely what he was told by the time it got to him through the filter of several others.

It was the president who was ultimately responsible for the misguided decision to “resolve” the “problem” internally instead of reporting the crime to the police, as should have been done.

There is another factor, which may explain, if not justify, Paterno’s limited actions in going only to his immediate superior. Paterno and I come from roughly the same generation. We grew up during the period of McCarthyism, and my parents taught me, as his parents may well have taught him, that the most unforgiveable sin is to “snitch” on one’s friends and colleagues.

Being called a snitch was just about the worst thing anybody could say about someone who grew up in the 1940s and 1950s. Moreover when we grew up, no one understood the pervasiveness and seriousness of child abuse. Again this is not an excuse, any more than the Catholic Church’s long traditions of confidentiality, forgiveness and hierarchy, were an excuse for its inactions in the face of widespread childabuse. But it may help some to understand why a good man like Joe Paterno might fail to do what a younger generation of good men and women would naturally do when told about a childbeing abused by a former assistant coach.

I think the consensus of the class was that regardless of what the law did or did not require, Paterno should have done more than simply report to his superior and wash his hands of the matter — if, in fact, that’s all he did.

As the moral leader of Penn State athletics, he should have served as a role model for the current generation of students and athletics. At the very least, he should have followed up to see whether the school had done enough to avoid a recurrence. Perhaps if he had insisted that more be done beyond taking away Sandusky’s key and gym privileges, more would have been done.

All this is clear with the benefit of hindsight. But from the perspective of events as they unfolded, it is asking a lot of a football coach, even one as revered as Paterno, to have served as the primary or exclusive guardian of the morals of Penn State.

I believe, and here I’m speaking for myself and not my students, that, on the basis of the information now in the public sphere, Paterno was treated unfairly by the Penn Board.

His extraordinary contributions to the school — both on the field and off — should have been weighed in the balance and he should have been permitted to retire with dignity. His legacy should be that of a giant, who may have made one serious mistake of judgment, which seems clearer in retrospect than it probably was at the time it was made.

There are no perfect heroes in real life, just flawed human beings who should be judged on the totality oftheir merits and demerits. When so judged, Joe Pa is still a flawed hero in my eyes.

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