By Harvey Silverglate
The Boston Herald is a scrappy, politically conservative tabloid that normally rants and rails against excessive regulations and good-for-nothing government bureaucrats. Yet in an editorial on the Penn State child molestations, titled "Keeping campuses safe," the Herald called for a heavily expanded bureaucratic response. It excoriated "the football program staff" of Penn State who, quoting assertions in the Freeh Report, "had not been trained in their Clery Act responsibilities and most had never heard of the Clery Act," a 1990 federal statute requiring colleges and universities to report crimes that happen on or near their campuses. It is named for Jeanne Clery, a Lehigh University freshman raped and murdered in her dorm in 1986.
Statutes named after victims of rare but spectacularly awful crimes are especially likely to be overkill laws that cause unnecessary added bureaucracy and dismal unforeseen consequences. Yet here was the Herald, which knows better, on the side of more regulation when it came to universities. The army of advocates for increased administration in higher education's already bloated bureaucracies has landed on the Penn State scandal with considerable gusto. Self-interest motivates many of those who argue for more regulations and increased numbers of administrators at Penn State, including the increased use of professionals who provide "training" for campus student life administrators.
Lawyers Board the Gravy Train Too
The National Center for Higher Education Risk Management (NCHERM) is one such company, which universities hire to assess campus threats, including students who wear hoodies. NCHERM Managing Partner Brett Sokolow took the Sandusky scandal as an opportunity to express that he "sees the recent scandals at Penn State and Syracuse as emblematic of failures at the highest levels to embrace and implement risk management institutionally." Just over the horizon from 'institutionalized risk management' are increased campus bureaucracy and a new army of consultants.
The lawyers have jumped on the gravy train as well, arguing for the need for more in-house campus attorneys to prevent future scandals. Indeed, the website LeadingInHouse.com opined in a November 2011 essay titled "What if Penn States had in-house counsel in 2002?" that "events might have turned out differently and better for everyone involved" if Penn State had not waited until January 2010 to institute an Office of General Counsel.
Even the chairwoman of Penn State's board, Karen B. Peetz, at a news conference held shortly after the conviction of Sandusky and the release of the Freeh Report, stated a similarly stark take-away from her experience. "We should have been risk managers in a more active way," Peetz said.
Now let's just wait a minute. An army of lawyers and administrators who handle "risk" should not be necessary to assure that action be taken when the football coach is told that one of his assistants is raping young boys in the locker room shower. Anyone with any sort of functioning moral compass and sense of responsibility and professionalism would have known of his duty to put a stop to Sandusky's rampage. This is not the kind of stuff that should require training sessions and enlarged bureaucracies.
Let's Have No Criticism
But morality, not to mention common sense, plays little part in the functioning of our modern universities. The role of academic administrators these days - and this has been true for much of the past 25 years - is to prevent criticism of the institution. This has resulted in the growth of huge public relations infrastructures that team up with fund-raising ("development") infrastructures. General Counsels have taken charge of much that goes on at the modern university. At their order, universities operate largely on this theory of "risk reduction" - that is to say, things are done not because they are right, nor because they enhance the institution's educational or scholarly missions. Instead, they are done to protect the institution's reputation, to protect the jobs of the administrators (for whom general counsel works), to keep the institution from losing government funds, and to keep the institution from getting sued. Truth, principle, and the education and welfare of young people have little to do with it.
And campus administrations just keep expanding, even in difficult economic times. Today, administrators outnumber full-time faculty on campus. Forty years ago, there were roughly twice as many professors as administrators and staffers. Since then, the number of professors has increased by slightly more than 50%--roughly equivalent to growth in student enrollments--while the numbers of administrators and administrative staffers have increased by a whopping 85 and 240 percent, respectively. These are extraordinary developments that say much about the nature of our institutions of higher education today.
The modern administrative university is a business machine without a soul. It is an administrative fiefdom that operates outside of the sights and controls of its governing boards or its alumni, with the primary goal of avoiding criticism. This is what allowed, even encouraged, Penn State administrators to do all that they could to prevent knowledge of reports of Sandusky's ventures from reaching the light of day. (Can a serious claim be devised that says that Penn State administrators, given the reports coming in, had no idea what was happening?) This phenomenon also helps explain the otherwise inexplicable proliferation of speech codes on our campuses. Good PR requires restrictions of academic freedom so that reports of offended students do not mar the bucolic image of the campus. And Penn State does not stand alone here.
I've been dealing with colleges and universities since the start of my legal career in 1967. I've seen these structural changes begin to take place in the mid-1980s, some of which I've written about in The Shadow University: The Betrayal of Liberty on America's Campuses (co-authored with Alan Charles Kors and published in 1998). Penn State is just the tip of the iceberg. It happens that a pedophilia scandal was covered up by Penn State's administrators; Lord only knows what's being covered up at campuses elsewhere in order to protect the fiefdoms of administrators.
The Penn State scandal should be a wake-up call to our nation's universities, not to institutionalize more vigilant Clery Act compliance, not to hire more administrators, not to increase the frequency of risk assessment seminars, but to undo the tyranny of the toxic campus cultures that administrators have created with the quiet acquiescence of trustees. The problem is not the lack of lawyers, and risk reduction consultants. It's the fatally decrepit culture that infects our universities nationwide.
Harvey A. Silverglate, a Boston lawyer, is the co-founder and Chairman of the Board of The Foundation for Individual Rights in Education (FIRE), and the co-author, with Alan Charles Kors, of "The Shadow University: The Betrayal of Liberty on America's Campuses."