The Post-Accountability Era

I’m pretty dubious about David Post’s argument that the NCAA levied against Penn State is unfair to Pennsylvania taxpayers, for the reasons I discussed earlier in the week: it proves to much. Presumably, this would also apply to a civil suit — when state institutions make actionable mistakes, the taxpayers for better of worse should be on the hook. (Of course, Post may well believe in the monarchical doctrines regrettably revived by the Rehnquist Court holding that states should in fact be immune from liability when they violate the rights of their citizens. These doctrines are, however, deeply wrong, as well as not actually being in the Constitution.)

Anyway, that’s the least of it. From there, we move on to the worst “Leave Joe Paterno Alloooonnnne!” argument ever. In addition to avoiding the implications of the fact that Curley, Schultz and Spanier reversed a decision to properly report Sandusky after speaking with Paterno, there’s this:

It’s worth thinking about. Would we really want Paterno to have anything to do with the investigations? He should’ve called the DA? “This is Joe Paterno – I’d like an update on the Sandusky investigation”?

I’m sure that Paterno had many motives for sticking his hands in his ears on this one – some of them being dis-honorable. Sandusky’s a pal – I don’t want hear this horrible stuff about him. It’s just horsing around, I’m sure – just like the priests. Etc.

But what was going on in Paterno’s mind is unknowable – the question is: what did he do, or not do, and was that decision morally defensible or not. I’m not so sure he didn’t do (not do) just want he should have (not) done. There were two investigations (conducted by people who should have uncovered Sandusky’s crimes, but didn’t) – one of which (2002) Paterno himself initiated by contacting University officials. It is not unreasonable or morally indefensible to say: the football coach’s role, at that point, is over. Perhaps he even did the right thing.

First of all, after McQueary’s eyewitness account, what investigation? Of course, it should have been the state, not Paterno, who conducted the investigation into Sandusky. It would be bad for Paterno to interfere with an ongoing state investigation. But there was no state investigation, because the allegations were covered up, at a minimum with Paterno’s assent and much more likely based on his active intervention. Paterno’s responsibility was to ensure that an appropriate investigation took place. It didn’t happen, he knew it wasn’t happening, and he did nothing about it. What his precise motives for this failure are are completely irrelevant.

And second, Paterno can’t be held accountable for his disastrous inaction because…he was too powerful? Are you shitting me? I know this increasingly represents what the rule of law now means de facto in this nation of ours, but one rarely hears it defended this explicitly. At least Bill James’s argument that Paterno was a weak, isolated figure is (while empirically wrong) internally consistent. This is just self-refuting.