Presentation provided a review of the governance crisis at Penn State precipitated by the arrest of Mr. Sandusky and the termination of its President and Head Football Coach followed by unprecedented investigations and NCAA sanctions. The focus will be on the absence of faculty from any meaningful engagement in any of these events.

1. Shared Governance Under Stress: Reflections of the Chair
of the Penn State University Faculty Senate
Larry Catá Backer
W. Richard and Mary Eshelman Faculty Scholar & Professor
of Law, Professor of International Affairs 2012-13 Chair
University Faculty Senate, Pennsylvania State University
AAUP Conference
On the State of Higher Education
Session 4C June 13, 2013
Washington, D.C.

2. Introduction and Context

3. The Actors and Chain of Events
• Jerry Sandusky
• Curley and Schultz
• Spanier and Paterno
• Board of Trustees
• Freeh Group Report
• NAACP report and Sanctions
• Incorporating the Freeh Group
Recommendatons

4. Roadmap
• Nature of institutional errors
– Board of Trustees
– Administration
– Faculty
• Stress on Shared Governance
– Institutional impediments to faculty participation in effective
shared governance
• What the Future Brings
– Complicity with cronyism

5. Nature of Institutional Errors
• The Board of Trustees was not prepared
– Virtual ceding of any oversight authority
– Passive engagement; cronyism
• The administrative apparatus of a large university is not always
prepared for crisis, and tends to handle crisis badly.
– No planning; administrative isolation, developing a “yes person” top down
culture of control
• University governance structures that are based on a strong
President model are especially susceptible to mismanaging
crisis, especially where the crisis itself focuses on the office of the
President.
– Cult of personality issues
– Cronyism

6. Nature of Institutional Errors (2)
• Large bureaucracies resist nimbleness—they prefer gesture to
substantive changes if only because they are less drastic and
because they hold the promise of substituting formal for
functional changes.
– The appearance of action as a substitute for response—hamsters on a wheel
– Fosters lack of transparency and encourages stakeholders to check out of
governance participation
• Faculties, and faculty organizations, did not well serve the
interests of the university in this crisis when they assume that
servility is the highest form of service.
– Cultivation of cultures of servility
– Faculty conspicuously absent at key moments
– Back door whisper campaigns to discredit faculty or bully them into silence

7. Stress Points on Shared
Governance
• Transparency
– Informational
– engagement
• Senate Structure that enhances
Administrative Control
– Executive director reporting to the
Provost
– No participation in budget
• No protection against
retaliation or pressure
– Especially potent against contract
faculty on the Senate
• Process complexity
• Cronyism
– Insider senate leaders
– Rewards for behaving
– Marginalization of “rebels”
– Repeat players on all committees
• Solidarity Issues
– Faculty easy to divide
– Fear mongering by administrators
• Boards tend to see faculty as
employees
• Focus on low level
administrative tasks
overwhelm resources

8. What the Future Brings
• Need to move from focus on administration
related tasks to monitoring, assessment and
accountability
– Board performance
• Should report directly to board
– Administration performance
• 360 review of personnel
• Program review

9. What the Future Brings (2)
• Abandon focus on petty functionary governance
– Obsession with small issues;
• pay attention to administrative bloat
• Develop the forensic function
– Only real venue for discussing important issues of governance
• Protect faculty against retaliation and bullying
– Abandon reliance on judicial and constitutional law protection
– Require contractual or policy protection against retaliation
• Enhance transparency
– Informational transparency
– Engagement transparency

10. Questions?

11. Further Reading
• Backer, Larry Catá, Between Faculty, Administration, Board, State, and
Students: On the Relevance of a Faculty Senate in the Modern U.S.
University (February 10, 2013). Available at SSRN:
http://ssrn.com/abstract=2032779 or
http://dx.doi.org/10.2139/ssrn.2032779
• Remarks on Assuming Duties as Chair of the PSU University Faculty
Senate, April 24, 2012. Available
http://www.backerinlaw.com/Site/podcasts/speeches-and-
remarks/remarks-on-assuming-duties-as-chair-of-the-psu-university-
faculty-senate-april-24-2012/.