While many are waiting for the NCAA to step in and issue some sort of death penalty against Penn State for its lack of institutional control following the release of the Freeh report, which detailed a university-wide cover-up of sexual abuse by former assistant coach Jerry Sandusky, the harshest penalties could be coming from the Department of Education (DOE).
John Infante, who created bylawblog.com and used to work for NCAA.org, stated on Twitter that: "Dept. of Ed could prohibit Penn State from receiving federal student aid…. Prohibiting a school from receiving federal financial aid is the DOE's death penalty. But we're in "If not here, then where?" territory."
The issue at hand is Penn State's compliance (or lack thereof) with the Clery Act. The Clery Act requires that any public or private university that receives federal financial aid publicly report any crime on or near campus.
The federal government enacted the Clery Act in 1990 and Penn State adopted it in 1991 by designating a member of the university police to be the act's coordinator. However, according to the Freeh report, an independent investigation of the Penn State scandal by former FBI investigator Louis Freeh, Penn State did not train the officer to enforce the act until 2007, six years after Penn State graduate assistant Mike McQueary reported seeing Sandusky in the Penn State locker room showers with a young boy.
The Freeh report also stated that Penn State's "awareness and interest" in Clery Act compliance was "significantly lacking." And according to the report, no record of McQueary's observation of Sandusky in the shower with a young boy exists despite the fact that he reported the matter to coach Joe Paterno and subsequently athletic director Tim Curley and vice president Gary Schultz.
In fact, before 2007, the report directed by the board of trustees, says the officer in charge of compliance was unaware of the actual duties he and the university were to perform to be in compliance with the law. In an email to his supervisors, the officer alerted them to the problem, stating "We could get hurt really bad here."
While the university began to provide training to staff and officers post-2007, Freeh's report states that awareness and interest in compliance with the law "remained lacking throughout the university."
Training sessions, the report notes were "sporadic" and "not well attended."
As of November 2011 — 21 years after being signed into law — Penn State's Clery Act policy was still in draft form and had not been implemented.
The Department of Education has stated that it is looking into the findings from the Freeh report, but declined to make any other public comments about the matter. But if the DOE were to come down on Penn State, it could remove the university's accreditation and prohibit students from obtaining Pell Grants and federal student loans. In essence, it would cripple Penn State's ability to be a viable institution.
"The death penalty for football and major Clery Act sanctions are the same thing, just different in degree," Infante wrote on Twitter. "Students have to transfer, people lose their jobs, the character of the institution changes for a long time if not forever."
But that doesn't mean the NCAA is waiting for the DOE to act first. NCAA vice president for communications Bob Williams released a statement after the Freeh report came out stating that the NCAA was going to review the report before making a decision.
"Like everyone else, we are reviewing the final report for the first time today," Williams said. "As President Emmert wrote in his November 17th letter to Penn State President Rodney Erickson and reiterated this week, the university has four key questions, concerning compliance with institutional control and ethics policies, to which it now needs to respond. Penn State's response to the letter will inform our next steps, including whether or not to take further action. We expect Penn State's continued cooperation in our examination of these issues."
Lack of institutional control — whether the DOE or the NCAA declares it — would devastate Penn State. According to Infante, the DOE has never prohibited a school from receiving financial aid and the largest fine a school has ever received from the DOE is $350,000.
The NCAA has only issued the death penalty once — to SMU in 1986 — and it damaged the SMU football program for more than 20 years. SMU wasn't allowed to play football in 1987 and all of its home games in 1988 were cancelled. No bowl games until 1989 and it lost 55 scholarships over a four-year period. Only now is SMU starting to have winning seasons, play in bowl games and recruit high-level talent.
So while the release of the Freeh report might have signaled the end of Penn State's internal investigation, it might be the beginning of the end for Penn State football and the university.