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Joe Paterno and the Limits of a Legal Blog

We live in an age of cheapened language — an age in which people become “superstars” at 15 and most every baseball game features an “awesome” hitter, pitcher or manager. But even allowing for the devaluation of language – adjusting for inflation, if you will – Joe Paterno is an icon.

Paterno has been head coach of the Penn State Nittany Lions since 1966. He has amassed the most wins in college football history. (I hate the pseudo-word “winningest,” but it is often applied to Joe Paterno.) Although still active, he has already been inducted into the College Football Hall of Fame. Paterno has led Penn State to two national championships (1982 and 1986) and five undefeated, untied seasons (1968, 1969, 1973, 1986, and 1994).

This is the career of the man being evaluated in the press and found wanting. This is the career of an icon.

In the developing story about former Penn State Defensive Coordinator and Assistant Coach Jerry Sandusky, the most prevalent question asked of Paterno has been:

“What did he know and when did he know it?”

Sandusky has been accused (and some say confessed) to unspeakable crimes — crimes which are regarded even in the caste system of prison as being reprehensible. Sandusky preyed on children. And for that, there are no gray areas. There can be no redemption. There are no mitigating circumstances.

Joseph Vincent Paterno, however, is a different story. He is a man who, by all accounts, has done a world of good for his university and for the young men in his charge over the past six decades. He was told, sources say, of inappropriate contact between Sandusky and a minor. I suspect that the extent of that contact and the question of exactly what Paterno was told will be fodder for a tabloid-focused dispute. But this much is clear: Paterno knew Sandusky victimized at least one child.

Paterno issued a statement saying that he “referred the matter to university administrators” when it came to his attention that one of his coaches witnessed Sandusky sexually abusing a child. That was the end of it…for Paterno, anyway.  Paterno continued to associate with Sandusky and demonstrated through his conduct that Sandusky was still a welcome and accepted fixture at Penn State.

As for the victim of the specific incident witnessed in 2002 and the victims of incidents yet to come — they were made no better for Paterno’s involvement…and that, in and of itself, is deeply disturbing.  Paterno failed those people. He failed them in a deep and profound way. He failed them in a way I’m betting he would pray no one would ever have failed him had it been Sandusky with his son.

Legally, he may be in the clear.  As a coach, he may be in the clear. But he failed as a man. And as a father, he is indictable. Such is the limit of a legal blog. Paterno seems to have complied with state law but he failed where it most counted.  He failed to comply with the value system he championed.

As a business lawyer, I encounter these issues much more often than you might imagine. Not the precise fact pattern of child abuse and the turning of a blind eye. Rather, I work with companies which encounter circumstances in which their legal duty and their moral duty follow different paths. Clients in these situations will inevitably ask me “what is our legal obligation?” And I tell them.

But I’m not doing my job – or at least the job I want to do – if we don’t also have a conversation about what should be done in addition to what has to be done. I believe very strongly that core values only mean something when it is inconvenient.

Earlier this week, I found myself working with a client to make one of its employees whole in a tax situation not of the company’s making. It was the right thing for my client to do, though it certainly had no legal obligation. Two weeks ago, I listened to the CEO of a company on the other side of the table explain why he would pay more rent than that called for in the signed lease because he recalled that, in a private conversation, he had actually agreed to more than the document reflected.  That’s the deal he made with my client when no one else was in the room and no one ever doubted that he would honor it.

In both of these instances, hard-nosed, rational business people made the decision to look beyond their legal obligations in order to remain true to their values. Such is the hallmark of great companies and people worth knowing.

With Paterno and the Penn State administration, we see the reverse. We see a person of status and a powerful institution rendering meaningless the values they claim to promote.  And when the stakes are at their highest, such as in a case involving the protection of children, the failure is writ large and is all the more damning.

The failure in this case warrants the fall of an icon.