I haven’t thought much about Penn State’s November 2011 Jerry Sandusky scandal for a while. Not since the NCAA reversed itself in 2015 and voided its sanctions against Penn State and Joe Paterno, in acknowledgement of a rush to judgment driven by emotivism and vindictiveness. And not since the 2016 dismissal of felony conspiracy charges against Penn State’s former leadership, which was the most significant remaining issue with the potential to either confirm or refute the narrative of an institutional cover-up.

But I thought about the Sandusky scandal again today in light of the just-leaked “Report to the Board of Trustees of the Pennsylvania State University on the Freeh Report’s Flawed Methodology and Conclusions,” a minority report of the Penn State Board of Trustees. The 2012 Freeh Report was held up at the time of its release as an independent and trustworthy investigation of Penn State’s leadership. The Freeh Report’s conclusion of institutional coverup for the purpose of protecting the image of the university not only legitimized the Penn State Board of Trustees’s snap decision in November 2011 to fire then-Penn State President Graham Spanier and Coach Joe Paterno, but it also formed the basis for both devastating legal culpability for the victims of a former employee and for the NCAA’s decision to sanction the university and its student athletes.

It was in 2015 that Penn State’s new president Eric J. Barron dismissed the Freeh Report:

“There’s no doubt in my mind, Freeh steered everything as if he were a prosecutor trying to convince a court to take the case,” Barron said, adding that Freeh “very clearly paints a picture about every student, every faculty member, every staff member and every alum. And it’s absurd. It’s unwarranted. So from my viewpoint the Freeh report is not useful to make decisions.”

These criticisms of the Freeh Report echoed those of Dick Thornburgh, former U.S. Attorney General, who in 2013 had underscored that the Freeh Report constituted merely “raw speculation and unsupported opinion—not facts and evidence.” Malcolm Gladwell has said as much. Bob Costas has said as much.

What has been amazing to those who followed the Penn State and Jerry Sandusky scandals, though, is that the Penn State Board of Trustees (the same Board of Trustees that commissioned that report) has never formally accepted or rejected the Freeh Report’s findings. This, despite the fact that the Freeh Report functioned to confirm the worst possible, most malicious narrative about Penn State leadership’s handling of Jerry Sandusky, and despite the fact that the Freeh Report opened Penn State up to hundreds of millions of dollars in liability for Sandusky’s crimes. Hence the need for a minority of Penn State Trustees to produce the now-leaked “Report to the Board of Trustees of the Pennsylvania State University on the Freeh Report’s Flawed Methodology and Conclusions,” which the larger Penn State Board had attempted to suppress last year. The minority trustees shared this statement in light of yesterday’s leak:

“The fact is the Board’s tacit acceptance of the Freeh Report led to profound reputational damage, along with over $250 million in costs so far to Penn State. It is perplexing that the University clings to the conclusions of a report that has been criticized by so many, including Penn State President Eric Barron. We fervently believe that the best way forward is for the Board and the University to openly and thoughtfully consider the comprehensive and well-researched findings from our review so that we can finally come to an honest conclusion.”

Gary Sinderson of WMAJ, which leaked the minority report, puts the news in context:

The document, officially titled, “Report to the Board of Trustees of the Pennsylvania State University on the Freeh Report’s flawed methodology and conclusions” was completed and presented to the full trustee board in the summer of 2018.

The seven trustees who commissioned the report said the full board decided to not make its findings public.

In 2011, in the wake of the arrest of former assistant football coach Jerry Sandusky on charges that included involuntary deviate sexual intercourse, the university commissioned former FBI Director Louis Freeh to compile a report on the university’s involvement. Freeh was reportedly paid $8 million.

In its report, the group of seven former and current trustees concluded Penn State paid for an independent investigation that was not independent, fair or thorough.

The trustees’ report said the Freeh report investigators used deeply flawed methodology and the report is full of factual mistakes. Page 18 of the trustees’ report, titled “Use of coercion,” said the Freeh investigators “shouted, were insulting and demanded that interviewees give them specific information — such as — tell me Joe Paterno knew Sandusky was abusing kids.”

This report said some university employees who were interviewed were told cooperation was a key to keeping their jobs. In fact, one employee told the investigators of the Freeh report that he was fired for not cooperating.

The trustee’s report said the Freeh team did not interview many key figures in the Sandusky scandal, including Sandusky, Paterno and university administrators Tim Curley and Gary Schutz, as well as Mike McQueary.

The Freeh report said Penn State has a football culture problem. But the trustees’ report says Freeh had a conflict of interest with the NCAA, and that his company was attempting to be the organization’s go-to investigative firm.

The trustees’ report also contains a long discussion about the Freeh team’s claim of being independent, with the trustees’ report finding the Freeh team was actually sharing information with the NCAA, Penn State administrators and the prosecutors in the Sandusky case.

Freeh has long defended his work at Penn State, saying in the past, “Since 2015, these misguided alumni have been fighting rearguard action to turn the clocks back and resist the positive changes which the PSU students and faculty have fully embraced.” Freeh’s report included more than 100 recommended university policy changes, many of which were adopted by Penn State.

And Elissa Hill at Onward State writes on the report’s takeaways:

The seven current and former trustee signatories to the report are Ted Brown, Barb Doran, Bob Jubelirer, Anthony Lubrano, Ryan McCombie, Bill Oldsey, and Alice Pope. They used their access to this source information to develop the report that was published by WJAC, disputing the Freeh Report’s findings and calling the Board’s previous “tacit acceptance” of the Freeh Report “a fiduciary breach.”

The report lays out its findings in a pretty straightforward manner:

  • There’s no support for the Freeh Report’s conclusion that Paterno, Spanier, Curley, or Schultz knew of Sandusky’s sexual abuse of children.
  • There’s no support for the Freeh Report’s conclusion that Penn State’s culture was responsible for allowing Sandusky’s sexual abuse of children.
  • The independence of the Freeh Report was compromised by collaboration with the NCAA, then-Pennsylvania Governor Tom Corbett and the state attorney general, and members of the Board of Trustees.
  • The NCAA, Corbett, and the Board of Trustees influenced the Freeh Report with conflicts of interests.
  • The Freeh Report used “unreliable methods for conducting and analyzing interviews” upon which it based its conclusions.

The report from the small group of trustees rejects the Freeh Report, saying Freeh “did not fulfill his obligation to conduct an independent and comprehensive investigation.”

No serious person who has been paying attention to this story since November 2011 can still plausibly argue that Freeh conducted an “independent and comprehensive” investigation into Penn State’s role and culpability for Jerry Sandusky’s actions. No one seriously defends the Freeh Report except for those who paid for it and benefited from its since-repudiated findings—that is, no one seriously defends the Freeh Report except for the leadership of the Penn State Board of Trustees itself, which has a perpetual interest in discouraging any public acknowledgement of their own culpability for fiduciary breach, rush to judgment, and downright naiveté.