Reading Between the Lines

While Mechelle Voepel at ESPN.com had some harsh criticism of NCLR's announcement of the Harris-Portland settlement, Pat Griffin at the Women's Sports Foundation is reading it between the lines and trying to find some justice there.

Griffin is disappointed that the settlement terms are closed and that Portland gets to keep her job. But she suggests we can infer from the sealed terms that the financial payout to Harris must have been "generous," which "at the very least, the message to other institutions is that discrimination is expensive."

She also opines on that mysterious declaration in the press release that the university has taken additional steps “to further protect all students who have experienced discriminatory treatment at Penn State.”

What do these statements mean? This is where my friend the lawyer advised me to “read between the lines.” It is standard for the defendants in a case (Penn State and Rene Portland) to deny liability. What is important, I think is that Jen Harris and her lawyers from the NCLR are happy with the settlement. I don’t believe they would be happy if the settlement did not include significant agreements that can change the landscape of athletics. Did the university agree to a substantial financial settlement to make the lawsuit go away? Probably. Did they agree to more careful oversight of Portland’s practices and regular training for all staff, athletic and academic, at Penn State? I think that is what Doering’s quote is telling us.

I think Griffin (and her lawyer friend) are likely right that Penn State would not have agreed to favorable terms with respect to dollar amount and institutional reform if the settlement terms would be made public. Secret settlement terms might even be more effective than disclosed terms as deterrent to other schools contemplating whether or not to "enable" (Voepel's word) discriminatory conduct. As one university compliance officer recently put it, compliance is about managing risks. This means quantifying the risk associated with certain conduct in order to figure out if engaging in that conduct is worth it. Closed settlement terms in the Penn State case mean that university engaged in this calculation have less information with which to assess risk, and every reason to believe that the risks are quite high.

As for oversight and reform within Penn State's athletic department, well, we can only hope. As Griffin mentions in the column, she has presented there on the topic of homphobia in sport and it was not exactly well received. If she of all people can muster optimism about the settlement's potential to bring about institutional reform at Penn State, then maybe there is something to be optimistic about.