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Attorney Andrew Shubin files civil rights sexual harassment and retaliation law suit on behalf of a female employee against Philipsburg Osceola School District

Penn State justice system scrutinized

UNIVERSITY PARK, Pa. — As Penn State University President Graham Spanier prepared to offer his annual State of the University address to an audience in the school’s Eisenhower Auditorium eight days ago, a line of nine students stood and turned their backs on him.

Eight wore T-shirts stamped with the word “guilty.” The ninth sported a football helmet and a T-shirt that read, “innocent.”

The message behind the theater: Penn State rushed students through its in-house justice system — threatening to suspend them from school, in some cases — for episodes that embarrassed the university. But it has yet to mete out sanctions against Penn State’s starting quarterback in a four-month-old assault case.

All the students involved have denied guilt. None of the cases has gone to a criminal trial.

In recent weeks, complaints about the student justice system have grown louder, with critics claiming the university denies students their Fifth Amendment rights, bars them from proper legal representation and hurries their cases to conclusion — all while their academic futures can hang in jeopardy.

Among the critics is State College lawyer Andrew Shubin, representing three students cleared of criminal charges but still facing university discipline for hanging a protest banner outside a National Governors Association reception on campus 2 1/2 months ago.

“The law’s clear. The university can act to discipline students, and their Fifth Amendment rights don’t have to be applied when the students are going through that disciplinary process,” Shubin said. “But that doesn’t mean that it’s wise or fair.”

“Education is your dearest asset, probably, and they can use a system like this to kick you out of school,” said Justin Leto, a Penn State student activist and computer engineering major from Malvern, Chester County.

It’s a system that university spokesman William Mahon defends as fair — and which he said has received “overwhelming” approval from Penn State students who have been disciplined in the past.

“The system’s a good system, in place for many years,” Mahon said.

But last week, the campus chapter of the American Civil Liberties Union packed 45 students into every available seat in a meeting room and was able to keep them there for two hours as they hashed through injustices that they claim runs through the university Office of Judicial Affairs, the campus’ in-house court system.

The Undergraduate Student Government has asked for a meeting this week with Judicial Affairs Director Joseph Puzycki, seeking explanations on how the student justice system operates. Student government is beginning to recognize that students — generally barred from having professional legal counsel at Judicial Affairs hearings — can wind up at a disadvantage, student President Matt Roan said.

In many instances, the complaints pit two high-profile cases against each other.

First is an assault case awaiting grand jury consideration in Hudson County, N.J., where Penn State starting quarterback Rashard Casey is charged with helping a former high school teammate kick a man into unconsciousness May 14 outside a Hoboken, N.J., nightclub. The man, it turned out, was an off-duty Hoboken police officer.

Casey has denied guilt.

Second is a melee in downtown State College two months ago, a smaller-scale replay of a riot two years ago, described by borough police as an alcohol-powered mob gone out of control.

Penn State officials say the university has taken no action against Casey because police in Hudson County have refused them details on the case, a charge that police there deny.

But of 28 people charged in the July riot — most for resisting arrest, failure to disperse, disorderly conduct or lesser charges — Penn State has charged 11 students through its Judicial Affairs office. Five of them have been suspended from school for a year or put on probation where they would be suspended if they got into more trouble.

The other six students are asking Judicial Affairs to reconsider their penalties, which include suspensions.

“We think they’re going to bend over backwards to find Rashard Casey innocent,” Leto said. “But they’ll do whatever it takes to find other people guilty.”

Others say, though, that this fight isn’t about preferential treatment for Casey.

“The university has acted properly in Rashard’s case,” said outgoing Centre County Public Defendant Jonathan Crisp, representing two of the people charged in the riot. “But the powers-that-be in the university haven’t acted properly in punishing students whose cases haven’t even been heard in the criminal courts yet.”

A prime case is student senator Martin Austermuhle, a senior international politics major facing trial for failing to disperse during the July riot.

Police say that, on a street clogged with rioters, in a situation already teetering out of control, Austermuhle refused repeated police orders to leave.

Austermuhle counters that he wasn’t a rioter, that he showed up to see what was going on, stopped one person who was trying to charge police and tried to aid another who was gasping and stumbling after getting a dose of police pepper spray.

Austermuhle hasn’t been scheduled for a criminal trial. His criminal defense is still coming together.

But the university has already decided to suspend him for two semesters, a suspension that could cost him his student visa and send him back to live with his family in Costa Rica. Austermuhle is appealing the penalty.

“I’m willing to take a penalty, but this indirect deportation is too much,” he said. “I made it clear that I love this community, I love the university. … I think [suspension] is good if something happens and the student engages in activity that poses a danger to other students. But I think they’re stretching it in the case of the riots.”

“What’s the point in delaying it if Judicial Affairs has met with police, viewed videos?” Mahon asked. “I’m not surprised that some people facing discipline would have complaints.”

Leto and others charge that Penn State is trying to make examples of the rioters, in part because the university was red-faced when its name was tied to drunken rioters at a time when school officials preach an anti-alcohol policy.

Others don’t take it lightly, either.

“The riot is troubling … because it happened two times now, and we don’t want it become part of the culture,” State College Borough Manager Peter Marshall said.

And at the county courthouse, where the future of the criminal prosecutions will be shaped at pretrial conferences Tuesday, District Attorney Ray Gricar talks about jail time for defendants — even though most are first-time offenders charged with misdemeanors.

“I’d like to see these people go to jail, but under current sentencing guidelines, it’s hard to ask a judge to send these people to jail,” he said. “If this was an isolated disorderly conduct on a street corner in Philipsburg or State College, it would probably be probation. But in the case of a riot, it’s not unreasonable to ask for jail time. … A message does have to be sent not to do this in the future.”

Whatever punishment is handed down in the county court, though, likely will come long after Penn State has doled out its penalties.

Even with enough added testimony from a criminal trial to bolster a student’s defense against sanctions, it might not matter, Leto said.

Leto was among the students charged with defiant trespass for hanging the banners during the National Governors Association conference. In a preliminary hearing last month, the criminal charge was dropped.

Leto was brought before Judicial Affairs officers and placed on deferred suspension.

Leto is appealing the ruling.