The Penn State crimes and Imperium in imperio: An Anti-Feudalism proposal

READER ALERT:  No scholarship happening here.  This post is a thought experiment in reaction to Penn State and less famous recent cases in the news (at the intersection of issues in criminal law and higher education law that I admittedly have not researched).  I will start with a concept, however, that is old-hat for me:  Imperium in imperio.

 “Imperium in imperio” was a stock phrase in eighteenth-century Anglo-American political talk.  It was uttered to insist that there cannot be a sovereign body within a sovereign body.  To allow otherwise, it was said, would be a “solecism” or a contradiction in terms.  This conventional wisdom was variously deployed for nationalist, centralizing, or anti-feudal projects.  The self-evident logic of indivisible sovereignty was undermined over time, of course, or else we wouldn’t have inherited the new kind of federalism that's embodied in the U.S. constitution (by which states can be sovereign over some subjects while the federal government is supreme over areas within its jurisdiction).

I count myself among those who appreciate that systems with divided sovereignty can (in the right contexts) be far superior to unitary systems.  I also count myself among those who value a strong civil society with a diverse range of relatively autonomous institutions.  (Cue here the reminder to self to read Prawfsblawger Paul Horwitz on First Amendment Institutions...) 

I’ve had the imperium in imperio slogan running through my head every time I read one of the Penn State stories.  My instinct is that we’ve allowed arrangements to develop that may be far too feudal when it comes to crimes in universities (and other institutions), and that the world might be a better place if we could bring back the old notion of imperium in imperio and stamp out some of the feudalism in criminal law enforcement.  Rape wouldn’t disappear, but universities might be less welcoming places for it than they are now.

Perhaps this institutional analysis sounds like a bloodless way to approach something so wrenching as the Penn State rapes?  Well it is.  But it is not my only response.  I share with many of you the judgments about individual culpability and the sorrow for the victims, and I do not mean to displace these.  I do, however, perceive an institutional dimension--that many of the failures of Penn State employees may have been facilitated by institutional factors that are common.  (Here I am giving away that the story of Penn State as Sports or Football Exceptionalism does not resonate with me, although I am persuaded by Mark DeGirolami’s post that sports-specific factors could be intensifying the more general institutional factors.)

The criminal imperium in imperio problem as I perceive it relates to the fact that most universities have (or act as if they have) their own regulatory channels for crimes like rape.  Most dramatically, as reported in this eye-opening article, there is a “parallel judicial universe... at many of the country’s colleges and universities” in which schools have their own police forces (not just private security guards but “sworn police officers who report to university authorities”).  Less dramatically, but probably more importantly, universities have formal and informal administrative channels for reporting, investigating, and/or sanctioning crimes like rape.

One might plausibly think that the more avenues there are for deterring, reporting, investigating, and sanctioning, then the better the law enforcement.  My intuition is that this has it backwards--that things may be worse to the extent that universities assume any investigatory and regulatory role vis-a-vis serious criminal conduct.  I won’t even try to prove this intuition.  I will only paint an impressionistic picture of some the problems I perceive:

(1) Lack of institutional competence:  School administrators are not trained in criminal investigation and enforcement.  To the extent that campus police serve under them, or operate in close enough consultation to get co-opted, the police mission is compromised.

(2) Conflicts of interest:  University channels for receiving and processing complaints can be riven with unacknowledged conflicts.  This is much more true for cases like Sandusky’s at Penn State where the alleged perpetrator is a star employee of the institution.  Schools may be closer to impartiality when both the complainant and accused are ordinary students, not employees.  However, even in the student-only cases, universities may define their interests (especially their reputational interests) in ways that conflict with law enforcement and equal protection.  (This may sometimes be true for the falsely accused like the Duke lacrosse players as well as for victim-complainants, though I suspect there may be, on average, an asymmetry--that accused students will have less of an interest than complainants in giving outside police departments a monopoly on criminal jurisdiction.)

(3) Institutional cohesion:  This may just be a special class of conflicts of interest.  But it is so often a theme in the cases that it seems worth singling out.  Universities develop a culture of high achievement and do-gooder-ism.  Anything or anyone who seems to stand for the proposition that the school is not perfect--that it may be flawed enough even to harbor a serious crime may be liable to strong discounting or demonizing.

(4) Universities are uniquely positioned to make things worse for victims (and the falsely accused) so long as these actors remain a part of campus life.  Schools may leak confidential information about a complaint, leading to discrediting rumors and harassment that may impair the student’s ability to go forward with a complaint or that may disrupt the student’s education (a pattern the Department of Education is now emphasizing as an endemic Title IX issue). 

(5) Lifeguard effect:  Individuals--whether victim complainants or third parties (like Paterno?) may believe that they have made an official crime report (or feel that they have minimally covered themselves) if they have reported to someone in the university structure.  They might have felt compelled to go to outside police if they had understood that the university could not receive a complaint and indeed might bury the information.

If we attack these problems with a strong imperium in imperio principle, everyone would understand that schools have no jurisdiction.  Schools would not be allowed to have their own police forces.  They could keep private security guards that are empowered (and obligated) to stop crimes in progress, but these guards would have to report crimes to the real police as soon as feasible. 

For administrative processes, it might not make sense to entirely prohibit parallel jurisdiction, but rather, to have something like an abstention principle:  Schools could still have their own disciplinary processes (for example, if they wanted to penalize assaults that meet a ‘preponderance’ standard but not ‘beyond a reasonable doubt’), but they could not get started on these processes until outside police had first crack at investigating.  Complainants, witnesses and third-parties with information would understand that reporting to a university official is not actually crime reporting.  Mandatory outside reporting laws would need to be expanded (designating more university personnel as mandatory reporters) and they would need to be much better enforced.

The imperium in imperio prohibition would apply to state universities (functionally in many ways the same as the private ones) as well as to private schools and the hybrids like Penn State (reportedly only a “state-sponsored” school which lacks state sovereign immunity).

This is my thought experiment:  Assuming my characterization of the institutional weaknesses and incentives of universities is on-target, would we be better off in the alternative world of government-only criminal jurisdiction?  A prohibition on imperium in imperio would only make sense if outside law enforcement is, on average, better than the schools at handling these cases.  Of course, some police will be resource-deprived, or reactionary, indifferent, corrupt, or just ignorant about how to respond appropriately to sexual crimes.  Some will be beholden to the local university power structure even if formally independent.  But as a matter of averages and incentive patterns, would there be gains in detection, prosecution, deterrence, and fair treatment of complainant and accused? 

Independent police might be superior to the schools because they wouldn’t be acting as judges in their own cases.  They might also have an institutional advantage if they are electorally accountable or subject to civilian review boards.  (In contrast, the schools are not electorally accountable.  And personal safety seems like the kind of issue for which market failure would be the norm even if there is better disclosure of crime statistics.) 

I’m not informed enough to end with a conclusion to my own thought experiment!  I can only say that I think the Penn State case (and other less famous cases) suggest that there are recurring institutional design flaws about university law enforcement that make it likely that we will see (or, more to the point, not see, but covertly experience) many more of these cases.