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ESPN lawsuit brings ethical questions to light

| Friday, January 30, 2015

We’ve read ESPN’s lawsuit against Notre Dame, and it has answered only some of our questions.

Remaining legal questions will be debated and resolved at an upcoming trial. But whether ethical questions will be answered remains uncertain.

At stake legally is the classification of Notre Dame Security Police (NDSP) as a public or private agency. If public, NDSP would have to provide access to public records under Indiana law.

Indiana employs a Public Access Counselor (PAC) who provides non-binding legal advice on such matters, and three previous PAC advisory opinions classified private university security police as private entities, which are therefore not subject to Indiana public access law.

One of those opinions argues NDSP’s powers were granted “not to NDSP, but to ‘the governing board of an educational institution.’” Therefore, although NDSP exercises police powers granted by the state, it does not do so directly, which keeps the agency private.

Regardless of whether it is private or public and whatever way it acquired its privileges, NDSP officers have police powers, such as the ability to carry weapons and arrest suspected offenders. Those powers should not go unchecked.

The lawsuit cites NDSP’s website as stating the force “is fully authorized as a police agency by the State of Indiana” and officers “have the same legal authority as any other police officer in Indiana.”

If the department has the same powers as any other force in the state, why is it not subject to the same checks? Citizens have access to public documents in order to ensure public officials responsibly use their power to act faithfully in the name of communities and for their good.

We thank NDSP officers for their service to the community but question the organization’s desire for secrecy. If NDSP can make arrests, why can’t the public access those records, as they could in the case of an arrest made by the South Bend Police Department?

The policy keeps campus policing matters internal, but that means we who are being policed have no way to know how our complaints, investigations or disciplinary procedures are dealt with.

In response to a 2010 complaint to the PAC from The Chicago Tribune, the PAC writes the complainants sought access to records “pertaining to sexual assaults and/or witness tampering on the University of Notre Dame campus.”

That’s serious information that remains inaccessible to the public.

A community should trust its police force, but that does not mean having blind faith in its operations. Trust requires transparency and an appropriate balance of power. Communities trust their police forces because these agencies are staffed by good, diligent, honest people, who perform their job well and offer opportunities for citizens to pursue and find the answers to questions.

When police can broadly deny access to records, communities lose those channels for pursuing productive questions. When communities ask questions and police respond, however, everyone benefits.

The court might find NDSP’s refusal to make documents public lawful. But that doesn’t mean it’s healthy for our community.

We have tried but failed to think of a reason why withholding records would benefit the community more than releasing them would. What community interest does this serve that would outweigh the benefits of open communication between police and campus?

If there is such a reason or interest, we genuinely hope to hear it. We hope to move beyond asking what’s legal and how many loopholes we can count in the law. We hope to hear dialogue on what’s actually best for our campus and its safety.

Whether NDSP is public or private, Notre Dame needs to answer these questions.


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  • Juan

    This is a very good article. Coincidentally, some weeks ago I was thinking about why the NDSP can, for example, give traffic tickets on the roads near the University, as I thought they were purely a private police of the University. Now I know why, and definitely it is dangerous to have a private police force with full authority but no public oversight.

  • Dan Webster

    This is a well-reasoned and well-stated opinion. I’m in full agreement that I would like to hear the argument for privacy.

  • ramsj

    Keep in mind ESPN’s goal is to access “arrest” records of ND students and to publicize that information. Maybe NDSP’s desire to keep these records confidential is to protect the students, and not a simple CYA move? If ESPN is successful in their suit, will be interesting to see what records are publicized first and the reactions from the students then. As for me, I am all for the information being publicly available like any other arrest record.

  • David Taylor

    This is a thoughtfully written editorial. As stated, the issue has meaning beyond ESPN. Of note: NDSP shifted from being part of Student Affairs to being under Business Operations approximately four years ago. As such, NDSP has become a public relations arm of the university, keeping silent those issues that are unwanted. John Affleck Graves, the Executive Vice-President of Notre Dame, works to keep control of “the message” that he wants to convey, or stifle.

  • irishfbfan1

    Confidential records to protect the students. Notre Dame is a private school and supplies their students with their own staff for the safrty of the campus as a whole. Move on ESPN, Im sure there are subjects you can tackle about sports that would intrest the community, or maybe you just want to Sue sue sue. You are getting as bad as the general public wanting to sue anybody or everybody! Wow ESPN, tough times huh? Try minding your own damn business. Like it has been said 3 months ago “Fox Sports has not only closed the gap but has in many categories taken over the sports world. How convenient this topic comes now isnt it!” Wow!

  • John

    You make some good points but I do agree with other posters that there is an issue of student privacy to consider here. I also think that it’s a stretch to say that not being required to release records to media outlets is the same as having no checks and balances. The authorities higher than NDSP can get those records whenever they want. ESPN just doesn’t happen to have or need that authority. Another point of argument that I would make is source of funding. Is NDSP funded by tax dollars? If it is 100% privately funded by the University, that differentiates it from other police forces.