ESPN lawsuit brings ethical questions to light
Observer Editorial Board | 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.