Photo courtesy of UHND.com
ESPN’s recent Outside the Lines piece on the collusion between major college football and basketball programs and local police departments and prosecutors did a number on the University of Notre Dame. That number, to be precise, is four, as in four criminal incidents involving student athletes. You see, and this is reporter Paula Lavigne‘s major problem with Notre Dame, the University refused to turn over records from its Security Police Department (“NDSP”), leaving her with the very few incidents “owned,” as it were, by the South Bend Police.
In this post, I want to analyze the recent decision, now on appeal, by The Honorable Steven L. Hostetler in ESPN, Inc. and Paula Lavigne v. University of Notre Dame Security Police Department, a Department of the University of Notre Dame du Lac to explain why the University refused and why the Court ruled against ESPN. In so doing, I hope to continue discussing what “private” means to the nation’s most public of universities, a blurred line at points. Ms. Lavigne, for her part, makes it seem as though Judge Hostetler ruled despite himself, such is his “discomfort,” in her mind, with the world in which Notre Dame forces us all to live. Nothing in this article should be considered legal advice. This author has no professional relationship with any of the litigants.
At the heart of the lawsuit is an Indiana statute known as the Access to Public Records Act (“APRA”). APRA requires a “public agency” turn over records pursuant to a citizen’s request; that the burden is on the government to withhold. In Judge Hostetler’s words, “ESPN’s Complaint asks the Court to require Notre Dame to produce records of [the NDSP], which ESPN alleges is a ‘university police force’ [and is] required to produce the requested records pursuant to [APRA].” Because NDSP is authorized by a particular Indiana law that “authorizes Indiana’s private colleges and universities to appoint campus police officers [. . .],” “ESPN’s Complaint is really whether the University of Notre Dame, the entire University of Notre Dame, is now required to produce all of its records (such as academic, business and financial records) simply because it appoints campus police officers.”
Notre Dame successfully argued that the mere fact that it, a private university, appointed a police force did not magically transform it into a public agency or a state actor, for purposes of APRA. Ms. Lavigne wrote, pre-suit, to Luke Britt, Indiana’s Public Records Counselor, the State’s APRA interpreter, for his opinion on the matter. He concluded that NDSP was a “public law enforcement agency” and that it should release its records to ESPN pursunt to APRA. In her Outside the Lines piece, though, Ms. Lavigne failed to mention something that both Mr. Britt and Judge Hostetler mentioned: “[b]etween 2003 and 2011, three (3) different Public Access Counselors issued opinions to the effect that private colleges who appoint campus police officers are not pubic agencies under APRA.” While Britt felt that his predecessors misinterpreted their statutory directive and were wrong, Judge Hostetler construed Indiana’s Legislative silence as consent. He wrote, “[i]f the Legislature thought that those three (3) Public Access Counselors were wrong, and that private colleges and universities in Indiana were intended to be public agencies under APRA, the Legislature has had since 2003 to codify that intent. It has not done so.”
For Ms. Lavigne, and the Judge Hostetler who inhabits her pen, “‘that a private party can exercise police powers without providing to the public the access to records’ required by state law” causes “discomfort.” Ms. Lavigne, though, purposefully leaves out the rest: “[t]he Court is similarly uncomfortable with the notion that a private entity could be subject to APRA for all purposes without any clear expression that the Legislature intended such a result. Yet, ultimately, this case is not about ‘comfort.’ It is about what the statute says. Over an eight (8) year period from 2003-2011, three (3) different Public Access Counselors interpreted the statute, on three (3) separate occasions, as not applying to private colleges and universities that appoint police officers. Those opinions were correct when given, and they remain correct today.” (emphasis added).
For a reporter who admonishes her readers that “opinions just make a good soundbite,” her piece is little more than the kind of opinion thrown out by most (losing) litigants. The deeper inquiry, the more complicated inquiry, whether the University should be considered public and not private, is worth doing. But Ms. Lavigne would be well-advised to remember that silence betokens something, and that, while she, and the world, might construe silence, or refusal, according to their wits, “courts can only construe according to the law.”
Hating Hurricanes Since 1990.
Bayou Irish is a Jersey boy and Double Domer who fell under New Orleans' spell in 1995. He's been through Katrina and fourteen years in the Coast Guard, so we cut him some slack, mostly in the form of HLS-subsidized sazeracs. But, when he's not face down on the bar and communing with the ghosts of Faulkner and Capote at the Carousel Bar in the Hotel Monteleone, he's our man in SEC-land, doing his best to convince everyone around him that Graduation Success Rate is a better indicator of success than the number of MNC's won in the last five years.
- Finding Flaws in a Diamond: Clemson’s Rushing Offense - December 17, 2018
- Why Nobody Will Cotton to Notre Dame - December 3, 2018
- Irish Finish Regular Season Perfect 12-0 - November 26, 2018
May I suggest you forward this to ESPN’s ombudsman? At the very least, the fact that the records from Notre Dame’s and Michigan State’s were not as complete as the other schools should have excluded them from the article (with a caveat saying, “hey, we tried to get these schools’ records and were stopped in court. If androgens do get them, we will amend our story.”)
DJ: Thanks for reading and for commenting. I have to think that ESPN’s higher-ups were well-aware of the story and that they were at least complicit in the author’s slant. It’s frankly bizarre that ESPN, no great fan of ours, would include the Irish in a grouping of ten major football and basketball programs while leaving out Duke, Alabama, the entire Big XII, etc. If Ms. Lavigne’s purpose were to assail private universities for being able to form police departments while remaining private, that’s one thing. But to lose the battle, for now, over access and then spin it into a monstrous plot that sweeps PAC’s and hapless judges before it, is entirely another. The point of my post was to look at what the Notre Dame decision actually said, since it’s quite different than what ESPN featured. Ah, well. At least the press is free.
I honestly wish this did not apply to us or to any other university. IMO if you are a police agency comprising of sworn officers who possess the power to enforce law, you should be subject to APRA. Apparently the case law does not support this now, but I am extremely uncomfortable with this result.
Hi JD: Thanks for reading and for commenting. If you read the Court’s decision, and you can use the hyperlink in my post, you’ll see the discussion of that very point. There’s an Indiana law that explicitly allows private universities and colleges to establish police forces. Judge Hostetler, and case law, recognize that when a private police force acts as a police force, e.g. when it arrests someone, vis a constitutional issue, it’s public. The Court, and the three previous PAC’s, though, found no support in the law for the notion that a private university becomes public for all purposes simply because it establishes a police force. Stated another way, when NDSP arrested Tommy Rees, Tommy was immediately draped in the protections afforded by the constitutions of the State of Indiana and of the United States of America. The criminal prosecutor would be obligated to turn over all evidence to him. Tommy, though, would have no right to the minutes of the campus computer services meeting the night of his arrest. Make sense?