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.”

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