New Chapter In Notre Dame Controversy

Judge to Hear Arrested Pro-Lifers’ Allegations
of ‘Viewpoint Discrimination’

By Ann Carey
Our Sunday Visitor
May 16, 2010

A year after the University of Notre Dame’s controversial conferral of an honorary degree on pro-choice President Barack Obama, 88 pro-lifers arrested for trespassing when they came on campus to protest still face charges, despite pleas from the defendants, alumni and pro-life groups to the university to ask the prosecutor to drop the case.

Pressure on the university is increasing. The judge in the case ruled last month that the defendants can gather information from Notre Dame about why campus police arrested the pro-life demonstrators, but allowed pro-Obama and pro-choice demonstrators free movement. The previous judge assigned to the case had issued a stay order on discovery, but eventually recused herself after the defense argued possible bias, given that she is married to a longtime Notre Dame professor who has been outspokenly pro-choice.

Upping the ante, a local newspaper, the South Bend Tribune, reported earlier this month that its investigation of the defense’s allegation of bias did show “variations in how some protesters were handled at the university.”

Different Treatment

A day before the article appeared in print, Holy Cross Father John Jenkins, Notre Dame’s president, issued a 670-word statement defending the university’s actions in the case, reiterating its pro-life commitment, and calling the prosecutor’s actions against the protesters, known as the ND 88, “balanced and lenient.” He noted that some other pro-life protesters arrested around the commencement simply pleaded out and paid a small fee to cover court costs.

Thomas Brejcha, president and chief counsel of the Thomas More Society, a public interest law firm representing the ND 88, said the lifting of the stay on discovery is “very significant,” because he hopes it will produce evidence that Notre Dame engaged in “viewpoint discrimination” and singled out the ND 88 “for especially harsh treatment.”

Lead defense attorney Thomas Dixon explained that because the Notre Dame Security Police has full police powers in the state of Indiana, the police are in effect “state actors” when making arrests. Since those police are agents of the university, that makes Notre Dame subject to anti-discrimination laws, he said. Thus Dixon contends that Notre Dame violated his clients’ constitutional rights by arresting them but not other people demonstrating on campus at the same time.

The notice of deposition asked Notre Dame to respond to questions about who directed the campus police to arrest the pro-life protesters, and it asked for all communications on the case between Notre Dame and local civil authorities. The notice also sought information about some 2007 demonstrations in which gay rights and Catholic Worker demonstrators were arrested for trespassing at Notre Dame, but charges were not pursued.

‘Promising Upheaval’

The 2007 cases were investigated by the South Bend Tribune in its report. One Catholic Worker demonstrator was officially charged in 2007, but those charges were dropped. That person told the Tribune he spent one night in jail and was released the next day. Reporters interviewed one of six Soulforce demonstrators, who said the group was arrested by campus police and detained briefly before being driven to their hotel, and nothing further happened.

In his statement, Father Jenkins seemed to suggest that the pro-lifers arrested — who included a cassocked 88-year-old Catholic priest, former presidential candidate Alan Keyes, and Norma Corvey, the “Jane Roe” of Roe v. Wade — were particularly unruly, saying they “were led by individuals who threatened peace and order by promising upheaval on our campus.” But either way, he noted that the cases are in the county prosecutor’s hands, not the university’s.

Technically that’s true, said Charles Rice, a Notre Dame Law School professor emeritus and author of a book about the Notre Dame-Obama controversy, "What Happened To Notre Dame? (St. Augustine’s Press, $15). But Rice said if a complainant asks the prosecution to drop charges in a nonviolent case like this, there is “no way” the prosecutor would continue at the cost of hundreds of thousands of taxpayer dollars.

“This has been the dumbest thing I’ve seen in 40 years at Notre Dame … to single out the pro-life guys for sanctions and leave the other guys alone,” Rice said.

The judge has ruled that after discovery is complete, he may convene an evidentiary hearing to decide whether to grant the defense’s motion for dismissal of the cases.