INDIANAPOLIS — Notre Dame wrongly denied ESPN’s request for campus police records that should be subject to the same public scrutiny as other police departments, despite the school being a private institution, the sports network told an Indiana court of appeals Wednesday.
Since September 2014, the Bristol, Connecticut-based company has sought records about possible campus crimes that may involve student-athletes at the private school in northern Indiana, but to no avail.
“They arrest, search and interrogate,” ESPN attorney Maggie Smith said during 45 minutes of arguments. “These are not the actions of a library security guard who makes sure kids don’t take books.”
Two state officials, including the Republican attorney general, have said Notre Dame should follow Indiana’s public records laws. But the school has said – and reiterated Wednesday – that lawmakers never intended for private colleges to be subject to that law.
The issue is now before a three-judge panel of the Indiana Court of Appeals, which is considering an appeal of a 2015 lower-court ruling in Notre Dame’s favor. It also comes as the Legislature considers a bill that critics say would shelter the school from having to comply with the state’s public records law in the future. That measure is sponsored by Rep. Pat Bauer, a Democrat from South Bend, where the school is located.
ESPN sued the school in 2015, alleging it was violating Indiana’s public record laws by withholding police incident reports about possible campus crimes involving certain student-athletes. That came after state Access Counselor Luke Britt said in an advisory opinion in October 2014 that the university should follow Indiana’s public records laws and noted its police department’s powers come from the state of Indiana.
St. Joseph Superior Court Judge Steven Hostetler ruled in favor of Notre Dame, but agreed there were “persuasive reasons” for a change in law
On Wednesday, Smith said that ESPN has an interest in investigating whether student athletes have received deferential treatment by a police force that “selectively enforces criminal law” and has the authority to make arrests beyond college grounds.
Notre Dame attorney Damon Leichty told the court that even though state law sanctions the school’s police department, it is ultimately the Notre Dame board of trustees who have authority for the department – unlike Indiana University, which he characterized as an “arm of the state.”
“We haven’t heard what the General Assembly intended,” Chief Judge Nancy Vaidik said.
And Judge Rudolph Pyle questioned how Notre Dame’s police department “magically” fell under the purview of school trustees and not the state, noting that criminal cases stemming from Notre Dame police arrests list the state of Indiana as the authority behind the charges.
The bill in front of Indiana’s lawmakers merely adds into state law existing crime reporting requirements that are called for under the federal Cleary Act, said Hoosier State Press Association Director Steve Key.
The Cleary Act mandates all schools that receive federal funding – including Notre Dame – to release information about campus crimes, including time, date and types of offenses reported. But the law doesn’t require broader, illustrative details that are often included in police reports.
Smith says the bill amounts to a workaround that would give private colleges like Notre Dame “preferential treatment” because they could avoid releasing future police records if they lose the current case.
Notre Dame spokesman Paul Browne said the school is in full compliance with the Cleary Act and said Smith’s comment about the measure was “recklessly wrong.”
A ruling from the appeals court is expected “as soon as possible,” Vaidik said, though she did not provide a timeline.
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