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“The Need for Consistency”

By Gabrielle Speach
The Irish Rover
April 26, 2010 edition

Nearly a year has passed since pro-life activists protesting President Obama were arrested on Commencement Day last spring. Every member of the group, known as the ND88, currently faces prosecution from the University for trespassing. Pro-lifers outside the Notre Dame community have expressed anger toward the administration for pressing charges. Others have argued that “the principle of the thing” is at stake - those who protest on Notre Dame’s campus without a permit should be prosecuted.

The administration appears to agree with this “principle” argument. In a letter to Sycamore Project President William Dempsey, University President Father John Jenkins wrote, “The University cannot have one set of rules for causes we oppose, and another more lenient set of rules for causes we support. We have one consistent set of rules for demonstrations on campus—no matter what the cause.”

A recent discovery, published by the Sycamore Trust in their latest bulletin, undermines the University’s consistency in enforcing this policy. In March 2007, two other outside groups protested on Notre Dame’s campus. Members of these groups were also arrested. Unlike the ND88, these members were released from any charges.

The first group, known as Soulforce, travels on a distinctive “Equality Ride” to protest discrimination against homosexuality on college campuses (often those with Christian or Catholic affiliations). The group describes their vision as one of “freedom from religious and political oppression for Lesbian, Gay, Bisexual, Transgender, Queer, & Questioning People.” I spoke with Bill Carpenter and Jessica Kalup, two members of the Soulforce group that visited Notre Dame.

Kalup informed me that while the group was allowed to enter the Notre Dame campus, they were prohibited from distributing literature or demonstrating in any building besides LaFortune Student Center. When students began to request literature, members of the group handed out information. Additionally, Eddie Velasquez, an openly gay Notre Dame student who spent time with the group during their two days on campus, set up an impromptu panel discussion.

On the second day of the Equality Ride’s visit to Notre Dame, six Riders and Velasquez marched onto campus intending to carry a wreath to the Tom Dooley memorial. (According to the Soulforce website, Dooley was a homosexual military hero who was discharged under the “Don’t Ask, Don’t Tell” policy.) Two Riders were immediately arrested by Notre Dame Security Police (NDSP), and the other four were arrested when they informed NDSP personnel that they would continue to carry the wreath to the memorial.

Kalup informed me that the Riders were processed on campus, where NDSP took the group’s mug shots. The police issued citations to each member of the group, but these citations differed from those the group received on other campuses. Standard citations show a follow- up date, as well as a phone number and a courthouse to contact. Notre Dame’s citations did not have a follow-up date or a phone number, but informed those arrested to return to the Court “when notified.”

Discussing the arrests, Bill Carpenter said, “What happened after that was that nothing happened after that.” He added, “It was as though the citations had been written but never actually filed.” None of the group members were ever told to return to the Court.

The second group to protest on the University’s campus in March 2007 was an anti-ROTC group known as the Catholic Workers. I spoke to Father Jim Murphy, a member of the group who traveled to Notre Dame to protest the ROTC program. According to an Observer article from the time of the protest, about twenty members from the group came to campus. The group was unable to obtain a permit for a demonstration.

Fr. Murphy commented, “It was hard to do anything legal because permission was not granted.” Fr. Murphy told me one member of the group was detained and taken immediately to jail. After that member was released, neither he nor any of the other protestors were further prosecuted. Murphy said he was told not to return to campus. He received a letter saying that if he returned he would be liable to arrest and prosecution.

Given the inconsistency between dropping charges against members of Soulforce and the Catholic Workers’ group and pressing charges against the ND88, what will happen to the ND88 now? In a phone interview, ND88 defense lawyer and Notre Dame graduate Thomas Dixon informed me of two ways the defense might proceed in light of the Sycamore Trust’s recent bulletin.

The first method is an argument against discriminatory regulation of speech and protest content by NDSP. As state actors, NDSP cannot regulate protestors’ speech arbitrarily unless the state has a compelling interest in regulating that speech. On Commencement Day, the ND88 were joined by pro-Obama demonstrators (including several people who were neither students nor faculty) who wore shirts that said, “Obama? Fine by me.” While the ND88 did not have a permit to demonstrate on campus, neither did the pro-Obama demonstrators from outside the campus community. By law, NDSP should have escorted both the ND88 and the pro-Obama demonstrators off the campus.

Dixon said, “There are photographs where you can see my clients being arrested while pro-Obama demonstrators are standing by.” These photos can be viewed on the “Free the ND88” website. Dixon also told me about one client who stood by the Notre Dame Federal Credit Union on the day of Commencement. She was arrested by NDSP, but as they prepared to take her away, a group of pro-Obama demonstrators came to take her place. They were not arrested.

The second means of defenses to follow the Equal Protection Clause of the Fourteenth Amendment. According to that Amendment, prosecutors cannot selectively prosecute. In other words, the University cannot prosecute the ND88 for trespassing without a permit without also prosecuting the Soulforce and Catholic Worker groups for trespassing without a permit.

I preface my own opinion about the defense of the ND88 by recapping the events of last spring. The ND88 were not affiliated with NDResponse, the student-organized group that peacefully opposed the invitation by witnessing to the sanctity of human life. The group was openly supported by several tenured faculty members. Much of the media attention that should have been directed toward NDResponse was directed toward the ND88.

That being said, the ND88 should not fall victim to what now appears to be arbitrary prosecution by the administration. The University has pressed charges for over a year against pro-life trespassers after dropping charges against a group that condemns Church teaching on homosexuality and against a group that does not support the value of the long-standing ROTC program at Notre Dame. Given Fr. Jenkins’ statement that unlawful demonstrators must be treated equally, one would think the University would decide either to drop the charges or to prosecute Soulforce and the Catholic Workers.

I contacted Father Jenkins to see if the University might now seek a compromise with defense attorneys. I was directed to University spokesperson Dennis Brown, who said the University has no comment at this time.

It thus appears that even in light of this new discovery, the University has not decided whether it will cease to prosecute the ND88.This indecision reflects badly on the University’s recent reaffirmation of its pro-life stance. The new pro-life statement is a cause for celebration. Nevertheless, the double standard between the statement and the prosecution of pro-life trespassers detracts from the statement’s credibility.

The biggest question that remains unanswered is why the University continues to press these charges. I trust that the motivation is not a vindictive one. Although the University has continued to refuse requests to “free the ND88,” perhaps a desire to ensure a fair policy against trespassers will compel the administration to drop the charges.

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