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
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
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.