Notre Dame 88

By Charles E. Rice

Fr. Norman Weslin, O.S., at the complaint of Notre Dame, was arrested in May 2009 and charged as a criminal for peacefully entering the Notre Dame campus to offer his prayer of reparation for Notre Dame’s conferral of its highest honor on President Obama, the most relentlessly pro-abortion public official in the world.  The University refuses to ask the St. Joseph County prosecutor to drop the charges against Fr. Weslin and the others arrested, still known as the ND 88 although one, Linda Schmidt, died of cancer this past March.  Judge Michael P. Scopelitis, of St. Joseph Superior Court, recently issued two important orders in this case.

The first order denied the State’s motion to consolidate the cases of multiple defendants.  That motion would have denied each separate defendant his right to a separate jury trial.  The order did permit consolidation of the trials of twice-charged defendants on the separate offenses with which that defendant was charged; a defendant charged, for example, with trespass and disorderly conduct would therefore not have to appear for two trials.  Judge Scopelitis also denied the prosecution’s attempt to force each defendant to return to South Bend for each proceeding in the case, which would have coerced the defendants to abandon their defense.  Instead, the Judge permitted the defendants to participate by telephone in pre-trial conferences.

The second order upheld the subpoena issued by Thomas Dixon, ND ’84, ND Law School ’93, the able attorney for the ND88, to compel the pre-trial testimony by deposition of William W. Kirk, who was summarily fired by the University on June 14th from his position as Associate Vice-President for Residence Life.  The details of Bill Kirk’s firing were analyzed by Prof. David Solomon in the Irish Rover of August 31st.  Judge Scopelitis’ order is limited and permits defendants to “inquire as to why William Kirk no longer holds the position of Associate Vice-President, Resident Life, at the University of Notre Dame.”  The University and the prosecution had strenuously resisted any attempt to have Mr. Kirk deposed although he is willing to testify under subpoena and at the eventual trials of the ND88.  Nor is the University willing to have the President, Fr. John I. Jenkins, C.S.C., and relevant senior officials, above the Notre Dame Security Police, deposed.  Mr. Dixon wants such pre-trial testimony to explore the seriously discriminatory, illegal and unconstitutional character of the University’s actions against the ND88.

Judge Scopelitis’ orders move the case along.  But they unavoidably leave a few questions unresolved.  Why did the University try to prevent the deposition of Bill Kirk and why is it unwilling to agree to such testimony by senior University officials?  What is the University trying to hide?  Perhaps it is the unprecedented and discriminatory character of the University’s treatment of the ND88.  In his statement of April 30, 2010, Fr. Jenkins reiterated Notre Dame’s position that, “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.”   That statement is untrue.

On March 8-9, 2007, the Soulforce Equality Ride conducted a “gay rights” demonstration on the Notre Dame campus.  Six demonstrators were “arrested,” taken to the campus security building and photographed.  They were then driven by campus police to their hotel.  “We never heard another word,” said Delfin Bautista, one of the demonstrators.  “It was just a setup to get us off campus.”  Their trespass notices, incidentally, were stamped with the signature of William Kirk.  On March 26, 2007, Catholic Worker protestors demonstrated on campus against ROTC.  Nine trespass citations and three trespass notices were issued.  One demonstrator, George F. Arteaga, was taken to the county jail.  The next morning he was told by a guard, “We’re letting you go,” and was released.  The trespassing and disorderly conduct charges against him were dismissed by the prosecutor’s office and no further proceedings occurred against any of the demonstrators.

Those 2007 events were recounted in the South Bend Tribune, May 1, 2010, and in several very extensive letters written in February and March, 2010, to Fr. Jenkins and Dennis Brown, University Spokesman, by William H. Dempsey, President of the Sycamore Trust.

“I tracked down,” wrote Mr. Dempsey to Fr. Jenkins on March 11, 2010, “four persons who had been involved: two Catholic Workers (one a priest) and two Soulforce members.  They confirmed that the demonstrators had in fact been arrested—one read the citation to me—and that this was the last they had heard of the matter.”

Mr. Dempsey’s conclusion is an undeniable indictment of Notre Dame’s position:

“The short of it, then, is that Notre Dame is not enforcing ‘one consistent set of rules for demonstrations on campus—no matter the cause.’  Heretofore, it evidently has exercised a discretion appropriate to the circumstances.  The result of adopting an inflexible stance respecting the ND88 is truly bizarre.  The University acts with tolerance toward pro-gay and anti-military supporters but severity toward pro-life supporters.”

Let us assume that Fr. Jenkins had been unaware of what happened in 2007 on his watch.  But when he restated on April 30th the University’s claim of equal treatment for all, he was aware of Mr. Dempsey’s investigation and his demonstration of the falsity of that claim.  Yet he restated that claim without qualification and without any mention of those 2007 events. Neither Fr. Jenkins nor any other University official has apologized to Fr. Weslin and the ND88 for its misrepresentation of the University’s policy and for its disparate treatment of them.  Nor has Notre Dame sought to rectify that injustice by asking the prosecutor to drop the charges.

How can we explain this vindictive treatment of the ND88?  Permit me, first to tell you a little about those targets of the University’s wrath.  Fr. Weslin was 79 and in very poor health when he was arrested at Notre Dame and literally dragged off the campus on a pallet.  Born to poor Finnish immigrants in upper Michigan, he joined the Army after high school.  He converted from the Lutheran to the Catholic faith and married Mary Lou before earning his commission.  He became a paratrooper and rose to Lieutenant Colonel in the 82nd Airborne Division, earning his college degree en route.  When he retired in 1968, he and Mary Lou became active pro-lifers in Colorado.  In 1980, Mary Lou was killed by a young drunk driver whom Norman personally forgave.  Norman later was ordained as a Catholic priest, worked with Mother Teresa and devoted his life to the rescue of unborn children through peaceful, prayerful direct action at abortuaries.  In December, 1990, I was privileged to defend Fr. Weslin when he and his Lambs of Christ were arrested at the South Bend abortuary.  One does not have to agree with the tactic of direct, non-violent action at abortuaries to have the highest admiration, as I have, for Fr. Weslin and his associates.  He is a hero of the Faith.  Notre Dame should have given Fr. Weslin the Laetare Medal rather than throw him in jail.

The other “criminals” stigmatized by Notre Dame include many whom this university should honor rather than oppress.  One is Norma McCorvey, the plaintiff in Roe v. Wade, who has become pro-life and a Catholic actively trying to spread the word about abortion.  The ND88 include retired professors, retired military officers, mothers of many children, a Catholic nun in full habit, Christian pastors, several Ph.Ds, and Notre Dame grads.  They are “the salt of the earth.”  They came at their own expense, and not as part of any “conspiracy,” from 18 states.  They came because they love what Notre Dame claims to represent.  They themselves do represent it.  But it is doubtful that Notre Dame does so anymore.  The leaders of Notre Dame ought to be deeply ashamed of their continuing persecution of such people.

In response to criticism of its honoring of Obama and its persecution of the ND88,  Notre Dame has commendably taken pro-life initiatives, including Fr. Jenkins’ leading of a Notre Dame delegation to the March for Life.  It was the first official Notre Dame participation in that event since its inception in 1974.  In a discordant note, however, Fr. Jenkins went to the March while he was, by his own choice, the intransigent jailer, in effect, of pro-life witnesses whose “crime” was that they sought to pray, peacefully, at and for the University of Notre Dame.

Nothing in this article is meant to disparage those reactive pro-life initiatives Notre Dame has taken, including the recent appointment of Mary Daly as coordinator of University Life Initiatives.  Fr. Jenkins and other relevant Notre Dame officials are acting in what they see as the best interests of Notre Dame.  But to what extent is Notre Dame serious about its pro-life commitments?  Why do they impose such unrelenting persecution—an apt word—on pro-life witnesses, especially in light of their non-prosecution of pacifist and “gay rights” protestors and their reliance on the brazen falsehood that they “have one consistent set of rules for demonstrators on campus”?

Perhaps a clue may be found in Angelo Codevilla’s new book, “The Ruling Class.”  Dr. Codevilla, who received his M.A. at Notre Dame and is professor emeritus at Boston University, demonstrates that we are governed by a political and cultural “ruling class,” characterized by its “insistence that people other than themselves are intellectually and hence otherwise humanly inferior.”  (57-58.) A comparable ruling class dominates the academic world.  Since the misbegotten 1967 Land O’Lakes Declaration which asserted the autonomy of “Catholic” universities from Church teaching authority, Notre Dame has striven to become an accepted player on the periphery of that academic “ruling class.”   As former president Fr. Edward A. Malloy, C.S.C., said at the 1993 Board of Trustees meeting, “we think we should have greater input into national policy decisions and into ethical preparations for decisions.  We think we’re capable of operating in the same world as the Ivys, Stanford, Vanderbilt, Duke, Southern Cal and Northwestern.”  So. Bend Tribune, Feb. 15, 1993, p. B1.

Notre Dame appears to be governed by academic ruling class wannabes.  The operative religion of the academic and political establishments, however, is political correctness.  Activist opponents of ROTC and activist advocates of “gay rights” are politically correct.  Activist pro-lifers, such as Fr. Weslin and the ND88, are not.  For Notre Dame’s leaders to show respect for the ND88, let alone apologize to them and seek an end to their prosecution, as they ought, would be to touch a third rail of academic respectability.  It would not play well in the ruling academic circles.  What would they think of us at Harvard, Yale, etc?  Notre Dame has expressed a worthy desire to be a pro-life champion.  If they really mean it, the first step must be a public request by Notre Dame to the prosecutor to dismiss unconditionally the charges against the ND88.  Without such a rectification of an injustice inflicted by the University, Notre Dame’s otherwise commendable pro-life initiatives are merely cosmetic, a defensive covering of the institutional anatomy.  The ND88—and Notre Dame itself—deserve better.

Professor Charles E. Rice is Professor Emeritus on the faculty of Notre Dame Law School.

Reprinted with permission.

38 Responses to Notre Dame 88

  • Teresa says:

    What an outstanding article!! It would be nice if Catholic Universities actually lived up to “being Catholic” or that they lived out Catholic principles which are in line with Church teaching. Even those that are Traditional or conservative Catholic colleges find it very hard in some cases to actually walk-the-walk and not just talk-the-talk when it really counts (I know this from personal experience). I guess human nature takes over or something.

    The charges should have been dropped a long time ago. Shame on Notre Dame!

  • T.Shaw says:

    Catholic in name only.

    “We shall go before a higher tribunal – a tribunal where a Judge of infinite goodness, as well as infinite justice, will preside, and where many of the judgments of this world will be reversed.” Thomas Meagher, statement on sentencing by a saxon court.

    Matthew 12:34: “You brood of vipers, how can you who are evil say anything good? For out of the overflow of the heart the mouth speaks.”

  • Donald R. McClarey says:

    “Notre Dame appears to be governed by academic ruling class wannabes. The operative religion of the academic and political establishments, however, is political correctness. Activist opponents of ROTC and activist advocates of “gay rights” are politically correct. Activist pro-lifers, such as Fr. Weslin and the ND88, are not. For Notre Dame’s leaders to show respect for the ND88, let alone apologize to them and seek an end to their prosecution, as they ought, would be to touch a third rail of academic respectability. It would not play well in the ruling academic circles. What would they think of us at Harvard, Yale, etc?”

    Bingo! The powers that be at Notre Dame are defending their faith against the heretics of the Notre Dame 88, and that faith has nothing to do with Catholicism. It is a disgrace that every bishop in this country has not condemned this.

  • Anonymous says:

    Maybe ND simply wanted to protect its students and faculty. The mob had already shown its penchance for breaking the law — no one was capable of knowing whether the mob would become violent — it is not unheard of.

    ND’s “inconsistent” treatment is also not shocking. Given the history of trespassing and the fact that past light treatment did not stop it, ND may be sending a stronger message to protect the safety and security of its community.

    Mr. Rice should also know, as a lawyer, that Fr. Weslin’s health or his past deeds are irrelevant as to whether he broke the law. Surely, they are great rhetorical flourishes, but they are just that, a trick used to distract you from the fact that a law was willfully and knowingly ignored.

    Finally, Mr. Rice also should know, as a lawyer, that clients discourage employees from being deposed for all sorts of reasons — not necessarily related to whether they are “hiding” something. This is libelous.

  • Larry Giroux says:

    I was there, on campus for the mass and rosary. My daughter is one of the ND88. I walked out and joined the protesters for much of the day. The activities were all available on youtube. Only a deeply dishonest person could conceive of a “mob” anywhere near Notre Dame that day. Peace.

  • Anonymous says:

    What about the 87 other people? Did ND and the police know the intentions of each of them? Frankly, I think it’s despicable that you use Fr. Weslin as your shield. Also, I missed the memo where we excuse the aged and people who have done otherwise good things in their lives for breaking the law. These people made conscious decisions to trespass. They could have stayed outside the university and gotten their point across. Rather, they wanted to make a spectable and get on TV, which they succeeded in doing. They now need to be adults and accept responsibility for their transgressions.

    Also, just because a person is 80, just because someone is a preist, just because someone is praying, doesn’t mean they can’t be violent. People pray to their god all the time before committing acts of violence — that cannot be denied. People who are 80 commit acts of violence, and we certainly have learned that priests are not above committing acts of violence. I would also point out that Fr. Weslin was just one person — there were many more.

    To an objective observer, and clearly you are not, these people trespassed. They were arrested. End of story. Any excuse you want to make is a consequence of your relgious and political views–which, of course, is your right and fine. Just don’t pretend it’s anything other than that.

    That day was supposed to be about the graduates celebrating their accomplishment. These clowns made it about their cause, which is a shame.

  • Donald R. McClarey says:

    ” Only a deeply dishonest person could conceive of a “mob” anywhere near Notre Dame that day. Peace.”

    As our anonymous commenter is amply demonstrating. The Notre Dame 88 are being persecuted because they are a standing rebuke to the Notre Dame administration honoring the most pro-abortion president in our history. All the obfuscation in the world cannot disguise that very simple fact. My congratulations Larry on the fine job you obviously did in raising your daughter.

  • Anonymous says:

    In case Mr. McClarey does not have acces to a dictionary, please see the definition of “mob” and “dishonest.”

    Definition of MOB
    1: a large or disorderly crowd; especially : one bent on riotous or destructive action
    2: the lower classes of a community : masses, rabble
    3chiefly Australian : a flock, drove, or herd of animals
    4: a criminal set : gang; especially often capitalized
    5: a group of people : crowd

    Definition of DISHONEST
    Characterized by lack of truth, honesty, or trustworthiness : unfair, deceptive

    Here is an entry on ad hominem attacks — often resorted to by those who cannot win an argument on the mertis: http://en.wikipedia.org/wiki/Ad_hominem

    Let me get this straight, a group of 88 religious zealots trespass onto private property on which the President of the United States is speaking and you are surprised/indignant they were arrested? Seriously?

    If you can, deep in your heart say that you would be defending, with the same zealousness, people who were protesting the “right to choose” or Islamic protestors, then, maybe I would believe you.

    It is sad that people turned a day of celebration for the graduates into a political side show. They should be ashamed of themselves.

  • Dale Price says:

    a group of 88 religious zealots

    Thank God Notre Dame is doing its damnedest stamp out religious zeal.

    Then again, it’s been doing that since the Land O’ Lakes Statement, so I guess it’s consistent.

    Oh, and nice job of hiding behind “the graduates,” anonymous ND admin guy.

    It’s this sort of mindset that reminds me why I’m recommending that my children go to an avowedly secular college as opposed to a Land O’ Lakes one. Sure, they’ll hate your faith at a state university, but at least they won’t wear a cloak of Catholic sanctimony while doing it.

    Better to be stabbed in the chest than the back.

  • Art Deco says:

    Let me get this straight, a group of 88 religious zealots trespass onto private property on which the President of the United States is speaking and you are surprised/indignant they were arrested? Seriously?

    There are over 11,000 students at Notre Dame. Add the faculty and the staff and you have 15,000 people on the campus as a matter of course. Then you add in any visitors that day. The ’88 religious zealots’ will increase the size of the campus population by 0.6%. The rathskellar at the campus I know best will have that many people present around noontime, and that particular institution is one-quarter the size of Notre Dame.

    You might also note that his primary complaint is not that they were arrested, but that the institution has persisted in pressing charges when they had not done so in previous circumstances, and lied publicly about their resons for so doing.

  • Gabriel Austin says:

    Just for the kind of clarity and exactness which is typical of Catholic thought, it is not Notre Dame which is prosecuting the ND88. It is Fr. Jenkins – personally. The buck stops at his desk. He hides behind the institution. Let us make an analogy – he is hiding behind the skirts of Our Lady.

  • Donald R. McClarey says:

    I looked up your ip address anonymous, and I really hope that you are not an attorney at the law firm you are e-mailing from, because you are not very good at arguing in comboxes and I truly would hate to be paying you to do so in court. The firm that you are e-mailing from seems to have quite a few contacts with Notre Dame. I wonder if you are doing this on your own time, or if someone at Notre Dame is actually foolish enough to pay you to mount this type of sophistical defense of the indefensible?

  • John Henry says:

    It’s a pretty large firm – I interviewed with them a while back and have friends that work there. In the DC office alone, there are fourteen Domers. It’s unlikely that the commenter above is billing time for arguing on blogs, but the tone of the comment and the handy dictionary references suggest a feisty 1-3 year associate.

  • Donald R. McClarey says:

    “but the tone of the comment and the handy dictionary references suggest a feisty 1-3 year associate.”

    Quite true. I hope for anonymous that he wasn’t doing this on a firm computer equipped with tracking software. If I were a partner there I would take a dim view of associates wasting time on blogs during office hours. Ah, the advantages of being a self-employed attorney!

  • John Henry says:

    If I were a partner there I would take a dim view of associates wasting time on blogs during office hours.

    um…yeah…I agree…no junior associate should ever waste time on blogs during office hours…right on. Who are these people? ;-)

    In their defense, I will say that many partner’s definition of ‘office hours’ is roughly “any time during which the associate is alive and not undergoing major surgery.” Another benefit of being self-employed, I suppose.

  • Donald R. McClarey says:

    “In their defense, I will say that many partner’s definition of ‘office hours’ is roughly “any time during which the associate is alive and not undergoing major surgery.””

    That is precisely one of the main reasons I became self-employed John Henry. I wanted to have a family life and not work on weekends, and too many firms seemed to think that associates lived only to practice law, and to be the handy target of the ire of dyspeptic partners.

  • Jasper says:

    “Just for the kind of clarity and exactness which is typical of Catholic thought, it is not Notre Dame which is prosecuting the ND88. It is Fr. Jenkins – personally. The buck stops at his desk.”

    bingo. Fr. Jenkins is doing all he can do to stay in the good graces of his liberal friends. chump.

  • PM says:

    I believe Professor Rice’s general thesis is unquestionably correct: Notre Dame craves the approval of the Princes of this World.

    But from the belly of the beast, a few qualifications may be appropriate.

    I have been told, at any rate, that because the charge is criminal trespass, Notre Dame, despite what everyone says, cannot ask the county prosecutor to dismiss the case. The prosecutor could ask that the case be dismissed, but he would have to justify the request to a judge.

    As Professor Rice documents, previous instances of this sort had been handled quietly by the university itself.This time the South Bend and St. Joseph county police were brought in, and I suspect that everyone in the administration now sees this was a blunder. Part of the reason for deposing Mr. Kirk may be to determine just how this decision came to be made.

    Notre Dame has offered “generous”terms to the defendants. Plead guilty, accept some kind of nominal or suspended punishment, and put the whole thing behind us. The university is in the position of the poor Roman magistrate judging the typical virgin and martyr: Cut me some slack–just genuflect to that damned idol over there and we can all go home. Such blandishments were generally rejected; and I suspect the current ones will be as well.

  • Art Deco says:

    I have been told, at any rate, that because the charge is criminal trespass

    No kidding. If I am not mistaken, under New York law, an act of trespass does not qualify as criminal trespass unless (at a minimum) there is a fence or wall around the property which excludes intruders.

  • Donald R. McClarey says:

    “I have been told, at any rate, that because the charge is criminal trespass, Notre Dame, despite what everyone says, cannot ask the county prosecutor to dismiss the case. The prosecutor could ask that the case be dismissed, but he would have to justify the request to a judge.”

    You have been misinformed. Prosecutors nolle prosse countless cases across the nation each day. The consent of the court is pro forma since the court lacks the power to compel the State to prosecute anyone, which is wholly in the discretion of the prosecutor.

    “Notre Dame has offered “generous”terms to the defendants.”

    Of course this demonstrates that Notre Dame is the driving force behind the prosecution. The terms that the Notre Dame 88 should accept from Notre Dame are the dismissal of all charges, payment of their legal fees, a written apology from Notre Dame, and a promise from Notre Dame that they will no longer honor pro-abort politicians.

    This of course is in the spirit of Theoden’s reaction to Saruman’s request for “peace”.

    “We will have peace. Yes, we will have peace, we will have peace when you and all your works have perished — and the works of your dark master to whom you would deliver us. You are a liar, Saruman, and a corrupter of men’s hearts. You hold out your hand to me, and I perceive only a finger of the claw of Mordor. Cruel and cold! Even if your war on me was just as it was not, for were you ten times as wise you would have no right to rule me and mine for your own profit as you desired — even so, what will you say of your torches in Westfold and the children that lie dead there? And they hewed Hama’s body before the gates of the Hornburg, after he was dead. When you hang from a gibbet at your window for the sport of your own crows, I will have peace with you and Orthanc. So much for the House of Eorl. A lesser son of great sires am I, but I do not need to lick your fingers. Turn elsewhither. But I fear your voice has lost its charm.”

  • Elaine Krewer says:

    Not to sound like I’m defending Anonymous here, but…. if the ND88 were KNOWINGLY risking arrest, by crossing a line they had been warned not to cross, and if they were clearly told by university authorities that they WOULD be arrested if they persisted in their actions, then they should accept the consequences, plead guilty and serve whatever sentences they get. That’s what other practitioners of this kind of civil disobedience do (or should do, in my opinion). They don’t argue that they are innocent and being persecuted, they acknowledge that they broke the law to call attention to their cause AND they’d gladly do it again. If that means they go to jail, that goes with the territory, doesn’t it?

    That being said, it would be fitting if Fr. Jenkins or other authorities at Notre Dame asked for the charges to be dropped as a gesture of mercy and solidarity with the cause they were espousing.

    All this, of course, presumes that the ND88 knowingly engaged in illegal actions and were clearly warned that they were risking arrest. If it was a case of a LEGAL protest gathering getting out of hand, or of the participants crossing some invisible “line” they hadn’t been told was there, that would be another story completely.

  • Elaine Krewer says:

    Also, the fact that Notre Dame allegedly let other protesters off more easily doesn’t change the nature of the illegal actions committed by the ND88. While it does show that Notre Dame isn’t being consistent in enforcing its supposed rules regarding protests — and that is a significant issue — still, you can’t argue your way out of any other punishment by saying “But someone else got away with it!”

  • Donald R. McClarey says:

    “Not to sound like I’m defending Anonymous here, but…. if the ND88 were KNOWINGLY risking arrest, by crossing a line they had been warned not to cross, and if they were clearly told by university authorities that they WOULD be arrested if they persisted in their actions, then they should accept the consequences, plead guilty and serve whatever sentences they get.”

    Only if Notre Dame wishes to be in the same moral category of the segregationists who legally prosecuted people who sat in at restaurants. When one is being punished unjustly, I see no merit in accepting punishment meekly. Make them prove it at trial. Turn the case against the prosecution by making a big stink about it in every forum possible. Make sure that the injustice of the prosecution becomes a cause celebre. Jenkins and his cohorts would love nothing better than the Notre Dame 88 to meekly admit their guilt and for them to accept their punishment like good boys and girls. I am glad that this satisfaction has been denied them by the intestinal fortitude of the Notre Dame 88.

  • Donald R. McClarey says:

    “still, you can’t argue your way out of any other punishment by saying “But someone else got away with it!””

    Actually Elaine I have done just that in some of my cases by proving selective prosecution and having judges determine that prosecutors have abused their discretion. It isn’t easy to do, but given fact situations egregious enough, it is possible.

  • Elaine Krewer says:

    “his (Rice’s) primary complaint is not that they were arrested, but that the institution has persisted in pressing charges when they had not done so in previous circumstances, and lied publicly about their reasons for so doing.”

    I understand this and it’s an appropriate question to raise. And, I suppose that by pleading not guilty and fighting the charges every step of the way, the ND88 could bring those two injustices to light. But, at the end of the day, it seems to me that “don’t do the ‘crime’ if you can’t do the time” applies to civil disobedience actions as well.

    Also, for reasons I have explained before, I don’t think civil disobedience that involves deliberately trying to get arrested for trespassing as an attention-getting device is quite in the same category as lunch counter sit-ins. Sit-ins involved people breaking a law that was inherently unjust — a law designed specifically to prevent people of a certain skin color from doing something they had a natural right to do — to show the world just how unjust and ridiculous the law was. Going out of one’s way to break an otherwise JUST law that has nothing directly to do with the injustice being protested (abortion) is different.

  • WJ says:

    What is remarkable to me, and what I really just don’t grasp, is *what possible motive* ND could have in continuing with these charges. Fr. Jenkins, for all his limitations, is certainly no dummy, and he, as well as the other members of the senior administration (to say nothing of the Board of Trustees) must realize that ND qua university will not gain anything from this process. It’s not as though Princeton or Duke will suddenly kowtow to the Dome because a few pro-life activists were arrested there. This view can’t seriously be entertained. It’s also only attracting *more* negative press to ND, and further alienating fence-leaning Catholics who were not happy about Obama but were neither entirely supportive of much of the shenanigans and selective (and sometimes politically motivated) outrage expressed at his visit. These Catholics, seeing now ND’s apparent inconsistency of procedure, will now take more darkly a view of the administration than they ever did before. So I don’t see that ND has anything to gain here, while they have much to lose. If I did not already have experience with administrators’ capacities for practical reasoning, these two considerations would make me think that ND *can’t* remove the charges at this point (something Donald denies). The whole situation is just weird.

  • Art Deco says:

    The whole situation is just weird.

    If you posit that Notre Dame’s administration despises the demonstrators and wants their ilk to stay away forever, the effort to humiliate and injure them seems less weird.

  • WJ says:

    I suppose I find it self-evident that that strategy is counterproductive *given* the interests of ND, whatever they think of the demonstrators. (Whatever one thinks of the ND88, and I am generally supportive of them, turning them into martyrs for the pro-life cause will hardly have the effect you suggest.) And I suppose that I think the administrators themselves should realize this. But again, never overestimate administrators’ capacities for practical reasoning.

  • PM says:

    Just to be clear: I yield to no one in contempt for how Notre Dame has handled the case; and my opinion of the real motives of the university administration is culpably uncharitable. Nonetheless. . .

    In Indiana, criminal trespass includes entering private property without permission and refusing to leave when requested to do so by the owner or an authorized agent of the owner. If I come to your front door and, say, hector you about joining the Jehovah’s Witnesses; and you ask me to go away; and I refuse: then you can call the cops. I don’t have to climb over a wall or anything like that.

    What possible motive can Notre Dame have for continuing these charges? Notre Dame has only itself to blame for the pickle that it is in, but it may have less freedom of action (pace Mr. McCleary) than people assume (if also more freedom of action than implied in my previous post). The risk of nolle prosse, I think, is that the the judge might react by dismissing the case (rather than just letting things hang). If the case is dismissed or the defendants acquitted, the university (and perhaps the South Bend police) might find themselves in line for a false arrest suit. How plausible this is I don’t know, but it’s what I gather third or fourth hand from lawyers familiar with the case.

    On a more principled level, the university has a legitimate interest in keeping its status as private property. Again, as I understand it, one line of defense by the 88 is that the university campus is in fact open pretty much to anyone, that it amounts to public space where they may legitimately exercise their first amendment rights (and, after all, the university took no action against those demonstrating in favor of the award to Obama). But the university does not in fact let the general public come and go as it pleases. At every home football game the area around the campus is filled with ticket scalpers, but scalpers are not allowed on campus. If the 88 win their point, would the university have welcome in the scalpers?

    (I also wonder if there isn’t some relevance to the Westboro Baptist case. One’s sympathies would be on opposite sides, but there may be a family resemblance in terms or principle. The families of fallen soldiers may have a legitimate complaint against those who obnoxiously interfere with the funerals; and Notre Dame may have a legitimate complaint against intrusion from those who the administration finds, however perversely, obnoxious to itself or its undertakings.)

    I hope the 88 get off, and, while normally I’m not wild about punishment of any kind, I hope the consequences to the university are sufficiently severe to cause some in the administration to rethink the actual values they live by. But in the abstract the university’s case is not entirely without merit.

    I’m also partly sympathetic to what I take to be Elaine Krewer’s point: If I actively court martyrdom and martyrdom is consequently offered to me, I should probably accept it gratefully, not whine about it. But it’s not clear that the 88 were actively courting martyrdom. It seems that many of them really did not think that the university would react in the clumsy, small-minded, militantly graceless way that it did.

  • Donald R. McClarey says:

    “The risk of nolle prosse, I think, is that the the judge might react by dismissing the case (rather than just letting things hang).”

    You are confusing apples and oranges. Nolle Prosse is not a dismissal with prejudice. The Defendants could bring a motion to dismiss with prejudice at any time, as could the prosecutors, but nolle prosse is not the same thing. A nolle prosse simply means that the prosecutor is not proceeding with the prosecution. No double jeopardy attaches and the defendants can be recharged at any time. As for a civil suit from the ND88, that could be brought at any time and has little refence to what happens in the criminal case. A perfect example is how OJ Simpson could be found not guilty of the murders and still lose the civil suit over the murders.

  • Art Deco says:

    If I come to your front door and, say, hector you about joining the Jehovah’s Witnesses; and you ask me to go away; and I refuse: then you can call the cops. I don’t have to climb over a wall or anything like that.

    In New York, there is a ‘Trespass’, which is in a submisdemeanor category called a ‘violation’, and ‘Criminal Trespass’. There are three degrees of criminal trespass. For the most part, you have to be inside a building to be charged with ‘criminal trespass’, but you can be charged with the 3d degree criminal trespass if you enter grounds enclosed in some way.

    If I am not mistaken, the crime you describe is, under New York law, [non-criminal] ‘Trespass’. The maximal sentance for trespass is 15 days in the county jail and a three-figure fine. As a rule, the judiciary is quite lax when they are given the discretion, as they are in non-felony cases hereabouts. Then again, a large fraction of the municipal court case load Upstate is heard by lay J.P.’s. A buddy of mine in the state Attorney-General’s office tells me that lay judges are often quite good, but when they are bad they are horrid.

  • PM says:

    This may be getting to be too much inside baseball, and I’m not a very good player.

    Nolle prosse: The risk is that the judge’s reaction would be to dismiss with prejudice, which does happen sometimes. I hadn’t thought about a civil suit–but that’s unlikely on its face; and, anyway, Notre Dame didn’t suffer any damages.

    The Indiana law on criminal trespass is more stringent than what is typical of other states.

  • Donald R. McClarey says:

    In regard to a civil suit I was referring to a hypothetical suit by ND88 against Notre Dame.

    I can’t imagine a judge dismissing a criminal case with prejudice based upon a nolle prosse motion by the State, absent a motion filed by either the State or the Defendants to dismiss with prejudice. In a nolle prosse motion the current prosecution and case simply ends because the prosecutor does not wish to proceed. A motion to dismiss with prejudice by the Defendants would have to establish that a successful prosecution was impossible due to some legal defect in the prosecution or that under any possible facts shown at trial no conviction would be possible. That is a very high standard to meet, and I do not see any way in this case that a judge could so find under the existing law and facts of the case.

  • Linus says:

    This whole incident caused me to rule out ever applying to Notre Dame, which I seriously considered at one point. While attending a law school fair in New York, I approached the Notre Dame booth and asked the representative, in as neutral a tone as possible, if there was any emphasis on the Catholic nature of the school reflected on its campus, not mentioning that I myself was Catholic. She downplayed the notion, saying something to the effect of “no, it’s not a big deal.”

    “Maybe ND simply wanted to protect its students and faculty. The mob had already shown its penchance for breaking the law — no one was capable of knowing whether the mob would become violent — it is not unheard of. “

    No, indeed not. Recall the brave and truly Catholic students who stood up to and battled the ku klux klan in South Bend in 1924.

    How tragic that Notre Dame now wields nothing but moral cowardice in utilizing secular police power to promote abortion, the political lineage of which is directly traceable back to psychotic white supremacists and eugenicists.

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