If they drive like police and shoot like police and arrest like police … they’re probably police

By law, Notre Dame University police enjoy the same authority as officers working for the City of Indianapolis or anywhere else in Indiana. By court ruling, these officers are full-fledged “state actors,” and must obey the same constitutional search-and-seizure rules as any other police.

Indeed, Notre Dame police are indistinguishable from other police, with one notable exception — city and county police are accountable to the public through Indiana’s Access to Public Records Act. Notre Dame insists that its police are not.

In this op-ed piece published in today’s Indianapolis Star, I explain how Notre Dame’s refusal to honor public-records requests has frustrated journalists trying to understand and explain the tragedy of Lizzy Seeberg. The 19-year-old freshman at Notre Dame’s sister institution, Saint Mary’s College, was found dead of an apparent drug overdose Sept. 10, shortly after she’d told Notre Dame police that a Fighting Irish football player sexually assaulted her in her dorm room.

In the aftermath of Seeberg’s death, the university has been lambasted in the blogosphere for failing to pursue Seeberg’s allegations with sufficient vigor. (Reports differ as to how promptly Notre Dame notified city police, who have ruled the death a suicide, of the sexual assault complaint.)

There are strong public-policy arguments in every state for subjecting campus police agencies to public-records laws (two states, Georgia and Virginia, already do by statute and a third, Massachusetts, is considering it). But the legal argument is especially potent in Indiana.

To understand why, flash back to 1999. Bristol C. Myers, a law student at private Valparaiso University, was pulled over by campus police after his car clipped a parked vehicle, charged with driving under the influence, and found guilty. He challenged the conviction, arguing (among other grounds) that Valparaiso police could not make a lawful arrest since they did not have the training required to qualify as law-enforcement officers. The Indiana Court of Appeals refused to toss out the conviction, but recognized the anomaly:

Myers makes a good point. However his argument is misdirected. Our legislature has apparently made a policy decision exempting university police officers from the rigors of mandatory Indiana Law Enforcement Academy training.

A concurring judge wrote a separate opinion “to strongly and explicitly encourage the General Assembly to address this omission at the earliest legislative opportunity.”

And address it they did. In 2005 — “the earliest opportunity” on Legislative Standard Time — Indiana legislators amended the state’s police training law to include private-college police officers within the definition of “law enforcement officer.” Since then, officers at Notre Dame, Valparaiso and other private colleges have been subject to the same training standards as all other Indiana police.

As described in the Star op-ed, Indiana’s highest court had by then ruled that the Fourth Amendment applies to traffic stops by police at private Butler University just as it would apply to a stop by city or county police. And in 2007, the legislature came back and explicitly authorized private universities to appoint police vested with full governmental authority.

So, to summarize, Indiana law expressly gives police at private colleges the same power, and holds them to the same standards, as government-employed police. In Connecticut, similar evidence was enough to convince the state’s Freedom of Information Commission to classify police at private Yale University as state actors for purposes of public-disclosure law.

In light of this considerable body of legal authority, Notre Dame’s contention that its police need not honor requests made under the Access to Public Records Act stands on unsteady footing.