TRANSPARENCY TUESDAY: Indiana court ruling further strengthens case for disclosure from private-college police

A federal court’s recent ruling that Notre Dame police are subject to civil-rights lawsuits as “state actors” helps bolster the case for journalists to obtain access to records from police agencies operated by private colleges.

In Torres v. University of Notre Dame, U.S. District Judge Rudy Lozano ruled that Notre Dame police — although employed by a privately incorporated university — are “state actors” who can be held liable for violating the Constitution if they commit a wrongful arrest.

Karen Torres was among dozens of anti-abortion activists arrested in May 2009 while demonstrating in connection with a commencement speech by President Barack Obama. She and her husband were confronted by Notre Dame police as they walked across a university parking lot while heading for the president’s motorcade route, where they hoped to be seen waving their protest signs. She sued, claiming that her arrest violated her rights under the First and Fourth Amendments, among other legal theories.

Notre Dame tried to get the suit thrown on the grounds that only government officials can be sued for violating the Constitution. But on March 23, Judge Lozano declined to dismiss the case, saying that the campus police were, functionally, government agents carrying out “a public function that has been traditionally reserved to the State.”

The judge relied on Indiana law, which enables private colleges to appoint police forces with powers identical to those of sheriffs, constables and other government law enforcement agents:

The broad grant of power to police officers for private universities leaves little to differentiate them from any other police officer in the state of Indiana, at least if they are on the university’s property. It can be inferred from the complaint that Notre Dame accepted this delegation of power.

The Torres case is the second recent ruling reemphasizing the “governmental” nature of private college policing. Last fall, the North Carolina Supreme Court ruled that, when officers at private colleges exercise police power, they are doing so under the direct supervision of the state of North Carolina and not of their colleges.

Because of the growing consensus that private college police who have arrest powers are agents of state government, it is difficult to justify why the incident reports that journalists can freely obtain from a local sheriff’s office are not equally accessible from campus police. Yet most private universities continue to insist that, because they are not state agencies, their police need not obey state open-records laws.

While some private colleges and universities do disclose their incident write-ups — disclosure is expressly required by law in Georgia, and by a state Freedom-of-Information Commission ruling in Connecticut — they are in the minority. That leaves journalists only the relatively skeletal disclosure mandated by the federal Clery Act — assuming that the colleges are fully complying (and some are not).

Judge Lozano’s ruling is, though not conclusive on the question of open-records laws, helpful evidence that can and should be used in every state as leverage to obtain greater transparency from police who, in every respect but their paychecks, are agents of the government.