“Secret police” belong in North Korea. They’re about to be unleashed on Indiana.

It’s Sunshine Week, when the nation’s attention is focused on the healthful benefits of government transparency — and in the cruelest irony of timing, it’s also the week when Indiana is about to solidify the secrecy of crimes taking place at private universities.

Indiana Gov. Mike Pence has a chance, if he acts today (March 16), to prevent a real injustice: The legislative overruling of a one-day-old judicial precedent finally affording the public a glimpse at how campus police at Notre Dame and other private colleges. These colleges have eagerly sought governmental authority to use the ultimate state power—the ability to arrest and even to use deadly force — with no interest in accepting any of the accountability requirements that go with it.

Indiana legislators were told that a new House bill, HB 1022, would enhance transparency at private colleges, as Texas, Ohio and North Carolina all have done in recent years. But in fact, it does the opposite, codifying the extremist position of private universities that the way they use their governmental policing authority is none of the public’s business (Kaitlin DeWulf provides an excellent explainer on this now-you-see-our-records, now-you-don’t trick on the website of the Student Press Law Center, where I work with her).

This morning, I sent Gov. Pence’s chief of staff a message hoping for a Sunshine Week miracle: a veto of this noxious bill, which cannot stand the test of public legitimacy at a time when police use of force is under unprecedented scrutiny. Here is what I told him…

Dear Governor Pence and Staff,

The clever lobbyists for Notre Dame and Indiana’s other private universities have fooled your legislature into enacting what was billed as “transparency” legislation, HB 1022, but which in reality is nothing of the sort. Lending the prestige of your office to this deceptive legislation that makes campuses less safe would be shameful. It richly deserves a veto.

Every police department in America is required by state law to disclose “incident reports,” reflecting each reported crime to which officers are dispatched. These reports are the foundational public documents through which the community learns who has been accused of crimes, whether there are patterns of unsolved crimes happening in certain neighborhoods, and whether police are responding to serious crimes with the proper urgency. It is not possible for the public to effectively evaluate the performance of police without access to incident reports. These documents have been made publicly available for many, many decades without any indication that public access results in a reluctance to report crime, inability to solve crime, or any other detrimental result. (If it were the case that people more readily report crimes to police that don’t disclose their incident reports, then Notre Dame would have exponentially more crime reported than comparably sized public universities, but in fact there is no distinction.)

Every police department must report, that is, except for those at private colleges and universities — who assume the ultimate state authority and insist on doing so without the barest level of public accountability to accompany it. “Secret police” belong in Russia, China and North Korea. They have no place in South Bend.

As your office now knows, the Indiana Court of Appeals came down Tuesday with a resounding declaration in ESPN, Inc. v. University of Notre Dame Campus Security Department that the way police officers on private campuses use their authority is a matter of intense public concern, because the power to arrest and use deadly force is governmental power. As the Court wrote in that case: “there is a danger that the public will be denied access to important public documents when a private agency is exercising a public function if we construe APRA to categorically exclude such agencies.” As the Court went on to observe, noting all of the ways in which Notre Dame’s police are indistinguishable from any other Indiana city or county police force:

it is clear that the Police Department exercises governmental, public functions even though it was established by a private entity. It would not be appropriate for the Police Department, having availed itself of its statutory right to exercise these public functions, to then be able to circumvent public records requirements to which all other entities exercising these same functions are required to adhere.

During the past four years, North Carolina, Ohio and Texas have joined Connecticut, Georgia and Virginia in making the incident reports of police on private college campuses available for public inspection. For Indiana to take a step backward and be the only state to actually declare these records off-limits to the public would make this state a member of a very lonely and dishonorable club.

HB 1022 purports to provide “transparency” by affording the public access to a subset of college police records, those relating to an arrest when created “solely for a law enforcement purpose.” But colleges invariably take the position that every arrest record is created for the dual purpose of law enforcement and discipline. Consequently, the set of records that the public will receive under HB 1022 will be an empty set. Moreover, every piece of information covered by the purported “transparency” requirements of HB 1022 will already be a matter of public record through jail booking logs, courthouse files and other public databases, so the “concession” to make this narrow subset of records accessible is in fact no concession at all.

It is much more important that the public have access to the incident reports of crimes that do not result in arrests, because colleges have a well-documented history of sweeping even serious violent crimes into the impenetrable black box of campus discipline from which no information ever emerges — a process that routinely deals out penalties as lenient as an apologetic essay paper as punishment for rape. Because the student conduct process is so opaque, the public must have some way of knowing whether colleges are whitewashing serious safety hazards through campus disciplinary channels. That can happen only with access to the police incident reports that HB 1022 will withhold from public view.

According to federal Clery Act reports filed with the U.S. Department of Education, Notre Dame claims to have had a grand total of one aggravated assault on campus in each of the last three years. This statistic is almost certainly false by a substantial margin, but the public will never know if you sign HB 1022 into law. Notre Dame will be able to falsify its disclosure reports with impunity, to the detriment of Indiana’s public universities, which must play by the rules and report crime honestly, and be held accountable if they do not.

HB 1022 is one of the most anti-crime-victim, anti-public-safety laws imaginable, one that dishonors the memory of victims such as Lizzy Seeberg, who took her own life after having reported a sexual assault at the hands of a Notre Dame athlete. Notre Dame’s response to make sure that no further Lizzy Seeberg scandals ever happen again is HB 1022 — there will never be any more Lizzy Seeberg scandals because no journalist will ever find the next Lizzy Seeberg, and those stories will remain forever concealed. That is the illicit purpose to which you are being asked to affix the state’s stamp of legitimacy. Please show the conscience and decency to veto a bill making campuses less safe.

The Student Press Law Center has launched an awareness campaign, Stop Secret Police, in conjunction with Sunshine Week 2016, to highlight the need for states to close the accountability loophole that enables private colleges to conceal crimes. You can reach Gov. Pence’s office at
jatterholt@gov.in.gov.

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