An open letter from Dr. Charles E. Rice, Professor Emeritus of Notre Dame Law School, to Fr. John Jenkins, President of University of Notre Dame:
September 21, 2009
Rev. John I. Jenkins, C.S.C.
University of Notre Dame
Notre Dame, Indiana 46556
Dear Father Jenkins:
Professor Fred Freddoso has shared with me the response on Sept. 17th by Dr. Frances L. Shavers, Chief of Staff and Special Assistant to the President, to Fred’s email of that date to you asking that Notre Dame request dismissal of the charges against the persons arrested for trespass on the campus in relation to the honoring of President Obama at Commencement. Dr. Shavers responded on your behalf to Fred’s email because, as she said, “the next few days are rather hectic for [Fr. Jenkins].” I don’t want to add to the hectic burden of your schedule by sending you a personal message that could impose on an assistant the task of responding. I therefore take the liberty of addressing to you several concerns in the form of this open letter to which a response is neither required nor expected.
First, permit me to express my appreciation for the expressions of support for the pro-life cause in your September 16th “Letter concerning post-commencement initiatives.” I know, however, that in a matter as significant as this, you will appreciate and welcome a respectful but very candid expression of views. In my opinion, the positions you have taken are deficient in some respects.
In your Letter of Sept. 16th, you rightly praise the work of the Women’s Care Center (WCC) and of its superb leader, Ann Murphy Manion. I commend you on your statement that the WCC “and similar centers in other cities deserve the support of Notre Dame clubs and individuals.” Your praise of the WCC and similar efforts, however, overlooks a practical step that Notre Dame, as an institution, ought to take. That would be for you, on behalf of Notre Dame, to issue a standing invitation to the WCC to establish an office on the Notre Dame campus to serve students, faculty and staff if, in the judgment of the WCC, that would be desirable and effective. Such would give practical effect, right here at Notre Dame, to your words in support of the WCC and similar efforts.
Your Letter announced your formation of the Task Force on Supporting the Choice for Life. Rather than offer a detailed evaluation of my own, I note my agreement with the personal analysis of William Dempsey, ND ’52, President of the Sycamore Trust, calling attention to “the obviously deliberate exclusion from Task Force membership of anyone associated with the ND organizations that have been unashamedly and actively pro-life: the Center for Ethics & Culture and the ND Fund for the Protection of Human Life. Nor was the student representative chosen from the leadership of the student RTL organization or from anyone active in last year’s student alliance protesting the honoring of the President, ND Response. It is hard to resist the inference that this is as a move toward marginalizing the Center and the Fund, neither of which receives any University support the way it is…. Finally, it is unsettling but instructive that this announcement comes a day after Fr. Jenkins’ annual address to the faculty in which he described his goals for the year, which included increasing female and minority faculty representation but not a word about the most crucial problem facing the university, the loss of Catholic identity through the failure to hire enough Catholics to restore the predominance required by the Mission Statement. This is a striking falling away from [Fr. Jenkins’] wonderful inaugural address. The fact that ND did nothing to serve the pro-life cause until forced by the reaction to the Obama incident testifies to the fact that, without a predominance of committed Catholics on the faculty, any pro-life efforts launched under pressure will in time fade away. The risk, and surely it is real, is that this initiative and the publicity ND is generating about it will deflect attention from the fundamental problem besetting Notre Dame….But I return to where I began: A project that deliberately excludes from participation those who have courageously manned organizations standing against the faculty attitude toward the pro-life cause ought to be regarded with suspicion.”
My main concern in this letter arises from your statement in your Letter that “Each year on January 22, the anniversary of the Supreme Court’s Roe v. Wade decision, the March for Life is held in Washington D.C. to call on the nation to defend the right to life. I plan to participate in that march. I invite other members of the Notre Dame Family to join me and I hope we can gather for a Mass for Life at that event.” I understand that Notre Dame students have invited you to participate with them in the March. The problem arises from an aftermath of Commencement. On this I refer back to Chief of Staff Shavers’ response to Professor Freddoso’s request that Notre Dame ask dismissal of the charges against those arrested. Dr. Shavers states that “these protesters were arrested for trespassing and not for expressing their pro-life position.” That is misleading. This is not an ordinary case of trespass to land such as would occur if a commuter walks across your lawn and flower bed as a short-cut to the train station. Notre Dame is ordinarily an open campus. Those 88 persons, 82 of whom are represented by Tom Dixon, ND ’84, ND Law School ’93, were arrested not because they were there, but because of who they were, why they were there and what they were saying. Other persons with pro-Obama signs were there but were not arrested and not disturbed. Serious legal and constitutional questions are involved, arising especially from the symbiotic relationship between the Notre Dame Security Police, who made the arrests, and the County Police. This letter is not a legal brief. Rather I merely note that it is disingenuous for Notre Dame to pretend that this is merely a routine trespass case.
The confusion is compounded by Dr. Shavers’ statement that “Under Indiana law, however, Notre Dame is not the complainant in these matters and so is not in any position to drop or dismiss the charges.” That sentence is half-true and half-false. Notre Dame is the complaining victim of the alleged trespass. Whether to dismiss the charges, of course, is for the prosecutor to decide.
Dr. Shavers states that “Notre Dame officials have been in regular contact with the prosecutor’s office on these matters, and, in consultation with the University, the prosecutor has offered Pre-Trial Diversion to those for whom the May incident was a first-time offense. As described by the prosecutor, this program does not require the individual to plead guilty or go through a trial; rather, the charges are dropped after one year so long as the individual does not commit another criminal offense. We understand that most of those arrested have chosen not to take advantage of this offer and obviously we cannot force them to do so. In essence, the choice of whether or not to go to trial belongs to the defendants.”
Pre-trial diversion could change their status as convicted criminals. But it is only because of the actions of Notre Dame that they are treated by the law as criminals in the first place. Notre Dame continues to subject those defendants to the criminal process. If they entered pretrial diversion they would each have to pay hundreds of dollars in costs, which would amount in effect to a fine imposed on them, with the concurrence of Notre Dame, for praying. Most of the 88 are in straitened financial circumstances. The imposition on them of such a fine would be a serious hardship. Instead, Notre Dame ought to state publicly that it has no interest in seeing those prosecutions proceed in any form and that it requests the prosecutor to exercise his discretion to dismiss all those charges unconditionally. Given the prospect of 88 or so separate jury trials, probably not consolidated, in cases involving potentially serious legal and constitutional issues, such a request by Notre Dame would surely be appreciated by the taxpayers of St. Joseph County.
Those 88 defendants were on the other side of the campus, far removed from the site of the Commencement. They are subjected by Notre Dame to the criminal process because they came, as individuals, to Notre Dame to pray, peacefully and non-obstructively, on this ordinarily open campus, in petition and reparation, as a response to what they rightly saw as a facilitation by Notre Dame of various objectively evil policies and programs of Notre Dame’s honoree, President Obama. Those persons, whom Notre Dame has subjected to legal process as criminals, are neither statistics nor abstractions. Let me tell you about a few of them.
Fr. Norman Weslin, O.S., 79 years old and in very poor health, was handcuffed by Notre Dame Security Police as he sang “Immaculate Mary” on the campus sidewalk near the entrance. He asked them, “Why would you arrest a Catholic priest for trying to stop the killing of a baby?” The NDSP officers put him on a pallet and dragged him away to jail. St. Joseph County Police were also there. I urge you to watch the readily available videos of Fr. Weslin’s arrest. If you do, I will be surprised and disappointed if you are not personally and deeply ashamed.
Such treatment of such a priest may be the lowest point in the entire history of Notre Dame. You would profit from knowing Fr. Weslin. Notre Dame should give Fr. Weslin the Laetare Medal rather than throw him in jail. Norman Weslin, born to poor Finnish immigrants in upper Michigan, finished high school at age 17 and joined the Army. He converted from the Lutheran to the Catholic faith and married shortly after earning his commission. He became a paratrooper and rose to the rank of Lieutenant Colonel in the 82nd Airborne Division, obtaining his college degree enroute. After a distinguished career, he retired in 1968. As the legalization of abortion intensified, he and his wife, Mary Lou, became active pro-lifers in Colorado. In 1980, Mary Lou was killed by a drunk driver. Norman personally forgave the young driver. Norman Weslin was later ordained as a Catholic priest, worked with Mother Teresa in New York and devoted himself to the rescue of unborn children through nonviolent, prayerful direct action at abortuaries. In 1990 at Christmastime, I was privileged to defend Fr. Weslin and his Lambs of Christ when they were arrested at the abortuary in South Bend. One does not have to agree with the tactic of direct, non-violent action at abortuaries to have the utmost admiration, as I have, for Fr. Weslin and his associates. At Notre Dame, Fr. Weslin engaged in no obstruction or disruption. He merely sought to pray for the unborn on the ordinarily open campus of a professedly Catholic university. The theme of Notre Dame’s honoring of Obama was “dialogue.” It would have been better for you and the complicit Fellows and Trustees to dialogue with Fr. Weslin rather than lock him up as a criminal. You all could have learned something from him. His actions in defense of innocent life and the Faith have been and are heroic. Notre Dame’s treatment of Fr. Weslin is a despicable disgrace, the responsibility for which falls directly and personally upon yourself as the President of Notre Dame.
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. Those “criminals” 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, in summary, “the salt of the earth.” They came, on their own, 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 one has to doubt whether Notre Dame does so anymore.
Clearly, Notre Dame should do all it can to obtain the dismissal of those criminal charges. This has nothing to do with one’s opinion of the tactics of rescue at abortuaries. It is simply a matter of you, as President, doing the manifestly right thing.
Please permit me to speak bluntly about your announced purpose to participate in the March for Life and to “invite other members of the Notre Dame Family to join me.” Notre Dame should have had an official presence at every March for Life since 1973. But until now it never has. Notre Dame students, with the encouragement of Campus Ministry, participate in the March but the University, as such, has not done so. To put it candidly, it would be a mockery for you to present yourself now at the March, even at the invitation of Notre Dame students, as a pro-life advocate while, in practical effect, you continue to be the jailer, as common criminals, of those persons who were authentic pro-life witnesses at Notre Dame. When the picture of Fr. Weslin’s humiliation and arrest by your campus police was flashed around the world it did an incalculable damage to Notre Dame that can be partially undone only by your public and insistent request, as President of Notre Dame, that the charges be dropped. In my opinion your attachment to the March for Life, including your offering of a Mass for Life, could give scandal in the absence, at least, of such an insistent request to dismiss those charges. Your decision to present an official Notre Dame presence at the March could be beneficial, but not in the context of an unrelenting criminalization by Notre Dame of sincere and peaceful friends of Notre Dame whose offense was their desire to pray, on the campus, for the University and all concerned including yourself. If you appear at the March as the continuing criminalizer of those pro-life witnesses, you predictably will earn not approbation but scorn—a scorn which will surely be directed toward Notre Dame as well. As long as you pursue the criminalization of those pro-life witnesses, your newest pro-life statements will be regarded reasonably as a cosmetic covering of the institutional anatomy in the wake of the continuing backlash arising from your conferral of Notre Dame’s highest honor on the most relentlessly pro-abortion public official in the world.
In conclusion, this letter is not written in a spirit of contention. It is written rather in the mutual concern we share for Notre Dame—and for her university. I hope you will reconsider your positions on these matters. Our family prays for you by name every night. And we wish you success in the performance of your obligations to the University and all concerned.
Charles E. Rice
Notre Dame Law School