We have now studied the Agreement that ended the ND88 criminal prosecutions.  Together with the preceding events, it tells an instructive story that we recount in this bulletin.

SOUTH BEND, IN — The obvious question is why the University reversed course after two years of supporting the prosecutions. The University seems to suggest that it acted out of compassion and its pro-life commitment.

• The Agreement declares, “The purpose…is to provide a basis for reconciliation before God and a continuing dialogue” with defendants.

• Father Jenkins announced that he was “sincerely pleased that the charges…have been dismissed” and added that “everyone involved…has been in complete accord on the sanctity of human life…from the start.”

But the facts suggest a much more pragmatic reason, one that does nothing to erase the shadow thrown by these cases over the University’s pro-life claims.

This is what happened prior to the Agreement:

• The University repeatedly explained its support of the prosecutions through a statement by Fr. Jenkins in which he said:
  1. That the cases were “in the hands of” the prosecutor.
  2. That the defendants had “violated University policies” and “were given repeated warnings” and yet “persisted.”  More, “they were led by individuals who threatened peace and order by promising upheaval on our campus.”
  3. That the prosecutor’s proposals were “balanced and lenient.”
  4. Finally, that Notre Dame could not properly seek leniency for defendants because it “cannot have one set of rules for causes we oppose and another more lenient set for causes we support.”
• Defense counsel were regularly rebuffed in their efforts to persuade Father Jenkins to relent.
• Tom Dixon: “The general counsel’s office of Notre Dame has responded to me by saying that Father Jenkins has no interest in discussing these matters any further.”

• Tom Brejcha: [Father Jenkins] now seems adamant that he can do no more than insist that all the defendants submit to the conditions on which the prosecutor insists.”

• Sycamore discovered and reported that, far from treating the ND88 the same as other trespassers, the University was discriminating against them. During Fr. Jenkins’s tenure Notre Dame had simply let go pro-gay and anti-military demonstrators that ND police had arrested for trespass.

• During discovery, Notre Dame tried but failed to prevent defense counsel from examining William Kirk, the long-time outspokenly pro-life Associate Vice President who had been in charge of the ND police until he was fired.  (We have reported earlier on this lamentable episode.) At the time of settlement, the judge was about to rule on whether Mr. Kirk should answer certain questions directed at the University

• Defense counsel asserted that police arrested some defendants while ignoring nearby pro-Obama demonstrators.

• Defendants had notified Notre Dame that they intended to sue Notre Dame for damages for illegal arrests. The time for defendants to file their lawsuits was about to expire when the settlement was reached

This, then, was the prospect Notre Dame faced at the time of settlement:

The imminent filing of damage suits against the University; dozens of criminal jury trials with sympathetic defendants one after the other in the dock; cross-examination of Notre Dame personnel respecting the treatment of pro-Obama and pro-gay and anti-military demonstrators and a full range of other issues; a drumbeat of adverse publicity from pro-life sources stretching over years; the real possibility of acquittals; and a battery of civil damage trials with uncertain outcomes.

The settlement ended all of this. It is simply not credible to suppose that the driving force for the University was a suddenly awakened desire to reconcile rather than a desire to put an end to the risks the future held.

Indeed, to suppose that the University’s purpose in seeking leniency for defendants was to “reconcile” with its “brothers and sisters in the faith” whose pro-life convictions it shares would be to suppose that Fr. Jenkins authorized precisely what he said he could not, i.e. the application of “one set of rules for causes we oppose and another more lenient set for causes we support.”

Rather, the core provisions of the Agreement evidence the parties’ vital interests. The University traded its promise to intervene with the prosecutor for the defendants’ promise not to sue the University.

While this was a prudent and welcome decision by the University, the time had long past when the University could have earned praise for acting compassionately toward these pro-life defendants.

There is one other feature of the Agreement worth noting: Not only did the University exact a promise from defendants and counsel not to “disparage or criticize” the agreement, but the agreement even forbids counsel for defendants from making “any comment which is inconsistent with the spirit of this Agreement,” whatever that might be. One wonders exactly what criticism the University wants to still.

We will await reports on reconciliation and dialogue.  Since Fr. Jenkins has declared that he would recommend the honoring of President Obama if he had it to do over again, plainly there can be no reconciliation on the issue that divided the parties. Perhaps nevertheless these promises can somehow be better realized than was the expectation of “engagement” with President Obama that was raised as warrant for honoring him.  Still, the recent appointment to the Board of Trustees of Roxanne Martino, a benefactor of the important pro-abortion organization Emily’s List, suggests that these promises too may remain unfulfilled.
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