2 Years After Obama ...

Charges have been dropped against the ND 88, the protesters who were arrested for trespassing on the University of Notre Dame’s campus in the lead-up to President Obama’s speech there in 2009.

SOUTH BEND, Ind. — Two years have passed since President Barack Obama’s controversial appearance at the University of Notre Dame. The university’s decision to invite the pro-abortion president to speak at the 2009 commencement exercises and receive an honorary doctorate was met with protests from a number of bishops. And people came to northern Indiana from all over and held rallies on and off campus. Nearly 90 protesters were arrested for trespassing.

Now, at the behest of Notre Dame, Saint Joseph County, Ind., prosecutor Michael Dvorak has dropped the charges against the “ND 88,” as the group of protesters has come to be known (one has since died).

The defendants and Notre Dame moved to settle their differences by means of an “Agreement Not to Sue,” which included two press releases to be issued once the prosecutor officially dropped the charges. That happened May 5.

The agreement states that it was during the course of discovery proceedings where Notre Dame officials were subpoenaed by the ND 88’s counsel that prospects of reconciliation were discussed.

The final agreement was not the first attempted. Key ND 88 figures could not sign the first draft in good conscience and pushed for changes, which Notre Dame accepted.

The university agreed to rescind and cancel all trespass notices, which means the defendants can now visit the campus in the future. In turn, the defendants agreed to not sue the university. The ND 88 and their counsel have stated they believe they had clearly identifiable civil claims against the university and the county, including violations of their civil rights (freedom of speech, religion and association) pursuant to 42 U.S.C. Section 1983 (and Indiana’s Constitution), as well as state law claims for false arrest, false imprisonment and malicious prosecution. They never filed suit, however.

Technically, it was not in the power of Notre Dame to drop the charges. However, the prosecutor had little reason not to honor their request, and it relieves the legal system of time-consuming and costly jury trials. The agreement affirms that it is “not an admission of any liability or wrongdoing by any of the parties.”

In his May 5 press release, Notre Dame’s president, Holy Cross Father John Jenkins, wrote that he was “sincerely pleased” that the charges have been dismissed.

“From the start, everyone involved in this difficult matter has been in complete accord on the sanctity of human life, and we all remain committed to continuing our work to support life from conception to natural death,” Father Jenkins stated.

‘Big Step Forward’

The Thomas More Society, which had defended most of the 88, simultaneously issued its own press release.

“This is a big step forward and a victory for the pro-life cause,” said Tom Brejcha, president and chief counsel of the society. Brejcha praised Father Jenkins for his attendance at the March for Life in Washington in 2010 and 2011 and for “the creation of new and significant pro-life initiatives on campus.”

The Thomas More Society statement noted that “those who share pro-life convictions may differ on tactics and approaches, but they best serve their sacred cause when they work together to secure the common good for all human beings, born and unborn alike, rather than carrying on as courtroom antagonists. … The parties remain in profound disagreement over the 2009 Commencement, but after prayerful consideration, they have decided to put their differences behind them, to cease battling in court, and rather to affirm a commitment to the fundamental proposition that each and every human life is sacred, from conception until natural death.”

While it remains to be seen whether Notre Dame will again honor a prominent outspoken supporter of the legalized killing of children in the womb, it is clear that the university has significantly strengthened its support for the right to life. Notre Dame spokesman Dennis Brown detailed various steps the university has taken to strengthen its pro-life commitment. These moves include participation by Father Jenkins in the annual March for Life the last two years, the creation of an institutional statement affirming the university’s commitment to the defense of human life in all its stages, the adoption of pro-life principles for the university’s charitable activity, support for conferences, consultations and courses on life issues, and the appointment of Mary Daly (who led a student protest against Obama’s appearance called ND Response) as coordinator of pro-life initiatives.


The principal figure behind the events that led to many of the arrests was Randall Terry, the founder of Operation Rescue and a Catholic convert. Upon hearing the news that Obama would be invited, Terry and his family temporarily moved to South Bend in an RV. Terry orchestrated daily protests in front of the university.

Bishop John D’Arcy, who was the ordinary of Fort Wayne-South Bend at the time, publicly disapproved of Terry’s tactics and discouraged the faithful from joining him. Instead, Bishop D’Arcy lent his support to ND Response. He appeared at a campus graduation day rally sponsored by ND Response, which drew about 2,000 participants. Graduation day brought many other protesters. Some ventured onto campus and were arrested.

Monica Miller, director of Citizens for a Pro-Life Society, considers the May 5 settlement “a huge victory for our witness.” She said that “Notre Dame has made some effort to strengthen its commitment to the right to life of the unborn. I know there’s a lot of work yet that still needs to be done.”

Miller noted that Notre Dame “has never apologized for having Obama there, and we’re beyond asking them for that apology at this point.” Having exhausted other efforts, Miller emphasized that coming onto campus to witness “was a last resort when Notre Dame was not listening to us.”

Charles Rice, professor emeritus of law at Notre Dame and outspoken pro-life and marriage advocate, wrote in an email, “This is a very good development, beneficial to the university and all concerned. … The charges, however, never should have been brought. In 2007, the gay-rights and pacifist demonstrators arrested on the Notre Dame campus were not prosecuted. It would be appropriate for Father Jenkins to apologize publicly for the university’s indefensibly selective prosecution of the ND 88. We pray for Notre Dame and for our country.”

Mike McBride, one of the defendants, challenged, “If Father [Jenkins] was so ‘sincerely pleased’ at seeing our charges dismissed, then why didn’t he have the charges thrown out two years ago? In fact, why didn’t he ever listen to the outcry of 83 Catholic bishops, including his own, and cancel President Obama’s appearance?”

Joe Scheidler, national director of the Pro-Life Action League, who brought 165 protesters from the Chicago area to a demonstration on graduation day, said in an email, “I think this settlement of the ND 88 problem is a real plus for pro-life, the attorneys who worked for two years to bring it about, and possibly even for Notre Dame’s waning reputation.”

Thomas A. Uebbing writes from South Bend, Indiana.