Allegations of sexual assault against Notre Dame football players are not news. In 1996, a Notre Dame female student reported that two football players raped her in a dorm. The woman testified at the university’s disciplinary hearing, which found the two players innocent.

In 2002, another Notre Dame female student reported that four football players raped her in an off-campus house. The four players were expelled later that year as the penalty for sexual misconduct.

But what happens when a St. Mary’s student files the report? Notre Dame and St. Mary’s College are not linked by any legal affiliation, but they share a long-standing relationship that is unusual for most colleges. How then should the university respond to a reported assault? And when the young woman’s life ends in suicide, what level of outreach should Notre Dame extend to her family and the St. Mary’s community?

These are some of the questions prompted by Notre Dame’s response to the Lizzy Seeberg case. When Seeberg reported the assault and killed herself 9 days later, the university suddenly found itself forced to weigh many factors before responding publicly to the incident. Justice was perhaps obscured as media sources highlighted Notre Dame’s delay and silence on the case as well as the Seebergs’ sense of betrayal. Notre Dame responded by defending its integrity in the case and maintaining limited contact with the Seeberg family.

It important for the sake of both Notre Dame and St. Mary’s that the sorrow and tension associated with this case do not repeat themselves. What are the lessons to be learned from this case? If Notre Dame is to avoid another tragedy like Seeberg’s, we need to consider several ways in which the case could have been better handled.

1. University President Fr. John I. Jenkins, CSC: “We could have acted more quickly.”

Fifteen days after Seeberg filed her report, and five days after she died, a Notre Dame Security Police (NDSP) officer interviewed the accused football player in person. The interview happened after the officer tried twice unsuccessfully to visit the player in his dorm room and to call him.

Seven  days after the player was interviewed, the NDSP investigator told Seeberg’s parents that since football season is a busy time with lots of underage drinking, he didn’t know how long it would take to finish the investigation. Twenty seven days after that meeting, the police received phone records for the player and his friend. Twenty eight days after the records arrived, and 55 days after the Seebergs’ meeting with the NDSP investigator, Notre Dame General Counsel Marianne Corr reported what the records showed to the Seebergs’ attorneys, namely that the player and his friend did not text each other when Lizzy believed they did so.

That day, 77 days (about two and a half months) after Seeberg filed her report, Corr forwarded the NDSP investigation report to the St. Joseph County prosecutor’s office.

Fr. Jenkins admitted publicly that the investigation’s slow pace was a failing. “Yes, we could have acted more quickly, perhaps, and that’s an area we could improve on,” he said. That it took 15 days to interview the accused player after Seeberg filed her report raises questions about campus safety procedures at Notre Dame. What will happen the next time a student reports being sexually assaulted? One possibility Fr. Jenkins suggested to the South Bend Tribune is that the university may begin automatically forwarding any sexual assault reports to the prosecutor’s office.

2. The Notre Dame family?

Notre Dame’s extraordinary and long-standing relationship with St. Mary’s suggests that some form of condolence from the university to the Seeberg family might have been appropriate. But as the Seebergs revealed to Melinda Henneberger, ND’ 80 and editor-in-chief of Politics Daily, they received no formal gestures of sympathy after Lizzy died. 

Fr. Thomas Doyle, CSC, vice president for student affairs, was the only Notre Dame administrator to communicate with the Seeberg family. He met Lizzy’s parents at her memorial Mass and spoke to them over the phone 12-15 times afterward. As SBT reported, Fr. Doyle updated the Seebergs on the investigation and spoke to them about “what they felt they wanted and needed.”

But as Henneberger noted, why was Fr. Doyle put in this position? Fr. Jenkins told the South Bend Tribune  that “neither Doyle nor he can meet with the Seebergs to discuss the family’s concerns” because they are both part of the chain of appeal when a Notre Dame student is penalized by Residence Life. In other words, if the player’s friend was penalized for sending a threatening text message (“Don’t do anything you would regret. Messing with notre dame football is a bad idea”), or if the player was found guilty in a disciplinary hearing, Fr. Jenkins and Fr. Doyle would need to hear the appeal if either student presented it.

So, if Fr. Doyle was in contact with the Seebergs 12-15 times, isn’t it at least possible that he could have become partial to the Seebergs over the player or the player’s friend?

More importantly, DULAC explains that in cases of sanction other than university dismissal, the OFFICE of the Vice President for student affairs is the court of appeal, not the vice president himself. In cases of university dismissal, again, the Office of the President is the ultimate court of appeal, not the president himself. To avoid becoming biased against the accused by speaking to the Seebergs, Fr. Jenkins and Fr. Doyle could have designated another administrator in both offices to serve as a judge in case of appeal.

By designating other administrators as judges, our university leaders could have extended without fear the pastoral guidance that is proper to their role as religious leaders in our community. When we speak of the Notre Dame family, who do we believe is part of that family? Only the students who are admitted? Only those who are recruited for their excellence in academics or sports?

Or is it also the populations we serve outside the “Notre Dame bubble,” including the underserved communities we support all over the world? Are our neighbors at St. Mary’s and Holy Cross College, who often help us in our efforts to serve these populations, part of our family? If so, then the fathers of the Notre Dame family should reach out to them whenever they lose one of their own, no matter the circumstances.

3. The Effect of Restructuring

As of October 1, 2010, the oversight of the Seeberg case transferred from the Office of Student Affairs, which previously oversaw NDSP, to the newly restructured Office of Campus Safety. The chain of report for sexual assault investigations now goes through Associate Vice President for Campus Safety Michael Seamon and ultimately Notre Dame Executive Vice President John Affleck-Graves. Though this change occurred, Fr. Doyle remained the liaison between the Seeberg family and the university.

“In our effort to provide the Seebergs with as much support as possible as consistently as possible,” university spokesman Dennis Brown explained in an email to THE ROVER, “Father Doyle has served throughout as the primary university liaison with the family.”

Given that Fr. Doyle and Fr. Jenkins are in the chain of appeal for student penalties, sending families to the Office of Campus Safety rather than to the Office of Student Affairs would be a good way to protect both Fr. Doyle and Fr. Jenkins from partiality one way or the other. But if the restructuring requires families of students outside the university to speak only to the Office of Campus Safety, these families could be deprived of the pastoral support they may desire.

4. The Problem with FERPA: A Need for Transparency

Notre Dame has publicly stated that it cannot disclose records of the investigation under the Family Educational Rights and Privacy Act (FERPA), which “prohibits universities from publicly discussing specific disciplinary cases,” as vice president for public affairs Janet Botz told the university community in a November 23 email.

This explanation is incomplete. FERPA does not forbid the university from publicly discussing the case; instead, the law gives the university a choice: it can discuss cases or it can choose not to discuss them.  Paragraph 99.8(d) of the Code of Federal Regulations covering FERPA explains, “The Act neither requires nor prohibits the disclosure by an educational agency or institution of its law enforcement unit records [italics added for emphasis].”

These records could be released without any names or identifying details in them. So why has the university chosen to keep the investigation private? Brown explained that the records have been kept closed “in the long held belief that, as appropriate, the students entrusted to us merit degrees of privacy during their formative years.” Brown also said that by opening the records, “we would be setting a precedent for providing other information that, as a private institution, we do not make publicly available.”

Since only Lizzy and the player were in the room at the time of the assault, Lizzy’s death severely weakened her chance to press charges against him. The player either committed a felony against Lizzy or he did not, based on whether the interaction was consensual, as he told the NDSP investigator. Until we know what really happened in the room, it might be considered impractical for the university to make the investigation records public.

Nevertheless, the important question is why Notre Dame chose to defend its silence on the case by giving only a partial truth. If the university CHOSE to interpret FERPA as a law that does not require it to speak about the Seeberg investigation, then it should have explained so to the public, rather than claim that FERPA forbids it from discussing the case. To give only a partial answer to pressing questions from the Notre Dame community and the public is to set a bad precedent for the university’s future public announcements.

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