The Line Between Policy and Personal Freedom

An interesting article at The Daily Beast about Notre Dame freshman Justin Brent. The football player was photographed on a date with adult film star Lisa Ann. Apparently the two later ended up in bed. What remains to be seen is whether or not this will lead to any disciplinary action for Brent. Personal privacy aside, Notre Dame has a policy in place regarding sexual conduct of students.

The University embraces the Catholic Church’s teaching that a genuine and complete expression of love through sex requires a commitment to a total living and sharing together of two persons in marriage.  Consequently, students who engage in sexual union outside of marriage may be subject to referral to the University Conduct Process.

A couple of years ago I wrote about MMA fighter Nick Diaz who had been suspended by the Nevada State Athletic Commission for having marijuana in his system, despite the fact that he had used the drug legally with a medical license in California. Diaz attempted to fight the suspension but was ultimately forced to accept the ruling, with the logic that he accepted the no-marijuana policy when he signed to fight in Nevada.

The Daily Beast article is geared towards society being more accepting of ‘civilians’ associating with porn stars. On that front I am in agreement. They are performing a legal act and quite frankly, we know a lot more people enjoy porn that are willing to admit it. If public figures want to associate with adult film stars, and they think their audience will accept it, then I see no problem with it.

On the other hand, where Brent has gotten himself into trouble is with his violation of an existing policy. He agreed to this policy when he decided to go to Notre Dame and in that regard his (likely) punishment is fair. No doubt people will complain that his rights are being violated but that ignores the line between personal freedom and the rules of association. Too often in the U.S. people agree to certain policies and then complain when those policies are actually enforced.

There is also something to be said here for social media. Today’s young people see almost no line between their public and personal lives. Brent may ultimately prove to be his own worst enemy by thinking this wouldn’t receive attention. Again, this was his choice and the consequences should fit that model. Personal rights are important, but in a society our expectation of complete freedom should always be understood in the context of the written and unwritten rules that govern all of our interactions.

 

 

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51 thoughts on “The Line Between Policy and Personal Freedom

  1. “Today’s young people see almost no line between their public and personal lives.”

    i would amend this to “see a wildly different line”.

    mike, a good book for you to read on this subject would be “it’s complicated” by danah boyd. pretty good, if somewhat surface level, ethnography on teens and social media.

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  2. I think the issue are questions of enforcement.

    Do we really think that there is no sex happening at Notre Dame? Of course not! Yes it is a Catholic University and it might be more Catholic than many other universities. My law school is part of a Jesuit University but the only thing really noticeble about Catholicism is that the upper-admins are Jesuits and sometimes there is an on social justice.

    One of my law professors joked that I was diversity for USF because I was a Jewish guy from New York. Another law professor responded “Yes but he is not diverse from the faculty”

    I can see why Notre Dame would want their football players to have a saintly public image but it feels like this guy is being punished merely so Notre Dame can tell students to remember that they are a Catholic School and do Catholic things. In my opinion if they really wanted to be serious, they should be kicking out students left and right for out of wedlock sex but that won’t happen because it would mean that their enrollment numbers would enter free-fall. The fundie colleges seem to be able to get away with those strict rules but not other places including Catholic and mainline Protestant affiliated universities.

    I do have some sympathy for your point though that the school does have a religious affiliation and rules that go along with it. Cardozo is law school in New York connected to Yeshiva University which is Orthodox Jewish. Yeshiva’s law and medical schools have a fair number of non-Jewish students but the schools still follow Jewish rules which means that they are closed from Friday sundown until Saturday at Sundown. It also means that non-kosher food is not allowed on campus. The Asian students really dislike the ban on non-kosher food from what I hear but to me the school is more in the right because they are enforcing a universal over a selective punishment.

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    • I think it depens on whether the date and sex happened on and off campus. Cardozo was acting in its authority because they were controlling what was occuring on campus. They didn’t tell the students that the have to keep kosher and Shabat off campus. They were just trying to their campus kosher.

      If Justin and Lisa’s date and sex happened at least partly on campus than Notre Dame is in their right to enforce their code of conduct. Its not like Notre Dame is enforcing regulations and codes ex post facto.

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    • “Do we really think that there is no sex happening at Notre Dame? Of course not!”

      Speaking as a corporate risk manager, assuming that people break the rules without being caught is a terrible reason not to enforce the rules when someone is. It might be a reason to go back revisit the policy, but you don’t not enforce corporate policy on the basis that someone else is probably doing it and not getting caught.

      And it’s not even just the sex. If Notre Dame doesn’t enforce this policy, they actually open themselves up for enforcing other policies, such as if you get caught plagiarizing you fail your class.

      I’m not a fan of universities stepping into someone’s sex life with conduct policies, but if they do you have to enforce the policy.

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      • Tod, I think you mean that Notre Dame actually opens themselves up for not enforcing regulations on plagirism by not enforcing the sex policy. I’m not sure I agree. Government gets away with selective law enforcement all the time when it comes to the War on Drugs or other criminal matters. I’m really not sure why a university would be different. No plagirist is going to get away with claiming “you let students have sex despite the code so you have to let me cheat.” Thieves can’t claim as a defense that the government lets Hollywood executives use cocaine so he should get away with larceny.

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  3. The heuristic for this should be assessing what is pervasive and what is particular. (and before that, the specific conduct being regulated, more on that below)

    The number of schools that possess and enforce a strict (for lack of a better word) personal conduct policy is an extreme minority these days (e.g. Notre Dame, BYU, service academies, certain other religious affiliated schools – and where Notre Dame is on the very permissive end of this categorization). You choose to go to those schools, you necessarily understand with eyes wide open the rules regarding interpersonal relationships they enforce. They are plenty of other equally good institutions that don’t have such rules.

    The marijuana example is a bit of the opposite dynamic – the prohibition on its use is widespread and mainstream, and its only going to be the odd institution right now that tolerates its use. This may change as MJ starts to cross the alcohol plane (and even moreso the tobacco plane, which it will do earlier.) But no one will really look askance at an collegiate institution that bans alcohol use by its students, as again, there are plenty of other fish in the sea. But either way, the rules concerning the use of marijuana or alcohol are well known and its still pretty easy to make a choice and live with it (putting aside issues of addiction, which is a pretty big set aside). And this also says nothing about how the State should or can regulate the consumption of any particular product.

    Where things get tricky is if the school’s (or other organization’s) prohibition on personal conduct is greatly at odds with society’s moral framework. (and or the state’s, but the distinction here can get tricky at another level) . The example that comes to mind is Bob Jones U’s prohibition on interracial dating that lasted until the very end of the 20th century. That position is (thankfully) also an extreme minority one these days, but one that (these days) shocks the conscience. Yet, still, if they wanted to continue to be assholes like that, I can’t say that we shouldn’t have let them.

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    • There is another issue of whether this happened on or off campus. I am more uncomfortable with him being punished if the incident happened off campus because a code of conduct should not follow a student off campus unless we are talking criminal actions.

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    • “if the incident happened off campus because a code of conduct should not follow a student off campus unless we are talking criminal actions.”

      Colleges should actually not be in the business of adjudicating and taking action on criminal actions, on or off campus, though that stance puts me at odds with Title IX, current US Dept of Ed policy, and consensus opinion on this here site.

      Notwithstanding that, the whole point of these niche institutions is that they regard eduction more holistically, as an entire lifestyle – there is no real demarcation between ‘on-campus’ and ‘off-campus’, you are living the dream 24/7.

      And that’s OK. It works for some people, and people should be able to chose such circumstances. (and again, it’s the Nation-annoying cornucopia of choice when it comes to higher education that makes such niche easily defensible even if not personally desirable as well as rather rare).

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      • I went to a private religious college for a while, and their code of conduct was all encompassing, on and off campus, during your time of enrollment (i.e., summers, too, if you were registered for fall term).

        I didn’t like it, and ultimately left. But I think it’s totally legitimate.

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      • Expecting students to adhere to the college code off campus pushes the limit for me. On campus its fine because its college property and property owners and tenants should generally be allowed to control what and what does not happen on their property. If its off-campus than we are getting into more problematic territory. Its too much like a company trying to control what their employee’s do in their off time, which is impermissible in my book.

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      • it’s how the service academies work (and they arguably go a step further, because there is force of law in regulating the conduct of their students, vice just a written or implied contract where the maximum penalty is merely expulsion)

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      • I disagree on the on-campus/off-campus thing. Again, it’s a voluntary association. It was no different when I attended private school. We were told in no uncertain terms that we were students 24/7 and our behavior off-campus was subject to school rules. If we were found in violation we could be punished or expelled. It was not a secret policy but a very open one and what we signed up for. Brent chose to attend Notre Dame.

        I would also mention that the NFL kicked out Ray Rice for violating their code of conduct. Brent serving some kind of punishment for ND’s policy (even if said policy seems antiquated) is in-line with the NFL decision.

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      • I think dealing cocaine should be, at most, a zoning infraction*, but regardless of that wish, the whole being in prison thing should make expulsion a moot point.

        On a more serious note, the problematic thing about kicking people out of school for current or past transgressions is that the criminal justice system right now steers against redemption and towards interminable denial of opportunity to get out the cycle of poverty. Thus, I am very skeptical of the merits of one of the vectors of opportunity getting more in bed with (and/or attempt to replace) the criminal justice system.

        *though one the tenets of New Urbanism is to co-locate residential and commercial zones more

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      • Maybe for high end preferred customers for either transaction, but I think in most cases the product or service is dispensed at a location picked by the service/product provider for the purposes of worker safety and management oversight. The customer may be asked to front the cost of the rented space, but it’s normally not the customer’s space.

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  4. I’m pretty much with you, here, Mike, to the point that I’m unlikely to have any criticism of Notre Dame at all if they act in a manner consistent with their policy here. I might find Notre Dame’s restrictions on sex to be prudish and puritanical, but they’re a private university, there’s plenty of other universities to choose from out there, and I don’t think it my place to criticize a religiously-affiliated entity for its beliefs about what is and is not moral conduct for individuals to engage in. Where I draw the line is where the punishments for allegedly immoral, but otherwise largely victimless, acts would seek to do real, longlasting harm to the alleged perpetrator.

    But that’s not what’s going to happen here, at least not unless Brent has a really extensive disciplinary record. As ND’s policies read, having consensual sex is not amongst the list of offenses that will “call into question a student’s continued full participation in the University community.” In other words, it’s not something for which suspension or expulsion is deemed an appropriate punishment. Punishments short of suspension or expulsion at ND seem pretty reasonable – things like mandatory workshops, apologies, etc. The most severe punishments are just loss of extra-curricular privileges (a big deal for a football player, but athletes can lose those privileges for far more trivial “violations of team rules,” ie, contempt of coach), as well as bans from particular areas of campus and bans from university housing, neither of which seem like it is going to be particularly applicable here and both of which are probably punishments that constitute a reduction of the student’s “full participation in the University community.”

    The types of things that ND says will trigger the potential for the more severe punishments are entirely understandable and appropriate – they’re all things that either involve serious harm or threat of harm to others or academic dishonesty.

    Where I would have a problem would be if ND took the approach that BYU takes (used to take?), where it had no problem expelling students for these types of violations, but in the case of a certain former QB for the Chicago Bears, only after the student’s eligibility had been used up and he was just a few months from graduation.

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    • Another ugly aspect of BYU’s ban is that it seemed to be mainly applied to black athletes who slept with white women. Which also gets at my thoughts in this case.

      Few of us would find an honor code prohibiting sex in college particularly objectionable. OTOH, as Kolohe points out above, most of us object pretty strenuously to Bob Jones U’s prohibition on interracial dating. In BYU’s case, when they can present their honor code as the non-objectionable one but it is then applied more like the Bob Jones code, that should invoke pretty serious outrage.

      If this student faces non-trivial punishment, then we’ll be seeing hints of the same thing. Because I have few problems with a university telling its students “no sex”. I have huge problems with the university telling its students “no sex with unclean girls”. And that might be what’s happening here.

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  5. Saul does bring up a good point even if this happened on campus. Selective enforcement of criminal law is one reason why liberals and libertarians hate the war on drugs. Rich white teens get to experiment with drugs while African-American, Hispanic, and poor whites get sent to jail. Justin is definitely not the first Notre Dame college kid to have sex while enrolled on campus. He might have done so to a spectacular degree but signalling him out for that seems more than a little unfair and unjust.

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  6. Doesn’t matter where it happened. He signed it. It’s enforceable where ever, if that’s what the policy says. But who was the idiot that took the selfie and posted it? So the blame rests squarely on “his own damn fault”. Without the pic, he has plausible deniability.

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    • The thing about the “your own damned fault” school of thought is that college is a period of time when we reevaluate ourselves–Our beliefs and identities are changed and challenged–and if that doesn’t happen at college, well then college was probably a waste of time and money.

      So when someone is asked to sign an honor code at 17 or 18 that they will be expected to follow until they are 21 or 22, that can cause serious conflicts, conflicts that can’t be boiled down to just “why did you sign, dummy?”

      Take my own example, When I entered college, I didn’t realize that I was gay. I did know that I had no real interest in having sex with women, certainly not before I graduated. I was a bit of a prude, frankly–a goody two-shoes whose beliefs about sex were absorbed from moralizing elders and in no way tempered by an understanding of my own sexuality or the actual beliefs and behaviors of my peers.

      I wouldn’t have signed a christian honor code as an incoming freshman, for religious and political reasons. And yet, I would have no objection to the expectation that I and my classmates should refrain from sex until we graduated.

      By the end of my first year, I would have seen such a code as oppressing my fellow students. By the end of my second year, I realized I was attracted to other males. And by the time I graduated, I’d dated and had sex with another man.

      I recognize that there’s a version of me that would have gone to a university where such behavior would be grounds for expulsion, and am very thankful that I went to a public university instead. So when I look at the folks who sign university honor codes and then violate them, I don’t ask myself “what were they thinking?” Because I know they were thinking about the present, when four years of college is a very long path to the future.

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      • People can transfer to other schools. That’s what I did.

        It’s not that I’m not sympathetic to their position, because I experienced it myself (I broke most of my first school’s rules, except, regrettably, the no sex one), and it’s not that I actually applaud such policies, because in fact I think they’re silly.

        I just think that private schools have the right to have and enforce such policies. And if a student comes to realize it’s not for them, it’s on them to transfer. They obviously no longer want what the school actually is, nor does the school want them under revised conditions, so parting ways is the best move.

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      • Oh, don’t get me wrong. I think these schools have a right to their honor codes. I’m just saying that we shouldn’t be eager to blame the students for breaking those codes.

        Though I will say this: If a school has a strict code of student behavior, they had better the hell have an accommodating transfers department. Kicking a student out because they had sex in a dorm room is one thing. Refusing to swiftly forward that student’s transcripts to a different university because the infraction means they’re not a student in good standing, or because they’re supposed to pay spring term dorm fees after being expelled in the fall, or whatever other horrible justification you can dream up for making a student’s life miserable after they’ve already been kicked out of their program of study… That’s just monstrous.

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      • and I’d also add something about accreditation here. A lot of people got screwed by PCC beside they were not accredited and no reputable school would take their credits. (Of course, graduates were only slightly better off, if that.)

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      • Will,

        I’d say the accreditation issue can be flat out fraud. I know someone who went to a business school that gave her the message–apparently with clever words that meant they never strictly lied, only intentionally misled–that they were accredited, when they weren’t. I don’t know the PCC you’re referencing, but if they were tricking students on accreditation, they ought to be horsewhipped.

        Alan,
        I agree they shouldn’t be “blamed,” as in verbally attacked and criticized. I only mean it’s their responsibility and they’ll just have to accept that. If it’s a tough life lesson, well, there are all kinds of those, and I’m not sure anyone truly grows up until they’ve had a few of those painful lessons.

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      • PCC is Pensacola Christian College. They’re actually kind of an important institution because they (as Beka Books) publish Christian textbooks for religious fundamentalist K-12 schools and homeschooling parents.

        Anyway, if you have access to the Chronicle for Higher Ed (or maybe IHE) they have a very in depth article about them. They make BYU seem like a party school.

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      • Usually codes of conduct are signed documents. If he didn’t sign any document, it really doesn’t mean he still wasn’t bound by that code once he was enrolled-nor does it impact that materiality of my point.

        Well, if you want to go there, then no one that age should be held responsible for anything, nor should they be allowed to drive or vote. “But things are different now that I got older” Whaah. Actions have consequences. He should have thought about that BEFORE he agreed. Plenty of state schools around. He should have learned how to evade getting caught for stuff like this when he was in high school–like everyone else.

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      • My point is simply that there are differences between…

        A) A signed code of conduct which he should have read and if he didn’t, shame on him.
        B) An unsigned code of conduct but one which he was given direct access to and/or explicit instructions to read, understand, and follow
        C An unsigned code of conduct buried somewhere on the school website that most people have a vague understanding of but which no one reads and most of which is rarely enforced.

        Now, I’m sure regardless of which of those situations this is, the University would have grounds to pursue discipline. But whether that would be a reasonable response or not would seem dependent on which of the above situations this fell under.

        As I mention below, I attended a Jesuit institution with a similar rule about sex. And I say ‘similar’ because I don’t actually know what the rule was. During freshmen orientation, we were told that cohabitation was not allowed. When we asked what cohabitation was, we got shoulder shrugs and a general, “Eh, we know it when we see it.” I probably could have found official definitions and codes and policies somewhere but if the people charged with enforcing the rules couldn’t take the time to learn them, 18-year-old Kazzy saw little reason to learn them himself.

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      • , Yeah, I’m cool. Point C is the only one I’m a little wishy washy on. All else, as long as it was made clear what the expectations were…it’s on him.

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      • I agree. However, I would be uncomfortable if the school came down differently on him because he’s A) a football player, B) she’s a porn star, and/or C) they’re an interracial pairing (with varying degrees of discomfort). If they more or less treat him as they’d treat any other student caught in a similar situation, I ultimately see much ado about nothing.

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      • Damon, I don’t think you’re getting what I’m trying to say about age.

        I’m not saying that teenagers are too stupid to understand what they’re signing. I’m saying that the person you are at 17 isn’t the same person as the person you are at 21.

        Growing up isn’t just a progression from dumb to smart. A lot of it is just change, whether that’s change for the better, change for the worse, or change that’s orthogonal to whatever value scale you’re using.

        And the college years are a period of particularly rapid, particularly drastic change. To ask someone to make a long term commitment to a standard of behavior drastically outside the norm at the very beginning of the college experience is, as I see it, an idea that ignores the reality of the situation.

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      • Alan,

        I could make the same argument about the jump from 21 to 25. I started working for my company (and agreeing to all their rules) when I was 24. Now I am 39. A lot has changed in my life but I still have to follow the same rules.

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      • Does your company have rules about pre-marital cohabitation? Because I’d actually be a lot more upset about an employer making that demand than a school making that demand.

        But more broadly, I think the burden of changing jobs is a bit less than the burden of changing universities, and I think the kind of demands an employer puts upon you are going to interact with your changing self-concept in much more limited ways than the demands of a school honor code.

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      • “I think the burden of changing jobs is a bit less than the burden of changing universities…”

        I haven’t found that at all. When I changed colleges back in the 90s it was really as simple as doing some paperwork, making sure all my credits would transfer and learning my way around the new campus. Changing jobs? That usually involves a loss of vacation, change in pay (and budgeting concerns that go with that), new health insurance, rolling over a 401K. I find that to be much more difficult.

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    • Just because it’s a clause in a contract doesn’t automatically make that clause legal or enforceable.

      How surprised are you when you read that a court case over the validity or enforceability of some clause of a contract ends up finding the clause to be void? There might be specific cases where such an outcome surprises me, but the general idea that a contract clause could be found null and void is not surprising to me in the least – “it’s in a contract that he signed, case closed” is not, on its own, that strong of an argument.

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    • As an alum of said institution, from what I’ve heard the only way you can get busted for this is to either have photographic evidence, have an authority figure walk in on you, get/make someone pregnant, rape or run into some sort of multiple goody two shoes witnesses thing. It’s super hard to get kicked out for it unless you’re doing something stupid.

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      • Thanks, . I went to BC, which had similar rules. But from what I remember, BC was much stricter on drinking than ND was and ND was much stricter than BC on sex. My lone visit to ND’s campus confirmed the former and my understanding that ND had all single-sex dorms while BC only had single-sex floors in dorm rooms with communal bathrooms implies the latter.

        At BC, I only know one person who ever got cited for cohabitation and that was only after he was told by the RA to stop and did it anyway. It was less the sex and more the flagrant disregard for the rules that were the issue.

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      • I was only there for grad school, so my experience was very atypical (for example, you could have opposite sex neighbors in grad student housing [the horrors!]). However, that is what I heard. I remember my roommate’s reaction when he saw the no sex clause in Student Conduct Guide and freaked out. I told him, “Just remember these two magic word: Prove it.”

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      • Mo,
        that’s one of the arguments religious folk tend to use in favor of sharia law… That it’s really difficult to prove most things (and that harsh punishments deter false accusations and crime).

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  7. I agree with Mike’s general point. However,

    What if Brent says, “its a picture of us shirtless. Who said anything about sex” ?

    In that case, I’d be inclined to let the matter rest.

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  8. Let me push back just a bit about the general consensus that the student agreed to attend a Catholic college and knowingly accepted its code of conduct.

    A bit.

    Was this particular policy pointed out to him when he was considering attending Notre Dame? Chances are, particularly given that he’s a student-athlete, there was a bit of recruitment going on and coaches or other recruitment types were personally touting the school to him. No one will have said to him in these presentations, “Oh, and if you come to our school, you can look forward to four years of celibacy!” I’m willing to believe that there was at least some talk of the active, positive social life and the many opportunities for forming friendships and lifelong relationships at the school.

    And having got there, of course, we’re talking about being surrounded by a bunch of other eighteen- to twenty-two-year-olds, of both sexes, and seeing an active social and dating culture about campus. Nor would it take too long before the student-athlete would have noted that many of his teammates had girlfriends, and that many of them were sexually active with their girlfriends with no consequences, or at most a wink and a caution to be discrete, from the administration.

    So this young fellow might reasonably have presumed that this was a de jure policy put in place to formally keep the Catholic hierarchy happy but that the school had a de facto policy of considering students’ sex lives none of their business presuming mutual consent between adults. Or indeed he might have been actually ignorant of the policy, having never read it and never had it discussed (which, I understand, would not mean that he was not on notice of the policy, it being available for him to read in materials available to him).

    At least, his level of outrage could reasonably be similar to that of the motorist who routinely drives at 70 mph on a particular stretch of freeway and has, a dozen times previously, seen highway patrol vehicles observe him driving that fast and ignoring him, only to find that on the thirteenth time, he gets a ticket for doing exactly what the cops had observed him do a dozen times before while doing nothing. Driver is, in fact, speeding. But there’s a bit of moral (albeit not legal) righteousness to his objection that he’d thought the de facto rule was that the cops would allow a little at least that much “give.”

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    • Burt,

      Isn’t there a big leap between how the school deals with sexual contact that happens in private and how the school handles sexual contact when it is done in full view of the media? In other words, if I am walking down the sidewalk with a beer in my hand and waving to the campus police, shouldn’t I expect more attention that my buddy that sneaks beer up to his dorm room and drinks with the door locked?

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