On the soccer field, Monica Gonzalez always seems to be in the right place at the right time. This has made her a star defensive player for both the Notre Dame women's soccer the Mexican National Team. Off the field, however, she has found herself embroiled in a lawsuit with the university over a drug-related incident in which she claims she was just in the wrong place at the wrong time. Her case brings up a host of issues that not only challenge the jurisdiction of du Lac but also reveal a double standard in the way its policies are applied.

                   Gonzalez says that Vallejo told her just to play dumb and she would get off with a light punishment: "He
                   said, 'There's a week left in school. Say that you're a foreign student, you're a girl, and you were out in the
                   … market and somebody just gave it to you.' " After she had lied in the hearing, however, Albert Le May, a
                   Notre Dame professor and the director of the Mexico program, pointed out to Gonzalez the possibility that
                   she could be expelled for the offense and advised her to tell the truth. Le May helped her go to UDLA
                   officials to recant her confession and obtain a second hearing. She went to Vallejo and convinced him to
                   confess that the drugs were his. (He was subsequently expelled from the university.) UDLA granted Gonzalez
                   a second hearing on the basis of this retraction. 

                   At Gonzalez's second hearing, she was found guilty of purchasing the drugs and of bringing the alcohol (the
                   bottles of wine that she had purchased earlier at the grocery store) into the dorm, a violation of UDLA's
                   housing regulations. She was suspended from attending UDLA for the summer session of 2001 and was told
                   that she would be placed on disciplinary probation during any future enrollment at UDLA. But she was not
                   planning to return to UDLA the next year, as she was returning to Notre Dame for her fifth year in order to
                   play soccer. 

                   Then, on June 1, 2001, Notre Dame's Office of Residence Life and Housing (ORLH) notified Gonzalez that it
                   had received a report of the incident from UDLA, which she had had to sign before leaving Mexico in order to
                   receive her grades. At that time, ORLH requested that Gonzalez send them a summary of her version of the
                   facts of the case. On August 13, ORLH formally charged her with violating the university drug policy as
                   outlined in du Lac. The policy states that "Possession or use of any controlled substance … is a serious
                   violation … Providing for others, by sale or otherwise, marijuana or any other illicit drug, is a serious
                   violation…" The penalty for both violations is either "disciplinary suspension or permanent dismissal" from
                   the university. ORLH based its charges on translations of reports of both hearings that had taken place in
                   Mexico and on her written statement.

                   At the August 24 hearing, Gonzalez denied paying for the marijuana, but this claim was contradicted by the
                   testimony of Prof. Le May, who had attended the hearings in Mexico. Le May stated that he recalled her
                   telling him that she had loaned Vallejo money. (Gonzalez claims that Le May was mistaken in this portion of
                   his testimony.) On September 14, ORLH found Gonzalez guilty of violating the university's drug policy. The
                   decision was based on Gonzalez's statements, Prof. Le May's testimony and the UDLA report. ORLH placed
                   Gonzalez on disciplinary probation for the Fall 2001 semester. As a consequence of this probation, she would
                   not be eligible to play soccer, which was the only reason she had returned to Notre Dame for a fifth year.

                   At this point, Gonzalez wanted to appeal to the Rev. Mark Poorman, vice president for Student Affairs, but,
                   according to du Lac, a student can appeal to Poorman only in the case of procedural defect or new evidence.
                   But in Gonzalez's case, neither was applicable, so she decided to seek legal counsel. Double Domer Charles
                   P. Rice ('85, '88) took her case. 

                   Rice was convinced that what he construed to be unfairness in the Mexican hearings qualified as a procedural
                   defect, since the hearings formed the basis for the initiation of the ORLH's charges against Gonzalez. The
                   proceedings in Mexico had been conducted entirely in Spanish, a language that Gonzalez, who is from
                   Texas, says that she does not speak fluently, despite her participation on the Mexican national team.
                   (Because Mexico allows any third-generation Mexican to play on its national team, the team is composed of
                   mostly American players, many of whom speak little Spanish.) 

                   The report on the proceedings that Gonzalez had signed was also in Spanish, so she claims that she did not
                   realize the errors it contained when she approved it. "I wasn't given a translation when I signed the report
                   from Mexico," she says, "so there were some facts in there that were not correct." Most striking is the
                   report's claim that Gonzalez had paid for the drugs, an allegation that she has refuted all along. "Notre
                   Dame … read that [I had paid for the drugs] off of a report that I did not have a chance to correct and
                   change" due to the fact that it was in a foreign language.

                   Adding to the alleged unfairness of the hearings, Gonzalez was not permitted to call witnesses to testify on
                   her behalf at the UDLA's hearings. "[On the day the incident occurred,] there was another guy in the car with
                   us," she recalls. "I kept telling the committee [to] go ask [Vallejo's] roommate - he was there, he knows
                   exactly whose money it was, whose idea it was … but they didn't allow me to see that witness." UDLA also
                   refused to drug test Monica, despite her repeated requests that they do so. 

                   These allegedly unfair circumstances of the proceedings in Mexico, which Rice claims are serious defects,
                   were included in a lengthy written appeal to Poorman on September 19. Also included in the appeal was
                   Gonzalez's claim that Le May's testimony at her ORLH hearing had been mistaken. According to Gonzalez,
                   "he made a statement about how I'd loaned [Vallejo] money" but failed to clarify that she had lent him the
                   money only for groceries. In fact, Gonzalez claims that she paid for the groceries with her credit card and did
                   not even have any cash with her on the day the incident took place. Gonzalez says that when Le May
                   realized his error, he actually went back to members of the committee to correct his testimony, but they
                   refused to acknowledge anything he said outside of the hearing. Le May was not available for comment.

                   On September 25, Poorman denied Gonzalez's appeal. Gonzalez says she was disappointed that his letter
                   listed no reasons for his decision to uphold ORLH's findings, nor did it answer the issues cited in her appeal.
                   "It seemed to me as if their decision was made beforehand," she says. Poorman has declined to comment
                   on this situation "for reasons related to confidentiality." The day after receiving notice of Poorman's decision,
                   Gonzalez filed a lawsuit against Notre Dame and obtained a temporary restraining order obliging the
                   university to allow her to play soccer.

                   Deputy General Counsel Bill Hoye and Counsel Timothy Flanagan, representing the university in this case,
                   later argued for the dissolution of this restraining order, claiming that Rice did not give the university enough
                   advance notice that he was seeking the order. Hoye and Flanagan also claimed that Gonzalez does indeed
                   speak Spanish fluently. On these grounds, they contest Rice's claim that the Mexican hearings that played a
                   key role in ORLH's case against Gonzalez were essentially unfair. 

                   In the bench trial that followed, Rice and Hoye disputed various points before Judge William T. Means of the
                   St. Joseph Superior Court, including those regarding the court's jurisdiction over university proceedings and
                   disciplinary actions and the necessity of Gonzalez's obtaining an injunction against the university so that she
                   could continue to compete on the Notre Dame women's soccer team.

                   Rice argued that, based on the complaints listed in the appeal, the court ought to intervene and reverse
                   ORLH's finding. In addition, Rice claimed that the severity of the punishment was too great for the incident
                   in question. (This argument was not made in the appeal letter to Poorman, because university policy forbids
                   that severity of punishment be mentioned in the appeal of an ORLH decision.) "This is a kid who came back
                   [to Notre Dame] for her fifth year - she could have graduated last year - and hung around to play this
                   season of soccer," he says. "It is just such a severe punishment for her, and a severe punishment for her
                   above and beyond how they'd punish the general student body at large," since most students have less at
                   stake than an opportunity for a career in professional athletics." He argued further that the university's
                   decision was devastating to Gonzalez because it left her with little opportunity to pursue her career.

                   Hoye, on the other hand, contended that "Gonzalez is a pre-season all-American soccer player, a member of
                   the Mexican National Team, and among the most successful women's soccer student-athletes in the history
                   of Notre Dame's nationally renowned women's soccer program … She has accomplished more in her
                   intercollegiate soccer career than most other women's soccer players in the nation ever will. If she is denied
                   the opportunity to play in a portion of her final season, there is no evidence … that her future in soccer or
                   her career prospects will be adversely effected, much less 'irreparably harmed.' "

                   Additionally, Hoye argued that that the ORLH hearing had been conducted properly and that the case was
                   not a matter for the intervention of civil authorities, but rather for the university to deal with as a private
                   institution. He cited numerous precedents in which courts had ruled not to interfere with university disciplinary
                   proceedings. 

                   On October 23, Means found in Gonzalez's favor, granting her a preliminary injunction that allows her to
                   continue playing soccer until a trial can be held to determine whether a permanent injunction will be
                   necessary.

                   Means determined that "when discipline of a student is imposed by a panel which has no jurisdiction to do so
                   it is a Court's duty to intervene to prevent it." In addition, he noted that the possibility of winning a national
                   championship would cause Gonzalez "irreparable or great harm."

                   Means's seven-page ruling raises issues of consistency in university policy and further calls into question the
                   extent of du Lac's authority. Essentially, he found that "the Office of Residence Life and Housing lacks any
                   jurisdiction to discipline Monica for this violation." He determined that du Lac lacks a clear jurisdiction over
                   students who are studying abroad and that to punish Gonzalez for the same violation for which she had
                   been punished by UDLA "smacks of constituting double jeopardy."

                  Inconsistent Enforcement

                   In his ruling, Means points out what he believes to be an inconsistency between the way Gonzalez's case was
                   handled and the way the university enforces Indiana state law with regard to underage drinking: "I am …
                   somewhat disturbed by the fact that a single isolated incident occurring hundreds of miles away from Notre
                   Dame at another university in a foreign country which incident consisted of rather tenuous facts constituting
                   the violation (i.e., the contraband was actually found in another student's room) could form the basis of such
                   severe punishment destroying a student's final year of athletic competition at Notre Dame while it is
                   commonly known that under age use of alcohol by the students in the dorms at Notre Dame has been
                   largely winked at over many years." 

                   Notre Dame Director of Public Relations and Information Dennis Moore denies the implications of this
                   statement. He cites the recent crackdown on student tailgating as a demonstration of the university's
                   "strenuous efforts to discourage underage drinking and enforce university rules with respect to underage
                   drinking." Furthermore, he claims that the university alcohol policy "make[s] it clear to students that they
                   are responsible for abiding by Indiana law." 

                   Within the residence halls themselves, Moore notes that they "are students' homes, so things there are
                   handled differently than outside [the dorms] … There's definitely a pastoral dimension to the way problems
                   are dealt with in the residence halls, and that's intentional." Moore observes that the pendulum on alcohol
                   policy enforcement swings back and forth as the policy is re-examined every few years, and over the past
                   three or four years, there has been a swing in the direction of stricter enforcement of Indiana law. 

                   Nevertheless, the fact remains that under the current policy, underage students can drink with veritable
                   impunity as long as they do so behind closed doors. This fact is not lost on Means, whose remark reflects
                   the perception within the South Bend community of the blind eye that the university seems to have turned
                   toward its drinking problem in the past.

                   In addition, Moore points out the difference between marijuana and alcohol in the eyes of the law. "Alcohol
                   is legal," he says. "It's not regarded as a totally banned, illegal substance, and marijuana is." On these
                   grounds, the university holds that any offense involving marijuana or any illegal drug must be regarded as
                   more serious than an alcohol policy violation.

                  Double Standards

                   One of the key points in Rice's case was his allegation that the
                   university had violated Title IX. He claims that "the university has in
                   the past had male athletes who have been tested positive for THC,
                   which would be an indication that you have used marijuana. There was
                   a lacrosse player who was suspended for one game, [and] there were
                   two football players who tested positive … [The university] did not
                   punish them, instead they said, 'We're going to give you - wink, wink
                   - a retest,'" which they subsequently passed.

                   Rice made his claims based on these three specific instances. After
                   the trial, he subpoenaed the documentation for these cases from the
                   university to prepare for the next stage of litigation, but as of
                   Tuesday morning, he has received no response. The names of the
                   athletes in question are not being released to the press at this time.

                   On the basis of this alleged special treatment, Rice argues that "if the university is aware of someone using
                   drugs, that is as serious if not more serious than the allegation which they have accused Monica of … because
                   it's actually the same disciplinary policy" that deals with use, possession and provision of drugs as equal
                   offenses. Rice claims that the university has "male athletes that they're essentially giving a pass to on this
                   stuff, and they're holding female athletes to a higher standard." Rice cited this disparity as the basis of a
                   Title IX complaint. 

                   "For the life of me," he says, "I couldn't figure out why, why [the university] decided … to go after this
                   Academic All-American soccer player, when they've got far more serious stuff that occurs with other male
                   athletic students, and it sure seemed to me that it smacked of a double standard." 

                   Gonzalez remarks: "I want to think that they [the university] do everything just based on facts, and I feel
                   like they just got some of their facts confused, and when it came down to taking my word, they didn't … I
                   don't want to think that Notre Dame holds a different standard for female athletes opposed to male athletes,
                   but the fact that this has happened in other cases, where guys test positive for drugs and get away with it, it
                   makes you wonder." 

                   Moore denies these allegations. "We have a pretty strict drug policy, and it's uniformly enforced," he says.
                   The university's drug testing policy for student-athletes is that after one positive test for steroids or illegal
                   drugs, a student-athlete is suspended from competition until he or she tests clean. A second positive test
                   means expulsion from athletic competition at the university. All drug testing, he points out, is handled by
                   Health Services. They keep the records and notify the Athletic Department when an athlete tests positive.
                   They do not, however, notify the Office of Student Affairs (OSA), of which ORLH is a branch.

                   Moore explains that the reason OSA is not notified of positive test results is that "student-athletes are the
                   only ones required to undergo drug testing, but it wouldn't be fair then, since they're forced to undergo drug
                   testing, that when something is revealed in one of those drug tests, they are then subject to Student Affairs."
                   In other words, because student-athletes would be at more risk of getting caught using illegal drugs than the
                   average student, their records are kept from the OSA in order to make the system more fair for them. 

                   It follows from this system that student-athletes are not subject to du Lac as long as the Athletic Department
                   is handling the drug testing. Thus it seems that drug policy in du Lac somehow does not apply to the Athletic
                   Department. Moore admits that this is one interpretation of the situation, but he claims that the Athletic
                   Department and OSA are "two separate systems, and the reason that they don't interfaces [that] athletes are
                   the only people who have to undergo mandatory drug testing…But athletes are still subject to du Lac in any
                   other circumstance."

                   Although a positive test for the Athletic Department will not get a student-athlete into trouble with OSA, a
                   positive test for OSA in relation to a disciplinary case will count as first strike with the Athletic Department. In
                   this way, the university punishes student-athletes who get into trouble with OSA (as in Gonzalez's case), but
                   not those who test positive for illegal substance abuse under the Athletic Department.

                   In making this distinction between Res Life and Athletic Department policies, the university is acknowledging
                   that the two departments operate on different standards. In the instances where Rice is alleging special
                   treatment, Moore says that since the Athletic Department handled them, the cases would not have been
                   reported to the OSA and thus the sort of disciplinary action to which Gonzalez was subject under the ORLH
                   would not have been applicable in those cases.

                   Hoye answered the Title IX charge by arguing that Gonzalez's case must be compared with others handled by
                   the same department - ORLH - and not the Athletic Department. He then cited figures from the past five
                   years that demonstrate that female students involved in cases of "use, possession or provision of marijuana"
                   are not held to higher standards than male students involved in such cases. In fact, Hoye's figures
                   demonstrate that "the women in the group under study were, in fact, far more likely than men to receive the
                   lesser sanction of disciplinary probation (which is precisely what Ms. Gonzalez received)." The university thus
                   attempts to show that if the court accepts this distinction between Athletic Department and ORLH, then there
                   is clearly no discrimination against Gonzalez on the basis of gender. 

                  Limitations on the Jurisdiction of du Lac

                   Means based his ruling against the university primarily on his determination that "[t]here is no provision
                   contained in du Lac that specifically grants any jurisdiction to the [ORLH] to conduct an administrative hearing
                   for an incident occurring at a university in a foreign country - except for the language: 'Responsible behavior
                   is expected of Notre Dame students wherever they may be' which is too ambiguous to be enforceable since
                   ambiguities are strictly construed against Notre Dame as preparer of du Lac. … du Lac contains no provisions
                   providing for a disciplinary hearing to be conducted by [ORLH] for a student attending another university in a
                   foreign country."

                   Means further cites the opening line of du Lac: "'This booklet contains the codes, rules, regulations and
                   policies which establish the parameters for students life at Notre Dame.' (emphasis supplied)." He interprets
                   this to mean that any student studying abroad, and perhaps even students at home on break, would be
                   outside of the jurisdiction of du Lac. 

                   The university disagrees with such a narrow interpretation of du Lac. The university clearly thought that the
                   "Responsible Behavior" clause extended du Lac's jurisdiction to all students, including those studying abroad,
                   despite the fact that they do not sign any contract committing them to abide by du Lac while they are away.
                   According to Moore, "any time a student is involved in a disciplinary matter … [involving] civil authorities in
                   the U.S. or abroad … [the university is] always going to look at that." In such cases, the university does not
                   simply accept the decision of the civil authorities involved, but rather it conducts its own independent hearing
                   according to the procedures outlined in du Lac. 

                   Moore says that he found the ruling "a little odd in that the judge took that one phrase - at Notre Dame -
                   and took that to mean that only somebody on campus at the time something happens [is subject to du Lac].
                   There was also some language [in the ruling] that indicated that [the judge] was looking at going on an
                   international studies program as a case where you withdraw from Notre Dame - you're not a student here
                   during that time and then you're re-admitted - [but] for all our programs, that's not true. You remain a Notre
                   Dame student, you're considered to be enrolled here, you're paying tuition to us … As far as we're concerned,
                   while [Monica is in Mexico], she is attending Notre Dame - she's not here on campus, but she is attending
                   Notre Dame, which would be the case for anyone who is in one of our international studies programs or in our
                   Washington, DC, program." Nevertheless, the university plans "to make [the 'Responsible Behavior' clause]
                   more explicit, as a result of this [case]." These changes will likely take place next year. 

                  Double Jeopardy 

                   In addition to the issue of du Lac's authority, Means found that "to permit Monica to be punished a second
                   time for the same offense for which she was disciplined at [UDLA] in the country of Mexico was clearly
                   fundamentally unfair and akin to double jeopardy."

                   The university, however, claims that as a private institution, it has the right to hold its own hearing
                   independent of those conducted in Mexico. Moore points out that "this is something that happens routinely
                   here and other places and in society at large." He cites instances such as last year's bar raids, where
                   underage students were subject to both civil and university punishments. He also notes that private
                   companies can impose penalties on their employees if they get into trouble with the law outside of work.
                   "These are all instances of two different institutions punishing [a person] for the same offense." He also
                   remarks that the university "does not expect this to set a precedent [with regards to double jeopardy]."

                   When asked to comment on the issue of double jeopardy, Rice simply remarked that "the university is
                   entitled to its opinion [on this issue], but the judge's opinion is the only one that counts." 

                  What Next? 

                   The university has not yet decided on a course of action, but it has until November 22 to appeal Judge
                   Means's preliminary injunction. For now, Gonzalez gets what she wanted in the first place: She continues to
                   compete with the Notre Dame women's soccer team. "I'm just going sort of week to week, and if I can play
                   the next game, I get the go-ahead."

                   Gonzalez has been paying for her legal expenses out of her own pocket, but she claims that regardless of
                   whether the university appeals, she has no plans to sue for money. "I don't really want [money] to become
                   an issue, I just really want justice to be done here. … It's worth the cost - I mean, what kind of cost can you
                   put on your last college season, on winning the national championship?" 
 

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