Lux et privacy

Barry Falls

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On May 23, 2007, two officers of the Yale University Police Department stopped a 16-year-old African American who was riding a bicycle on a public sidewalk a few blocks from the Yale campus. They arrested him and took him to the New Haven Police Department's detention facility. The arrest followed upon a spate of muggings in 2005, committed by teenagers riding bikes who had "what appear to be weapons," according to a university-wide memo from YPD chief James Perrotti. One city alderwoman had been concerned enough about the crimes to propose a juvenile curfew.

After interviewing the young man, the New Haven public defender, Janet Perrotti, became convinced he had been unfairly targeted. (Perrotti is related to Yale's police chief by marriage.) The Yale police "say kids on bicycles ride in gangs. That has not been my experience," Perrotti says. "This kid was in front of his school, sitting on his bicycle by himself." Believing that the officers had engaged in racial profiling, Perrotti filed a request under the Freedom of Information Act for the personnel files of the officers. Chief Perrotti denied the request, saying that the YPD is a private entity and therefore not subject to public disclosure requirements. The public defender promptly filed an appeal with the Freedom of Information Commission.

On February 13, the commission issued its official ruling, finding against Yale. The university has not decided what, if any, action it will take in response. Whatever the outcome, it's a case that raises challenging questions about the lines between public and private and the nature of a campus police force.

For a university police force, Yale's police are highly professional. Their training adheres to the standards of state law. They wear uniforms and carry weapons. They have the power to arrest anyone inside New Haven; their felony arrest powers extend even further, to the borders of Connecticut. Still, the police officers are the agents of a private institution, and as such, they occupy a strange middle ground that courts are only beginning to hash out. "We believe that private universities that employ sworn police officers should have the same levels of accountability as their counterparts who work for the state or local government," says S. Daniel Carter, senior vice president of the advocacy group Security on Campus. Carter's belief, however, has yet to find widespread expression in the law. As Max Bromley, an associate professor of criminology at the University of South Florida who studies campus police forces, puts it, "Private institutions have a lot more ability to protect what they don't want to share until some court tells them differently."

Harvard University, for its part, has aggressively fought disclosure of its police records. In 2003, the Harvard Crimson sued Harvard University to force the release of more detailed crime reports about police incidents. (Full reports about arrests were already public.) The Crimson's argument was that the Harvard cops, whose powers mirror municipal forces, should be subject to the public records law in Massachusetts. Harvard countered that the HUPD is a private entity and therefore exempt from the law. It cited student privacy as a key reason for the HUPD's policy of limited disclosures.

"We write a lot of reports that would not normally be written by a public police agency. A lot of them detail the caretaker role that the university takes with its students," explains Steven Catalano, the public information officer for HUPD. "Although Harvard's a large community, it's fairly closed. People can be easily identified." In 2006, the Supreme Judicial Court of Massachusetts sided unanimously with Harvard, ruling that the "public records law [is] applicable to documents held by public entities, not private ones."

Yale hoped to establish a similar principle. "Yale is a private employer and not the equivalent of an agency of state government," Linda Lorimer ’77JD, a vice president of Yale, wrote in response to requests for an interview. (Lorimer sits on the board of this magazine's nonprofit publisher.) "Yale hires and fires its police and security officers just as we independently recruit and evaluate faculty and other staff at Yale. This principle is important to us." It would be imprudent on Yale's part to acquiesce to application of FOIA to any Yale employee, Lorimer wrote. She added that the commission's decision does not differentiate between police and other YPD personnel.

Like Harvard, Yale often prioritizes privacy over openness. It, too, is closemouthed about matters relating to student discipline. Of course, no students are implicated in the FOIA case, but the habit of keeping mum is deeply ingrained at Yale.

Connecticut law,however, holds that a private agency can be considered the "functional equivalent of a public agency"-- and consequently subject to FOIA -- in certain instances. The functional equivalency test evaluates four factors: whether the entity performs a governmental function; whether it was created by government; the extent of government involvement or regulation; and the level of governmental funding.

In their briefs and oral arguments before the Freedom of Information Commission, Yale's counsel, Robert Langer, and the public defender agreed on only one point: that the YPD performs a governmental function. "Every effort should be made by the YUPD to build the trust of the community," Perrotti argued. "The YUPD should not become one of Yale University's secret societies."

The Yale University Police Department is the oldest campus police force in the country. It was founded in 1894, when relations between Yale's students and the locals were so strained that a rumor circulated that Yale medical students were removing recently buried bodies from local cemeteries to use as cadavers. A mass riot ensued, injuring students and townspeople, and the New Haven Police Department decided to assign two volunteers from its force to the campus. The officers were met with suspicion from the students. "They did not know, but strongly suspected, that the object was to watch them or to spy on their actions, and they heartily resented this," wrote Bill Wiser, one of the first two officers. "Why, then, should these two cops be permitted to enter the charmed and secret enclosure?" Wiser and his partner, Jim Donnelly, earned the trust of the students over time, by cracking down on property thefts and, at times, even performing simple household tasks like sewing on loose buttons.

With an operating budget of $10.3 million, the Yale police are called upon to perform a wider range of duties nowadays. According to Martha Highsmith, deputy secretary of the university, the YPD has 83 sworn officers who conduct routine patrols on campus, keeping tabs on their beat and engaging in "park and walks" to make their presence felt. They are on hand to respond to complaints about trespassing, property thefts, public hazards, or more serious crimes. They also assist in crowd control during the large events, like commencement, that occur routinely on campus.

Alongside the officers is a contingent of civilian employees who staff the department's new, upscale headquarters at Ashmun Street 24 hours a day. The building serves to highlight Yale's commitment to community policing: it houses the Dixwell-Yale Learning Center, which includes a dedicated meeting space and a computer classroom for use by residents of the surrounding Dixwell neighborhood. The center offers free classes, tutoring, and sports activities. "We want to know our neighbors," Highsmith says. "One way to do that is to have officers walking around. Another way is to have people come and interact with police in settings that are positive and interactive." According to Highsmith, the building is frequently used by Dixwell locals, who know Yale's officers on a first-name basis.

Betty Trachtenberg, dean of students of Yale College from 1987 to 2007, says she has "nothing but good things to say about the Yale police." (Trachtenberg stressed that she is retired and does not speak for Yale.) She worked with them on tasks from keeping order during tap night, when members of singing groups rush the dorms of first-year recruits, to dealing with sensitive cases of sexual harassment. "The police show terrific restraint in handling students who are too drunk to realize what they're doing or saying," she says. "Students lose sight of how other people are treated outside campus."

Douglas Rae, a School of Management professor who was acting master of Calhoun College during a summer term in the ’70s, also gives the YPD high marks. During his tenure at the college, there was an arson attempt, and Rae was convinced that a student with a previous arson conviction was to blame. The Yale police sat him down and gave him a stern lecture on the importance of civil liberties. "They said I had no right, without concrete and specific and well-corroborated evidence, to draw any conclusions whatsoever," Rae says. Though Rae was ultimately right about the culprit, he was impressed with the officers' respect for procedure.

Do the Yale police treat New Haveners with as much care as they do those inside Yale? Paul Bass '82, editor of the New Haven Independent, reports that Yale's officers have a reputation for being tough on citizens during stop-and-frisks. Yusuf Shah, an African American alderman, accuses Yale's cops of treating locals with disrespect. He also believes the officers engage in racial profiling. He says he's been stopped twice by Yale police for traffic infractions he insists never occurred. On the second occasion, in 2007, Shah was on his way to an NAACP dinner when he was pulled over for running a red light, a charge he disputes. Shah had forgotten his driver's license but showed the officers his alderman's card. Though only given a warning, Shah believes he was targeted because of his skin color. "They scared the hell out of me," he recalls. "They were very nasty and intimidating." Shah says he met with Chief Perrotti, who was receptive to his concerns. (Yale maintains, however, that the officers did nothing wrong.)

Rae and Shah have had very different experiences with Yale cops, but they agree on one principle: the Yale police should be held to the same standards of accountability as other police departments. "If their power to arrest were constrained in the way that the security force of a private company is constrained, then I'm inclined to believe the private agency story," Rae says. "But I have a hard time with it given the fact that they're actually functioning as police." As Shah puts it, "The Yale police move and operate on city streets and move and operate on citizens who are other than Yale students. In New Haven, a police officer is a police officer."

In her statement to the Yale Alumni Magazine, Lorimer wrote, "The Yale police have an important position of trust with the public whether Yale community members or not." All YPD incident reports, she noted, become records of the New Haven Police Department, and are therefore subject to FOIA; and Yale's records can "generally be subpoenaed to the same extent that a subpoena could obtain records from the city
or state."

In arguments before the Freedom of Information Commission last September, Robert Langer conceded that the YPD performs a governmental function. But he argued that Yale does not meet the three remaining tests for "functional equivalency," because it was authorized, not created, by the government; because there is no ongoing governmental regulation of the YPD; and because the YPD receives no government funding.

But commission head Colleen Murphy agreed with the public defender. She found that the YPD was created by the government when the two New Haven officers were assigned to campus in 1894; that it is subject to governmental regulation, because the officers are regularly recertified according to state standards; and that it receives indirect government funding, because its property is tax-exempt. In her view, Yale passed the test. It was a rare situation in which Yale would have preferred a failing grade.