Protests test free speech policies

An independent review of Indiana University’s response to encampment protests at the school’s Bloomington campus determined that the university was permitted by legal standards and university policies to call off the protests when it did.

The review concluded the decision led to unintended consequences, and that administrators need to make appropriate adjustments moving forward to maintain freedom of speech rights while also protecting students and staff at the institution.

The 77-page review by international law firm Cooley LLP details eight recommendations for how the university should handle school policy, safety and security during expressive activity and how communication should change between administrators and with the wider university public.

It also suggests the university should increase funding to the Indiana University Police Department, which responded to the encampment but lacked training to adjust to the “increasingly volatile setting” in Dunn Meadow.

The Indiana Lawyer reached out to representatives at Indiana University, who declined to comment. Instead, they offered a July 25 statement from IU President Pamela Whitten.

“I am grateful for this independent and thorough third-party perspective,” Whitten said. “We sincerely appreciate the depth and detail of Cooley’s independent review and will leverage their insights to move forward with purpose, guided by our core values and tirelessly pursuing our top priority: a safe campus with freedom of speech for all.”

The encampments at IU Bloomington, Indianapolis

Though the majority of the report details the encampment at Dunn Meadow on the IU Bloomington campus, a small encampment is also in place on IU Indianapolis’s campus.

The independent review detailed numerous events and points of tension leading up to the April protests, including the cancellation of an art exhibit by a Palestinian-American due to security concerns and disruptions to campus tours by protesters.

Prior to the encampments at Dunn Meadow, members of the IU community criticized the school administration’s response to the events overseas.

In the days following the Hamas attack on Israel on Oct. 7, Whitten issued a statement saying the university was “heartbroken over the horrific violence that has occurred over the past few days.” Many argued her words were too ambiguous.

Two days later, Whitten’s second statement asked the IU community to send heartfelt thoughts to the Jewish community at the university. Some said this statement did not properly address the concerns of Palestinian and Muslim students on the Bloomington campus.

As encampment protests unfolded at other universities across the country, IU administrators decided to change existing policy in favor of rules that prevented an encampment from being established in the first place.

Leaning on the logic that once tents were up, it would be more difficult and dangerous to get them back down, school leaders effectively banned encampments in Dunn Meadow just hours before protests were set to begin.

Despite distributing fliers and signs about the new policy, protesters continued to reference the old one, which was more accessible on IU’s website.

This led to confusion and resistance, and without the proper staffing or training to respond to an event like this, Indiana State Police was called to assist the Indiana University Police Department in removing the encampment.

A total of 57 people were arrested during the first few days of the encampment.

Administration’s actions permitted under campus policy, state law

Dunn Meadow is historically known on campus as a space for expressive policy, dating back to 1963 when the Board of Trustees designated the area as an Indiana University Assembly Ground. The policy was updated in 1989 to prohibit “uncarried” signs, symbols and structures from 11 p.m. to 6 a.m. without advance permission.

The Bloomington Faculty Council, an elected policy-making body on IU Bloomington’s campus, approved the 1989 report as official policy in 2009, and the report appeared as “Policy for the Use of Indiana University Assembly Ground” or BL-ACA-I18, beginning in the 2010 Academic Guide.

Although BL-ACA-I18 hasn’t been updated to reflect recent changes to Indiana statute or university-wide policy, it was treated as the operative policy on IU Bloomington’s campus during the encampments in April 2024. In the review, Cooley concluded that university leaders balanced free speech, campus safety, and regular university operations during the encampments in Bloomington.

“We conducted an extensive, thorough review of the events leading up to and during the Dunn Meadow protests,” said Rebekah Donaleski in a July 25 statement on IU’s website.

Donaleski, Cooley’s lead investigator and a partner in the White Collar Defense & Investigations Group, added, “We found that the university’s actions were driven by a focus on campus safety and free speech in a challenging and rapidly evolving situation. We identified a number of recommendations for IU to make meaningful improvements to its policies, processes and communication that will help the university and its community moving forward.”

While Indiana State Police were called to campus to assist IUPD’s understaffing and lack of expertise, state police acted only after “protesters made clear their intent to violate policy,” the review states.

Jay Meisenhelder, an employment and civil rights attorney in Indianapolis, said that to understand the conclusion that IU acted appropriately, it’s important to look back at what the Supreme Court has said in similar situations.

In Clark v. Community for Creative Nonviolence, the Supreme Court ruled the National Park Service did not violate the Community for Creative Non-Violence’s First Amendment rights when it denied the organization’s request that protesters be allowed to sleep in tents in Lafayette Park and the Mall in Washington D.C. National Park Service regulations permit camping in designated campgrounds only, for which either area in D.C. have none.

In the same way, before IU leaders altered the policy, protesters were still not allowed to camp between the hours of 11 p.m. and 6 a.m. per BL-ACA-I18, as protesters did not get prior approval from administration.

“There can be restrictions on free speech, and one of the things that the government can do in terms of regulating speech on public property is to impose reasonable restrictions on the time, place and manner of the restrictions,” Meisenhelder said.

School officials should impose consistent policies

Although Cooley determined IU was within its rights to shut down encampments in Dunn Meadow, the law firm acknowledged IU’s lack of consistency in enforcing its policies.

During their investigation, members of the firm reported hearing from numerous interviewees that it’s difficult to know when the university will enforce certain policies.

Some campus observers argued the Dunn Meadow policy had not been enforced before and wondered if the topic of the protest was ultimately what pushed leaders to act this time around.

In pointing to issues that could cause the discrepancy, Cooley explained that some of IU’s policies overlap or conflict with one another, particularly when it comes to university-wide and campus-specific regulations.

The firm recommended Whitten review inconsistencies in the university and campus policies, ultimately bringing solutions to the Board of Trustees.

On July 29, the Indiana Daily Student, IU’s student-led print publication, reported that the IU Board of Trustees approved a new expressive activity policy, which went into effect on Aug. 1.

The policy was drafted with feedback from student, staff and faculty leaders across all IU campuses.

The new policy allows expressive activities between 6 a.m. and 11 p.m. in public areas on campus. Peaceful protesting, carrying signs and making speeches are allowed.

Protesters cannot, however, camp at any time, place signs in the ground or hang them from university property without permission. Protesters can use temporary structures but must get approval at least 10 days in advance.

Ultimately, all expressive activity must comply with local, state and federal law.

As of the publication of the review, the encampment in Dunn Meadow still stands, with no more than a dozen people present at a time.

The tents, however, are not taken down at 11 p.m., and IUPD has responded to reports of issues in the area, including vandalism and minor altercations.•