Whitten announced IU had hired Cooley LLC at the June 14 Board of Trustees meeting. Its findings and recommendations are largely in line with the administration’s own assertions and plans. (Lucinda Larnach, WFIU/WTIU News)
This story has been updated.
Results of a legal review commissioned by IU are in, three months to the day after Indiana State Police made their first arrests of protesters in IU’s Dunn Meadow. Their findings and recommendations (included at the end of this post) are largely in line with the administration’s own assertions and plans.
WFIU-WTIU asked IU President Pamela Whitten if she was surprised by the results.
“I want to be clear, I just received it myself yesterday,” she said. “Certainly, based on my first read through, it hits the mark for me. Their findings really resonated as issues on our campus, and I thought the recommendations may make good sense.”
Whitten announced IU had hired Cooley LLP at the June 14 Board of Trustees meeting, “to obtain the most objective viewpoint of the recent events in the meadow.”
“We’re confident that their objective insights will further improve our approaches to similar situations should they occur in the future,” she said.
Whitten told WFIU-WTIU that IU’s procurement department had put out a request for proposal seeking bids from firms nationwide. She added that she was not on the committee that reviewed those bids.
“They made the determination, which I agreed with, that a firm that was headquartered in another state, that didn't have any previous connection to the university, was really the appropriate choice to conduct the independent review,” Whitten said.
Cooley specializes mainly in corporate law, partnering with many tech and life sciences companies according to its website. Its white-collar defense and investigations group led the review. The team’s homepage said it conducts “high-stakes investigations and defends companies and individuals in government enforcement actions,” but IU and Cooley said the review was wholly independent from IU.
Cooley partner Rebekah Donaleski led the investigation.
“We have a lot of experience coming in and doing independent investigations,” she said. “What that really means is that we follow the facts where they lead us, we figure out what happened, and we do that by reviewing documents by talking to people.”
Authors of the 75-page report interviewed “more than two dozen people, including some more than once, for a total of 30 interviews.” They included 11 specified administrators, officers from the IUPD and ISP leadership, the Monroe County prosecutor, and students and faculty. Donaleski said they received permission from IU to keep student comments anonymous.
“We were very grateful that so many students, the vast majority of the students we reached out to, did agree to meet with us.”
Donaleski added that they looked for individuals with different perspectives to make sure a variety of voices were heard, but that two student leaders of the encampment declined to meet with them.
WFIU-WTIU asked whether those students and faculty included those protesting in Dunn Meadow on April 25 and 28 when state police made arrests.
“We spoke with a number of students who were there on that day who had friends in the encampment,” Donaleski said.
The report also said Cooley reviewed internal documents and emails, IUPD case reports and IUPD video surveillance, but not state police body camera footage. Donaleski said reviewing the actions of state police was outside of her mandate.
Cooley also reviewed IU's last minute change to the Dunn Meadow policy that resulted in the ISP being called in to remove tents. It noted that while the policy IU cited as justification for calling an ad hoc committee was never formally voted on, it had been treated as de facto policy since at least 2009.
The report determined that made the policy "valid and enforceable [...] despite unorthadox language and procedure in finalizing the policy."
The report also cited interviews with members of the committee. One member had the impression that "the decision to change the policy had already been made" by the time they convened at 10:30 pm, while others debated whether the policy should be changed at all.
Considering the reports findings, we asked Whitten how IU plans to handle the situation in Dunn Meadow leading into the fall.
“We've got to wait and see what policy that the Board of Trustees put out for us first,” she replied.
Whitten said she stands behind the decisions that that she made in the spring but doesn't want to see that situation unfold again.
“I heard from so many students and parents throughout the year with concerns about safety for their students, and then, after the events in Dunn Meadow occurred, I heard from so many that really express gratitude for our taking actions to keep their their students safe,” she said.
WFIU-WTIU asked whether she'd heard from students and parents who felt the police response in Dunn Meadow was an overreaction and felt that it made students unsafe.
“Not that I'm aware of,” Whitten said. “I mean, it's possible that something came in that I haven't seen, of course.”
Cooley’s findings
- IU’s leadership balanced free speech, campus safety, and regular university operations amidst a challenging and rapidly evolving situation.
- IU leadership has maintained this was their intent, despite objections from a large portion of IU faculty.
- IU leadership’s decision to change the Dunn Meadow policy was permissible under university policies and applicable legal standards, including the First Amendment; however, doing so the night before the planned encampment caused a number of unintended negative consequences.
- Nevertheless, the ACLU has sued the university on prior restraint allegations. The Monroe County prosecutor refused to file charges, characterizing IU’s policy decisions as “constitutionally dubious.”
- Donaleski said that refusal highlights the need for consistent disciplinary policies. “In light of the Monroe County prosecutor's decision not a charge, we encourage the university to consider the student conduct process or the other conduct processes as an avenue to enforce policies, rather than the criminal justice system.”
- IU has a decades-long history of inconsistently enforcing its policies, which has caused confusion and frustration and makes governance difficult.
- IU administrators repeatedly asked the protesters to remove the encampment structures and to continue the protest without them, but some protesters refused, and ultimately, using the ISP’s assistance was the safest option available to remove the encampment.
- For more on ISP tactics see our review of body camera footage and interview with Superintendent Doug Carter.
- Cooley emphasized that ISP conduct was outside of the scope of their review.
- IUPD is a critical university-wide resource, but their understaffing causes a myriad of negative effects.
- Superintendent for Public Safety Benjamin Hunter told WFIU-WTIU that the department was losing officers to better-paying agencies.
- Whitten told WFIU-WTIU that IU committed to raising the IUPD budget by $5 million effective in August.
- State police led the movement on Dunn Meadow, but IUPD assisted in arrests.
Cooley’s recommendations
- IU should approve a new expressive activity policy.
- Whitten began discussing this plan before she announced an independent review had been commissioned. She contends that ambiguities in the Dunn Meadow policy and inconsistencies with university-wide policy contributed to the chaotic events of April 25.
- The IU General Counsel created a draft for a university-wide expressive policy at the behest of the Board of Trustees. The Board will vote on a final version of that plan in its meeting next Monday.
- To establish clearer and more consistent policies, the IU President should direct a review for gaps or inconsistencies between university-wide and campus-specific policies and make recommendations to the Board of Trustees on necessary changes.
- IU created a university-wide First Amendment policy in 2022, UA-14. It also has an event management policy which governs large gatherings, UA-19.
- For more on the Dunn Meadow policy, see The real Dunn Meadow policy.
- IU should implement adequate training and communication about its policies and appropriate audit procedures to ensure the consistent application of policies.
- This may be partially a response to IU’s late stage change to rules governing temporary structures in Dunn Meadow.
- IU should establish a plan for implementing any new policy related to expressive activity. IU should clearly communicate this plan to relevant stakeholders and set expectations regarding ISP’s involvement. IU should impose predictable and consistent consequences for violating any new policy.
- Whitten said: "There certainly could be risky or threatening situations when our public safety department needs to call in our partner, the Indiana State Police. But I think that the recommendation that was provided by Coolie will be a good opportunity for that to be better, more transparently laid out, which of course would be done by our public safety officials and experts. That's not my area of expertise."
- Professors, students and civil rights groups have responded with outrage at the ISP’s response, taking objection with its officers carrying military grade hardware and arresting protesters. IU often asks for the ISP’s help with events such as football games.
- All of the protesters arrested received preliminary charges from the IUPD for trespassing, which the county prosecutor refused to file. IU also issued them all yearlong campus bans, most of which have been successfully appealed. Some students are also facing additional disciplinary conduct challenges.
- Under the trustees’ proposed expressive activity policy, violation of the rules could be punished by immediate termination for staff and faculty or suspension for students.
- IU should increase funding to IUPD in order to hire and retain more officers and bolster existing training and technological capacity.
- IU should consider campus-wide communications to alert the IU community of encampments or other large-scale or disruptive protests.
- IU should consider adopting a policy of not issuing official statements about public matters that do not directly affect the University’s core functions.
- IU should improve communications involving critical constituencies on campus.
Independent Report and Recommendations for IU by Indiana Public Media News on Scribd
