Sample Gates Vigil (photo courtesy of The Bloomingtonian)
This fall, faculty and students have been gathering every Sunday at 10:30 to hold a candlelight vigil to free speech at the Sample Gates. Each week, a few members make statements and all join in a single traditional protest song. The following day, various individuals are notified by the Vice Provost for Academic Affairs that a complaint against them has been lodged for violation of IU’s policy on free speech; UA-10, Policy on Expressive Activity. They are called in for interviews and notified of potential sanctions.
How did we get here?
Sample Gates Vigil (photo courtesy of The Bloomingtonian)
Prior to 2024, IU had perhaps the most generous policy on free speech of any American college campus. Adopted by IU Trustees in 1969 after a six-year trial period during the most tumultuous campus protest era ever, the policy set standards for demonstrations on the Bloomington campus. The rules for most of the campus included what are now commonly referred to as “time, place, and manner” restrictions, ensuring that demonstrations did not impede the normal activities of the university. But Dunn Meadow was designated as an Assembly Grounds, where those restrictions were to be relaxed. “Here, in particular, members of the University community may express themselves freely on all subjects, within the limits of applicable laws and regulations, with or without advance notice.”
In 1989, after a prolonged anti-Apartheid encampment had occupied Dunn Meadow for many months before dispersing, a faculty committee recommended that the campus consider a rule requiring prior approval for encampments between the hours of 11pm and 6am. The goal was not to prevent encampments, but to ensure that a pro forma approval process allowed for all parties to agree to basic standards for safety and sanitation. Although the recommendation was not written into policy, it became practice. For over sixty years, from 1963 through April 2024, free speech expression was governed by these accommodations without significant negative consequences.
As the IUB-AAUP described in the previous post in this series, these policies and practices were dramatically altered without notice by the Whitten administration on April 25, nine days after the faculty had overwhelmingly voted no confidence in the President, Provost, and Vice Provost. President Whitten justified these changes in a statement that revealed she was not aware of 1969 policy or the actual content of the 1989 report. Three months later, a new policy governing free speech expression was imposed by the Trustees in a split vote, ignoring overwhelming faculty and student opposition and discarding Bloomington’s signature accommodations of free speech. The new rule eliminated the expansive rules for Dunn Meadow. Instead of allowing all forms of protest without restriction in the daytime and an “automatic” approval process for overnight protests between 11pm and 6am, prior approval was required for all daytime protests that might involved “uncarried signs” or “structures” or “mass physical objects” of any kind, and “expressive activity” of any kind was banned campuswide between the hours of 11pm and 6am. The administration has claimed, categorically and repeatedly, that this new policy “strengthens” IU’s commitment to free speech. In fact, because IU is a state institution bound to honor First Amendment protections, the time, place, and manner restrictions embodied in the new policy are at least as restrictive as the law allows.
Days before the new policy was imposed, an “independent” investigation of the President’s conduct in April—commissioned by the President herself and performed by three former prosecutors and law enforcement officers with no background in higher education administration or history—was circulated (the Cooley Report), recommending that IU adopt its new expressive activity policy and enforce it fully and consistently.
The candlelight vigils are a test of the viability of the new restrictive policy and its punitive strictures. As soon as the first vigil was complete, the administration demonstrated its intent to proceed with sanctions, conforming to the recommendations of the Cooley Report.
Four days after the initial vigil on August 25, the ACLU filed suit noting that the new policy is unconstitutionally vague, in that from 11pm to 6am members of the IU community are: “prohibited from engaging in any Expressive Activity during this period even if the activity is not in any way disruptive, e.g., standing silently either alone or with others, displaying a message on a sign or even a t-shirt, discussing a political issue with a companion, as well as many other forms of recognized expression.”
The candlelight vigils have attracted increasing numbers of people each week, now exceeding one hundred attendees. IU faculty and students who speak are now undergoing the process of a sanction regime that, according to policy (quoting from the ACLU lawsuit), “may result in immediate action including ‘citation, trespass, and/or interim suspension from campus’ and may ultimately result in ‘suspension or exclusion from the University (for students)’ or ‘suspension or termination of University employment.’”
We believe all Bloomington academic personnel should be aware of and deeply concerned about these developments, which have transformed IUB from a campus singularly accommodating to free speech to one that is not only as restrictive of free speech as the law permits, but that has indicated a commitment to the strictest form of enforcement.
Items planned for this series:
Posted
#1 Does IU's New “Expressive Activity” Policy Strengthen IU's Commitment to Free Speech?#2 Why Are Colleagues and Students Meeting by Candlelight at the Sample Gates Being Threatened with Sanctions?
#3 Why Has the Foundation for Individual Rights (FIRE) Ranked IU America's Second-Worst Public University on Free Speech? (14 November 2024)
Projected (subject to change)
#4 What Is the ACLU Lawsuit Challenging the New Expressive Activity Policy?
Originally posted September 27, 2024
Alterations and updates will be noted below
Updated news of IU responses
- As of 9/30/2024: To date a total of nineteen people have been sanctioned for participation in vigils: sixteen faculty, one student, one staff member, and one member of the commnity. For faculty, policy violation records have been included in their files and they have been warned that "further violations of UA-10 and/or other University policies may result in investigation and additional disciplinary action including but not limited to citation, trespass, interim suspension from campus, and/or termination of employment." Notice to a community member currently unaffiliated with IU read, in part, ". . . any subsequent violations of UA-10 could lead to immediate action by Indiana University including but not limited to citation and/or trespass.
- Posted 10/8/2024: On September 16 the American Civil Liberties Union filed a request for a preliminary injunction against IU enforcement of the UA-10 prohibition of expressive activity from 11:00pm to 6:00am. The IU Office of General Counsel filed a response on October 1, and the ACLU filed a reply memorandum on October 7.
- Posted 11/9/2024: Interactions between vigil participants and IU administration on the enforcement of UA-10 have led to repeated misunderstandings and apparent inconsistencies of enforcement. On November 8 the Bloomington Herald-Times published a timeline documenting this pattern.
- Posted 11/16/2024. On Nov. 15 the Board of Trustees, by a 5-2 vote, amended the Expressive Activity policy as follows:
Permitted
- Spontaneously and contemporaneously assembling and distributing literature from the hours of 11 p.m. to 6 a.m.
- IU scheduled or authorized events that extend into the hours of 11 p.m. to 6 a.m.
- Events during the hours of 11 p.m. to 6 a.m. that received prior written approval from the appropriate university office.
Not permitted
- Protesting, making speeches, circulating petitions and all other unapproved activities from the hours of 11 p.m. to 6 a.m.
IUB-AAUP Executive Committee comment:
- All assembly is contemporaneous; distribution of literature is never spontaneous.
- “Protesting” is not defined and concerns the content of speech; “making speeches” is not defined or clearly distinct from speech; petitions are literature.
- Activities permitted and prohibited under these rules do not differ in the degree to which they may or may not “substantially disrupt the academic, living, or working environment of the university” (the justification for time, place, and manner restrictions). They reflect only the administration’s preference to permit and prohibit certain forms of speech, and therefore appear to fail the requirement of content neutrality.