RUTHFULLY YOURS

As students start returning to their colleges and universities this month, many will find new rules about protests, camping, signage, and other types of “expressive activity” on their campuses. These changes were prompted by last spring’s demonstrations over the war in the Middle East that led to confrontations among students and faculty, disrupted classes and graduations, and in some cases resulted in police action and arrests. Penn, Texas, and Harvard are among the schools reportedly revising their policies.

At its July meeting, Indiana University’s board of trustees adopted a new “expressive activity” policy, which went into effect on August 1. It may provide a glimpse into what higher education is planning to do about last spring’s demonstrations — and why it doesn’t go far enough.

In late April, a group of IU students and faculty (along with outsiders) began what was meant to be an “indefinite” encampment in Dunn Meadow, a portion of the Bloomington campus at which protests had been allowed since the 1960s. In short order, IU’s leadership — after specially trained administration and faculty teams failed to persuade the protesters to dismantle the encampment — asked campus and state police to remove the tents. Several hundred faculty members quickly signed a petition demanding the resignations of IU president Pamela Whitten and her provost, Rahul Shrivastav. Neither resigned, but in response, the university’s trustees retained Cooley LLP to conduct an independent investigation.

The law firm’s July report is disturbing. It describes a chaotic situation in which well-organized demonstrators faced off against understaffed and unprepared “de-escalation” teams and police. After several attempts, the teams succeeded in dismantling most of the encampment, making more than 50 arrests, but allowing the protesters to remain.

The Cooley report blamed inconsistencies, gaps, and ambiguities in IU’s “expressive activity” policies for causing confusion about what protesters were permitted to do. Like those at other schools, IU’s rules had developed piecemeal over many years. They were not only at odds with current federal and state doctrines on free speech but also differed among the university’s campuses, schools, and departments. Moreover, they had been regularly changed and irregularly applied. At the last minute, ostensibly for safety reasons, IU’s administration modified its policy to permit removing tents from Dunn Meadow during daylight hours, instead of waiting until after 11 p.m. as the old rule had required. Calling this a “constitutionally dubious process,” the local prosecutor dropped charges against those arrested. According to the Cooley lawyers, some at IU questioned whether even violating “expressive activity” policies — or related ones dealing with student conduct — should lead to university disciplinary action at all.

That is why the Cooley report concurred in what IU had already begun considering: starting over by adopting a new policy. The one that its trustees just approved permits a wide range of activities, including peaceful protesting, making speeches, and carrying signs, while requiring prior approval for placing “structures” or “signs or symbols” on university property. Unless connected to an official event, no camping will be allowed nor will excessively loud music. Only water-soluble paints can be used for putting slogans on bridges and other campus structures. The new rules apply not just to Dunn Meadow but throughout the university and to guests and visitors, as well as to people affiliated with IU.

Will the rules be obeyed? Although most students and faculty are just now returning to campus, the new policy has already begun receiving criticism. A faculty member active in last spring’s protests wrote that it marks “the end of a free speech era at IU.” Others have expressed concerns about its breadth and vagueness, as well as how it might affect discussions inside classrooms. Even after administrators had modified an initial draft to take account of such objections, a third of the university’s nine trustees voted against the final version.

In any case, the new policy addresses only the circumstances — the “time, place, and manner,” to use the legal terms — for “expressive activity.” It does not deal with what language or other types of expression are permissible in the first place. In its account of what happened on Dunn Meadow, the Cooley report described protesters cursing Jewish students and chanting antisemitic slogans even though IU’s student-conduct code seemingly bans doing so as a form of harassment. Similar or even worse occurred at other campuses.

Like policies that will be adopted at other schools this fall, IU’s new “expressive activity” rules strive to be neutral about what is being expressed. However, for a long time now, colleges and universities have been establishing policies and practices that curtail the expression of views deemed objectionable while giving free rein to others. (At IU, some of the most vociferous supporters of the Dunn Meadow protests had recently tried to shut down pro-Israel speakers with whom they disagreed.) New regulations on speakers and protesters, at IU or elsewhere, will do little to change that and may wind up giving legal cover to what should not be said at all.