Who Should Be Blamed for Poor Drafting of University Policies?

What should college trustees do when the college legal department gives bad legal advice? “Fire the lawyers” will be my answer. Let me start with some background on what happened at Indiana University in 2024-25. If you want to go straight to the analysis, skip down to Section 3.

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1. The 2024 Protests at Indiana University

I substacked last year on how in 2024 Indiana University violated its own rules on student protests by having a massive force of State Police arrest students and faculty before they’d actually broken any rules. I even considered joining the pro-Hamas protesters and getting arrested, just to emphasize how important is the rule of law. The reason I didn’t is that I was too late. The Administration flipped from (a) being way too severe and punishing people who didn’t violate the rules, to (b) being way too lenient and allowing people to violate the rules. First they arrested people at a demonstration that was within the hours and in the place the rules for time, place, and manner allowed. They did that twice. Then they switched to ignoring the tent protest I’ve put at the top of this Substack, which went on for months.

As it turned out, this worked out wonderfully for President Pam Whitten. Before the protests, her job was in jeopardy. By a margin of 80% she had lost a faculty no-confidence vote— not a vote of the faculty senate, but a vote of the entire faculty. This was after a general faculty meeting at which not a single professor spoke in her defense. As I recall, it was only one administrator who spoke in her defense, and the defense was something like, “But she’s such a nice lady.” Some faculty were leftwing and didn’t like how she cracked down on a pro-Palestinian professor; others weren’t leftwing but didn’t like that she broke the rules to crack down on him; others didn’t like how she shut down a nonpolitical abstract art exhibit by a Palestinian artist; others didn’t like how she centralized decisionmaking by taking it away from department and “schools”; others didn’t like her failed program of trying to have the Administration directly choose to hire more science professors without giving them enough lab funding; others didn’t like how she lived in Indianapolis instead of Bloomington and was rare seen on campus. And so forth. I was surprised she even had 20% of faculty on her side. She did have solid support from the Board of Trustees, which in the end is all that matters, but if they ever started to look into her administrative competence, she would have to worry.¹

Then the protests happened. President Whitten called in the State Police and the snipers. It was against university rules, but the public didn’t know that. What they saw was that finally a college president, the president of their university’s flagship state university, had gotten tough with pro-terrorist protesters. Indiana is a heavily Republican state, with a Republican governor, two Republican senators, and Republican supermajorities in the state house and the state senate, so it really hates terrorism and really supports Israel.

What about the Whitten policy of allowing pro-Hamas protesters to set up tents on Dunn Meadow, wreck the grass, and start planting vegetables? That wouldn’t have been popular. But the citizens of Indiana didn’t know about it. There was no commentary that criticized her leniency, even on the Internet— except for mine, of course. To be sure, the citizens of Bloomington knew all about it, but Bloomington is as heavily Democrat as the rest of Indiana is Republican, so there were no objections to her leniency. At the same time, she avoided further criticism from university professors and students, and she limited the potential damages from the lawsuits that were being brought accusing her of violating the First Amendment. So to Indiana, she looked tough, but to Bloomington, she looked tolerant. Overall, President Whitten had built up her support in the Statehouse and lost little support from the faculty (because when you start at 20%, it’s hard to go much lower).

Did President Whitten ask the university’s general counsel about her actions? We don’t know, but she did get sued. One of the lawsuits was by three people who were issued no-trespess orders because they were involved in the April protest. I don’t know if it was successful, but I expect it will be if it hasn’t been decided already.

Eventually, the Administration did come up with a new set of rules to restrict the time, place, and manner of student protests. But you can’t make up the rules after you’ve punished people for their actions; that’s an ex post facto rule, completely contrary to the rule of law.

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2. The Indiana University Rules: Never-Approved (1969), Overnight (April 2024), Unconstitutional (July 2024), and Current (June 2025)

The rules of July 2024 had lots of features. One was that protests weren’t allowed at night:

. The Expressive Activities prohibited on University property during the overnight hours of 11:00 p.m. to 6:00 a.m. are:

• protesting;

• making speeches;

• circulating petitions; and

• all other unapproved conduct and activities otherwise prohibited by this Policy or applicable law.

This is obviously unconstitutional. In Wirthshafter v. Indiana University (S.D. Indiana, No. 1:24-cv-00754-RLY-MKK [May 29, 2025]) the Court pointed out that there was ample precedent that a public institution can’t restrict protests when the general public is allowed to walk in the same size groups at the same time in the same place. You can’t use a time-place-and-manner restriction to stop people holding signs from doing things when people without signs are allowed to do exactly the same thing. The University’s objective was obviously to restrict speech, not to restrict behavior. The University could have banned the entire public from campus at night, but it can’t just ban people who object to university policy.

The unconstitutional rules, approved by an unusual 6-3 split vote of the Trustees in July 2024, replaced some rules a few administrators had approved but not published or gotten approved by the Trustees before the April protests that replaced 1969 rules that were on the IU website but had never really been approved officially by anybody. Nobody had noticed that IU had no official rules until faculty started looking at them after the protests.

After the July 2024 rules were struck down in May 2025 by Wirthshafter, the Trustees passed a new set of rules on June 12 that were milder, constitutional, and pleasing to pretty much everyone, except perhaps President Whitten. James Bopp, one of the new trustees, is a famous free speech attorney (the big 2010 Supreme Court case, Citizens United, on corporate donations was his case). He praised the new policy, saying that when he was an IU student in the 60’s he’d protested on Dunn Meadow himelf. Here is his speech, in part:²

I spent 50 years of my practice litigating a very robust view of the First Amendment. So this issue, not only in my general practice, but for the purposes of the university, I think, is of critical importance that we get this right, and I really want to compliment the general counsel in my opinion as having done that.

Now, Indiana University is 'the university of the state.' Sorry, Purdue. Our Indiana Constitution of course authorizes education as an activity of the state of Indiana with the purpose in mind to,

'encourage by all suitable means the moral, intellectual, scientific and agricultural improvement of the people of the state of Indiana understanding that knowledge and learning generally diffused throughout the community is essential to the preservation of a free government.'

So, since 1820, Indiana University has been supported by the people of the state of Indiana, to serve and benefit the state of Indiana. One of the principal ways we do that is educating our students. And in educating our students, what is critical in my opinion is creating well-rounded, informed independent thinkers who have the necessary communication, critical thinking and problem-solving skills and providing specialized forms of education and training that focuses on imparting knowledge and practical skills required for life in America.

Now, the central feature of an institution which encourages problem-solving and critical thinking is what we've incorporated in the First Amendment, and in the Indiana University First Amendment Policy, UA 14, and that is, to protect, encourage and nurture Free Speech and robust debate among diverse points of view. That is the most critical element of creating the types of citizens we are seeking to form at IU.

Why don’t I quote the new UA-10, Expressive Activity Policy to show how improved it is? Because the link doesn’t work. Eight days after the big policy change, the university webpage for it doesn’t work, and nobody can look up the new policy at the very time most people are curious about it.³

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Who’s to blame for all the confusion?

Thus, Indiana University has had multiple sets of incompetently written and presented rules over the past year, from unconstitutional infringement of free speech all the way down to not being able to post them on the website. It’s a clownshow. On a faculty email list, someone said after the final revision,

“Now we just have to find out who’s to blame for writing those crazy rules.”

Indeed. What were the university lawyers thinking? How could they do such a bad job, on such a high-profile matter, in way that embarassed themselves, the President, and the Trustees? They did get it right eventually, but only after getting pounded on the head.

But maybe the lawyers didn’t do a bad job. A lawyer’s job isn’t to tell his client what to do, but rather to tell his client what is legal and what is illegal and let the client decide what to do. Only if the decision in question would lead to a crime does the lawyer have a duty to resign or report the act. If the client decides he wants to shut down a student demonstration, the lawyer’s duty isn’t to tell him not to do it, but to tell him if he can legally do it and how he can do it to maximize the chance a judge will find it legal. It’s up to the client to decide how much risk he wants to take.⁴

Let’s focus on the rule forbidding groups of people to walk together on campus after 11 p.m. if they held protest signs but allowing groupson campus otherwise. If the university’s general counsel is a good lawyer, he should have said, “President Whitten, you can’t do this legally. It clearly violates the First Amendment and you’ll lose in court if it’s challenged. What you can do, though, is ban all groups of 10 or more people congregating on campus after 11 p.m. , or, if you want to be really safe, just require a permit for doing so.” If President Whitten said, “No, General Counsel, I like the original language,” then the general counsel should do what she says. He’s given her fair warning, good legal advice. And if the University is sued and loses, he shouldn’t complain that he advised against the policy; he has to take the hit to his reputation.⁵ It’s up to the Trustees to complain to the President and to fire the President if they think the mistake justifies that.

Thus, the Trustees of Indiana University ought to ask President Whitten whether the Chief Counsel gave her good advice. If she says he did, then maybe they should fire the President, maybe not, depending on how big a mistake they this this is and how well the President has been doing with administration, fundraising, government relations, faculty recruitment, student recruitment, and the million other duties of a college president.

What if President Whitten tells the Trustees that the Chief Counsel gave her bad advice, telling her that an obviously unconstitutional document was constitutional? Then they should ask her why she hasn’t fired the Chief Counsel yet.⁶

Unlike a college president, a college chief counsel doesn’t have a million duties ranging from the financial to the scholarly. He just has to tell the college president what’s legal and what’s not. If he makes a blunder in an easy legal evaluation, it’s a sign he’s bad at his job. It isn’t going to be outweighed by his skill at fundraising or his ability to cut costs.

What if the chief counsel says that he gave the job to one of his staff attorneys, and the staff attorney made the mistake? If the mistake was a big one, but about something like the validity of a patent or an obscure wrinkle of banking law, the president should ask why that staff attorney wasn’t fired, and also ask why the chief counsel hired such an incompetent attorney. But when it’s an easy question of constitutional law, that excuse doesn’t fly. The chief counsel should delegate drafting to a staff attorney, just as the partner in a law firm delegates drafting to a young associate, but he should read the document afterwards and spot major mistakes. Or, the chief counsel should at least know his own mental limitations and hire an outside law firm to give an opinion on whether the policy was lawful. Indeed, one of the main talents of the “in-house counsel” of a corporation or university is knowing when a legal issue is so complex that he ought to go out of house and hire $1,000/hour BigLaw attorneys from an outside firm instead of his own, much cheaper, in-house attorneys. A chief counsel does not have to be as smart as a Biglaw partner. Often they are Biglaw associates (junior lawyers) who weren’t good enough to make partner because they were just moderately smart instead of brilliant. But a chief counsel has to know his limitations. He has to recognize when a legal problem is too hard for himelf and his staff of medium-talent lawyers who couldn’t get jobs in law firms. When it’s too hard, he hires outside counsel, from Biglaw or from regional firms. There’s no shame in that; it’s a routine part of his job and part of his budget plans for that.

Some might say that it’s not worth the Trustees’ time to sort all this out. The General Counsel of Indiana University since 2022, Anthony Prather only makes $536,000 per year, compared to a University budget of about $4 billion, and firing him wouldn’t save even that, since hiring a replacement of suitable quality would cost the same amount.⁷ But saving on salary is not the benefit. The real benefit is the incentive effect on other university employees. Firing a single bad employee in a very public way has an in terrorem effect on the other bad employees.⁸ They think about the big mistakes they’ve made in the past and will make in the future, and they start working harder—or, more likely, they leave for a job at some other nonprofit that won’t mind if they make stupid mistakes.

That negative effect sounds a bit depressing. But there’s also a positive effect: to encourage good employees. There’s nothing more discouraging than to work hard, do a good job and then see the promotion go to someone slow of mind who slacked off and made mistakes. If you never fire incompetents, the competents aren’t going to stick around. They’ll go somewhere where they’ll be appreciated. That’s how entire organizations tend to sort into the competent and the incompetent. The incompetent stay where they’re tolerated, and the competent go where they’re appreciated. Let’s hope Indiana University is the home of the competent.

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Footnotes

1. In 2005, President Adam Herbert’s incompetence lead to faculty revolt and his not finishing out his term. It was odd, because he wasn’t criticized for his decisions, but for not making decisions and generally not doing his job, e.g. not meeting with potential big donors or signing off on federal grants in time. Nobody really disliked him; they just thought he was incompetent. By a vote of 754-229 at an unprecedent meeting to which the whole faculty was invited, the faculty voted to ask the Trustees to look into his performance. Many of the 229 didn’t want to vote against IU’s first black president. I was there and made a speech about how it was enough to ask the Trustees to look into the allegations; they needed to know the faculty thought they were serious enough to deserve Trustee attention. Herbert wasn’t fired, but he didn’t finish out his term and he retired rather than getting another job.

Note that the Wikipedia article, “Adam Herbert”, makes no mention of all this. It looks like it was written by a PR flack. You can’t trust Wikipedia for the real scoop on living figures any more than you can for controversial topics.

2. This quotation is from an unofficial transcript of the Trustee meeting (video here). Trustee Bopp continued thus:

"Now, the Expressive Activities Policy is of course an application of the power that Indiana University as a government entity has in regulating speech. And of course, there are aspects of speech that are protected and then there are other aspects that can be regulated that would otherwise be thought of as Free Speech, but can be regulated.

"Now, the policy that was adopted had two features. And unfortunately, in the debate about this, these have been conflated. One feature was that between 11 p.m. and 6 a.m., a quintessential First Amendment activity such as, if two or more people passed out a brochure or wanted to try to get some people to sign a petition, that they had to seek approval 10 days prior to that activity. The other part was dealing with encampments and other aspects of the activities that occurred at that time. The part that was sued by the ACLU is the 11 to 6 a.m. requirement of prior approval for what is quintessential First Amendment activity. And the court ruled -- and I agree with this ruling that was sought by the ACLU -- that that policy was overbroad. Now, what was not dealt with in that case, and quite properly so, is the other aspects of regulation that were enforced at that time. And so the new policy recognizes these differences. It recognizes that 24 hours a day in Dunn Meadow -- and when I was here as an Indiana University student I protested in Dunn Meadow, so I know what that means; it's the hallowed ground, as far as I'm concerned -- that full First Amendment rights to engage in that activity are fully protected. Now, it also recognizes -- and this is important because it came into play -- and that is, there are limits to what you can do in the name of the First Amendment. You cannot disrupt, in other words, interrupt the operations of Indiana University. You can't put up structures on university property if they decide that that is not suitable or appropriate. You can't hang signs on buildings. You can't deface buildings. You can't go camping if the university chooses to prevent that activity. You can't block ingress and egress, you can't use too great a sound.

"What I think is remarkable about this revised policy is that it does capture all of those things and says that cannot be done in Dunn Meadow, quite properly under the strictures of the First Amendment, while recognizing and granting full First Amendment rights to people who want to come into that place.

"I want to also particularly compliment our general counsel because he sought comment, as he mentioned -- and I think this is very significant -- from many different organizations; received comments, carefully considered them and in some cases incorporated their comments into the policy. And that's the kind of transparency and involvement of stakeholders that I think is really important to come to proper decisions by this board and by Indiana University. So I enthusiastically support this revision of the Expressive Activities Policy and thank you for your work (to IU General Counsel Anthony Prather)."

3. Reader Josh Burns pointed out that the policy is available via the Wayback Machine at https://web.archive.org/web/20250612200438/https://policies.iu.edu/policies/ua-10-expressive-activity/. The policy was posted right after the Trustee meeting, but then it disappeared except in the Wayback archive.

4. Trigger warning: This footnote may upset snowflakes, because it’s a horrible hypothetical of the kind law professors use to teach their students and sometimes get sued over. (Why are law cases such downers? All those lowlifes. Why not have one with just nice people?) Suppose President Pam Whitten goes to Chief Counsel Prather and says, “I want to have lesbian sex with my secretary, but she’s a Christian fundamentalist. What can I do that’s not criminal?” Prather could refuse to answer, but only on the grounds that the President is using University resources (his legal opinion) for personal consumption. If he did answer, it would be something like, “You can threaten to fire her and then fire her, and you will have a 90% chance of having to pay a million dollars. You can threaten to fire her but not do it, and you will have 90% chance of having to pay $400,000. Or you can send her a letter propositioning her, and if she signs and notarizes it with her lawyer present you’ll just have a 90% chance she’ll sue you later and she’ll win $100,000 with 20% probability.” This is in accordance with Oliver Wendell Holmes’s Bad Man theory of law, that the law exists because of bad men, not good men (if there are any), and the bad man only cares what will happen if he does some act, the act’s price, not whether the act is officially legal or not.

5. Another question is whether the General Counsel should go over the President’s head and tell the Trustees the policy is unlawful. Yes, I think. He is General Counsel to the University, not General Counsel to the President, and the Trustees are “the University”, as I explained in “Who Owns the University?”. The President is not his client, just an agent of his client. For any document the Trustees would have to vote on, the General Counsel has a duty to inform them of its illegality.

6. Indiana University’s Board of Trustees have some experience with this. The previous Chief Counsel, Jacqueline Simmons, who served 2012 to 2022 with a salary of $344,597 in 2021 was fired. It’s a long story, most of it not laid out in the Indiana Daily Student article, but she severely embarassed not only the President but the Trustees, allowing them to unlawfully give the previous President a half-million-dollar bonus without holding the necessary vote (they held it later, to make things legal).

7. A salary of $536,000 for a university lawyer sounds like a lot, but it’s not. For a $4 billion organization, it’s worth hiring medium-quality legal talent. Top talent would cost over a million dollars a year— that’s what BigLaw partners make. With lawyers, as with baseball players, it’s very cheap to hire low quality but very expensive to hire high quality. Maybe raising the Chief Counsel’s salary from $345,000 to $536,000 over four years was an attempt to hire someone better than the cheaper Chief Counsel who’d been fired.

8. My very first published paper was on the usefulness of firing one bad employee. "Moral Hazard in Risk-Averse Teams," RAND Journal of Economics, 18: 428--435 (Fall 1987). Holmstrom (1982) has shown that a non-budget- balancing contract induces a team of risk-neutral agents to choose the first- best effort levels. This is not generally true when agents are risk averse. Furthermore, a "massacre" contract, which punishes all but one agent when the outcome is low, can attain the first best over a wider range of parameters than any other budget-balancing contract. http://rasmusen.org/published/Rasmusen_87.RJE.teams.pdf