"Who's To Blame?" Agency Law Applied to Indiana University's Administration, Trustees, and Police
[May 14: I’ve just discovered the Trustee Policy on “Delegation of Authority”, which may change my conclusions.1 See also this AAUP article, from which it seems there was no official policy of any kind on use of Dunn Meadow, except the very general 1969 Trustee Policy.2]
The Law of Agency is an important area of law, important enough that it used to have its own course in every law school, like Contracts, Torts, and Property. Agency law pertains to the relation between, Principal (the boss), Agent (the employee) and Third Party (someone outside of the relationship). The special features of agency law come up when the agent messes up and does something the principal didn’t want him to do. If the agent is has enough money and hasn’t fled to Paraguay, the easy answer is to make him pay for the damage. Usually, though, the agent is too poor or too unreachable, and then the question is who should bear the cost, the principal or the third party.
I’d like to use agency law to think about the situation of the Indiana Board of Trustees (the principal), President Whitten (the agent), the Indiana State Police (subagent, sort of), and the Tent Demonstrators (third party). If the Tenters, as I will call them, are illegally arrested by the Police, whom can they sue for violation of their civil rights? Should the defendants be the Trustees, the President, or the Police?3
My hypothesis is that the Police should be immune from suit in this case, but the President and Trustees should be liable. The Trustees are to blame because they let a situation develop in which the President had “apparent authority” to tell the Police that the Tenters were trespassing, especially after the Trustees made no comment after she did it the first of the two times Tenters were arrested— which “estops” the Trustees from defending themselves by saying they had told the President she could not arrest Tenters in that kind of situation. It may also turn out, if more evidence turns up, that the President had “actual authority”—- the Trustees gave her the order or the authority privately— or had “ratified” the action, by authorizing it ex post. So this case will ring all the changes on the standard doctrines of agency law. I have in my published research explained that all of these doctrines can be subsumed under law-and-economics’s “least-cost avoider principle”, which is that who bears the cost should be based on who could have prevented the agent’s erroneous action at least cost. This economic principle aligns very nicely with everyday notions of fairness, as well as leading to “wealth maximization” and “economic efficiency”. In essence: let the costs fall on whoever could have prevented the problem most easily.4
In the end, however, my conclusion is that this isn’t a situation in which we really need to invoke agency law. The agent is President Whitten, who is rich and who is in Bloomington, not in Paraguay. She went against Trustee instructions, and so she should pay, not them. This will need some careful analysis, though, and I might even send this off to a scholarly journal. I intend to write it up as an “amicus curiae brief”, a “friend of the court memo”, to try to aid the lawyers and judge in the federal lawsuit filed yesterday by the people who were arrested.5
What is interesting here is that the President violated her instructions, so she did not have “actual authority”. The Trustees are the principal. They could have delegated plenary authority to the President, saying, “You are delegated full authority to hire, fire, make contracts, and make all rules for Indiana University, without need for consultation with us or anyone else.” In that case, if she had decided to tell the Tenters they couldn’t protest anywhere, ever, at any time of day on university property, and had called the police on them when they disregarded her order, the Trustees would be liable by the principle of “vicarious liability”, because they hired her to make that kind of decision and gave her free rein. The grounds for the suit would be the 1st Amendment, free speech, because universities operate as quasi-public spaces and so must provide some reasonable time, place, and manner for people to hold protests.
But the Trustees did not give the President plenary authority. She is given authority as an agent, but only for certain things, with specific restrictions. She cannot grant B.A. degrees, for example— she can only forward a suggested list of names of people to the Trustees, who make the final and legally binding decision. She cannot give tenure contracts to professors— again, she just forwards a list of suggested names to the Trustees. She can, on the other hand, hire secretaries and appoint Deans without Trustee approval, and suspend students for breaking rules. There is a long list of Trustee Policies that say what she can and cannot do.
One of those Trustee policies is about protests on Dunn Meadow. The Trustees set up a general set of procedures for making rules for the University and for each campus of the University. Bloomington is the flagship one, but there are branches at Indianapolis, Gary, Columbus, and other places. Under these procedures, the President of the whole system and the Provost of each campus makes rules in consultation with certain faculty committees and then submit the rule to the Trustees for final approval. In 1969 such a rule went through the usual procedures and was approved by the Trustees. The rule said that Dunn Meadow was designated as the standard protest space for Indiana University-Bloomington, a space where people could protest without getting a permit in advance. No further details were in the rule, but the University later posted a “policy” saying that protesters could put up “structures” but had to remove them between 11 p.m. and 6 a.m.
This policy was a restriction on the President’s delegated authority. At any time, for any reason, the President could tell someone— even a professor— even an individual Trustee— to get out of Bryan Hall or be arrested for criminal trespass. But the President was forbidden by the policy from telling someone to stop protesting in Dunn Meadow. Calling the police was a violation of the Trustees’ orders.
To be sure, the Trustees could always change their minds. The principal can always delegate more authority to the agent— or delegate less. The principal is the boss. Thus, the Trustees could at any time say, “We’re junking the 1969 policy. Dunn Meadow is now a nature preserve. The President can and must call the police if anybody sets foot there, and must expel any student who violate this rule.” They wouldn’t even have to consult with the faculty or the President before they came up with the new rule. The standard procedures only bind the faculty and President, not the Trustees.6
What actually happened was that the President changed the rule on her own. She appointed an ad hoc committee consisting of some of her employees, and the day before the Tenters started their demonstration the committee came up with a new rule saying tents are never allowed on Dunn Meadow. As far as we know, this new rule was never approved by the Trustees. It didn’t go through the rule-making procedures the Trustees had set up either. And it violated the First Amendment, because although it’s okay to ban tents for all kinds of demonstrations, it’s not okay to ban tents just for pro-Hamas demonstrations; the action is not “content-neutral” if you create a rule specially to restrict one political viewpoint.7 So I think we can call this a “fake rule”, illegitimate three different ways. What’s most important here, though, is that the President’s rule contradicts the Trustees’ rule, and the Trustees are the principal, the boss.
Thus, President Whitten has disobeyed the Trustees, unless they have given her secret instructions we don’t know about, and told the Police to arrest the Tenters. The agent has disobeyed the principal's express instructions and has told the sub-agent to do something that hurt the third party. What does agency law say about this? It doesn’t seem like it’s the Trustees’ fault, since they expressly told the President what to do back in 1969.8 It doesn’t seem like it’s the Polices’ fault— when a university president tells you to arrest someone for trespassing on university property, you can’t be expect the police to suspect the president is lying and doesn’t have the authority to order an arrest.9 It doesn’t seem like it’s the Tenters’ fault— they were obeying the rules, as of 3 p.m., and it’s silly to say, “But we know you were *thinking* about trespassing.” So if President Whitten does take the next flight to Paraguay, who should take the loss?
Agency law has the answer, and it matches common morality. The Tenters shouldn’t bear the loss, because they didn’t break any rule, so somebody else should pay them money to compensate for their trouble. The Police shouldn’t bear the loss, because the President had “apparent authority” to order the arrest of people who wouldn’t leave University property. That leaves the Trustees, who, even though they gave express instructions to the President not to arrest Tenters on Dunn Meadow during the day, didn’t prevent Pamela Whitten from pretending she had that authority.
The Trustees are liable under agency law, and the Tenters can sue them to get compensation. The Tenters can also sue President Whitten, but she’d be harder to collect the money from. Moreover the *Police* can sue the Trustees (and the President). The Police went to considerable expense to perform these false arrests, and it’s not their fault.10 Thus, they are entitled to send a bill to Indiana University, and if it isn’t paid, they can collect in court, or perhaps even arrest President Whitten for material false statements that lead to the waste of police resources. So the Trustees, using Indiana University funds, must pay for the damage from their agent’s malfeasance.
To be sure, the Trustees don’t have to end up out of pocket. They must make sure no third parties lose out. But under agency law, they can sue the agent. The agent was intentionally or with willful negligence (meaning, she didn’t bother to look) violating their instructions. As a result, the Trustees will be sued and will have to pay out money. They can, in turn, sue the President and recover their loss. The President earns about $650,000/year. I doubt she’s spent it all. She has enough assets that it’s worthwhile for the Trustees to hire lawyers to sue her and attach her assets so as to collect after they win, which should not be hard. Usually agents can’t afford to pay much, but President Whitten can.11
But what of the “least-cost-avoider principle” I mentioned towrds the start? I’d like to wrap up this essay and have lunch, so I’ll be brief. The least-cost-avoider principle asks which party involved could have avoided the damage at least cost. Applied to a tort injury case, for example a driver and a pedestrian, it says that the law should ask which of them could have prevented the accident at least cost. If the pedestrian didn’t look before he crossed, it’ the pedestrian, so he should not be able to collect any damages. If the driver was typing on his cell phone, it’s the driver, so the driver should pay damages to the pedestrian. If it’s both, it gets more complicated, but economists have looked at that, too.
In the context of agency law, the Principle says that we also should look to who could have prevented the damage at least cost, but more people are involved, since we have Principal, Agent, and Third Party. In the case of Indiana, President Whitten clearly is the least-cost-avoider. She could have looked up the rules, if she didn’t know them, and she could have refrained from violating the rules, if she did know them. What about the others? The Tenters couldn’t do much. They actually did make the effort to tell the Police— the University Police, at least— about the university rules, one Tenter told me, but the police said, “We’ve done our research” and after being asked the name of the policy justifying arrest, went away in a huff. That’s going beyond the call of duty. You can expect protesters to look up the rules, and these protesters did that, but you can’t expect them to know they have to send a copy of the rules to the University, City, and State Police, and to the National Guard, the FBI, the ATF, and the Marines just in case the President might lie to them.12 And the costs were high for the Police to prevent the damage. As I said above, they can’t be expected to know that college presidents are untrustworthy. Experienced faculty know that if a dean promises something, you’d better get it in writing, but people outside the university community don’t know that. If the Trustees had sent a copy of their Dunn Meadow policy to the police and told them to keep it on file in case anyone called them about supposed trespassing, then it would be a tougher question as to who was least-cost avoider, but they didn’t.
So with that, I’ll conclude. I will be working on this more. For an amicus brief, I’ll need to add case citations and organize it differently. For a scholarly journal, I might add some equations and some journal references. I’ll do something with Appendix I and II below, which are the self-praising necessary for an amicus and a place to put extra notes I didn’t use. For you, Substack readers, I’ll just give the bottom line. Unless new facts are revealed about the Trustees’ actions, both the Board of Trustees and President Whitten are liable for the Tenters’ false arrests and the Police’s expenses, but the Police are not. In addition, President Whitten is liable to the Trustees for any costs they may incur as the result of being sued.
Appendix I: My Background in Law
I am an economics professor, not a lawyer. Much of my research has been in law-and-economics, though, and even in the area of agency law. My latest endeavor is an amicus brief at the Supreme Court on NetChoice v. Paxton, the Texas v. TechLords case on free speech and You-Tube/Twitter/Facebook, which they’re currently deliberating on (for which I was represented by James Bopp, the lawyer in the Citizens United case). The three things I’ve worked on which are closest to the Gaza situation are:
"Brief Amicus Curiae of Professor Eric Rasmusen in Support of Petitioner, In re Flynn." An amicus brief on criminal procedure, applying principal-agent theory to whether an appellate court can require a trial court to approve dimissal of charges when both defendant and government agree. http://rasmusen.org/published/Rasmusen-2020-InReFlynn-Rasmusen-amicus.pdf.
"The Economics of Agency Law and Contract Formation," American Law and Economics Review, 6 (2): 369-409 (Fall 2004). This article uses the economic approach to address issues that arise in agency law when agents make contracts on behalf of principals. The main issue is whether the principal should be bound when the agent makes a contract with some third party on his behalf which the principal would immediately wish to disavow. The resulting tradeoffs resemble those in tort law, so the least-cost- avoider principle is useful for deciding when contracts are valid and may be the underlying logic behind a number of different legal doctrines applied to agency cases. In particular, an efficiency explanation can be found for the undisclosed principal rule, which says that the principal is generally bound even when the third party is unaware that the agent is acting as an agent for him.
http://www.rasmusen.org/published/rasmusen-04-ALER-agency.pdfBarnes v. Indiana, "Brief of John Wesley Hall, K. Babe Howell, Eric Rasmusen, Steven Russell, and Ronald S. Sullivan as Amici Curiae in Support of Appellant's Petition for Rehearing," Indiana Supreme Court, Case No. 82S05-1007-CR-343, (legality of resistance to illegal police entry, 2011). http://www.rasmusen.org/published/rasmusen-2011-Barnes-Amicus.doc .
I will quote from my NetChoice brief as to my general expertise in law.
Eric Rasmusen is the former Dan and Catherine Dalton Professor of Business Economics and Public Policy at Indiana University, now retired. He has also held positions at the business schools of University of Chicago and UCLA, the law schools of Harvard and Yale, and the economics departments of Oxford, Harvard and Tokyo. He has taught in the George Mason University economics-for-judges program and authored amicus briefs for the Fifth and D.C. Circuits and the Supreme Court of Indiana. Prof. Rasmusen is best known for his book on game theory, his work with J. Mark Ramseyer on the law and economics of the Japanese judicial system, and his article with Professor Ramseyer and Judge John Wiley on the economics of exclusive-dealing contracts.
Appendix II: Notes
These are interesting notes that I didn’t have time to work into the essay above. I was hoping I might address the question of “qualified immunity” for police, which also relates to the least-cost-avoider rule.
(1) From a 2024 5th Circuit appellate opinion in Texas:
Austin Thompson Hughes is a Good Samaritan. After 2:30 a.m., Hughes called 911 to report a pickup truck swerving violently across a fourlane highway in Houston. While Hughes was on the phone with emergency dispatchers, the drunk driver crashed. Still on the phone with 911, Hughes pulled behind the drunk driver and effectuated a citizen’s arrest in accordance with Texas law. But when police officers arrived at the scene, they let the drunk driver go and then arrested Good Samaritan Hughes. (Seriously.) Piling insanity on irrationality, the officers then charged Hughes with a felony for impersonating a peace officer. Hughes spent thousands of dollars defending against the frivolous criminal charges before the City of Houston dropped them. Then Hughes brought this § 1983 suit against the two officers who victimized him. The district court denied qualified immunity. We affirm. (Obviously.)
(2) In Philadelphia, the City has refused to use its police to arrest the University of Pennsylvania’s criminal trespassers, saying UPenn has show “imminent danger”— though I would think having a crime in progress (people on your property who won’t leave) ought to count as imminent danger.
Penn asked the Philadelphia Police Department for immediate help to disband the Gaza Solidarity Encampment, a source familiar told The Daily Pennsylvanian.
However, PPD declined, asking that the University provide proof that the encampment — and the rally today, which is entering its fourth hour — presents an imminent danger. News of the request for help came as Penn Public Safety issued its fourth UPenn Alert — the first alerts since the encampment started eight days ago.
In a statement, a University spokesperson said that Penn has contacted the City of Philadelphia amid the ongoing Gaza Solidarity Encampment and related demonstrations.
“The University has been managing an encampment and surrounding protests on our campus for several days,” the spokesperson wrote. “Protest activity began to escalate overnight and has steadily continued, with large crowds in and around College Green today. We have reached out to the City of Philadelphia to ensure we have the necessary resources to keep our community safe.”
"The Mayor's Office has asked for more information, and we are providing it," the spokesperson separately wrote to the DP.
In a statement to the DP, the PPD's public information officer wrote that — while they cannot publicly discuss specific planning or engagement strategies related to ongoing situations for "tactical purposes" — they have an agreement with Penn Police in which the PPD provides support "as needed."
“The PPD remains committed to facilitating safe demonstrations while ensuring the safety and upholding the First Amendment rights of all who live, work or visit our city,” PPD Public Information Officer Eric Gripp wrote. “Our response will be based on the specific circumstances of each situation.”
The city of Bloomington, Indiana, has similarly said it will refuse to allow its police to be used to help the University with the Gaza protests, whether or not criminal trespass really is occurring.
Footnotes
There is a Trustee Policy on “Delegation of Authority”, a rambling, poorly written document that cites an Indiana statute which, while clear, is almost certainly not meant to say what it says. The statute says that the Trustees can delegate any of the Board’s powers to anyone, though it can also take them back. That means the Trustees could delegate to Eric Rasmusen the power to decide which Trustees are on which Committees, for example, or, unless constrained by another statute, whether to shut down the Bloomington campus. The “Delegation of Authority” policy does delegate plenary authority, with enumerated exceptions, to the President. It also says, however, “FURTHER RESOLVED, that the President shall, and cause others to, manage and administer the University in accordance with the policies and resolutions adopted by the Board”, which contradicts the delegation of policy-making. I’ll have to think how to make sense of this, of what a court should do with this confusing language. I have not looked at the President’s job contract, which is here.
The 1969 Trustee Policy says “The Board of Trustees has designated an area on Dunn Meadow immediately north of the Memorial Union as the Indiana University Assembly Ground. Here, 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, the Bloomington Faculty Council minutes report that a committee wrote an “interpretation” of the Trustee Policy: “We think it is an interpretation, which is why we think it doesn't require Faculty Council action-rather than new, substantive policies, which we think would require Faculty Council action.” So it has no legal status, it is just some committee’s belief as to a policy that would carry out the Trustee Policy— it is NOT an interpretation, but an implementation suggestion. They clearly did a lot of hard work for a year or two, and then neglected to make any of it official by having a vote by the BFC or an official proclamation by the Administration.
The 2024 AAUP article says, “The 1989 document now appears online as BL-ACA-I18: “Policy for the Use of Indiana University Assembly Ground,” where it is misattributed to the 1969 Board of Trustees. No history or of authorization as policy is provided. (The original 1989 text has also been altered , with the office of Provost replacing the office of Chancellor.)” Since the University did post the document with an official-sounding title and numbering, and has posted nothing else, we may consider this, I guess, as official policy, with acceptance by the President, and perhaps the Trustees, who are now estopped from pleading in court that that is is not their policy. The rest of the analysis in this Substack would then follow: the Trustees can be sued for it, and they can sue the President for posting this as being Trustee Policy.
On commenter said,
What is now BL-ACA-I18 (minus its typos) was originally presented to the BFC in 1989 as a committee report that included specific recommendations to supplement the Trustees policy of Sept. 6, 1969. The committee was formed by the Dean of Students. The BFC decided not to create policy implementing the recommendations. The Chancellor said he would convey a BFC suggestion that the report be included in a brochure given to incoming undergrads. The report much later appeared as “Document I-XVIII” in the Academic Guide to campus policies (first added in either 2002 or 2009) without attribution to any authorizing body or office. Guide policies specified their histories; I-18 did not, and was not even noted as “administrative practice,” though it appears that some of its recommendations became administrative practice and might be “binding” to whatever degree administrative practice binds. When the Guide went online someone invented a pedigree for it, hallucinating a Jan. 1, 1969 Board meeting as its origin.
What a tangle! It all comes of not taking rules seriously. It has to be clear that a rule has been made, by whom, and when, and what is the rule and what is excess verbiage. And then you have to make sure that you tell the people who are supposed to follow the rule, and those who are supposed to enforce it. That’s especially important if you know the policy is going to result in arrests and lawsuits someday.
The exact same principles apply to for-profit corporations. The Board of Directors delegates some, but not plenary, authority to the President or CEO (Chief Executive Officer). The specifics will depend on state law, and especially state case law in judicial opinions. Federal law rarely comes into it— though with protests, it does indirectly because of the First Amendment.
Another example of the least-cost-avoider problem is the law of stolen goods. Today on Twitter I see that the Virginia Museum of Fine Arts bought a painting stolen from a Nepali monastery in 1967, and offered the monastery a good copy if the monastery gave up claims to the original. Should and does the monastery have a legal claim to it? The common law doctrine was marche ouvert, “open market”: if the stolen good was bought in an open market, the buyer could keep the stolen item, but otherwise he had to give it back, and sue the seller for compensation (Nemo dat quod non habet, “No one can sell what he doesn’t have”). The rationale is that the cost of the buyer checking whether goods sold openly isn’t worth incurring— better to have the original owner take more care to preven theft— but if the good is sold in an alleyway at a low price, the buyer ought to check its provenance. There is also a statute of limitations for quiet title, I expect, and the original owner can be estopped from suing if he could have prevented the thief from selling. It seems the Museum knew the painting was stolen when it bought it, which mean in this case it was the least-cost-avoider and ought to surrender it without compensation.
I will send this immediately to the ACLU lawyers who are representing Professor Ben Robinson and the other two in their lawsuit. I think the Federal Rules of Civil Procedure allow them to “amend their complaint” once “for free”, without having to have a good reason, so they’ll do so anyway, but one thing they should do is amend it to show the liability of the Board of Trustees as well as President Whitten. In its current form, the Complaint really absolves the Trustees. It says that they enacted a perfectly constitutional policy for Dunn Meadow; it’s just that President Whitten ignored their policy and made up one of her own. Thus, they could make a motion to eliminate themselves from the lawsuit and leave President Whitten to fend for herself. Maybe their fiduciary duty even requires them to try that motion if the Complaint is not amended. But it should be amended, to add in factual claims about the President having apparent authority even though she did not have actual authority, or the Trustees being estopped from objecting because they implicitly ratified her authority, or something like that. The ACLU can hire me as a consultant if they want to get it nicely done up.
I’ll add a caveat here. The Trustees can change their minds and change a rule anytime they like. They still, however, are bound by civil and criminal law. They can make a new rule ordering the President to shoot, cook, and eat trespassers on Dunn Meadow, but if the President actually does it, they’ll all go to prison for cannibalism. More realistically, they can make a new rule ordering the President to fire any professor who criticizes Israel, but if the President does that, the professor can sue the Trustees for breach of contract because his contract disallows firings for political reasons, and while he can’t get his job back, he can get money damages compensating him for income loss.
Ad hoc rules meant to restrict one political viewpoint are an example of the abandonment of the Rule of Law that I talked about in my Substack of two days ago. This is closely related to the idea of a “bill of attainder”, the kind of law that the English Parliament used to pass to execute just to execute one person, e.g., Archbishop Laud and Lord Strafford, around 1640, evil men, who had persecuted the Puritans and helped King Charles I subvert the laws. A current example is the New York state law which temporarily extended the statute of limitations for any suits brought this year so that Donald Trump could be sued for an alleged tort far in the past. Once his case has been tried and the 2024 election is over, the law will go back to being what it was before. The original bills of attainder, though, had the actual name of the attainted person written at the top of the bill. See “Matter of Fact, Matter of Law, and the Attainder of the Earl of Strafford,” William Stacy, The American Journal of Legal History 29: 323-348 (1985).
“But it was a different set of Trustees back in 1969!” That doesn’t matter. The Board of Trustees operates as a unit, not as individuals. It is immortal, unless someone (e.g., the Legislature) strikes it out of existence, and its past actions are treated by the law, and by common sense, as being just as controlling whether they are 1 year old or 100 years old, so long as they were never overriden.
Even the Administration lower officials were confused. This video is almost humorous in how Professor Robinson shows a university official and the university police the Dunn Meadow policy posted on the web for 30 years that says tents can be there, and asks on what grounds they claim that certain newly made signs prohibiting tents have any legitimacy as policy. They don’t even say who told them the signs were actual policy, and they don’t say that it was a policy created a few hours earlier at the direction of the Provost (it is still unclear actually where the new policy came from, though the Administration as a whole has by now endorsed it). So even if the new policy is legal, it was presented in such a way that a reasonable man wouldn’t believe it was legal without hearing it from someone who seemed to know what they were talking about, which the campus chief of police did not.
I may be wrong about the Police not being at fault, though, because I may be wrong on the facts. I am assuming here that the Police did not know the university rule about tents being permitted except at night. A Bloomington Herald-Times interview of the policeman in charge casts some doubt on that, because he says he ordered the arrests during the afternoon because he didn’t want to make his police stay up late by waiting till an actual crime had been committed. I’m thinking he must just have been confused during the interview; he certainly gets tangled up by the simple questions of the interviewer and he was flailing for justifications. It’s tough doing interviews, and I want to give him credit for agreeing to do an interview when the President, Provost, and Vice Provost have all refused to talk to anyone:
H-T: Several of my colleagues and I have been out there, what people are doing is they're sitting in camps and they're chanting. What's the mayhem that would have occurred if you had stayed away?
Carter: They’re in violation of the rules. That’s why we got called in.
H-T: The rules were changed the night before. And that's where there was confusion about what they were allowed to do.
Carter: Wait a second, wait a second. The rule of tents was changed. Overnight never changed.
H-T: Yeah, the rule of tents during the day was changed, right? And that's why there was confusion about whether people were allowed to have tents or not.
Carter: But not overnight. That rule never changed.
H-T: But what happened was during the day. They had tents during the day and that was the issue. They were arrested during the day.
Carter: But how long had those tents been there?
H-T: I think they were put up that morning. And it doesn't matter when they were put up. At the point that people were arrested, it was during the daytime. And the tents traditionally had been allowed during the daytime, and only the night before, the rules were changed so that they needed prior approval. Isn't that what caused the confusion?
Carter: Again, that's your perspective. I disagree.
H-T: How do you expect people not to be confused if for decades they have been allowed to have tents during the day and the night before …
Carter (interjects): How about you let me explain?
H-T: You said there was no confusion.
Carter: From my perspective, there was not, because of the way we were directly communicating with the folks that were there. IU told us that those people on Dunn Meadow in the tents, overnight and are trespassing and they need to be removed.
H-T: Overnight I totally understand, but the situation started on Thursday during the day. People were setting up tents during the day, and during the daytime, the tents were being removed.
Carter: Yeah, well, there was Thursday, that we were there for the first time. We were there again on Friday night. And then we went back on Saturday, so we gave them adequate time. I don’t think there was any confusion about that overnight issue.
H-T: I’m not talking about overnight …
Carter (interjects): Listen, we were going to do this on Friday night, but I just wouldn’t subject my troopers to that when it’s dark.
H-T: I think the issue that people are having is that there are a lot of people who were arrested during the daytime. And going back decades, people had been allowed to use tents during the daytime, and that rule was changed the night before the protests on Wednesday evening. And so people were confused on Thursday during the day when they put up the tents.
Carter: They weren’t arrested for camping. They were arrested for trespassing. The ISP is not going to focus on administrative rules. That’s not what we do. We enforce state law.
H-T: But didn't they have the right to be there? I mean, why the trespassing charge if it's about tents?
Carter: We're talking circles. I'm not going to continue.
H-T: That's fine. We can go on.
It’s like the case of Dean Bernardo of UCLA’s business school. He suspended Professor Gordon Klein in 2020 for not letting black students postpone their exams, after expressly ordering faculty not to postpone their exams and after the university lawyers had told Dean Bernardo not to take any action against Professor Klein. His chances at trial don’t look good. Klein was a successful consultant in forensic accounting —- he was the chief accountant appointed by the judge in the General Motors bankruptcy, I think— and he says Bernardo wrecked his million-dollar-a-year practice, so even the objective damages are going to be huge. But Bernardo is a business school dean and before that was a finance professor, so he may be good for the entire sum, and Professor Klein is suing him personally. Thus, the Bernardo house may soon be the Klein house (the trial is scheduled for Fall 2024).
To be sure, people at IU do have ample reason to suspect that this particular university president might lie, but it’s always hard to know what an erratic person will do, even if you know they’re erratic.