I’ve been looking into IU’s presidential search. Now a law firm is demanding to snoop through my email.
Is Indiana University attempting to chill academic freedom and interfere with a story about how its trustees make their most important decisions?
[If you’re looking for my subsequent story examining the IU presidential search, it’s here.]
By Steve Sanders
The author is an Indiana University alumnus and Professor of Law.
For several months, I have been researching an article examining how Indiana University’s presidential search process — which resulted in the appointment last April of Pamela Whitten — unfolded behind the scenes. While I am still a few days away from publishing it, the piece will critically examine decision making by the IU Board of Trustees and reveal facts that the trustees, Whitten, and some others will be unhappy for people to know. It also will document the trustees’ possible violation of Indiana open-meetings law.
Last Wednesday, I learned that a high-end law firm has demanded some of my emails, presumably to attempt to find out how I’ve learned what I know.
[Update 10/14/21 — I was notified today that the scope of the request has been expanded.]
Who could be behind this? I gave IU’s general counsel, Jackie Simmons, two opportunities last week to deny the law firm is working for IU, but she refused to respond to my emails. One assumes that if IU knew nothing about it, she would hasten to say so. The law firm did not return messages. I also gave IU spokesman Chuck Carney and Interim Vice President for Communications Rebecca Carl the same opportunity, sending an advance draft of this article. They also ignored my messages. So draw your own conclusions. (Even if IU is reckless enough to have a professor’s email searched, I assume it’s not reckless enough to let a story about it get out if it isn’t true.)
If it is IU, it would be a stunning attempt to chill a faculty member’s First Amendment rights and intimidate him into keeping silent about things the University knows will be controversial.
IU’s commitments to academic freedom were once defined by such figures as Herman Wells and Kenneth Gros Louis. If this is IU, one wonders what my fellow faculty and alumni, major donors to the IU Foundation, and potential candidates for all the significant administrative vacancies at IU would think about what has become of this University’s values under its current leadership.
Unlike the law firm investigating me, I have not been furtive in conducting my work. I had been emailing various people who will be discussed in the article — including Whitten, former President Michael McRobbie, former IU Board of Trustees chair Michael Mirro, and Simmons. I informed them I was working on an article and, out of fairness, offered the chance to confirm, deny, or comment on my findings. In most cases, these people simply ignored my messages.
I learned on Wednesday that someone has hired an Indianapolis law firm, Hoover Hull Turner LLP, to file a request under the Indiana Access to Public Records Act (APRA, the state version of a “FOIA”) seeking my emails — specifically, any emails about the search I may have sent or received with any members of the IU Board of Trustees or the 17 members of the presidential search committee, a group that included three faculty members, a former student body president, two school deans, a regional campus chancellor, and a variety of powerful alumni and major donors. Under state law, most IU email is considered a public record.
[Update 10/14/21 — I was notified today that the law firm has expanded the list to include any emails I may have exchanged with former IUB Provost Lauren Robel, whom I identified as a finalist advanced by the search committee but whom the trustees rejected; former President Michael McRobbie; and a former trustee who retired from the board on June 30.]
In other words, even though I have not yet published the results of my reporting, someone is paying an expensive Indianapolis law firm to snoop through my email and determine how, and from whom, I may have learned things IU intended to remain secret.
What they’ll find are some outbound messages from me, asking a few trustees and some search committee members to talk with me, but not much more. I was not foolish enough to conduct revelatory conversations with any of my sources over IU email. And most people I contacted either ignored me or wrote back with a polite “sorry, can’t comment.” One trustee with whom I’m on friendly terms sent back a warm message declining to talk but telling me I am “a brilliant professor and writer.”
Remember, it’s not just me who’s being investigated; in effect, it is every member of the Board of Trustees and the presidential search committee — including some people I have never even met, much less corresponded with about anything. Apparently no one is above suspicion: the dragnet includes important alumni and donors one would assume the University would not want to see embarrassed or alienated. I, of course, regret that my attempt to shed light on an important matter of public concern may inadvertently cause these people unwanted attention or difficulty. But I wonder how they will feel when they learn that IU’s tech people, in responding to the APRA, will be combing IU’s email servers looking for any telltale evidence of their email addresses.
Throughout this work, I did not hide the fact I was an IU professor engaged in professional business. As a faculty member, I have a legitimate interest in the quality and integrity of my institution’s governance. I intend this article as a responsible, informed examination of a matter of public concern; it is not some project for my own gain or self-interest. The service missions of both the University and the faculty include evaluating how well public institutions perform their jobs. I am not speaking for the University, but I am engaged in faculty work. I am a scholar who was originally trained — at IU — as a journalist. Scholars, like journalists, believe that fair and informed scrutiny benefits public institutions, educational or otherwise.
I have been affiliated with IU for over 40 years as a student, senior staff member to a dean and a vice president and chancellor, involved alumnus, and now tenured law professor. I have taught, written, and litigated about academic freedom. I am not exactly on the fringes of the University. Although they are in no way involved in my work on the presidential search and I do not speak for them, I am currently the co-chair of the Bloomington Faculty Council’s Faculty Affairs Committee, an elected member of my law school’s Policy Committee, and a member of the IU Alumni Association’s Executive Council. I would not do anything to maliciously harm the institution to which I’ve devoted most of my life. But it is not immune from scrutiny.
My article on the presidential search process will rely in part on interviews with numerous people who agreed to talk with me only if I protected their identities. Some of these people put themselves at risk because they trust me and believe the information is important for IU’s stakeholders to know.
Several people suggested I turn this project over to a professional journalist. But even if there were any veteran, well-sourced journalists covering IU these days, my sources would never have spoken with someone they didn’t already know and trust.
Regardless of who is behind the APRA, my work falls under the protection of the First Amendment and IU’s own academic freedom policies. According to IU policy enacted by the faculty and endorsed by the Board of Trustees:
Academic freedom includes the freedom to express views on matters having to do with the university and its policies, and on issues of public interest generally….
Academic freedom is central to the mission of the university. Knowledge cannot be advanced unless faculty and librarians have freedom to study and communicate ideas and facts, including those that are inconvenient to political groups or authorities, without fear of recrimination.
In order to express such views responsibly, one must gather information. Nothing I’ve done in the course of this information-gathering broke any law or IU policy.
Who would have the interest and resources to hire a law firm to investigate me? The most likely candidates would be Indiana University itself, one of its officers or trustees, or a wealthy alumnus willing to act as a proxy. With a particular blend of hauteur and cowardice, IU’s legal and PR people refuse to answer questions about it. But the circumstantial evidence is compelling.
At first glance it seems strange for IU to hire a law firm to send an APRA request to itself. But under its own policies, IU can’t search my email unless it can demonstrate suspicion that I have violated the law or an IU policy. But using a third party like a law firm to submit an APRA request gets around that problem and allows the interested party to hide its identity.
IU intended the presidential search process to be secretive, a black box; my work is frustrating that intent. The law firm’s APRA request targets conversations the firm imagines I might have had with some of the key actors in the presidential selection process. The timeframe of the request is August 1-September 16, the period when several IU officials received emails from me asking for comments on my findings.
Whoever directed their lawyers to file this request knew the subjects of questions I have been asking to people like Whitten, McRobbie, and Mirro. It isn’t only possible leaks from the search that the firm is after. The APRA also covers my research into a set of large new payments the trustees agreed to make to McRobbie, something state law required to have been done out in the open but which was not.
Hoover Hull Turner’s past and current representation of IU is a matter of record. (For example, the firm currently represents IU and some of its employees in a Title IX lawsuit brought by a former medical student.) Under the Indiana Supreme Court’s ethics rules, it would be unusual (though perhaps not impermissible) for a law firm to direct a potentially unwelcome APRA request to a current client if the client itself had not blessed the maneuver.
I know and respect several of the lawyers at Hoover Hull Turner (even if they did spell my name wrong in the APRA request). The lawyers there include a former Indiana supreme court justice and many people who tout their status as “Indiana Super Lawyers,” their peer ratings, and their community service. But the firm advertises that “Litigation Is All We Do.” Litigation, of course, involves suing people and carrying on lawsuits.
One wonders how it may affect the firm’s reputation once it is known they may be working to impair or punish the disclosure of information that would shed light on how the IU Board of Trustees — an important public body and an arm of the State of Indiana’s government— conducts public business. One of the topics of their APRA search concerns what I will document as the trustees’ violation of the Open Door Law. Does the firm want to appear to be intimidating someone out of revealing legal misconduct?
I will be releasing my story on the search and the McRobbie payments in the next few days.
[Update: In December 2021 I obtained confirmation through a public-records request that the firm had been hired by IU General Counsel Jacqueline Simmons, who around the same time was hastily terminated by IU without any public reason being given. IU also changed its IT policy to prohibit administrators from making such requests.]
