Table Of Content

THE JOURNAL OF COLLEGE AND UNIVERSITY LAW ARTICLES Traditional Single-Sex Fraternities on College Campuses: Will They Survive in the 1990’s? Nancy S. Horton Evolving Theories in Legal Liability: How Will They Affect Cooperative Extension? Alan Schroeder COMMENTARY Impact of the Proposed Civil Rights and Women’s Equity in Employment Act on Colleges and Universities Mary W. Gray STUDENT NOTE Student Challenges to Grades and Academic Dismissals: Are They Losing Battles? Dina Lallo CASE COMMENT Basic Books, Inc. v. Kinko’s Graphics Corp.: Potential Liability for Classroom Anthologies David Bianchi Grant H. Brenna James P. Shannon BOOK REVIEW Crises in Higher Education and the Need for Solutions—But What Kind? L. Gregory Jones INDEX PUBLISHED BY THE NATIONAL ASSOCIATION OF COLLEGE AND UNIVERSITY ATTORNEYS AND THE NOTRE DAME LAW SCHOOL VOLUME 18 SPRING 1992 NUMBER 4 NATIONAL ASSOCIATION OF COLLEGE AND UNIVERSITY ATTORNEYS The National Association of College and University Attorneys (NACUA), established in 1961, is a nonprofit organization serving the needs of attorneys representing institutions of higher education. NACUA now serves nearly 2,400 attorneys who represent some 1,200 campuses (about 630 institutions). The Association's purpose is to improve the quality of legal assistance to colleges and universities by educating attorneys and administrators on legal issues in higher education. NACUA ac- complishes this goal through its publications, conferences, and workshops. NACUA also operates a clearinghouse for references through which attorneys share knowledge and work products on current legal problems. With its headquarters in Washington, D.C., NACUA monitors governmen- tal developments having significant legal implications for its member institutions, coordinates the exchange of information concerning all aspects of law affecting higher education, and cooperates with other higher education associations to provide general legal information and assistance. Accredited institutions of higher education in the United States and Canada are the primary constituents of NACUA. Each member institution may be represented by several attorneys, any of whom may attend NACUA meetings, perform work on committees, and serve on the Board of Directors. Approximately two-thirds of NACUA member institutions are private, nonprofit institutions of higher education with enrollments below 5,000 students and current fund expenditures below $25 million per year. Collectively, these institutions enroll approximately 650,000 students. The remaining member insitutions, whose budgets range up to $3 billion per year, collectively enroll more than six million students. Board of Directors Members-at-Large President 1989-92 Beverly E. Ledbetter Brown University Pamela J. Bernard University of Florida President-Elect Eugene H. Bramhall . .. . Brigham Young University Mary Elizabeth Kurz Michigan State University Thomas P. Hustoles . .Northern Michigan University Western Michigan University First Vice President William R. Kauffman University of Alaska David M. Donaldson Amherst, Wellesley, and Statewide System Wheaton Colleges Paul J. Ward Arizona University System Second Vice President Lee B. Liggett University of Vermont 1990-93 Vence L. Bonham Michigan State University Secretary James F. Henriot University of Puget Sound Melany S. Newby . . University of Wisconsin System Barbara A. Lee Rutgers, The State University Treasurer of New Jersey S. Andrew Schaffer New York University Frederick G. Savage . . The Johns Hopkins University J. Kelley Wiltbank Idaho State University Immediate Past Presidents Vanderbilt University Saint Louis University President 1990-91 University of North Carolina Richard B. Crockett Syracuse University General Administration President 1989-90 Byron H. Higgins University of Illinois Peter H. Ruger Washington University Lawrence White Georgetown University Associate Executive Director Director of the Manager of Publications Edythe M. Whidden Legal Reference Service Linda E. Henderson Marcus M. Mills NOTRE DAME LAW SCHOOL Notre Dame Law School, the oldest Roman Catholic law school in the United States, was founded in 1869 as the nation’s third law school. The Notre Dame program educates men and women to become lawyers of ex- traordinary professional competence who possess a partisanship for justice, an ability to respond to human need, and a compassion for their clients and colleagues. Notre Dame Law School equips its students to practice law in every state and in several foreign nations. The school raises and explores the moral and religious questions presented by the law. The learning program is geared to skill and service. Thus, the school is committed to small classes, especially in the second and third years, and emphasizes student participation. In order to further its goal of creating lawyers who are both compe- tent and compassionate, Notre Dame Law School is relatively small. The Admissions Committee makes its decisions based on a concept of the ‘‘whole person.’’ The Law School offers several joint degree programs, including M.B.A./J.D. and M.Div./J.D. Notre Dame Law School is the only law school in the United States which offers study abroad for credit on both a summer and year-round basis. Instruction is given in Notre Dame’s own London Law Centre under both American and English pro- fessors. Notre Dame Law School serves as the headquarters for The Jour- nal of College and University Law. The Center for Civil and Human Rights, the Institute for International Peace Studies, the National In- stitute for Trial Advocacy and the Thomas J. White Center on Law and Government all enrich the Notre Dame Law School experience. The University of Notre Dame The Notre Dame Law School Officers of Administration Officers of Administration Presi: dent Acting Dea:n Rev. Edward A. Malloy, C.S.C., Ph.D. Fernand N. Dutile, J.D. Provost Associate Dean Timothy O’Meara, Ph.D. Carol Ann Mooney Executive Vice President Director of the Law Library Rev. E. William Beauchamp, C.S.C., and Associate Dean M.Div., J.D. Roger F. Jacobs, M.A.L.S., J.D. Vice President and Associate Dean Associate Provost William O. McLean, M.A. Roger A. Schmitz, Ph.D. Aaseetete Baan Walter F. Pratt, Jr. THE JOURNAL OF COLLEGE AND UNIVERSITY LAW EDITORIAL BOARD Eileen K. Jennings, Chair Central Michigan University Mt. Pleasant, MI Kathleen P. Bruvold David T. Link Associate General Counsel President University of Cincinnati University of Notre Dame Australia Fernand N. Dutile Martin Michaelson Acting Dean and Professor of Law Associate Individual Member Notre Dame Law School Hogan & Hartson Philip J. Faccenda Basil H. Thomson, Jr. University Counsel General Counsel University of Notre Dame Baylor University John W. Garland Paul Tanaka Associate General Counsel Assistant Attorney General University of Virginia Washington State University THE JOURNAL OF COLLEGE AND UNIVERSITY LAW EDITORIAL STAFF FACULTY EDITOR Professor Fernand N. Dutile ASSOCIATE FACULTY EDITOR ASSISTANT FACULTY EDITOR Philip Faccenda Carol Kaesebier STUDENT EDITOR James Brammer Indiana EXECUTIVE EDITOR Claudia Zuch New York ASSISTANT EXECUTIVE EDITOR RESEARCH EDITOR Dina Lallo Rhode Island LEAD ARTICLES EDITOR LEAD NOTES EDITOR Kristen Blume Kathleen Capano Wyoming New Jersey ARTICLES EDITORS NOTES EDITORS Cheryl Hoey Deborah Ganter California Pennsylvania Martin Seifert Gregg Ghelfi Indiana Arizona Cynthia Weingart Peter Skiko New York Minnesota BOOK REVIEW EDITOR Frederic Scott Ohio SECOND-YEAR STAFF David Bianchi Daniel Myers New Jersey Michigan David Birks Bridget Quinn Michigan Michigan Grant Brenna Kay Rottinghaus Texas Kansas Domenique Comacho James Shannon New York New Hampshire John Dunn Whitney Wilds Illinois Michigan James Kettle Christine Wu Maryland Michigan Paul McCarthy Patrick Yu New York New York The Journal of College and University Law (ISSN 0093-8688) The Journal of College and University Law is the official publication of the National Association of College and University Attorneys (NACUA). It is published quarterly and in- dexed in Callaghan’s Law Review Digest, Contents of Current Legal Periodicals, Contents Pages in Education, Current Index to Journals in Education, Current Index to Legal Periodicals, Current Law Index, Index to Current Periodicals Related to Law, Index to Legal Periodicals, Legaltrac, National Law Review Reporter, Shepard’s Citators, and WESTLAW. POSTMASTER: Send changes of address requests to The Journal of College and Univer- sity Law in care of Rothman & Company, 10368 W. Centennial Road, Littleton, CO, 80123. Second Class postage paid at Washington, D.C., and at additional mailing offices. Copyright © 1991 by National Association of College & University Attorneys Chteas: —— £C..& UL. Library of Congress Catalog No. 74-642623 Except as otherwise provided, The Journal of College and University Law grants permission for material in this publication to be copied for use by nonprofit educational institutions for scholarly or instructional purposes only, provided that 1) copies are distributed at or below cost, 2) the author and the Journal are identified, and 3) proper notice of the copyright appears on each copy. If the author retains the copyright, permission to copy must be obtained directly from the author. ABOUT THE JOURNAL AND ITS EDITORS The Journal of College and University Law is the only law review entirely devoted to the concerns of higher education in the United States. Contributors include active college and university counsel, attorneys who represent those institutions, and education-law specialists in the academic community. The Journal has been published quarterly since 1973 and now boasts a national circulation of more than 3,800. In addition to scholarly articles on current topics, the Journal of College and University Law regularly publishes case comments, scholarly commentary, book reviews, recent developments, and other features. In 1986, the Notre Dame Law School assumed publication of the Journal, which had been published at the West Virginia University College of Law from 1980-1986. Correspondence regarding publication should be sent to Fernand N. Dutile, Faculty Editor, The Journal of College and University Law, Notre Dame Law School, Notre Dame, IN 46556. The Journal is a refereed publication. The views expressed herein are to be attributed to their authors and not to this publication, the National Association of College and University Attorneys or the Notre Dame Law School. The materials appearing in this publication are for information purposes only and should not be considered legal advice or be used as such. For a special legal opinion, readers must confer with their own legal counsel. THE JOURNAL OF COLLEGE AND UNIVERSITY LAW Volume 18 Spring 1992 Number 4 ARTICLES Traditional Single-Sex Fraternities on College Campuses: Will They Survive in the 1990’s? ............... Nancy S. Horton Collegiate social fraternities, with rare exceptions, limit their membership to individuals of the same sex. Many universities, however, concerned with the ‘‘Animal House’’ image plaguing most fraternities, have mandated that these traditional single- sex institutions ‘‘go co-ed,’’ or, in some instances, have ex- tinguished Greek life altogether. This Article analyzes the single-sex admissions policy of fraternities and evaluates the success of maintaining those policies in an era in which society and courts have created immense pressure to abolish gender-based stereotypes and to provide equal access to places of public accommodation. In conclusion, the Author makes five specific recommendations which fraternities should adopt in order to preserve their single-sex status. Evolving Theories in Legal Liability: How Will They Affect Co- operative Extension? ..................... Alan Schroeder 483 Shifts in available resources, programmatic demands, and legal liability pose serious challenges to off-campus educational, service, and regulatory-related activities carried out by universities. This Article focuses on the Cooperative Extension Service (CES), affiliated with the nation’s land grant universities. Using Wyoming CES as illustrative, the Article outlines the current structure and authority of CES; develops a typology for CES activities; examines the impact of several evolving theories of legal liability on these activities; and shows how traditional risk-management techniques might limit CES liability exposure. While focused on CES, the problems and risk-management techniques discussed apply equally to liability issues faced by most universities today. COMMENTARY Impact of the Proposed Civil Rights and Women’s Equity in Employment Act on Colleges and Universities . . Mary W. Gray Higher-education critics of the Civil Rights and Women’s Equity in Employment Act of 1991 have asserted that it will lead to the imposition by colleges and universities of hiring and tenure quotas to avoid claims of disparate impact. Pre-1989 history demonstrates that unless courts’ deference to college and university faculty-personnel decisions changes substan- tially, such claims will continue to fail. However, the ability to challenge subjective standards under the Watson v. Fort Worth Bank and Trust rule, combined with the more plaintiff- oriented assignment of burdens established by the Civil Rights and Women’s Equity in Employment Act of 1991, may mean more successful sex discrimination litigation in academe. STUDENT NOTE Student Challenges to Grades and Academic Dismissals: Are They ESE ET ORT rr Tere Dina Lallo CASE COMMENT Basic Books, Inc. v. Kinko’s Graphics Corp.: Potential Liability for Classroom Anthologies David Bianchi Grant H. Brenna James P. Shannon BOOK REVIEW Crises in Higher Education and the Need for Solutions—But What RE tains sant ciereelameaieeeenss L. Gregory Jones 621 INDEX TRADITIONAL SINGLE-SEX FRATERNITIES On COLLEGE CAMPUSES: WILL THEY SURVIVE IN THE 1990s? Nancy S. HorTon* TABLE OF CONTENTS B. The Place of Fraternities in the Federal Context C. Fraternities at Public versus Private Educational Institutions FREEDOM OF ASSOCIATION AS THE BASIS FOR FRATERNITY FREEDOM A. The Right of Intimate Association 1. The Application of Intimate Association to Fraternities a. b. A High Degree of Selectivity c. Exclusion of Nonmembers in Critical Aspects of Fraternity Life d. Purpose and Policies e. Congeniality 2. Intimate Associations—The Discouraging Trend 440 B. The Right of Expressive Association 1. The Application of Expressive Association to Fraternities a. Religious Activities b. Community Service c. Political Activity d. Social Activities Expressive Association—What Does This Mean Ty FI wih ikkeiaticosttititcmeiiiincinace 444 * Current Law Clerk to the Honorable Terry R. Means, United States District Judge, Northern District of Texas; Former Law Clerk to the Honorable Charles Clark, Chief Judge, United States Fifth Circuit Court of Appeals. J.D., Southern Methodist University School of Law (1991); B.A., The University of Mississippi (1987). In 1987-88, the Author worked as an International Consultant to Delta Gamma Fraternity, a national collegiate women’s fraternity, in which she traveled to over forty universities in the United States and Canada. The Author is currently a Delta Gamma Fraternity chapter adviser at Texas Christian University in Fort Worth, Texas. 419 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 18, No. 4 EROSION OF A FRATERNITY’S FIRST-AMENDMENT FREEDOM THROUGH STATE PUBLIC ACCOMMODATION STATUTES A. ‘“‘Place’’ of Public Accommodation B. Place of ‘‘Public’’ .1ccommodation 1. Kiwanis International v. Ridgewood Kiwanis 2. ‘Distinctly Private’? Exemption ‘Business Establishment’’ Constituting Public Accommodation 1. New York State Club Association, Inc. v. City of New York 2. California’s Interpretation of Business Establishment a. Isbister v. Boys’ Club of Santa Cruz b. Rotary International v. Rotary Club of The Compelling State Interest to Eradicate Sexual Discrimination 1. The Application of Business Establishment to Fraternities 2. Fraternities and the Right to Exclude the Op- posite Sex The Princeton Eating Clubs and Harvard Final Clubs—A Striking Contrast A. The Princeton Eating Clubs 1. Procedural History 2. The New Jersey Supreme Court Decision 3. Eating Clubs Compared to Fraternities a. Membership b. c. Autonomy from the University d. Housing The Harvard Final Clubs Selectiveness in Membership Requirements and Utilization of Formal Membership Procedures... Membership Control over Internal Government . Public Funding Public Use of Facilities Performance of a Public Function 6. Business and Professional Contacts TRADITIONAL SINGLE-SEX FRATERNITIES ON COLLEGE CAMPUSES A. Factors Relevant to Maintaining a Single-Sex Status. B. Recommendations to Preserve the Single-Sex Status of Fraternities 1. Abolish Auxiliary Little-Sister and Big-Brother Organizations