Table Of Content

THE JOURNAL OF COLLEGE AND UNIVERSITY LAW FOCUS ON SECRECY AND UNIVERSITY RESEARCH The First Amendment, Governmental Censorship, and Sponsored Research Peter M. Brody Secrecy on Campus John Shattuck The Myths of Academia: Open Inquiry and Funded Research Wade L. Robison John T. Sanders AAUP Perspectives on Academic Freedom and United States Intelligence Agencies R. Robert Kreiser ARTICLES A Quandary of the Civil Rights Act of 1991: Is the New Law Retroactive? Michael A. Dymersky Jack M. H. Frazier Fair Use and the Educator’s Right to Photocopy Copyrighted Material for Classroom Use Robert Kasunic STUDENT CASE COMMENT An End Run Around the Sherman Act? Banks v. NCAA and Gaines v. NCAA Mike Kettle Paul B. McCarthy PUBLISHED BY THE NATIONAL ASSOCIATION OF COLLEGE AND UNIVERSITY ATTORNEYS AND THE NOTRE DAME LAW SCHOOL VOLUME 19 WINTER 1993 NUMBER 3 NATIONAL ASSOCIATION ~<i-:)) OF COLLEGE AND *NACUA * “eee 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 2,500 attorneys who represent some 1,300 campuses (about 660 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 accomplishes 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 governmental 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 one-half of NACUA member institutions are private, nonprofit institutions of higher education with enrollments below 5,000 students and current fund expenditures below $50 million per year. Collectively, these institutions enroll approximately 650,000 students. The remaining member institutions, whose budgets range up to $4 billion per year, collectively enroll more than six million students. Board of Directors Members-at-Large President 1990-93 Mary Elizabeth Kurz...Michigan State University Vence L. Bonham Michigan State University James F. Henriot University of Puget Sound President-Elect Barbara A. Lee . ...Rutgers, The State University David M. Donaldson ....Amherst, Wellesley and of New Jersey Wheaton Colleges Frederick G. SavageThe Johns Hopkins University First Vice President J. Kelley Wiltbank Idaho State University Lee B. Liggett University of Vermont 1991-94 Second Vice President Barbara Bennett Vanderbilt University Michael C. Weston...... Northwestern University Karen Davis Saint Louis University Secretary Becky R. French ....University of North Carolina Sheila Trice Bell ..Northern Kentucky University General Administration Byron H. Higgins University of Illinois Treasurer Lawrence White ......... Georgetown University S. Andrew Schaffer........ New York University Philip Burling Boston College Immediate Past Presidents Mary Ann Connell ..... University of Mississippi Shelley Sanders Kehl..... College of Aeronautics President 1991-92 and Manhattan College Beverly E. Ledbetter Brown University Jean S. Sagan University of Alaska President 1990-91 Statewide System Richard B. Crockett Hamilton College and Raymond W. Schowers Eastern New Mexico Syracuse University 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 professors. 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 : Dean President : : Rev. Edward A. Malloy, C.S.C., Ph.D. David T. Link Provost Associate Dean Timothy O’Meara, Ph.D. ; Carol Ann Mouney Executive Vice President D cape osn evea re “se — Roger F. Jacobs, M.A.L.S., J.D. Vi:c e Presi; dent and fads Associate Dean Associate Provost William O. ‘McLean, M.A. Roger A. Schmitz, Ph.D. Associate Dean Walter F. Pratt, Jr. THE JOURNAL OF COLLEGE AND UNIVERSITY LAW EDITORIAL BOARD Eileen K. Jennings, Chair Central Michigan University Fernand N. Dutile Barbara A. Lee Professor of Law Associate Professor and Director, Notre Dame Law School Graduate Program, Institute of Management and Labor Relations Philip J. Faccenda Rutgers, The State University Vice President and University Counsel of New Jersey University of Notre Dame David T. Link John W. Garland Dean Associate General Counsel Notre Dame Law School University of Virginia Martin Michaelson Sally S. Harwood Associate Individual Member Associate General Counsel Hogan & Hartson Michigan State University Peter N. Swan G. Richard Hill Assistant to the President of Legal Affairs Special Assistant Attorney General University of Oregon Weber State University Paul Tanaka Robert John Kane Assistant Attorney General Southern Illinois University Washington State University THE JOURNAL OF COLLEGE AND UNIVERSITY LAW EDITORIAL STAFF FACULTY EpIror Professor Fernand N. Dutile ASSOCIATE FACULTY EpITor ASSISTANT FACULTY EDITOR Philip Faccenda Carol Kaesebier STUDENT EDITOR John Dunn Illinois EXECUTIVE EDITOR Grant Hugh Brenna Texas LEAD ARTICLES EDITOR LEAD Notes EpITor Domenique Comacho Mike Kettle New York Maryland ARTICLES EDITORS Notes Epirors David Bianchi David Birks New Jersey Michigan Bridget Quinn Paul McCarthy Michigan New York Kay Rottinghaus Daniel Meyers Kansas Michigan Christine Wu James Shannon Michigan New Hampshire Patrick Yu Whitney Wilds New York Michigan SECOND-YEAR STAFF James Carrig Richard McCaulley California Connecticut Laura Couchman Patrick Nagle California Illinois Deirdre Dunphy Alexander Papandreou New York Greece George Fish Ken Paradis Michigan Maine Suzanne Gau Catherine Quinlan Missouri Florida Donald Lohman Pete Smith Illinois Ohio Edward Lyons Carin Stoddard California Michigan Marc Villarreal Elaine Zacharakis Texas 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 © 1992 by National Association of College & University Attorneys Citeras 2s Nee UE.) 2 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 3,600. In addition to scholarly articles on current topics, the Journal of College and University Law regularly publishes case comments, scholarly com- mentary, 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, Noire 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 19 Winter 1993 Number 3 ARTICLES FOCUS ON SECRECY AND UNIVERSITY RESEARCH Editor’s Note: Three of the following articles arose out of a conference on Ethical and Procedural Issues Concerning University Research, held at the Rochester Institute of Technology in the Fall of 1991. Early versions of ‘“‘Secrecy on Campus,’’ by John Shattuck, and ‘‘AAUP Perspectives on Academic Freedom and United States Intelligence Agencies,’’ by Jonathan Knight and B. Robert Kreiser, were presented at the conference. ‘‘The Myths of Academia: Open Inquiry and Funded Research,’’ by Wade L. Robison and John T. Sanders, arose from discussion at the conference and after it. Three other papers arising from the conference appeared in the Business and Professional Ethics Journal, March 1992: ‘‘Ethical Issues in Funding and Monitoring University Research,’’ by Tom Beauchamp; ‘‘Whose Academic Freedom Needs to be Protected? The Case of Classified Research,’’ by Nicholas Steneck; and ‘‘Research Fund- ing and the Value-Dependence of Science,’’ by Sanders and Robison. The organizers of the conference express here their gratitude to the New York Council for the Humanities, as well as to many diverse organiza- tions at the Rochester Institute of Technology, for the financial support that made the original event possible. The First Amendment, Governmental Censorship, and Sponsored PR rn Perrvire, Mtee e Peter M. Brody 199 Does governmental funding of academic research entitle the government to impose secrecy conditions on the research results? The doctrines of ‘‘academic freedom’’ and ‘‘un- constitutional conditions’’ support the researcher’s First Amendment right against such conditions. Yet under the ‘‘non-subsidy’’ doctrine, as reaffirmed in Rust v. Sullivan, the government may be entitled to dictate the terms under which its research funds are spent. The author examines these doctrines and concludes that academic research is entitled to First Amendment protection from censorship, even under the ‘‘non- subsidy’’ doctrine. GI sini drt edckddehadaaoa John Shattuck 217 The primary mission of a university is to engage in the free and open exchange of information and research. Yet changes in the research process have created internal and external pressures for secrecy. The external pressure for secrecy often comes from the government. Government attempts to justify secrecy on grounds of national security or of the protection of American science and technology from foreign exploitation. As this external pressure for secrecy grows, research universities face major institutional-policy issues regarding the sponsorship of research, conflicts of interest, and intellectual property. This Article calls for universities to rededicate themselves to the proposition that the free flow of information and ideas is vital to the academic enterprise. The Myths of Academia: Open Inquiry and Funded Research Wade L. Robison John T. Sanders Both professors and universities benefit from a vision of academic life that is grounded more firmly in myth than in history. According to that myth, scholars pursue research wherever their drive to knowledge takes them, and universities transmit the fruits of that research to contemporary and future generations as the accumulated wisdom of the ages. Yet the economic and social forces operating on universities, as well as on the interests of faculty members within them, are making the myth embodied in the traditional ideal of the academy more difficult to sustain. A university’s goals of being 1) an open forum and 2) at the forefront of knowledge cannot both be met without com- promise, given the necessity for outside funding to pursue research, and yet the compromises that various universities have made between these goals are collapsing under the pressure of technological development’s insistent demands for particular varieties of pure research and under the weight of the massive funding required for that research. The myth of academicians working at the cutting edges of knowledge, free to hire themselves out to get the funding to push against those edges, also represents an unstable com- promise. Professors cannot fully retain both 1) the conditions of open inquiry required to ensure viable research (and proper- ly generated research questions) and 2) the academic freedom to do whatever they wish, including accepting grants with restrictions on publication or other dissemination of results. In short, the issues raised by funded research are major issues of public policy that involve difficult choices between competing values—whether to prefer academic freedom, even if it in- cludes the liberty to make contracts with restrictions on speech or publication, or to prefer the ideal of openness, which would seemingly preclude such contracts. The changes that come in response to the increasing instability of academia’s sustaining myths will change the structure of universities, but we cannot know a priori how best to restruc- ture universities. We propose that a standing committee be formed to come to grips with the problems universities and faculty share. This approach recognizes that the interests of the various constituencies of the university are best served by an understanding of the tensions inherent in the traditional myths of academia and a public commitment to working out those tensions through a procedure such as we describe. AAUP Perspectives on Academic Freedom and United States Intelligence Agencies.................... R. Robert Kreiser 251 The American Association of University Professors has ad- vocated the professional freedom of teachers and scholars as a duty they owe to their students and to society at large. The central focus of this Article is the relationship between higher education and American intelligence agencies and the AAUP’s statements regarding this relationship. The author concludes that universities must maintain their integrity and autonomy as independent centers of thought, teaching and research even when they establish relations with external agencies. A Quandary of the Civil Rights Act of 1991: Is the New Law Retroactive? .......... Michael A. Dymersky Jack M. H. Frazier 259 In the late 1980s, the United States Supreme Court decided several cases narrowing the scope of federal civil-rights statutes, including Patterson v. McLean Credit Union and Wards Cove Packing Co., Inc. v. Atonio. In response to these decisions, Congress determined to overrule the Supreme Court. Following the veto by President Bush of the Civil Rights Act of 1990, Congress made various changes to obtain the President’s signature, including the removal of a provision ap- plying the Act retroactively. In doing so, considerable debate was engendered within Congress regarding whether the amended Act was to be applied retroactively or prospectively. Leaving the issue unresolved has left the debate on retroactivity to the courts. This Article reviews the legislative history and appellate decisions addressing the issue of retroactivity following the enactment of the Civil Rights Act of 1991. Fair Use and the Educator’s Right to Photocopy Copyrighted Material for Classroom Use ................ Robert Kasunic 271 The Copyright Act provides teachers with specific rights and defenses with regard to using copyrighted material in the classroom. Yet litigation by publishers has caused a chilling ef- fect on the copyright policies of many universities. There is a critical need to educate teachers concerning their rights under the law of fair use and teachers must become more assertive of these rights. These rights, if not used, will be effec- tively lost. In addition, the copyright law should be amended to provide greater protection and certainty to educators’ reasonable exercise of these rights. CASE COMMENT An End Run Around the Sherman Act? Banks v. NCAA and Gaines v. NCAA Mike Kettle Paul B. McCarthy 295