Table Of Content

THE JOURNAL OF COLLEGE AND UNIVERSITY LAW ARTICLES FOCUS ON ETHICS AND THE UNIVERSITY ATTORNEY Lawyer-Client Confidentiality in the Campus Setting Robert F. Drinan, S.J. Case Studies on Wrongdoing on Campus: Ethics and the Lawyer’s Role Stephen S. Dunham The Lawyer and the Client in the Campus Setting: Who Is the Client, What Does the Client Expect and How May the Attorney Respond? Robert M. O’Neil Hateful Expression and First Amendment Values: Toward a Theory of Constitutional Constraint On Hate Speech at Colleges and Universities After R.A.V. v. St. Paul Rhonda G. Hartman COMMENTARY Franklin v. Gwinnett County Public Schools and its Impact on Title IX Enforcement Ellen J. Vargyas STUDENT CASE COMMENT The Final Frustration of Defaulting NHSC Scholars?: United States v. Hatcher Donald Lohman INDEX Author Subject _ Y A e 2 PUBLISHED BY THE NATIONAL by . ASSOCIATION OF COLLEGE AND \rl NeAe CUA# / UNIVERSITY ATTORNEYS AND THE NOTRE DAME LAW SCHOOL ‘Oumnsed 1961 y VOLUME 19 SPRING 1993 NUMBER 4 NATIONAL ASSOCIATION OF COLLEGE AND ®*Yu so,\\e 864”, 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 govern- mental 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 Keen, BVIss so. cc eke Saint Louis University Becky R. French ....University of North Carolina Secretary Sheila Trice Bell ..Northern Kentucky University General Administration Byron H. Higgins University of Illinois Treasurer Lawrence White ......... Georgetown University S. Andrew Schaffer 1992-95 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 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 Schocl Officers of Administration Officers of Administration ? Dean Rev. Edward A.P reMsaildleonyt, C.S.C., Ph.D. David‘ T. Li, nk Pravost Associate Dean Timothy O’Meara, Ph.D. ; Carol Ann Seumey Executive Vice President D wer = inee rr ot = ia —— Roger F. Jacobs, M.A.L.S., J.D. ; ‘ Associate Dean Vice President and ii ‘AaacclaieBiciGat 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 Eprror Professor Fernand N. Dutile ASSOCIATE FACULTY EDITOR ASSISTANT FACULTY EDITOR Philip Faccenda Carol Kaesebier STUDENT EDITOR John Dunn Illinois LEAD ARTICLES EDITOR Leap Notes Epiror Domenique Comacho Mike Kettle New York Maryland ARTICLES EDITORS Notes Eprrors 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 EXECUTIVE EDITOR Grant Hugh Brenna Texas 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 Kathleen M. Bradley Assistant to the Editors 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 CiNesas: 2 Ve RAE. c 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 tne 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 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 19 Spring 1993 Number 4 ARTICLES FOCUS ON ETHICS AND THE UNIVERSITY ATTORNEY Lawyer-Client Confidentiality in the Campus Setting bhc acnn 6 dea aed Kaa eee ae ae ae Robert F. Drinan, S.J. 305 Confidentiality between the attorney and the client is central to and crucial in any discussion of legal ethics. This privilege may be more important to a university attorney than to the attorney representing a client as a member of a law firm. The Author examines the traditional concept of confidentiality and the current view of it. A hypothetical is provided to illustrate the dilemma the university attorney may face. The Author con- cludes that the role of the lawyer is too complex to be confined by inflexible standards. As a result, the attorney faced with a confidentiality problem must follow the dictates of conscience and continue to search for a more sensible and sensitive way to harmonize the competing and clashing duties of the lawyer to the client and to society. Case Studies on Wrongdoing on Campus: Ethics and the Lawyer’s soles 645 0 et Shue the Rs See Stephen S. Dunham 315 Much of what college and university lawyers do involves in- vestigation and analysis of alleged wrongdoing. In these roles, the lawyer must struggle with the substantive law as applied to the situation and also with the law as applied to her own con- duct. The university attorney must ask three fundamental questions: 1) Who has authority to decide the institution’s position and tell the lawyer how to respond?; 2) When should the lawyer seek direction from a higher or different ‘‘constituent’’ within the institution?; and 3) To whom may the lawyer tell what she knows? The Author analyzes three hypotheticals in which the university lawyer has knowledge of possible wrongdoing at the institution and must decide what actions to take based on that knowledge. The Lawyer and the Client in the Campus Setting: Who Is the Client, What Does the Client Expect and How May the At- re Fenner ere Robert M. O’Neil 333 This essay seeks to identify a range of persons and offices within the University to which the attorney looks as ‘‘clients’’, including a broader responsibility to fellow lawyers at other campuses. The focus shifts to the complex, occasionally even conflicting, and always distinctive expectations the client has for the role and performance of the university attorney. Finally, the challenges and especially the ethical dilemmas facing the attorney offer a basis for reviewing and assessing the profes- sionally possible responses. There emerges from each section an appreciation for both the essentiality and the complexity of the campus lawyer’s role in higher education. Hateful Expression and First Amendment Values: Toward a Theory of Constitutional Constraint on Hate Speech at Colleges and Universities after R.A.V. v. St. Paul Rhonda G. Hartman This Article addresses hate speech after R.A.V. v. St. Paul. The Author does not consider the validity of specific university hate-speech codes, but rather whether the concept of hate speech encompasses expression deserving full First Amend- ment protection and thus virtual immunity from college and university regulation. The Author examines the appropriate standard of review. For First Amendment analysis, this re- quires ascertaining the value of the expression at issue. It is argued that the Supreme Court could sustain some form of hate-speech policy on college and university campuses for the same reasons that underlie the First Amendment’s tolerance of laws against fighting words, incitement to illegal acts, obscen- ity, and defamation. Since some forms of hateful expression are relatively devoid of value under the First Amendment, the Supreme Court can grant such expression minimal protection and find sufficient evidence to support a rational college or university determination that at least some forms of hate speech harm others. COMMENTARY Franklin v. Gwinnett County Public Schools and its Impact on Title IX Enforcement Ellen J. Vargyas In Franklin v. Gwinnett County Public Schools, the Supreme Court unanimously allowed monetary damages for intentional violations of Title IX of the Education Amendments of 1972. This dramatically changes the enforcement of the principal federal law prohibiting sex discrimination. Victims of sex discrimination in education will now be compensated for their losses and educational institutions will be forced to address sex discrimination more effectively. This Commentary examines the Franklin decision and its implications for Title IX enforcement. STUDENT CASE COMMENT The Final Frustration of Defaulting NHSC Scholars?: United States SE 8 hed s vas ovals anebiee banat Donald Lohman 385 INDEX - Author 401 Subject 411