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THE JOURNAL OF COLLEGE AND UNIVERSITY LAW ARTICLES Reconceptualizing the University’s Duty to Provide a Safe Learning Environment: A Criticism of the Doctrine of In Loco Parentis and the Restatement (Second) of Torts Robert D. Bickel Peter F. Lake The Threat of Proposed Patent Law Changes to the Research University Edward L. MacCordy The Availability of ‘“Trade Secret’’ Protection for University Research Pat Shockley STUDENT NOTES Oregon v. Smith and the Religious Freedom Restoration Act: An Educational Perspective Edward C. Lyons A Clash of Titans: College Football v. Title IX Catherine Pieronek Yeshiva’s Impact on Collective Bargaining in Public-Sector Higher Education Patrick Nagle PUBLISHED BY THE NATIONAL ASSOCIATION OF COLLEGE AND UNIVERSITY ATTORNEYS AND THE NOTRE DAME LAW SCHOOL VOLUME 20 WINTER 1994 NUMBER 3 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 2,500 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. NACUA 1993-94 Board of Directors President Members-at-Large David M. Donaldson ............ Radcliffe College 1991-94 Barbara Bennett ............ Vanderbilt University President-Elect ye i ee ee ta oan erated . . : OPED DOVING: 666i cscs oard of Regents of the Lee B. Liggett ....... University of Houston System University System ofG eorgia : ; ; Becky R. French ...... University of North Carolina First Vice President General Administration Michael C. Weston ....... Northwestern University Lawrence White .......... Georgetown University 1992-95 Second Vice President PHD OEE isos cxseeeed Boston College VD a: ree Arizona University System Mary AnnConnell ....... University of Mississippi Shelley Sanders Kehl ....... College of Aeronautics Secretary and Manhattan College Sheila Trice Bell..... Northern Kentucky University oh. |: University of Alaska Statewide System Treasurer Raymond W. Schowers ....... Eastern New Mexico Byron H. Higgins............ University of Illinois University 1993-96 Immediate Past Presidents Arie APRA os 56568004. Stanford University : JOSMRG BISQUE . nii6s ccicsiencses Cornell University ; President 1992-93 , : Eileen K. Jennings..... Central Michigan University Mary Elizabeth Kurz... .. Michigan State University David R. Scott ....... Rutgers, The State University President 1991-92 of New Jersey Beverly E. Ledbetter............ Brown University Barbara L. Shiels ......... University of Minnesota Executive Director Associate Executive Director Manager of Publications Phillip M. Grier Edythe M. Whidden Linda E. Henderson 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 ‘ Dean Rev. Edward A.P reMsaildleonyt, C.S.C., Ph.D. per: tT. =; Timothy POr’oMveoastr a, Ph.D. Fersnsaoncdi atNe. Dutainl e Executive Vice President a ~ the rie Rev. F. William Beauchamp, C.S.C. and /issociate n M.Div., J.D. Roger F. Jacobs, M.A.L.S., J.D. Vice President and Associate Dean Associate Provost Walter F. Pratt, Jr. Roger A. Schmitz, Ph.D. THE JOURNAL OF COLLEGE AND UNIVERSITY LAW EDITORIAL BOARD Eileen K. Jennings, Chair Central Michigan University Barbara A. Lee, Vice Chair Associate Professor and Director, Industrial Relations and Human Resources Department Rutgers, The State University of New Jersey Barbara Bennett David T. Link Assistant General Counsel Dean and Professor of Law Vanderbilt University Notre Dame Law School Fernand N. Dutile Martin Michaelson Associate Dean and Associate Individual Member Professor of Law Hogan & Hartson Notre Dame Law School Philip J. Faccenda Constance Neary Vice President and Claims Counsel University Counsel United Educators Insurance Notre Dame Law School Risk Retention Group, Inc. Sally S. Harwood Peter N. Swan Associate General Counsel Assistant to the President Michigan State University for Legal Affairs University of Oregon G. Richard Hill Special Assistant Attorney General Weber State University THE JOURNAL OF COLLEGE AND UNIVERSITY LAW EDITORIAL STAFF FAcuLTY Eprror Professor Fernand N. Dutile ASSOCIATE FACULTY EprITror ASSISTANT FACULTY EDITOR Philip Faccenda Carol Kaesebier STUDENT EDITOR Elaine Zacharakis New York EXECUTIVE EDITOR Marc Villarreal Texas ASSISTANT EXECUTIVE Epitor/RESEARCH EpITor Kenneth Paradis Maine LEAD ARTICLES EDITOR LEAD Notes Epiror Donald Lohman Alexander Papandreou Illinois GREECE ARTICLE Eprrors Norte Eprrors Deirdre Dunphy Jim Carrig New York California Edward Lyons Laura Couchman California California Richard McCaulley George Fish Connecticut Michigan Catherine Quinlan Suzanne Gau Florida Missouri Pete Smith Carin Stoddard Ohio Michigan Book Review Epiror Patrick Nagle Illinois SECOND-YEAR STAFF Erin Burke Catherine Pieronek Pennsylvania Indiana Matthew Donohue Walter Saurack New York New York Wendy Hernandez Delores Schriner Arizona Arizona David Kennedy James Shea Kansas Connecticut Nolan Koon Jeffrey Swanson New Hamphsire New Jersey Ronald Miller Christopher Truax Washington California Mary Jo Naples William Walsh Ohio California A. Katrina Noznesky CANADA 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 © 1994 by National Association of College & University Attorneys Cite as Je OL... 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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, 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 20 Winter 1994 Number 3 ARTICLES Reconceptualizing the University’s Duty to Provide a Safe Learning Environment: A Criticism of the Doctrine of In Loco Parentis and the Restatement (Second) of Torts....... Robert D. Bickel Peter F. Lake 261 The seminal student rights cases of the 1960s that rejected the doctrine of in loco parentis and thereby affirmed basic constitutional rights of university students, also brought about, in their wake, a powerful body of law that effectively immunizes universities from liability, occasioned by their failure to reasonably control dangerous student conduct and to protect other students from such conduct. The authors reject the leading cases—mainly Bradshaw v. Rawlings, and Rabel v. Illinois Wesleyan University—that use the rejection of the doctrine of in loco parentis to immunize tortious conduct. Traditional notions of tort law instead support a simple and superior position: A university should be liable if it fails to act reasonably with respect to student conduct which creates foreseeable risk to other students. The authors point out that much confusion over this simple point has been generated by improper interpretations of the Restatement (Second) of Torts and supposed special-relationship requirements. The authors argue that courts should avoid the Restatement (Sec- ond) in this area of the law as it creates unnecessary confusion. In the alternative judicial decisions which immunize universities from such tortious conduct should do so forthrightly, and not seek to rest their holdings on a misreading of historical doctrine, or of the Restatement. The Threat of Proposed Patent Law Changes to the Research BTer nr Ter Te Edward L. MacCordy 295 Basic changes in United States patent law, promoted by some multinational corporations in the name of world harmoniza- tion of patent systems, pose a major threat to commercializa- tion of technology from university research. The Availability of ‘‘Trade Secret’’ Protection for University Pat Shockley This Article explores the possibility of protecting university research as 4 trade secret. While copyright and patent protection may be more desirable, such protection may not extend to university research. This Article describes each type of protection and the requirements for trade-secret protection. A university’s policies may have to be altered in order to utilize trade- secret protection for university research. If the university is a public institution, it may have the added complication of a FOIA request. A FOIA request would destroy the requisite secrecy for trade-secret protection. However, the federal FOIA and state FOIAs contain a trade-secret exemption. Whether university research can be exempt from disclosure under a FOIA request then depends on whether university research falls into the state ‘‘trade-secret’’ definition. As of this writing, only the Trade Secrets Acts of Illinois, Georgia and Colorado would likely protect university research as a trade secret, thus exempting it from a FOIA request. This Article outlines the crucial parts of a Trade Secrets Act so that the reader can ex- amine the Act in her jurisdiction to determine if trade-secret protection presents a viable option. STUDENT NOTES Oregon v. Smith and the Religious Freedom Restoration Act: An Educational Perspective Edward C. Lyons 333 A Clash of Titans: College Football v. Title Ix Catherine Pieronek 351 Yeshiva’s Impact on Collective Bargaining in Public-Sector Higher Education Patrick Nagle 383 RECONCEPTUALIZING THE UNIVERSITY’S DUTY TO PROVIDE A SAFE LEARNING ENVIRONMENT: A CRITICISM OF THE DOCTRINE OF IN LOCO PARENTIS AND THE RESTATEMENT (SECOND) OF TORTS ROBERT D. BICKEL* PETER F. LAKE** INTRODUCTION For more than ten years, the federal and state courts have been asked to recognize a duty of the college or university’ to exercise reasonable care to minimize the risk of physical injury to students occasioned by third parties, or by other students. Universities have vigorously resisted the recognition of such a duty to the extent that it would impose an obligation upon the university to enforce policies regulating student conduct. Simply put, universities have argued that, since they no longer stand in loco parentis, and do not enjoy a custodial authority over their students, there is no basis in the common law for the imposition of a duty upon the university to control student behavior.” In accepting this argument, the majority of courts have reached an interesting, if anomalous, position. They support a finding of liability with respect to a university when a student is assaulted by an intruder,’ but reject liability when a student is assaulted by another student.’ * B.A., University of South Florida; J.D., Florida State University. Professor of Law, Stetson University College of Law. ** B.A., J.D., Harvard University. Associate Professor of Law, Stetson University College of Law. 1. Hereafter, the term ‘‘university’’ will be used to denote either a college or a university. 2. See, e.g., Bradshaw v. Rawlings, 612 F.2d 135 (3d Cir. 1979), cert. denied, 446 U.S. 909, 100 S. Ct. 1836 (1980), generally recognized as the seminal case succeeding on this argument; and see Rabel v. Illinois Wesleyan Univ., 514 N.E.2d 552 (Ill. App. Ct. 1987), rejecting any duty on the part of the university based upon a lack of a custodial relationship between the university and the student. 3. See, e.g., University of Alaska v. Hendrickson, 552 P.2d 148 (Alaska, 1976); Duarte v. State, 148 Cal. Ct. App. 804 (1978); Mullins v. Pine Manor College, 449 N.E.2d 331 (Mass. 1983); Peterson v. San Francisco Community College Dist., 685 P.2d 1193 (Cal. 1984); Delaney v. University of Houston, 835 S.W.2d 56 (Tex. 1992); Contra., see Savannah College of Art & Design v. Roe, 409 S.E.2d 848 (Ga. 1991). 4. See infra note 6. 262 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 20, No. 3 Courts today are willing, for example, to hold a university responsible for its negligence in allowing a criminally motivated third party to enter its dormitory and assault a female resident,® but appear unwilling to consider liability when a female student is abducted from her dormitory by an intoxicated fraternity pledge and injured as a result of her forced participation in a fraternity hazing.°® Simply put, many courts persist in the opinion that the university is, as a matter of law, not responsible for even the most egregious injury of a student occasioned by another student because the university cannot be asked to enforce a code of civility on its campus. In perpet- uating this notion, federal and state courts have relied upon a tainted interpretation of the doctrine of in loco parentis, and an oblique interpretation of the Restatement (Second) of Torts. One significant recent case has challenged the notion that a university has no duty to take affirmative action to minimize the risk of physical injury to a student by reason of the reckless conduct of another student, or student organization. In Furek v. University of Delaware,’ the Su- preme Court of Delaware held that the recognition of a university’s duty to impose some measure of control as to known, high-risk, fraternity activities, does not depend upon notions of in loco parentis. Furek reflects an advance—specifically, that the constitutional demise of the doctrine of in loco parentis should not be relied upon to deny university students the right to expect the university to exercise reasonable care to minimize the risk of serious physical injury occasioned by miscon- duct. This article proposes that a number of the most prominent cases which reject duty as a matter of law are out of step with modern conceptualizations of duty. Moreover, these cases perpetuate confusion by relying upon oblique and outdated common-law doctrines, such as the chimerical distinction between nonfeasance and misfeasance. In sum, this piece suggests that courts have been actively inventing an immunity rule for universities, disguised as a ‘‘no duty’’ rule. Such a wholesale immunity is unjustified by precedent and has no place in the modern negligence law. Alternatively, if universities are to enjoy 5. University of Alaska v. Hendrickson, 552 P.2d 148 (Alaska, 1976). 6. In Rabel, 514 N.E.2d 552, plaintiff, a female resident student, was summoned to the lobby of her dormitory by a fellow student who was a fraternity pledge, and there forcibly abducted to a fraternity initiation where she was seriously injured. Because of the context of the initial encounter, the court could have recognized a duty as to intrusion, and denied liability by finding that the university was not negligent, or that reasonable security would not have prevented the spontaneous abduction. See e.g., Hall v. Board of Supervisors, S. Univ., 405 So.2d 1125 (La. Ct. App. 1981). Instead, the court chose to reject altogether any notion of duty, holding that the university had no ‘‘custodial’’ relationship with the student victim. 7. 594 A.2d 506 (Del. 1991), holding that the University of Delaware had a duty to exercise reasonable care when it had actual or constructive knowledge of fraternity hazing events.