Table Of Content

THE JOURNAL OF COLLEGE AND UNIVERSITY LAW ARTICLES Stop Working and Put Down Your Pencils: The Use and Misuse of Standardized Admission Tests Jim Vaseleck Storming the Ivory Tower: The Competing Interests of the Public’s Right to Know and Protecting the Integrity of University Research Tammy L. Lewis Lisa A. Vincler Hate Speech: Power in the Marketplace Jack B. Harrison STUDENT NOTE Reading, ‘Riting and Response: Holding Colleges and Universities Liable Under CERCLA Mary Jo C. Naples INDEX Author Subject PUBLISHED BY THE NATIONAL ASSOCIATION OF COLLEGE AND UNIVERSITY ATTORNEYS AND THE NOTRE DAME LAW SCHOOL VOLUME 20 SPRING 1994 NUMBER 4 NATIONAL ASSOCIATION OF COLLEGE AND sf,A eV wo\ye 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 Vanderbilt University : Saint Louis University ? Presidenatg-Eal:e ct Board of Regents of the Lee B. Liggett University of Houston System University System of Georgia Becky R. French University of North Carolina First Vice President General Administration Michael C. Weston Northwestern University Lawrence White Georgetown University Second Vice President Philip Burlin Boston College Paul J. Ward Arizona University System Mary .A nn Con;n ell University of Mississip-p i Shelley Sanders Kehl College of Aeronautics Secretary and Manhattan College Sheila Trice Bell Northern Kentucky University Jean S. Sagan University of Alaska Statewide System Raymond W. Schowers Eastern New Mexico Byron H. Higgins University of Illinois University Immediate Past Presidents Stanford University President 1992-93 Joanne Blauer Cornell University : seg he da! 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 Presi. dent : Dean : Rev. Edward A. Malloy, C.S.C., Ph.D. Pisce ¥: ret Provost ssociate an Timothy O’Meara, Ph.D. Fernand N. Dutile Executive Vice President — - = a ner ~<a —— 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 Facutty EpItor Professor Fernand N. Dutile ASSOCIATE FACULTY EprTor ASSISTANT FACULTY EbDITOR Philip Faccenda Carol Kaesebier STUDENT EpiTor Elaine Zacharakis New York EXECUTIVE EpIToR Marc Villarreal Texas ASSISTANT EXECUTIVE EpiTor/RESEARCH EpITor Kenneth Paradis Maine LEAD ARTICLES EDITOR Leap Notes Eprror Donald Lohman Alexander Papandreou Illinois GREECE ARTICLE Eprrors Norte Epirors 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 Eprror 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 Co as (Ce aS an 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, 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 Spring 1994 Number 4 ARTICLES Stop Working and Put Down Your Pencils: The Use and Misuse of Standardized Admission Tests Jim Vaseleck This Article explores proper and improper admission-test uses and the legal ramifications of test misuse. Storming the Ivory Tower: The Competing Interests of the Public’s Right to Know and Protecting the Integrity of University Research Tammy L. Lewis Lisa A. Vincler Public-disclosure laws have serious implications and poten- tially impact university-research culture and practices. The confidentiality afforded university-research documents and the process through which research is funded may be inconsis- tent with laws compelling disclosure of public records. The role of university research has changed since the enactment of the Bayh-Dole Act, a federal law requiring universities to protect patent rights in federally funded inventions. This Article explores the potential impact of compelled disclosure upon the growing symbiotic research relationship between universities and industry research sponsors. The Article examines the existing legal authority to protect university-research information. The limited protection for research-related documents currently provided under the federal Freedom of Information Act and some of its state analogues may inadequately protect proprietary information from compelled public disclosure. The Article discusses the applicability of First Amendment protection and the privilege of academic freedom as they pertain to university research ac- tivities. The uncertainty regarding the protection of research information in various jurisdictions leads the authors to recommend that universities carefully consider the extent of their existing protection and consider pursuing specific state statutory protection for preliminary university-research documents. Hate Speech: Power in the Marketplace Jack B. Harrison 461 This article focuses on recent attempts by colleges and universities to restrict offensive hate speech. These attempts are analyzed within traditional Supreme Court First Amendment jurisprudence, which has tended to employ the metaphor of the ‘‘marketplace of ideas’’ as a justification for protecting speech. This article criticizes this metaphor as inadequate in the modern world, because it fails to take seriously the power imbalance prevailing between dominant and subjugated groups. STUDENT NOTE Reading, ‘Riting and Response: Holding Colleges and Universities Liable Under CERCLA Mary JoC. Naples 483 Topical STOP WORKING AND PUT DOWN YourR PENCILS: THE USE AND MISUSE OF STANDARDIZED ADMISSION TESTS JIM VASELECK* INTRODUCTION Americans are deeply ambivalent about standardized testing. News- papers frequently report stories of unsuccessful majority applicants challenging the admission of minority students with weaker credentials (i.e. test scores). These stories juxtapose those that detail the latest commission report’s call for national academic-achievement standards, invariably including a national test against which the country can monitor students’ success.’ The admission-test stories typically contain criticism from consumer-protection organizations that decry the use of standardized tests.2 The chief concern of those organizations is that women, ethnic minorities, and members of lower economic classes do not perform as well as male, white, upper-middle-class test takers. Yet the call for national achievement standards reflects a seemingly frantic search for some way to determine whether the country’s educational system is improving, in order to counter the annual news that American students perform less well on achievement tests than students in other industrialized countries. Even as suspicion about standardized tests mounts, in both achievement and aptitude measures, their importance and frequency of use seems to be increasing, extending into areas for which the tests were not designed and in which they do not perform particularly well. * Deputy Corporate Counsel and Assistant to the President, Law School Admission Services, Inc., A.B. College of William and Mary, 1982, J.D. College of William and Mary, 1986. The opinions and conclusions expressed in this article are those of the author and do not necessarily reflect those of LSAS or of its parent organization, the Law School Admission Council. 1. See, i.e., Michel Marriot, White Accuses Georgetown Law School of Bias in Admitting Blacks, N.Y. Times, Apr. 15, 1991, at A13, col.1, Scores on SAT Inch Up; Downward Trend Among Ethnic Groups Ends, (Minneapolis) STAR TRIBUNE, Aug. 19, 1993, at 7A; Stephanie Chavez, SAT Scores Remain Level in California; Small Gain Nationally Reflects ‘Painfully Slow Academic Recovery’ from Record Lows in 1990, L.A. Times, Aug. 19, 1993, at A3, col.4; and William Celis, III, The Fight Over National Standards, N.Y. Times, Aug. 1, 1993, at A14, col.4. 2. See, i.e., B. Denise Hawkins, Socio-economic Family Background Still a Signifi- cant Influence on SAT Scores, BLACK IssuES IN HIGHER EDUCATION, Sep. 9, 1993, at 14. 405 406 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 20, No. 4 This article discusses the context in which higher-education admission tests are used, both intended, validated uses and misuses. It explores possible legal pitfalls for those who misuse such tests, under the guidance of one recent case, Sharif v. New York State Education Department.* The article concentrates on three specific tests: the Scho- lastic Assessment Test (SAT), the Graduate Record Examinations (GRE), and the Law School Admission Test (LSAT). The Article’s reasoning, conclusions and recommendations, however, extend to most higher- education admission tests. I. DEFINING PROPER AND IMPROPER TEST USES The organizations that sponsor the SAT, GRE, and LSAT* all have issued guidelines for the proper use of their tests.» These guidelines all contain relatively similar warnings about improper test uses, as well as examples of proper test uses. This similarity is due, in part, to the Standards for Educational and Psychological Testing requirement that these organizations educate test-score users about proper test use.® These guidelines all warn against misuses such as using a test score as the sole criterion for admission, establishing a ‘‘cut-off’’ test score (i,e,, one below which no one will be admitted), and making admission decisions based upon slight differences in test scores. The guidelines also encourage test-score users to validate score uses, including those uses for which the tests specifically are designed, to ensure that the tests function properly and allow users to make any needed adjustments in test-use methodology. A review of these guidelines suggests that proper test use results from periodic review and validation. Even an admission test’s improper or uncontemplated use may become proper if validated. For example, SAT-score users are encouraged to avoid ‘‘[u]sing minimum test scores without proper validation ... .’’? GRE-score users are told that ‘‘GRE scores may be appropriate for some other purposes [that is, purposes other than admission and fellowship-award decisionmaking], but it will be important for the user to validate their use for those purposes.’’® 3. 709 F. Supp. 345 (S.D.N.Y. 1989), denying school district’s motion to intervene, 709 F. Supp. 365 (S.D.N.Y. 1989), certifying the plaintiff class, 127 F.R.D. 84 (S.D.N.Y. 1989). 4. The SAT is sponsored by the College Board, the GRE by the Graduate Record Examinations Board, and the LSAT by the Law School Admission Council. 5. See, THE COLLEGE ENTRANCE EXAMINATION BOARD, GUIDELINES ON THE USES OF COLLEGE Boarp TEST SCORES AND RELATED DATA (1988); GRADUATE RECORD EXAMINATIONS BOARD, GUIDE TO THE USE OF THE GRADUATE RECORD EXAMINATIONS PROGRAM (1989); and Law SCHOOL ADMISSION COUNCIL, CAUTIONARY POLICIES CONCERNING LSAT ScoRES AND RELATED SERVICES (1993). 6. AMERICAN PSYCHOLOGICAL ASSOCIATION, STANDARDS FOR EDUCATIONAL AND PSYCHOLOG- ICAL TESTING (1985), at 35, 36. 7. THE COLLEGE ENTRANCE EXAMINATION BoarD, supra note 5 at 11 (emphasis supplied). 8. GRADUATE RECORD EXAMINATIONS BOARD, supra note 5, unpaginated.