Journal of College and University Law 1998: Vol 24 Iss 4

143 Pages·1998·29.2 MB·English

THE JOURNAL OF
COLLEGE AND
UNIVERSITY
LAW
ARTICLES
The Federal Government and Scientific Misconduct Proceedings,
Past, Present, and Future As Seen Through the Thereza
Imanishi-Kari Case Debra M. Parrish
Discrimination Against Students in Higher Education: A Review of the 1996
Judicial Decisions Barbara A. Lee
AFFIRMATIVE ACTION
ARTICLE
Affirmative Action on Campus: The Legal and Practical Challenges
Robert S. Whitman
BRIEF
Board of Education of the Township of Piscataway v. Sharon Taxman
Martin Michaelson, Walter A. Smith, Jr.,
Alexander E. Dreir, Sheldon E. Steinbach
BOOK REVIEWS
Creating a Safe Campus — A Guide for College and University
Administrators Annette Gibbs
Free Speech in the College Community
PUBLISHED BY THE NATIONAL
ASSOCIATION OF COLLEGE AND
UNIVERSITY ATTORNEYS AND THE
NOTRE DAME LAW SCHOOL
VOLUME 24 SPRING 1998 NUMBER 4
NATIONAL ASSOCIATION
OF COLLEGE AND
UNIVERSITY ATTORNEYS
The National Association of College and University Attorneys (NACUA), established in
1961, is a non-profit organization serving the needs of attorneys representing institutions of
higher education. NACUA now serves nearly 2,650 attorneys who represent approximately
1,300 campuses (about 660 institutions).
The Association’s purpose is to improve the quality of legal assistance to colleges and univer-
sities by educating attorneys and administrators on legal issues in higher education. NACUA
accomplishes this goal through its publications, conferences and workshops. NACUA also operates as
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, non-profit 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 1997-98 Board of Directors
President Christine Helwick California State University
S. Andrew Schaffer New York University Mary Elizabeth Kennard .... American University
President-Elect Benjamin E. Rawlins. . North Carolina Argicultural
Mary Ann Connell. . . . University of Mississippi and Technical State University
First Vice-President 1995-96
William R. Kauffman... Saint Louis University Robert F. Curran, S.J.
Second Vice-President University of San Francisco
Pamela J. Bernard University of Florida Nancy S. Footer. .. . Bowling Green State University
Christine Helwick California State University
Secretary Mary E. Kennard American University
Thomas J. Flygate, Benjamin E. Rowlins
New Hampshire College University of North Carolina
University System of New Hampshire General Administration
Treasurer 1996-99
Lawrence White Georgetown University Francine T. Bazluke University of Vermont
Immediate Past President Thomas A. Butcher
Paul J. Ward, Grand Valley State University
1996-97 Arizona State University University of Tulsa
Executive Director/CEO Oregon State Board
Sheila Trice Bell. .Northern Kentucky University of Higher Education
Kenneth Andre McKanders .... Eastern Michigan
Univeristy
Members at Large
1995-98
Robert F. Curran, S.J... . University of San Francisco
Nancy S. Footer Bowling Green State University
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 that 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
Journal of College and University Law. The Center for Civil and Human
Rights, the Institute for International Peace Studies, the National
Institute 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
President Dean
Rev. Edward A. Malloy, C.S.C., Ph.D. David T. Link
Provost Director of the Law Library
Nathan Hatch, Ph.D. and Associate Dean
Executive Vice President Roger F. Jacobs, M.A.1.S., J.D
Rev. E. William Beauchamp, C.S.C. Associate Dean
M.Div., J.D. Walter F. Pratt, Jr.
Vice President-Senior Associate Provost Associate Dean
Rev. Timothy R. Scully, C.S.C. Fernand N. Dutile
Vice President and Associate Provost Assistant Dean
Dr. Jeffrey Kantor Patricia C. Leonard
Vice President and Associate Provost Assistant Dean
Professor Carol Ann Mooney Rev. James E. McDonald, C.S.C.
THE JOURNAL OF
COLLEGE AND UNIVERSITY LAW
1997-98 Editorial Board
William D. Stempel, Chair
Deputy General Counsel
Yale University
Abigail Byman, Vice Chair
General Counsel
University of Scranton
Elias Abelson David T. Link
General Counsel Advisory Member, Ex Officio
Bucknell University Dean and Professor of Law
Notre Dame Law School
Don R. Byrnes
Vice President for Student John H. Robinson
Management Advisory Member
Houston Baptist University Professor of Law
Notre Dame Law School
Fernand N. Dutile
Michael D. Sermersheim
Advisory Member
Associate General Counsel
Associate Dean and University of Akron
Professor of Law
Notre Dame Law School
James F. Shekelton
General Counsel
Michael J. Frantz South Dakota Board of Regents
Thompson Hine & Flory LLP
Brian A. Snow
William P. Hoye General Counsel
Advisory Member Colorado State University
Associate Vice President and
Counsel
Concurrent Professor of Law
Notre Dame Law School
Barbara A. Lee
Professor of Human Resource
Management
Rutgers, The State University
of New Jersey
THE JOURNAL OF
COLLEGE AND UNIVERSITY LAW
EDITORIAL STAFF
1997-1998
FAcutty Epirors ASSISTANT FACULTY EDITORS
Professor William Hoye Carol Kaesebier
Professor John Robinson Jill Bodensteiner
EbDITOR IN CHIEF
Brien Crotty
Illinois
EXECUTIVE EDITOR
Timothy Church
New York
EXECUTIVE ARTICLES EDITOR
Jenna Falcone
New York
MANAGING EDITOR SyMpPosiuM EpiTors
David Walters Jasmin Flores
Illinois California
Jim Neumeister
Book Review Epiror Ohio
Christopher Putt
Indiana Article Editors
Note Editors —
— Jennifer Hunkler
New Jersey
“iia oa Kevin O'Scannlain
Weihong Zhao —
People's Republic of China
Ariel Rodriguez
Florida
LEAD Notes Epitor
Deborah Morris Michael Ross
Alabama New Mexico
1997-1998 JOURNAL STAFF
Timothy Bliss Scott Gronek Christopher Robinson
Rhode Island California New York
Caroline Bolduc Kathryn Larkin Sarah Stancati
California Massachusetts Michigan
Patricia Bors John Mervilde James Swartz, Jr.
Kansas Indiana New York
Joseph Brossart Todd Mortlock Travis Stieren
Ohio Michigan Illinois
Michelle Colman Carol Perkins Mark Telloyan
Pennsylvania Indiana Indiana
Matt Gipson J. Brendan Regan Justin Terry
Michigan Minnesota Illinois
SENIOR STAFF ASSISTANT
Kelley Jo Collins
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 by
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Copyright © 1998 by National Association of
College & University Attorneys
Cite as —— J.C. & U.L.
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Except as otherwise provided, The Journal of College and University Law grants permission
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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
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In 1986, the Notre Dame Law School assumed publication of the Journal,
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The Journal of College and University Law
Published quarterly in cooperation with the Notre Dame Law School
(University of Notre Dame), the Journal of College and University Law is the
only national law review devoted exclusively to higher education legal concerns.
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THE JOURNAL OF
COLLEGE AND UNIVERSITY LAW
Volume 24. Spring 1998 Number 4
ARTICLES
The Federal Government and Scientific Misconduct
Proceedings, Past, Present, and Future As Seen Through
the Thereza Imanishi-Kari Case
Debra M. Parrish 581
The federal scheme for the investigation and sanction of scientific
misconduct has undergone a number of changes. This article uses
specific examples to examines the history of scientific
misconduct, the current federal policies and procedures dedicated
to its discovery and prevention, and the principal actors in the
current federal scheme. Specifically, the article focuses on the
case of Thereze Imanishi-Kari, which began in the old federal
scientific misconduct scheme, and was concluded in the current
scheme. The author discusses how repercussions from this case
may even prompt reforms of the current scheme.
Discrimination Against Students in Higher Education:
A Review of the 1996 Judicial Decisions
Barbara A. Lee
Affirmative Action on Campus: The Legal and
Practical Challenges
Robert S. Whitman
This article addresses the most recent developments in affirmative
action that affect the higher education community. It looks briefly
at employment under Title VII of the Civil Rights Act of 1964,
emphasizing the recent Taxman v. Board of Education of the
Township of Piscataway decision. Also explored are the legal
implications of the Hopwood and Podboresky decisions as well as
diversity as a rationale for affirmative action. The article
concludes by offering guidance on what types of programs and
activities will withstand the current level of judicial scrutiny.
BRIEF
Board of Education of the Township of Piscataway
v. Sharon Taxman
Martin Michaelson, et al.
BOOK REVIEWS
David Nichols, Creating a Safe Campus — A Guide for College
and University Administrators
Annette Gibbs
Robert M. O’Neil, Free Speech in the College Community
J. W. Torke