Table Of Content

THE JOURNAL OF COLLEGE AND UNIVERSITY LAW ARTICLES The Sherman Act Antitrust Provisions and Collegiate Action: Should There Be a Continued Exception for the Business of the University? Jeffrey C. Sun Philip T.K. Daniel The Eleventh Amendment Revolution in the Lower Federal Courts William E. Thro Creating Roles for Religion and Philanthropy in a Secular Nation: The Dartmouth College Case and the Design of Civil Society in the Early Republic Mark D. McGarvie Student Fees and Student Rights: Evolving Constitutional Principles Robert M. O'Neil NOTE Academic Freedom Faces Learning Disabilities: Guckenberger v. Boston University Patricia L. Bors BOOK REVIEWS Review of Arthur Levine & Jeanette S. Cureton's When Hope and Fear Collide: A Portrait of Today's College Student Sally A. Raskoff Review of Lani Guinier et al.'s Becoming Gentlemen — Nancy Y. Bekavac Review of Lani Guinier et al.'s Becoming Gentlemen Catherine Pieronek PUBLISHED BY THE NATIONAL ASSOCIATION OF COLLEGE AND UNIVERSITY ATTORNEYS AND THE NOTRE DAME LAW SCHOOL VOLUME 25 WINTER 1999 NUMBER 3 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 3000 attorneys who represent more than 1,400 campuses (about 668 institutions). The Association’s purpose is to improve the quality of legal assistance to colleges and uni- versities 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 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 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 prima- ry 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-third 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 880,000 students. The remaining member institutions, whose budgets range up to $5 billion per year, collectively enroll more than seven million students. NACUA 1998-99 Board of Directors President Melinda Grier Oregon State Board Mary Ann Connell University of Mississippi of Higher Education President-Elect Kenneth Andre McKanders.......... Eastern Michigan William R. Kauffman............ Saint Louis University University First Vice-President 1997-2000 Pamela J. Bernard University of Florida Henry L. Cuthbert University of Second Vice-President Wisconsin System Edward N. Stoner II Franciscan University Charles (Nick) Estes, Jo. ...iccsccsncscesersesee University of of Steubenville New Mexico Ronald C. Leadbetter University of Tennessee Secretary Steve Milam University of Washington Mary Anne Smith Illinois Institute Michael D. Sermersheim University of Akron of Technology 1998-2001 Treasurer Dayton T. Cole University of North Carolina Lawrence White Georgetown University Stephen J. Hirschfeld University of Immediate Past President San Francisco S. Andrew Schaffer, Kaye L. Koonce Trident Technical College 1997-98 New York University Margareth Schubert Loyola University of Chicago Members at Large Georgia Yuan University of Idaho 1996-99 | Francine T. Bazluke University of Vermont Thomas A. Butcher Grand Valley State University Barbara F. Geffen University of Tulsa 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 competent and compassionate, Notre Dame Law School is relatively small. The Admis- sions Committee makes its decisions based on a concept of the “whole per- son.” 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 Offices 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 Dr. Nathan O. Hatch, Ph.D. and Associate Dean Roger F. Jacobs, M.A.LS., J.D. Executive Vice President Rev. E. William Beauchamp, C.S.C. Associate Dean Fernand N. Dutile Vice President-Senior Associate Provost Rev. Timothy R. Scully, C.S.C. Associate Dean Jimmy Gurulé Executive Assistant to the President Rev. Mark L. Poorman, C.S.C. Assistant Dean Rev. James E. McDonald, C.S.C. Vice President and Associate Provost Dr. Jeffrey Kantor Vice President and Associate Provost Dr. Carol Ann Mooney THE JOURNAL OF COLLEGE AND UNIVERSITY LAW 1998-99 Editorial Board Abigail Byman, Chair Barbara A. Lee General Counsel Professor of Human Resource University of Scranton Management Rutgers, The State University Fernand N. Dutile of New Jersey Advisory Member Associate Dean David T. Link and Professor of Law Advisory Member, Ex Officio Notre Dame Law School Dean and Professor of Law Notre Dame Law School John Gaal Bond, Schoeneck & King Michael A. Olivas Syracuse, New York William B. Bates Professor of Law University of Houston Law Center Edward von Gerichten Assistant Counsel John H. Robinson Brown University Advisory Member Professor of Law C.K. Gunsalus Notre Dame Law School Associate Provost University of Illinois Michael D. Sermersheim Urbana-Champaign Associate Vice President and General Counsel, Ex Officio William P. Hoye University of Akron Advisory Member Associate Vice President Brian A. Snow and Counsel General Counsel Concurrent Professor of Law Colorado State University Notre Dame Law School William A. Kaplin Catholic University of America School of Law THE JOURNAL OF COLLEGE AND UNIVERSITY LAW EDITORIAL STAFF 1998-99 FACULTY EpITors ASSISTANT FACULTY Eprrors Professor William Hoye Carol Kaesebier Professor John Robinson Jill Bodensteiner EDITOR IN CHIEF Michelle Colman Pennsylvania EXECUTIVE EDITOR Sarah Stancati Michigan EXECUTIVE ARTICLES EDITOR Christopher Robinson New York MANAGING EDITOR SYMPOSIUM EDITOR Kathryn Larkin James Swartz, Jr. Massachusetts New York Book REviEw EpITor LEAD Notes Ep!Itor Caroline Bolduc Matthew Gipson California Michigan ASSISTANT EDITOR SOLICITATION EDITOR Todd Mortlock Carol Perkins Michigan Indiana 1998-99 JOURNAL SENIOR STAFF Timothy Bliss John Mervilde Rhode Island Indiana Patricia Bors Justin Terry Kansas Illinois Scott Gronek California 1998-99 JoURNAL STAFF Lea Alfano Neesha Singh Florida Scott Kellogg Illinois Tammy Greenwald Illinois David Sturm Indiana Marc Leduc Maryland Matthew Hoefling Rhode Island Nancy Warnement North Carolina Debra Mongillo Texas Eushuk Andrew Hong Connecticut Ling Yang Washington Brian Nestor People’s Republic of China Florida 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 Na- tional Association of College and University Attorneys (NACUA). It is published quarterly by the National Association of College and University Attorneys, Suite 620, One Dupont Circle, N.W., Washington, D.C. 20036 and indexed to 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, Indes to Legal Periodicals, Legaltrac, National Law Review Reporters, Shepard’s Citators, and WESTLAW. POSTMASTER: Send changes of address requests to The Journal of College and University Law in care of William S. Hein and Company, Inc., 1285 Main Street, Buf- falo, NY 14209-1987. Periodicals postage paid at Washington D.C., and at additional mailing offices. Copyright © 1999 by National Association of College and University Attorneys Cite as — J.C. & U.L. — 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 non-profit 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 3,400. In addition to scholarly articles on current topics, the Journal of College and University Law regu- larly 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 William P. Hoye, Faculty Editor, General Counsel Office, 107 Hurley Building, Notre Dame, IN 46556. The Journal is a refereed publication. The views expressed herein are attributed to their authors and not to this publication, the National Association of College and University Attorneys or the No- tre 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 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. Issues generally include articles of current interest to college and university counsel, commentaries on recent cases, legislative and administrative developments, book reviews, student comments, and occasional papers from the Association’s Annual Conference. All NACUA members receive the Journal as a benefit of membership. Publications Subscriptions and Orders for Back Copies Inquiries about additional subscriptions to the Journal of College and University Law, as well as orders for back issues of both the Journal and the College Law Digest, can be obtained from: William S. Hein and Company Inc., 1285 Main Street, Buffalo, NY 14209-1987 (800)828-7571. Correspondence relating to editorial and membership matters should be addressed directly to the Association’s national office at: Suite 620, One Dupont Circle, N.W., Washington, D.C. 20036. Journal of College and University Law, 1973-1996 Volume 24 (1997-98) Volumes 14-16 (1987-1990) subscription: $52.50 per volume bound: $47.50 per issue: $14.00 per issue: $11.50 Volume 23 (1996-97) Volumes 12-13 (1985-1987) per volume bound: $50.00 per volume bound: $47.50 per issue: $13.50 per issue: $11.50 Volume 21-22 (1994-95) Volumes 8-11 (1981-1985) per volume bound: $47.50 per volume bound: $35.00 per issue: $11.50 per issue: $8.50 Volume 19-20 (1992-94) Volumes 5-7 (1977-1981) per volume bound: $47.50 per volume bound: $35.00 per issue: $11.50 per issue: $8.50 Volumes 17-18 (1990-92) Volumes 1-4 (1973-1977) per volume bound: $47.50 per volume bound: $30.00 per issue: $11.50 per issue: $8.50 College Law Digest, 1971-1982 Volumes 10-12 (1980-1982) Volumes 1 and 2 (1971-1972) per volume bound: $35.00 the set, bound: $25.00 Volumes 3-9 (1973-1979) Volumes 1-12 (1971-1982) per volume bound: $25.00 the set, bound: $290.00 (Note: Since 1982 (Vol.12), back copies of the College Law Digest are available from the NACUA National Office, rather than William S. Hein and Company Inc.) THE JOURNAL OF COLLEGE AND UNIVERSITY LAW Volume 25 Winter 1999 Number 3 ARTICLES The Sherman Act Antitrust Provisions and Collegiate Action: Should There Be a Continued Exception for the Business of the University? Jeffrey C. Sun Philip T.K. Daniel The Eleventh Amendment Revolution in the Lower Federal Courts William E. Thro Creating Roles for Religion and Philanthropy in a Secular Nation: The Dartmouth College Case and the Design of Civil Society in the Early Republic Mark D. McGarvie Student Fees and Student Rights: Evolving Constitutional Principles Robert M. O’Neil NOTE Academic Freedom Faces Learning Disabilities: Guckenberger v. Boston University Patricia L. Bors BOOK REVIEWS Review of Arthur Levine & Jeanette S. Cureton’s When Hope and Fear Collide: A Portrait of Today’s College Student Sally A. Raskoff Review of Lani Guinier et al.’s Becoming Gentlemen Nancy Y. Bekavac Review of Lani Guinier et al.’s Becoming Gentlemen Catherine Pieronek