Law Review Digests: UNIVERSITIES AND OTHER INSTITUTIONS OF HIGHER LEARNING

Articles

Clay Calvert and Robert D. Richards, Lighting a Fire on College Campuses: An Inside Perspective on Free Speech, Public Policy and Higher Education, 3. Geo. J.L. & Pub. Pol'y 205 (2005). This article provides a brief overview of recent developments in free speech on university campuses

James J. Casey, Jr., Developing Harmonious University-Industry Partnerships, 30 Dayton L. Rev. 245 (2004). This article looks at the relationship between universities and industries and how such relationships directly or indirectly benefit the local, regional, and national economy. The author looks directly at the University-Industry Partnership, a multi-organizational initiative designed to strengthen the relationship between industry and academia, to show how the goal of strengthening the partnerships can be accomplished.

Roger Clegg, Attacking Diversity: A Review of Peter Wood's Diversity: The Invention of a Concept, 31 J.C. & U.L. 417 (2005). This book essay discusses the work by Peter Wood and criticizes the current academic and legal concept of diversity. The author discusses Regents of the University of California v. Bakke, and criticizes the agenda of diversity. Finally, the author offers ideas for future legal attacks on the diversity concept.

Kylie Beth Crawford, Collateral Sanctions in Higher Education: A Constitutional Challenge to the Drug-Free Student Loan Provision of the Higher Education Act of1998, 36 U. of ToI. L. Rev. 755 (2005). This article focuses on the effects of The War on Drugs and consequent laws, such as the Drug Free Student Loan Provision of the Higher Education Act of 1998. The author considers the Drug Free Student Loan Provision an unconstitutional form of retroactive punishment for those who have been convicted of drug-related offenses.

A. Jerome Dees, Do The Right Thing: A Search For An Equitable Application of Title IX in Historically Black Colleges and University Athletics, 33 Cap. U. L. Rev. 219 (2004). Today the Historically Black Colleges and Universities (HBCU), continue with their long-term goal of educating Black Americans. This article looks at HBCU athletics and examines their effectiveness in providing opportunities to AfricanAmerican women in light of Title IX. The author concludes that HBCU should work alongside Title IX to provide educational opportunities in academics and athletics for all their female students.

Ashley M. Hibbet, The Enigma of the Stigma: A case Study on the Validity of the Stigma Arguments Made in Opposition to Affirmative Action Programs in Higher Education. 21 Harv. BlackLetter J. 75 (2005). This article explores the racial stigma created by affirmative action and in a very analytical way explains the framework generally relied on to provide a defense to affirmative action. Based on a survey of twenty students at Harvard Law School, the article further examines the depth and pervasiveness of these ideas.

Paul Horwitz, Grutter's First Amendment, 46 B.C. L. Rev. 461 (2005). This article examines three different interpretations of the First Amendment based on the ruling in Grutter v. Bollinger. The first is a statement of institutional autonomy for schools of higher education. The second view is that institutes have a more firm academic freedom. Lastly there is an interpretation which may suggest the court will "take seriously the role of 'First Amendment institutions.'"

Creola Johnson, Maxed Out College Students: A Call to Limit Credit Card Solicitations on College Campuses, 8 NYU J. Legis. & Pub. Policy 191 (2005). This article examines the harmful effects of credit card solicitations on college campuses. Although universities do not support credit card vendors when they come on campus, studies indicate that students inadvertently believe they do. Given this fact, the author concludes that universities should take a more active role in protecting students from future financial difficulties due to the irresponsible use of a credit card.

Kevin R. Johnson, & Angela Onwuachi-Willig, Cry Me a River: The Limits of "A Systemic Analysis of Affirmative Action in American Law Schools, " 1 Afr.-Am. L. & Policy Rep. 1 (2005). The article analyzes Professor Sander's article "A Systemic Analysis of Affirmative Action in American Law Schools," describing it as too narrow. This article offers several critiques of the law school admissions process described by Professor Sander. Specifically, he neglects to account for the well-documented hostile environment faced by African-American, and other minority, students in law school and how it may adversely affect academic performance.

Peter F. Lake, Private Law Continues to Come to Campus: Rights and Responsibilities Revisited, 31 J.C. & U.L. 621 (2005). The article revisits the book, Rights and Responsibilities which Lake co-authored with Professor Robert D. Bickel. The author looks at the legal change in universities' risk management roles since 1999. The article further explores the "facilitator university," student wellness issues, and issues with student process systems.

Derek P. Langhauser, Free and Regulated Speech on Campus: Using Forum Analysis for Assessing Facility Use, Speech Zones, and Related Expressive Activity, 31 J.C. & U.L. 481 (2005). The article gives guidance on forum analysis for university speech zones and constitutional challenges to those speech zones. The author looks at three cases for examples of such challenges: Roberts v. Haragan at Texas Tech University, Pro-Life Cougars v. University of Houston, and Thomas v. Chicago Park District. The author concludes that the practice of protecting free speech and speech zones requires attention to detail and nuanced arguments, and makes some suggestions for practitioners.

Beverly I. Moran, Constructing Reality: Social Science and Race Cases, 25 N. Ill. U. L. Rev. 243 (2005). This article discusses the large number of amicus briefs filed in Grutier v. Bollinger and the Supreme Court's subsequent decision to allow race considerations in the admissions process. The author argues that social science's true contribution is not found in court, but in its effects on public opinion. The author believes that the ideas expressed in a brief must exist in the public consciousness in order to influence judicial decision-making.

Carl Oxholm, Sarbanes-Oxley in Higher Education: Bringing Corporate America's "Best Practices" to Academia, 31 J.C. & U.L. 351 (2005). The Sarbanes-Oxley Act of 2002 established new standards of accountability for corporate officers, new requirements for acceptable corporate conduct, and new penalties for transgressions. The decision needs to be made as to whether Sarbanes-Oxley should be applied to non-profits in general, or to institutions of higher education in particular. There are ways that colleges and universities-public as well as private-can implement the Act's "best practices" while minimizing the new and substantial burdens those practices impose.

Ana M. Perez-Arrieta, "Defenses to Sex-Based Wage Discrimination Claims at Educational Institutions: Exploring 'Equal Work' and 'Any Other Factors Other Than Sex' in the Faculty Content, " 31 J.C. & U.L. 393 (2005). This article discusses the Equal Pay Act of 1963 and its affect on gender discrimination within academic institutions. The author then focuses on the impact that Cullen v. Indiana University Board of Trustees, 338 F.3d 693 (7th Cir. 2003) has had on this issue. The author concludes by identifying various factors that the court will apply when deciding whether pay disparities among professors and faculty are based on gender discrimination.

Catherine Pieronek, Title IX and Gender Equity in Science, Technology, Engineering and Mathematics Education: No Longer an Overlooked Application of the Law, 31 J.C. & U.L. 291 (2005). This article focuses on the lack of court cases dealing with gender equity in an academic context and the recent shift of Title IX enforcement in the disciplines of science, technology, engineering and mathematics (STEM). The author concludes that Title IX cannot alleviate misrepresentation of women in STEM, but it can help to create a hospitable environment for those women who do study a STEM discipline.

John D. Ranseen and Gregory S. Parks, Test Accommodations for Postsecondary Students: The Quandary Resulting From the ADA's Disability Definition, 11 Psychol. Pub. Pol'y & L. 83 (2005). This article discusses the conflicts in testing accommodations for students, particularly conflicts as to what constitutes a disability under the Americans with Disabilities Act [ADA]. The article offers suggestions for reducing the conflict in the future, including focusing more on examining the actual merits of the accommodation practices rather than focusing on refining the definition of disability.

Rebecca Ness Rhymer, Taking Back the Power: Federal vs. State Regulation on Postsecondary Education Benefits of Illegal Immigrants, 44 Washburn LJ. 603 (2005). This note looks at the differences in state and federal laws on the matter of preventing illegal aliens from receiving in-state tuition rates for post secondary institutions. Many states have begun to offer avenues to illegal immigrants through which they can achieve these tuition breaks in contravention of federal law. The author suggests that federal law should take a more active role in preventing this.

Thomas R. Ruge & Angela D. Iza, Higher Education for Undocumented Students: The Case for Open Admission and In-state Tuition Rates for Students Without Lawful Immigrant Status, 15 Ind. International & Comparative L. Rev. 257 (2005). This article discusses the predicament that undocumented immigrant students face once they have graduated from high school and attempt to enroll in and pay for postsecondary education. The authors recommend that universities give in-state tuition to undocumented immigrant students who would otherwise qualify for state resident status.

James F. Shekleton, The Campus as Agora: The Constitution, Commerce, Gadfly Stonecutters, and Irreverent Youth, 31 J.C. & U.L. 513 (2005). The article discusses the regulation of commercial speech on college and university campuses. After exploring the history of forum analysis and off-campus regulation of commercial speech, the author concludes that universities should treat on campus commercial speech more like the off-campus variety.

Matthew C. Welnicki, Dischargeability of Students' Financial Obligations: Student Loans Versus Student Tuition Account Debts, 31 J.C. & U.L. 665 (2005). The article first discusses the legal difference between a student loan and a student account, two methods schools use to allow students to repay tuition over time. When students later declare bankruptcy the definition as student loan or account will greatly influence the university's ability to collect on the debt. The author advocates caution in extending credit to students without a clear labeling of the debt as student loan or account.

Notes and Comments

Leaving Religious Students Speechless: Public University Antidiscrimination Policies and Religious Student Organizations, 118 Harv. L. Rev. 2882 (2005). This note discusses university mandatory discrimination polices and their effect on religious organizations. The author argues the policies adversely effect the core expressive values of the organizations and suggests requiring organizations to adhere to the antidiscrimination policies violates the First Amendment's guarantee of freedom of association.

Jeremiah G. Coder, The Vote is in: Student Officer Campaigns Deserve First Amendment Protections, 31 J.C. & U.L. 677 (2005). The article proposes an argument that under the First Amendment, student elections at the university level should not be subject to expenditure limits. The author explores traditional forum analysis, and concludes that on campus campaigns should be treated more like off campus campaigns where election spending caps have been found unconstitutional.

Patrick M. Garry, The Next Step in Diversity: Extending the Logic of Grutier ?. Bollinger to Faculty Tenure, 82 Denv. U.L. Rev. 1 (2004). This article suggests that the arguments made in Grutter v. Bollinger regarding the University of Michigan's Law School race-conscious admissions policy should be extended further. This extension should require that law schools not only make concentrated efforts in recruiting minority students to stimulate diversity, but also to dismantle the university tenure system in order to achieve more ethnicity in the faculty. The article claims that Grutter supports the idea of having religious and political diversity as well.

Deanna N. Pihos, Assuming Maturity Matters: The Limited Reach of the Establishment Clause at Public Universities, 90 Cornell L. Rev. 1349 (2005). This note looks at prayer and other religious speech in institutes of higher education and compares the standards in those schools to those of lesser institutes. The note finds that a higher standard exists for universities and colleges and that prayer is more likely to not pose an establishment clause violation. The note ends with an examination of how the courts should analyze religious speech at higher levels of education.

Alan E. Schoenfeld, Challenging the Bounds of Education Litigation, Castaneda v. Regents and Daniel v. California, 10 Mich. J. Race & L. 195 (2004). This note proposes combining equal protection and affirmative action cases with arguments based on financial reform. If efforts in both of these areas are unified then the author suggests that the results will be great for both interests involved. To further this idea, two California cases are presented that both deal with different aspects of the Advanced Placement program.

Richard Schwartz, Has Solomon's Reign Come to an End?, 31 J.C. & U.L. 709 (2005). This note discusses the history of the Solomon Amendment, which requires university campuses to accept military recruitment on campus or lose federal funds, even if the university opposes the "don't ask, don't tell" policy of the military. The note lists varying approaches universities take in applying First Amendment restrictions to the Solomon Amendment. The note concludes that the current respite from Solomon's reign may not last.

Kelly M. Trainor, The NCAA's Initial Eligibility Requirements and the Americans with Disabilities Act in the Post-PGA Tour, Inc. v. Martin Era: An Argument in Favor of Deference to the NCAA, 46 B.C. L. Rev. 423 (2005). This note examines the impact of PGA Golf, Inc. v. Martin on claims against the NCAA's initial eligibility requirements. The author argues that courts should provide the NCAA as much deference as has always been granted to educational institutions in order to ensure that intercollegiate athletics maintain their place in American culture.

Robert Paul Wolff and Tobias Barrington Wolff, The Pimple on Adonis's Nose: A Dialogue on the Concept of Merit in the Affirmative Action Debate, 56 Hastings L.J. 379 (2005). This article presents two constitutional law professors opposing viewpoints on the role that "merit" should play in affirmative action programs. One law professor argues that affirmative action policies are costly and damage the objectively neutral evaluation process of selecting students. The other supports the Supreme Court decisions envisioning diversity in the admissions process as a necessity.

Symposia

Education Law, 38 Akron L. Rev. 759 (2005); Lieberwitz, Risa L., The corporatization of academic research: whose interests are served?; Fishman, James J., Tenure: endangered and evolutionary species.; Angel, Marina, The modern university and its law school: hierarchical, bureaucratic structures replace coarchical, collegial ones; women disappear from tenure track and reemerge as caregivers: tenure disappears or becomes unrecognizable', Berenson, Steven K., What should law school student conduct codes do?