THE JOURNAL OF COLLEGE AND UNIVERSITY LAW COMMENTARIES Universities: Their Temptations and Tensions Derek Bok University Research and the Wages of Commerce Michael Davis ARTICLE Rape on College Campuses: Reform Through Title IX Terry Nicole Steinberg STUDENT CASE COMMENT In Re Cronyn: Can Student Theses Bar Patent Applications? Kathleen M. Capano—Chery! A. Hoey—Claudia M. Zuch BOOK REVIEWS Governing Tomorrow’s Campus: Perspectives and Agendas, by Jack H. Schuster, Lynn H. Miller and Associates Rev. Edward A. Malloy, C.S.C. Liberal Justice and the Marxist Critique of Education, by Kenneth A. Strike Alven Neiman FOCUS ON RACE-EXCLUSIVE SCHOLARSHIPS COMMENTARY Federal Law and Scholarship Policy: An Essay on the Office for Civil Rights, Title VI, and Racial Restrictions Michael A. Olivas STUDENT NOTE Race-Exclusive Scholarships: Do They Violate the Constitution and Title VI of the Civil Rights Act of 1964? PUBLISHED BY THE NATIONAL ASSOCIATION OF COLLEGE AND UNIVERSITY ATTORNEYS AND THE NOTRE DAME LAW SCHOOL VOLUME 18 SUMMER 1991 NUMBER 1 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 educa- tion. NACUA now serves nearly 2,400 attorneys who represent some 1,200 campuses (about 630 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 ac- complishes 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 governmen- tal 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 two-thirds of NACUA member institutions are private, nonprofit institutions of higher education with enrollments below 5,000 students and current fund expenditures below $25 million per year. Collectively, these institutions enroll approximately 650,000 students. The remaining member insitutions, whose budgets range up to $3 billion per year, collectively enroll more than six million students. Board of Directors Members-at-Large President 1989-92 Beverly E. Ledbetter Brown University Pamela J. Bernard University of Florida President-Elect Eugene H. Bramhall ... . Brigham Young University Mary Elizabeth Kurz Michigan State University Thomas P. Hustoles . . Northern Michigan University Western Michigan University First Vice President William R. Kauffman University of Alaska David M. Donaldson Amherst, Wellesley, and Statewide System Wheaton Colleges Paul J. Ward Arizona University System Second Vice President Lee B. Liggett University of Vermont 1990-93 Vence L. Bonham Michigan State University Secretary James F. Henriot University of Puget Sound Melany S. Newby . . University of Wisconsin System Barbara A. Lee Rutgers, The State University Treasurer of New Jersey S. Andrew Schaffer New York University Frederick G. Savage . . 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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 18 Summer 1991 COMMENTARIES Universities: Their Temptations and Tensions Derek Bok Retiring Harvard President Derek Bok emphasizes that public support of universities requires their continuing to merit trust in their commitment to freely pursuing ‘‘learning and discovery’’. But paradoxically, the need to demonstrate independence in seeking truth is intensified when university research and exper- tise help solve important public problems. For these there is in- creased demand for just the kind of university involvement in external political and economic activities which can dilute their needed freedom. President Bok emphasizes three related temptations to which universities should be sensitive in seeking to maintain their in- dependence: politicization, both through involvement in exter- nal political conflicts and through imposing political orthodoxy internally; diverting faculty energy from teaching and research toward excessive external consulting, however useful the cause; and emphasizing commercial activity for its own sake when seeking new sources of funding. Federal Law and Scholarship Policy: An Essay on the Office for Civil Rights, Title VI, and Racial Restrictions Michael A. Olivas The Office for Civil Rights (OCR) has proposed to rule minority- specific scholarships a violation of Title VI, except when in- stitutions have implemented such scholarship programs as a result of court-ordered plans. This Commentary reviews the language of Title VI, case law concerning minority-specific plans, and the history of postsecondary segregation. It con- cludes that minority-specific scholarship programs are allowed by Title VI, and suggests that OCR is being meanspirited in its proposed policy. University Research and the Wages of Commerce .. . Michael Davis Declining federal support for scientific research has led colleges and universities to turn increasingly to business for help. Par- ticular universities, even particular departments, have forged links with particular businesses. Ralph Nader recently com- plained that business threatens to take over the university, destroying the public’s last source of independent research and impartial scientific judgment. This Commentary examines that complaint, concludes that there is a problem, but one both somewhat different from Nader’s and harder to resolve, and suggests some ways univer- sity attorneys can help to keep the problem manageable. ARTICLE Rape on College Campuses: Reform Through Title IX Terry Nicole Steinberg Rape on college campuses is an increasing problem throughout the country. Student rape victims suffer from serious physical and emotional trauma. Colleges increase the emotional trauma by their negative reactions to or failure to assist rape victims. Increased security alone will not effectively combat campus rape. An effective rape-prevention program must include reduc- ing acquaintance rape. Many men rape women they know because of their attitudes towards women. Reducing acquain- tance rape requires changing behavior resulting from these at- titudes. To reduce both stranger rape and acquaintance rape, all colleges must implement comprehensive rape-prevention programs. Voluntary programs omit many colleges, leaving female students unprotected. A college’s failure to implement a com- prehensive rape-prevention program denies student rape vic- tims the benefits of a college education. This denial discriminates against female students and violates Title IX. Therefore, Congress should amend Title IX to include rape as sex discrimination. STUDENT NOTE Race-Exclusive Scholarships: Do They Violate the Constitution and Title VI of the Civil Rights Act of 1964? .......... Jon A. Ward STUDENT CASE COMMENT In Re Cronyn: Can Student Theses Bar Patent Applications? Kathleen M. Capano Cheryl A. Hoey Claudia M. Zuch BOOK REVIEWS Governing Tomorrow’s Campus: Perspectives and Agendas, by Jack H. Schuster, Lynn H. Miller and Associates Rev. Edward A. Malloy, C.S.C. 121 Liberal Justice and the Marxist Critique of Education, by Kenneth A. Strike Alven Neiman 125 COMMENTARY Universities: Their Temptations and Tensions DEREK Bok* In this last of my twenty annual reports, reflecting upon my two decades as President of Harvard University, I will discuss three dangers that could prove especially troublesome for Harvard and universities like it. These hazards are important because they have to do not merely with our financial problems nor with difficulties thrust on us by others but with preserving the basic values that allow universities to flourish and to command our loyalty and respect. Defending these values forces us not simply to revise our tactics or review our strategy, but to remind ourselves of what a university should strive to be. Universities such as Harvard are fortunate places in which to study and work and live. No other institution offers such freedom to think and write as one chooses, to enjoy such a wealth of stimulating people and engrossing activities, to be creative and independent, and yet to have the satisfaction of serving others in important ways. But this way of life is not forever guarameed. It persists because most people believe that a university so conceived is likely to yield important benefits to society through education and research. The freedom and independence these institutions enjoy and the tolerance and support they receive have the greatest chance of surviving if all of their actions and policies seem consistent with achieving the highest attainable level of teaching and scholarly inquiry. This is so for the obvious reason that education and research are the primary functions of a university and its principal contributions to society. But the explanation runs deeper. Universities depend heavily on the commitments of many constitu- encies, and these commitments rest in turn on a belief in the worth of the inteilectual pursuits carried on by the institution. No one can order professors to write great books or teach inspired classes; they will do their best only as long as they believe in the value of the efforts they are making. No one can command students to treat their studies as more than a vocational exercise; they are unlikely to do so unless they * Derek Bok retired in June after twenty years as President of Harvard University. This essay is adapted from President Bok’s spring 1991 Report to the Harvard University Board of Overseers. JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 18, No. 1 sense that ‘“‘knowledge [is] cherished and the quest for it [is] ubiqui- tous.’’! The public too can be counted upon to support universities and preserve their independence only as long as it is persuaded that they are truly committed to learning and discovery. Otherwise, their value to the world diminishes, and with it their claims upon society. For all these reasons, when universities act in ways inconsistent with the pursuit of education and research, they do not merely compromise their mission; they threaten reservoirs of confidence and trust on which their welfare ultimately depends. Achieving the highest quality of education and research requires respect for several basic principles. It implies that universities will choose their professors because of their ability as teachers and scholars and not primarily for other reasons, even appealing reasons such as the need for role models or greater diversity. It means that the principal reason for admitting students will not be their relatives or their influ- ential connections but their ability to learn, or their capacity to enhance the learning of others, or their prospects for using their learning to contribute to society. A genuine commitment to education and research also means that universities accept a common set of standards in evaluating the aca- demic work of faculty and students. These standards honor creativity and imagination in formulating new hypotheses, new connections, ingenious methods for testing theories and searching for knowledge. But they also require that new ideas be tested, insofar as possible, by accepted standards of logic, internal consistency, clarity of expression, and correspondence to known facts. It follows that students and faculty must be judged not on whether one happens to agree with their opinions but on whether they state an interesting thesis, gather the relevant evidence with care, take account of opposing arguments and facts, and present their case clearly, persuasively, and, insofar as the nature of their work permits, objectively. Human frailty may make it difficult or even impossible to adhere to these ‘standards completely. They work better for some fields of knowl- edge than for others. Even in technical subjects, they cannot eliminate the need for subjective judgment. Yet the inability to achieve them fully does not discredit them or justify their abandonment. The fact that academic decisions require an element of judgment does not mean that one can dismiss them as totally arbitrary or political. Unless this view is widely accepted, the academic enterprise will give way to constant maneuvering and manipulation that will end by demoralizing the faculty, disillusioning the students, and forfeiting the respect of the public. Within this framework, students and scholars must be able to do their work in an atmosphere of tolerance. Scholarship will flourish only 1. Harvard Gazette, May 30, 1986, p. 20 (quoting Howard Gardner, professor of education).