THE JOURNAL OF COLLEGE AND UNIVERSITY LAW ARTICLES Not All Minority Scholarships Are Created Equal: Why Some May Be More Constitutional Than Others Andrew H. Baida The Copyright Remedy Clarification Act of 1990: State Educational Institu- tions Now Face Significant Monetary Exposure For Copyright Infringement Robert A. Burgoyne Bishop v. Aronov: A Comment Robert M. O’Neil STUDENT NOTE Americans With Disabilities Act of 1990: Significant Overlap With Section 504 For Colleges and Universities Wayne A. Hill, Jr. PUBLISHED BY THE NATIONAL ASSOCIATION OF COLLEGE AND UNIVERSITY ATTORNEYS AND THE NOTRE DAME LAW SCHOOL VOLUME 18 WINTER 1992 NUMBER 3 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. 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THE JOURNAL OF COLLEGE AND UNIVERSITY LAW Volume 18 Winter 1992 Number 3 ARTICLES Not All Minority Scholarships Are Created Equal: Why Some May Be More Constitutional Than Others Andrew H. Baida The Department of Education ignited a national debate when it announced in December of 1990 that race-exclusive scholar- ships are unlawful in most cases. The law governing the legal- ity of these scholarships is relatively uncharted but developing rapidly, as evidenced by the Department’s shifting stance on their validity and a recent challenge making its way through the federal courts. This Article explores the prevalence of discrimination in higher-education systems across the coun- try, and suggests how race-exclusive scholarships can be used and defended as a means of eliminating vestiges of discrimina- tion that hinder the access of minorities to post-secondary educational opportunities. The Copyright Remedy Clarification Act Of 1990: State Educational Institutions Now Face Significant Monetary Exposure For Copyright Infringement Robert A. Burgoyne State universities can no longer claim immunity under the Eleventh Amendment against copyright infringement actions. This Article examines the Copyright Remedy Clarification Act of 1990 and its implications for state educational institutions. This Article also examines the fair-use defense, still available to state institutions, and the remedies now available to copyright holders in actions against state institutions. The Ar- ticle suggests that university faculty and administrators must now be especially careful to understand the requirements and limitations of copyright law. Bishop v. Aronov: A Comment Robert M. O’Neil The role of religion in the public-university classroom presents a novel and perplexing issue. In Bishop v. Aronov the Eleventh Circuit found that public universities could suppress a professor’s classroom comments on his personal religious beliefs. This Comment discusses the issues raised by this case, focusing on the conflict between a professor’s right to express personal religious beliefs in the classroom and a university’s right to take action to limit the professor’s expression. STUDENT NOTE Americans With Disabilities Act of 1990: Significant Overlap With Section 504 For Colleges and Universities Wayne A. Hill, Jr. 389 Not ALL MINORITY SCHOLARSHIPS ARE CREATED EQUAL: WHY SOME May BE More CONSTITUTIONAL THAN OTHERS ANDREW H. BaIpDA* INTRODUCTION In December of 1990, the United States Department of Education sent shock waves felt by universities’ throughout the country when it announced that ‘‘race-exclusive’’ scholarships, i.e. those available only to minority groups, may be discriminatory and, therefore, illegal.2 The Department’s announcement responded to a proposal made by Fiesta Bowl officials to create a Martin Luther King, Jr. scholarship fund that would give $100,000 to each school whose team participated in the annual football game, with the scholarship money to be awarded to minority applicants at that school.* Contending that such a scholarship program may violate Title VI of the Civil Rights Act of 1964,* the Department of Education suggested that the scholarship fund be changed ‘from a race-exclusive program to a program in which race is consid- ered a positive factor among similarly qualified individuals, or to a program that utilizes race-neutral criteria.’’> The public furor created by the Department’s stance eased somewhat when the Bush Administration later stated it would review that policy. * Assistant Attorney General, Maryland; B.A., 1980, J.D., 1983, University of Maryland. The author is defending the constitutionality of a blacks-only scholarship program offered at the University of Maryland at College Park. The views expressed herein are those of the author, not the State of Maryland or the Office of the Attorney General. 1. Use of the terms ‘‘university”’ or ‘‘universities’’ includes all institutions of higher education. : 2. See, e.g., Michel Marriott, Colleges Basing Aid On Race Risk Loss Of Federal Funds, N.Y. Times, Dec. 12, 1990, at A1. 3. See Unirep STATES DEPARTMENT OF EDUCATION NEws RELEASE, December 4, 1990, at 1. Arizona, where the Fiesta Bowl is played, had previously attracted a great deal of negative national attention because of the state’s refusal to create a state holiday honoring Martin Luther King, Jr. The Martin Luther King, Jr. scholarship fund was apparently designed to reshape the state’s image. 4. 42 U.S.C. §§ 2000d-2000d-4 (1988) (hereinafter Title VI). That statute in pertinent part provides ‘‘[nJo person in the United States shall, on the basis of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.’’ 42 U.S.C. § 2000d (1988). 5. UNrTED STATES DEPARTMENT OF EDUCATION NEwS RELEASE, December 4, 1990, at 2. 333 334 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 18, No. 3 The Department then revised its position to provide that private higher- education institutions may administer such scholarships if established and funded entirely by private persons or entities but may not use their own money to fund these scholarships. However, the Department of Education’s subsequent announcement, which has since been followed by yet another proposed change in policy,’ expressly refrained from addressing the legality of race-based scholarships supported by public monies, stating that ‘‘[r]jace-exclusive scholarships funded by state and local governments are covered by the Supreme Court’s decisions con- struing the Constitution and thus cannot be addressed administra- tively.’’® Putting aside the Department of Education’s vacillations with respect to an issue that affects a large number of universities across the nation,° 6. See UNITED STATES DEPARTMENT OF EDUCATION NEws RELEASE, Dec. 18, 1990, at 1, reprinted in 21 Educ. L. Rep. (West) & College L. Dig. (Nat’l Ass’n College & Univ. Att’ys) at 95 (Jan. 3, 1991); Department’s New Stance On Minority Scholarships Is So Muddled It’s Useless, Many Legal Experts Say, CHRONICLE OF HIGHER EDUCATION, Jan. 9, 1991, at A33. 7. On March 20, 1991, Secretary of Education Lamar Alexander released a statement announcing the Department’s intention ‘‘to develop guidance for colleges and universities about student scholarship and loan programs in which a student’s race or national origin is a factor.’’ March 20, 1991 Statement of Lamar Alexander at 1. Secretary Alexander expressed the intent to request information and comments from interested parties through a notice published in the Federal Register. Id. at 2. That notice was published on May 30, 1991. See 56 Fed. Reg. 24, 383 (1991). On December 4, 1991, exactly one year after the Department of Education announced its general disapproval of race-exclusive scho- larships, the Department authorized the issuance of a proposed policy guidance in the Federal Register and requested all interested parties to submit written comments, views and recommendations on or before March 9, 1992. See 56 Fed. Reg. 64, 548 (1991). In this most recent attempt to clarify the Department’s policy concerning the legality of these scholarships, the proposed regulations would allow: (1) race-neutral aid for dis- advantaged students; (2) scholarships to create a diverse student population, as long as race is treated only as a factor when awarding scholarships rather than as a condition precedent; (3) the use of race-exclusive scholarships to overcome past discrimination; (4) federal race-exclusive scholarships; and (5) privately-funded race-exclusive scholarships that do not limit financial aid available to other students. Id. 8. UNITED STATES DEPARTMENT OF EDUCATION NEwsS RELEASE, Dec. 18, 1990, at 2. Noting ‘‘the evident confusion among the universities’ that its revised policy would create, the Department stated that it would establish a four-year transition period to allow the universities to review their scholarship programs under Title VI and to ensure that no students who were previously awarded such scholarships would be prejudiced. Id. See also 56 Fed. Reg. 64, 548 (1991) (citing the same concerns as justification for a four- year transition period). A civil action was subsequently filed in federal court in Wash- ington seeking, among other things, the Department’s immediate enforcement of Title VI with respect to race-exclusive scholarships. The court dismissed the action. See Wash- ington Legal Foundation v. Alexander, 778 F. Supp. 67 (D.D.C. 1991). 9. One educational association estimated that approximately 1,000 of its 2,800 higher-education institution members awarded aid that was based at least in part on minority status. See March 20, 1991 Written Statement of Donald M. Stewart, President of the College Board, submitted to the House Government Operations Subcommittee on Human Resources. The American Council on Education determined that approximately 45,000 minority students at four-year colleges receive race-exclusive scholarships. See 56 Fed. Reg. 64, 548 (1991).