THE JOURNAL OF COLLEGE AND UNIVERSITY LAW ARTICLES Commercialization of Academic Knowledge and Judicial Deference Donal M. Sacken College and University Responses to the Emotionally or Mentally Impaired Student Jeanette DiScala Steven G. Olswang Carol S. Niccolls COMMENTARY How Do We Manage the Right to Hate? Judge Abner J. Mikva CASE COMMENT NCAA v. Commissioner of I.R.S.: When Will the Internal Revenue Service Consider an Activity Regularly Carried On? Domenique Camacho John Dunn BOOK REVIEW Technology Transfer and the University, by Gary W. Matkin Katheryne L. Zelenock PUBLISHED BY THE NATIONAL ASSOCIATION OF COLLEGE AND UNIVERSITY ATTORNEYS AND THE NOTRE DAME LAW SCHOOL VOLUME 19 SUMMER 1992 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 2,500 attorneys who represent some 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 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. 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Kelley Wiltbank Idaho State University Lee B. Liggett University of Vermont 1991-94 Second Vice President Barbara Bennett Vanderbilt University Michael C. Weston Northwestern University Karen Davis .............Saint Louis University Secretary Becky R. French ....University of North Carolina Sheila Trice Bell ..Northern Kentucky University General Administration Byron H. Higgins.......... University of Illinois Treasurer Lawrence White ......... Georgetown University S. Andrew Schaffer........ New York University 1992-95 Philip Burling Boston College Immediate Past Presidents Mary Ann Connell ..... University of Mississippi Shelley Sanders Kehl ..... College of Aeronautics President 1991-92 and Manhattan College Beverly E. Ledbetter Brown University Jean S. Sagan University of Alaska President 1990-91 Statewide System Richard B. Crockett Hamilton College and Raymond W. 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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 19 Summer 1992 ARTICLES Commercialization of Academic Knowledge and Judicial Deference Donal M. Sacken Courts have accepted a bifurcation of university work between core activities, normally protected by academic-freedom concepts, and ancillary activities, subject to extensive regulation and control by agencies of government. That bifurcation extends also to faculty work, distinguishing between academic duties and personal activities. This Article considers whether university and faculty ef- forts to commercialize and profit from research-based activities will affect judicially acknowledged distinctions, introducing the oppor- tunity for greater regulation of core university and faculty activities. College and University Responses to the Emotionally or Mentally Impaired Student Jeanette DiScala Steven G. Olswang Carol S. Niccolls Emotionally or mentally impaired students present a dilemma for college administrators concerned with the safety of students and others on campus. This Article examines the impact upon the impaired student’s constitutional or federal statutory rights of an administrator’s action that conditions the student’s con- tinued enrollment upon psychological or psychiatric evalua- tion or treatment. The Article distinguishes between non- disciplinary and disciplinary cases. The Article concludes, however, that significant procedural due-process rights must accompany the attempt to condition continued enrollment upon such evaluation or treatment in either case. The Article also suggests that college or university responses to emotionally or mentally impaired students may implicate sec- tion 504 of the Rehabilitation Act of 1973. The Article con- cludes that this concern further implicates the need for the college or university to provide the student with notice and a hearing before excluding the student based upon a perceived psychological problem. COMMENTARY How Do We Manage the Right to Hate? ...... Judge Abner J. Mikva In the wake of R.A.V. v. City of St. Paul, many universities may well believe that the highest court in the land has given them no choice but to retreat from all efforts to manage the right to hate, and allow hate to flourish on campuses where it may. Yet the decision does not create insurmountable obstacles to fostering productive and tolerant campus life. Codes may still be developed that are aimed at protecting the university in its functions. Colleges and universities need not tolerate in- timidators for the same reasons they may expel property destructors. Even courts will understand that an educational institution is entitled to protect its capacity to function. In the future, the rules developed for the management of hate should not describe offensive conduct in terms of race, religion or the “fetceteras,’’ but should describe instead the effects that con- duct must avoid. CASE COMMENT NCAA v. Commissioner of I.R.S.: When Will The Internal Revenue Service Consider an Activity Regularly Carried On? Domenique Camacho John Dunn BOOK REVIEW Technology Transfer and the University, by Gary W. Matkin Katheryn L. Zelenock COMMERCIALIZATION OF ACADEMIC KNOWLEDGE AND JUDICIAL DEFERENCE DONAL M. SACKEN* Courts will only reluctantly interfere with activities that universities successfully link with their basic missions: to research, to teach and to serve the community. This reluctance has endured despite univer- sities’ legalized relationships with their students and faculty. An ex- cellent example of judicial dichotomizing between legally cognizable claims and those relegated to virtually unreviewable institutional dis- cretion is the distinction in formal due-process requirements for stu- dents’ academic and disciplinary dismissals.: Comparably, when the institution has met its procedural policies, the courts have employed a deference/abstention doctrine regarding faculty promotions.” In 1990, the Supreme Court finally resolved the issue of access to peer review materials in a case* involving discrimination claims, although the Civil Rights Act* has covered public universities since 1972. Simultaneously, courts have demonstrated less reluctance in review- ing disputes and relationships ancillary to universities’ core missions.® Policymakers, through statutes and regulations, have predisposed courts to treat universities and other institutions similarly. One example is the taxation of unrelated business income earned by universities as nonprofit organizations.* Statutes or regental policies prohibiting pub- lic universities from competing with private businesses present another example.’ Given these circumstances, universities sought to include many of their activities within the scope of their core mission. Universities * Professor and Chair, Educational Foundations and Administration, Texas Christian University. 1. See generally WiLLIAM G. MILLINGTON, THE LAW AND THE COLLEGE STUDENT: JUSTICE IN EVOLUTION (1979). 2. See, e.g., Smith v. State, 389 N.W.2d 808 (N.D. 1986); Stensrud v. Maryville State College, 368 N.W.2d 519 (N.D. 1985); and Piacitelli v. S. Utah State College, 636 P.2d 1063 (Utah 1981). 3. University of Pa. v. EEOC, 493 U.S. 182, 110 S. Ct. 577 (1990). See Ann H. Franke, Life in the Academy After University of Pennsylvania v. EEOC, 62 W. Epuc. L. REP. 23 (1990). 4. Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (codified as amended in scattered sections of 28 and 42 U.S.C.). 5. See Estelle A. Fishbein, New Strings on the Ivory Tower: The Growth of Account- ability in Colleges and Universities, 12 J.C. & U.L. 381 (1985). 6. See Carol S. Niccolls et al., Unrelated Busines Income Tax and Unfair Competition: Current Status of the Law, 15 J.C. & U.L. 249, 261-67 (1989). 7. See Fishbein, supra note 5. JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 19, No. 1 have achieved this goal with respect to control over curriculum. Thus, courts have discounted students’ ‘‘academic malpractice’’ claims.® Courts also have permitted universities to modify or discontinue aca- demic programs, though currently enrolled students may be disadvan- taged.° Further, although legislators and other policymakers express concern or dismay about universities’ curricula, they are more reluctant to interfere with universities’ choices than with course selection in public schools. Although courts will review decisions in university personnel matters,’® they hesitate to entertain substantive claims in promotion and tenure cases.'’ When faculty members persuade courts that a university responded to political pressure or acted upon an improper motive, those faculty members achieve some success.'? By contrast, when a professor’s immediate colleagues or the collective faculty remove the professor from his or her position, judges shy away from second-guessing or imputing improper motives.’* Thus, the over- all record of faculty members in court against their colleagues or the institution remains poor. Courts and policymakers are willing to exempt universities from the reach of policy.** As a result, universities still maintain a significant degree of autonomy or privilege in many areas of their operations. Although too frequently invoked and too talismanic, institutional and individual academic freedom still present formidable barriers to intru- ders.'* This paper focuses on the potential consequences of universities’ 8. See generally Virginia D. Nordin, The Contract to Educate: Toward a More Workable Theory of the Student-University Relationship, 8 J.C. & U.L. 141 (1981-82). 9. Id. 10. See, e.g., Upadhya v. Langenberg, 834 F.2d 661 (7th Cir. 1987), cert. denied, 486 U.S. 1033, 108 S. Ct. 2016 (1988); Linn v. Andover-Newton Theological Sch., 638 F. Supp. 1114 (D. Mass. 1986); and Perry v. Sinderman, 408 U.S. 593, 92 S. Ct. 2717 (1972). 11. See, e.g., Donahue v. State, 474 N.W.2d 537 (Iowa 1991); Scharf v. Regents of Univ. of Cal., 286 Cal. Rptr. 227 (Ct. App. 1991); and Sola v. Lafayette College, 804 F.2d 40 (3d Cir. 1986). 12. See, e.g., Cooper v. Ross, 472 F. Supp. 802 (E.D. Ark. 1979). In Cooper, the intervention of the Arkansas Legislature in the tenure decision of a marxist professor persuaded the court that improper motives were a critical factor in the decision. Id. at 814- 15. This is one of the few ‘‘pure’’ academic freedom cases. 13. See, e.g., Mayberry v. Dees, 663 F.2d 502 (4th Cir. 1981), cert. denied, 459 U.S. 830 (1982). In Mayberry, the court denied Mayberry’s claim that the University was improperly motivated by the desire to restrict his speech in denying him tenure. Instead, the court accepted the University’s defense that Mayberry’s colleagues just found him offensive. Not every one believes that courts are reticent to intervene against universities’ personrel decisions, at least to the point of post hoc reviews. Beach argues that ‘‘[flor all their claims of restraint and non-intervention, the courts are in fact eager to review how universities treat professors... .’’ John A. Beach, The Management and Goverance of Academic Institutions, 12 J.C. & U.L. 301, 325 (1985). Whether courts are anxious to review personnel decisions or not, they appear less anxious to overturn them. 14. See, e.g.. Regents of Univ. of Mich. v. State of Mich., 419 N.W. 2d 773 (Mich. App. 1988); Arizona State Univ. v. Ariz. Dep’t of Admin., 728 P.2d 669 (1986); and Bd. of Trustees v. Ohio Dep’t of Admin. Services, 429 N.E.2d 428 (Ohio 1981). 15. See, e.g., Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225, 106 S. Ct. 507,