THE JOURNAL OF COLLEGE AND UNIVERSITY LAW ARTICLES Freedom for the Thought That We Hate: A Policy Analysis of Student Speech Regulation at America’s Twenty Largest Public Universities Richard Kirk Page Kay Hartwell Hunnicutt Due Process in the Accreditation Context Michael W. Prairie Lori A. Chamberlain ‘‘Educating’’ Lawyers about the Implications of Cost Accounting Standards for Government Contracts and Grants with Educational Institutions Thomas A. Lemmer Paul E. Pompeo STUDENT NOTE Atlanta College of Medical & Dental Careers, Inc. v. Riley: The Right of a School to Appeal the Education Department’s Calculation of its Loan Default Rate Jeffrey Swanson PUBLISHED BY THE NATIONAL ASSOCIATION OF COLLEGE AND UNIVERSITY ATTORNEYS AND THE NOTRE DAME LAW SCHOOL VOLUME 21 SUMMER 1994 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. 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-half of NACUA member institutions are private, nonprofit institutions of higher education with enrollments below 5,000 students and current fund expenditures below $50 million per year. Collectively, these institutions enroll approximately 650,000 students. The remaining member institutions, whose budgets range up to $4 billion per year, collectively enroll more than six million students. NACUA 1994-95 Board of Directors President Members at Large Lee B. Liggett University of Houston System 1992-95 Philip Burling Boston College President-Elect Mary Ann Connell University of Mississippi Michael C. Weston Northwestern University Shelley Sanders Kehl ........ College of Aeronautics and Manhattan College First Vice President Jean S. Sagan University of Alaska Statewide System Paul J. Ward Arizona University System Raymond W. Schowers Eastern New Mexico University Second Vice President S. Andrew Schaffer New York University 1993-96 AGHA: ALUMNA ....6665s0005 sccscovsens Stanford University Secretary SONI TIE ids sais scicinarcivececen’ Cornell University Sheila Trice Bell.....Northern Kentucky University Eileen K. Jennings .... Central Michigan University David R. Scott Rutgers, The State University of New Jersey Treasurer Barbara L. Shiels University of Minnesota Byron H. Higgins University of Illinois 1994-97 Immediate Past Presidents Kathleen P. Bruvold University of Cincinnati President 1993-94 Flora B. Devine Board of Regents of the David M. Donaldson Radcliffe College University System of Georgia John E. Hart University of Dayton President 1992-93 William D. Stempel Yale University Mary Elizabeth Kurz Genevieve Graffeo Stubbs Texas A&M University System Texas A&M University System Executive Director Associate Executive Director Manager of Publications Phillis M. Grier Edythe M. Whidden Linda E. Henderson 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 compe- tent and compassionate, Notre Dame Law School is relatively small. The Admissions Committee makes its decisions based on a concept of the ‘‘whole person.’’ 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 which 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 pro- fessors. Notre Dame Law School serves as the headquarters for The Jour- nal of College and University Law. The Center for Civil and Human Rights, the Institute for International Peace Studies, the National In- stitute 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 Officers of Administration Officers of Administration Presii dent P Dean F Rev. Edward A. Malloy, C.S.C., Ph.D. David T. Link Provost Associate Dean Timothy O’Meara, Ph.D. Fernand N. Dutile Executive Vice President — pst he a Rev. F. William Beauchamp, C.S.C. and Associate Vean M.Div., J.D. Roger F. Jacobs, M.A.L.S., J.D. Vice President and Associate Dean Associate Provost Walter F. Pratt, Jr. Roger A. Schmitz, Ph.D. THE JOURNAL OF COLLEGE AND UNIVERSITY LAW EDITORIAL BOARD Eileen K. Jennings, Co-Chair Central Michigan University Barbara A. Lee, Co-Chair Associate Professor and Director, Industrial Relations and Human Resources Department Rutgers, The State University of New Jersey Don R. Byrnes Martin Michaelson Vice President for Student Associate Individual Member Management Hogan & Hartson Houston Baptist University Karen A. Molitor Fernand N. Dutile Assistant Attorney General Advisory Member University of Connecticut Associate Dean and Constance Neary Professor of Law Claims Counsel Notre Dame Law School United Educators Insurance John W. Garland Risk Retention Group, Inc. Associate General Counsel Jeffrey H. Orleans University of Virginia Executive Director William P. Hoye Counsel of Ivy Group Presidents Professor of Law John H. Robinson Notre Dame Law School Professor of Law Thomas P. Hustoles Notre Dame Law School Miller, Canfield, Paddock & William D. Stempel Stone, P.L.C. wn General Counsel Northern Michigan University Western Michigan University Yale University Peter N. Swan David T. Link Assistant to the President Advisory Member, Ex Officio for Legal Affairs Dean and Professor of Law University of Oregon Notre Dame Law School THE JOURNAL OF COLLEGE AND UNIVERSITY LAW EDITORIAL STAFF Facu.ty Eprror Professor Fernand N. Dutile ASSOCIATE FACULTY EprTor ASSISTANT FACULTY EpriTor Philip Faccenda Carol Kaesebier STUDENT EpDIToR Elaine Zacharakis New York EXECUTIVE EDITOR Marc Villarreal Texas ASSISTANT EXECUTIVE Eprror/RESEARCH Eprror Kenneth Paradis Maine LEAD ARTICLES EDITOR LeaD Notes Epiror Donald Lohman Alexander Papandreou Illinois GREECE ARTICLE EDITors Nore Eprrors Deirdre Dunphy Jim Carrig New York California Edward Lyons Laura Couchman California California Richard McCaulley George Fish Connecticut Michigan Catherine Quinlan Suzanne Gau Florida Missouri Pete Smith Carin Stoddard Ohio Michigan Book Review Eprror Patrick Nagle Illinois SECOND-Y EAR STAFF Erin Burke Catherine Pieronek Pennsylvania Indiana Matthew Donohue Walter Saurack New York New York Wendy Hernandez Delores Schriner Arizona Arizona David Kennedy James Shea Kansas Connecticut Nolan Koon Jeffrey Swanson New Hamphsire New Jersey Ronald Miller Christopher Truax Washington California Mary Jo Naples William Walsh Ohio California A. Katrina Noznesky CANADA Kathleen M. Bradley Assistant to the Editors The Journal of College and University Law (ISSN 0093-8688) The Journal of College and University Law is the official publication of the National Association of College and University Attorneys (NACUA). It is published quarterly and in- dexed in Callaghan’s Law Review Digest, Contents of Current Legal Periodicals, Contents Pages in Education, Current Index to Journals in Education, Current Indu to Legal Periodicals, Current Law Index, Index to Current Periodicals Related to Law, Index to Legal Periodicals, Legaltrac, National Law Review Reporter, Shepard’s Citators, and WESTLAW. POSTMASTER: Send changes of address requests to The Journal of College and Univer- sity Law in care of Rothman & Company, 10368 W. Centennial Road, Littleton, CO, 80123. Second Class postage paid at Washington, D.C., and at additional mailing offices. Copyright © 1994 by National Association of College & University Attorneys Che0s 2 Lite Ue. 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 nonprofit 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 in- stitutions, 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 3,600. In addition to scholarly articles on current topics, the Journal of College and University Law regularly publishes case comments, scholarly com- mentary, 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 Fernand N. Dutile, Faculty Editor, The Journal of College and University Law, Notre Dame Law School, Notre Dame, IN 46556. The Journal is a refereed publication. The views expressed herein are to be attributed to their authors and not to this publication, the National Association of College and University Attorneys or the Notre 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. FOREWORD A Farewell Message from Your Faculty Editor At the meeting of the Editorial Board held in San Francisco during the summer of 1993, I announced my resignation as Faculty Editor, effective Summer 1994; accordingly, this issue of the The Journal of College and University Law will be the last with my name atop the masthead. I leave the Journal with decidedly mixed emotions. I have now served as Faculty Editor for eight years. I have enjoyed it immensely. The position allowed me to bear close witness to developing issues in the law of higher education; introduced me to, and kept me in contact with, the lawyers and scholars involved in that development, many of whom I now count as friends; enabled me to work closely with hun- dreds of students as they grappled with their first published work; and provided a forum for several of my own publications. But the time to move on has come. The Faculty Editorship is a consuming post; even as one issue comes off the press, two more loom demandingly. Lately, as I have taken on more administrative respon- sibilities in the Law School and developed plans for a variety of new scholarly endeavors, the desirability of a change in Faculty Editors became clear. Moreover, new blood almost inevitably brings new ideas and new energy to any enterprise. Just as the last eight years built upon the solid foundation laid by former editors such as William Kaplin and Laura Rothstein, I am confident that the next era of the Journal’s life will see a further enhancement of quality, service and innovation. The last eight years, I daresay, have been good for the Journal and, therefore, for all who take interest in it. During that period, the Journal published pieces reflecting a wide range of perspectives, thus honoring its commitment to serve as a scholarly publication. The Journal during these eight years featured a long list of distinguished authors, includ- ing—to name but a few—Arthur M. Schlesinger, Jr., William J. Bennett, Walter P. Metzger, Robert F. Drinan, Derek Bok, John T. Noonan, Jr., Michael Olivas, Abner Mikva, Douglas Laycock, and Robert O’Neil. This period saw the introduction of the ‘‘Commentary,’’ which pro- vided an outlet for the piece not meeting the usual law-review format. Our Commentaries afforded authors a vehicle for briefer, often more opinionated messages and gave our audience, I submit, a livelier mag- azine. Your Faculty Editor, immediately upon assuming the position, un- dertook the authorship of an annual look at ‘‘Higher Education and the Courts.’’ These extensive (endless, some would say!) articles supplied a relatively efficient access to the previous year’s judicial developments regarding the law of higher education. Other developments, as well, attended this period. The pool of articles submitted for publication increased dramatically. The number of sub- scriptions continued to rise. More student pieces found their way into the Journal. The annual Index was made more thorough and otherwise more useful. The Journal during all of this managed to maintain an impressive record for timely publication. If the Journal has prospered over the last eight years, many people deserve credit. Let me thank first Kathy Bradley, the Assistant to the Editors. In that role, she served as our administrative assistant, as our liaison between student staff and the Faculty Editor, as our represen- tative to the printer, and as our secretary; her devotion to the Journal was remarkable. I thank too the eight Student Editors, who provided leadership, organization, and hard work; the Journal’s timeliness and quality stemmed largely from their ability to stimulate the performance of other staff members or, all too often, to fill the gap when that performance was not forthcoming. Of course, I am deeply grateful to our fine authors and to the many people, almost all of them affiliated with NACUA, who graciously served as ‘‘referees’’ in evaluating manuscripts submitted to the Journal. Finally, a special thanks to Barbara Gard, her late husband George, and the others at Western Newspaper Publishing who cooperated mightily in meeting deadlines and producing a handsome journal of quality. Finally, I am pleased to announce that at its annual meeting in Florida this summer, the Editorial Board decided that the Notre Dame Law School will continue to serve as the headquarters for the Journal. The Board also approved the appointments of John H. Robinson and William P. Hoye of the Notre Dame Law School Faculty as joint Faculty Editors. I extend my best wishes to my successors, and pledge my total coop- eration toward a smooth transition. May they find in that post the same personal and professional fulfillment I did. Fernand N. Dutile Faculty Editor THE JOURNAL OF COLLEGE AND UNIVERSITY LAW Volume 21 Summer 1994 Number 1 ARTICLES Freedom for the Thought That We Hate: A Policy Analysis of Student Speech Regulation at America’s Twenty Largest Public Universities Richard Kirk Page Kay Hartwell Hunnicutt This Article first identifies the types of speech that can legally be regulated on campuses, and those types that must remain protected. Next, the methods currently used by large public universities to regulate hostile or harassing speech on their campuses are analyzed. A survey of the twenty largest public universities revealed that only half of the institutions included in the study have policies that address hostile or harassing speech or conduct, indicating a trend away from regulation. Additionally, eight of the ten university regulations that have been established and that were analyzed here may, in some way, violate relevant constitutional principles regarding the regulation of student speech on university campuses. In general, the survey participants feel that ‘‘hate speech’’ codes violate the First Amendment and consequently invite litiga- tion. Due Process in the Accreditation Context Michael W. Prairie Lori A. Chamberlain The accreditation of colleges and universities is almost ex- clusively the responsibility of private accrediting agencies. For . all practical purposes, accreditation by a nationally-recognized accrediting agency is required to establish an institution’s eligibility to receive state and federal funds. A decision to deny or withdraw accreditation not only stigmatizes the institution in question, but also jeopardizes its continued survival. Accordingly, the public has a vital interest in ensuring that such discretionary authority is not exercised arbitrarily or capriciously, without due regard for the institution’s pro- cedural rights. Recent examples of governmental intrusion into the accreditation process have re-ignited interest in this long- standing controversy. This Article provides a detailed survey of the procedural rights afforded by the six regional accrediting agencies to educational institutions facing the denial or withdrawal of accreditation. The Article also discusses additional procedural safeguards that the authors believe should be provided to colleges and universities. These considerations lead the authors to question the accrediting agencies’ claim that they are not engaged in ‘‘state action’’ which would subject them to constitutional due process requirements. The authors conclude that these re- quirements would not have to burden administrative agencies with inappropriate procedures: non-technical administrative law procedures could be readily adapted to this context. ‘*Educating’’ Lawyers about the Implications of Cost Accounting Standards for Government Contracts and Grants with Educa- tional Institutions Thomas A. Lemmer Paul E. Pompeo This Article provides a comprehensive discussion of the Cost Accounting Standards that will apply to educational institu- tions that contract with or receive grants from the federal government. First, the history of the Cost Accounting Stan- dards and the Cost Accounting Standards Board is discussed. Next, the Standards proposed for educational institutions and the implementing regulations are analyzed. Importantly, the authors consider the impact that the Standards and regulations will have on educational institutions. Moreover, this Article discusses issues involving administration of the Cost Account- ing Standards and provides recommendations in this regard for attorneys associated with education institutions. STUDENT NOTE Atlanta College of Medical & Dental Careers, Inc. v. Riley: The Right of a School to Appeal the Education Department’s Calculation of its Loan Default Rate Jeffrey Swanson 141