A National Conference of Catholic Bishops' (NCCB) subcommittee chaired by Cardinal Anthony Bevilacqua of Philadelphia is currently developing an implementation plan for Ex Corde Ecclesiae, Pope John Paul II's 1990 apostolic constitution on Catholic universities.

Last week, in part two of the Register's three-part series, Kenneth Whitehead, former U.S. assistant secretary of education for higher education, addressed the first four of the eight principal objections raised by critics regarding the application of canon 812 as called for in Ex Corde Ecclesiae. Canon 812 requires that theology professors in Catholic institutions of higher education have a mandate to teach from a competent ecclesiastical authority. The remaining objections are examined below.

Objection 5: The canon contains no provision for the customary procedures in case of removal of professors.

This objection can quickly and easily be disposed of simply by the establishment of such procedures by the NCCB. The canon itself does not need to contain any such procedural measures. The NCCB's Application document refers to a conflict resolution procedure issued by the NCCB in 1989, for example, which presumably could still be used, although the Holy See was somewhat critical of this document when it was issued as tending to put theologians on the same level as bishops. However, the conditions under which a professor might be removed can easily be described in advance in the professor's contract.

Objection 6: It may cause an administrative burden for some bishops.

This objection seems to assume that some bishops would be incessantly engaged in removing theologians from universities. What this assumption implies about the present state of some Catholic theological faculties might better be left unstated. There would be no undue administrative burden for any bishop, however, if the NCCB simply followed Ex Corde Ecclesiae and made the university itself primarily responsible for maintaining its own Catholic character. The role of the bishops, precisely, should be one of oversight only. Ex Corde Ecclesiae plainly states in this connection: “The responsibility for maintaining and strengthening the Catholic identity of the university rests primarily with the university itself” (II, 4 ? 1), and this presumably includes the theology department.

What this means is that the university itself would have to see to it that only Catholic theologians loyal to the Magisterium of the Church and prepared to sign a contract including a statement to this effect were hired in the first place. Among the other benefits that would accrue with the implementation of this principle would be the elimination of the hated “outside interference” of the bishop. This is the way Catholic universities used to operate. In fact, they could be depended upon to uphold and insure their own Catholic character. It is what the handful of today's new or restored “orthodox” Catholic colleges still do; they insist on their own authentic Catholic identity. Regardless of what the Association of Catholic Colleges and Universities (ACCU) or the Association of Jesuit Colleges and Universities (AJCU) might think, the bishop does not have to interfere.

No doubt one of the principal reasons why canon 812 was added to the 1985 Code of Canon Law, however, is that this self-disciplinary type of situation no longer applies on many Catholic campuses; today bishops may have to step in and exercise appropriate oversight if the Catholic character of certain institutions is ever going to be maintained, restored, or perpetuated.

Objection 7: The purpose that the law seeks is presently being accomplished within the academic institutions by the judgment of peers and by conscientious administrators.

This is exactly what is not happening on the majority of Catholic campuses. How many cases have there been in the United States, over the last 30 years, where a dissenting theologian has been either publicly corrected or removed from a college or university faculty, either because of another theologian's peer-review criticisms, or by administrative action?

The contrary situation is surely closer to the actual case. Peer review essentially went out when dissent came in. As a matter of fact, whatever disagreements one theologian might have with another's theology became subordinated to the perceived need to defend that theologian's “right to dissent.” Even non-dissenters typically defend this as a right of those who do dissent; or, more often, they simply remain silent. Who wants to bear the onus of being perceived as opposed to “academic freedom”? Hardly anyone dares any longer to state what is too often the case today, namely, that some “Catholic” theologians are quite patently no longer Catholic in any sense formerly conveyed by that particular word.

Karl Rahner once dared to say this aloud about Hans Kung, but hardly anybody else has ever said anything like it in public since. Father Charles Curran was actually accompanied to Rome for his personal interview with Cardinal Joseph Ratzinger by the then dean of Catholic University's School of Religion, who wanted to lend his moral support and that of the institution to the embattled theologian being “persecuted” by Rome.

Father Curran, it will be recalled, also regularly got resolutions passed by huge majorities in his favor by theological societies, faculty senates, and the like during the long, tiresome process that his disciplining required (because his dignity was in fact respected by the Church and due process was observed at every turn, and then some).

As a matter of indisputable fact, then, the purpose which canon 812 seeks to achieve is not being accomplished by peer review or by conscientious university administrators today.

Objection 8: The canon is superfluous because adequate provision is already made in canon 810.

This is a wholly legalistic objection. In the first place, canon 810 would have to be implemented for this objection to make sense. But canon 810 has no more been implemented in this country than canon 812 has, and those who oppose the implementation of the latter probably would oppose even more strongly the implementation of the former. Since canon 810 has not been in the forefront of the Church-university discussions the way canon 812 has, it has been left to one side.

However, canon 810 deals with the appointment of university teachers generally (not just theology professors), and it requires, in addition to professional competence in one's field, not only “integrity of doctrine” but “probity of life” as well, and it further provides that university faculty members lacking in these qualities should be “removed from positions in accord with the procedure set forth in the statutes” (it assumes “due process,” in other words). This canon further says that bishops and conferences of bishops have “the duty and right of being vigilant” over all these things on Catholic campuses.

In other words, canon 810 provides for episcopal oversight, not just over the teaching of theology, but over every important aspect of the institution related to its authentic Catholic character. No wonder the Land O'Lakes Catholic colleges and universities wanted the U.S. bishops to get an indult from the implementation in the United States of the canons regarding universities in the new Code of Canon Law. If canon 812 is considered intolerable, canon 810 can only be considered even more intolerable.

Such are objections commonly raised against the implementation in the United States of canon 812 of the 1983 Code of Canon Law that are found in the current standard Commentary on the Code produced by the Canon Law Society of America.

In spite of these objections, it is to be hoped that the NCCB's subcommittee will nevertheless be able to come up with an Ex Corde Ecclesiae implementation plan which most higher education institutions bearing the name “Catholic” will be able to comply with. Certainly, on the evidence of what has been reviewed here, the objections to the implementation of canon 812 cannot be considered insuperable obstacles to the integral implementation of Ex Corde Ecclesiae in the United States.

Kenneth D. Whitehead, a former U.S. assistant secretary of education for higher education, is the author, among other books, of Catholic Colleges and Federal Funding (Ignatius Press, 1988).