National Catholic Register


Eleventh Hour Plea: Read the Text

Catholic University of America's President Says Ex Corde Has Waited Long Enough

BY David O'Connell

November 14-20, 1999 Issue | Posted 11/14/99 at 2:00 PM


WASHINGTON—The Nov. 15-18 meeting of U.S. bishops promises to be a history-making event in the story of Catholic higher education. At that meeting, America's bishops will vote whether or not to approve a recently drafted plan for implementing Pope John Paul II's apostolic constitution for higher education.

By implementing the constitution, called Ex Corde Ecclesiae (From the Heart of the Church), bishops would set into motion the strengthening of the Catholic identity of Church-related universities in the United States.

But implementation has been slowed by the apprehensions of college presidents and bishops alike, who fear turning away benefactors, alienating professors and compromising learning.

Marianist Father James Heft, chancellor of the University of Dayton, represents colleges in the discussion as chairman of the Association of Catholic Colleges and Universities. In a Jan. 26 USA Today article, Father Heft is quoted opposing the bishops and suggesting that they are trying to “run schools.” Throughout the year, he has pursued plans to set up a $50 million Catholic studies “research center” outside the jurisdiction of bishops.

Now, he has sent an open letter to the bishops, signed by himself and five colleagues at Dayton and printed in the Nov. 6 edition of Commonweal magazine. In it, he asks the bishops to hold off on implementation in order to give administrators, professors and board members more time to collaborate on a draft proposal.

But Catholic University President Father David O'Connell says the bishops have waited long enough to implement Ex Corde, which came out in 1990. In an interview with Register reporter Brian McGuire, Father O'Connell argued that Ex Corde's opponents have nothing to fear.

McGuire: Do Catholic universities stand to lose the prestige they have in the academic community if Ex Corde Ecclesiae is implemented according to the desires of the Holy See?

Father O'Connell: I do not consider prestige an important deciding factor with respect to the acceptance of the norms proposed by the bishops for the implementation of Ex Corde Ecclesiae. The concern for prestige might be translated in this way: “Should we do the right thing if others will think less of us?”

I believe deeply in the vision expressed in Ex Corde Ecclesiae. I also believe in the importance of a structured implementation or application of that vision. To me, the important concern is not prestige, but rather, credibility. I would express the concern this way: “Will the application of Ex Corde Ecclesiae support our credibility as institutions of higher learning in the United States?”

I believe the answer is yes.

The application will help us better articulate what we are, our mission. It will help us to demonstrate our integrity as Catholic institutions — accountability for our mission. It will help reveal the unique contributions that Catholic institutions make within the American higher education community — the difference that our mission makes. The proposed text of the application emphasizes the unique character of Catholic institutions while, at the same time, affirming distinctively American academic strengths — institutional autonomy, academic freedom and so forth.

If you asked me, as a president, to chose between prestige and credibility, credibility would be my choice without hesitation. And how can our institutions be credible to anyone else, if we do not believe in them and their values and strengths ourselves?

Another contested issue is the hiring of Catholic faculty. How can institutions hire a majority of Catholics, along the lines Ex Corde suggests? Isn't it illegal to show preference in hiring?

The application is very careful on this point. It begins (Part II, Article 4.4.a) by establishing respect for internal institutional procedures and recognizing the role of “applicable federal and state law, regulations and procedures.” It then expresses an exhortation that universities “should strive to recruit and appoint Catholics” so that “as much as possible” they will “constitute a majority of the faculty.”

The text then immediately recognizes the presence of non-Catholic faculty, encouraging them to be “aware and respectful of the Catholic faith tradition.” Many attorneys and legal scholars well skilled in American employment law argue that our legal system does provide ample room for the approach to hiring advocated in Ex Corde Ecclesiae, the norms of application and canon law as long as that approach is intelligent, clear, known to applicants beforehand and responsive to a demonstrated need established by the institution itself — “mission-based” hiring if you will.

Academic administrators have been led to believe that such an approach is neither legal nor possible. Many lawyers have gone on record saying that such an opinion is just not accurate. Will there be attempts to challenge this approach? Of course. The important thing, however, is to ensure that there is no basis for a challenge. Establish procedures and follow them.

What would you say to college presidents who are uneasy about the particulars of Ex Corde Ecclesiae's implementation? How would you reassure them that the process would not be deleterious?

My advice to academic administrators who are uneasy about the particulars of the proposed norms for application of Ex Corde Ecclesiae is simple, clear and direct: Stop reading “about” the text and “read the text” itself. Sit down with a reputable canonist and civil attorney and read the text. Try to understand the values behind its provisions. Approach the text with the question, “How can we make this work at our institution?” rather than, “Why won't this work at our institution?” Consider the ways that the institution already fulfills the provisions of the proposed norms and acknowledge them publicly. Identify areas that need to be strengthened and enter into discussion with the local bishop and with the members of the institutional community.

Won't Canons 810 and 812 have to be enforced, regardless of the outcome of the implementation process?

Canons 810 and 812 have been part of the Church's universal law since 1983. When they first appeared in the revised Code of Canon Law, many Catholic universities and colleges in the United States questioned whether they were even “bound” by canon law as institutions since they were not established as legal or “juridic persons,” that is, institutional subjects of obligations and rights in canon law. To my knowledge, little effort, if any, was made in this country to enforce these canons.

The text of Ex Corde Ecclesiae, however, was an attempt to resolve that question by including the provisions contained within these canons in its own requirements and declaring that “they are valid for all Catholic Universities and other Catholic Institutes of Higher Studies throughout the world” without particular reference made to the concept of juridic personality. If the bishops do not approve the proposed United States application, the text and general norms of Ex Corde Ecclesiae are still in force and do apply since these canons are included in Ex Corde Ecclesiae and its general norms. It will then be up to the individual bishops within their dioceses to enforce the substance of the canons as presented in the text of Ex Corde Ecclesiae, “valid” throughout the world.

Why have we come to this pass? What lobbying efforts have been at play in this debate?

There has been a tremendous effort on the part of university and college presidents and others, including some bishops, to lobby the body of bishops not to approve the proposed draft of norms, “An Application to the United States” as it is called. While it seems that this effort reflects a majority opinion, there are significant voices of opposition in those same groups to this resistance. In April of this year, a small group of legal scholars gathered at the University of Notre Dame to raise their voices. Here at The Catholic University of America in Washington in September, another larger invited gathering presented similar reflections, this time including theological, canonical, legal and practical support for the proposed “application.”

When the texts of these presentations were published and circulated to the United States bishops and others, the leadership of the Association of Catholic Colleges and Universities immediately published a letter charging that these presentations “bypass or gloss over some very significant difficulties” and reflect opinions “not shared by many presidents and lawyers.” While the substance of the presentations might not be “shared” by some, even “many, many presidents,” they nevertheless attempt to engage the alleged “significant difficulties” in a forthright and scholarly manner.

When the Code of Canon Law was being drafted and eventually promulgated in 1983, the canons on higher education were highly criticized.

When Ex Corde Ecclesiae was being drafted and eventually promulgated in 1990, the same criticisms were voiced. Throughout the drafting process regarding the norms for implementation in the United States, the same criticisms were voiced up to this very moment. Those criticisms, in my opinion, were vague and hypothetical and remain so. There were some very serious presumptions made that generated some very strong argumentation and fear. And now the lobbying effort is to delay, once again, on the basis of those same criticisms, for the sake of “continuing the dialogue.” Dialogue, without structure, is rambling.

And while the dialogue will continue, even if the bishops approve the norms in November, I believe that the dialogue will benefit from the structure provided by the Bishops' current draft. Both the Church and the academy will need to proceed carefully, respectfully, intelligently. The norms provide for that approach in the very text itself. And they also call for a five-and 10-year review. I believe that such structured dialogue will advance the enterprise of Catholic higher education as even those opposed to the norms admit that the vision of Ex Corde Ecclesiae has advanced the discussion of our reason for being — from, in and for the heart of the Church in these past nine years.