Powerful Legal Microscope Finds No Identity Problem

The Journal of College and University Law, an education law review, devoted its Spring 1999 issue to a symposium on Pope John Paul II's apostolic constitution on the Catholic University, Ex Corde Ecclesiae (From the Heart of the Church). In the wake of the publication, it is hard to see how the current Catholic identity debate in the United States can ever be the same again.

In the journal, eight law professors and one theologian examine the ramifications — legal, historical, political and religious — of implementing Ex Corde in the United States.

As stated in the issue's introduction by Notre Dame law professor John H. Robinson, one of the journal's faculty editors: “None of our authors believes that the implementation of Ex Corde Ecclesiae along lines roughly congruent with those sketched in the bishops’ current draft norms would produce a legal crisis for the affected institutions, and most of our authors seem to think that requiring Catholic colleges to be meaningfully accountable to the Church's hierarchy is a good idea.

It adds, “For some of them, in fact, accountability of that sort appears to be necessary to the continued existence of these institutions as genuinely Catholic …”

At any rate, “[N]one expects the sky to fall if norms like the current draft norms are finally adopted; none, that is to say, expects governmental funding to be terminated, accreditation to be endangered, or Title VII-based litigation to be the inevitable consequences to the adoption of norms of that sort.”

This is not to say that all the thinkers come down on the side of the Pope and the bishops. Nor is there unanimous opposition to the position, held many of today's Catholic college presidents and advanced by the Association of Catholic Colleges and Universities (ACCU), that a university in the true sense must necessarily be wholly independent of any sponsoring church.

On the contrary, as Prof. Robinson points out, some of the authors here continue to “have grave doubts about the wisdom of requiring universities to be accountable to the local bishop, and even greater doubts about requiring Catholic theologians to have a mandate from the local bishop.”

Nevertheless, the overall conclusion of the symposium as a whole, buttressed by massive, detailed references to the applicable civil laws, regulations and court cases related to higher education, very strongly favors the view that religiously affiliated higher education institutions may — and, in many cases, should have — “juridical” links to their sponsoring religious bodies, and on terms that may be specified by the latter. This, of course, is exactly what the Holy See, echoed by the U.S. bishops, has been contending all along in the course of the protracted debate on Catholic universities.

This conclusion, coming as it does from credible observers with no vested interest in supporting either side of the debate, is very significant indeed. For more than 30 years, most Catholic college and university presidents grouped within the Association of Catholic Colleges and Universities have consistently argued for complete institutional autonomy. They have interpreted the term “academic freedom” to mean independence from any kind of Church oversight of their campuses. Unilateral decisions have been made and advanced over just what it means for a college to call itself “Catholic” and, on campus after Catholic campus, the Church has been accorded no say in the matter whatsoever.

The presidents declared their virtual independence from the Church with their Land O'Lakes statement in 1967 and, since then, have regularly told the Holy See and the bishops that, without this independence, they would jeopardize their accreditation and their government funding, open themselves to possibly ruinous lawsuits on discrimination grounds, and, worst of all, forfeit all secular respect as bona fide American higher education institutions.

In the face of such contentions, the American bishops have, over the years, stopped short of imposing any actual norms in accordance with what canon law and Ex Corde Ecclesiae require. It has been the pope and the Congregation for Catholic Education in Rome that have continued to push for greater Church involvement in academia. Only after many years of rather fruitless “dialogue” with the Catholic college presidents are the American bishops now finally, perhaps, on the verge of enacting some obligatory norms which schools wishing to go on calling themselves Catholic will presumably have to accept.

Making a List

Among the symposium's highlights:

Holy Cross Father James T. Burtchaell, the lone theologian contributing to the symposium, was provost of the University of Notre Dame and, more recently, has published the widely praised book The Dying of the Light: The Disengagement of Colleges and Universities from Their Christian Churches (Eerdmans, 1998). In the journal, under the title “Out of the Heartburn of the Church,” he treats the overall historical and political context of Ex Corde Ecclesiae. Father Burtchaell's list of the “external authorities” to which all American universities regularly and unquestionably submit — in spite of the current shibboleths of “institutional autonomy” and “academic freedom” — is priceless:

“The first outside authority to which she regularly defers is the federal government, incarnate in the departments of State, Justice, Education, Agriculture, Commerce, Defense, Energy, Health and Human Services, Labor, and Veterans Affairs; also the Equal Opportunity Commission, the Environmental Protection Agency, the Library of Congress, the U.S. Patent Office, the National Science Foundation, the National Endowments for the Humanities and for the Arts, the National Institutes for health and the Immigration and Naturalization Service.

“Washington forbids her to ask the race of applicants, but requires her to report the racial breakdown of her personnel and students; makes it worth her while to include in every employment notice the assurance that she is an equal opportunity employer; forbids her to save the trees on her campus by spraying DDT; determines and inspects the housing for her laboratory animals (which therefore cost roughly twice a much per square foot as faculty office space); requires protection of all human subjects of any funded research, subject to elaborate guidelines and reporting; requires a minimum number of credit hours to be taken by students receiving tuition grants or guaranteed loans; and regulates the emissions from the power plant …”

The Brigham Young Precedent

Two law professors at Brigham Young University, James D. Gordon III and W. Cole Durham, Jr., in an article entitled “Toward Diverse Diversity: The Legal Legitimacy of Ex Corde Ecclesiae,” describe their own Mormon-sponsored university as a fully accredited American institution which nevertheless maintains closer ties to its sponsoring church than any of those contemplated by Ex Corde Ecclesiae. These two authors also review current religious exemptions to laws governing employment discrimination, as well as contract issues and questions of academic freedom.

University of San Francisco Law School Prof. William W. Bassett contributes a piece entitled “The American Civil Corporation, the ‘Incorporation Movement,’ and the Canon Law of the Catholic Church.” Bassett establishes that American Catholic colleges and universities generally remain “Catholic” in spite of the general movement from the 1960s on to secularize, acquire lay boards, separate themselves from their founding religious orders, and so on. He concludes that Ex Corde Ecclesiae applies to these institutions today (although he questions whether it is prudent to subject Catholic institutions to episcopal oversight at this time).

Schools Must Make a Choice

The Dean of the Duquesne University School of Law in Pittsburgh, Nicholas P. Cafardi, in a very pertinent article entitled “Giving Legal Life to Ex Corde Ecclesiae Norms: Corporate Strategies and practical Difficulties,” explains that the implementation of the apostolic constitution essentially hinges on the willingness of sponsoring religious orders, boards of directors or trustees to accept the papal requirements as applying to their institutions. Contrary to allegations that the bishops are trying to “control” the universities, the fact is that they possess no independent power to implement the Church's norms within these institutions; the schools have to agree that they want to be Catholic on the Church's terms. Dean Cafardi sees no essential difficulties arising out of their acceptance of the Church's terms coming from any state or federal laws or accrediting association requirements and the like.

The ‘Mandate’

There is still, of course, the much-discussed question of the “mandate from competent ecclesiastical authority” required by Canon 812 of the Code of Canon Law; every academic theologian is supposed to have this mandate, and many of them are accordingly crying foul over it.

The mandate question is thoroughly and competently covered in “What We Have Here Is a Failure to Communicate: The Mind of the Legislator in Ex Corde Ecclesiae” by Dominican Father D.R. Whitt, who teaches at the Notre Dame Law School, and who addresses the issue of theology generally in the life of the Catholic university. He concludes that the controversial “mandate” need not be problematical for American higher education institutions.

The major court cases which have been regularly cited as obstacles to the implementation of Ex Corde Ecclesiae lest colleges jeopardize some of their government funding are exhaustively covered by Valparaiso University School of Law Professor Edward M. Gaffney, Jr., in an article titled “Tale of Two Cities: Canon Law and Constitutional Law at the Crossroads.” He concludes that the threat of government funding cutoffs is really quite remote, and, meanwhile, the tax-exempt status of religiously affiliated colleges also remains safe.

All in all, this is a learned and authoritative symposium essentially buttressing Ex Corde Ecclesiae. It ought to settle most of the outstanding questions on the apostolic constitution (although, sadly, experience suggests that it probably will not).

To get a copy, write:

William P. Hoye, Faculty Editor, The Journal of College and University Law, General Counsel Office, 107 Hurley Building, Notre Dame, IN 46556.

Kenneth D. Whitehead, a former U.S. Assistant Secretary of Education, authored Of Catholic Colleges and Federal Funding (Ignatius, 1988).