Who's Afraid Of a Backlash?

In November, U.S. bishops will meet to discuss how they will work with Catholic universities to comply with Pope John Paul II's apostolic constitution on Catholic higher education, Ex Corde Ecclesiae. Here the Register begins a two-part study on the implications of the document within the American legal system. The author is a professor of law at the University of Notre Dame, where he specializes in the constitutional law of church and state. He is chair-elect of the Religious Liberties Practice Group of the Federalist Society, and is president of the Fellowship of Catholic Scholars.

Most agree that Ex Corde Ecclesiae (From the Heart of the Church), Pope John Paul II's 1990 apostolic constitution on higher education, outlines the essential features of a Catholic university. Even critics praise the document itself and seldom, if ever, explicitly dissent from its teaching. Yet, the leadership of America's Catholic colleges and universities resist the American bishops' efforts to establish it juridically — to lay out how the document will be formally implemented on campuses throughout the country.

Claims that juridical implementation of Ex Corde Ecclesiae will trigger adverse legal consequences for American Catholic colleges and universities are false or greatly exaggerated.

But before looking at the implications for Catholic colleges under American law, Ex Corde Ecclesiae must be seen within Church law. Its contents are already required by the new Code of Canon Law, approved by Pope John Paul in 1983.

Canon 812 states that “it is necessary that those who teach theological disciplines in any institute of higher studies have a mandate from the competent ecclesiastical authority,” usually understood to be the local bishop.

Another pertinent canon is 810, which calls for the “appointment of teachers ... who besides their scientific and pedagogical suitability are also outstanding for their integrity of doctrine and probity of life.”

America's bishops and Catholic college officials have yet to devise the ways and means of implementing these canons. And, even if Ex Corde Ecclesiae were to vanish into thin air, that work would remain.

Pitting the Constitution Against the Canons

While Ex Corde Ecclesiae, with its larger pastoral and intellectual vision, seems like the appropriate place to work from, some hold that conforming to the underlying canons will inadvertently impede progress toward full realization of John Paul's ideals for Catholic higher education.

This theory holds that, if colleges are obliged to take a stand, many will “opt out” and choose the secular path. It would be better, they say, to go slow, accept the spirit of Ex Corde Ecclesiae and let the colleges adjust to the canons at their own pace. But is this not implicitly to concede that, at present, these colleges are not Catholic?

Exaggerated Financial Fears

The most prominent fear among critics involves government financial aid programs.

Very few institutions of higher learning could attract enough students to maintain viability without access to the financial aid that is provided or insured by government. Approximately 93% of all federal aid to higher education has been in the form of aid to students. Probably a large majority of students at most colleges receive such aid, or money from similar state programs, or both.

The doomsday scenario, according to critics of juridical implementation, is that courts might consider colleges which faithfully implement Ex Corde Ecclesiae to be “pervasively sectarian,” the most extreme characterization of a religious school under our law, and one that has only been applied to primary and secondary schools.

In these critics' view, juridical implementation runs a risk of putting colleges in that category. But even if Catholic colleges did fall into that category — an almost impossible scenario — there would still be no impact upon this vital type of financial aid.

The category into which Catholic colleges currently fit, and will fit after full implementation of Ex Corde Ecclesiae, is “religiously affiliated,” a status that in no way threatens eligibility for student aid programs, and for all but a few types of direct financial assistance in the form of grants to schools themselves.

There may be isolated instances where Ex Corde Ecclesiae might place in doubt grant money to colleges. But the amounts involved will not be institutionally life-threatening. Losing any money is unfortunate. But any college which would resist implementation of Ex Corde Ecclesiae for this money alone simply does not care much about its Catholic character.

The Supreme Court Has Spoken

The Supreme Court has made it abundantly clear that students' eligibility for public assistance in the form of student loans has nothing to do with the character of the institutions they attend, regardless of whether they are pervasively sectarian or pervasively atheistic. The law considers the money to be a benefit to the student, not the school.

The GI bill is the classic example. Since its implementation right after World War II, the program has allowed millions of people to attend colleges which were, by any of today's measures, intensely, unequivocally sectarian, such as the Notre Dame of yester-year.

The 1986 Supreme Court case which establishes and protects programs like the GI bill is Washington v. Witters, a case that involved a student who used his federal dollars to attend Inland Empire School of the Bible, a private, Christian college in Spokane, Wash., where, in the words of the court decision, Witters “studied the Bible, ethics, speech, and church administration in order to equip himself for a career as a pastor, missionary, or youth director.”

The voucher programs now in use or under consideration in cities and states around the country have passed constitutional muster because they are effectively designed as GI bills for primary and secondary students.

Accreditation Worries

While religious affiliation is not a threat to a student's ability to receive financial aid, his college's lack of accreditation would be. A school must be accredited in order for its students to have federally guaranteed loan privileges.

The argument is made that implementing Canon 812 will result in a loss of institutional autonomy so serious that accrediting bodies will withdraw their approval. Follow Ex Corde Ecclesiae, they say, and lose accreditation — and your students. If sound, this argument would effectively eliminate the liberty under law just outlined.

But the argument is unsound. It is probably untrue that following Ex Corde Ecclesiae would threaten accreditation by the associations which currently accredit putatively Catholic colleges, the “big six” regional accrediting associations.

But what if my opinion turns out to be wrong? All that follows is the need for a specifically Catholic accrediting association — a need that, in my opinion, is already clear. And there is no legal reason why such an association could not be organized, and why it would not flourish.

All that federal law requires of a school to be able to enroll federally funded students is that the school be accredited by a body that has been formally recognized by the U.S. secretary of education.

The regulations for recognition have to do with the quality of the training offered.

Standards are minimal, and none of the 235 or so colleges in the Catholic Directory would encounter any trouble meeting them. More importantly, there are no requirements pertaining to religion.

A college's religious character does not enter into the equation under current American law and practice. The secretary of education already recognizes for accrediting purposes the Association of Bible Colleges and the Association of Advanced Rabbinical and Talmudic Schools. Already on the Secretary's list is the U.S. Catholic Conference's own Commission on Certification and Accreditation, which accredits programs in clinical pastoral education.

There is no legal or significant practical obstacle to setting up an accrediting body to accredit colleges which juridically implement Ex Corde Ecclesiae, and to having that body recognized by the secretary of education.

Gerard V. Bradley writes from South Bend, Indiana.