Soon after the U.S. Catholic bishops passed the revised version of the Application of Ex Corde Ecclesiae on Nov. 17, 1999, several newspapers, including The New York Times, phoned me for a reaction. In each instance, the reporter asked if I intended to request a mandate from the local bishop. I indicated that I would not, "as a matter of principle, because it compromises the academic integrity of the faculty and the university" (N.Y.T., 11/18/99). My stated intention has no connection whatever to the current bishop of the diocese in which the University of Notre Dame is located. It is not a matter of personality and certainly not defiance, but of principle.
How would the mandate compromise the academic integrity of the faculty and the university? By introducing an external, non-academic agent in the internal, academic processes governing not only the appointment, retention and promotion of faculty, but in the designation of which courses faculty members may or may not teach and in which departments. Only the academic administration of a university and college, and the chair and faculty of a department are competent to determine those matters. Otherwise, there is no academic freedom and no institutional autonomy (the two hallmarks of a university, cited approvingly and consistently by leading Catholic educators ever since the celebrated Land O'Lakes Statement of 1967). The Catholic institution in question would no longer be a university in the commonly accepted academic meaning of the word.
But it is still unclear to everyone, including the bishops themselves, how the mandate will be implemented. It will take at least a year (perhaps more) for a plan to be adopted, and then another full year before it goes into effect. This means that there is ample time for practical heads to intervene and to bring some rational order out of the current confusion. To the extent that dialogue will take place, however, it will have to involve theologians as well as university presidents. Until now, the dialogue has been limited to bishops and presidents, and they have generally gotten along well. But as a few bishops pointed out in Washington, the theologians have been left completely out of the loop. Not only should theologians be involved, they should be selected by the officers and board of directors of the Catholic Theological Society of America, in consultation with the president-members of the implementation committee, but certainly not by the bishops; nor should the bishops have the power of veto over those selected by the C.T.S.A., notwithstanding the unfairly low esteem in which this organization is held in certain episcopal circles.
It is difficult, from this vantage point at least, to see how any procedure can be more than voluntary in character. A few bishops and their militant, pro-bono legal counsels may be itching to pick fights in courts of civil law, but no prudent bishop, president or theologian would want to see that occur. Catholic higher education in this country is already suffering enough from all the charges, leveled without persuasive evidence, about the alleged erosion of Catholic character in our Catholic colleges and universities. (Jesuit schools, for some reason, come in for special condemnation, even though they are not only the most numerous, but also generally the best--and I say this as a non-Jesuit!) We do not need a public bloodbath born of mutual recrimination that can only hurt the church and all parties involved, not least of which are our students. Anyone who has actually been involved in a lawsuit, on whatever side and in whatever capacity, can only cringe whenever someone blurts, "You ought to sue them!" or: "Let them sue us!"
If, in fact, the implementation plan that is eventually adopted has no real legal teeth, it will be left to each individual Catholic faculty member in departments of theology or religious studies to decide whether even to request a mandate. Several of the bishops who spoke in favor of the Application at the November meeting were quick to assure the presidents and faculty of Catholic institutions that they have no desire, intention or interest in interfering in their internal academic life. They do not want to become involved in decisions affecting the hiring, firing or promoting of individual faculty members. If a mandate is denied, withdrawn or simply not sought, we were told that the bishops would leave it up to the universities to take whatever action they deem appropriate.
There has been one significant case in point. After a prolonged investigation, the Vatican's Congregation for the Doctrine of the Faith concluded in 1986 that the Rev. Charles Curran was "neither suitable nor eligible" to be a professor of Catholic theology at The Catholic University of America, and it asked Cardinal James Hickey, archbishop of Washington and chancellor of the university, to take appropriate action. The university's board of trustees subsequently accepted the C.D.F.'s declaration as binding on the university, and Father Curran's canonical mandate was withdrawn.
Could this happen at other Catholic universities? No. C.U.A. is unique in its relationship to the Holy See and in the composition of its board of trustees. It is a pontifical university and almost half of its trustees are cardinals and bishops. To be legally effective the requirements of the mandate would have to be put into the bylaws of each non-pontifical institution. Independent, lay-dominated boards of trustees are not likely to do this, and some bishops have said publicly that they were not asking for this. Without doubt the academic reputation of C.U.A. has suffered because of the Curran case. The American Association of University Professors censured the university for its actions. Leaders of other Catholic institutions do not want a similar cloud over their heads.
Short of terminating the faculty member, what options are open to a university if one of its theologians chooses not to seek a mandate, is denied a mandate or has the mandate withdrawn? It might try to move the theologian to another department, as C.U.A. attempted at one point with Father Curran (the department of sociology was the proposed destination). Or it might refuse to allow the theologian to teach particular courses in the theology department. Or, finally, it might deny the theologian the right to teach any courses in any department, while continuing to pay salary and benefits. None of these possibilities is likely to materialize. No department wants to be a dumping-ground for academic cast-offs from other departments (or from the administration, for that matter), even if it does not lose a faculty line in the process. And chairs of theology departments already have enough trouble staffing courses. They can ill afford to lose the services of theologians who choose not to seek a mandate. Their number, after all, may prove to be large.
And what about Catholic faculty members in other departments of a university? Why are the mandates limited to theologians? If there is an erosion of Catholic identity in our universities today, it is more likely to occur outside of departments of theology, not inside. In my experience of some 30 years as a faculty member at two major Catholic universities, Notre Dame and Boston College, I have seen an occasional lack of seriousness concerning Catholic character in some sectors of these institutions, but not in the theology departments. Nowhere is the challenge of defining and maintaining Catholic character taken with greater seriousness and made the object of greater corporate commitment than in these very departments. By focusing only on Catholic theologians while leaving Catholic vice presidents, deans, directors, chemists, economists, biologists, philosophers, mathematicians, engineers, lawyers and accountants completely off the hook, we may be revealing that our vision on this sensitive matter is of tunnel quality. If we are really concerned about the Catholic character of our Catholic universities, we should be concerned about the whole faculty and the whole administration, not just the theology department, the president and the board of trustees. Is it asking too much that the drive to insure Catholicity be itself catholic in scope?
The more one teases out the potential consequences of the recent vote in Washington, the messier and the more unwieldy the task of implementation seems to become. One wishes in the end that the Vatican and the bishops had more confidence in the strength and suppleness of the Catholic tradition. I, for one, am appalled by the fact that a few outspoken bishops have swallowed the gratuitous "argument" of certain writers, some of whom are evangelical Protestants, with no experiential understanding of the Catholic sacramental, spiritual, theological and doctrinal tradition, and some of whom are Catholics with perhaps an axe to grind against their own institutions and departments, current or former. They assert that our Catholic institutions are destined to go the way of once-Protestant institutions like Harvard, Princeton and Chicago unless we introduce a mechanism of oversight and control by external, non-academic agents, namely, the bishops and the Vatican, which, based on the experience of the German universities, would have the real last word in the matter of the mandates.
Turn the "argument" inside out, and they are asking us to believe that Harvard would still be faithful to its Puritan heritage, and Princeton to its Presbyterian tradition and Chicago to its Baptist roots if only these institutions had allowed members of their respective clergy to determine who could or could not teach theology there. Imagine for a moment that this actually had happened and that these three institutions had preserved their religious heritages, just as those religious traditions were one, two or three centuries ago. What sort of institutions might they be today? In fact, such institutions did not even advert to the loss of their religious identity. By contrast, Catholic institutions have been directly addressing this matter for at least 20 years--before the issuance of Ex Corde Ecclesiae in 1990--and the discussion continues today in high gear.
Is there not a middle course between the mandates and outright indifference? There is, and it is being followed already in Catholic universities such as Notre Dame and Boston College and in so many other Catholic institutions like them. Catholic higher education in the United States has not been a failure, nor is it in danger of becoming so. It has produced the best educated laity in the entire history of the church. We are a more spiritually vibrant and faith-full church because of it. Indeed, the bishops themselves in November 1996 voted in favor of this middle course by a margin of 224 to 6.
In light of the above, I do not intend to seek a mandate two or three years down the road when mandates finally become a requirement or an option for Catholic theologians teaching in Catholic universities. For me it is a matter of principle--not of defiance toward the Vatican or the bishops, but of an abiding commitment to the academic integrity of what are among the church's most precious and valuable assets.