January-February 2001

« AAUP Homepage

Theologians at Risk? Ex Corde and Catholic Colleges

By Richard P. McBrien

Last August the Catholic bishops of the United States formed a committee to develop procedures for applying the 1990 papal document Ex Corde Ecclesiae (From the Heart of the Church) to Catholic colleges and universities in this country. The formation of the committee followed nearly ten years of often-heated debate over how best to implement the document’s vision for Catholic higher education. From the beginning, the sticking point has been the theological mandate prescribed by the church’s code of canon law and required by Ex Corde: "It is necessary that those who teach theological disciplines in any institute of higher studies have a mandate from the competent ecclesiastical authority." A mandate is an ecclesiastical license that authorizes a Catholic theologian to teach theology in a Catholic institution of higher learning, in the name of the church. The "competent ecclesiastical authority" is understood in most instances to be the bishop of the diocese in which the college or university is located.

When the pope issued Ex Corde in 1990, he recognized that no single document could prescribe norms relevant to all Catholic colleges and universities worldwide. So he called on bishops to work with leaders of Catholic institutions to develop guidelines for implementing the document in their nation or region. The first plan circulated by the U.S. bishops received widespread criticism on Catholic campuses for failing to take into account the institutional autonomy expected of colleges and universities in this country. Further discussion among bishops and Catholic university leaders led to a revised plan supported by much of the Catholic higher education community. In November 1996 the National Conference of Catholic Bishops approved it by a vote of 224 to 6. It seemed as if a consensus had been reached.

But shortly thereafter, the Holy See returned the plan, saying that it did not have enough teeth: greater attention had to be paid, the Vatican said, to the "juridical obligations" of Catholic colleges and universities. In response, the bishops’ conference appointed a subcommittee of canonists who drew up a new set of guidelines responding to the Vatican’s wishes. The U.S. bishops approved the guidelines, by a vote of 223 to 31, in November 1999. Implementation procedures are expected to be finished by next spring. The bishops changed their collective mind in 1999 because they were ordered to do so by the Vatican. The overwhelming majority of bishops apparently felt they had no choice; a vote against the guidelines would signify disloyalty to the pope himself.

In addition to requiring theology professors to secure a mandate to teach, the new guidelines call on Catholic institutions to fill most of the vacancies on their faculties and boards of trustees with "faithful Catholics." The guidelines also urge college and university presidents to take an oath of fidelity to the church upon assuming office.

Oversight by Nonacademics

Most presidents of Catholic colleges and universities and most theologians on their faculties believe that the mandate compromises the autonomy of these institutions as well as the academic freedom of their professors. It does so by introducing an external, nonacademic agent into the internal academic governance of the college or university, specifically with regard to the appointment, retention, and promotion of faculty, and, by extension, in the designation of which courses individual faculty members may or may not teach and in which departments.

The fact that the agent is external is not the whole of the problem. As some defenders of the mandate have pointed out, Catholic colleges and universities are subject to regular scrutiny by external accrediting agencies. What the defenders fail to note, however, is that those who render judgment for the accreditors are academically qualified to do so. Bishops have no such academic qualifications. It is therefore the nonacademic, not the external, element that is at the heart of the problem.

Only the academic administration of a university or college and the chair and the faculty of its departments are competent to determine who is qualified to be appointed, reappointed, promoted in rank, or granted tenure. Only these agents can decide which courses the faculty can teach and in which departments. If other, nonacademic agents determine such matters, there is no academic freedom or institutional autonomy, the two hallmarks of an institution of higher learning. (Leading Catholic educators have cited these two principles with approval ever since the celebrated Land O’Lakes Statement of 1967, which called them "essential conditions of life and growth and indeed of survival for Catholic universities and for all universities.") Without academic freedom and institutional autonomy, a Catholic institution would no longer be a college or university in the commonly accepted academic meaning of the word.

As I have said, the U.S. Catholic bishops have formed a committee to develop procedures for implementing Ex Corde in the United States. The chair of the committee, Archbishop Daniel Pilarczyk of Cincinnati, has appointed four consultants: two theologians, a canon lawyer, and a university president. Draft procedures are currently being circulated with the intent of adoption of a final document by the bishops in June. No one, however, has figured out how to implement the canonical requirement of a mandate without its being, on the one hand, an empty and therefore meaningless shell, or, on the other, a direct violation of the statutes of Catholic colleges and universities and therefore the potential source of broad and endless litigation.

Free Will or Coercion?

It is difficult, from this vantage point at least, to see how any such procedures can be more than voluntary in character. Indeed, it seems certain that the major Catholic institutions are not going to change their bylaws or statutes to accommodate the requirements for the mandate. A few bishops and their militant, pro-bono legal counsels may be itching to pick fights in courts of civil law to prove that Catholic institutions are beyond the reach of that law, but no prudent bishop, president, or theologian who genuinely cares about pastoral as well as academic priorities 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. Catholic higher education does not need a public bloodbath born of mutual recrimination that can only hurt the church and all parties involved, including the students enrolled in those institutions. 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 by the bishops and subsequently approved by the Vatican 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 guidelines approved at the November 1999 meeting were quick to assure the presidents and faculty of Catholic institutions that they have no desire, intention, or interest in interfering in the internal academic life of colleges or universities. They said they do not want to become involved in decisions affecting the hiring, firing, or promoting of individual faculty members, much less the approval of faculty for individual courses. If a mandate is denied, withdrawn, or simply not sought, universities can take whatever action they deem appropriate. A few university presidents at the meeting indicated that they would not attempt to take any action against a faculty member who chose not to seek a mandate. In other words, the system would be very much a voluntary one. Surely, the Vatican and its most militant allies in the United States have more than that in mind.

The Curran Case

In 1986, after a prolonged investigation, the Vatican’s Congregation for the Doctrine of the Faith (CDF) concluded that Father Charles Curran, currently the Elizabeth Scurlock University Professor of Human Values at Southern Methodist University, was "neither suitable nor eligible" to be a professor of Catholic theology. Since Curran was then a faculty member at the Catholic University of America, the Vatican directed Archbishop James Hickey of Washington, chancellor of CUA, to take appropriate action. The CUA board of trustees subsequently accepted the CDF’s declaration as binding on the university, and Curran’s canonical mandate was withdrawn. (At that time, the mandate was interpreted to be required only of theologians teaching in a so-called pontifical faculty of theology, that is, one with an ecclesiastical charter from the Vatican and academic degrees approved by the Vatican. CUA has one of the few pontifical faculties in the United States; no other major U.S. Catholic university has one.)

The question before those in Catholic higher education is this: could what happened to Curran at CUA now happen at any other Catholic university or college? The simple answer is no. As I said, among major Catholic universities CUA is unique in its relationship to the Holy See and in the composition of its board of trustees, almost half of whom are cardinals and bishops. By contrast, the boards of the other major Catholic universities are made up mostly of lay people and are ecumenical in composition. To be legally effective, the requirements of the mandate would have to be incorporated into the bylaws of each nonpontifical institution. Independent, lay-dominated boards are not likely to change their bylaws for this purpose, and some bishops have said publicly that they are not asking them to do so.

Without doubt, the academic reputation of CUA has suffered because of the Curran case. The American Association of University Professors censured the university administration for its actions, and leaders of other Catholic institutions do not want a similar cloud over their heads.

Short of terminating the faculty member, what can a Catholic university or college do 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 CUA considered at one point with 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. A department ordinarily does not want to be a dumping ground for academic castoffs from other departments, 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. The number of these theologians may, after all, prove to be large. (I have already made clear in an article published last year, and from which much of this article is derived, that I will not seek a mandate if and when it is formally proposed. See "Why I Shall Not Seek a Mandate," in the February 12, 2000, issue of America.)

Other, less central reasons exist for challenging the concept of mandates for professors of theology at Catholic colleges and universities. Since theological issues inevitably arise in other sectors of a Catholic institution, and since preserving the Catholic character of such institutions devolves also upon key administrators and faculty across the university or college community, why are the mandates not to be extended beyond departments of theology? Why are they limited to theologians? Indeed, if there is an erosion of Catholic character in our Catholic universities and colleges today, that erosion is more likely to occur outside of departments of theology, not inside.

Tunnel Vision

In my experience of some thirty years as a faculty member at two major Catholic universities, Notre Dame and Boston College, I have, in fact, seen an occasional lack of seriousness concerning Catholic character in some sectors of these institutions, but not in their theology departments. On the contrary, 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 and leaving Catholic vice presidents, deans, directors, chemists, economists, biologists, philosophers, mathematicians, engineers, lawyers, and accountants completely off the hook, the Vatican and the bishops may be revealing a vision that is of tunnel quality. If they are really concerned about the Catholic character of Catholic universities and colleges, should they not be worried about the whole faculty and the whole administration, not just the theology department, the president, and the board of trustees? Is it expecting too much to ask that the drive to ensure Catholicity be itself catholic in scope?

The more one teases out the potential consequences of Ex Corde, 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, or doctrinal tradition, and some of whom are neoconservative Catholics with perhaps an ax 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 and Princeton unless we introduce a mechanism of oversight and control by external, nonacademic agents (the key adjective here again is nonacademic), namely, the bishops and the Vatican. (Based on the experience of the German universities, where the mandates have been in force for years because of a peculiar church-state situation, it would actually be the Vatican, not the bishops, who would have the last word in the matter of the mandates. Some German bishops have granted the mandate to individual theologians only to have their decisions countermanded by the Vatican.)

Turning the evangelical Protestant–neoconservative Catholic argument inside out reveals that what they are asking us to believe is that Harvard would still be faithful to its Puritan heritage and Princeton to its Presbyterian tradition if only these institutions had allowed members of their clergy to determine who could or could not teach theology. Imagine for a moment that the clergy actually had this power and that these three institutions had fully preserved their religious traditions, just as they existed one, two, or three centuries ago. What sort of institutions might they be today? In fact, these institutions did not even advert to the loss of their religious identity. By contrast, Catholic colleges and universities have been addressing this matter for at least twenty years—even before the issuance of Ex Corde Ecclesiae in 1990—and the discussion continues today in high gear.

Is there not perhaps a middle course between the imposition of, and acquiescence in, mandates, on the one hand, and outright indifference or open defiance by faculty and administration alike, on the other? There is, and it is being followed already in such leading Catholic universities as Notre Dame and Boston College and in so many other Catholic institutions like them. These institutions are serious about their Catholic identity and regard themselves as in full communion with the church, but they are also jealous of their institutional autonomy and of the academic freedom of their faculty, including their Catholic theologians. They recognize the right of the local bishop to express public criticism of the university for whatever reason, including alleged instances of theological unorthodoxy, but that right does not touch on the governance of the institution itself.

Catholic higher education in the United States has not been a failure, and it is not in danger of becoming so. Nor is it in danger of losing its Catholic soul. It has produced the best educated laity in the entire history of the Catholic Church. The Catholic Church in the United States is a more spiritually vibrant and faith-full church because of this high level and quality of education.

As I have already mentioned, I do not intend to seek a canonical mandate when those mandates finally become either a requirement or an option for Catholic theologians teaching in Catholic universities and colleges. 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 Catholic Church’s most precious and valuable assets: Catholic colleges and universities. I fully expect that many, perhaps most, other Catholic theologians will follow the same course.