Over the past decade a great deal of ink has been spilled over the question of the meaning of Catholic higher-education — what is its purpose, how is it distinctive or unique in comparison to secular higher education, and simply what is the mission of the Catholic University? Hardly a Catholic campus in this country has escaped this introspection, and most have made formal attempts to articulate their mission or self-concept. So too have the teaching orders held meetings and seminars and conferences to develop goals for themselves and their universities — goals that usually attempt to reassert and revivify the specifically Catholic aspect of their educational endeavor.
Through it all this reorientation has focused almost exclusively on the undergraduate colleges, and only tangentially or by extension upon the graduate and professional schools that are nonetheless a significant part of the Catholic university system. Particular neglect — at least as to specifics — has been reserved for the Catholic law schools, which now number in excess of twenty institutions.
This is understandable, but unfortunate. Understandable in that law schools have from the beginning been largely lay enterprises since few priests or nuns traditionally became lawyers, and were therefore foreclosed from legal education. Consequently, the pervasiveness of religious, common to the undergraduate college and to many graduate programs of liberal arts disciplines, was never the norm for law schools. Of course in the early years of Catholic legal education eminent Catholic laymen did a very respectable job of creating a kind of Catholic atmosphere and tradition, but the pressure to assimilate and homogenize was great within the legal enterprise.
This pressure was, however, probably due to a misunderstanding of what it meant to be a Catholic lawyer. The suspicion, among both some Catholic and most non-Catholic lawyers, seemed to be that a Catholic legal education would compromise both competence and commitment: competence, in that theology would supplant the essentials of a legal education, and commitment, in that natural law might prevent the faithful practice of “Anglo-American law.” It was a suspicion of Catholics not uncommon in American history, but the stakes were higher when admission to the bar, or employment with a law-firm, or suitability to be a judge were at issue.
No wonder, then, that Catholic law schools that were concerned about the employability and acceptability of their graduates began to cultivate the image of indistinctness — at least as far as religion was concerned. No greater compliment could one pay a Catholic law dean than to confuse his school with Harvard or Yale, or even Michigan or N.Y.U.
Today, most — if not all — Catholic law schools have largely succeeded in making themselves indistinct. From the biggest and the best known, such as Georgetown or Fordham, to the smaller more regional schools, such as St. Mary’s or Creighton, there is little to suggest an attempt at something unique in their Catholic affiliations. True, the degree of association, or disassociation, varies greatly. Some students and concerned faculty tell of outright hostility and yearnings of separatism in some Catholic law schools; while others speak only of benign neglect. A few, such as my own school, have begun to show at least preliminary interest in a religious renaissance provided the old suspicion about competence, and a new one about academic freedom, can be allayed. It is these preliminary flickerings that prompt this modest proposal in that they create a new hope in the face of long neglect.
Recall my earlier statement that the neglect of law schools during this period of Catholic introspection was unfortunate. How so? As long as the undergraduate schools are renewing their commitment to Catholic education, will not the law schools enroll students with a more specifically Catholic background, which will itself obviate the need for the law schools to do anything but see that they get a top-flight legal education? Regretfully, I think not. Without some specific reinforcement, three years of law school, even in a Catholic law school, will probably undermine the Catholic values of these students — either by atrophy due to severe neglect, or by demolition due to sustained attack.
The sadness of this conclusion is compounded by the realization that in fact law students are in greater need of exposure to Catholic/Christian values than their fellow undergraduates. Indeed, one of the most important places to teach these values is in the Catholic law schools. Because like it or not, this country is run by lawyers. The vast majority of legislators are lawyers, all of the judges: so, too, are many corporate executives, administrative officials and lobbyists, not to mention the usual bevy of Presidential advisers and the thousands of practicing attorneys in this country. These men and women have an inordinate impact on American society, whether through litigation, legislation or high-level decision-making. One good public-interest lawyer can do more long-range, palpable good than a dozen social workers. A single federal judge can have a greater impact than a room full of philosophers. In other words, if Catholic education is concerned with Christian value-oriented education, and Christian value-oriented education is concerned with joining in with God’s ongoing creation of a better world, then the law schools are the place to be. What better place to teach the dignity of the human person, the need to create community, the demands of justice, the rights of individuals, the legitimacy of religion even in a pluralistic society, etc.? What better place indeed.
So what is the modest proposal? First, it is that Catholic law schools should be included in the current introspection about Catholic education, and should be no less responsible for answering the question: what should it mean that we are Catholic? Accepting that question as legitimate, my proposal is that the answer should include, among other things, the following:
1.           Perhaps above all else a Catholic law school should be a place where religion is seen as a legitimate and respected part of human development; a place where religion is treated with respect and seriousness; where religion is not ridiculed and the religious are not embarrassed
2.           Within such an atmosphere, if religion is to be treated with seriousness and respect it should be practiced by those who so desire. Consequently, a Catholic law school should make available on a regular basis the opportunity to participate in the sacraments, and other forms of religious worship and observance. Particular effort should be made to foster religious activities within the law school com-munity through the use of prayer groups, retreats, etc.
3.           In order to make the practice of the faith respectable and regularly available, Catholic law schools should have their own chaplains or campus ministers. It does no good to deny that the law school is generally a distinct com-munity within a community and therefore must be ministered to separately, at least most of the time. In addition, the law school campus minister can serve the very important need of “humanizing” the anxious law school experience by serving as a counselor to befuddled law students.
4.           A community where religion is important should be comprised of religious people, not in the narrow sense of all students and faculty being nominally Catholic, but in the sense of a critical mass of dedicated Catholics supported by those who share the basic assumption that religion is a legitimate part of human experience that deserves respect. More specifically, there should be active support for the basic values of Christianity. Though that support most often should be grounded in the Catholic faith, it might also be grounded in other religious faiths or, occasionally, no faith at all.
5.           Though much of the educational experience takes place outside of the classroom, one of the most important aspects of a value-oriented legal education is still the curriculum itself. A Catholic law school curriculum should not be largely different from any other law school, but there are important differences. One thing a Catholic law school should excel in is the teaching of professional ethics/responsibility. There is simply no excuse for neglecting this part of the curriculum. The suggestion that this is not something that should be unique to Catholic or other religious law schools sounds nice, but the facts are and have been to the contrary. Despite recent, attempts at reform, and much ballyhoo about teaching ethics in the post-Watergate era, nothing much has changed. One recent and poignant affirmation of this conclusion is Derek Bok’s almost scathing attack on legal education made in his annual address to the Harvard Overseers.
In addition to professional ethics, Catholic law schools should teach legal philosophy, better known as jurisprudence. Such a course should be comprehensive in its approach, but with a decided bias toward Catholic/Christian concepts of jurisprudence, specifically natural law in all of its historical and more recent permutations. Christianity in general, and Catholicism specifically have had quite a lot of say about the purpose and meaning of law — Catholic law students should know this. Consequently, jurisprudence should be a required course.
No doubt my suggestion of a “bias” in the teaching of jurisprudence will shock some, but I make the suggestion unabashedly. Whether we admit it or not, virtually every law school course is taught with a particular bias that not only shows through, but is often advocated by the professor. Constitutional law courses, for example, tend to emphasize an active judiciary championing individual rights, or judicial conservatism and respect for legislative majorities. Criminal law can be taught from a defendant’s rights perspective, or with the critical eye of one who favors stronger law enforcement. Torts teachers tend to be plaintiff or defendant oriented; environmental law courses look different in the hands of environmentalists as opposed to those who see such laws as obstacles industry must deal with. This list is endless. Even some whole schools are known for a particular bias, e.g., Chicago’s antitrust economic analysis. It seems only logical that, given this very human tendency, Catholic schools have their jurisprudence courses taught by persons who are supportive — rather than hostile — to the Catholic/Christian world view.
Finally, the Catholic law school curriculum should reflect its religiosity in the courses it offers. Courses in Christian ethics, in addition to the narrower professional ethics course, should be offered. Courses dealing with law and religion should be another specialty of Catholic law schools. Clinical education, especially where students are allowed actively to represent the poor, should be expanded. Courses that deal with poverty and the plight of the poor should also be considered. Family law and related issues should be sensitively explored in the context of the Catholic/Christian world view. Indeed, the vast body of Church social teachings should form the core of several challenging and relevant law school courses. Moreover, a concern for justice should be the center piece of all courses taught in a Catholic law school.
6.           Fr. Thomas Clancy, S.J. is fond of saying that a distinguishing mark of Catholic education is that it is rigorous. In Catholic law schools this should be doubly true. This tradition of rigor in Catholic education should be preserved in Catholic law schools, and the decline in standards and academic demands that have touched some law schools should have no place in Catholic law schools.
7.           In the midst of this rigor, however, Catholic legal education should be person-centered and dignifying. Intellectual rigor is often confused with cheap classroom terror-tactics. Catholic law schools should emphasize the former without encouraging the latter, and students should feel that despite being held to the highest academic standards they are respected and the subject of the schools’ sincere concern — not merely as vessels of learning, but as human persons.
8.           Catholic law schools should also be especially committed to helping the disadvantaged, not because it is the law, but because it is right. This basic commitment to the “rightness” of helping these students makes Catholic schools particularly suitable places to work out conscientiously the tensions between affirmative action and academic standards, and to allay the fears of critics of affirmative action who rightly fear quotas. Perhaps the Catholic law schools could create a consortium intended to upgrade the skills of disadvantaged students. Successful matriculation in the consortium courses would assure admission to one of the member schools.
9.           Last, but by no means least, the Catholic law school should be in a constant state of dialogue, but within the law school, and with other parts of the university, other law schools, and the universal Catholic community to refine continually what it means to be a Catholic law school. Law schools tend to be very insular institutions that find it hard to be self-critical. Consequently, this continuing dialogue will aid the law schools’ self-assessment. They will learn a great deal from the perceptions of others, and will in the end be better law schools, and better Catholic law schools.
This proposal, which I see as modest, will appear to some, perhaps many, as simply mistaken. Yet, I believe that the proposal is a minimum of what can be expected of those law schools that are part of the larger Catholic educational enterprise, an enterprise that has been successful because literally millions of Catholics have been willing to make great sacrifices over the years to build and sustain these institutions. Today, in return, it does not seem too much to ask that the unifying principle that justified those sacrifices — the Catholic faith — not be shunted aside as some kind of quaint vestigial remain. Our Catholic ancestors have a right to an answer to the question, what does it mean that this is a Catholic law school? And we have an obligation to try to find a suitable answer. If this proposal serves no other purpose than that the question be taken seriously, then it will have served its purpose.