Part Four: External Authorities?

What, then, are the particulars of this struggle between the college and university presidents and the pope? There are three. Rome insists that any university that puts itself forward publicly as Catholic should have a public acknowledgement from pope or bishops that it is worthy such a trust. Rome also insists that a Catholic education is obviously a task for Catholic educators, who must be predominant on a functionally Catholic campus. Rome insists, thirdly, that any theologian expected to teach Catholic theology on such a campus should be backed by the bishop. The canonists who crafted the Norms that are now being debated took these imperatives seriously, and did their work accordingly. All three imperatives, if enacted, threaten to humiliate the presidents in the eyes of their secular colleagues, who cannot imagine an education in which a shared faith is a respected source of critical insight, or in which a sacramental communion is a believable academic fellowship.

Episcopal Recognition

Consider the first papal requisite for a Catholic university: Catholic scrutiny and recognition, i.e., it must somehow answer to the bishop.

The presidents have been so accustomed to trumping this point with the dogma of “institutional autonomy” that they have evidently not realized the absurdity of their repeated claim that no “outside authority” could hold their institutions answerable. Take, as typical, the well respected University of St. Dympna. The first outside authority to which it 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 Employment 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 of Health, the National Science Foundation, 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 its campus by spraying DDT; determines and inspects the housing for her laboratory animals (which therefore costs roughly twice as 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. A typical professor of biology, for instance, might answer to the American Heart Association, which funds his research; the Association for Assessment and Accreditation of Laboratory Animal Care, which is licensed under the Department of Agriculture, the National Institutes of Health, and the National Science Foundation to ensure that his rats are well cared for, the Environmental Protection Agency, which superintends his disposal of the rats’ remains; the Department of Energy, which governs his usage and storage of radioisotopes; the Department of Transportation, which must issue a clearance for him to ship pathogens; the Office of Safety and Health Administration, which monitors the safety of his technicians; the Immigration and Naturalization Service, which must always be apprised of the status of foreign nationals collaborating in his research; the Department of Labor, which requires proof that no qualified citizen is available before it will agree to a visa for a foreign national; and the National Institutes of Health, which provide norms to the internal Human Subjects Committee that must give projects ethical approval. The Comptroller of the Currency regulates the faculty credit union. The Library of Congress certifies copyrights to faculty members and sets standards for the book cataloging. The U.S. military decides what facilities are required by its ROTC programs on campus. And obviously, there is the jurisdiction of the courts. This is, of course, only a small and suggestive sample of the federal authorities to which St. Dympna defers.

The North Central Association, its regional accrediting agency, develops multiple standards or expectations regarding advanced placement, exceptions for athletes, adequacy of research funding, expenditures on library materials, allowable retirement ages, obligatory amenities for the disabled, proportion of faculty on leave, management of financial aid to veterans, economic stability and management of long-term debt, mandatory insurance coverage, participatory decision-making, the academic calendar, integration of professional programs with academic ones, the rights of various employee groups to require collective bargaining, adequacy of funding for new degree offerings, languages to be used in instruction, etc. In addition, St. Dympna must face the regularly recurring scrutiny of specialized accrediting agencies: the National Association of Schools of Music, the Association of Theological Schools in the United States and Canada, the American Psychological Association, the American Chemical Society, the American Bar Association, the Association of American Law Schools, the Committee on Allied Health Education and Accreditation of the American Medical Association, the Accreditation Board for Engineering and Engineering Technology, the American Assembly of Collegiate Schools of Business, the Accrediting Council on Education in Journalism and Mass Communications, the National Council for Accreditation of Teacher Education, and the Association of Collegiate Registrars and Admissions Officers. The Financial Accounting Standards Board has set the parameters and format for its financial statements. The National Collegiate Athletic Association feigns to regulate the amount of practice time before the beginning of the academic year, all financial adhesions of varsity athletes, the authenticity of their academic progress, and variances in their class attendance due to events away from campus. ETS and ACT largely shape the comparative assessment of prospective freshmen and of their high schools, and the linguistic competence of applicants for whom English is not the first language. The county health department has regulations governing burials on campus and inspects the dining facilities. The fire inspector regularly prowls the physical plant and growls at code violations. The building inspectors have to sign off on all construction projects, and the zoning people will claim a say if the campus begins to creep in any direction. The county prosecutor decides which student misbehavior will be dealt with officially, which unofficially, and which not at all. These are some of the external authorities or agencies to which St. Dympna is answerable for its various standards. It is also a party to policy-setting by the American Council on Education, the Association of Catholic Colleges and Universities (which sometimes forgets that it too is an outsider to its member campuses), the State Conference on Higher Education, the Association of College and Research Libraries, the Association of American Colleges and Universities, and the Council of Graduate Schools, and generally expects to abide by the norms they adopt.

Take a Deep Breath

To quote the Letter to the Hebrews, “What more shall I say?” The point is clear. No university is an asteroid. It is an organic member of a complex, very endocrine community.

However, the supreme example of an external authority to which every university defers is so close at hand that it is never noticed: its board of trustees. By custom and by statute, those who hold in trust most universities and their fortunes must be outsiders whose principal responsibility is to ensure that the institution fulfills its public trust. Usually only a few insiders, such as (but not always) the president and occasionally a faculty representative, can be included. Indeed, the legal tradition of “charitable trusts” is that they must be answerable to external authority and visitation and appeal as surety that the purposes of the founders and benefactors are being honored.

The vast network of authorities, standards, and policies, of which this cloud of outside entities and personages is only a part, puts into necessary perspective the distracted imagination of the Land O’Lakes claim by the presidents to “true autonomy in the face of authority of whatever kind, lay or clerical, external to the academy itself.”

The authority of the trustees over their universities is whole and direct. Some of the other entities possess a different authority: the power to impose and enforce. Most, however, are tied to St. Dympna by its own readiness and need to join in their standards … in a word, to accept their scrutiny and to merit their recognition. That would certainly seem to be a pattern applicable to its appropriate communion with the Catholic Church. The prospect of a Catholic university being voluntarily answerable to the bishop in respect of its Catholic authenticity fits well into St. Dympna’s tradition of wide public accountability.

Catholic Credentials

This brings us back to the question: Exactly how should a bishop scrutinize a university claiming to be Catholic, and how should he give or renew his recognition? Obviously most bishops in the country are incapable of doing it on their own. Certainly most bishops in the country would find life much simpler if this duty were not thrust upon them. The most reasonable answer would seem to be an accreditation process.

The Bishops and Presidents Committee was toying with the idea in 1974. Thoughtful folks, like Francis Cardinal George and philosopher Alasdair Maclntyre, and groups like the Catholic Theological Society of America have talked about it. It would have to be organized nationally rather than locally, so that a bishop and the local university could request an experienced and non-involved evaluation group to sponsor a site visit, a case study, and a report. The problem is not that the reports might tend to be irresponsibly critical, but that, like most accreditation processes, they might not lay a glove on the real deficiencies. What makes it worse is that most bishops might be nervous if they did. But it seems to be the best way.

The visiting team should represent diverse competencies, except in the one excellence they are appraising: Catholicity. It might comprise some academic administrators, some faculty, a few clerics, some trustees, and perhaps some nonacademic intellectuals. Just as accreditation visitors commonly report, but do not decide, there might be another, more widely experienced body to receive and appraise these reports, recommend remedies for deficiencies, praise initiatives and strengths, and then call in the bishop and the president and present them with the report and their annotations and final recommendation. The final decision belongs to the bishop, with whatever further counsel he seeks, but it would probably be best if the dossier had to be made public after a set time, along with any written response from the institution. It must be borne in mind that the occupational hazard of the bishops in this matter is that they are often more tempted to shirk this duty than to relish it. But the Church deserves some sort of professional, systematic, and public assay of institutions that claim to be Catholic.

Cracks in the Wall of Separation: Catholic Personnel

The papal policy also expects St. Dympna to provide its- self with the second prerequisite to being functionally Catholic: Catholic personnel.

The presidents seem to have adopted the incredible position that faculty must be hired who will somehow be supportive of the Catholic faith, regardless of their religious background. But when Gallin explained for the ACCU why the first published draft of Ex Corde Ecclesiae was unacceptable, she was both more realistic and more cynical. The Vatican would have to do a lot better to appreciate how “peculiarly American” the ACCU schools were. “Membership in a church,” she explained, was insignificant to faculty ‘commitment.’

The financial and legal snarls of those difficult days at the end of the ’60s overloaded the presidents’ power to cope with events. Their decision to take all power to themselves, as an emergency rescue effort, made them intensely aware of the early legal crises, but their attention drifted away from later, very interesting, legal developments. The constitutional aspect to our saga is a poorly known story line, and it deserves a brief review here.’

The U.S. Supreme Court initiated a new jurisprudence in 1947 when the Everson decision ruled that a school board could provide bus transportation for children to religious schools. The children were the beneficiaries, not the schools, and the busing was justified for public safety, not education. Justice Black wrote for the Court, “No tax in any amount, large or small, can be levied to support any religious activities or institutions ….” Soon the McCollum case (1948) struck down a “released time” program which excused elementary pupils from class once a week to go down the hall for instruction offered by religious groups, for fear of “close cooperation” between the state and religious educators.’

In 1964 the federal War on Poverty produced the Improving America’s Schools Act, meant to serve disadvantaged children whose special developmental and socioeconomic needs were not being met. Since many of these children were being served by parochial schools, attempts to extend the new benefits to them provoked a storm of litigation. The Court did allow secular textbooks to be loaned to children attending religious schools.’ Likewise the Walz case, in 1970, reaffirmed traditional property-tax exemptions for religious organizations, since they served alongside “nonprofit, quasi-public corporations that include hospitals, libraries, playgrounds, scientific, professional, historical, and patriotic groups.” But the Court warned that any direct subsidy creating “sustained and detailed administrative relationships” would be repugnant. Thus, after Everson forbade support, and Allen deplored cooperation, Walz disapproved of involvement. The Court was on a roll.

But states continued to look for ways to encourage the religious schools in their help for deprived children. When states offered minor budgetary reimbursements, Lemon (1971) struck down the subsidies and constructed a three-part test for governmental funding of religious schooling. Any such program must 1) reflect a secular purpose; 2) have a principal or primary effect that neither advances nor inhibits religion; and 3) avoid excessive governmental entanglement with religion. “Secular purpose,” “primary effect,” and “excessive entanglement” became known as the “three prongs” of the Lemon test.

Various programs soon flunked that test. One program that reimbursed religious schools for all the testing and record-keeping required by the state was struck down because state monitoring would inevitably get fouled in their sectarian efforts “to inculcate students in the religious precepts of the sponsoring church.'” The Court simultaneously forbade direct benefits for independent schools that served the poor (plant subsidies, tuition reimbursements, and tax benefits) because so many schools with significant enrollment of the disadvantaged poor in that state were Catholic.’ Then it decided that although textbooks could be still loaned to pupils in religious schools, maps could not. Remedial instruction, guidance counseling, and speech and hearing therapy could not be provided to parochial pupils, since state employees stationed on religious premises night reduce institutional costs to the sponsoring church, and might even inadvertently imbibe the schools’ pervasively sectarian atmosphere.’ As fast as the states found ways to help religious schools serve the disadvantaged, the Court found unacceptable church-state fraternization.

Legislators caught on, and in 1977 remedial instruction and guidance in trailers parked on the street were allowed because they were not on site, within the “pervasively sectarian” atmosphere of the religious schools. An income-tax deduction for school fees then passed muster because it applied equally to both state and independent schools.” But when the religious teachers were hired as recreational moonlighters or outside state employees were brought in after hours for remedial tutoring, the Court struck down both arrangements: The educational programs would be swept into the undertow of religious indoctrination, and part-time use of the faculty suggested a “symbolic union of church and state?”‘ Another initiative of the War on Poverty which installed state school teachers to teach remedial courses in religious schools was struck down by Aguilar (1985) because it required state and school administrators to interact, and required pervasive monitoring to ensure that the religious environment not infect the secular instruction or instructors.

The Aguilar opinion was written by Justice William Brennan, a Catholic who had succeeded Justice Black, the erstwhile Klansman, as chief opponent of cooperation between state efforts and religious schools. Brennan was able to intensify the Lemon test by reversing the burden of proof: Any collaboration between state employees and religious educators now became subversive of their joint project’s secularity, and both “primary religious effect” and “excessive entanglement” could be presumed without factual evidence in the record.”

But Aguilar was a turning point. Justice Sandra Day O’Connor dissented, and began to emerge as an articulate critic of the Everson-to-Aguilar doctrine of “disfavoring religion.” She said in another case: “The Establishment Clause does not demand hostility to religion, religious ideas, religious people, or religious schools.” Impartiality, not animosity, was the correct attitude in these cases. If the government sponsors such pro-grams at state schools, she objected, it ought also sponsor them at religious schools. The Court had turned the First Amendment on its head: Except in the most unusual circumstances, “one’s religion ought not affect one’s legal rights or duties or benefits. As I have previously noted, ‘the Establishment Clause is infringed when the government makes adherence to religion relevant to a person’s standing in the political community.’ … We have time and again held that the government generally may not treat people differently based on the God or gods they worship, or do not worship.” O’Connor would become the most persistent critic of Everson’s presumption that the First Amendment intended a hostile defensiveness against religious initiatives in the culture.

Thus in 1988 the Court let stand a publicly funded program to combat teen pregnancy in both state and religious schools. Boy-girl entanglement was even more threatening than church-state entanglement. And in the ’90s the Court agreed that a translator could assist a deaf student in a religious high school, right on the premises.

The most recent Court decision touching on the status of religious schools is also one of the most significant: Agostini, handed down in 1997. The Court finally decided that educationally disadvantaged children could be provided with federally supported supplemental and remedial instruction by public employees, indiscriminately in independent (including religious) and state schools. Excessive “entanglement” could no longer be presumed, but must be factually proven. Agostini’s “nondiscrimination” replaces Everson’s “separation” as the principle of analysis in school funding cases. Justice O’Connor’s opinion here, while surely not the last word in this long struggle, well states the Court’s present position: Educational subsidy by the government does not fall afoul of the First Amendment if “aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis.” Aguilar’s presumption of entanglement, she stated, “is no longer good law.”

Kinder, Gentler Courts

That string of Court decisions dealing with elementary and secondary education, and framing a judicial rule on governmental support that grew slowly and fitfully from animosity to impartiality, provides the background to other litigation directly affecting religious colleges and universities where the Court has consistently recognized that students need less protection from religion than pupils in the lower grades.

For anyone wishing to hold a wet finger to the wind and find its direction, this story line provides evidence of significant movement in the U.S. Supreme Court regarding our subject. In the 50 years from Everson to Agostini, on the subject of K-12 religious education, the Supreme Court has fitfully moved from animosity toward impartiality, and both the nation and the religious schools are the better for it. This is not irreversible: Indeed, much of this slow shift has come about by close votes, and four of the sitting justices seem to be closer in conviction to Justice Hugo Black, champion of official hostility to religion, than to Justice Sandra Day O’Connor, the champion of impartiality to it. But we do not predict the future; we report on judicial developments, past and present, which those committed to Catholic higher education have not been following so closely since the trauma of the late ’60s.

With that arduous and fitful movement from “separation” to “nondiscrimination” for background, let us turn to those decisions touching directly upon higher education. They are fewer, and they offer a clearer encouragement.

The first and perhaps most influential legal event with respect to religious colleges and universities is too well known to be noticed: the Serviceman’s Readjustment Act of 1944, known as the G.I. Bill, which provided full tuition and a living allowance for veterans and was portable to both state and independent colleges, whatever their religious sponsorship. It would serve as a precedent greater than any other. There were no conditions or caveats; it was utterly nondiscriminatory.

A quarter-century later, the much-awaited Tilton decision (1971) was handed down.” Four church-related colleges in Connecticut had been given federal grants under the Higher Education Facilities Act of 1963. They could not be used to construct facilities for “sectarian instruction” or “worship,” or for a divinity school or department. But the grants were challenged in the courts as an impermissible subsidy to religion. A thousand colleges and universities around the country followed the course of this lawsuit, but especially the Catholics, since all four of the challenged beneficiaries were Catholic. Edward Bennett Williams, their attorney, pled on their behalf: “[The fact] that the influence of any particular church may be powerful over the members of a nonsectarian and secular corporation … is not sufficient to convert such a corporation into a religious sectarian body.”

Chief Justice Burger, giving the opinion of a plurality of the Court, said the crucial question was: Did religion so permeate the secular education provided by these four church-related schools that their religious and their secular educational functions were in fact inseparable?

All four schools, which had been telling their parents and alumni and graduates for years that every single element in their program was permeated by the Catholic faith, were greatly relieved to learn that the court found it was not true, after all. There had been documents submitted, purporting to put restrictions on what could be taught, but the Court was relieved to be told they were not enforced; indeed, the record showed “that the schools were characterized by an atmosphere of religious freedom rather than religious indoctrination?” Having exonerated the institutions from the charge of indoctrination, Burger then went on to offer another, prior defense against that charge for any and every college:

There are generally significant differences between the religious aspects of church-related institutions of higher learning and parochial elementary and secondary schools. The “affirmative if not dominant policy” of the instruction in pre-college church schools is “to assure future adherents to a particular faith by control of their total education at an early age.” There is substance to the contention that college students are less impressionable and less susceptible to religious indoctrination. Common observation would seem to support that view, and Congress may well have entertained it.”

It is difficult to know with which the Chief Justice was more unfamiliar: teenagers or religious educators. The upshot of the case, however, was that the Catholic presidents were mightily relieved and suffered little or no compunction that the price of their survival was an attorney’s promise that Christ was locked in the chapel.

The Tilton decision, in retrospect, did mark a turn toward more benevolent treatment by the court. Hunt (1973), for instance, found that a Baptist college in North Carolina qualified for state revenue bonds to maintain its physical plant. The law’s purpose was secular, since all independents, religious and secular, could apply. The law’s effect was not the furtherance of religion, since the record showed that campus atmosphere was not “pervasively sectarian” (the fact that only 60 percent of the student body were Baptists was mentioned in its favor). Religion did not “permeate” the college, and church- state entanglement would be minimal.

The second great landmark case, Roemer,” finally concluded in 1976. Maryland had provided annual subsidies to private colleges provided they were not used for “sectarian purposes.” Of the 17 beneficiaries, four Catholic colleges were challenged. The Court was prepared to disqualify them if they were so “pervasively sectarian” that their secular and sectarian activities could not be separated from one another. There were favorable albeit exotic findings of fact: that their relations to the Church were more formal than operative; that at one college “no instance of entry of Church considerations into college decisions was shown”; that spiritual development was only a “secondary objective” and one among many; that religious indoctrination was not a “substantial purpose or activity”; that prayer before class was “peripheral to the subject of religious permeation”; that religion was considered peripheral for faculty appointment in two schools and not at all in the other two. Thus sectarian and secular features could be distinguished enough to justify annual subsidies.

Two decisions taken the next year, Smith and Blanton (1977), were significant applications of Roemer. State funding to religious colleges and universities generally passed muster if it served students in higher education, benefited no particular church or denomination, and took place on campuses where religious instruction was an intellectual pursuit and religious practices were voluntary. The very accommodating G.I. Bill was being mentioned as an appropriate precedent.

Two extremely significant decisions were to follow. The freedom of Catholic colleges to include religious faith as a category for consideration in their employment decisions would have been obstructed by the Equal Employment Opportunity Act (the amended Title VII of the Civil Rights Act), had not Congress included an explicit exemption for any “religious corporation, association, educational institution, or society” from the ban on discrimination in employment decisions on the basis of religion. The legislative history emphatically excluded any interpretation that might narrow this freedom to appointments requiring specific religious qualification, such as chaplains or theology faculty. The right ran all the way to janitors. This exemption ran so clearly against the grain of activists and professionals in civil rights enforcement that the presidents were repeatedly advised it was not a legal freedom they should (or should want to) rely upon. The presidents proved very ready not to rely upon it.

There was an additional bind. The presidents had withdrawn their institutions from the authority of their religious orders and, as they thought, of the Church, by declaring them to be merely civil corporations, in order to persuade state and federal authorities they were secular enough to qualify for their largesse. Thus they set for themselves a trap: Their claim to be merely civil corporations undermined their claim to be religious institutions entitled to consider religion in employment decisions. The exemption was never revoked, but they lost the nerve, then the conviction, and finally the desire to do so. Most presidents simply went silent on recruiting Catholics. Each year the Catholic presence on their faculties has become less overt, less numerous, and less vital.

In a startling decision a decade later, Witters (1986), a rarely unanimous Court upheld a vocational rehabilitation tuition grant to allow a man to train for the ministry at a Bible college. The Court observed that since he was an adult taking his grant where he wished (as the G.I. Bill had enabled veterans to do), he was a mature student and thus in no danger of being subject to indoctrination.” Then in Amos (1987) the Court sustained the presidents’ unasserted and possibly undesired freedom to prefer Catholics in their hiring decisions, by asserting the right of a nonprofit Mormon gymnasium in Salt Lake City to dismiss a building engineer who could no longer certify his membership in the church.

Now what might the presidents have learned from this half-century of constitutional adjudication, and what effect has it had upon their legal freedom to consider faithful and thoughtful membership in the Catholic Church among the professional credentials they seek in their faculty and staff?

From Everson and McCollum and Aguilar to Tilton, Roemer, Witters, Smith, and Blanton, Amos and Agostini,—from exclusion to nondiscrimination—the Catholic college and university presidents have enjoyed a remarkable improvement in their standing before the law Whether it has duly affected their sensibilities and initiative, their attorneys’ assertiveness, or their universities’ public claims to Catholic identity, one has strong reason to doubt. One of their most important legal freedoms, to consider faithful and thoughtful membership in the Catholic Church among the desired professional credentials sought in their faculty, is one they seem particularly reluctant to claim and exercise.

The present has all the appearances of a time when the Catholic academics would be left with no external obstacle, other than their own derelict loss of nerve, to implementing the pope’s reminder that they need Catholic scholars (with a vital synergism between the adjective and the noun) in order to offer a scholarly (with a similar synergism).

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James Burtchatell is a former provost at Notre Dame and a former chairman of the university's theology department.

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