A Cautionary Tale

Academic Freedom, 'Ex Corde,' & the Curran Case

Now that the American bishops have voted overwhelmingly to adopt the revised norms requiring the application of Ex corde ecclesiae to Catholic colleges and universities in the United States, it is instructive to recall the Curran case. The Catholic University of America’s successful ouster, a little more than ten years ago, of Rev. Charles E. Curran, one of the country’s most preeminent professors of Catholic theology, illustrates what might happen in any other Catholic university that chooses to become "officially" Catholic by adopting Ex corde ecclesiae, as the norms require in most cases. (see "Look Before You Leap," Commonweal, April 9, 1999, and "The Vatican, the Bishops, and the Academy," Commonweal, September 26, 1997).

At the time, there was a perception that Curran’s difficulties with Catholic University resulted from the "special relationship" that the university had with the church, and that although what was happening to Curran was unfortunate for him personally, no great lessons for other Catholic universities could be drawn because The Catholic University of America was "different." However, the new norms’ requirement of a "juridical" relationship between a university that wishes to call itself "Catholic" and the church strongly suggests that what happened to Curran could happen to any other tenured professor of whom the Vatican disapproved.

 

The Nature of The Catholic University of America

One cannot understand what happened to Curran without understanding the nature of The Catholic University of America and its relationship with the church. As we will see, that relationship is essentially the same as would be the relationship between the church and any other Catholic university that chooses to adopt the new norms and Ex corde ecclesiae.

The Catholic University of America was founded in 1887 by all of the American bishops, led by Cardinal James Gibbons of Baltimore. On April 10, 1887, Pope Leo XIII wrote a letter to Cardinal Gibbons in which he "approved" Cardinal Gibbons’ project for the "erection of a university, moved as you are by a desire to promote the welfare of all and the interests of your illustrious republic."

However, the pope’s letter did not create the university. Nine days later, the university was established when it was incorporated under the general incorporation act of Congress enacted for the District of Columbia. Incorporation by act of Congress was required not because it was more prestigious, but because there was no general incorporation law for the District of Columbia at the time.

The original incorporators were the seventeen founding bishops and cardinals who, significantly, signed the incorporation papers with no indication whatsoever of their church affiliation or rank. From a civil law perspective, they looked like laymen. Their purpose was to establish "an institution of learning, in the District of Columbia, of the rank of a university." Except for the chosen name of the university, one could not tell from its charter that there was any affiliation whatsoever with the Catholic church.

Two years later, Pope Leo XIII wrote again to Cardinal Gibbons: "Desirous...to secure the fulfillment of your righteous wishes...we willingly grant your request, and by our authority approve by these present letters the statutes and regulations of your university, and endow it with the rights proper to a lawfully constructed university."

The pope continued: "We grant, therefore, to your university power to confer academic degrees on students who shall have passed satisfactory examinations, and likewise to confer the doctorate in philosophy, theology, pontifical law, and those other studies in which the different degrees and the doctorate are usually conferred."

That letter and the 1887 letter were said to constitute the so-called papal "erection" or "charter" of the university. But because there was no concordat between the Vatican and the United States and because of our constitutional requirement of a separation between church and state, the pope had no "power" to create or "erect" anything in the United States. The university obtained its juridic personality when it was incorporated pursuant to the act of Congress. The most that the pope could do was to agree to recognize certain of its degrees.

Notwithstanding the fact that a "papal charter," whatever it is, has no civil legal significance, Catholic University acted as if it did. Until well into this century, Catholic University permitted itself to be controlled by the Vatican, even though nothing in its certificate of incorporation permitted or contemplated such control. Its board of trustees, consisting almost entirely of cardinals and bishops, was appointed by the Vatican, as was its president (then called a rector).

The 1937 version of its governing statutes, later described as "incompatible with modern American University practice," was in some respects similar to what Ex corde ecclesiae requires. For example, the statutes required "orthodoxy" and a "profession of faith" on the part of faculty members. The statutes also gave the chancellor the power to grant a so-called "canonical mission."

 

The "Canonical Mission"

The concept of a "canonical mission" originated in the mid-nineteenth century in Germany as a response to the German government’s attempts to "secularize" the schools. In order to protect church interests from government intrusion, the German church decreed that no one could teach Catholic religion, from primary grades through graduate level, without a "canonical mission" from the local bishop. The canonical mission requirement was later incorporated into concordats between the Vatican and several German states, and the Reich itself. It was thus originally conceived as a device to guarantee the church’s freedom to teach in its own schools against threats of state control.

Gradually, however, for reasons having to do with the continuing tension between the church hierarchy and academically free-thinking theologians, the concept of a canonical mission began to be used in church-run institutions as a limitation on the academic freedom of theologians and as a device to control what they taught and wrote not as the guarantee of freedom that it was originally intended to be.

In 1931, the apostolic constitution Deus scientiarum Dominus required that in ecclesiastical faculties "those who teach disciplines concerning faith or morals must receive, after making a profession of faith, a canonical mission from the chancellor or his delegate...." Without such a "mission" one could not teach theology or philosophy in an ecclesiastical school. It can be easily seen that the "canonical mission" is similar to the "mandate" required by Ex corde ecclesiae.

At first, Catholic University did nothing to implement Deus scientiarum Dominus. Finally, in 1937, the university adopted implementing "statutes" but notwithstanding the fact that the constitution required a canonical mission for all theology professors, the university’s statutes did not do so explicitly.

In 1968, the Vatican issued an interim document, Normae quaedam, in preparation for a full revision of Deus scientiarum Dominus. Normae quaedam modified the requirement for a canonical mission and when Catholic University’s governing statutes were entirely revised in 1969, all mention of the canonical mission requirement was eliminated.

 

Charles Curran

In 1965, Father Charles Curran, a diocesan priest from the Diocese of Rochester, New York, came to Catholic University from a teaching position at St. Bernard’s Seminary in Rochester, where his teaching and writing were somewhat controversial. He had studied theology at the Pontifical Gregorian University and at the Academia Alfonsiana, and received two doctorates in moral theology. Catholic University hired him as an assistant professor of theology in its school of theology.

The year after Curran was hired, the Vatican began a secret inquiry into his writings.

In 1967, despite the unanimous recommendation from his school, Curran was notified by the rector of the university that a three-man committee of the board of trustees, led by Cardinal Krol, had also reviewed his writings, and that the board had voted not to renew his contract.

As a result, two days later the faculty and students of the university went on strike for more than a week. Faced with that protest, the board of trustees reversed course and agreed not only to renew Curran’s contract for a three-year period (thus entitling him to tenure at the end of the period) but to promote him to the rank of associate professor. Some would later claim that that action constituted an affirmation of Curran’s academic freedom in the face of an ecclesiastical challenge.

At the same time, the university was undergoing its decennial accreditation review by the Middle States Association of Colleges and Schools, its principal accrediting agency. The university was still operating under its repressive 1937 statutes. Upon reviewing those statutes, the Middle States’ representatives expressed extreme displeasure, telling Catholic University’s officials at one point that there was "serious doubt" that Catholic University could be accredited as "an American university."

The board of trustees became extremely concerned. The trustees feared that the university would lose its accreditation and that its federal defense contracts were in jeopardy. Therefore, the board commissioned a full a review of the university’s status and organization in order to "elucidate the university’s purposes and character" and retained a law firm to advise it.

 

The Events of 1968

On July 29, 1968, Pope Paul VI issued an encyclical on artificial birth control called Humanae vitae. The next day, Professor Curran acted as the spokesperson for a group of Catholic scholars, numbering over 600, that issued a public statement expressing its disagreement with key parts of the encyclical.

On September 5, 1968, the board of trustees rejected a resolution to fire Curran and his colleagues and instead asked the administration to begin an inquiry to determine whether Curran and the others had violated their responsibilities and duties to the university by their dissenting from Humanae vitae.

A faculty committee (called a board of inquiry) was convened under the chairmanship of Professor Donald E. Marlowe (thus its report was later called the Marlowe report). That committee held extensive hearings and took testimony from many expert and fact witnesses.

In April 1968, the board of inquiry vindicated Curran and the others. The board concluded that the public statement of the professors represented "responsible theological dissent" and was "reasonably supported as a tenable scholarly position."

The academic senate voted to "accept and approve" the Marlowe report but at its April 12–14, 1969, meeting in Houston, the board of trustees voted simply to "receive" it. The board appointed a five-person committee, headed by Cardinal Krol, to make a recommendation to the full board as to what else, if anything, should be done about the Marlowe report. Before that committee could make its recommendation, the academic senate passed a resolution stating that in adopting its earlier resolution to "accept and approve" the Marlowe report, it was "restating the university’s dedication to academic freedom." However, except for general statements of commitment, there was no specific or detailed articulation of the rights that faculty members were thought to enjoy.

The board of trustees met to receive a recommendation from the Krol committee as to what to do about the Marlowe report. Unanimously, the board adopted a resolution proposed by Cardinal Krol: "The board of trustees of The Catholic University of America is confident that the faculty of the university recognizes its responsibility to present in a scholarly manner the authentic teachings of the church. [However] the board of trustees accepts the report of the faculty board of inquiry insofar as it pertains to the academic propriety of the conduct of these faculty members."

After the board’s resolution was passed, the academic senate adopted the following resolution for inclusion in the next edition of the faculty manual: "A university conceived as a community of scholars must be free of arbitrary and extrinsic constraints, be they civil or ecclesiastical. Institutional autonomy and academic freedom are essential conditions of university life and growth."

The university then sent that statement to the Middle States Association of Colleges and Schools, in its full text, together with the assertion that at Catholic University, "the most highly valued right and privilege of the university professor is academic freedom." The Middle States Association of Colleges and Schools was in the process of deciding whether to renew the university’s accreditation and the visitation from the Middle States committee had not gone well. As Brother Nivard Scheel, the acting rector of the university, put it, "[T]hey objected to the provisions of the by-laws which left to Rome control over the appointment of the rector/president and over the changes in by-laws and said that The Catholic University of America should update these by-laws so that it could become a truly American institution."

Because of the Middle States Association’s negative reaction, the board established another committee, chaired by Cardinal Shehan of Baltimore, to review the university’s by-laws in light of the Middle State’s concerns. In June 1968, Shehan told Father John Whalen, the acting rector of the university, that the purpose of his committee was "to bring the charter of the university into conformity with requirements of civil law and with the standards of the Middle States Association. The report of the Middle States evaluating committee clearly indicates that unless these standards are met, the university cannot reasonably hope to retain its accreditation."

Shehan’s committee recommended that the board of trustees reconstitute itself so that the university’s true nature would be reflected in its governance structure. Shehan told the board of trustees that it was important to stress that

an educational corporation is not a religious body. Suggestions to the effect that the Catholic University can have two natures fly in the face of civil law and promote a dangerous theory to the future well-being of the university. An educational institution can and does teach theology without transforming itself into an ecclesiastical institution in the eyes of the civil law. The university’s relationship with government would be seriously jeopardized should it be mistaken for a religious institution rather than an institution which, among other things, teaches religion. Furthermore it seems necessary to stress that the property of the Catholic University belongs to the corporation and is administered by the trustees. Ownership has never been in the hands of the bishops as bishops.

At the time, the board consisted of fifty members, including all of the resident cardinals and archbishops of the United States, many bishops, and a small number of lay people. The rector of the university was appointed by the pope. The committee recommended that the board adopt new by-laws establishing a board of only thirty trustees, no more than half of whom could be clerics. The new by-laws also provided that the rector, whose title was changed to president, be appointed by the board, not the pope. The new by-laws thus transferred legal control of the university from the pope to the board, leading to what was then commonly referred to as the "depontificalization" of the university. According to Acting Rector Scheel, "we made the term up. We used it to indicate that when the statutes had been approved that the University had been depontificalized. We talked about it in that vein. That is what we thought we had done." When Cardinal Shehan went to Rome to describe the changes that had been made in the by-laws, he referred to them as "deconfessionalization."

Rome clearly understood what was happening to the governance structure of the university. An internal Vatican memorandum prepared after Shehan’s visit noted that according to the proposal presented by Cardinal Shehan in October 1968, the foreseen "deconfessionalization" and "autonomy" of the university would involve that no higher authority over and above the "board of trustees" should exist, in which case it would not depend any more from the Holy See or the hierarchy of the U.S....and that the university should no longer be considered a religious institution and, therefore, that the rector should not necessarily be a priest.

The first president of the university to take office under the new by-laws was a layman, Clarence Walton, who described the changes as "historic." As Walton put it, the new documents "have now brought the governance of this university into conformity with normal American academic practice." F. Taylor Jones, the executive secretary of the Middle States Association of Colleges and Schools, the university’s accrediting association, wrote to Walton that "I have just heard, I hope correctly, that the authorities in Rome have released their hold on the university and have made it possible for the trustees to function as they should. This is immensely helpful. Congratulations to you and your colleagues for the new freedom it gives you."

Jones’s successor, Robert Kirkwood, said that "we assume that Catholic University was an autonomous institution . . . [with] freedom to develop and enact its own policies and to control its own affairs."

The changes in the university’s governing structure were not undertaken without debate and some difficulty. In fact, one group of trustees, including Cardinals Krol and O’Boyle, not only wanted to preserve the status quo but wanted to strengthen, if it were possible, the ties to the Vatican. Walton and the other moderates headed off the effort and the Krol resolution was defeated.

After the charter and by-laws were amended, the university set about to draft a new set of statutes that would govern its three ecclesiastical faculties where, according to the board, "the authority of the Holy See may be involved." As Cardinal Shehan put it, "we propose to maintain the pontifical recognition of degrees granted to those who have successfully completed specific courses approved by the appropriate congregation." At the same time, Shehan recognized that it was "of the utmost importance not to involve any of the congregations of the Holy See in recognition of the university’s activities or schools other than those properly within their jurisdiction."

"Special Statutes for the Pontifical Schools" were then prepared. There were only ten provisions, nine of which were bland and straightforward. The tenth, inserted at the insistence of Cardinal O’Boyle, was ambiguous and provided that "the rights and duties of the chancellor with respect to the pontifical schools shall be in accordance with the norms and regulations established by the Holy See."

The university believed that the Vatican approved both the new by-laws and the new statutes for the pontifical schools on January 22, 1970, when President Walton received a cable to that effect from the apostolic delegate, Archbishop Raimondi. That is certainly what Walton reported to the board of trustees and that is what the campus newspaper reported ("Rome approves statute revision"). That is also how the secular press perceived it. (The Washington Post reported that "the Vatican has approved new rules governing Catholic University that dissolve the institution’s direct ties to Rome and reduce Patrick Cardinal O’Boyle’s supervisory authority over it.")

However, the academics and the press were wrong. When written confirmation was received from Cardinal Garrone, it was something less than full approval. "This approval is given for a period of five years on an experimental basis." In fact, Garrone reiterated the Vatican’s view that it had to approve any further amendments to the by-laws.

 

The Fight over the Canonical Statutes

In 1979, the Vatican promulgated a new apostolic constitution for the governance of "ecclesiastical institutions" (i.e., those that can grant degrees recognized by the Vatican), Sapientia Christiana. That constitution did for ecclesiastical institutions what Ex corde ecclesiae is now attempting to do for other Catholic universities. The new constitution required a canonical mission for those who would teach matters relating to faith or morals (principally, but not exclusively, theology and philosophy) and it required all ecclesiastical institutions to adopt implementing statutes that would make the core requirements of the constitution binding on them in a legally enforceable way (i.e., to create a "juridical" relationship between the institution and the church).

Beginning in 1980, Catholic University began to draft such statutes, but a severe and sometimes acrimonious debate arose between the administration and the archbishop of Washington on the one hand and the faculty on the other. Among the issues dividing them were the requirement for a canonical mission and the application (or more properly the non-application) of any set of statutes to the non-ecclesiastical portions of the university, including the non-ecclesiastical portions of the department of theology.

The new archbishop of Washington who was ex officio the chancellor of the university, James Hickey, was a stickler for detail and orthodoxy. As a parish priest in Gaithersburg, Ohio, he reportedly once ordered the parishioners to stop making communion wafers with honey and to return to the traditional flour and water. As chancellor, he insisted that, in accordance with the new apostolic constitution, the implementing statutes of the university must contain a requirement of a canonical mission. Although the faculty urged him to attempt to negotiate an exception from Rome, he refused. Of course, since he was the one who would grant and remove the canonical mission in the first place, the requirement gave him a measure of control over the teaching of theology.

Hickey’s insistence that the canonical mission requirement be reflected in the draft statutes did not sit well with the theology faculty. In fact, it caused a protest at the university, especially in the department of theology. Father Carl Peter, then dean of the school of religious studies, wrote to Hickey: "My own clear preference is to try to achieve fidelity and freedom without the missio canonica...."

Father Frederick McManus, a distinguished professor of canon law, reported that the "introduction" of the requirement of a canonical mission would lead to a decline in the number and quality of faculty and students:

The representatives of the senate reported on the meeting of the council of the ecclesiastical faculties on October 27, specifically the concern that the introduction of the missio canonica etc. would lead to decline in numbers and quality of faculty and students; the clarification that only twenty percent of the students in the department of theology are enrolled in the ecclesiastical degree programs....

Two months later, the department of theology voted to ask archbishop Hickey to "seek dispensation" from the requirement of a canonical mission because "changing [the procedures of hiring and tenuring] would be injurious to the mission of the faculty." He refused.

One of the issues that the drafters of the canonical statutes had to deal with was how to describe the reality that although the department of theology had the authority to grant ecclesiastical degrees (and was therefore "ecclesiastical"), there was a portion of the department that was not "ecclesiastical" and that granted regular civil degrees. The drafters were concerned that the canonical mission requirement might inadvertently be applied to the entire department. The formulation that the drafters agreed upon was a passage in the statutes stating that "these faculties are not exclusively ecclesiastical. They also have other academic programs which do not have canonical effects and to which these statutes do not apply."

The board of trustees approved the canonical statutes. They were expressly contingent on approval by the Vatican’s congregation for Catholic education, and therefore they were sent to the Vatican for approval in early 1981. In preparation for a meeting with the Vatican, Father McManus wrote:

[T]here is considerable concern that the introduction of new requirements, reasonable in themselves, might weaken institutional academic responsibility, integrity, and credibility. In particular, there is a desire that, so far as possible, the ecclesiastical faculties be as little different as possible, in matters of governance, from the other faculties, since the university is a single community of scholars.

He also warned of the possible effect of extrinsic control on the "civil charter" of the university:

Although the civil charter of the university may seem to be of lesser significance than the objective academic excellence of the institution, the relationship of the university to the civil authority is a complex one, since the university is the recipient of governmental support in the form of research contracts and grants, training grants, building loans and grants, loans, and other financial assistance to students. It is important that, given the civil separation of church and state which otherwise works to the advantage of the church and its freedom, the instances of direct or formal church regulation not be increased needlessly.

The Congregation for Catholic Education did not unconditionally approve the statutes but criticized them because they permitted a professor without a canonical mission to teach in the non-ecclesiastical degree program in the department of theology. As a result, the statutes were only approved "experimentally" and only "for three years."

 

Rome’s Investigation of Curran

As noted, in 1966, just a year after Curran came to Catholic University, the Vatican’s Congregation for the Doctrine of the Faith, a successor to the so-called Holy Office, opened a "docket" on Professor Curran, and began to examine some of his writings for orthodoxy. Principally, the Congregation was concerned with his writings in sexual ethics, but toward the end of the investigation, it appeared to be more concerned with the conditions under which a theologian could articulate dissent from any non-infallible teachings of the church.

Curran learned of that investigation in 1979. There then ensued a lengthy and somewhat unsatisfactory correspondence between him and the Congregation. Archbishop Hickey and Board Chairman Cardinal Bernardin met with Curran several times to discuss the matter. On one occasion Curran proposed to them and to the Congregation that he would voluntarily agree to refrain from teaching in the area of sexual ethics if that would resolve the controversy, but the Congregation would not accept that compromise and Archbishop Hickey "never thought it would fly."

 

 

The University’s Actions to Withdraw Curran’s Canonical Mission

In a letter dated July 25, 1986, Joseph Cardinal Ratzinger, Prefect of the Congregation for the Doctrine of the Faith, brought the dialogue to an end by informing Curran that the Congregation had concluded that "one who dissents from the magisterium as you do is not suitable nor eligible to teach Catholic theology" or to "exercise the function of a professor of Catholic theology." The letter indicated that it been approved by the Congregation for Catholic Education and that it had been presented to the pope who "approved both its content and the procedure followed."

The letter was sent to Hickey who gave it to Curran on August 18. Hickey also received a private letter from Ratzinger, which he did not reveal at the time, stating that the pontifical approbation of this decision renders it a "definitive judgment in this case" and calling upon him to "take appropriate action" to deal with Curran.

At a press conference on August 18, 1986, Hickey announced that because of Cardinal Ratzinger’s letter, he had initiated "the withdrawal of Father Curran’s ecclesiastical license to teach Catholic theology," the canonical mission. Curran, too, held a press conference two days later in which he said that he would invoke his "due process" rights guaranteed to him under the canonical statutes. Those rights gave Curran a right to a hearing before an ad hoc committee of faculty members, a right to a decision by the board of trustees and a right to appear before the board before a decision is made.

The university was very concerned with how this affair was going to be perceived by the public and by its academic peers and chose a strategy. It would proclaim its status as a true university with true institutional autonomy and academic freedom, and portray the Curran affair as a minor matter relating to a very small, ecclesiastical institute within the university. It would claim that its actions against Professor Curran were limited to his teaching in an ecclesiastical faculty where a canonical mission was required.

In an article appearing in the August 23, 1986, issue of America, President Byron wrote:

What is the university to do when a commissioned professor loses his or her commission?...If the outcome of the review is not a restoration of the commission, the university can provide an alternate faculty position to a professor whose competence and integrity have been reaffirmed by due process, but whose commission to teach in the name of the church no longer obtains.

Cardinal Bernardin said that he believed that as a tenured professor, Curran would be allowed to rely on the university’s representations that academic freedom and institutional autonomy not only existed at Catholic University but were "essential conditions of university life and growth."

Hickey, who was then still an archbishop, had an entirely different agenda. He knew exactly what he was going to do, and it had nothing to do with the canonical mission. He formed the conclusion immediately that the Ratzinger letter would preclude Curran from teaching theology anywhere at the university, even in the non-ecclesiastical faculties where a canonical mission was not even arguably required. As he put it, from the day he saw the Ratzinger letter, "it was as clear as could be" that Curran could not teach theology anywhere at Catholic University.

Although Hickey did not publicly disclose his private view, its outlines began to emerge. In September 1986, the department of theology announced that Curran would teach three courses during the spring 1987 semester: Social and Political Ethics, Moral Theology in Practice, and the Bible and Moral Theology. However, on October 3, 1986, the academic vice president of the university instructed Dr. William Cenkner, dean of the school of religious studies, to remove Professor Curran’s name from the three scheduled courses and to identify the teacher as "to be announced."

 

The Suspension

On December 19, 1986, Hickey announced that he intended to suspend Curran from teaching "in an ecclesiastical faculty." Cenkner and Power vigorously opposed the chancellor’s proposed course of action. Dr. Power stated: "I can see no acceptable warrant for this suspension" and Dean Cenkner urged Archbishop Hickey not to suspend Professor Curran, stating that "the gravity of the situation will only be increased with the proposed suspension," and that the "suspension of Father Curran places our programs in moral theology in severe jeopardy."

Cenkner asked Hickey to limit his suspension to the ecclesiastical degree program in the department of theology:

Could we not limit Father Curran’s courses to students in the non-ecclesiastical degree programs in the department of theology? I am especially concerned about the graduate students who are pursuing work in moral theology....Permitting Father Curran to teach students in the non-ecclesiastical degree programs would be a way of assuring continuity of the canonical mission over the ecclesiastical degree program.

Cenkner also proposed a second alternative, permitting Professor Curran to teach in a different department in the School of Religious Studies.

However, Hickey told Power and Cenkner that despite any distinction between ecclesiastical and non-ecclesiastical parts of the university, he would not permit Curran to teach theology anywhere.

Curran offered a compromise:

I would like to make one last effort to try to avoid what I still think will be dire consequences for the church and the Catholic University if you suspend me....I propose to move out of the department of theology and become a professor at large within the university. I would then teach courses in my areas of competency which would be open to all students in the university who are not enrolled in ecclesiastical degree programs.

Hickey never responded to that letter and on January 9, formally suspended Professor Curran "from teaching in an ecclesiastical faculty...." The three courses that Curran was scheduled to teach were canceled. Curran accepted a temporary teaching position as a visiting professor of theology at Cornell University and, on February 27, 1987, sued the university for breach of contract.

 

The Faculty Committee

An ad hoc faculty committee was appointed by the academic senate on January 31, 1987, to hear Hickey’s charge that Professor Curran’s canonical mission should be withdrawn. Specifically, Hickey asked the committee to decide whether, in the words of university’s statutes, the Ratzinger letter was a "most serious reason" sufficient to justify Hickey’s action.

The committee was chaired by Professor Urban Lester of the law school and it contained two members who had been members of the Marlowe committee in 1968. It also contained a colleague from Curran’s department of theology, the Jesuit priest Avery Dulles. The Committee retained civil counsel, the Washington firm of Hogan & Hartson and canonical counsel, the eminent canonist, Rev. Ladislaw Orsy, SJ.

The university rested its case entirely on the Ratzinger letter, which it argued was ipso facto a "most serious reason" and not subject to further debate or discussion. The committee called two witnesses of its own, including McManus; Curran called five live witnesses, including himself, Power, Cenkner, and Sister Alice Gallin and presented the written testimony of five others, including Bernard Haaring, Richard McBrien, Richard McCormick, and Monika Hellwig. President Byron at first refused to appear, stating that since it fell to him ultimately to review the committee’s report, it would be "inappropriate" for him to testify. The committee disagreed and ultimately required him to testify. Cardinal Hickey also refused to appear.

At issue almost immediately was what would happen to Curran if his canonical mission, assuming that he had one at all, were taken away. Would he still be permitted to teach in the non-ecclesiastical portions of the department of theology? Would he still be allowed to teach theology outside the department? Would he lose his tenure?

Five months later, the Faculty Committee rendered its report. It was a partial vindication for Curran.

The committee acknowledged Curran’s contractual right to teach in the area of his competence, whether or not he had a canonical mission, and concluded that Professor Curran’s canonical mission could be withdrawn only if the consequence was that he was not deprived of his right to teach in the field of his competence.

Hickey rejected the committee’s report. He claimed that the committee had exceeded its mandate since the only issue the committee was asked to answer was whether there was a "most serious reason" for withdrawing the canonical mission not whether Curran should be offered a teaching position elsewhere in the university in the area of his competence. He returned the report to the committee. On December 21, 1987, the committee reconsidered and stood by its report:

[T]he statement of Cardinal Ratzinger that Professor Curran is "neither suitable nor eligible to teach Catholic Theology" is not controlling with respect to Professor Curran’s ability to teach in any department outside an ecclesiastical faculty. In such departments the university must be guided by the American norms of academic freedom and tenure, including principles of academic competence and peer judgment....

The board of trustees then rejected the committee’s report in its entirety.

 

The Board’s Action and Curran’s Efforts to Compromise

On April 12, 1988, the Board issued a press release announcing that it had removed Curran’s canonical mission, and that as a consequence, he was barred from teaching in the department of theology. The board said that its actions did not remove his "tenure" with the University. Hickey, Byron, and Board Chairman Cardinal Bernardin were authorized "to enter into a discussion with Professor Curran concerning an alternative teaching assignment within an area of his professional competence."

No agreement was reached. Byron wrote to Curran and offered him a teaching position as a professor of Christian social thought in the department of sociology, but Curran would be required to agree in advance that theology students could not take his courses for credit, that other students in the school of religious studies could not take his courses to satisfy any core requirements, that he would dismiss his pending lawsuit with prejudice and give the university a general release, that he would "accept" the Ratzinger "declaration" as binding upon him, that he would "accept" two provisions of Canon Law as binding on him, that he would never again teach theology anywhere at the university and that a violation of that "agreement" on his part would constitute grounds for dismissal.

Curran rejected those conditions.

On May 25, 1988, Byron, in a letter that was approved by Hickey and Bernardin, offered to allow Curran to teach two courses in the school of arts and sciences, either in the departments of sociology, politics, or economics. This time, the offer was conditioned only upon two requirements: that Curran accept the Ratzinger declaration that he was ineligible to teach Catholic theology; and that his teaching, now and in the future, would not be in the area of his competence, i.e., Catholic moral theology.

Curran accepted the offer to teach but said that since he was a moral theologian, he would naturally teach from his perspective as a moral theologian. He rejected any additional conditions to his contractual employment relationship with the university and he specifically refused to agree to Byron’s conditions.

 

The June 2, 1988, Board Resolution

On June 2, 1988, the Board of Trustees met and passed a resolution stating that it accepted

the declaration of the Holy See as binding upon the university as a matter of Canon Law and religious conviction...[and] the board remains open to a teaching assignment for Father Curran that is consistent with the terms of the Holy See’s declaration, but determines that any assignment allowing Father Curran to exercise the function of a professor of Catholic theology despite the Holy See’s declaration that he is ineligible to do so would be inconsistent with the university’s special relationship with the Holy See, incompatible with the university’s freely chosen Catholic character, and contrary to the obligations imposed on the university as a matter of Canon Law.

Notwithstanding the fact that a canonical mission was only required in the ecclesiastical faculties, under the board’s resolution Curran would be barred from teaching theology anywhere in the university. The university never said publicly what prompted the resolution, which was issued just after graduation when the campus was virtually deserted. Few people on the faculty knew about it and fewer still appreciated its significance. For the first time since the "depontificalization" of the university in 1970, the university had once again declared itself to be bound by Canon Law and therefore required to give preclusive effect to the Ratzinger declaration.

The board’s resolution accomplished two things. It prevented Curran from teaching theology anywhere in the university—solely because of the Ratzinger letter—and it set up the university’s defense in Curran’s civil lawsuit that since the university was now governed by Canon Law, its actions were protected by the First Amendment’s guarantee of the free exercise of religion.

On June 3, 1988, President Byron responded to Curran’s earlier May 25, 1988, letter, and he informed Curran of the June 2 resolution. Byron made it clear that his offer to teach ethics was still open, but that it was in fact conditioned upon Curran’s acceptance of and/or agreement to comply with the Ratzinger declaration and that he would not be permitted to teach the two courses from his perspective as a moral theologian. He stated that the board of trustees had decided "for religious reasons" that it would not permit Curran to "exercise the function of a professor of Catholic theology" at the university. He also urged Curran to "comply with" the Ratzinger declaration and he stated that "if you are not prepared to comply with [the Ratzinger] declaration at this university, then I am forced to concur with the option stated in your letter, namely, your intention to ’pursue a temporary teaching assignment elsewhere.’"

Curran responded the same day, saying that he would not agree to accept or to be bound by the Ratzinger declaration.

 

The Litigation

In February 1988, the university asked the Court to dismiss Curran’s complaint. The university claimed that the decision of the chancellor to suspend Curran was based on Canon Law and therefore immune from judicial review. Judge Bruce Beaudin of the District of Columbia Superior Court rejected the university’s argument.

After the board decided to withdraw Curran’s canonical mission and voted not to allow him to teach theology anywhere at the university, Curran filed an amended complaint in which he asserted that, in addition to the suspension, both of those actions constituted a breach of his contract. He did not seek any damages, but he asked for "specific performance" of his contract: he wanted to be reinstated as a professor of theology and to be permitted to teach theology.

The trial began on December 14, 1988, before Judge Frederick Weisberg. Weisberg was not Catholic. He had no prior experience in university affairs and in church-university relations. He decided that the central issue was not a religious one but rather whether the university had breached its contract with Curran. Since there was no written contract, the Court was required first to determine what the terms of the contract were, what the parties’ understanding was at the time it was entered into, and the significance of the "special relationship" between the university and the church.

The trial lasted several weeks. In addition to Curran and Byron, the witnesses included Cardinals Hickey and Bernardin, the dean of Curran’s department at the university and the head of the school in which it was located, as well as two former presidents of the university and several theologians.

 

The Court’s Decision

On February 28, 1989, Judge Weisberg ruled that the university did not breach Professor Curran’s contract. He found that when the contract was originally entered into, it did not require Curran to have a canonical mission but the 1981 Canonical Statutes, which did contain such a requirement, became a part of his contract when they were enacted.

As to whether Curran could teach theology in the non-ecclesiastical parts of the department of theology, the Court sided with the university. Judge Weisberg held that even though the department of theology had non-ecclesiastical degree programs and non-ecclesiastical students, it had a "unitary faculty." Therefore he held that the canonical mission requirement applied to all professors in the department of theology. Having lost his canonical mission, Curran could not teach anywhere in the department of theology.

The harder question, "not as easily resolved," was whether Curran could teach theology elsewhere in the university since a canonical mission was not required for professors of theology who did not teach in the department of theology. Judge Weisberg asked whether the university had any obligation to allow Curran to do so, and he concluded that it did not. The university’s judgment, he said, was not based upon Curran’s competence as a professor but on a declaration by the Vatican. As a result, traditional norms of academic tenure or freedom did not apply.

Judge Weisberg said that although at the time of Curran’s contract neither party could have anticipated a declaration from the Vatican that was as broad and definitive as the Ratzinger letter, Curran must have known that the university had a relationship with and a "concomitant responsibility to the Roman Catholic church":

No one—least of all a Catholic priest and a professor of Catholic theology—could have contracted with CUA without understanding the university’s special relationship with the Roman Catholic church, with all of the implications and obligations flowing from that relationship.... The university did not breach its contract with Professor Curran by requiring him to teach courses other than Catholic theology or, for that matter, by requiring him to be bound by the declaration of the Holy See.

The canonical mission requirement became irrelevant, for the same result would have been reached if there had been no canonical mission requirement at all. Once a faculty member knowingly entered into a contractual relationship with a Catholic university that has a "special relationship" with the Holy See, as set forth in its governing statutes, the Holy See has the right and the power to determine the contours and bounds of that contractual relationship. Since the Court could not determine what is or is not required by Canon Law, it must accept the university’s own determination of its obligations: "Whether or not the university is correct that it was obligated to accept the determination of the Holy See as a matter of Canon Law, it was surely bound to do so as a matter of religious conviction and pursuant to its long-standing, unique and freely chosen special relationship with the Holy See."

Judge Weisberg discussed a "hypothetical contract" between Curran and the university. It had five elements: (a) the parties recognize that there is a special relationship between the university and the Roman Catholic church; (b) nevertheless, the university guarantees its professors academic freedom, which means at least (c) that the university will take no adverse action against the professor based on the moral or religious content of his speech, writing or teaching, (d) if it is determined that professors need a canonical mission and the Vatican tries to take it away based on the content of the professor’s speech, the university will defend the professor’s right to hold it, and (e) if it is nevertheless taken away, the university will guarantee the professor a right to teach in an area of his competence in an appropriate department where a canonical mission is not required subject to all the rights and privileges customarily associated with academic freedom in an American university.

Weisberg’s "hypothetical contract" was a classic articulation of academic freedom. It set out a clear and fair method of guaranteeing academic freedom in the face of the efforts of an "external authority" to interfere with it. It offered a way to reconcile academic freedom with a university’s "special relationship" with the church. It described the relationship that most professors at Catholic University thought they had with the institution after the events of the 1960s and the "depontificalization" of the university.

Unfortunately, however, Judge Weisberg found that that was not Curran’s contract. In fact he found that Catholic University "would never write such a contract." That "hypothetical" contract described the University that Curran "wanted to work for, maybe even the one he thought he was working for, but not the one with which he contracted."

Weisberg explained:

The bulk of plaintiff’s proof at trial was historical. His burden, as he saw it, was to show that the events at CUA in the late 1960s had transformed the university into a place where academic freedom reigned supreme, to the exclusion of all else, including the obligations imposed on the university by virtue of its pontifical charter and its relationship with the Holy See. There is little doubt that the late 1960s was an extraordinary time at Catholic University. In many respects the events on that campus were a reflection of the turmoil on college campuses all across the country. These were turbulent times, characterized by persistent testing of institutional limits on all forms of expression of individual freedom, including academic freedom. It is hardly surprising that The Catholic University of America, with its close ties to the Roman Catholic church, found itself in the middle of these struggles. Nor is it surprising that many of the changes at the university—the Marlowe committee report and its partial acceptance by the board of trustees, new statements about academic freedom at the university and changes in the university’s bylaws and statutes, to list just a few—were directed at strengthening the independence and autonomy of the university and its faculty from interference by outside authorities, not the least of which was the Holy See.

Internally, the university had to wrestle with its own ambivalence. On the one hand, it wanted to be recognized as a university—a Catholic university, to be sure—but a full-fledged American university nonetheless. On the other hand, it continued to place transcendent value on its unique and special relationship with the Holy See.

Perhaps it can fairly be said that the university wanted it both ways; but on most issues it can also be said that the university could have it both ways. On some issues—and this case certainly presents one of them—the conflict between the university’s commitment to academic freedom and its unwavering fealty to the Holy See is diect and unavoidable. On such issues, the university may choose for itself on which side of that conflict it wants to come down, and nothing in its contract with Professor Curran or any other faculty member promises that it will always come down on the side of academic freedom....

The question presented is whether [Curran’s] contract gives him the right to teach Catholic theology at Catholic University in the face of a definitive judgment by the Holy See that he is ineligible to do so. The court holds today that it does not. Whether that is ultimately good for the university or for the church is something they have a right to decide for themselves.

The American bishops who just voted to require the implementation of Ex corde ecclesiae in the United States, presidents of Catholic colleges and universities in the United States and, most important, members of the boards of trustees of those colleges and universities who will be asked to decide whether to follow the bishops or not, would do well to consider this cautionary tale. "Juridical relationships" such as those that the new norms require to be created between the university and the church are fraught with peril and can lead to serious unintended consequences, despite the best of intentions. They should not be undertaken lightly or without a full understanding of the implications.

Nobody at The Catholic University of America wanted to fire Charles Curran; the Vatican did. Because of the juridical relationship between that university and the Catholic church, he is now a distinguished professor of theology at Southern Methodist University.

 

The author served as counsel to Charles Curran in Curran v. The Catholic University of America. A shorter version of this article appeared in print in the April 21, 2000, issue of Commonweal.

Published in the 2000-04-21 issue: 

Paul C. Saunders is a retired partner of Cravath, Swaine & Moore LLP; Distinguished Visitor from Practice, Georgetown University Law Center; and Director of the International Rule of Law Project of the Bingham Centre for the Rule of Law.

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