The current generation in Catholic higher education has been one of growth, debate, and retrieval. It has given rise, especially in the past few years, to a widespread determination that the religious identity of American Catholic colleges and universities is a gift that must be preserved and handed on. That determination has been strengthened by the 1990 apostolic constitution, Ex corde ecclesiae. The authors of this letter have all been engaged with Ex corde since its early drafts, and have been working to implement it since its promulgation. However, we are concerned that a November vote by the U.S. bishops on the current version of the norms for implementation could hinder our efforts. We offer here a brief reflection on why Catholic higher education will benefit from more time to work out the issues that remain unresolved.
The theology of communion (communio) has provided a rich framework for the principles and norms of the Ex corde implementation document. The "theology of communion" at Vatican II overcame ecclesiological approaches that tended to be overly juridical. Communion themes were intertwined with a stress on the collegial exercise of authority, on the universal call to holiness, on ecumenical progress, and on human solidarity. "Communion" is used analogically in the council documents to refer to a complex web of relationships. Juridical norms need be framed in the light of how they foster or undermine these relationships. Those who rely on communion themes to justify the institution of new juridical norms need to pay special attention not only to the types of norms that are established, but also to the process by which they are established, as well as to the legitimate practices, customs, and laws particular to an individual culture and country. Attention must also be given beforehand to the type of reception the norms will receive, both from those to whom they apply, and from those whose judgment will affect the standing of Catholic higher education.

On November 16, 1996, the U.S. bishops overwhelmingly (224-6) approved "Ex corde ecclesiae: An Application to the United States." The text-the result of a long and fruitful dialogue between bishops and presidents of Catholic colleges and universities-stressed a pastoral approach and a continuation of that dialogue. While praising the document, Rome sent it back to the bishops asking them to "incorporate the necessary juridical elements." A subcommittee composed of canon lawyers produced a new text on October 15, 1998. This new text made explicit various juridical elements, including the necessity of a mandate for a Catholic theologian. Many suggestions were made by the leaders of Catholic colleges and universities and others to improve the text. The members of the Association of Catholic Colleges and Universities [ACCU] drafted an alternate set of norms, suggesting specific applications for each of the norms included in Ex corde. The ACCU believed its suggested norms incorporated the necessary juridical elements. The ACCU text won the full support of the vast majority of presidents. The bishops of the implementation committee, however, chose to present only the text prepared by their own subcommittee.

The bishops’ newly revised text for the proposed norms-issued on September 21, 1999- includes a number of improvements. It attempts to retain as much of the communio emphasis as possible in a document with explicit juridical norms. The bishops state clearly that the dialogues over the past nine years have been "graced moments," characterized by a genuine openness to a deeper exploration and appropriation of Catholic identity.

The revised text also makes clear that the presidents’ concerns about the eligibility of their institutions to receive federal monies have been heard. It emphasizes "institutional autonomy" and the integrity of secular subjects, and when it urges faculty to respect Catholic doctrine, it adds that this does not mean that "a Catholic university’s task is to indoctrinate or proselytize its students." The text indicates that the purpose of the norms is to "assist Catholic colleges and universities in their internal process of reviewing their Catholic identity." These clarifications all indicate a genuine effort to take into consideration a number of difficulties pointed out by the leaders of Catholic colleges and universities.

Despite these improvements, problems remain, problems that we believe work against the theology of communion intended to inform the document. Others have pointed to the expectations that more than 50 percent of the faculty be Catholic, and that the president take the oath of fidelity. We wish to focus here on the requirement that individual theologians seek a mandatum. This requirement stands in tension with other elements of the document that better reflect a collegial style and a relationship of mutual trust. The current form of these norms runs counter to the 1996 proposal for implementation worked out by bishops and university presidents, with special concern for what will work best in the academic culture of the United States.

The mandatum, in its present form, is likely to have a negative impact on graduate programs in theology at Catholic universities. Perceiving the mandatum as an inappropriate limit on academic freedom, better Catholic graduate students may well go in even greater numbers to Yale, Harvard, and Chicago, where they can do Catholic theology with Catholic theologians unfettered by canons 810 and 812. And Catholic graduate programs in theology may well wither.

Moreover, the mandatum is likely to lead to legal challenges. Despite the revision’s intent to ameliorate problems with the civil law and funding, lawyers disagree about the effect of the mandatum. As the supplemental document of the committee states, "while various scholars have written about the meaning of the mandatum and how it should be applied since its appearance in the revised Code of Canon Law in 1983, there is little actual experience to guide the proper implementation of the canon." If there is litigation, the costs both for universities and for dioceses will be substantial.

If the current proposal were the only way to ensure the integrity of Catholic theology and to preserve the identity of Catholic universities, voting on it would be a risk worth taking. But viable alternatives exist that accomplish the same goals without risking the serious damage likely to follow approval of the current draft. One fully formulated alternative is the "Structures for Implementation" proposed by the ACCU in April (available on the ACCU website at http://www.accunet.org/excorde/altprops.html). The proposal fully respects the bishop’s rights and responsibilities while furthering the networks of dialogue, mutual collaboration, and trust so crucial to the successful implementation of whatever norms the bishops approve.

A local bishop already has the canonical power to address the problems the mandatum attempts to deal with. A bishop can and ought to name as un-Catholic the teaching of any individual theologian who, in fact, goes against clearly defined dogma and official teaching. Moreover, a bishop has the right and the responsibility to judge whether a college or university has so far departed from its Catholic mission that it ceases to be Catholic. Of course, neither step should be taken without careful discernment on the part of the bishop, a discernment that should include not only conversation with the individual theologian or the leaders of an institution, but also with other bishops and theologians whose judgment in such matters is known to be sound. In fact, an excellent process for dealing with differences between a bishop and a theologian has already been spelled out in the 1989 document, "Doctrinal Responsibilities: Approaches to Promoting Cooperation and Resolving Misunderstandings between Bishops and Theologians." At what point to make the judgment that an institution no longer is "Catholic" remains unclear. But no one should underestimate the potential effect of a bishop’s declaring that the teaching of an individual is inconsistent with Catholic doctrine, or the devastating impact that would follow if the local bishop were to declare that a college or university could no longer be considered Catholic.

The process and the goal of fully implementing Ex corde are both best served by norms that preserve and deepen the network of relationships among bishops, theologians, and the leaders of Catholic colleges and universities. Structures such as those proposed by the ACCU have a better chance of doing that than the proposals in the current draft. A vote on the current draft would weaken rather than strengthen the very relationships the draft is trying to preserve since a viable undiscussed alternative exists.

Perhaps the strongest argument against the current proposal is that it is likely to work against its own goals. The implementation of even the strictest norms (which, we have acknowledged, the current draft does not represent) would leave undone much of the work most necessary in safeguarding the Catholic identity of Catholic universities. That work depends on relationships-relationships between faculty and administrators, between Catholic and non-Catholic members of the university community, between members of the university community and the local bishop, between scholars and their professional associations and professional publications. At the heart of Catholic universities that are striving to be truly Catholic and truly universities is this dense network of relationships, most of which will be damaged by an overly juridical approach to Ex corde. If these relationships are damaged, much of the work of the past couple of decades to revivify the Catholic identity of Catholic universities will be lost.

That is why our primary plea now is for more time. However pastoral the intentions behind the mandatum, it is likely to thwart the development of true communio that is well under way on our campus and others. Whether or not the mandatum in its present form threatens academic freedom properly understood, in our academic culture it is widely perceived as doing so. The renewed vigor of Catholic intellectual life and the Catholic identity of universities require that our colleagues-Catholic, non-Catholic, unbeliever, whatever their disciplines-share our confidence in the compatibility of Catholicism and intellectual work. The mandatum in its present form would deal a serious blow to that confidence.

Our request for more time is partly pragmatic: Given the six years between Ex corde and the issuance of the first draft norms, and given how much the relationship between the bishops and the universities was strengthened, it seems a rush to vote on the current draft with only six weeks between its being made public and the scheduled poll. We echo the sense of Bishop John D’Arcy (Origins, September 23, 1999) that clarifying dialogue between bishops and theologians must "precede rather than follow the steps now being proposed. If it does not precede, how can we expect the setting in place of the mandate to bear positive fruit for the life of the church?" More time won’t cost us anything and could benefit us immensely.

Our request is based not on purely pragmatic or procedural issues, but on an assessment of the current historical moment that counsels patience. In some crucial ways, the intellectual encounter of Catholicism with modernity is very recent. Particularly in the fields of philosophy and theology, that encounter began in earnest only one or two scholarly generations ago (in Catholic time, barely yesterday). It was and is an earth-shaking encounter. Catholic philosophy and theology have had to come to grips with the functional atheism of the academy, with religious pluralism, second-wave feminism and the emergence of identity politics, and with the ideological fallout of the collapse of Soviet communism and the apparent global triumph of free-market capitalism. All of these pose challenges to Catholic teaching. At the same time, all are potential arenas of graced encounter.

As faculty and administrators, we accept our responsibility to both church and academy to maintain the Catholic university as university and as Catholic. We want and need the bishops’ assistance. This is best accomplished without the mandatum, and without a vote on the current draft. We hope we can demonstrate what we are doing on our campuses to enliven Catholic identity. We have helped reshape curricula-interdisciplinary, integrated, humanistic in the best tradition of the Catholic origin of universities-to include and restore the riches of Catholic life and thought. Our faculty speak in a wide variety of scholarly, educational, and pastoral settings on issues crucial to the life of the church. We work enthusiastically with colleagues who are not Catholic, learning from them, hoping they learn from us, reassuring them by our lives and work that a lively Catholic identity supports and enhances an institution’s commitment to academic freedom rather than constricts it.

The Catholic identity of Catholic universities, fully realized, is centrally concerned with making the consequences of the Incarnation ever more apparent. Those of us most deeply engaged with the work have benefited from the collaboration with the bishops. We ask for more time to deepen and further that collaboration, and to continue the implementation we have begun together.