Look Before You Sign

Ex corde and college trustees

The revised, and now Vatican-approved, local ordinances ["U.S. norms"] of the Catholic bishops of the United States for the implementation of the 1990 Apostolic Constitution Ex corde ecclesiae go into effect next May. They prescribe requirements for Catholic colleges and universities to be "officially" Catholic. A large majority of the Catholic universities that are not officially so are to be found in the United States. They are the focus of what follows, for they must now decide whether to become "officially" Catholic.

Under Caesar’s laws, not ostensibly contrary to Catholic faith or morals, each member of a university’s governing body ["trustee"], whether cleric, religious, or lay person, Catholic or non-Catholic, has a fiduciary duty to decide whether or not accepting this invitation from the papacy is in the best interests of the university. Secular law does not dictate a fiduciary’s decision; it only requires that he or she be adequately informed and consider all the relevant data.

There is much to be said, and undoubtedly much will be said at university governance meetings, in favor of embracing Ex corde. The document is certainly not radical, having antecedents in the 1917 Code of Canon Law (nothing to be done or taught contrary to faith or morals and hierarchical supervision) and the 1983 revised Code of Canon Law.

University trustees, however, must look at both sides of the coin. To begin with they should be aware that no church legislation has ever interdicted unofficial Catholic endeavors (Commonweal is an example). Such groups do not lose their Catholicity if they decline, as the trustees of Sacred Heart University in Connecticut recently did, a hierarchical invitation to become officially Catholic.

Beginning with this awareness, trustees must consider the consequences of official Catholic status. The first consequence is a fundamental change in the present legal status, canonical and secular, of the university. Since the governing documents of these institutions have not previously been submitted to and approved by competent ecclesiastical authority, the universities are not "juridic" persons under canon law. Therefore, they do not now have any obligations under church legislation or determinations. Ex corde and the U.S. norms require such submission if a university is to be considered "officially" Catholic, and they explicitly require a university to incorporate its commitment to Ex corde and the U.S. norms in its governing documents, effectively creating a "juridical relationship" with the church. Such a relationship has consequences under secular law: consequences well beyond, and perhaps more important than, probable exemption from federal laws that forbid religious discrimination in employment.

While our legislatures and courts properly abstain from involvement in religious matters, our courts, when requested, must resolve disputes over property and contractual matters, even though these arise in the context of religious disputes. When application of religious "law" is necessary to resolve such disputes, our courts defer to religious authorities to determine such "laws." As Paul Saunders recently reminded us (Commonweal, April 21), a judicial relationship with the church permitted The Catholic University of America, a pontifical university, to implement a 1986 Vatican directive depriving Charles Curran, a tenured professor of theology, of his right to teach in his area of competence. In 1986 The Catholic University of Puerto Rico, also juridically related to the church, was successful in terminating a tenured assistant professor of English, Jeanette Quilichini Paz, because, after having been married in the church, she remarried without a canonical annulment after a civil divorce.

Thus, in some cases the juridical relationship with the church will dictate the outcome under secular law of civil disputes involving the relationships of an official Catholic university to members of its faculties and administration. Aside from such legal consequences and the consequences of the much-debated requirement that teachers of theological disciplines have and maintain a revocable license (mandate) to teach from the local diocesan bishop, what are the other results of attaining official status?

Ex corde and the U.S. norms require that, to the extent "possible," a majority of the faculty and of the members of the board of trustees be Catholic. Even if this is now the case at Catholic universities, should they become officially Catholic it must remain the case. This means that some sort of "Catholic or not" list will be needed to guide decisions on board and faculty appointments and, because of long-term effects, on the granting of tenure to teachers.

A highly qualified young non-Catholic academic either may not seek or may decline an offer of appointment from an official Catholic university or, if already on its faculty, may migrate to a university at which his or her religion, or lack of religion, will not enter into tenuring decisions. Moreover, a highly qualified Catholic academic may prudently conclude that such an appointment or tenure may be attributed by peers to his or her religion and may thus want to avoid such a shadow by seeking a career elsewhere.

Ex corde and the U.S. norms also require that the university appoint to a teaching position only those who are "outstanding" in "probity of life"; those who are so lacking must be dismissed. It is reasonable to assume that some percentage of both Catholics and non-Catholics in the United States lack such "probity of life" in the eyes of church authorities for a variety of reasons (remarriage without a canonical annulment, receiving the Eucharist while "living in sin," etc.), and that this group includes, though perhaps to a lesser degree, a not insignificant number of teachers at Catholic universities. Where a lack of "probity of life" is locally known, compliance with Ex corde will require the initiation of dismissal proceedings. Moreover, the Vatican has recently reaffirmed (see "License for Vatican Sneaks," The Tablet, August 28, 1999) the need for and propriety of "delation," that is, secret submissions to church authorities of derogatory information by concerned Catholics who can remain anonymous. Hence, lack of probity of life need not be notorious to trigger initiation of dismissal proceedings. Will the "probity of life" requirement and its enforcement mechanisms create a potential for mischief, fear, and demoralization in Catholic university communities?

Another consequence of becoming officially Catholic is that the university will be subject to the canon laws restricting the disposition of permanent assets that have more than a relatively modest value. Regardless of the views of its trustees, such a university with a financially troubled hospital owned by its medical school will need hierarchical permission to sell the hospital or merge it with another hospital. Similar permission will be required for mergers of the university itself with another university or of one of its professional schools with another professional school.

Ex corde requires that all official actions or commitments of the university be in accord with its Catholic identity, thus further circumscribing the university’s autonomy in the areas of granting honorary degrees, sponsorship of guest lecturers, and university support for student organizations. The local diocesan bishop is charged with enforcement of all these requirements.

Thus the decision of a fully informed trustee whether to embrace Ex corde poses many questions, some relevant only to a particular institution but others more broadly relevant. Would a serious and well-funded Catholic Studies program be sufficient to enhance the university’s Catholicity? Is the "good" the university now accomplishes an enemy or an ally of the potentially "perfect" Catholic university? What are the economic consequences of choosing to be an official or unofficial Catholic university in the United States? These are among the many issues boards will have to consider in meeting their fiduciary responsibility to the schools they govern.

Published in the 2000-11-03 issue: 

John F. Hunt is a retired partner of the law firm of Cravath, Swaine & Moore in New York City.

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