If there were a doomsday clock for Catholic higher education in the United States, its hands moved closer to midnight in November 1999, when the U.S. bishops approved “Ex Corde Ecclesiae: An Application to the United States.” The hands moved still closer this past November, when the bishops accepted draft procedures for implementing the Application’s requirement of a mandatum for theologians.
The hands are still moving, counting down to the moment when the American experience of independent but church-related colleges and universities, as envisioned and enacted by Theodore Hesburgh, Timothy Healy, Joseph O’Hare, Raymond Baumhart, J. Donald Monan, Raymond Fitz, Alice Gallin, Paul Reinert and so many others, will be terminated. The challenges and blessings, the tensions and the benefits of our system will be lost to the church, to the academy and to the nation itself as Catholic institutions are forced to become secular or sectarian.
Though they may anguish over it, the bishops themselves will force the schools to make this choice. Why would they do this, even against their own will and inclination? Because they will have been ordered to do it and bishops do not defy orders from Rome. In 1910 Pius X’s encyclical Pascendi Dominici Gregis crippled the church’s mission to culture by its draconian measures to uproot Modernism. Now, not quite a century later, we are facing a similar prospect.Historical Background
The Vatican’s inability to appreciate a system of Catholic higher education independent of the church’s juridical control has been obvious for decades. Soon after his election, Pope John Paul II promulgated Sapientia Christiana, a new set of regulations for church-chartered universities and faculties of theology. Among its stipulations was the requirement that a professor had to receive a nihil obstat from the Holy See in order to be tenured or promoted to full professor. Even though Sapientia Christiana did not apply to colleges and universities, its signal was clear. Along with the investigations of Hans Küng, Edward Schillebeeckx, and Charles Curran, it showed Rome’s intention to put theologians on a short leash.
So it was no surprise that a similar requirement for all other Catholic theologians, a “canonical mission,” surfaced during the preparation of the new Code of Canon Law. A canonical mission granted by the local bishop was a traditional feature of Catholic theology in Europe. There it had been needed to protect the integrity of Catholic teaching in secularized schools from aggressive government interference. In the United States, however, as the argument went, no such need existed; more importantly, a canonical mission would constitute outside interference in a matter properly internal to the university—that is, hiring, tenuring, promoting and terminating the employment of theologians. Not only would Catholic institutions’ legitimate autonomy and eligibility for government financial support be called into question, but also their emerging academic credibility. A canonical mission threatened to make the Catholic university an oxymoron, as its detractors had always claimed it was.
But American bishops and educational leaders could not persuade the code’s drafters nor the pope himself of this. Although “canonical mission” was changed to “mandate,” the code promulgated in 1983 contains the requirement in Canon 812: “It is necessary that those who teach theological disciplines in any institute of higher studies have a mandate from the competent ecclesiastical authority.”
Still, Canon 812 was not enforced in the United States. Some bishops crafted a paper trail against the day when they might have to show that they had followed the letter of the law, but they did not make their arrangements public. Theologians were not warned or advised to obtain a mandate. A theologian who might have wanted a mandate would not have known how to get one. There were no procedures to request or grant it. There were no public norms to determine who should and should not get one. All in all, it looked like the mandate’s opponents had been crying wolf.
Meanwhile, the Congregation for Catholic Education in Rome had been developing a new vision of Catholic higher education’s mission in light of the Second Vatican Council. Their efforts sometimes manifested traditional Vatican incomprehension of the American system, but the congregation listened to its constituents. It convened international meetings to probe the salient issues and welcomed reactions to drafts of its texts. In 1989, however, its focus changed. The pope had decided to issue his own document. The congregation’s new task was to coordinate the consultations that led to John Paul II’s Ex Corde Ecclesiae (1990).
The Catholic educational leadership in this country welcomed Ex Corde with gratitude and relief. The pope had sounded many of the same notes the educators themselves had struck in conferences, congresses and position papers. Ex Corde highlights the necessary role of the Catholic university within the mission of the church, the need to renew and reinvigorate continually its Catholic identity, the pervasiveness of this identity through all sectors of the university in various ways, the necessity of autonomy for the fulfillment of its mission and the difficult balance that it must maintain between the demands of the church and the world. All these were themes and aims shared by faculty, administrators, presidents and trustees of these institutions.
On the minus side, Ex Corde held up the heretofore invisible mandate required by Canon 812. Yet its general norms, said the pope, were to be implemented by “taking into account the statutes of each university...and, as far as possible and appropriate, civil law.” This phrase seemed to provide an escape. Moreover, a mandate required of a Catholic to teach theology would constitute outside interference, and Ex Corde states that “the governance of an academic institution is and remains internal to the institution.” Again the mandate seemed a dead letter as far as the United States was concerned.Ex Corde Ecclesiae in the United States
The U.S. bishops (through a committee chaired by Bishop John J. Leibrecht of Springfield-Cape Girardeau) set to work in obedience to the pope’s directive to prepare “local or regional ‘ordinances’” of Ex Corde’s General Norms. Their labors proved torturous and controversial. Each of their drafts threatened to upset the universities’ delicate balance between church and world. Six years and four drafts later, an Application (then termed “Ordinances”) emerged that the bishops approved overwhelmingly (224 to 6) in November 1996. This was transmitted to Rome for the required approval (recognitio) from the Congregation for Catholic Education. The mandate required by Canon 812 appeared in a footnote that declared the bishops’ intention to study it further.
In April 1997 the congregation denied the recognitio. Calling the ordinances a draft (as if the bishops had sent it to Rome for advice, not for formal approval), the congregation’s prefect, Cardinal Pio Laghi, called for another text. The congregation had noted the lack of “the necessary juridical elements” that might be needed for certain “tensions, crises, or problems” and hoped that the bishops’ promised study of the mandate would yield a “full application” of Canon 812 in their next draft. Obviously, no Application was going to be approved without the mandate. The long moratorium was over.
A new committee produced a text more detailed than the 1996 version, which included what Rome demanded, the requirement of the mandatum (as it was then renamed to avoid the implication that the mandated theologian was the bishop’s agent). In November 1999, the bishops passed the new text, 223 to 31. This “Application of Ex Corde Ecclesiae to the United States” promptly received the recognitio.Implementing the Mandatum
Now that their Application (plus a few small changes made in Rome) had become “particular law” for the church in the United States, the bishops needed procedures to implement it. The Application covers many aspects of university life. Yet when another committee of bishops was appointed, chaired by Archbishop Daniel Pilarczyk of Cincinatti, its charge was to develop procedures for only one of its aspects, the mandatum.
This new committee deliberated by e-mail, phone calls and one face-to-face meeting (Nov. 1, 2000), which four consultants (two theologians, one canon lawyer and one university president) also attended. This meeting was the first time in the nearly 20 years of discussion and controversy over Canon 812 that the bishops had formally discussed the mandatum with representatives of those who will be most directly affected by it, the theologians. Since the committee had to present mandatum procedures to the rest of the bishops at their annual meeting two weeks later, there was hardly time to absorb and respond to the theologians’ concerns, such as the retroactive obligation of the mandatum requirement, the meaning of “full communion with the Catholic Church” as a qualification for it, and the like. A few weeks earlier, a special committee of the Catholic Theological Society of America had completed a detailed report (64 pages) on the theological and canonical problems of the mandatum, but there was little evidence in these procedures that the committee had tried to understand and deal with them.
When all the bishops took up the draft procedures two weeks later, questions like “Do these procedures apply to seminaries?” made theologians wonder if some bishops had read, much less studied, the document they had approved overwhelmingly just a year before. Other bishops were sympathetic to the theologians’ concerns and tried to calm their fears. They pointed out that the procedures included the process for dealing with conflicts between theologians and bishops from their document Doctrinal Responsibilities (1989); this process “should” be used for mandatum disputes. More important, they emphasized that a theologian without a mandatum would not be punished. Archbishop Pilarczyk pointed out that there was no way in canon law or civil law to enforce it. It was essentially “toothless.” The bishops had, it seemed, found the needed compromise.The Mandatum’s Threat
Sighs of relief over this penalty-free requirement are premature and naïve. The 1996 Application of Ex Corde had been rejected in part because it lacked the mandatum, a “juridical instrument.” Now an instrument is used to achieve an end. The mandatum is now in the law, and it will be used.
If the requirement is really “toothless,” it simply maintains the pre-mandatum relationship between bishop and theologian. The bishop has always had a duty and right to “oversee” theologians and to protect the church from real dangers to the faith. A bishop has never needed Canon 812 to investigate a theologian’s teaching and, if need be, to state publicly that it is inconsistent with the faith of the church. With no penalty attached to the lack of a mandatum, a bishop could still find that a theologian’s views were not congruent with magisterial teaching. Then the theologian gets no mandatum or has it withdrawn. This would be the end of the story if there are truly no penalties involved. But is it? Would Rome have pushed so hard for so long for a mandatum that does not change the relationship between theologians and bishops?
The bishops planned to hold meetings about the mandatum with theologians in their dioceses this spring. These sessions could produce amendments to the draft procedures. Maybe the final version, to be voted on by the bishops in June, will clarify the meaning of “full communion” and even of the mandatum itself, since this is quite unclear in the Application. It could omit the current requirement’s retroactivity and oblige only theologians tenured after June 2001. No amount of tweaking, though, will remove the danger.
How many theologians will seek a mandatum? Priests and religious may well be ordered by their superiors, at Rome’s instigation, to do so. Then they will face a painful choice: do they disobey to retain fully their academic credibility, or do they comply and alienate themselves from their lay colleagues?
Yet, if there is no penalty for lacking a mandatum, most lay theologians will probably not apply for one or accept one that the bishop might offer on his own initiative. Why take on a new “mandated” status that might threaten rights already guaranteed under civil law—especially if there is no penalty involved? Therefore widespread, quiet and respectful noncompliance now seems to be the most likely prospect. With a toothless mandatum, theologians would be happy, university administrators would be happy, and bishops (most of them, anyway) would be happy—but only for two years. In 2003, the bishops will go to Rome for their ad limina visits.
For the first time since the new Code of Canon Law was promulgated in 1983 with its new requirement of the mandatum for theologians, the U.S. Roman Catholic Church will have a particular law in place requiring the mandatum, along with procedures to implement this requirement. When each bishop confers with the pope and Roman Curial officials, is it likely that the mandatum, the “juridical instrument” that the Holy See has wanted for nearly 20 years, will not come up? After all, said Archbishop Pilarczyk, “we were required to require this.”
The pope and Cardinal Zenon Grocholewski, who heads the Congregation for Catholic Education, will certainly ask the bishop why so few theologians in his diocese have a mandatum. But they know the answer already: there are no penalties for lacking one.
So they will order the bishop to give the obligation some teeth: “You are not to agree to the university’s statutes until they include the mandatum, as the approved 1999 Application envisions. Catholics without a mandatum cannot be hired. Catholics who lack one or lose one must be fired.” The bishop may be sick at having to do this. He can do it, though, and he will. A bishop does not defy the pope.
Now the university has only two options: incorporate the mandatum and thus become essentially sectarian (and perhaps ineligible for government funding, since an outsider now controls the properly internal matter of faculty selection) or refuse to comply with the bishop’s demand and secularize itself (even as it struggles toward a language that names and claims its Catholic heritage and commitment while acknowledging that it is no longer related to the church).
The doomsday clock for Catholic higher education is ticking toward midnight. The 24 months between now and the ad limina meetings must be used well. We cannot break faith with the millions whose sweat-stained dollars built and sustained our colleges and universities. We cannot let the labor and vision of Hesburgh, Healey, Baumhart, O’Hare, Monan, Fitz, Gallin, Reinert and so many others slide into oblivion. We must pray for the future of our educational institutions, even as we look for that creative, convincing team of attorneys who can push the clock’s hands back from midnight. If we do not find one, the only hope for our Catholic colleges and universities may rest with the 264th successor to St. Peter.