A CAUTIONARY TALE

...Weisberg found that although Curran, for publicly dissenting from the pope's birth control when originally entered into, the contract did not require encyclical, Humanae vitae...

...That's why we are here when the need for help for very special peoplearises...

...presidents of Catholic colleges and universities in the UnitWeisberg explained: ed States, and, most important, the members of the boards of The bulk of plaintiff's proof at trial was historical...

...Predictably, Hickey re- The canonical mission requirement became irrelevant, for jected the committee's conclusion, and the university's board the same result would have been reached if there had been no of trustees, also predictably, then ratified the removal of canonical mission requirement at all...

...It Holy See is direct and unavoidable...

...Catholic community...

...But our guests sometimes say that the most important treatment at Guest House happens after the staff goes home - in conversations on the porch or on walks around the campus or talks in the dining room or around the AA tables...

...with alcohol or drug problems...

...The canonical-mission requirement was later inculties with The Catholic University resulted from the "spe- corporated into concordats between the Vatican and severcial relationship" that the university had with the church, al German states, and the Reich itself...

...only the Vatican did...

...teach in an area of his competence in an appropriate de- Perhaps it can fairly be said that the university wantpartment where a canonical mission is not required subject ed it both ways...

...and (e) if it is nevertheless taken scendent value on its unique and special relationship away, the university will guarantee the professor a right to with the Holy See...

...His trustees of those colleges and universities who will be asked burden, as he saw it, was to show that the events at to decide whether to follow the bishops or not, would do CUA in the late 1960s had transformed the university well to consider this cautionary tale...

...The court held that once Curran's canonical mission...

...However, the new continuing tension between the church hierarchy and acanorms' 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...

...Catholic universities could be drawn because The Catholic Gradually, however, for reasons having to do with the University of America was "different...

...take no adverse action against the professor based on the Internally, the university had to wrestle with its moral or religious content of his speech, writing, or teaching...

...In 1966, just a year after Vatican...

...In order to comply with that recolleges and universities in the United States, it quirement, The Catholic University adopted special bylaws is instructive to recall the Curran case...

...In order to prevent that, the university's See has the right and the power to determine the contours and board of trustees passed a resolution stating that it accepted bounds of that contractual relationship...

...Principally, the con- be governed by canon law and to obey the Vatican's declagregation was concerned with his writings in sexual ethics, rations, and if they were inconsistent with academic freebut it later appeared to be more concerned with his views on dom, so be it...

...Without a canonical mission, a faculty member knowingly entered into a contractual relaCurran could not teach in the department of theology but, tionship with a Catholic university that has a "special relapresumably, he remained free to teach theology elsewhere in tionship" with the Holy See, as set forth in its bylaws, the Holy the university...

...4800 48th Street N.E., Rochester, MN 55906 1-800-634-4155 Whether or not the university is correct that it was ob- hardly surprising that The Catholic University of ligated to accept the determination of the Holy See as America, with its close ties to the Roman Catholic a matter of canon law, it was surely bound to do so church, found itself in the middle of these struggles...

...try's most eminent professors of Catholic theology, illus- The concept of a "canonical mission" originated in the trates what may happen in any other Catholic university that mid-nineteenth century in Germany, as a response to the chooses to become "officially" Catholic by adopting Ex corde, German government's attempts to "secularize" the Catholic as the norms require in most cases (see "Look before You schools...

...mandate" is similar to the canonical mission but it applies in all nonecclesiastical universities, whereas the canonical urran sued for breach of contract...

...On the other hand, it continued to place tranprofessor's right to hold it...

...In fact he found that The court holds today that it does not...

...Changes in a unilittle doubt that the late 1960s was an extraordinary versity's bylaws should not be undertaken lightly or without time at Catholic University...

...Commonweal 12 April 21, 2000 Catholic Relief Services The official overseas relief and development agency of the U.S...

...Whether that is ulCatholic University of America "would never write such a timately good for the university or for the church is contract...

...sion was withdrawn, Curran could not teach in an ecclesiAfter an acrimonious debate, in 1981 The Catholic University astical faculty...

...ship...

...There is something special about this group of men, alike in the uniqueness of their vocations, who come together to begin the recovery A very special place process at Guest House...

...Those bylaws created the same kind of "juridical relationship" between the ecclesiastical faculties and the church that Ex corde now requires be created between certain other Catholic universities and the church...

...We believe that God has empowered us to provide the right environment for this special population of God's servants to regain their wholeness, their health, and their vocations...

...In 1969, he university's judgment, he said, was based not upon Curbecame a tenured professor in the department of theology, ran's competence as a professor but on a declaration by the one of the ecclesiastical faculties...

...It described the relation- on the side of academic freedom...

...However, beturbulent times, characterized by persistent testing of cause of the "juridical relationship" between that universiinstitutional limits on all forms of expression of indi- ty and the Catholic church, he is now a distinguished providual freedom, including academic freedom...

...It had five elements: (a) the changes in the university's bylaws and statutes, to list parties recognize that there is a special relationship between just a few-were directed at strengthening the indethe university and the Roman Catholic church...

...contract neither party could have anticipated a declaration After twenty years of investigation into Curran's writ- from the Vatican that was as broad and definitive as the ings, Cardinal Joseph Ratzinger, prefect of the congrega- Ratzinger letter, Curran must have known that the univertion, informed Curran in 1986 that "one who dissents from sity had a relationship with and a "concomitant responsithe magisterium as you do is not suitable nor eligible to bility to the Roman Catholic church": teach Catholic theology" or to "exercise the function of a No one-least of all a Catholic priest and a professor of professor of Catholic theology...

...These were to fire Charles Curran...

...revised its special bylaws and again required that profes- The harder question, "not as easily resolved," was whether sors have a canonical mission in order to teach theology...

...In 1931, the apostolic constitution Deus scientiarum Dominus required that in ecclesiastical faculties "those who teach Paul Saunders, a partner at Cravath, Swaine & Moore, served as counsel to Charles Curran in Curran v. The Catholic University of America...

...Juridical relationinto a place where academic freedom reigned supreme, ships," such as those that the new norms require to be creto the exclusion of all else, including the obligations ated between a Catholic university and the church, are imposed on the university by virtue of its pontifical fraught with peril and can lead to serious unanticipated concharter and its relationship with the Holy See...

...Founded in 1887 as a civil corporation, The Catholic University of America had a "papal charter" authorizing certain of its schools and programs, called "ecclesiastical faculties," to grant degrees that would be recognized by the Vatican...

...Curran to have a canonical mission, the 1981 special bylaws, However, in 1979, the Vatican promulgated a new apos- which did contain such a requirement, became a part of his tolic constitution for ecclesiastical faculties, Sapientia Chris- contract retroactively...

...He did not mission applies only in ecclesiastical (or "papal") faculties...

...As a result, once his canonical mistiana, that revived the requirement of a canonical mission...

...accept the university's own determination of its obligations: Commonweal 1 4 April 21, 2000 The most important treatment happens after the staff goes home...

...The hypothetical contract described the univer- something they have a right to decide for themselves...

...It offered a its contract with Professor Curran or any other faculway to reconcile academic freedom with a university's "spe- ty member promises that it will always come down cial relationship" with the church...

...the circumstances under which a theologian could dissent Judge Weisberg said that although at the time of Curran's from any noninfallible teaching of the church...

...His longer treatment of the Curran case can be found on our website at WWW.COMMONWEALMAGAZINE.ORG...

...The had come to The Catholic University in 1965...

...1.800.724.2530www.catholicrellef.org OAOCW demically free-thinking theologians, the concept of a canon- This meant, according to the university, that Curran could ical mission began to be used in church-run institutions as a not teach theology anywhere in the university, even in those limitation on the academic freedom of theologians...

...seek any damages, but he asked for "specific The concept of a "canonical mission" gradually fell into performance": he wanted to be reinstated as a disuse and was eliminated from The Catholic University's c professor of theology and to be permitted to bylaws in 1969...

...It was thus originally and that although what was happening to Curran was un- conceived as a device to guarantee the church's freedom to fortunate for him personally, no great lessons for other teach in its own schools against threats of state control...

...b) never- pendence and autonomy of the university and its factheless, the university guarantees its professors academic ulty from interference by outside authorities, not the freedom, which means at least (c) that the university will least of which was the Holy See...

...the graduate level, without a "canonical mission" from the At the time, there was a perception that Curran's diffi- local bishop...

...That's why we were founded 43 years ago...

...It is fessor of theology at Southern Methodist University...

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...The university did not breach its contract with An ad hoc faculty committee, appointed to hear Hickey's Professor Curran by requiring him to teach courses other charge, concluded that Curran's canonical mission should than Catholic theology or, for that matter, by requiring not be withdrawn if that would prevent Curran from teach- him to be bound by the declaration of the Holy See...

...own ambivalence...

...but on most issues it can also be said to all the rights and privileges customarily associated with that the university could have it both ways...

...Let me explain...

...berg asked whether the university had any obligation to Curran, a priest of the Diocese of Rochester, New York, allow Curran to do so, and he concluded that it did not...

...A CAUTIONARY TALE Academic freedom, 'Ex corde,' & the Curran case Paul Saunders ow that the American bishops have voted over- disciplines concerning faith or morals must receive, after whelmingly to adopt the revised norms requir- making a profession of faith, a canonical mission from the N ing the application of Ex corde ecclesiae to Catholic chancellor or his delegate...

...On such issues, set out a clear and fair method of guarantee- the university may choose for itself on which side of 1 ing academic freedom in the face of the efforts that conflict it wants to come down, and nothing in of an "external authority" to interfere with it...

...Judge Weissole power to remove the canonical mission...

...ized" itself by eliminating the requirement that clerics con- On February 28, 1989, Judge Frederick Weisberg of the stitute a majority of its board of trustees...

...issues-and this case certainly presents one of themthe conflict between the university's commitment to udge Weisberg's "hypothetical contract" was academic freedom and its unwavering fealty to the a classic articulation of academic freedom...

...In order to protect church interests from governLeap," Commonweal, April 9, 1999, and "The Vatican, the ment intrusion, the German church decreed that no one Bishops, and the Academy," Commonweal, September 26, could teach Catholic religion, from primary grades through 1997...

...At that time, the university "depontifical- teach theology...

...as a matter of religious conviction and pursuant to its Nor is it surprising that many of the changes at the long-standing, unique, and freely chosen special rela- university-the Marlowe committee report and its tionship with the Holy See...

...On some academic freedom in an American university...

...ship that most professors at The Catholic University thought The question presented is whether [Curran's] conthey had with the institution after the "depontificalization" tract gives him the right to teach Catholic theology at of the university...

...Since 1956, Guest House has returned more than 5, 000 priests, brothers, deacons and seminarians to active ministry after their bouts with alcoholism were treated in one of our facilities...

...The Catholic Univer- that also required those who taught theology in any of its ecsity of America's successful ouster, a little more than ten clesiastical faculties to have a "canonical mission" to teach years ago, of Reverend Charles E. Curran, one of the coun- theology...

...Curran could teach theology elsewhere in the university The new bylaws gave the archbishop of Washington the where a canonical mission was not required...

...Since a civil court could "the declaration of the Holy See as binding upon the uni- not determine what is or is not required by canon law, it must versity as a matter of canon law and religious conviction...

...The ecclesiastical faculties were subject to a set of special bylaws that recognized the primacy of the archbishop of Washington (who was also, ex officio, the chancellor of the university) over its programs and over its faculty...

...On the one hand, it wanted to be (d) if it is determined that professors need a canonical mis- recognized as a university-a Catholic university, to be sion and the Vatican tries to take it away based on the con- sure-but a full-fledged American university nonethetent of the professor's speech, the university will defend the less...

...As a result, Washington's Catholic theology-could have contracted with CUA Archbishop James Hickey, the chancellor of the university, without understanding the university's special relationannounced that he had initiated the withdrawal of Curran's ship with the Roman Catholic church, with all of the imcanonical mission and that he had suspended Curran from plications and obligations flowing from that relationteaching in any ecclesiastical faculty at the university...

...partial acceptance by the board of trustees, new stateJudge Weisberg discussed a "hypothetical contract" be- ments about academic freedom at the university, and tween Curran and the university...

...In many respects the a full understanding of the implications...

...There is sequences, despite the best of intentions...

...The university had freely chosen to Faith had opened a "docket" on him...

...The was not Curran's contract...

...Ex corde's departments that did not require a canonical mission...

...He lost, and the reasons why are instructive...

...ing "in the area of his competence...

...sity that Curran "wanted to work for, maybe even the one The American bishops who voted last fall to require the he thought he was working for, but not the one with which implementation of Ex corde ecclesiae in the United States, th he contracted...

...events on that campus were a reflection of the turmoil Nobody at The Catholic University of America wanted on college campuses all across the country...

...As a result, traditional norms of academic tenure or he arrived, the Vatican's Congregation for the Doctrine of the freedom did not apply...

...Catholic University in the face of a definitive judgUnfortunately, however, Judge Weisberg found that that ment by the Holy See that he is ineligible to do so...

...El Commonweal 16 April 21, 2000...

...The university also District of Columbia Superior Court ruled that the univerreaffirmed its dedication to academic freedom by declining sity's actions in preventing Curran from teaching theology to take action against a number of its professors, including did not breach his contract...