A CAUTIONARY TALE - Academic freedom, 'Ex corde,' & the Curran case - Charles Curran

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 Reverend CharlesE.Curran, one of the country's most eminent professors of Catholic theology, illustrates what may happen in any other Catholic university that chooses to become "officially" Catholic by adopting Ex corde, 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 The 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. Let me explain.

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. 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. 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.

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, acanonical mission from the chancellor or his delegate...." In order to comply with that requirement, The Catholic University adopted special bylaws that also required those who taught theology in any of its ecclesiastical faculties to have a "canonical mission" to teach theology.

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 Catholic 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 the 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 adevice 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. Ex corde's "mandate" is similar to the canonical mission but it applies in all nonecclesiastical universities, whereas the canonical mission applies only in ecclesiastical (or "papal") faculties.

The concept of a "canonical mission" gradually fell into disuse and was eliminated from The Catholic University's bylaws in 1969. At that time, the university "depontificalized" itself by eliminating the requirement that clerics constitute a majority of its board of trustees. The university also reaffirmed its dedication to academic freedom by declining to take action against a number of its professors, including Curran, for publicly dissenting from the pope's birth control encyclical, Humanae vitae.

However, in 1979, the Vatican promulgated a new apostolic constitution for ecclesiastical faculties, Sapientia Christiana, that revived the requirement of a canonical mission. After an acrimonious debate, in 1981 The Catholic University revised its special bylaws and again required that professors have a canonical mission in order to teach theology. The new bylaws gave the archbishop of Washington the sole power to remove the canonical mission.

Curran, a priest of the Diocese of Rochester, New York, had come to The Catholic University in 1965.In 1969, he became a tenured professor in the department of theology, one of the ecclesiastical faculties. In 1966, just a year after he arrived, the Vatican's Congregation for the Doctrine of the Faith had opened a "docket" on him. Principally, the congregation was concerned with his writings in sexual ethics, but it later appeared to be more concerned with his views on the circumstances under which a theologian could dissent from any noninfallible teaching of the church.

After twenty years of investigation into Curran's writings, Cardinal Joseph Ratzinger, prefect of the congregation, informed Curran in 1986 that "one who dissents from the magisterium asyou do is not suitable nor eligible to teach Catholic theology" or to "exercise the function of a professor of Catholic theology." As a result, Washington's Archbishop James Hickey, the chancellor of the university, announced that he had initiated the withdrawal of Curran's canonical mission and that he had suspended Curran from teaching in any ecclesiastical faculty at the university.

An ad hoc faculty committee, appointed to hear Hickey's charge, concluded that Curran's canonical mission should not be withdrawn if that would prevent Curran from teaching "in the area of his competence." Predictably, Hickey rejected the committee's conclusion, and the university's board of trustees, also predictably, then ratified the removal of Curran's canonical mission. Without a canonical mission, Curran could not teach in the department of theology but, presumably, he remained free to teach theology elsewhere in the university. In order to prevent that, the university's board of trustees 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." This meant, according to the university, that Curran could not teach theology anywhere in the university, even in those departments that did not require a canonical mission.

Curran sued for breach of contract. He did not seek any damages, but he asked for "specific performance": he wanted to be reinstated as a professor of theology and to be permitted to teach theology. He lost, and the reasons why are instructive.

On February28, 1989, Judge Frederick Weisberg ofthe District of Columbia Superior Court ruled that the university's actions in preventing Curran from teaching theology did not breach his contract. Weisberg found that although when originally entered into, the contract did not require Curran to have a canonical mission, the 1981 special bylaws, which did contain such a requirement, became a part of his contract retroactively. As a result, once his canonical mission was withdrawn, Curran could not teach in an ecclesiastical faculty.

The harder question, "not as easily resolved," was whether Curran could teach theology elsewhere in the university where a canonical mission was not required. 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 based not 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. The university had freely chosen to be governed by canon law and to obey the Vatican's declarations, and if they were inconsistent with academic freedom, so be it.

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. The court held that 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 bylaws, the Holy See has the right and the power to determine the contours and bounds of that contractual relationship. Since a civil 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.

Judge 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 The Catholic University thought they had with the institution after the "depontificalization" of the university.

Unfortunately, however, Judge Weisberg found that that was not Curran's contract. In fact he found that The Catholic University of America "would never write such a contract." The 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 direct 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 theologyat 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 aright to decide for themselves.

The American bishops who voted last fall to require the implementation of Ex corde ecclesiae in the United States, the presidents of Catholic colleges and universities in the United States, and, most important, the 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 a Catholic university and the church, are fraught with peril and can lead to serious unanticipated consequences, despite the best of intentions. Changes in a university's bylaws 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; only the Vatican did. However, because of the "juridical relationship" between that university and the Catholic church, he is now a distinguished professor of theology at Southern Methodist University.

Paul Saunders, a partner at Cravath, Swaine & Moore, served as counsel to Charles Curran in Curran v. The Catholic University of America. His longer treatment of the Curran case can be found on our website at www.commonwealmagazine.org.

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