Mirror of Justice

My thanks to Michael for posting the most interesting article by Patricia Lefevere on Catholic Law Schools.

Catholic Law Schools? Do they exist? This is a suitable topic for MOJ exploration, since CLT is well suited to address the topic and the issue. Father Hesburgh once said that the Catholic university is the place where the Church does its thinking. Can the same be said of the Catholic law school? Ms. Lefevere is quick to bring this question into focus when she raises her own inquiry about whether it is “even desirable to have such an identity?” Her rhetorical point brings up the further question: if an institution were accused of being a Catholic law school, would there be sufficient evidence to convict?

Initially, I was reluctant to write this post, but two immediate points in the article necessitated a response. The first was our introduction to the new dean of Villanova Law School, Mark Sarget. I immediately wondered what happened to our dear friend, Mark Sargent. But my initial concern about Mark Sargent’s fate was quickly relieved when I realized that the spelling of his surname was a typographical error! Following his point about Catholic mission, I would hasten to add that I cannot find any law school that asserts missions for social injustice and academic laziness when Catholic schools are said by some to be distinctive in their demands for social justice and academic rigor. And when it comes to symbols, why is the symbol of the cross deemed offensive by some? Yet, at the same time displays of other symbols which have no connection with Catholicism, e.g. rainbow colored banners, do not seem to raise any questions at all?

The second point was the statement that “Villanova tied with the University of San Diego, a Jesuit law school, for 63^rd spot…” The University of San Diego is not a Jesuit institution, so I was perplexed to learn that it has a Jesuit law school. But this would raise another question best left for another time knowing that John Breen and others have looked at the issue: is there such a thing as a Jesuit law school today? Do any exist? Ms. Lefevere states that there are thirteen in the US, but there are fourteen schools which claim to be in this group. In 1994, the University of Puget Sound’s law school was acquired by Seattle University, and it became “Jesuit” law school number fourteen. Once I decided to comment briefly on these two points, I succumbed to the lure of writing more.

I begin with my thanks to Mark, Greg, and Susan for their observations. At the outset, I will let MOJ readers know that I am inclined to agree with Mark’s assessment about the problems and challenges that face Catholic identity in legal education today. I applaud Greg’s and Susan’s work. I know Russ Pearce at Fordham and congratulate him, too, knowing that Amy Uelmen is also responsible for much of the good work that takes place at Fordham Law in the name of Catholic identity and mission.

I also agree with Tom Shaffer that one might expect a uniquely Catholic perspective on the law that could be available in addressing not only property, contracts, securities regulation, or criminal procedure, but Constitutional Law and everything else as well. Admittedly, the task is not always quite the same for each substantive area of law, but if Feminist Theory, Critical Race Theory, and GLBTQ Legal Theory, etc. are acceptable lenses for examining substantive legal disciplines across the board, why not Catholic Legal Theory? The MOJ discussion group was established to pursue this point and to examine the role of the Catholic intellectual tradition’s contribution to the underpinnings of legal theory. I believe that Tom is onto something when he states that Catholicism “has always copied too much in trying to come to terms with the secular university…” I wonder if this is behind Russ saying “Jesuit universities are saying, ‘Catholics can learn from non-Catholics…’” But is the reverse true today: can non-Catholics also learn from Catholics? I should hope so, and I should further hope that this is what the Catholic universities, including Jesuit ones, are all about. Tom indicated in his interview that he scratched his head about one school that has not been able to turn the corner, but I wonder if that is the only one over which one can scratch heads? Some schools have yet to approach the intersection where they can turn a corner; for others, the corner is pretty big, and I wonder if they will come out of the turn if they have ventured into the intersection?

Greg also makes some solid points when he stated that many contemporary academics “shy” away from discussing religion. I think that would be more difficult at secular, state-sponsored institutions, but even many of them have religious studies departments. Why should this be difficult at an educational institution that claims to be Catholic? He perceptively makes two additional points: the first is that by raising discussions about the religion, would some consider themselves excluded when a particular religious view, let’s say Catholicism, predominates? But when measures are taken to make the institution welcoming of others who are not members of this religious community, his second astute observation comes into play: the religious perspective, over time, becomes marginalized. And with that occurrence, is there not the threat of this perspective becoming lost? Greg’s next statement about offending those of other or no religious traditions then comes into play. Several years ago, I visited a “Jesuit” law school, and I was asked in a public forum by one of the faculty members if I always wore “that” as this teacher pointed to my clerical shirt. I was surprised by the individual’s question which generated embarrassment and offense to me. Whether either was intended, I do not know. I wonder how this individual would have reacted if I had raised the same question about the soiled T-shirt this person was wearing. Would such a question have been off limits, and would asking it generate offense? This brings me to another observation about Greg’s statement about those schools which “seek” to be “authentically Jesuit.” Are they not “authentically Jesuit” now? If not, why? What has happened? Why must the Catholic/Jesuit school seek to be Catholic/Jesuit? It is not simply building trust and avoiding suspicion and anxiety about the faith dimension of the school’s social justice dimension as he states; it is about the ability to define the soul of the institution as Catholic or not. If the Catholic soul is no longer present, what has happened to it? I gather that is why there must be seeking today.

Bill Treanor of Fordham is quoted on points about diversity and dialog as virtues. Yes, indeed, his perspective has merit, and it is “something to be cherished.” But do law schools in general, and those which claim to be Catholic in particular, practice “inclusion and dialogue” and avoid “imposition or indoctrination”? I wonder. What would happen in a law school Constitutional law school discussion where someone, be it teacher or student, questioned, from the perspective of the Church’s teachings, the underpinnings of Justice Blackmun’s Roe opinion or Justice Kennedy’s Lawrence opinion, for example? Would such a person “feel” included? Would such a person be welcomed into “dialogue”? Maybe, but then again, perhaps not. It becomes problematic when a religious perspective quickly becomes suspect of “imposition or indoctrination” but other views escape or are immune from such labeling. The problem intensifies when it is the Catholic perspective at the Catholic law school that is the object of suspicion. This raises one side of the coin presented by Susan’s helpful discussion about proselytizing and enabling students and faculty to disagree with particular views they find objectionable. Somehow the Catholic perspective seems to be the one that gets labeled “proselytizing” whereas vigorous advocacy for relativism or the exaggerated autonomy identified and addressed by Mary Ann Glendon in her “Rights Talk: The Impoverishment of Political Discourse” again is immune. But if some have a problem with what appears to be proselytizing, I hope we can agree that a Catholic institution, including a Catholic law school, is called to evangelize. If that is still a problem for some, then the institution's Catholic identity is not simply diluted, it is expunged.

This brings me to one last point I would like to offer about Ms. Lefevere’s article. She raises a discussion about the important questions surrounding who gets to teach at the Catholic law school, and she addresses issues surrounding hiring for mission. Hiring for mission discussions once prompted a colleague of mine to raise the issue if there could be such a practice as “firing for mission,” but I will put that aside for the time being. It appears that faculty members who have been hired, regardless of their views, have little to fear; moreover, tenure brings additional security. But a dimension of this important discussion about faculty hiring was not addressed, and this concerns those who share in the Catholic mission of the institution but face hidden obstacles to being hired. If a person cannot he hired, how can he or she contribute to the school’s Catholic mission? If the faculty candidate who is interested in contributing to the Catholic identity of the school and publicizes this aspiration has his or her application sidelined, this is a further problem. I am aware of hiring practices where some Catholic law school hiring committees have said: we must replace a woman who leaves with a woman; we must replace a racial minority who leaves with a racial minority; we must replace a sexual minority who leaves with a sexual minority. Is the same true about replacing a Catholic who leaves with a Catholic? A Jesuit with a Jesuit? Does simply asking the candidate whether he or she will “respect” the Catholic mission and identity of the school suffice? This makes Mark’s comment about “hiring toward mission” all the more important to the vitality of Catholic legal education.

I have gone on at some length, and I am grateful to MOJ readers for their patience. I would like to conclude on this note. For those who may view my remarks as expressions of dissatisfaction, I must add this counsel form St. Paul, whose wisdom I labor to follow. In his letter to the Romans, he reminds the faithful not to be overcome by evil; rather, the charge is to overcome evil and that which is wrong with good. That is often easier said than done, but when this exhortation becomes the course directing one’s life, that person’s discipleship has a greater claim to authenticity. It is also the direction that the Catholic law school and all associated with such an institution are called to pursue. Any thoughts anyone?    RJA sj