The community here is still reeling from Wednesday's bridge collapse. We're grateful for the miraculously low number of fatalities and the courage displayed by those involved in the rescue and ongoing recovery efforts. As Rob's post noted, people seemed almost nonchalant about incredible feats of bravery. One young man interviewed on the local news who escaped the wreckage only to return and help others out of the rubble kept telling the reporter, "I just did what I was supposed to do."
Many of us here spent a good part of Wednesday evening and Thursday responding to phone calls and e-mails from family and friends all over the country checking up on us. Within the community, too, friends were calling, e-mailing, checking to make sure everyone they knew was safe. After a day of connecting with people over the collapse of a physical bridge, I was really struck last night by the metaphorical bridge referenced in a little introductory passage to Psalm 25 in Magnificat:
If the Lord rescues me from the snare of my faults, should I not extend the same hand of rescue to my neighbor? Resentment, grudges, retaliation do not help the one who offends me. They merely confirm the breach between us. Bridge-building is costly, as the cross demonstrates, but the people stranded on both banks are all freed by the bridge.
TO: Members of the Board of Governors of Ave Maria School of Law
FROM: Professor Emeritus Charles E. Rice
DATE: August 2, 2007
SUBJ: A proposed solution to the present difficulties
This memo is addressed to all the members of the Board of Governors (BOG), including the Chairman (Tom Monaghan), Dean Dobranski and those Governors who have announced their resignations since the Board voted to move Ave Maria School of Law (AMSL) to Florida. The AMSL Bylaws, as amended, provide that members serve "until...their successors are appointed by the Board." Those resignations appear to be ineffective unless the Bylaws have since been changed.
I do not have a current contact list for the BOG. Therefore I send this memo to Tom Monaghan and Bernie Dobranski with the request that they send it on to all present and past members of the BOG. Past members have potential legal liability, as well as moral responsibility, for their actions and inactions on the BOG.
Please understand that I write this memo in a cooperative spirit to offer what I believe is a constructive solution. I offer no disparagement of anyone’s motives. Nor do I question the commitment of all involved to what they genuinely see as the best interests of AMSL. At the same time, however, I take the liberty, and assume your consent, to express my views candidly and without reservation. AMSL in Ann Arbor can survive the present crisis. But that crisis has reached a point where we have a duty to speak urgently and bluntly.
The AMSL story was one of remarkable success until Tom, in 2002, dropped the bombshell of his decision to move AMSL to Florida. I refrain from reciting the numerous elements of the destabilization of AMSL that followed. That unilateral edict derived its impact from the implicit threat that if AMSL did not move to Florida Tom would terminate the commitment he had made to provide funding to AMSL in Ann Arbor. The BOG is fully aware of the events manifesting that destabilization because they were brought to the attention of the Board. In general, AMSL came to be managed as a sole proprietorship with Tom in absolute control and Bernie acting, in effect, as Tom’s resident agent. When, on numerous occasions, authentic grievances were presented to the BOG by alumni, faculty or students, the routine response of the BOG was an apparently robotic endorsement of the Dean and of whatever action of his had triggered the grievance. Or it was silence. In my opinion, as I repeatedly stated to the BOG before I was, as I see it, promoted to the rank of Gubernator Ejectus, the BOG has been and continues to be in violation of its fiduciary duty to the AMSL community by recklessly subordinating the interests of AMSL to another agenda, i.e., Tom’s Florida vision.
This memo is immediately prompted by Bernie’s letter of suspension sent to Professor Safranek on July 27th. I had thought that the AMSL chronicle of mismanagement and oppression had gotten about as bad as it could get. But this brought that record to a new and appalling low.
I have known Steve Safranek well since he enrolled at Notre Dame Law School. He is a generous, kind person of vibrant Catholic faith and total integrity, with full commitment to AMSL and especially to its students. I am familiar with the facts relating to the allegations Bernie has made against Steve to justify his suspension. In my opinion, Bernie's alleged justifications for his action are embarrassingly lacking in any foundation. The unjustifiability of the action was compounded by the hostile, petty and mean-spirited tone of Bernie's letter of July 27th.
The suspension of Steve Safranek obviously causes present and potential harm to him. I must tell you, however, that I am most disgusted by the harm inflicted on Steve’s wife, Mary, and their children, Luke, Mark, Teresa, Anne, Paul, Lucy and John. There is no justification for imposing hardship on them as an incident of such a degrading and unwarranted attack on their husband and father. The BOG itself has reached a new low of futility, in my opinion, by its failure to condemn and reverse this outrageous action.
I obviously do not agree with the policies Bernie has followed in recent years. While I emphasize that I believe that he, like the Board of Governors members, is acting in what he sees as the best interests of AMSL, the time is long past for him to resign. He has forfeited, and explicitly lost, the confidence of all his prime constituencies—students, faculty and alumni. He must go.
Which brings me to the point of this memo. It is time, not only for Bernie to go, but for all of you Governors, including the Chairman, to go. In the founding of AMSL, you set forth on a vital mission. And I insist that you mean well. But you have all made a total mess out of this project. AMSL can still survive in Ann Arbor, whether under that name or another. Tom, I presume, will abide by his binding commitment to the ABA to provide funds for AMSL through 2009. The Falvey Report, prepared by Professor Joseph L. Falvey, spelled out the budget economies and funding initiatives that would make survival a realistic prospect. Even beyond that, and beyond Tom's legal commitment, the Ave Maria Foundation, which is effectively controlled by Tom, has a moral and financial obligation to the literally thousands of people, including families, who have changed their lives in reliance on the expectations generated by Tom and the BOG as to the future of the school. There is also potential support from other sources for the continuation of Catholic legal education in Ann Arbor.
AMSL still has a future in Ann Arbor. But I have to say, without any personal disparagement of anyone, that you all have to step aside if that future is to be realized. The members of the BOG, in my opinion, have failed to perform their fiduciary duty. You all have a duty to rectify that failure. Those members who have tried to resign in the past few days or weeks can escape neither their legal nor their moral responsibility to fix the mess you have all created by your negligent acquiescence in harmful policies and decisions.
I have no illusions that you will initially regard this memo in a friendly light. Nevertheless, I pay you the compliment of candor in the hope that you will consider favorably the following suggestions:
1. Immediately dismiss Bernie from the Deanship. 2. Reverse completely Bernie’s suspension of Steve Safranek and apologize to Steve and to his family. 3. Make whatever Bylaws amendments may be necessary to enable you to appoint Judge James L. Ryan as Chairman of the BOG with authority to constitute a new BOG. 4. Appoint Judge Ryan as stated. 5. You all, including Tom and Bernie, resign from the BOG.
You all have two choices here. You can continue along the course of irrationality until the inevitable crash. After that crash, each and every one of you will carry the public repute and personal burden of responsibility for that crash and the resulting harm to so many people who trusted you. Or you can do the prudent, fair, and indeed noble, thing. You can get out of the way and let those most directly concerned make the effort, which can succeed, to bring AMSL to its full potential despite the turmoil caused by the destabilization to which your actions or acquiescence contributed. If you take this second course, you will have shown the integrity and courage to keep the mission foremost and to step aside when necessary for the sake of that mission.
I hope and pray that you will take this second course. There is no room here for recriminations or personal disparagement. Rather, we all have to focus on the mission for the good of the Church and of all the people involved.
Wal-Mart is Mexico’s largest private-sector employer in the nation
today, with nearly 150,000 local residents on its payroll. An
additional 19,000 youngsters between the ages of 14 and 16 work after
school in hundreds of Wal-Mart stores, mostly as grocery baggers,
throughout Mexico—and none of them receives a red cent in wages or
fringe benefits. The company doesn’t try to conceal this practice: its
62 Superama supermarkets display blue signs with white letters that
tell shoppers: OUR VOLUNTEER PACKERS COLLECT NO SALARY, ONLY THE
GRATUITY THAT YOU GIVE THEM. SUPERAMA THANKS YOU FOR YOUR
UNDERSTANDING. The use of unsalaried youths is legal in Mexico because
the kids are said to be “volunteering” their services to Wal-Mart and
are therefore not subject to the requirements and regulations that
would otherwise apply under the country’s labor laws. But some
officials south of the U.S. border nonetheless view the practice as
regrettable, if not downright exploitative. “These kids should receive
a salary,” says Labor Undersecretary Patricia Espinosa Torres. “If you
ask me, I don’t think these kids should be working, but there are
cultural and social circumstances [in Mexico] rooted in poverty and
scarcity.”
Prof. Robert Miller and Ryan Anderson are discussing the question, and the meaning of religious liberty, in the context of Amnesty International's abortion-related positions, here and here. Check it out. Any thoughts?
MOJ-reader Jonathan Watson shared with me some interesting thoughts about natural law, on the one hand, and simplicity and knowability in the positive law, on the other:
One of the important, and it seems to me, underdiscussed, aspects of classical jurisprudence is the idea that before a law may bind, it must first be promulgated. That is, those who are to be bound by the law must be aware of it. It thus is reasonable to assert that there are certain aspects of a law which would assist promulgation. Among these, at the very least, comprehensibility among the group to be bound seems to be important. What I mean by this is, there are some laws that by their nature apply to all people, equally, while others apply only when engaged in particular activities. For instance, there are laws generally against murder, theft, and so forth (criminal laws), others regarding business associations, of which the average person may have some knowledge, but is usually not bound by them for not being engaged in any arena where such a law would have jurisdiction. So, perhaps we could call these laws of general jurisdiction versus specific jurisdiction; this is not to deny that there are other aspects of law which also exist, but I focus on this one aspect.
Natural law should be an important consideration in the drafting of laws of general jurisdiction. Aquinas discusses the importance of the agreement, the obediance, of the written, or positive law, to the natural law. One result of this obediance, especially in regards to the promulgation aspect of law, is that the individual person knows and can obey the law with little interpretation, and thereby, with less chance that the law will be or can be applied unjustly. Problems arise when laws are so such in nature that even those who fall under their application more or less naturally are unable to comprehend them, or entirely unaware of them, and are therefore penalized. Even if the penalty in itself seems not unjust, it is in applying the law to someone who is unaware that the law binds that injustice results.
I think there is something to the idea that the great lawgivers in history have been known as those who synthesized the law and stated it clearly for all to see. The worst tyrants are not those who apply the law with great rigor, or impose heavy-handed measures, but those who have made law arbitrary - made it unstable, complex, unknown. This is where law seems so far from natural action - we give our children certain rules to follow - it is when the rules are broken that children received discipline. Is not making rules so complex that they are incomprehensible to children the same, in the end, as no rules and arbitrary punishment?
My friend Eugene Volokh has a post up, over at his blog, about a recent decision, Dexter v. Dexter, in which (quoting Eugene) a "mother's open paganism [is] treated as [a] reason to deny her custody." Prof. Volokh writes:
[T]he reference to mother's paganism — and the view that pagans may be denied custody because their open practices risk "exposing such lifestyle to [their] child[ren]" — strikes me as a clear First Amendment violation.
It seems to me that her bisexuality should likewise be none of the court's business; nor should her sado-masochism, unless there's some specific evidence that the practices are physically harmful to her and thus indirectly to the child (evidence that judgment, the magistrate's findings, and the appeals court decision never even hinted at).
I wrote a short article, several years ago, about parents' religious beliefs and child-custody matters, basically agreeing with Eugene's approach (i.e., an approach under which the content of parents' religious beliefs should not be regarded as a "harm" to children). But, I wonder if I was wrong? Putting aside the caselaw, surely it is the case that some parents' religious beliefs and practices are harmful to children? Or, can we not say this anymore?
Taking up Lisa's invitation to share some reading suggestions for (what is left of) the summer . . . here are a few books that I just finished and really liked:
I'm heading into some August vacation time, and am starting to hunt for good summer reading suggestions. Any ideas? (Maybe in a bit lighter vein than Greg's summer reading, Inside the Third Reich....)
I've read a couple over the summer that I'd recommend (besides Harry Potter & the Deathly Hallows which I thought was a beautiful ending to an extraordinary gift of the imagination to the world). One was for my "Church & the Biomedical Revolution" class. It's Joel Shuman & Brian Volck, Reclaiming the Body: Christians and the Faithful Use of Modern Medicine. They suggest that "modern medicine" has in some ways taken the place of faith for many people today. (An excerpt: "Indeed, much of what drives modern medicine is an admittedly noble concern to 'eliminate suffering' and increase the individual's control over his or her life. . . . That these claims sound so benign and noble -- so 'Christian,' in fact -- is, we think, a big part of the problem. By assuming medicine and Christianity are pursuing the same things -- which, coincidentally, happen to be things we want, such as health, the power to choose, and an able-bodied, painless death -- Christians transfer even more authority from their religious community to medicine, reinforcing one of the least-appreciated phenomena in Christianity since the Reformation -- the growing amnesia that Christinas can and should think, speak, and act differently than the rest of the world.") They suggest that Christians ought to "reclaim" the body in various ways -- including reclaiming an appreciation for the body as "a gift to accepted with confidence and gratitude, with all its limits and failings", and reclaiming the notion of the Christian community as a "gathered body" that ought to worship together in service and practice outside the confines of Sunday worship. They look at various issues of modern medical ethics -- reproductive technology, end-of-life issues, even cosmetic surgery, through this filter, with some very interesting results.
And speaking of living your life as though your faith really mattered, I'd like to put in another plug for a book that's already been mentioned here -- Rob's brother's story of the founding and floundering of Big Ideas, Inc., the company that created Veggie Tales. (Phil Vischer, Me, Myself & Bob.) I will confess that my interest is piqued by the fact that we have one very ardent Veggie Tales fan in our household. But I think anyone -- even a person who hasn't spent the last 11 years of her life with the sprightly tunes of Bob the Tomato and Larry the Cucumber as the soundtrack of much of her home life -- could learn something from reading about Phil Vischer's struggles to build a Christian alternative to the Disney empire. How about this lesson for your Contracts classes: When the growing company needed to move into new quarters as they expanded, and Phil Vischer was tempted to play hardball with the old landlord to get out of his old lease contract, his lawyer asked him whether he really wanted to renege on this commitment. Turns out, when he thought about it, he decided he didn't -- he just paid the rest of the rent under the contract, as promised.
Finally, at the risk of sounding pretentious, the reading that I was assigned for one of my classes that I was most surprised to enjoy as much as I did (in fact, so much that I read way beyond the assignment & I fully intend to finish the whole book) was Dorothy Sayers' translation of Dante'sInferno . As I understand it, it's the only translation that preserves the original rhyming scheme. Though purists undoubtedly argue that this distorts some meaning, I think it's absolutely delightful. Our professor told us to read it out loud to ourselves, which was a wonderful suggestion. And Sayers provides just enough notes and background to help an unclassically-educated, post-Vatican II Catholic like me understand what's going on without breaking the flow of the poetry.
Anyone else read anything good so far this summer?
A wonderful local blogger, James Lileks, has beautifully captured one human dimension of last night's bridge collapse:
I’m listening to a story on the news about a man who survived the fall – then ran to help the kids on the bus. I’d guess the fellow never considered what he might do in such a situation. Never thought about it much. Who would? But then you find yourself on a bridge that’s crashed down into the Mississippi, and you’re struggling with the seat belt buckle. It works , but your hands feel thick. You’re alive – which doesn’t seem that odd, really, you’ve always been alive, so this is just different, but you have strange thoughts about insurance and a mad swirl of panic and there’s blood in your hair but you can stand – and then you see a school bus. So you go to the bus. Of course you go the bus.
Most of us would. It’s a remarkable instinct that wells up and kicks in, and it’s something you never expected to experience. As someone said about humans: We’re at our best when things are worst.
Would you have run to the bus? I'll answer for you: yes.
Below is a statement about the latest developments at Ave Maria School of Law.
---
On behalf of a majority of the faculty of Ave Maria School of law, we write to express our profound sorrow regarding the deplorable treatment of tenured Professor Stephen J. Safranek at the hands of the administration of Ave Maria School of Law. Dean Bernard Dobranski has initiated the process to terminate Professor Safranek's tenure and the School has now suspended him without pay (as of September 15, 2007) during the termination process. We believe that it is critical to publicly disassociate ourselves from and condemn the administration's conduct.
The professed Mission of Ave Maria School of Law includes full adherence to Ex Corde Ecclesiae, which emphasizes respect for the dignity of every member of the academic community. In our view, the suspension and proposed termination of Professor Safranek does not adhere to this standard. Although we will not discuss the charges against Professor Safranek at this time, we will say that they are painfully thin.
Aside from the weakness of the charges against Professor Safranek, we are troubled by the disciplinary process that has led to the recent actions against him. The stated bases for these actions are a record of "findings" compiled by Dean Dobranski in connection with a series of alleged incidents for which Professor Safranek was ultimately "censured" or "reprimanded." In each instance, the Dean served as the sole arbiter regarding what acts constituted misconduct or "firing offenses" while repeatedly refusing to answer questions seeking clarification of his pronouncements. In nearly every instance, he or his at-will employees were the complainants or "victims" of Professor Safranek's alleged wrongdoing. The Dean served as the sole prosecutor, judge, and jury regarding whether vaguely defined offenses had occurred, usually refusing to even grant the "accused" any detailed information regarding the "charges" before conducting the "inquiry."
This flawed process has now culminated in the extraordinary action of suspending Professor Safranek without pay (as of September 15, 2007) through a vote of the "Executive Committee" of the School's Board. Although the suspension appears unjust in itself, the Dean's chosen procedures are absolutely lacking in even the veneer of fundamental fairness or due process norms. Indeed, the suspension occurred without deliberation by the full Board of Governors, without faculty consultation, without due process, and without any meaningful explanation as to why the circumstances satisfy the relevant standard of an "extraordinary" case. This abuse of this procedure has effectively stripped Professor Safranek, a husband and father of seven children, of the very security that tenure is supposed to afford faculty members at law schools approved by the American Bar Association.
In our view, these actions (and many others) reveal the extent to which this administration has betrayed the Law School's Mission. They further reveal how faculty members can expect to be treated at any law school created in Southwest Florida under the current administration and governing Board. Such a school is unlikely to respect the most basic elements of academic freedom and tenure,let alone dedicate itself to providing an integration of faith and reason designed to serve the Church and the broader community.
Notwithstanding this tragic turn of events, we remain committed to the service of our students and alumni, who provide the primary reason for the Law School's existence. For their sake, we intend to do everything that we can to renew the Law School's commitment to ABA Standards and, more importantly, to the teachings of the Catholic Church as envisioned in Ex Corde Ecclesiae.
We continue to ask for your prayers, your support, and your full participation in our efforts to heal our community and to return the Law School to the pursuit of its Mission.
Yours in Christ,
Richard S. Myers, Mollie A. Murphy, and Joseph L. Falvey, Jr.
