Thursday, May 5, 2005
Today is my last day at St. John's, where I have enjoyed three enormously gratifying years, thanks in large part to my fabulous colleagues here. As of next week, I'll be migrating west to join co-bloggers Greg Sisk and Tom Berg at the University of St. Thomas School of Law in Minneapolis. From now on, if you have ideas or suggestions for The Journal of Catholic Legal Studies, please contact Susan Stabile or Michael Simons.
Rob
This essay, "Intellectual and Moral Purpose Still Meet at Catholic Universities," by Nathan Hatch -- an eminent historian and the outgoing Provost of the University of Notre Dame -- is taken from the latest Chronicle of Higher Education and is relevant, I think, to our conversation about Catholic law schools.
Dr. Hatch reports, among other things, being "bother[ed]" by what he perceives as "the mood of distrust that the Vatican expresses toward Catholic higher education in the United States[.] . . . [This] worried distrust stands in striking contrast to the flourishing experiments in Catholic higher education that I have witnessed at Notre Dame and elsewhere. While I am deeply aware of the struggles and failures of Catholic institutions and of the powerful secular undertow in academic life, what I find remarkable is how creative and intentional these communities have become in renewing their Catholic identity. . . . Far from losing its soul, Catholic higher education has emerged as a vital influence within the broader American society and the Roman Catholic Church itself. . . . Catholic universities have not given up the dream of linking intellectual and moral purpose. They provide a middle ground where vital religious traditions can engage modern thought in a climate of academic freedom. . . . In addition, Catholic universities welcome a diverse range of faculty members and expect the curriculum to confront students with different ways of thinking. . . . The intellectual crossroads of a Catholic university avoids two extremes: the homogeneity of religious colleges and the relativism of modern universities."
Dr. Hatch is right, in my view, to "accentuate the positive." And, given that his experience with Catholic higher education has been at the University of Notre Dame -- where, I think it is safe and fair to say, questions of Catholic identity and mission have always been at the center of the University's conversation -- I think it is understandable that his impression of the health of Catholic higher education is as positive as it is. That said, I do think that he is too quick to be brush aside the Holy See's concern, and the concern of many bishops and Catholic laypeople, that at many other Catholic colleges and universities, all is not well.
Dr. Hatch adds: "Catholic universities face stiff challenges if they are to prosper as genuinely Catholic and remain accountable to the highest standards of scholarship. They, too, have much to learn from the church on which their life depends. Most important, they need to find ways to recruit Catholic intellectuals and other faculty members who are committed to the august tradition of 'faith seeking understanding.'" I agree with Hatch that it is "most important" for Catholic institutions of higher learning to focus on the connection between hiring and recruiting, on the one hand, and "prospering as genuinely Catholic," on the other.
Dr. Hatch is, by the way, off to serve as President of Wake Forest University, a fine institution that is, I gather, considering the possibility of re-engaging with its own religious history and tradition. Stay tuned.
Rick
Paul Horwitz at PrawfsBlawg has an interesting post on the Solomon Amendment case (raising the issue whether law schools have a constitutional right to ban military recruiters from campus). His analysis bears directly on our discussion of the case's subsidiarity dimension and indirectly on our ongoing exploration (see, e.g., here, here, and here) of how a law school can and should cultivate its Catholic identity in an academic world dominated by a one-size-fits-all approach to legal education. Horwitz focuses on:
the First Amendment implications of the Grutter/Gratz cases (which permitted affirmative action done in the manner of Michigan's law school, but not as conducted by its undergraduate admissions), and [argues] that if the Court takes Grutter seriously for its First Amendment implications, it ought to give serious weight to the plaintiffs' arguments against the Solomon Amendment. Grutter suggested that because universities occupy a special niche in our constitutional tradition, they ought to enjoy substantial autonomy in shaping their own academic missions; where they have done so, those decisions are entitled to substantial deference. In Grutter itself, that deference was weighty enough to help overcome what is supposed to be a strict level of constitutional scrutiny. In the Solomon Amendment litigation, plaintiffs (including some law schools) argue that they have made precisely this determination: that permitting military recruiters on campus interferes with a fundamental academic mission of non-discrimination. If the Court takes Grutter seriously, it ought to give substantial weight to the plaintiffs' arguments; they might still lose, but it ought to be a far closer case.
Rob
Wednesday, May 4, 2005
On March 23-24, 2006, St. John’s University School of Law and the Journal of Catholic Legal Studies will sponsor a conference on the Jurisprudential Legacy of Pope John Paul II.
John Paul II enjoyed a 26-year papacy, during which he exerted great influence on both Catholics and non-Catholics. He made a vast contribution to our understanding of the dignity of the human person and of the Church’s social doctrine, and was passionately committed to social justice and to peace. St. John’s and the Journal of Catholic Legal Studies invite papers exploring the legacy of the Pope on law, politics and culture generally and on the development of Catholic legal theory. Papers presented at the conference will be published in the Journal of Catholic Legal Studies.
Paper proposals should be sent by October 1, 2005, to Prof. Susan J. Stabile at [email protected], or at St. John’s University School of Law, 8000 Utopia Parkway, Jamaica, New York 11439.
I agree with Mark – if you’re interested in this topic, John Breen’s latest essay is a well-researched terrific read. If you’ve read my “Why Rock the Boat” musings you’ll see that we fundamentally agree – our diagnoses of Catholic legal education are similar, and we agree that it’s not enough to sprinkle the Jesuit law school literature with rhetoric about a commitment to justice which arises from “contact” with injustice (through clinics and service components); instead it is crucial that we develop the intellectual “concepts” which can foster a deeper and more solid understanding and commitment to justice.
That said, I do have a few questions for John, and also for our larger group.
First, on John’s characterization of clinical education. I agree that the commitment to justice needs to pervade the entire curriculum – but I wonder if the division between the “affective” work of the clinic and the intellectual “rational scrutiny” of the more doctrinal classes isn’t a bit too strong, and perhaps a bit afield of the Jesuit tendency to bring analytical reflection into every educational experience. Perhaps this is a more feminine take—(eg, feelings and the emotional dimensions of empathy can and do lead to significant analytical work)—but I have the sense that there is quite a bit of room for deeper groundings in the Catholic intellectual tradition to extend into the clinical context as well. A couple months ago during our regular conversation about Jesuit values and the law school, our Jesuit guest from the Graduate School of Education sparked a fascinating discussion about the parallels between the Ratio Studiorum and clinical education. I think here there would be much to explore.
Second is an observation about history. On p.405, he notes that many sincerely claim to be unfamiliar with the Catholic intellectual tradition – but then explains that it is not some “new fangled academic trend.” OK, it’s clear that the roots are 2000 years old. To be fair, shouldn’t we admit that what we are trying to do in the professional school context is in many ways completely new? For example, if we dig into Fordham’s history, we won’t find courses and developed arguments about the connections between the Catholic intellectual tradition and juridical categories and systems. And I don’t think Fordham was the only law school whose mission could in a sense be described as providing access to otherwise excluded ethnic groups. The sense of Catholicism that did come into the picture was largely ethnic or even tribal, characterized by expressions of personal piety, but not a whole lot of work in bringing the Catholic intellectual tradition to bear on legal education. If this is true, there is no golden age for Jesuit law schools—we are carving the path right now. I think that brings to our endeavor a certain humility and patience—and I know it definitely softens my own critique quite a bit. If we ourselves are just starting to work this out now, it’s understandable that the intellectual connections are not completely clear for our colleagues.
I’d also be curious to hear people’s reactions to John’s idea of a mandatory first year jurisprudence course which includes significant study of major figures in the Catholic intellectual tradition. Maybe Richard Meyers and Greg Sisk could give us a sense of the experience of schools starting from scratch on curriculum. For those of us at religiously diverse schools in large metropolitan areas (eg, Fordham has a large Jewish student population), how would this play out?
And back to Mark’s point for a sec—about how others are not open—I was edified by Cardinal Ratzinger’s observation in response to a question about the public image of the Church as a severe and ossified tribunal—that instead of just piling on in a critique of the media, “one must also ask how the Church herself, instead of simply scolding the media, can properly adapt her public presentation.” (Salt of the Earth 171). Similarly, I think our task is to focus not so much on what have been the reactions to perceptions of the project, but to consider how we can do better in how the life of faith and its connection to the intellectual endeavor is presented. The very process of working harder on the presentation often leads to a new trust that in itself generates a more open conversation.
On the question of hiring for mission. Not that Georgetown doesn’t have work to do—but as an alum, I’ll just throw in that I learned enough about justice from my first year torts professor—who is Jewish and not particularly religious—to fire me up to a commitment to work for justice for the rest of my life. In considering the current configuration of faculties at Jesuit law schools now, I wonder if some of the hope lies in finding ways to respectfully help all the faculty, including those of other or no religious traditions—to connect up (with “concepts”) how they are actually already furthering the mission—and the intellectual endeavor—in very substantial ways.
Finally, personally I’d deeply discount the extent to which “website” research can capture what’s really going on at any given school. Fordham’s deeply intellectual conversation with the faculty has been going on for four years and BC has a similar endeavor – but that’s not going to show up in a website, because that’s not within the website genre. I think it would be more productive to talk with each other to see how the issues are complex and hopeful at the same time. The web is a wonderfully anonymous way to try to capture mounds of information—but ultimately it can do it's own injustice by giving the impression of getting inside an institution while remaining very much at a superficial level.
Thanks for listening, and sorry to go on. But this is important stuff—and I think really at the heart of our reason for existence in the blogosphere. Amy
Tuesday, May 3, 2005
In response to Rick's question, I certainly agree that some people are likely to conclude that almost any active presence of the Catholic intellectual tradition in the academic life of the law school constitutes "imposition." I simply think we can't ignore that reality, and we have to be very clear in speaking about these things to emphasize that what we're talking about is not imposition or indoctrination. The fear of some of those reluctant to engage in this conversation sometimes seems to be that to give voice to the Catholic intellectual tradition, or to make faith questions explicit, is to give that voice and those questions a privileged place that may become an orthodoxy that will exclude other voices from the pluralistic intellectual exchange. That's certainly not what I'm proposing and I know it's not what Rick's proposing, but I suspect that such a perception is often the reality we face. I would characterize that as an unfair reaction and an inaccurate perception, but people really do sometimes react in these ways, often with great depth of feeling, and our response has to take that reality into account. We can try to make it very clear that we really do acknowledge the reality of their reaction and explain why the approach we're advocating is different. We want to make available the resources of a rich intellectual tradition that should be part of the academic enterprise of the law school, but there's no denying that some people at our institutions might not be interested in that dimension of the enterprise. Even if their reluctance or disinterest is based on misunderstanding, they have to be assured that they're not going to be excluded, and that assurance may come more from an inclusive style that strives to remain engaged in conversation than it will from efforts to convince people that their substantive concerns about impostion are misplaced. For whatever reason (and I'm sure the reasons are various and of varied legitimacy), there can be a lot of anxiety and mistrust as soon as faith becomes part of the conversation. We have to move forward in ways that will generate increased trust, not deepening anxiety or suspicion. In order to do this, I think it's clear that the style in which we speak is at least as important as the substance of what we say. If a more authentic embodiment of Jesuit legal education is going to take root, people have to be invited to become a part of an exciting experiment; they have to be offered opportunities to learn why they might want to be part of an effort that at least some of them will genuinely feel at home with. (The importance of assuring people who are now members of a pluralistic academic community that they can feel at home in an institution of which they may have been a member for many years also has relevance to the important questions around crucifixes in the classroom and the style of public prayer at graduation -- different Catholic schools are going to embody different sorts of cultures that affect the proper way to approach those issues, and wading too quickly into either one of those potentially neuralgic issues may well be a nonproductive diversion from the more central question of how to go about making the resources of the Catholic tradition and other faith traditions an active part of the academic life of a Jesuit, Catholic academic institution.)
With respect to that central question of the academic enterprise, I really would have some questions about a required course in Catholic Social Thought. There may be Catholic law schools where the existing culture would be open to that, but I suspect that at many places a required course with an explicit Catholic focus would be experienced by many students and faculty members as an imposition. I definitely think that an introduction to the tradition of Catholic Social Thought should be a part of the curriculum at any Catholic law school. I'm pretty sure that a lot of our students are interested in such a course, and the excitement of some will generate interest among more. And I know that a number of excellent CST courses are being successfully offered at various schools. But to require first-year students to take such a course, at many currently functioning Catholic law schools, would probably not be a fruitful way to move the effort forward at this moment. There will be members of the community who may well react by saying, "I don't care about that Catholic stuff, don't impose it on me."
In some way's I find John Breen's suggestion of a required course offering students an opportunity to explore the idea of justice in an academic context to be a more appropriate and attractive option to consider. I suspect that the different faculty members who would teach the various sections of such a required course would have different approaches, just as we find different approaches in different sections of Civil Procedure or Constitutional Law. In my Civil Procedure course, for example, I'm pretty explicit about raising virtue questions at various points: e.g., who might you become as a lawyer and as a person as you use these various tools of Civil Procedure in different ways? I actually try to talk some about justice as a virtue -- a way of living that has to be habitually embodied in your life as a lawyer and as a person -- and I recently heard with a bit of consolation one of my Civ Pro students remembering that part of the class as evidence of what he found to be distinctive and attractive about the BC law school experience. Other Civ Pro sections might address the question of justice in other ways. I probably ask different questions about Roe or Goodridge in my Con Law II class than get asked in other sections of that required course, and, similarly, if I were teaching a required course on justice I'd include exposure to CST and the Catholic tradition, but other sections might not. Still, the central objective of bringing the question of justice to the heart of the academic enterprise would at least be on the table, and a bit more forward movement in the conversation might be recognizable. How realistic it is to expect such a course actually to be made a required part of the curriculum, I leave to those with more experience of the politics of faculty governance and institutional resource allocation, especially when it comes to the structure of the first-year curriculum.
Thanks very much to Greg, Mark, John, Amy, and others (and still others) for their responses to my question about the place of Catholic law schools in "great" Catholic universities. I hope others will weigh in, too.
In response to Greg's very eloquent and thoughtful post, a question: Greg writes, "I think it's critical that Jesuit law schools find ways to be explicit about the faith dimension of our Jesuit, Catholic mission, and I'm convinced that we can (and must) find ways to be explicit in an authentically Jesuit way that is characterized by inclusion and dialogue, rather than imposition or indoctrination." Later, he adds, "I'm convinced that, if our law schools are to be places where the full range of ideas and questions can be explored and brought into dialogue with one another, then they must be places where the Catholic intellectual tradition is alive and at home -- not imposed on anyone, but present, vital, articulate, and thoroughly involved in the academic conversation that is at the heart of the life of the university."
I agree with every word. That said, I have to confess being a bit troubled, or maybe just confused, about the words "imposition" and "imposed." In my experience, "the imposition of Catholicism" often functions as a bugbear or straw man in conversations about Catholic identity. (I am not suggesting for a moment that it is playing such a role in Greg's post). What, exactly, do we mean by "imposition," and does the term have a meaning that is both (a) linguistically accurate and (b) remotely likely to actually occur in any currently-functioning Catholic law school? Sometimes, it seems that people think that what Greg endorses -- i.e., making the Church's claims and teachings "present, vital, articulate, and thoroughly involved in the academic conversation that is at the heart of the life of the university" -- does, in fact, amount to "imposition."
But that cannot be right. That is, it cannot be that to present, and even to endorse, Catholic claims, perspectives, or sensibilities is to "impose" them. I imagine that for all of us on MOJ, and for everyone else who thinks and cares about Catholic legal education, John Paul II's statement, "the Church proposes, she imposes nothing", is central to our understanding. So, I wonder if Greg could think of an example of something a currently functioning Catholic school might actually do that would count as "imposition" or "indoctrination"? Would a required one-credit, first-year course, introducing students to the Catholic Social Thought tradition count? What about crucifixes in the classroom, or prayers at graduation? What about a rule that abortion-rights groups may not recruit through the Career Services Office? And so on.
Thanks! Rick
I want to second Mark Sargent's thoughts on John Breen's provocative critique of Jesuit legal education. I am grateful to both John and Amy for their thoughtful contributions to the much-needed effort to think seriously about what it means to call a law school "Jesuit." Like Amy, I think it's critical that Jesuit law schools find ways to be explicit about the faith dimension of our Jesuit, Catholic mission, and I'm convinced that we can (and must) find ways to be explicit in an authentically Jesuit way that is characterized by inclusion and dialogue, rather than imposition or indoctrination. If our law schools are to be integral parts of universities in the truest sense of that word, institutions where the whole universe of human questions are on the table, then our law schools must be places where people of faith (students, faculty, adminstrators, and staff) can explicitly explore what it means to integrate their faith into their professional and academic lives, in both curricular and co-curricular settings.
Like John, I'm convinced that, if our law schools are to be places where the full range of ideas and questions can be explored and brought into dialogue with one another, then they must be places where the Catholic intellectual tradition is alive and at home -- not imposed on anyone, but present, vital, articulate, and thoroughly involved in the academic conversation that is at the heart of the life of the university. There can be a strong tendency in the contemporary academic world with which we are all familiar to shy away from any admission of religion into the conversation out of fear of fundamentalism or authoritarianism or the marginalization of people who do not share the religious tradition of the sponsoring institution. There is a fear that any admission of religion into the conversation will make the religious voice the predominant voice or the privileged voice or an excluding voice. My fear is that prolonged failure to confront that fear explicitly and directly has contributed to the actual marginalization and exclusion of the religious voice. The Catholic intellectual tradition should never be imposed on anyone in a pluralistic, inclusive academic community, but neither should the voice of that tradition be marginalized, excluded, devalued, ignored, or made invisible out of fear of offending those of other religious traditions or no religious tradition. Instead, the Catholic intellectual tradition should have an explict, legitimate place at the curricular table of inclusive dialogue at a Jesuit law school.
My tentative hope is that at least some of the fear that makes hiring for mission such a neuralgic topic at so many places can perhaps, bit by bit, be overcome through more conversation that is open, honest, respectfully attentive to the fears that people do have, and, therefore, at least potentially transformative. All of us who care about Jesuit education have to do a better job of helping our faculty colleagues who may be interested to learn more about the Ignatian mission and spiritual tradition and why that mission and spirituality have led Jesuits to care deeply about higher education for so long. I'm a relative newcomer to the professional academic world, but I think the Ignatian tradition has a lot to offer the shared academic endeavor of the law school (e.g., in the classroom and in our scholarship, in clinical education, in concrete concern for justice (experiential and intellectual), in a shared community life among the faculty and in the classroom that is humane precisely because of a respect for human dignity that is rooted in the Catholic tradition that gave birth to the university as an institution, in a deeper understanding of the law as a vocation and in the law school as a culture of discernment, to name just a few areas that a range of other contributors to this conversation have highlighted in different ways). Thanks to John, Amy, Mark and many others for moving the conversation forward in constructive ways.
Rob is (as usual) one step ahead of me in calling MOJ readers' attention to Penalver's interesting and important paper. A quick thought: I usually roll my eyes when people start invoking "third ways," but -- that said -- it strikes me that there is another way of thinking about property-and-freedom, in addition to the individualistic, even atomistic, "property as exit" (a model that Penalver treats in detail), and the more community-building, bonding, "property as entrance" (the model that Penalver proposes).
I don't have a good name for the model (yet), but this third model would be build around the claim that property and property rights enhance and protect freedom not only by facilitating individuals' exit from community -- in Penalver's words, the idea would be that property does not only allow people to "exit from community into the protective cocoon of their stuff" -- by also by playing a structural role, and serving (what in the First Amendment context is sometimes called a) "checking function." That is, property-as-mediating-institution complicates and thickens civil society, it sets up structures in between persons and the state. In this way, as Penalver suggests, it facilitates the construction and development not only of communities, but also of authentic individual freedom, properly (i.e., not narrowly, in hyper-libertarian terms) understood.
As I read Penalver, his alternative to the "property as exit" model might "go too far" in the other direction. Even after taking to heart Penalver's criticism of "property as exit", it remains the case -- it seems to me -- that property does and should be regarded as a state-checking device. However, by checking the state (or other "too big" aggregations of homogenizing power) property does not simply leave lonely individuals free in their cocoons, it leaves groups, associations, families, churches, and communities free to thrive.
Rick
Fordham law prof Eduardo Penalver has a forthcoming article entitled "Property as Entrance," which may be of interest to those looking to transcend an exclusively individualist justification of property rights:
One of the central values of private ownership in liberal property thought is its freedom-guaranteeing function. The precise mechanism by which private property rights accomplish this guarantee, however, is frequently left unexplored. When theorists discuss the issue, they often identify property's liberty-securing quality with the power that property confers upon its owner to exit from society into the protective cocoon of his stuff. This mechanism of property as exit draws its strength from an implicit assumption that people are the sorts of beings that can withdraw from social relations into the cocoon of their property. But there are reasons to think that withdrawal would be very costly for most people. As a consequence, the power of property to facilitate exit may be substantially weaker than is often assumed. In addition, scholars' affinity for property's exit function has obscured the degree to which property works, not solely as a means of facilitating withdrawal, but also as a crucial mechanism for tying individuals into social groups.
(HT: Solum)
Rob
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