Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, June 9, 2009

Fr. Reese, Notre Dame, and academic freedom

With respect to the "Dog That Didn't Bark", and Fr. Reese's concluding paragraph:

“Whatever the cause of this presidential silence,” he concluded, “it was shameful. The presidents owe Notre Dame and Fr. Jenkins an apology; they owe Catholic higher education better leadership; they owe their faculties an explanation for not defending academic freedom and autonomy. They stood silent while another educational institution was unfairly and viciously attacked.”

Hmmm.  That's one way of looking at it.  My own views on the Notre Dame / Obama matter are not a secret, so it's probably not a surprise that I think that Fr. Reese, for all his achievements, badly misunderstands what happened, and what was at stake, in the affair. 

For Notre Dame to have declined to honor Pres. Obama, with a ceremonial degree, in an over-the-top fawning way, at this particular time, would have done nothing to undermine -- indeed, it would not have even implicated -- academic freedom.  Those who care about academic freedom -- as we all should -- should be more worried about the possibility that outside pressure and influences (hint:  not the Catholic bishops or those pesky "conservatives") caused Notre Dame to lose sight -- temporarily, I persist in hoping -- of its obligation, and its calling, to be something different, interesting, faithful, and free.

The costs of blogging pseudonymously

If Michael proposes to blog, going forward, as "Rick Garnett," that's fine.  But, I expect him to also sign over his Woodruff Chair money, his book royalties, and his cite-count stats.  Pay up.

Torture in American Schools?

A recent James Taranto column in the WSJ reports that:

Last month the Government Accountability Office issued a shocking report on "selected cases of death and abuse"--not at Guantanamo Bay or other detention facilities for terrorists, but at schools for American children:

GAO also examined the details of 10 restraint and seclusion cases in which there was a criminal conviction, a finding of civil or administrative liability, or a large financial settlement. The cases share the following common themes: they involved children with disabilities who were restrained and secluded, often in cases where they were not physically aggressive and their parents did not give consent; restraints that block air to the lungs can be deadly; teachers and staff in the cases were often not trained on the use of seclusions and restraints; and teachers and staff from at least 5 of the 10 cases continue to be employed as educators.

After giving some exaples of the kinds of restraints against school children that the GAO reported, Taranto concludes:

When the report came out on May 19, we figured it would be a good opportunity to find common ground with politicians and commentators who've been complaining for years about the "torture" of terrorists. We figured President Obama would issue an executive order banning torture in schools, the New York Times would publish an indignant editorial, Dick Durbin would take to the Senate floor to declare that the teachers unions remind him of the Gestapo, and that nut who writes for The Atlantic would proclaim himself "shocked to the core."

We were going to respond by saying that although we think there are circumstances under which it is justifiable to treat terrorists roughly, all good people can agree that torturing schoolchildren is categorically wrong. But we didn't have anything to respond to. As far as we are aware, the GAO's findings have been greeted with silence by the leading self-proclaimed "torture" opponents--though Education Secretary Arne Duncan did tepidly promise "he will ask state school chiefs around the country about the use of restraints and confinement of pupils in the classroom," according to the Associated Press.

Although disability rights activitists do try to raise awareness of these sorts of things (see, e.g.:  http://tcfpbis.blogspot.com/ ), it never seems to me that those efforts have much traction in public discourse.   

My personal favorite federal district court judge issued an opinion recently finding that a local special education program violated the Fourth Amendment by requiring full searches of these students every morning as they entered the facility.  [Hough v. Shakopee Pub. Schools, 608 F.Supp. 2d 1087 (D. Minn. 2009)] My favorite quote from the opinion:

Certainly, special-needs students must sacrifice, to a least a limited extent, the privacy of medical and other information about their disabilities. And some students with special needs may have to sacrifice other privacy interests; for example, a disabled student who needs help going to the bathroom or with personal hygiene would necessarily have a reduced expectation of privacy. But all special-education students do not forfeit all expectations of privacy by virtue of being disabled. Students with disabilities remain members of the human family; they generally have the same expectation of privacy in their bodies, and clothing, and personal possessions as any other student. The fact that, say, the medical records of an autistic student must be disclosed to a limited number of school officials does not mean that the autistic student somehow gives up his bodily integrity.

Hear, hear!

 

David Gushee on white church-going Christians and torture

Gushee is distinguished university professor of Christian ethics at Mercer University.  His "Christian's lament over the Pew torture poll" is worth reading, here.

-- "Rick Garnett"

Against Agape as (Even the Highest Kind of) Self-Love

Rob quotes Josef Pieper (criticizing Anders Nygren) that "[t]he call for an utterly disinterested, unmotivated, sovereign agape love that wishes to receive nothing, that is purged of all selfish desire, simply rests upon a misunderstanding of man as he really is," and that agape is a form (the highest form I imagine) of self-love, "properly understood as 'desire for fullness of being.'"  I think there's an important point there, that Christian love needs to have a connection to how human beings really are.  But I also worry that if this is the sole description, it loses an essential element in Christianity, namely the element of tension: that is, that the consummation of human existence in Christ would not just fulfill more deeply what we are or desire now, but radically transform what we are or desire now.  I worry that statements like the quotes of Pieper's can smooth over the strangeness of Jesus's demands, such as "love your enemies" and "resist not evil," in finding too much or too simple a commonality between our loves and distinctively Christian love.

Although I don't know Pieper's work, this quote also suggests that Pieper gets Nygren wrong in reading him to say that it's "our love" that gives people value, as opposed to God's love.  Whatever one thinks of the idea that value comes solely from God, that's quite different from saying that it comes from us, no?

Thoughts, Rob or others?

Monday, June 8, 2009

Blogging Pseudonymously

There's a raging controversy in the blogosphere about the ethics of blogging pseudonymously.  Read about it here, in a post titled "The Outing of Publius".  I've decided that from this point on, I'm going to blog pseudonymously at MOJ, under the nom de blog "Rick Garnett". 

The Dog That Didn't Bark

NCR, 6/8/09

The silence of the presidents

Fr. Thomas Reese, S.J., former editor-in-chief of America magazine, wrote an exceedingly important article for the National Catholic Reporter, May 29, on the silence of the presidents of Catholic colleges and universities.

Almost none of them came to the defense of the University of Notre Dame or their fellow president, Holy Cross Father John Jenkins, when the institution and Jenkins were under heavy fire from bishops and conservative laity alike for having invited President Barack Obama to be Notre Dame’s Commencement speaker and to receive an honorary degree.

Reese, alluding to a famous line in one of the Sherlock Holmes mysteries, referred to their collective silence as the case of the dog that did not bark.

He called it a surprising development because this one group of Catholic college and university presidents (many of whom, alas, are Reese’s fellow Jesuits) knows more about Catholic higher education than any other group and has more at stake than most.

And yet, Reese observed, the presidents were “AWOL during the entire controversy. The Catholic college and university presidents were silent.”

“Yes, a couple did speak,” he conceded, “such as Trinity College President Patricia McGuire. Georgetown University President Jack DiGioa also showed solidarity by allowing President Obama to speak on campus. But most were silent.”

Reese offered four theories for the silence and found none of them finally persuasive. . . .

“Whatever the cause of this presidential silence,” he concluded, “it was shameful. The presidents owe Notre Dame and Fr. Jenkins an apology; they owe Catholic higher education better leadership; they owe their faculties an explanation for not defending academic freedom and autonomy. They stood silent while another educational institution was unfairly and viciously attacked.”

[Read the whole piece, here.]

Recommended Reading

Conscience and Citizenship: The Primacy of Conscience for Catholics in Public Life"


Journal of Catholic Social Thought, Vol. 6, No. 2, Summer 2009
Boston College Law School Legal Studies Research Paper No. 178

GREGORY A. KALSCHEUR, Boston College - Law School
Email:

In their statement, Forming Consciences for Faithful Citizenship, the U.S. Catholic bishops acknowledge that ?the responsibility to make choices in political life rests with each individual in the light of a properly formed conscience.? This essay argues that, in light of this responsibility, it is important to affirm a commitment to the primacy of conscience as that idea has been understood in the Catholic tradition. If we really expect voters and public officials to make responsible, conscientious decisions about matters of public policy, we should not speak in ways that suggest that the proper formation of conscience is simply a matter of falling in line with church teaching. Such an approach will not contribute to the ability of voters and public official to make conscientious decisions, because church teaching does not generally speak definitively to the concrete questions that voters and public officials face.

The essay articulates an understanding of the primacy of conscience that is rooted in a proper understanding what conscience is and of the relationship between conscience and truth. To be a human person is to have a duty to seek the truth in order that one can form for oneself right and true judgments of conscience. As one seeks the truth, one is bound to adhere to the truth as it is known, and one is bound to order one?s life in accord with the demands of truth. In all our activities we are bound to follow our conscience. This is what it means to speak of the primacy of conscience. The essay also discusses the demands of proper conscience formation, which exclude a mistaken notion of the autonomy of conscience. We each have to commit ourselves to forming for ourselves right and true judgments of conscience, but we cannot form our consciences by ourselves. Proper formation of conscience must be attentive to the teaching of the church and the insights of human reason. It must also be guided by the balancing virtue of prudence, which is appropriately attentive to the limits of what it might be possible for good law to accomplish under existing social, political, and constitutional conditions. In the midst of often deep moral disagreement in our society, respect for the primacy of conscience calls us to engage in the respectful dialogue that is essential if we are to join together with our fellow citizens in an authentic search for truth, forming hearts and minds committed to making choices that will protect human dignity and promote the common good.

Matthew 25:34-40

Sightings 6/8/09

I Was In Prison, But...
-- Martin E. Marty

Sightings files bulge with clippings and printouts having to do with religion and prisons.  Every year I “do” one of the sixty synod assemblies of our cosa nostra, the Evangelical Lutheran Church in America.  This year it was the Southwest California synod.  Months ago they told me I was to keynote the meeting on the theme, “I Was In Prison, But…”  They knew of my interest in and I knew of my non-expertise on the subject, so I scrambled to read up as if to catch up.  I am writing a book on Dietrich Bonhoeffer’s prison letters, and hang out with colleague Clark Gilpin who is writing on prison letters written centuries ago.  Such histories provide background, but we need foreground now.  I am not sure that Elizabethan and Nazi prisons were more soul-damaging than those portrayed and described to me by California Christians.  No, this is not a suggestion of societal “equivalency,” only that damage to the soul of prisoners anywhere is equivalent to soul-damage anywhere.
   
The end of that paragraph may suggest that I am somewhat sentimental and soft about all the people in prison.  Spend a few minutes with chaplains, pastors, lay volunteers, and workers for justice, as I did with the people on the scene at the Synod Assembly, and you will hear stories of people who do evil, evil things.  But what you do hear from them is testimony that most prison life in America is “retributive” and not “restorative” for the literally millions in prison, many of them there so we can hide them or hide from them, and where we turn them over to fellow-prisoners and their gangs to teach kids (juvenile offenders) how to train for a life of violent crime.
   
The May 19th Christian Century has a review by Tobias Winright of James Samuel Logan’s Good Punishment? Christian Moral Practice and U. S. Imprisonment, which Winright and other reviewers evidently regard as the best of the current batch, the batch being books by Christians and other witnesses on the prison scene.  Winright: “Why is it, for example, that the U.S., which has 6 percent of the world’s population, incarcerates 25 percent of the worlds’ prisoners?  We currently have some 3.2 million persons in…prisons.   We spend more money building and maintaining prisons than public schools—to the tune of $50 billion a year… No other democratic nation today imprisons people on such a scale or for as long as the U.S.  Yet what are we accomplishing?”  Logan’s testimony:  We accomplish little positive.
   
The literature, religious or not, on the failings of the system and the guilty participation in its expansion on the part of eyes-averting citizens is vast, and this is not the place to try to review it.  Churches are not entirely asleep.  The internet will bring you—as it did, in recent months, desperate-to-learn me—rich evidences of ingenuity and zeal by congregations, synods, denominations, and agencies.  Some months ago I made a pit stop at Friend-to-Friend, a program of Lutheran Metropolitan Ministry in Cleveland, and heard good news of similar programs from Lutherans at the Assembly in California—a state whose statistics and stories make it a candidate for “worst.”
   
The Assembly theme reminded me and colleagues there of the need to take a different look at justice and mercy than does society at large.  Working for justice and visiting the prisoners are central to their devotion to the Jesus of the gospels, who said that in visiting prisoners they were visiting him.  He’s quite lonely.  The tens of thousands of congregations, whose programs address this, dispel some of that terror of loneliness.

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Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

The Future of the Catholic Church in America

Reflecting on Fr. Cozzen's NCR article "The Church will submerge before any emergence, Cathy Kaveny, in a dotCommonweal post titled "A Generation or Two of Real Darkness" asks: "Are we basically headed toward a situation in which liberals and moderates drop out, and conservatives are left with an increasingly smaller leaner, and meaner church?"

I would say "yes," we are in for a generation or two of real darkness if we continue to view the Church in political terms as comprised of liberal, moderate, and conservative members.  If I am a liberal, the conservative becomes an "other" with whom I must contend.  And, if I am a conservative, the liberal becomes an "other" with whom I must contend.  Lost in all this is our primary call, which is, as I see it, to fall in love more and more each day with God who is Love and, as we read yesterday's in Gospel, to spread this message of love to all the nations.

Yes, we have real issues to be worked through painfully, and I don't desire to sweep those issues under the rug.  But, as we fight I pray that we remember that "we are one in the Spirit, we are one in the Lord, and I pray that all unity will one day be restored."