HT: Brian Leiter
MEMO
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.
Thank you for considering this proposal.
Sunday, July 22, 2007
My colleague, Dan Gibbens, sent me the following:
New Orleans residents are challenged often with the task of tracing home titles back potentially hundreds of years. With a community rich with history stretching back over two centuries, houses have been passed along through generations of family, making it quite difficult to establish ownership.
A New Orleans lawyer sought an FHA loan for a client. He was told the loan would be granted, if he could prove satisfactory title to a parcel of property being offered as collateral. The title to the property dated back to 1803, which took the lawyer three months to track down.
After sending the information to the FHA, he received the following reply:
(Actual letter): "Upon review of your letter adjoining your client's loan application, we note that the request is supported by an Abstract of Title. While we compliment the able manner in which you have prepared and presented the application, we must point out that you have only cleared title to the proposed collateral property back to 1803. Before final approval can be accorded, it will be necessary to clear the title back to its origin."
Annoyed, the lawyer responded as follows (actual letter):
"Your letter regarding title in Case No. 189156 has been received. I note that you wish to have title extended further than the 194 years covered by the present application.
I was unaware that any educated person in this country, particularly those working in the property area, would not know that Louisianawas purchased, by the U.S., from Francein 1803, the year of origin identified in our application. For the edification of uninformed FHA bureaucrats, the title to the land prior to U.S. ownership was obtained from France, which had acquired it by Right of Conquest from Spain. The land came into the possession of Spain by Right of Discovery made in the year 1492 by a sea captain named Christopher Columbus, who had been granted the privilege of seeking a new route to India by the Spanish monarch, Isabella. The good queen, Isabella, being a pious woman and almost as careful about titles as the FHA, took the precaution of securing the blessing of the Pope before she sold her jewels to finance Columbus' expedition. Now the Pope, as I'm sure you may know, is the emissary of Jesus Christ, the Son of God, and God, it is commonly accepted, created this world. Therefore, I believe it is safe to presume that God also made that part of the world called Louisiana. God, therefore, would be the owner of origin and His origins date back, to before the beginning of time, the world as we know it AND the FHA. I hope you find God's original claim to be satisfactory. Now, may we have our damn loan?"
The loan was approved.
Friday, July 20, 2007
This letter is in response to Mark Sargant's posts here and here.
An open letter to Dean Bernie Dobranski and Ave Maria Law School’s Board of Governors
Dear Dean Dobranski and Board of Governors:
Ave Maria Law School opened with much fanfare and much promise. This was to be a truly Catholic law school, drawing upon and integrating the great resources of our faith – the intellectual tradition, the liturgy, the moral teachings, the social teachings, etc – for the purpose of forming new lawyers (teaching) and applying universal truths to the legal and political questions of our time (scholarship).
Less than a decade after its remarkable start, the dream lies tattered, crumbling from within, seemingly failing because of the inability live the Catholic faith - with its emphasis on love, forgiveness, reconciliation, and justice – within the community. I am sure that there is some blame to share among faculty, administration, and the board for acrimony related to strained relations. This does not trouble me much because that is just human nature.
The Association of Ave Maria Faculty (“AAMF”) has, however, leveled serious charges against the Dean and by implication the Board, which continues to support the Dean. According to the AAMF: “Since the vote of "no confidence" in Dean Dobranski in April 2006 over issues of faculty governance and academic freedom, he has used threats and retaliation to try to silence members of the faculty from voicing concerns about his leadership and that of Mr. Monaghan. A majority of the faculty whom the Dean believes to be disloyal to him have been punished financially and through manipulation of the promotion and tenure system. One tenured faculty member has been repeatedly threatened with termination based upon bizarre allegations. Junior faculty members have been threatened that their careers would be harmed if they associate with disfavored tenured faculty. We have also been informed that Dean Dobranski had instituted a system of monitoring our emails and computers, and student research assistants have been closely questioned about research projects of disfavored faculty members. All tenured faculty members have been removed from the Chairs of faculty committees, and such chairs are now in the control of the few faculty members whom the Dean believes to be loyal to him. Cumulatively, such intimidation and bullying has created an intolerable atmosphere of fear and contempt at our school.” And, “[t]he Dean has pocketed ballots and stalked out of faculty meetings unilaterally declaring them adjourned.”
These allegations certainly are disturbing. And, you know, in your hearts, the truth of the matter. As leaders and stewards of an important Catholic law school, I ask you – I implore you – to meditate on the washing of the feet in Chapter 13 of John’s Gospel. As leaders of this community, you are called upon to wash the feet of the faculty, alums, students, and other members of the law school community. You are called to forgive and seek forgiveness. In short, you are called to love and reconciliation.
The hour is not too late for you to model for the legal and academic communities the essence of a Catholic Christian law school. In fact, I would suggest you have a better, clearer opportunity to mirror Christ now than when you first began because the only path left open is through the cross. It may not be what you had planned, but God works in mysterious ways. Are you up for the challenge? Can this be done with the current Dean? I don’t know? Dean Dobranski, are you willing to step aside as dean and humbly join the faculty, if that is what it takes to heal this broken community? Dean and Board, to the extent that you have fallen short, are you now willing to treat the Faculty – as sharers in the law school’s governance – with respect and dignity? Where you have acted inappropriately, are you willing to humbly ask forgiveness? Where you feel you have been wronged, are you willing to forgive?
As lawyers, we are called to participate in the healing of a broken world. We are called to be Christ to our neighbor (lawyers no longer have the luxury to ask the follow-up, “Who is my neighbor?”) I pray that as leaders of Ave Maria Law School you have the courage to be Christ, to manifest Christ’s servant leadership, at your broken school.
May God bless you and may the peace of Christ reign in your hearts,
Michael Scaperlanda
Edwards Family Chair in Law
Associate Dean for Research
University of Oklahoma
College
of Law
Thursday, June 28, 2007
Even in Agreement, Scalia Puts Roberts to Lash
By LINDA GREENHOUSE
Published: June 28, 2007
...
The conservative alliance at the court may be fractious but not fragile, strong enough to withstand Justice Scalia’s “tweaking and needling,” as Prof. Richard W. Garnett of Notre Dame Law School describes it.
“I look at it as a bit of a kabuki dance,” said Professor Garnett, who clerked for Chief Justice Rehnquist and is close to the court’s conservatives. He said he had no doubt that Justice Scalia had “huge respect for the new chief as a person and as a lawyer.”
What is visible now, he said, is the latest iteration of the endless struggle between the need for stability in the law and the desire to correct previous mistakes.
“Different people who call themselves conservatives resolve that tension in different ways,” Professor Garnett said, adding that Justice Scalia was “laying down markers, making sure the arguments are out there to be used in later cases.”
For the full article, click here.
Tuesday, June 26, 2007
This follows my earlier posts on the questions raised by Joseph Ratzinger's book, Jesus of Nazareth, for the CLT project. As in my earlier posts, the question for me (us?) is what is my (our) response to the text.
p.118 - The "communion of will with God given by Jesus ... frees men and nations to discover what aspects of political and social order accord iwth this communion of will and so to work out their own juridical arrangements. ... The concrete political and social order is released from the directly sacred realm, from theocratic legislation, and is transferred to the freedom of man, whom Jesus has established in God's will and taught thereby to see the right and the good."
On p. 119, he identifies the current social and political problem - "In our day, of course, freedom has been totally wrenched away from any godly perspective or from communion with Jesus. Freedom for universality and so for the legitimate secularity of the state has been transformed into an absolute secularism, for which forgetfulness of God and exclusive concern with success seem to have become guiding principles." In response, he proposes that "for the believing Christian ... the search for God's will in communion with Jesus is above all a signpost for his reason, without which it is always in danger of being dazzled and blinded."
More later...
Monday, June 25, 2007
Lisa's post has caused me to think that the early Church, in its encounter with the Roman Empire and other non-Christian cultures, proposes a model for us to consider in our encounter with the secular academy and secular society today.
On page 98 of Jesus of Nazareth, in exploring the Beatitudes, Joseph Ratzinger says: "As we witness the abuse of economic power, as we witness the cruelties of a capitalism that degrades man to teh level of merchandise, we have also realized the perils of wealth, and we have gained a new appreciation of what Jesus meant when he warned of riches, of the man-destroying Mammon, which grips larges parts of the world in a cruel stranglehold." He then follows this up with the primacy of God, the centrality of the person of Jesus, and the face of Love. If Ratzinger is correct, and I think he is, what are the implications for CLT?
More later...
Saturday, June 23, 2007
I have just started Joseph Ratzinger, Benedict XVI's, book "Jesus of Nazareth," which I picked of at Loome's during our meeting of the Conference of Catholic Legal Scholars last week. The first thing I noted is that the author is Joseph Ratzinger, Pope Benedict XVI and not Pope Benedict XVI. He retains his given name, I suspect, because, as he explains in the foreward: "It goes without saying that this book is in no way an exercise of the magisterium, but is solely an expression of my personal search 'for the face of the Lord' (cf. Ps. 27:8)." In other words, Ratzinger is inviting us to consider with him, the face of Jesus as he has encountered Him. And, so far it is a great journey.
Since God's entry into the human condition in the person of Jesus, the Son, affects all aspects of our life, it should not be surprising that the book raises questions for our Catholic Legal Theory project.
On page 29, in the chapter on the temptations, Ratizinger says: "God is the issue: Is he real, reality itself, or isn't he? Is he good, or do we have to invent the good ourselves? The God question is the fundamental question, and it sets us down right at the crossroads of human existence." If Ratzinger is correct, and I think he is, what are the implications for CLT?
On page 33, he quotes the martyred (by the Nazi's) German Jesuit, Alfred Delp: "Bread is important, freedom is more important, but most important of all is unbroken fidelity and faithful adoration." Ratzinger presses the point: "When this ordering of goods is no longer respected, but turned on its head, the result is not justice or concern for human suffering. The result is rather ruin and destruction even of the material goods themselves." He continues: "The aid offered by the West to developing countries has been purely technical and materially based, and not only has left God out of the picture, but has driven men away from God. And, this aid, proudly claiming to 'know better,' is itself what first turned the 'third world' into what we mean today by that term." He agains returns to the theme: "The issue is the primacy of God. The issue is acknolwedging that he is a reality, that he is the reality without which nothing else can be good. History cannot be detached from God and then run smoothly on purely material lines." If Ratzinger is correct, and I think he is, what are the implications for CLT?
On page 39, he says: "Without heaven, earthly power is always ambiguous and fragile. Only when power submits to the measure and the judgment of heaven - of God, in other words - can it become power fro good. And only when power stands under God's blessing can it be trusted." If Ratzinger is correct, and I think he is, what are the implications for CLT?
And, that is as far as I have read.
