Yesterday, I began a three-part series of posts on why scholarly work of the highest quality and national scholarly impact by faculty are especially important to Catholic legal education.
The first point, which I made in yesterday’s post, is that a meaningfully Catholic law school must be an intellectually engaged law school. Intellectual excitement and depth cannot be sustained without a faculty also engaged in the quintessential intellectual activity of scholarly research and writing.
My second point goes not only to Catholic legal education, but Catholic higher education in general: Through our scholarly excellence and prominence, we witness to society the vibrancy of intellectual discourse by persons of faith.
Throughout American history -- and with increasing tendency today –- persons of devout religious faith have often been discounted in academic and other elite cultural circles, sometimes regarded as intellectually inferior. As but one pertinent example, those who study reputational-based rankings of law schools (such as the U.S. News ranking which gives considerable weight to reputational surveys) have observed a “religious law school discount.” A law school that is religiously affiliated is likely to be downgraded an ordinal ranking level or more -– due to poorer survey scoring by academic peers -- when compared to otherwise equivalent law schools on objective measures such as student profile, employment statistics, faculty scholarly impact, etc. The strongest counterpoint to this "religious law school discount" is to prove the falsity of the anti-intellectual stereotype by encouraging our colleagues to perform even better than scholars at our peer institutions without a religious affiliation.
If Catholic legal education (or Catholic education in general) is to be acknowledged as intellectually fit, then faculty at Catholic institutions must be intellectually engaged. By sharing our legal scholarship with others, and (hopefully) receiving deserved accolades for our work, we thereby enhance the intellectual reputation of Catholic legal education.
A half century ago, Monsignor Tracy Ellis provoked Catholic higher education through a speech and monograph titled, “American Catholics and the Intellectual Life.” Monsignor Ellis indicted Catholic colleges for failing to build a strong scholarly culture, leading to the disrepute of Catholic higher education.
My recently departed law school Dean Tom Mengler -- departed, that is, to become President at St. Mary’s University in San Antonio, not that other kind of departure -- wrote thoughtfully about Monsignor Ellis in a piece published two years ago in the Journal of Catholic Social Thought titled “Why Should a Catholic Law School Be Catholic?” (here)
Monsignor Ellis blasted away at the anti-intellectualism of the American Catholic and the mediocrity –- especially the scholarly mediocrity –- of American Catholic colleges and universities. Ellis wrote that the lack of an intellectual and scholarly tradition within Catholic higher education [was] a kind of self-imposed ghetto mentality* * *. [In the early twentieth century, Catholic colleges] emphasize[d] what Ellis called a narrow vocationalism and anti-intellectualism.
* * * By all accounts, Ellis’s tiny book had enormous impact on Catholic higher education. Just a few years after Ellis‟s book was published, Father John Cavanaugh, formerly Notre Dame’s president, credited Monsignor Ellis with upgrading scholarship at Catholic universities across the country. At most of the major Catholic universities – throughout their academic departments, including within the law schools – scholarship suddenly became a more important focus.
We are the heirs of Monsignor Ellis’s intellectual legacy. And the need for a vibrant scholarly culture in Catholic higher education remains as compelling. As I’ll turn to with the third point later this week, the additional challenge today is to ensure that our scholarly excellence includes a critical mass of distinctly Catholic or Catholic-inspired work to influence the larger society for the good.
Taking the Scholarly Impact Ranking baton generously handed to us by University of Chicago Law Professor Brian Leiter (with his continued counsel), I led a team here at the University of St. Thomas (including librarians Valerie Aggerbeck, Debby Hackerson, and Mary Wells) in updating the ranking of American law schools by the Scholarly Impact of their collective faculties. The “Scholarly Impact Score” for a law faculty is calculated from the mean and the median of total law journal citations over the past five years to the work of tenured members of that law faculty.
Two weeks ago, the 2012 Scholarly Impact Ranking was announced on Brian Leiter’s “Law School Reports” blog and the full results and narrative may be found here.
Whenever a report or study is published on the scholarly activities of law professors, it is likely to provoke some critical responses questioning whether legal scholarship has any practical value. Someone is likely to argue yet again that law professors spend too much time on scholarly writing at the expense of their teaching responsibilities (especially in an era in which law student debt is rising and job prospects are challenging).
In my view, this often (not always) reflects a false conflict between scholarship and teaching. We should not view scholarly work and teaching as competing with each other, rather than understanding that the intellectual preparation found in scholarly reserarch and writing is complementary to greater depth in teaching.
When I am asked, with respect to my own institution, the University of St. Thomas, whether we should continue to strive for scholarly excellence and national scholarly prominence or whether we should devote greater attention to teaching and enhancing professional formation, my answer is an unequivocal “yes!” Especially during these challenging times, we as tenured faculty members need to step up and work even harder to achieve excellence in both responsibilities.
Moreover, it bears reminding, even if the teaching duties of tenured faculty were increased substantially during the academic year, the long glorious months of summer would remain. At most law schools, few students are in school and few classes are being taught during the summer. Given that luxury of uninterrupted weeks of work time, most tenured faculty have been given more than ample opportunity to produce one or two major works of scholarship each year.
(Note: Along with Brian Tamanaha, Bill Henderson, and others, I do agree that law school accreditors should permit a greater diversity of approaches to legal education, including low-cost alternatives that employ primarily non-tenure-track faculty who teach higher loads year-round with no scholarly expectations. While there are meaningful downsides to this lower-cost approach, such alternatives ought to be available to students who choose them, for reasons of economics or personal preference. And, at most law schools, there is a vital and growing role for instructors, particularly in practice-oriented courses, who are not on tenure-track and have little or no scholarly expectations.)
I want to address today a more pointed question: How important is scholarly impact to a Catholic law school?
For three reasons, I think the scholarly mission of the tenured (and tenure-track) law faculty takes on added importance for the Catholic law school: (1) an intellectually engaged law school culture requires scholarly-engaged law faculty; (2) a scholarly-prominent Catholic law school is a strong witness for the intellectual vibrancy of scholars of faith; and (3) a Catholic law school through the scholarly work of its faculty influences for good the culture in which it is situated.
I’ll say a little more about the first of points below and then follow up with the other two points in separate posts later this week.
On my first point, a law school that is meaningfully Catholic in character will be grounded in the Catholic intellectual tradition, while giving careful attention to and including faculty who are grounded in and work from other intellectual traditions and scholarly movements. A law school cannot be an intellectually vigorous place without faculty who are engaged in the quintessential intellectual activity of scholarly research and writing. One can best convey to students the excitement and meaning of intellectual discourse, along with the satisfaction of applying reason informed by theory to new situations, when one is doing that hard scholarly work oneself.
I recall a friend and law professor many years ago who referred in casual conversation with me to the faculty at another law school (that shall remain unnamed) as intellectually engaged because, even though no one on that faculty produced much scholarly publications themselves, the faculty gathered every couple of weeks in the faculty lounge to discuss a recent scholarly article written by someone elsewhere. At the time, I thought how odd it would be to describe the faculty at a school of music as musically engaged, even though none of the faculty wrote music or played instruments, but instead gathered frequently to listen to and discuss music written and played by others.
If we are to bear witness to the Catholic intellectual tradition -- and other intellectual disciplines -- we must be thinking hard about those matters. And that means writing about them. We all know that a student can listen to a classroom discussion without thinking. And, as we’ve all experienced, especially when trying to read an assigned text late in the evening, a person can read without thinking. But no one can write without thinking -- at least to some extent.
By engaging in scholarly writing of our own, we enhance our ability to critically examine the previously published scholarship of others, and we frequently discover the greater persuasiveness of prior scholarly work when we take the time to examine it in our own work. As I often am reminded in doing research, it is very easy to unfairly criticize the scholarly work that someone else has done, only to find when I actually engage with the same issues and materials in doing my own work, that the prior researcher did very well with what she had before her. One is rightly skeptical of a purported scholar who pontificates on the work of others but has never done the heavy-lifting of laboring in that field himself.
When the Seventh Circuit issued its en banc decision in Doe v. Elmhurst School District last week, ruling that a public school violated the Establishment Clause by holding commencement in a church, I was on an island in Puget Sound with limited internet access.
I appreciate Marc DeGirolami’s post last week critiquing the decision, with several quotations from the dissents, and kindly noting Judge Posner’s dissent citing to the empirical study that Michael Heise and I have conducted on Establishment Clause decisions in the lower federal courts.
Judge Posner’s dissent rightly calls the Supreme Court to task for its “formless, unanchored, [and] subjective” case law on the Establishment Clause, setting the stage for Supreme Court review in the Elmhurst case.
In our Michigan Law Review article, Ideology “All the Way Down”? An Empirical Study of Establishment Clause Decisions in the Federal Courts, we found that, holding other variables constant, Democratic-appointed judges were predicted to uphold Establishment Clause challenges at a 57.3 percent rate, while the predicted probability of success fell to 25.4 percent before Republican-appointed judges. Thus, an Establishment Clause claimant’s chances for success were 2.25 times higher before a judge appointed by a Democratic President than one appointed by a Republican President.
As we stated in the article, this is a most troubling departure from the aspirational ideal of neutral and impartial judging.
And, like Judge Posner, we place a significant share of the blame on the Supreme Court’s Establishment Clause jurisprudence, which we described as an “attractive nuisance for political judging.” When too much room is left for judicial discretion, at least in such a highly contested and politically prominent area of constitutional law as Church and State, judges are likely to end up relying on personal premises, because there is no more objective standard to apply.
The (potentially) good news is that we also found that the Supreme Court’s recalibration of Establishment Clause doctrine (measured by a precedent variable) has made a measurable difference in outcomes in the lower federal court, although it has not (yet) reduced political or ideology disparities among ruling judges in the lower federal courts. Thus, we have some optimism that a continued movement by the Supreme Court away from a subjective xxx to a new jurisprudential regime could arrest the unsavory political influence or at least reduce it.
We’ll all have to stay tuned to what the Supreme Court does next – perhaps in the Elmhurst case itself.
Last week I traveled to Seattle to pay my last respect to a man whose kindness, generous counsel, and professionalism made an indelible mark on my life and set the stage for what I've been fortunate to accomplish over the past quarter-century.
Judge Robert R. Beezer of the United States Court of Appeals for the Ninth Circuit passed away just before this past Easterl. Last week, on June 27, a public memorial for Judge Beezer was held in the Nakamura United States Courthouse in Seattle. I had the honor of clerking for Judge Beezer in 1985-86.
The speakers at the public memorial spoke to Judge Beezer’s character, his professionalism, his love for the law and the court, and his humanity. Chief Judge Alex Kozinski, Judge Diarmuid O’Scannlain, Judge Margaret McKeown, and Judge Richard Tallman spoke of him as a lawyer and a judge, a man who lived his professional life by a code of civility and respect for the rule of law, especially the procedural rules that govern litigation and sometimes the progress of life itself. He insisted on treating other judges and the lawyers that appeared before him with respect. He strove to maintain civility and professional courtesy, even (no, especially!) in the midst of litigative strife or judicial disagreements.
As but one of the many examples of his professional courtesy shared during the memorial, Judge McKeown described how a then-senior practitioner of trusts and estates had gone well beyond extending courtesy to her as a younger lawyer on the opposite side of a lawsuit when he offered her a ride every morning to the courthouse to spare her difficulties in transportation. But, showing his consummate professionalism, he remained a zealous advocate for his client, not hesitating to take appropriate procedural advantage to benefit his client during the course of the trial.
In sum, Judge Beezer was a model for lawyers and judges that being an effective lawyer and strong representative of a client is fully consistent with professional courtesy and civil discourse.
My former co-clerk, Brad Englander, and the judge’s daughter, Allison Beezer, spoke of his mentorship, his humor, his guidance, his humility, and his infectious joy in the simple things in life. He took great pleasure in seeing the lives unfold of those who loved, both his children and grandchildren and three decades of law clerks (who often became “adopted” members of his family).
During the memorial, my co-clerk and now long-time friend Brad Englander told a story from our days as clerks for Judge Beezer that has remained close to my heart and that of my wife for a quarter-century. Just before Thanksgiving in 1985, Seattle was socked with a heavy snowstorm. The city having made the economic decision not to invest in snow-removal equipment since significant snow-fall was not typical in Seattle, the city was effectively shut down for several days. Transportation throughout the city –- and out of the city –- was difficult or impossible. Both Brad with his fiancé and I with my wife had plans to spend the Thanksgiving holiday out of town. But the snow left us stranded. Judge Beezer then invited all of us to spend Thanksgiving dinner with his family, one of the most memorable evenings of my life. Both Brad and I continue to be deeply touched by that hospitality, which was so characteristic of Judge Beezer, all these years later.
Let me add one additional story about Judge Beezer that, precisely because it is rather silly, sheds more light on his playful personality and genuine humanity. During my clerkship (and beyond), Judge Beezer often would volunteer to sit for a day or two on an additional argument panel in Seattle beyond his ordinary monthly set of arguments, because the court was short-handed. On one such occasion, I was in the courtroom in the Seattle courthouse watching the arguments, because I had worked on the bench memo for one of the cases. A lawyer was arguing his case by reading prepared remarks, only occasionally pausing to answer a question which he plainly viewed as an unwelcome interruption. [Note: Let it be other than obvious to law students or lawyers who have not argued an appellate case, reading your argument is a very bad practice and judges who ask you questions are your friends, as you then know what points to emphasize in your argument.]
On the bench, Judge Beezer was playing with a rubber band as he listened to this lawyer drone on. The rubber band suddenly broke in the judge’s hand. The rubber band leaped out toward the lawyer at the podium, but then arched over his head to land in the aisle behind him. The lawyer never missed a word in his reading, not even noticing what had happened as he continued to look down at and recite from his prepared remarks. The judge had an odd look on his face. When I asked him afterward whether he’d been embarrassed, he said, no, the look on his face was because it really hurt when the rubber band snapped in his hand.
I know Judge Beezer would have been very pleased with the public memorial, grateful to his fellow judges and former clerk for their remarks, and very proud of his daughter for her loving and humorous words. I think Judge Beezer would have been most gratified with the themes touched on by those who spoke, because they were exactly the things for which he would have wanted to be remembered –- civility, professionalism, and mentorship were deliberately adopted features of his character.
And now may Robert Beezer live on joyfully in our hearts while he rejoices in the presence of God, looking forward to that blessed day when we all will join together again as one family.
If the Affordable Care Act (ACA) had to be upheld by the Supreme Court, I am grateful that its survival turned on the line drawn by Chief Justice Roberts. Chief Justice Roberts found the statute's individual mandate to purchase insurance –- a direct federal directive to take individual action rather than a regulation of preexisting individual action –- to falter when held against the Commerce Clause and the Necessary and Proper Clause. Nonetheless, under Chief Judge Roberts's analysis, the mandate passes muster when alternatively conceived of as a tax (even though Congress and the President denied that the ACA included any tax increase).
Many other scholars, lawyers, and pundits, both on the Mirror of Justice and elsewhere, have and will comment further on the text, history, and precedents pertinent to the Commerce Clause and Necessary and Proper Clause challenges to the statute, as well as the practical implications of the ruling for health care and public policy into the future.
Reading the opinions in NFIB v. Sebelius, I instead found myself searching for the Court's guidance on a broader and deeper, even venerable, philosophical question that has persisted since the founding of the Republic (and earlier) -– the right and proper relationship of the individual to the State. Resonating with me was a passage from the jointly-authored dissent (which actually was part of the majority that found the individual mandate beyond congressional power under the Commerce Clause). In refusing along with Chief Justice Roberts to read the Commerce Clause as authorizing “the Federal Government to regulate all private conduct,” the four-justice joint dissent warned that to hold otherwise would “make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.”
In a decision from nearly a century-and-a-half ago, United States v. Lee, 106 U.S. 196 (1882), the Supreme Court emphasized the very different understanding of the place of the individual in a political society that prevailed in the United States from that which had prevailed in monarchical Europe before the American Revolution. In the United States, “the people” are “sovereign.” By contrast, under the British Crown, the Court observed, people are “called subjects.”
If the Court had upheld the individual mandate to purchase insurance as a proper regulation under the Commerce Clause, the federal government would have been affirmed as having the power to impose an affirmative duty on a person, not because of any action taken by that person, but simply because the person lives inside the borders of the United States. If the federal government were permitted to exercise such direct power over a person based on that person’s mere existence, it would be difficult to avoid the conclusion that this person had been relegated into a mere “subject” of that government. By virtue of being born, each person would become the proper subject of intrusive governmental direction. Government would be the first principle in all matters, the first actor of that society.
If the people are sovereign, then they must be understood to precede government. In the United States, the government proceeds from the people and is directed by the people. Government must have power to act, within crucial limits, for the common good of the people. But the federal government does not assume immediate power at the moment of birth and regardless of actions and choices affirmatively undertaken by that person.
To be sure, the individual mandate in the ACA survives, but in an alternative guise that I hope and believe may prove to be more than the simple clothing of a statutory provision in different garb. Whether or not one is persuaded that Congress imposed a tax in constitutional effect when it expressly denied doing so, the power to tax individuals based on income -– and the ACA does vary the “tax” based on the income of those who have not purchased insurance -- has been constitutionally conferred on the federal government by the Sixteenth Amendment. And, looking beyond the ACA, it is hard to envision many other attempts by Congress to directly regulate individuals by virtue of their mere existence that could be formulated as a tax and enforced as a tax. Thus, the Court's approval of the ACA mandate as the equivalent of a tax is probably a ticket good for this ride only. And that’s a good thing, or as good a thing as one could hope for if the ACA were to be upheld.
Associate Deans are the unsung heroes of successful and forward-moving law schools. When the legal media, alumni magazines, or blogs report the latest accomplishments of this law school or the upward trajectory of that law school by one measure or ranking or another, the Dean usually becomes the focus of the attention. And such recognition is well-deserved, as the Dean is best able to promote major new initiatives, to raise the funds necessary for law school progress, and to represent the school to broad and diverse constituencies and the general public. But the success of the law school faculty ― which remains the educational and scholarly core of any law school ― depends in substantial part on the qualities of the Number Two, that is, the Associate Dean.
By Associate Dean, I mean here to refer to that tenured faculty member who agrees (usually with great hesitation) to withdraw on a temporary basis from full-time faculty responsibilities to serve for a couple of years in an administrative role. Some schools have multiple Associate Deans (and indeed some of those with such titles may not be tenured or even be faculty). Still, one of the Associate Deans is at the top of the hierarchy and and ranks just below the Dean, sometimes designated as “Associate Dean for Academic Affairs” or “Vice Dean”.
By job description, the Associate Dean generally is delegated those pedestrian duties that adhere to the Dean's office but which appear to consist of the less enjoyable aspects of the deanly role ― allocating professional development funds to faculty, presiding over summer research stipends, setting up the course calendar for each semester, dealing with disciplinary problems, etc. But in reality, while those painstaking tasks are essential and demand the most time, the Associate Dean has a powerful presence in each of the key educational and scholarly dimensions of the law school.
The Associate Dean wears two hats ― administrator and faculty leader. Yes, the Dean almost invariably is a tenured member of the faculty. But the Dean will always be regarded as something “other” by the law faculty itself, due to the Dean’s outside responsibilities, generally limited teaching and scholarly writing, and, not incidentally, evaluative role in rating faculty each year. To be sure, the Dean being a tenured faculty member provides an important connection by the lead administrator to the law school’s central educational and scholarly mission and those who are carrying it out. And that tenured faculty status for the Dean provides a symbolic basis by which to maintain a stronger collegial tie with the members of the faculty. But, still, the Dean is, well, “the Dean.” By contrast, the Associate Dean not only came from the faculty, but is expected to return shortly to the faculty. And the typical Associate Dean maintains a greater teaching and scholarly presence, even while in that role.
Let me provide one empirical measure of the importance of Associate Deans to a law school’s mission and success. One of my ongoing tasks this summer is to update the Scholarly Impact Ranking of law faculties, last ranked in 2010. The Scholarly Impact Scores, developed by Professor Brian Leiter of the University of Chicago, measure the influence of the tenured law faculty of each law school by citations in the legal literature over the preceding five years. In 2010, Brian Leiter ranked the top 25 and then we extended that ranking to the top 70. This year, with valuable and much appreciated counsel from Professor Leiter, I and my colleagues in the library here at the University of St. Thomas are undertaking the full ranking for 2012.
While our work is not yet complete and the Scholarly Impact ranking won’t be released until mid-July, one thing that I have noted is a strong correlation between a law school’s scholarly presence collectively and the scholarly prominence of the school’s Associate Dean. Of what likely will prove to be among the top 30 to 40 or so of ranked law schools on Scholarly Impact, nearly two-thirds have an Associate Dean who is among the most cited scholars on that faculty. And nearly all of the remaining one-third have an associate dean who is above the median for that well-ranking school.
Some might respond that it is hardly surprising that high-impact law schools with a plethora of prominent or well-cited legal scholars end up with Associate Deans who are also well-cited scholars. But even many prominent scholarly law faculties have members who are not the most productive and successful scholars. From what I hear (and observe) at law schools generally, Deans are often tempted to turn to less productive faculty members and ask them to serve as Associate Dean so as to draw a greater contribution from them to the institution. At the same time, sparing productive scholars from taking going into the Associate Dean’s office would have the advantage of freeing them to continue scholarly production. There is a meaningful sacrifice both to the law school and to the individual faculty member when a law school selects an Associate Dean from among its more prominent scholars, as he or she almost certainly will have much less time available to research and write. But, I suggest and the empirical data appears to support this, law schools would be well advised to resist the temptation to look elsewhere and to draw on faculty members who are not productive scholars to serve in that role.
Law schools that have achieved greater impact through citations to the scholarly work of their faculties overwhelmingly are those who chose top scholars to be Associate Dean. The Associate Dean is in a unique position to affect the atmosphere of the law school. The person who is selected sends a powerful message about the law school’s priorities and standards of excellence. If the Associate Dean is recognized as a strong teacher, he or she will be in a stronger and more credible position when proposing efforts to strengthen teaching, critiquing those who stumble badly in the classroom, and commenting on means to evaluate teaching quality. If the Associate Dean is recognized as a leading scholar, he or she will be in a stronger and more credible position when making decisions and allocating resources that facilitate faculty scholarship. On matters of teaching and scholarship, the Associate Dean often sets the tone, nearly as strongly as the Dean.
Faculty members do notice when the person who decides whether to grant a summer research stipend, to allow more travel to conference, or approve more student research assistance is someone who is a genuine and accomplished scholar him or herself. Faculty members do notice when the person who assists the Dean in annual evaluations is someone who is a genuine and accomplished scholar him or herself. I suspect the opposite is also true, to the detriment of any law school trying to uphold or advance high standards for faculty achievement.
Is there a special message here for those of us with a particular interest in Catholic legal education? Beyond strengthening the educational and scholarly mission of the law school by selecting as the Associate Dean someone who is a faculty leader in teaching and scholarship, I suggest that this vital appointment makes a big difference as well for the faith-based mission of a Catholic law school. Does the Associate Dean need to be a Catholic? No. Does the Associate Dean need to be someone who “gets” the Catholic identity of the law school and, importantly, honors and supports it? Yes.
Now discuss.
[Note: I am not now and never have served as an Associate Dean; I've managed to avoid that burden to date.]
Herb Brooks, the legendary coach of the “Miracle on Ice” Olympic hockey team, got his start playing hockey for Johnson High School in St. Paul, Minnesota, where his team won the state hockey championship in 1955. He later coached the University of Minnesota Golden Gophers hockey team to three NCAA championships in the 1970s, before coaching the United States Olympic team to its upset over the Soviet Union and then on to the Gold Medal in 1980.
On Saturday night, as part of the award ceremony for the Minnesota Boy’s State Hockey Tournament, the annual Herb Brooks Award was given to Moorhead high school senior Michael Bitzer as “the most qualified hockey player in the state tournament who strongly represents the values, characteristics, and traits that defined Herb Brooks” (here). As Herb Brook’s son and grand-daughter came to make the award, the students and families in the Benilde-St. Margaret’s Catholic High School (BSM) section began chanting “USA, USA”, as did the crowds nearly a quarter-century ago at the Olympics. The gesture clear touched Brooks family members, who turned and waved to the BSM fans.
For Benilde-St. Margaret’s, they had just witnessed another “Miracle on Ice” that began just weeks ago, went through the sections tournament, and continued on to the state championship.
Two months before this weekend, BSM sophomore Jack Jablonski (“Jabby”), while playing in a junior varsity hockey game, was checked from behind and suffered a paralyzing spinal cord injury. In a previous post here on Mirror of Justice, I described how the Benilde-St. Margaret’s community had come together in prayer and support for “Jabby” and his family.
The doctors say that Jabby will never walk again. But Jack already has made more progress and regained more range of motion in his upper body than his doctors had expected. And if anyone has the courage, hope, and commitment to a miracle, it is Jabby. Back in 1980, as the seconds counted down to the United States' upset victory over the Soviet Union in the Winter Olympics, the excited announcer shouted: “Do you believe in miracles? Yes!” Inside the BSM community, and the larger Minnesota community that supports him, people remember Jabby’s own take on this: “I don’t believe in miracles. I rely on them.”
Outside of Jack Jablonski and his family, the impact of the devastating injury fell hardest on the Benilde-St. Margaret’s Red Knights hockey team, all of whom knew and loved Jack as their team-mate. While BSM has a strong hockey tradition, success for this year’s team already was an uphill climb. Most of BSM’s athletic teams compete in Class A. But the Red Knights hockey team competes in Class AA, which includes the largest schools in the state, some of which graduate nearly a thousand students each year. BSM is among the smallest high schools in hockey’s Class AA, with fewer than 250 graduates each year. And Class AA features the state’s traditional powerhouses in hockey, with such regular champions as Minnetonka, Edina, Eden Prairie, and Duluth East having more than one state championship. The Red Knights had not won a state championship since 2001, and that had been in the Class A division.
While the season had been going reasonably well, Jack’s injury was a difficult thing for these young men to handle. Coach Ken Pauly explained (here) how difficult it was to deliver the news that Jabby likely would not walk again: "To give them that reality ... that flew in the face of the hope that they had." Never a hard-hitting team, the Red Knight players became even more hesitant about delivering checks to opposing players, quite understandably given the injury that Jack had suffered. Moreover, the Red Knights dad been pegged as a fast scoring team, but with a weak defense that gave up too many goals. But then, over the last few weeks of the season, with the wise and seasoned help of head coach Pauly, along with a sports therapist, the Red Knights began to come together as a family and to gell as a team.
At the sections hockey tournament, BSM faced the Minnetonka Skippers, one of the largest high schools in Minnesota and ranked No. 2 in the state for hockey (here). Before the game, Jabby returned and came into the locker room in his new motorized wheel chair. And as he watched, the team upset Minnetonka to make it to the state finals for the first time in four years. We’ll never forget those pictures of Jack Jablonski wheeling along the ice holding up the section trophy.
On the first night of the state hockey tournament, on Thursday, BSM faced the Edina Hornets, which have won more state championships in Minnesota history than any other high school. Once again, Jabby was in the stands cheering on his team. Despite a higher seeding and great expectations for Edina, BSM stayed even with the Hornets throughout the game, with goals by Grant Besse and Dan Labosky (here). Then as it appeared the game would go into overtime with a tied 2-2 score, BSM senior Christian Horn scored the winning goal with only 24 second left on the clock. On the second night, against the Lakeville South Cougars, the BSM Red Knights turned on the power and took over the game from the beginning, finishing with 10-1. (Although falling short that night, Lakeville South’s Justin Kloos was later honored as “Mr. Hockey,” the top award for a graduating senior in hockey (here).
On Saturday night came the championship game against the Hill-Murray Pioneers, another smaller Catholic high school located near St. Paul, but which has won five prior state hockey championships. It was a hard-fought, very physical game. But three times when down a man due to a penalty, resulting in power plays for Hill-Murray, BSM junior Grant Besse broke away to score goals -- an unprecedented short-handed hat trick (here) Altogether, Besse went on to score five goals that night, placing him in storied history for Minnesota state hockey (here). Together with the phenomenal play of BSM junior Justin Quale as goalie, who just would not allow other teams to score, and such other standouts as junior Dan Labosky, the Red Knights slowly built up a lead. For a team that had a reputation as weak on defense, BSM allowed just five goals in their final six games, and goalie Quale had a .961 save percentage in the state tournament (here).
Throughout the past two months, and in the championship game, the Red Knights team played with a patch on the front of their jersey saying, “Jack Jablonski in Our Hearts.” As the time in the final period of the championship game came to 13:13 – “13” being the number on Jack Jablonski’s jersey – the BSM crowd chanted, “We Love Jabby.” And Jack Jablonski was there again, with his family in a stadium suite just above the BSM cheering section where we all remained on our feets throughout most of the game (here).
With the score at 5-1 for Benilde St. Margaret’s, as time ran down and the outcome was clear, the crowd began chanting, “We Just Saw a Miracle.” Against all expectations, the Red Knights won their first state championship in Class AA.
No one doubts that many challenges lie ahead, for Jabby and those who love him in the BSM community and beyond. But for now we’ll be celebrating what came to be know as the “Season of Hope.” As BSM hockey coach Pauly – who later was named state hockey coash of the year – said after the championship (here): “It’s been emotional, it’s been psychological, it’s been spiritual, it’s been life-changing. And those are things you can’t always say about a season.”
Our Mirror of Justice (and my law school) colleague, Rob Vischer, posted several days ago (here) about a Minneapolis Star-Tribune editorial authored by state representative John Lesch (here) arguing that the Catholic Church should stop speaking about public policy matters and insisting that conscience was a matter only of individual rights and not belonging to institutions.
I had penned a responsive op-ed, which the Star-Tribune apparently has not seen fit to publish. So, for what limited value it may have to this venue, I post it below. Understand that it is in the style and substance of an op-ed. Nonetheless, I hope it may be of some value for those of us discussing questions of the Church's role in society and the nature of religious liberty with general audiences, including family and friends.
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In Friday’s Star-Tribune, DFL State Representative John Lesch tells us that he was rather upset to hear from his priest at worship last Sunday that the Catholic bishops support the ballot initiative this fall to confirm marriage as between one man and one woman.
A few weeks earlier, he had been annoyed to learn that the Catholic Church was opposed to the (since revised) federal regulation requiring most religious organizations—including faith-based hospitals, charities, and colleges—to fund abortion pills, sterilization, and contraceptives for their employees.
No one questions Rep. Lesch’s freedom to reject Catholic moral teaching or to dispute the church’s vision of the public good. But Rep. Lesch also wants to shut-down any religious dissent to his own preferred policies.
First, noting the power of the government to impose taxes, Rep. Lesch warns that the Catholic Church should learn to be quiet.
Sadly, this is not the first time that politicians have tried to silence the Catholic Church.
In the 1950s and 1960s, Catholic bishops in Missouri, Louisiana, and elsewhere spoke out against racial segregation, insisted on integration of parochial schools against political opposition, and even excommunicated racist politicians and citizen leaders.[See Note Below] Invoking “Separation of Church and State,” many segregationist southern politicians demanded that the church stop interfering in public policy.
More recently, Catholic bishops have called on governors and legislators to abandon the death penalty and to provide more funding for poverty programs. Once again, some politicians have protested the introduction of these religious voices into public debate.
Second, Rep. Lesch wants to use the power of government to force religious organizations to do as he wants. He dismisses out of hand any right of conscience by a faith-based hospital, charity, or university.
“Individuals have consciences,” Rep. Lesch asserts, but “institutions do not.”
So then, could a Catholic hospital be forced by the government to perform abortions? Rep. Lesch clearly thinks so. Indeed, he argues that Catholic hospitals should be required by law to give everyone “access [to] legal health care.” Since abortions remain legal, then in Rep. Lesch’s world, Catholic hospitals could be required to offer them.
Could a Mennonite college be forced to allow an ROTC program on campus, contrary to its pacifist values? Because he would see a Mennonite college as merely an “institution” without rights, Rep. Lesch presumably would turn a deaf ear to its objection to a law requiring all colleges to offer military training.
Could a homeless shelter operated by Lutheran Social Services be required to check the immigration status of those it serves, under a state law that prohibits “harboring illegal aliens”? Rep. Lesch’s narrow approach would withdraw any protection here too.
Could a Catholic law school be mandated by accreditation laws to instruct future prosecutors how to get death sentences against criminal defendants? Rep. Lesch (wrongly) claims that the First Amendment only affords “individual freedom.” So, again, his answer must be “yes.”
Now readers might question this “parade of horribles” as exaggerated and designed only to scare people. But, in fact, religious-based hospitals already have encountered political campaigns to force them to open their operating rooms to abortions. Religious-based charities, such as adoption agencies, have been forced to close because they wouldn’t follow conflicting government rules, such as offering children for adoption to gay couples.
And, although mostly on non-religious grounds, private universities and colleges have been forced to permit military recruiters on campus, even when they objected as a matter of conscience because the military then refused to permit gays to openly serve.
In a free society, people of faith must be permitted to join together and serve their neighbors, by providing health care, opening soup kitchens and homeless shelters, and offering education through religious schools and colleges. And they should be allowed to perform those missions consistent with their most fundamental values.
When politicians try to force religious hospitals, charities, schools, and colleges to act contrary to conscience—or to be squeezed out of existence altogether—then religious liberty is in danger. When a politician denies that religious groups have any freedoms, we all should be frightened.
[Note: I modified this passage in response to comments and for the reasons explained further in the comments to this post.]
On the Mirror of Justice, we've often posted messages on the practical advantages of Catholic education, in terms of educational quality and opportunity for a diverse population of students. As Mirror of Justice readers may remember, my daughter attends Benilde-St. Margaret's High School school in the Twin Cities, which exemplifies those qualities. I am so very thankful that she is in an environment where being "cool" and being "smart" are not incompatible. At Benilde-St. Margaret's (BSM), to be the captain of the football team or a state tournament quality player on the girl's soccer team and also to be a top student is commendably seen as unremarkable.
But what makes Catholic education distinctive is our Catholic faith. The events of this past week at Benilde-St. Margaret's has reminded me of the inestimable value of a Catholic educational community when tragedy strikes, as administrators, faculty, students, and families come together openly in the name of Jesus Christ.
As reported prominently in the Minnesota news media (for examples, see here and here), as well as in the BSM high school press (see examples here and here), a sophomore playing on the BSM hockey team was checked from behind into the boards and suffered a spinal injury, leaving him hospitalized with paralyzing injuries. Although the injury came during the holiday break, within a couple of days, the whole BSM community had come together to support Jack Jablonski (the injured player) and his family, with visits to the hospital, school rallies in support, etc.
And, being a Catholic high school, prayer has been central to the support. When a young person suffers such a tragic injury, our faith can be tested, as we question how a loving God can allow such a thing to happen. But it is precisely in such times of hardship that we see the fruits of longstanding faith and the enduring value of a high school that is unapologetically and openly united as a community by faith in God.
A recent message from the BSM principal, Dr. Sue Skinner, says it so very well:
What happened to Jack doesn’t make sense and it’s very difficult to see him, his family and our community suffer. What does make sense is that we can talk about this in the light of our faith. What does make sense is the outpouring of love and support for each other. We know that God has not and will not abandon us. We have hope and faith that miracles happen. They may not always appear as we planned, but they appear nonetheless.
When classes at BSM resumed after the holiday break, there was a prayer assembly in support of Jack, that my daughter says was one of the most amazing experiences of her high school years. The quiet seriousness of the students, the intensity of their devotion and prayers, their heart for Jack, and the tangible unity of their faith (my daughter describes the students joining to make the Sign of the Cross almost as if in practiced synchronicity).
We have been delighted to learn from Jack's mother that he is improving, able to move his arms on command in ways that had not been anticipated and contradict the initial diagnosis (here). We do understand that his recovery will be slow and that his life has been changed forever. But the BSM community has shown that he will never been alone in that struggle. (Those who read this message and are moved to offer support to Jack and his family can find information here.)
And we have been deeply moved to learn that Jack has insistently been asking about the other team's player that checked him, wanting to know that he was doing well and wanting to assure him that he too should not carry this burden alone. When that other player courageously visited Jack in the hospital, the Star-Tribune (here) described him as bringing "tremendous guilt but left with forgiveness." Jack and his family understand that the check was not malicious and not intended to cause injury.
Such an admirable and loving response is reassuringly typical of the kind of young men and women being formed in faith and conscience at Benilde-St. Margaret's. I pray that we will see a flourishing of Catholic education -- and similar programs and schools for other faith communities -- in the years ahead. God knows that we all need it and will all benefit from it.
In an article in today's Chronicle of Higher Education (link here but password required), Tom Bartlett ask this question:
In the wake of the announcement of Kim Jong Il’s demise, the above [I've inserted it below] video of hysterically grieving North Koreans has been making the rounds. Why are the people of North Korea so upset over the death of the horrible despot who has starved and enslaved them?
Most people in the world, including South Koreans and Americans, are stunned by this out-pouring of apparently genuine grief by the North Korean people (or at least those pictured by state-run television). After all, we all know about the abject poverty and ruthless daily control experienced by the North Korean people, imposed by the tyrannical Kim dynasty. We also know of the cold calculation of the North Korean leadership in regularly committing acts of violence and terrorism against others in the world, and especially in South Korea, to gain internal political advantage and demonstrate their supposed leadership strengths.
There is much we could say about how ineffably sad this misplaced sorrow strikes us, how it illustrates the folly of assuming that human beings with their faults can create a perfect society through totalitarian systems, and how substituting a human being for God and worshipping the creature rather than the Creator is tragic and hollow.
For the moment, let's hold up our North Korean brothers and sisters in prayer. We might pray that this shock to the North Korean system, together with the installation of a new dynastic ruler who is not yet engraved into the minds of the North Korean people, might crack the facade. We know that God is at work in human hearts during times of uncertainty.
Because what we observe in North Korea under this dictatorial regime is so unnatural and inhuman, and because the plight of the ordinary person in that country is so dire (especially as compared with the economic strength and comparative well-being of South Korean), the North Korean cult of personality and dictatorship almost certainly cannot survive forever. Such a system is inherently unstable (which of course also makes it so very dangerous).
When the fall comes, whether soon or after more years of misery, we will likely see an entire nation of 24 million people suffering a psychologically traumatic encounter with a reality to which they have been blinded. We know that God is with us in a time of need. When that day of liberation comes, let us pray for God to be there (as we know He already is) and to prepare persons of faith in South Korean, Americas, and throughout the world to minister to this suffering people when the walls finally come down.
