A lawyer's view: look before you leap.

Don't believe what you might have read by some commentators suggesting that the establishment of church control over Catholic universities would ensure orthodoxy in the theology department but entail little or no change in the schools' status as accredited American colleges and universities. Should the demand to establish a "juridical relationship" between the church and the Catholic university prevail, everything is up for grabs.

What exactly is a "juridical relationship" and what is all the fuss about? Simply put, it is one that is legally binding and enforceable in the civil courts. The bishops want the universities to change their bylaws so that the norms (as spelled out in the 1998 "application") - and Ex corde ecclesiae itself - will be binding. The "juridical relationship" they are talking about is a civil one, not a canonical one. That is why the norms require that a university's bylaws be amended. Bylaws are civil, not canonical, documents. For that reason, the norms, if adopted by a university's board of trustees, might affect (and in most cases diminish) the civil law rights of the faculty and the power of the boards themselves. Amended bylaws will reestablish church control over Catholic universities that was relinquished for most of them in the late 1960s. They may jeopardize entitlement to certain types of federal and state aid (aid to "pervasively sectarian" colleges is prohibited) and they may jeopardize accreditation (most Catholic universities have chosen not to be accredited as religious schools). In short, this is serious.

So far, the public debate seems to be about the rights and duties of Catholic theologians and the infamous "mandate." What seems to be missing is a discussion of these other implications and, indeed, a discussion as to whether the 1998 norms can be implemented at all as a matter of civil law.

First, it is not always entirely clear what sort of institution we are talking about. For example, the norms describe two kinds of Catholic universities. The first category consists of those that have been established by the Holy See, the National Conference of Catholic Bishops (for example, The Catholic University of America), an individual bishop or a group of bishops (Seton Hall), or a "public juridic person" such as a religious institute (Saint John's University in New York). The second consists of all others. But what of Georgetown or Fordham? Both Jesuit schools were founded by bishops (Carroll and Hughes). Are they in the first category or the second?

Second, and here comes the "juridical" part, the norms require the universities to change their governing "statutes" (their bylaws and charter, both of which are regulated and defined by civil law) to incorporate the norms. Universities in the first category must "incorporate by reference and in other appropriate ways the general [that is, those in Ex corde ecclesiae (see, Origins, October 4, 1990)] and particular norms [those set forth in the 1998 "application" (see, Origins, December 23, 1998)] into their governing documents and conform their existing statutes to such norms."

Once that is done, the norms become a part of the governance structure of the university and they will be enforceable under civil law. They would also become part of the contract between the university and its faculty members, at least for prospective faculty members and possibly for existing faculty members as well.

The universities must submit the "aforesaid incorporation" for review and approval by the "competent ecclesiastical authority" within five years.

Universities in the second category (all others) do slightly better, but not much. They are required to "make the general and particular norms their own," although it is unclear what that means. Such universities are also required to include the general and particular norms "in the university's official documentation by reference." Note here that whereas universities in the first category must include the norms by reference in their "governing documents," those in the second category need only include them by reference in their "official documentation." It is not clear what the distinction between the two is.

Universities in the second category must also, "as much as possible, conform their existing statutes to such norms." The phrase "as much as possible" does not seem to be a significant limitation and was probably inserted more for the sake of appearance.

Since Catholic universities are, for the most part, not-for-profit corporations governed by state corporate law, it is possible that the trustees of both categories of universities may not be legally permitted to cede their powers to an external body, as the norms would require. Nor could they exempt the universities (required by the norms to have a faculty that is majority Catholic) from the antidiscrimination-in-hiring provisions of the civil rights laws without establishing that the universities on whose boards they serve qualify for the religious institution exception in those laws. However, such evidence might also establish that the universities were "pervasively sectarian," thus jeopardizing federal and state aid. Potential plaintiffs would include faculty, who might complain about the loss of academic freedom; state attorneys general, who typically have supervisory authority over not-for-profit corporations; job seekers, who might complain about religious tests for hiring; and students who might express concern over the potential loss of accreditation as a true university.

The norms require one more fundamental and important juridical change. They require that "those establishing or sponsoring a Catholic university have an obligation to make certain that they will be able to carry out their canonical duties in a way acceptable under relevant provisions of applicable federal and state law, regulations, and procedures, reserving to themselves, insofar as possible, such powers as to enable them to preserve and strengthen the Catholic identity of the university."

This may sound familiar. In giving its approval for the sale of the Saint Louis University hospital, approval which, by the way, did not seem to have been required in the first place, the Vatican required that the Jesuits, the "sponsors" of the university, "put in place a mechanism through which the society exercises control with respect to the president and board of trustees...to ensure that the requirements of canon law as they pertain to Saint Louis University are followed." That requirement is troublesome. There was no formal relationship between the Jesuits and Saint Louis University; it had been severed in 1967, just as such a relationship was severed at Fordham and at many other Catholic universities. Any suggestion that the Jesuits could, nevertheless, exercise control over Saint Louis University, notwithstanding that there was no legal mechanism for them to do so, meant that the Vatican had not formally recognized the 1967 severance.

Inclusion of a similar provision in the draft 1998 norms now being considered by the bishops foreshadows a bitter fight over the power to alienate church property and suggests that the Vatican may claim that it still "owns" the Catholic universities, even after the liberating events of the sixties. Such a fight would have to be waged in civil court and would be extremely messy. Moreover, the suggestion that a nonpontifical Catholic university is governed by, or has obligations under, canon law is novel and will be unsettling. What are the obligations? Where did they come from? Since most Catholic universities are governed by independent boards of trustees, how, one might ask, would any obligations they have under canon law be enforced?

Civil law requires that implementation of the new norms must be by majority, if not super-majority, vote of the boards of trustees of most Catholic universities. That is so because implementation will require a fundamental change in the bylaws and charters and only the trustees can make those changes. Because most boards are legally independent and because the trustees have fiduciary obligations under civil law, their votes cannot be compelled. The trustees are legally free to deride not to implement the norms. What follows if that happens is anybody's guess but it remains a distinct possibility.

Explaining the consequences of such a vote to the trustees would be a daunting task. Consider, for example, what one would have to tell them about the university's possible liability to tenured faculty members or about the possibility of loss of federal and state funding, or the loss of accreditation or the withdrawal of pledged gifts to a university that the donors thought was free of Vatican control. It is inconceivable that responsible board members would make such a decision without the benefit of exhaustive legal review by independent counsel and without full disclosure to and consultation with the affected constituencies. Indeed, they will want to take legal counsel as to whether they have the legal power to cede part of the control of their institution to an external authority, whether that be the local bishop or the so-called "sponsoring" entity. Many trustees might choose to resign rather than make such a decision.

A few additional observations about the norms are in order from a legal point of view. The first has to do with academic freedom and institutional autonomy. Those two characteristics are generally thought of as the two essential hallmarks of a modern American university. The accrediting authorities look for them and the United States Supreme Court recognized in the landmark Roemer case (Roemer v. Board of Public Works of Maryland, 1976) that they are important factors if Catholic universities are to be permitted to receive state or federal funding. That may be why the draft norms refer to them. The draft norms in the 1998 "application" recognize both concepts. They state that:

academic freedom is an essential component of a Catholic university. The university should take steps to ensure that all professors are accorded "a lawful freedom of inquiry and of thought, and freedom to express their minds humbly and courageously about those matters in which they enjoy competence" (quoting Vatican II's Gaudium et spes). In particular, "[t]hose who are engaged in the sacred disciplines enjoy a lawful freedom of inquiry and of prudently expressing their opinions on matters in which they have expertise, while observing a due respect [debito obsequio] for the magisterium of the church" (quoting canon 218).

Leaving aside the imprecise normative words in that passage, such as "lawful freedom," "humbly," and "due respect for the magisterium," other parts of the norms appear to take away the very academic freedom that this passage appears to grant. A reviewing court could look at the reality of experience in deciding whether, notwithstanding this passage, a faculty member's legally enforceable right to academic freedom had been taken away by the norms.

The same is true of institutional autonomy. The norms in the 1998 "application" say that "a Catholic university enjoys institutional autonomy, which must be respected and promoted by all so that it may effectively carry out its mission of freely searching for all truth." The footnotes to the proposed 1998 norms state that "institutional autonomy means that governance of an academic institution is and remains internal to the institution itself."

However, if that were literally true, then the norms would be unnecessary. Neither the sponsor nor the local bishop would have any role whatsoever in the governance of the university and that would be the end of the matter. But that is obviously not true. Compare, for example, the definition of institutional autonomy with what the norms say should happen when the president of a Catholic university, required to be a "faithful Catholic," takes office: "Upon assuming the office of president for the first time, a Catholic should take the prescribed profession of faith and oath of fidelity." To whom should the president be faithful, the board of trustees or to some authority outside the university? If the institution is truly autonomous, it must be the former but, obviously, it is the latter.

Similarly, if the board wishes to appoint someone who is not a "faithful Catholic," then the university is required by the norms to "consult with the competent ecclesiastical authority about the matter." That would not happen if the university were truly "autonomous." In fact, it is precisely because the Vatican believes that the American Catholic universities have become a bit too "autonomous" that we are engaging in this discussion in the first place.

There should be no mistake about it; neither academic freedom nor institutional autonomy will exist at the margin if the norms are adopted. That is the whole point.

In an attempt to avoid the strictures that the Supreme Court has put in place for institutions receiving federal or state aid, the footnotes to the norms say that the church's expectation of "integrity of doctrine" that is required of all professors "should not be misconstrued to imply that a Catholic university's task is to indoctrinate or proselytize its students." If it were, then federal or state aid would not be permitted. Still, there are enough other parts of the norms - the requirement that the university be "faithful to the teachings of the Catholic church," the requirement that there be a "commitment of witness of the Catholic faith by Roman Catholic teachers," who must make up a majority of the faculty (assuming that the federal civil rights laws would permit this), the role given to the local bishop or competent ecclesiastical authority - that the continuation of state or federal aid for any university that elects to be governed by the norms remains problematic.

Implementation of the proposed norms will, in short, raise a hornet's nest of legal issues that will not be resolved easily or quickly and that may result not only in the loss of federal or state aid, but in liability by the university to those who will be adversely affected by such implementation. The failure of the bishops to address these important issues does a great disservice to those they are asking to bear these serious risks.

Paul C. Saunders is a partner at Cravath, Swaine & Moore and a former trustee of Fordham University. He served as counsel to Charles Curran in Curran v. The Catholic University of America.