The Vatican, the bishops, the academy: if push comes to shove, nobody will budge.

In April, the Vatican Congregation for Catholic Education unexpectedly returned to the American bishops, for a "second draft," the regulations that will govern the relationship between the hierarchy and U.S. Catholic colleges and universities (see Commonweal, June 20,1997). Why were they returned? Not because the bishops and the congregation disagree on the nature of Catholic universities as a theoretical matter, but because they disagree about who is in charge. Who should decide whether the theology that is being taught is sufficiently orthodox? Who should discipline theologians who stray from what the hierarchy considers acceptable teaching? Should the local bishop or a lay board of trustees decide who may or may not receive an honorary degree? At present, the universities themselves make those decisions. The Vatican would like to change this.

It may be that some American bishops would like to control their local Catholic colleges and universities, but most probably realize that in the United States that kind of ecclesiastical supervision over, say, Georgetown or Notre Dame, is beyond their competence. Many understand as well the consequences for Catholic academia, in terms of accreditation and prestige, of "outside" control. Further negotiations looking to a solution that will satisfy the Vatican, the U.S. bishops, and the schools (the presidents and their boards) are under way, but since both principles and pragmatism are in play, it is far from certain that tinkering with phraseology will avoid an impasse.

In his comments returning the bishops' document, Cardinal Pio Laghi, prefect of the congregation, referred to it as a "first draft," though the bishops probably hoped it was the last draft. In asking them to rewrite the ordinances, the cardinal wanted two points emphasized: First, that there should be a juridical relationship between the Catholic university and the church; and second, that professors of theology must receive a mandate to teach theology, the so-called canon 812 requirement.

Not surprisingly, these are the very two points that the bishops tried to elide in their "draft." The congregation rejected their attempt at nuance. For example, the bishops tried to downplay the troublesome canon 812 issue by dealing with it in a footnote: "The mandate of canon 812 will be the subject of further study." (Note that the bishops apparently could not bring themselves to say "the mandate required by canon 812.") Cardinal Laghi acknowledged that the study was under way, but said that "we hope that a solution will be found so as to have a full application of the canon incorporated in a second draft of the ordinances."

To understand why these points of disagreement are important and why they are unlikely to be resolved by mere wordsmithing, recall the Curran case. In 1986, the Holy See declared that the Reverend Charles Curran, then a tenured professor of theology at The Catholic University of America (CU), was no longer "suitable or eligible" to teach theology. Curran was teaching in the department of theology, which is a pontifical or "ecclesiastical" faculty at the university, empowered to award degrees recognized by the Vatican.

Such pontifical faculties are governed by Sapientia christiana, an apostolic constitution (1979) requiring that all professors who teach matters relating to "faith and morals" have a "canonical mission" from the local bishop. Of more significance to this discussion, it also requires universities with such faculties to adopt bylaws that make the provisions of Sapientia binding. Once the requirement for a canonical mission is contained in the governing statutes of the university, it becomes an implicit condition in the tenure contracts with those professors and is legally enforceable by U.S. courts.

Removing Curran's canonical mission only prohibited him from teaching in the pontifical faculties at CU because only those faculties had a canonical mission requirement. In order to keep Curran from teaching in other, nonpontifical faculties, the university's board of trustees passed a resolution stating that there was a special relationship between the university and the church and that the university considered itself bound "as a matter of canon law and religious conviction" by a definitive declaration of the pope in this case, an edict declaring Curran ineligible to teach theology even if it had consequences outside the pontifical faculties. That resolution kept Curran from teaching theology anywhere in the university and, in effect, put the entire university under the control of the Vatican. It was legally significant that the resolution came from the university itself; civil law would not have recognized a resolution imposed from outside the university.

Curran sued for breach of contract, claiming that as a tenured professor, he had certain rights to academic freedom pursuant to which only his academic peers could judge the competency of his work. Recalling the famous phrase from the 1967 Land O'Lakes Statement, Curran argued that no authority "lay or cleric, external to the academic community" could interfere with his right to academic freedom. But the Washington, D.C., Superior Court concluded that CU was within its rights to prohibit Curran from teaching in a pontifical faculty because he had lost the canonical mission that the university's amended bylaws required. Those bylaws applied to Curran even though they were passed more than a decade after he received tenure. Further, because CU's trustees claimed a "special relationship" with the Holy See, they were within their rights to prohibit Curran from teaching theology anywhere else in the university once the pope declared him ineligible. The court held that it was not that Sapientia christiana required a canonical mission that was of significance, but the fact that the university had incorporated the requirement in its bylaws. The bylaws were included in the faculty handbook, which the court decided was a part of Curran's contract and, although most contract terms are fixed at the time the contract is made, the court held that a professor's contract with a university is different. Thus, even if the requirement of a canonical mission did not exist at the time Curran received tenure, "the parties...knew that the ecclesiastical faculties were different from the rest of the university...that these faculties are governed by an apostolic constitution...and that the Holy See might change the requirements for those faculties at any time, imposing on the university an obligation to accommodate such changes or risk losing the authority to confer ecclesiastical degrees."

The court continued, "as much as [Curran] may have wished it otherwise, he could not reasonably have expected that the university would defy a definitive judgment of the Holy See that he was 'unsuitable' and 'ineligible' to teach Catholic theology. Whether or not the university is correct that it was obligated to accept the declaration of the Holy See as a matter of canon law, it was surely bound to do so as a matter of religious conviction and pursuant to its longstanding, unique, and freely chosen special relationship with the Holy See."

Consider the precedent the court established in the Curran case. Any university that modifies its bylaws or its mission statement to claim a special juridical relationship with the church or that requires its theology professors to possess a mandate from the local bishop will have that relationship and that obligation not only recognized but enforced by civil courts. This is because in the eyes of the law an apostolic constitution that governs pontifical faculties and requires a canonical mission is functionally identical with an apostolic constitution that governs all other Catholic universities and requires a mandate. Once any Catholic university, even a nonpontifical one, freely chooses in its bylaws to be governed by an apostolic constitution, it is more than likely that an American court would enforce that choice, just as the Washington, D.C., Superior Court did in the Curran case. Put differently, the court's analysis of the nonpontifical faculties at CU did not depend on the fact that the university also had pontifical faculties.

What is the lesson of this for the current debate? It is simply that, though the U.S. bishops and the Vatican continue to negotiate over the ordinances required by Ex corde, these cannot be implemented at any particular university unless the university's board of trustees does something affirmative, most likely by changing the university's bylaws. The Congregation for Catholic Education undoubtedly knows this, and that is precisely why it insists on a formulation of the ordinances for the United States that requires, as Ex corde itself does, that universities that wish to call themselves "Catholic" must recognize a juridical relationship between the university and the church "by a formal constitutive bond or by an institutional commitment." This is the core of the matter.

Where can the dispute go from here? There are three possible ways in which it can be resolved. First, the Vatican could relent and grant American Catholic universities a special dispensation from the strictest provisions of Ex corde. Second, American Catholic universities could reverse their quarter-century experiment with independence and accept Ex corde as binding on them. Or third, neither will give in.

Note that I did not list as one of the possibilities that the American bishops' drafting committee will accept the Vatican's criticisms and modify the ordinances. While that may happen, it would be largely irrelevant: Under American law, the only way either Ex corde or the American ordinances can be applied in a legally binding way is for the universities themselves to do it. The bishops cannot.

Will the Vatican relent? That is not likely. The church's position has been consistent for four hundred years. The Council of Trent obliged local bishops to insure orthodoxy in Catholic universities. Each bishop had the obligation to insure that "universities accept in full the canons and decrees of this holy council and that the masters, doctors, and others in the same universities teach and interpret the Catholic faith according to the directions of these canons and decrees." In recent times, academics, especially those in the United States, came to believe that the church's position had softened. But it has not. The Land O'Lakes Statement of 1967 calling for academic freedom and the autonomy of the university was a declaration by academics; the bishops never endorsed it.

Nor was a similar text, approved by the International Federation of Catholic Universities in 1972, "The Catholic University in the Modern World," given more than a lukewarm endorsement by the Congregation for Catholic Education. A plenary assembly of the congregation in 1973, consisting of thirty-seven cardinals and bishops, approved the document as "valid but needing improvement." In particular, the document was not sufficiently explicit on the "necessity for every Catholic university to set out formally and without equivocation, either in its statutes or in some other internal document, its character and commitment as 'Catholic.'"

Ten years later, the 1983 Code of Canon Law specified, in canon 810, that it was the responsibility of the competent ecclesiastical authority to "provide for the appointment of teachers to Catholic universities who besides their scientific and pedagogical suitability are also outstanding in their integrity of doctrine and probity of life" and that when those qualities are missing, the teachers are to be removed. Canon 810 also provided that the bishops had the "right and duty of being vigilant that in these universities the principles of Catholic doctrine are faithfully observed." Canon 812, which in its draft form "raised a storm of opposition" in North America, according to CU professor of canon law James Coriden, required that "those who teach theological disciplines in any institute of higher studies have a mandate from the competent ecclesiastical authority."

In 1985, the Congregation for Catholic Education issued a document known colloquially as the "schema," which set forth the need for Vatican control over all Catholic universities. The schema clearly reestablished control of Catholic universities under the auspices of the local ordinary. "Reestablished" may in fact be the wrong word; there is considerable evidence that the Vatican believed that the local ordinary had rights and obligations with respect to Catholic universities all along and that Rome had never endorsed the "laicization" of those universities that took place in the 1960s. Because of the criticisms of the schema, the Vatican announced that it was merely a "discussion draft" and that a revised version would be forthcoming, taking into account as much as possible the comments that had been received. Another draft was published, and there was consultation with American bishops and educators; nonetheless the final version, now called Ex corde ecclesiae (1990), was remarkably similar to the original "schema."

Ex corde does call for implementing ordinances to take account of local conditions. The U.S. Catholic academic community expected that those ordinances would recognize that in this country, all true universities, even Catholic ones, must recognize academic freedom. They thought they could reconcile that principle with Ex corde. Cardinal Laghi's recent letter makes it quite clear that there will be no compromise from the essentials of Ex corde and canon 812.

This should not come as a surprise, since Cardinal Laghi said very much the same thing in his talk to the Association of Catholic Colleges and Universities in Saint Paul, Minnesota in August 1995. "It would be impossible for the university to remain Catholic...if it were to lack this [juridical] relationship with the institutional church" (Origins, August 24, 1995). The Vatican has not changed its fundamental position. It wants a juridical relationship.

Will the U.S. Catholic universities relent? That is equally unlikely. Since the late sixties, those universities have been independent of the hierarchy and under the control of lay trustees. They are flourishing. They have dramatically improved their academic standing and the best of them are in the same league with their non-Catholic counterparts. They have found ways of successfully incorporating their Catholicity into their programs; to make themselves different from, and, some would argue, better than, other universities; and, because they guarantee academic freedom, they are attracting first-rate faculty. To be sure, at least one, The Catholic University of America, has gone backwards - to reestablish Vatican control - but the damage done by that decision to its academic standing is still being assessed. Furthermore, most of the American Catholic universities are financially independent from the Catholic church, the most notable exception again being CU.

At least since the late sixties, American Catholic universities have been quite consistent and vocal about the importance of their independence and the danger that any juridical bond with the hierarchy would create. As the Association of Catholic Colleges and Universities put it:

"The very life of our colleges and universities...is one of academic freedom and self-regulation by the academic community. Within this structure, our 235 Catholic institutions of higher learning have flourished and, in our opinion, any attempt to subvert this independence would result in diminishment of their influence on the total higher education community and, ultimately, in their being excluded from that community of teachers and scholars."

The presidents of fourteen leading American Catholic universities, including Joseph O'Hare, S.J., Donald Monan, S.J., and Theodore Hesburgh, C.S.C., have said the same thing: "One of the most important values to be protected in an authentic university is academic freedom. If theology is to be granted the same academic integrity of other disciplines, theologians must also enjoy authentic academic freedom."

It is hard to imagine a well-informed board of trustees of one of those universities voting to allow the local ordinary to exercise any measure of control over it. As Peter Steinfels put it, "You can't go home again. A return to the past is neither desirable nor possible..." (Origins, August 24, 1995).

Before the current dispute, some American Catholic academics believed that the Vatican was comfortable with their independence. Because of its broad acceptance in the academic community, the Land O'Lakes Statement was seen as a Magna Carta for Catholic universities in the United States, and many university leaders believed that it represented a final and definitive articulation of the relationship between Catholic universities and the Catholic church in the United States. This, along with the appointment of lay-dominated boards, which seemed to guarantee the university's autonomy and academic freedom, appeared to have the acceptance of the hierarchy. Even after the first appearance of the "schema," American Catholic academics believed that a way would be found to reconcile their independence with the document. But so far the Vatican has not backed down.

What about the American bishops? To their credit, they have tried hard to forge a compromise that all could live with. Even though the Vatican is signaling that it will not compromise, the bishops will no doubt keep trying. Whether they will succeed remains to be seen, but it looks more and more as if they will not.

Have we reached an impasse? Given the fundamental disagreement between the American bishops (who are being actively encouraged by American Catholic university presidents) and the Congregation for Catholic Education, it is unlikely that Ex corde will be implemented in the United States any time soon, if ever. In fact, even if the American drafting committee, a key subcommittee of which is now headed by Cardinal Anthony J. Bevilacqua, were to accept Cardinal Laghi's changes, it is even more unlikely that any Catholic university that wishes to remain a true university in the modern American context will elect voluntarily to adopt Ex corde ecclesiae. As Joseph O'Hare, president of Fordham University, asks, "If a Catholic university is to be 'part of' the church, in the sense that it is subject to the ecclesiastical jurisdiction of the hierarchy, then can it really be an authentic university?"

What will happen? Of course, nobody knows. One likely outcome, hinted at in Cardinal Laghi's 1995 talk, is a declaration that universities that refuse to accept Ex corde ecclesiae may no longer call themselves "Catholic" or "officially Catholic." As Laghi put it, "without a bond of communion with the hierarchy, an institution cannot bear the name Catholic." But will it remain Catholic, nonetheless?

This scenario is hardly out of the question. Being independent and participating in the Catholic tradition has worked. Joseph Komanchak sketched such a scenario - what might be called the "Commonweal" solution - in an essay "The Catholic University in the Church" (Catholic Universities in Church and Society: A Dialogue on Ex Corde Ecclesiae, Georgetown University Press, 1993). Colleges and universities could continue to see themselves as Catholic "by inspiration" and operating "in the Catholic tradition," while the hierarchy could point out that they are not "officially" Catholic or, perhaps, that they were not "Catholic" at all.

Here is where the American bishops can stand up for their Catholic universities and can support them in their attempt to remain Catholic without a juridical bond to the hierarchy. To do so would require great patience, understanding, and charity on both sides. Whether in the end that model works for universities as well as many of us think it does for magazines is anybody's guess, but it seems the best solution and remains the most likely outcome.

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.