Wednesday, September 12, 2007
We, the members of Mirror of Justice, are a group of Catholic and Christian law professors and former law professors. We wish to express our profound concern with the course of events at Ave María School of Law (“AMSL”). While we differ among ourselves in our religious and political convictions, we share a commitment to Catholic legal education and respect Ave Maria's serious desire to express its religious identity. We write as legal academics and as persons who believe and expect a Catholic law school to be “a living institutional witness to Christ and his message.” (Ex Corde Ecclesiae, ¶ 49).
It should be mentioned at the outset that the signatories have varying degrees of knowledge about the facts, but collectively we have strong reason to believe the veracity of the factual allegations set forth in this statement. If, however, we have mischaracterized or misstated a fact, we stand ready to correct our statement.
In April of 2007, the Association of Ave María Faculty, which represented a vast majority of Ave María’s faculty, publicly stated that the AMSL Dean had employed “threats and retaliation to try to silence members of the faculty from voicing concerns about his leadership and that of [the Chair of AMSL’s Board].” They further alleged financial punishment, the monitoring of faculty email and voice mail, and “manipulation of the promotion and tenure system.” They also reported that “[o]ne tenured faculty member has been repeatedly threatened with termination based upon bizarre allegations” and that “junior faculty members have been threatened that their careers would be harmed if they associate with disfavored tenured faculty.”
Since April, the Dean and the Board’s Executive Committee have begun the process of revoking the tenure of a founding member of the law school’s faculty. The Dean and Executive Committee took the additional extraordinary step of suspending this tenured faculty member, a father of seven, without pay pending the conclusion of the proceedings. This suspension and supporting allegations falsely impugn the suspended professor’s integrity and bring into question many administrative decisions governing AMSL. The Dean and the Board have also denied tenure to two other faculty members who were widely viewed as critics of the AMSL administration. In their cases, the Dean and Board took the additional and extraordinary step of putting them on involuntary paid leave, in effect suspending them, taking away their offices, and barring them from participating in the daily life of the law school during their terminal year.
The Situation as Judged by the Standards of the Academy
As legal academics, these actions of AMSL’s administration and governing board cause us grave concern both substantively and procedurally. While there are many areas of concern, the attempt to revoke the tenure of a founding member of the AMSL faculty serves as an exemplar. The ABA’s sample “Statement on Academic Freedom and Tenure,” the “1958 Procedural Standards in Faculty Dismissal Proceedings” (a joint statement of American Association of University Professors (“AAUP”) and the Association of American Colleges and Universities (“AACU”), and the “1940 Statement of Principles of Academic Freedom and Tenure” (a joint statement of AAUP and the AACU), contribute to our judgment.
All three documents contemplate faculty involvement in the tenure revocation process. The 1958 Statement contemplates an investigation of the accused professor by a faculty committee elected by the faculty, a decision by the same faculty committee on whether to recommend commencement of formal proceedings against the accused, and a faculty committee to conduct the hearing and makes its recommendation to the governing body. After initial consultation with the accused, the dean’s and/or president’s involvement appears limited to issuing the formal charges and helping the faculty committee develop its case. The governing board should either accept the faculty committee’s recommendation or remand with specific objections. “Only after study of the committee’s reconsideration should the governing body make a final decision overruling the committee.”
It appears that the investigation and decision to seek tenure revocation were made by the Dean (possibly in conjunction with the Executive Committee of the Board) without the requisite faculty participation. The Dean received a “no confidence vote” from the faculty in April of 2006. A year later, a majority of the faculty accused him of engaging in intimidation and retaliation. Sacrificing the appearance of impartiality, he chose to ignore the 1958 Statement’s guidance, which provides that “[a] necessary precondition of a strong faculty is that it have first-hand concern with its own membership. This is properly reflected both in appointments to and in separations from the faculty body.”
The ABA’s sample statement, the 1940 Statement, and the 1958 Statement provide similar clarity with respect to suspension and pay during suspension. The 1958 Statement provides: “Suspension of the faculty member during proceedings is justified only if immediate harm to the faculty member or others is threatened by the faculty member’s continuance. Unless legal considerations forbid, any such suspension should be with pay.” And, the ABA sample statement contemplates the institution continuing to pay the professor (except in extraordinary circumstances) for at least a year after “notification of dismissal.”
AMSL has suspended the faculty member subject to tenure revocation without an impartial finding that his presence would cause the kind of harm contemplated by the standards governing academic freedom. AMSL has taken the additional extraordinary measure of suspending this faculty member without pay prior to a hearing on the merits. It also appears that AMSL has suspended – placed on involuntary paid leave - the two professors who were denied tenure during their terminal year. But, for what cause were they suspended? And, pursuant to what procedures?
The AMSL administration has violated several procedural norms of the secular academy. In this case, we see no tension between those norms and the norms of faith and reason that should guide a Catholic law school. Indeed, what has happened at AMSL appears to us to violate core Catholic norms.
The Situation as Judged from the Teaching of the Catholic Church
The actions of AMSL’s administration and governing board cause particular concern for us as legal academics involved in the development of Catholic Legal Theory. We applaud the effort to build a law school that consciously draws upon and engages the rich intellectual, liturgical, moral, ecclesial, and social justice traditions of the Catholic Church, integrating them into the daily life of the law school community. AMSL had this vision in mind when it opened its doors in 2000, but it is now clear that the Catholic nature vital to its founding and sustenance has been derailed as evidenced by the administration’s treatment of the faculty member subject to tenure revocation and the suspensions of those denied tenure.
Pope John Paul II’s Apostolic Constitution on Catholic Universities, Ex Corde Ecclesiae, together with general principles of Catholic Social Teaching, which can be found in abridged form in the Pontifical Council for Justice and Peace’s Compendium of the Social Doctrine of the Church, guide our judgment.
The human person, imbued with transcendent dignity, rests at the center of the Catholic Church’s social teaching. The Church teaches that the person is a social and creative being. The first and most vital cell of human community is the family; therefore, the Church’s social teachings require the larger society to respect, protect, and nourish the family. See generally Compendium ¶¶ 252-254. Because of the human person’s creativity and in light of the need to earn a living to provide for oneself and one’s family, procedural and substantive protections for employees has long been of critical concern in the Catholic social tradition. See generally Compendium ¶¶ 301-303. The Church’s social tradition recognizes a “special relationship” between the family and work, understanding that the well-being of the employee has a direct relationship to the well-being of the family. See generally Compendium ¶¶ 248-250.
Ex Corde states that a Catholic institution of higher learning “pursues its objectives through its formation of an authentic human community animated by the spirit of Christ. The source of its unity springs from a common dedication to the truth, a common vision of the dignity of the human person and, ultimately, the person and message of Christ which gives the Institution its distinctive character. As a result of this inspiration, the community is animated by a spirit of freedom and charity; it is characterized by mutual respect, sincere dialogue, and protection of the rights of individuals.” (¶ 21). The Catholic institution of higher learning is called upon to address “serious contemporary problems in areas such as the dignity of human life, the promotion of justice for all, the quality of personal and family life, …” (¶32). In short, “the promotion of social justice is of particular importance” to Catholic institutions of higher learning. (¶34).
Procedural fairness, truthfulness, and concern for the person and the family are central to Catholic notions of justice. As the examples stated above suggest, AMSL has failed to live up to its commitment to be “a living institutional witness to Christ and his message.” (Ex Corde, ¶ 49). In suspending the one tenured and two untenured faculty members, AMSL has deprived them of the dignity of their work – their vocation – without adequate process. And, in suspending the tenured faculty member without pay, AMSL has failed to take into account the well-being of that faculty member’s family.
By the failure to live their Christian commitment, the AMSL Dean and Board cause scandal in the legal, academic, and religious communities. This scandal is exacerbated by the fact that their actions are taken on behalf of a law school named for the Blessed Mother of Christ. We echo this sentiment expressed earlier by an MOJ contributor: “The hour is not too late for [AMSL’s Dean and Board] to model for the legal and academic communities the essence of a Catholic Christian law school. In fact, [we] would suggest [that they] have a better, clearer opportunity to mirror Christ now than when [they] first began because the only path left open is through the cross. It may not be what [they] had planned, but God works in mysterious ways.”
We pray that all involved with AMSL will have the courage to exercise the convictions of Christian discipleship to reconcile all parties involved in the matters we have discussed. Moreover, we make ourselves available to assist all in finding remedies dictated not only by the academy but also by Christ and the teachings of his Church. In Christ, we remain:
Robert John Araujo, S.J., Boston College Jesuit Community
Stephen M. Bainbridge, William D. Warren Professor of Law, UCLA School of Law
Thomas C. Berg, St. Ives Professor of Law, University of St. Thomas School of Law (Minnesota)
Patrick McKinley Brennan, John F. Scarpa Chair in Catholic Legal Studies, Villanova University School of Law
Richard W. Garnett, John Cardinal O’Hara, CSC Associate Professor of Law, Notre Dame Law School
Elizabeth R. Kirk, Associate Director, Notre Dame Center for Ethics & Culture (formerly a member of the Ave María Law School faculty)
Eduardo M. Peñalver, Associate Professor, Cornell University Law School
Michael J. Perry, Robert W. Woodruff Professor of Law, Emory University School of Law
Mark A. Sargent, Dean and Professor of Law, Villanova University School of Law
Michael A. Scaperlanda, Gene and Elaine Edwards Family Chair in Law, University of Oklahoma College of Law
Elizabeth R. Schiltz, Associate Professor of Law, University of St. Thomas School of Law (Minnesota)
Steven Shiffrin, Charles Frank Reavis, Sr. Professor of Law, Cornell University Law School
Gregory Sisk, Orestes A. Brownson Professor of Law, University of St. Thomas School of Law (Minnesota)
Susan J. Stabile, Robert and Marion Short Distinguished Chair in Law, University of St. Thomas School of Law (Minnesota)
Richard Stith, Professor of Law, Valparaiso University School of Law
Robert K. Vischer, Associate Professor of Law, University of St. Thomas School of Law (Minnesota)
(institutional affiliations given for identification purposes only)