Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, April 30, 2007

Crisis at Ave Maria Law

Many MOJ contributors have had some sense of the evolving crisis at Ave Maria Law school. Below is a statement of the Association of Ave Maria Law Faculty, which group represents all but a tiny portion of that school's faculty, that provides a very full picture of the seriousness of that crisis.    -- Mark

What's going on at Ave Maria School of Law?

We have chosen to reply as a group to repeated inquiries concerning recent events at Ave Maria School of Law (AMSL). We do so to indicate the extent of our agreement concerning the serious nature of the crisis unfolding here, the need for fundamental change if AMSL is to continue to exist and serve its Mission, and to appeal for input from our colleagues in the wider legal academy.

Until now, the majority of the faculty has not made public the outrageous behavior of the Law School's administration. We have remained silent in the hope of minimizing damage to our school, believing that responsible parties would set matters right, and out of fear of escalating acts of retaliation. At this point, however, we believe it is important to allow the larger legal community to know the reality of the way AMSL's administration has abused the power with which it has been entrusted.

Those who have not been closely following events at AMSL, nonetheless, may have heard of a number of events over the last year or so. To summarize: last spring, a substantial majority of the faculty issued a vote of "no confidence" in Dean Bernard Dobranski. The response from the AMSL Board of Governors, led by Board Chairman and AMSL's largest funder, Thomas Monaghan, was a terse restatement of its support for the Dean. This rejection of open discussions, combined with retaliatory actions by the Dean, exclusion of the faculty from governance of the school, and serious violations of academic freedom were subjects of an investigation by an ABAfact-finder earlier this year. In the midst of this ABAprocess, the AMSL Board voted in effect to close AMSL and transfer its assets to a new law school to be located on the campus of Ave Maria University, in southwest Florida.

Disagreement over this proposed move is thus only one aspect of the difficulties at AMSL. Problems at AMSL go much deeper, and are much more structural.  Since the vote of "no confidence" in Dean Dobranski in April 2006 over issues of faculty governance and academic freedom, he has used threats and retaliation to try to silence members of the faculty from voicing concerns about his leadership and that of Mr. Monaghan. A majority of the faculty whom the Dean believes to be disloyal to him have been punished financially and through manipulation of the promotion and tenure system. One tenured faculty member has been repeatedly threatened with termination based upon bizarre allegations. Junior faculty members have been threatened that their careers would be harmed if they associate with disfavored tenured faculty. We have also been informed that Dean Dobranski had instituted a system of monitoring our emails and computers, and student research assistants have been closely questioned about research projects of disfavored faculty members. All tenured faculty members have been removed from the Chairs of faculty committees, and such chairs are now in the control of the few faculty members whom the Dean believes to be loyal to him. Cumulatively, such intimidation and bullying has created an intolerable atmosphere of fear and contempt at our school.

We repost here, as an example of this atmosphere, a portion of an email by AMSL's President and Dean Bernard Dobranski to the faculty sent on Wednesday, March 14 - eight days before the school was visited by an ABA fact-finder investigating complaints regarding the manner in which AMSL is being run.

The full memo is available on a web site established as a repository of documents related to the various educational enterprises run by Mr. Monaghan [html; PDF]. Here is an excerpt:

Ave Maria School of Law resources, including the Law School email, may not be used ... for any ... activities or purposes that are intended to or are reasonably likely to undermine or damage, tangibly or intangibly, the successful operations of our Law School. These limitations do not apply to activities conducted by a faculty member on his or her own time and using his or her own resources. These limitations, however, do not imply any permission to engage in activities injurious to the Law School, which activities, of course, are impermissible for any employee, regardless of the equipment used or location of the activity. Moreover, these limitations do not interfere with a faculty member's legitimate right to interact with the American Bar Association in any way, nor do they interfere with any other legitimate activities of and expressions by faculty members, consistent with the concepts of "The Centrality of the Mission" and "The Definition and Role of Academic Freedom" as set forth in the Faculty Handbook.

If any faculty member is considering using Law School resources in such a way as might be contrary to the limitations described here, he or she should fully advise me or Dean Milhizer in writing of the contemplated use and we will notify the faculty member in writing whether the contemplated use is prohibited.

We find this memo, in the context of current events, to be breathtaking in its audacity. The Dean of a (currently) ABA accredited law school is threatening to fire faculty whom he finds, in his own opinion, to be acting in any way he thinks might possibly cause harm to AMSL. He also appears to be demanding that faculty get prior approval for use of AMSL resources, thereby imposing prior restraint on their speech and conduct. Such threats (which were reiterated in a memo to all system distribution and alumni [html; PDF]) would be chilling in any atmosphere, let alone that at AMSL, which is under ABA investigation, and where the Dean already has had a vote of "no-confidence" registered against him by a substantial majority of the faculty.

In light of this conduct, a substantial majority of the faculty of AMSL has no plans to participate in relocating our beloved school to Ave Maria Town in Southwest Florida. No evidence has been presented that would suggest that the move, which was recently approved by our Board of Governors, is in the best interest of AMSL.  Indeed, it appears that the move is being pursued primarily to benefit Ave Maria University, an institution that is wholly unrelated to the Law School.

Prior to the Board of Governors’ vote to "relocate" the school, a substantial majority of the faculty, having been denied repeated requests for both a written relocation proposal and a meaningful opportunity to comment as a group on the wisdom of this move, sent a resolution to the Board opposing the proposed move and explaining that opposition [PDF]. There are all sorts of reasons why one would find it imprudent to leave a well-populated area, where a law school has made valuable contacts with the profession and for its students over the last seven years, to move 1,300 miles to a new and untested community, isolated from most of the kinds of social networks in which legal communities thrive. The resolution pointed out many of these concerns in a detailed response [PDF] to the administration's feasibility study regarding the move [PDF 5.3MB]. Given the recent track record of the poor governance of AMSL under the current administration, and given that the same governing authority will exercise an even greater range of influence - directly or indirectly - over all of Ave Maria Town, we cannot subject our institution, ourselves, and our families to the whim of that authority over the entire community: university, housing, shops, town, public services, children's schools, and Oratory.

In fact, no more than a handful of faculty members will be moving to Florida.  In combination with other challenges facing Ave Maria University [overview], it is our opinion, based upon the information made available to us and the opinions of knowledgeable persons whom we have consulted, that the ABAwill not acquiesce to the move. If AMSL moves without such acquiescence, it stands to lose its most valuable asset, its ABA accreditation.

The fear is growing that Dean Dobranski and Mr. Monaghan now intend to abandon our school, whether or not a new one eventually will arise in Florida. Indeed, at a recent meeting with AMSL students, the Dean stated that the administration has no contingency plan in the event that the ABA refuses to acquiesce in the move, and that two Board members believe that AMSL is a "failed experiment."

This "spin" on events unfortunately is not unexpected. Mr. Monaghan has already abandoned and destroyed two colleges (Ave Maria College in Michigan  and Orchard Lake Saint Mary's College, also in Michigan). So it is sadly unsurprising that he is behaving in this manner. More disappointing is Dean Dobranski's conduct, refusing even to meet with his own faculty to discuss issues of governance and the move - insisting, in effect, that they are none of the faculty's business. Most disappointing is the conduct of the Board, which has (or had) among its members two cardinals and four prominent Catholic professors.

Acting as if the move to Florida is a fait accompli before acquiescence has been granted, and failing to have a contingency plan should it be denied, is reckless. In view of this failure, faculty members have investigated options for maintaining a program of sound Catholic legal education in Ann Arbor, and have uncovered several promising avenues. We ask for support for these efforts in the near future from our colleagues around the country.

What is more, in our view calling a living community of hundreds of human persons a "failed experiment" reveals a remarkable disregard for basic Christian values. Furthermore, the charge of failure is demonstrably false. On the contrary, as our high bar passage rate and judicial clerkship numbers demonstrate, our school actually is a phenomenal success. The only failure has been the Board's inexcusable failure to provide leadership in the face of the current crisis.

As evidenced by a number of documents available on the internet [link], as well as by some rather angry, though sometimes humorous blogs [link], and by the experience and general mood and convictions of faculty and students, AMSL is engulfed in an atmosphere of fear - fear for one's job, and for one's future should one cross an administration that has shown itself determined to squelch all dissent. Faculty members, both tenured and tenure-track, have been threatened with termination. The Dean has pocketed ballots and stalked out of faculty meetings unilaterally declaring them adjourned.

Although the faculty has maintained confidentiality regarding all the specific reasons for the vote of no-confidence in Dean Dobranski, one thing not confidential is the reaction of the Board of Governors to a detailed list of the Dean's abuses: a bald reiteration of complete confidence in Dean Dobranski, followed by a year long refusal to have any substantive discussions with the faculty regarding issues of academic freedom and faculty governance. The Board also has refused repeated requests for intervention to see that the faculty's views are taken into account in regard to the decision to close down the school and transfer its assets to Florida.

We ask our colleagues at Mirror of Justice and elsewhere whether it is in keeping with Catholic Social Teaching - or even with basic standards of human decency - for a Board of Governors to simply ignore the faculty's detailed allegations of the denial of appropriate faculty governance and academic freedom? Are threats to people's jobs, should they dare speak out against a major change that may (indeed most likely will) bring ruin to the school, acceptable? What do conditions at AMSL tell us about Catholic legal education - especially if, as appears the case, Catholic law faculty from other institutions who serve on our Board of Governors are willing to let the school be destroyed in this manner? Finally, of course, we would ask for prayers and advice on how best to deal with this deplorable situation.

In Christ,

The Association of Ave Maria Faculty

April 30, 2007 | Permalink | TrackBack (0)

Catholic Justices and the Death Penalty

Rick says:

I disagree with Eduardo (as I suggested, in response to Michael, here and here) that there is "authoritative church teaching" on the question whether a federal judge reviewing a state court's denial, on procedural grounds in state postconviction proceedings, of a death-row inmate's Penry II claim is required to vote to reverse that denial.

Of course, I was mostly joking. On the other hand, how's this for a defense of my argument:

Given the immorality of the death penalty in all but exceptional cases (what I take to be the authoritative teaching of the Church) and given an American death penalty that goes substantially beyond what the Church would allow, it seems to me that Catholic Justices are under at least some moral obligations with respect to the death penalty.

It may be that Catholic justices are under (moral) obligations akin to civil disobedience.  This could mean the sort of Brennan/Marshall dissenting from all applications of the death penalty.  Or, alternatively, if you think their role-based obligations as justices to "The Law"  trump their moral obligations, perhaps they are under an obligation to resign so as not to participate in the machinery of death put into place by the law.   I'm reminded of this passage from Evangelium Vitae:

Sometimes the choices which have to be made are difficult; they may require the sacrifice of prestigious professional positions or the relinquishing of reasonable hopes of career advancement. In other cases, it can happen that carrying out certain actions, which are provided for by legislation that overall is unjust, but which in themselves are indifferent, or even positive, can serve to protect human lives under threat.

The first sentence seems to me to point towards withdrawal from positions of power and prestige in favor of one's moral obligations towards human life.  But that last sentence suggests a third possibility:  If there is a plausible legal position according to which "a federal judge reviewing a state court's denial, on procedural grounds in state postconviction proceedings, of a death-row inmate's Penry II claim" could vote to grant habeas (an assumption that I think may be warranted in this case by the fact that five justices in fact voted to grant such relief), while still being technically correct in a legal sense, then I do not think that it is utterly implausible to suggest that a judge (Catholic or otherwise, although we're talking about Catholic judges) has a (moral) obligation -- rooted in the immorality of the death penalty (an immorality affirmed by the authoritative teachings of the Church) -- to do adopt that position. 

Perhaps even this last possibility is too strong.  I'm not deeply committed to it -- I'll admit that it's a very complicated issue that I need to think about much, much more carefully.  But I did want to expand on the issue a little bit in response to your facetious reply to my facetious post (not that my post deserved much better).  In short, I was not saying (even jokingly) that the Church has a position on the narrow legal question, but I did mean to suggest that the general immorality of the death penalty imposes some obligations on someone in a position of authority with the discretion to act accordingly. 


April 30, 2007 | Permalink | TrackBack (0)

Evangelical Theologian of "Ancient-Future Faith" Dies

There are many reasons why the divide between evangelicalism and Catholicism and other liturgical forms of Christianity has narrowed recently.  But one of them is the work of Robert Webber, emeritus Wheaton College theologian who traveled the road from a Bob Jones University undergraduate education to writing a series of books commending to evangelicals the patristic tradition and the "ancient-future faith."  Webber died on Friday.  R.I.P.


April 30, 2007 in Berg, Thomas | Permalink | TrackBack (0)

Sunday, April 29, 2007

Lethal injections

The Boston Globe editorializes today about new studies on lethal-injection procedures.  Here's a bit:

The debate over the death penalty in America should not hinge on whether the final agonies caused by any particular execution method are unconstitutionally painful. There are many other reasons why the death penalty should be abolished: It does not deter crime; it is applied unevenly across jurisdictions and demographic groups; it is irrevocable, and the dozen-odd death row inmates exonerated by DNA evidence underscore the danger of executing the innocent.

April 29, 2007 in Garnett, Rick | Permalink | TrackBack (0)

"Too much civil society"?

One theme that runs through conversations about Catholic legal and political theory involves the importance of "mediating institutions" and civil society.  So, this Weekly Standard piece, by Gerard Alexander, "The Nonprofit Industrial Complex:  Is there such a thing as too much civil society?", might provide a good occasion for reflection:  What, exactly, do we want non-state institutions to do, and to look like?

April 29, 2007 in Garnett, Rick | Permalink | TrackBack (0)

Answer to Rick's Question

Rick writes:  "I think Michael might actually have been saying something a *bit* different -- i.e, not so much that the Catechism should inform the 'merits' of the technical question presented but that it should inform a judge's decision about how to vote in cases of genuine, reasonable uncertainty about the legal merits of the question presented.  Michael?"  That's it, Rick.  Thanks!

April 29, 2007 in Perry, Michael | Permalink | TrackBack (0)

Saturday, April 28, 2007

Reminder of Upcoming Conference

University Faculty for Life is a non-denominational, multi-disciplinary organization which welcomes the membership and participation of all pro-life faculty members in institutions of higher education. Its focus is on issues related to abortion, infanticide, and euthanasia. Many papers presented at its annual conferences are quite profound. And the guys who go are fun. It's one of my very favorite yearly events, one which I try never to miss. (Full disclosure: I'm on the Board, so I have to go.)

Its 2007 conference will be June 1-2 at Villanova University near Philadelphia, PA. Attendance is open to current or former members of college, university, and seminary faculty and their spouses, and to others by individual request.

The presentations will begin at 2:00pm the afternoon of Friday, June 1st. Registration is only $60, which includes a wine and cheese reception, continental breakfast, refreshments between sessions, lunch, and the concluding banquet on Saturday evening. Accommodation is available in guest apartments on Villanova’s campus. Registration form.

The plenary speakers at the conference will be Helen M. Alvare, Associate Professor of Law at Catholic University’s Columbus School of Law and David L. Schindler, Dean of the John Paul II Institute for Studies on Marriage & Family. There may still be time to submit your own papers. Check it out at http://www.uffl.org/conference.htm

April 28, 2007 | Permalink | TrackBack (0)

Friday, April 27, 2007

"Religion and the Common Good"

Here's Archbishop Chaput, on "religion and the common good."  A bit:

Only one question really matters. Does God exist or not? If he does, that has implications for every aspect of our personal and public behavior: all of our actions, all of our choices, all of our decisions. If God exists, denying him in our public life—whether we do it explicitly like Nietzsche or implicitly by our silence—cannot serve the common good, because it amounts to worshiping the unreal in the place of the real. . . .

We most truly serve the common good by having the courage to be disciples of Jesus Christ. God gave us a free will, but we need to use it. Discipleship has a cost. Jesus never said that we didn’t need a spine. The world doesn’t need affirmation. It needs conversion. It doesn’t need the approval of Christians. It needs their witness. And that work needs to begin with us. Bernanos said that the “scandal of Creation [isn’t] suffering but freedom.” He said that “moralists like to regard sanctity as a luxury; actually it is a necessity.” He also said that “one may believe that this isn’t the era of the saints; that the era of the saints has passed. [But] it is always the era of the saints.”

The only thing that matters is to be a saint. At least we can try. And if we do, God will take care of the rest.

April 27, 2007 in Garnett, Rick | Permalink | TrackBack (0)

"Talking past each other" on Catholic judges?

My friend Eric Claeys (SLU / George Mason) wonders if Eduardo, Michael, and I (see below) are "talking past each other" in our recent posts about Catholic judges.  Here's what he writes:

I've been reading your exchange with Michael Perry and Eduardo Penalver about the recent SCt death penalty cases and the Catholic Church's teaching.  Thus far, it's seemed to me that the three of you are talking past each other. . . .  Reading between the lines, I think Eduardo and Michael are assuming that Supreme Court Justices should incorporate the Catechism's teaching on the death penalty relatively directly into their analysis of the merits of the questions presented.
I read you to be assuming that the Catechism's teaching plays a relatively remote role in federal habeas, for reasons having to do with federal-state comity, the functions of appellate review, and rule-of-law respect for the habeas statutes

This difference is important, because it relates to a more general question how prudential Church teachings apply to different actors in a government with separated or specialized offices.  So, to each of you: How should a Catholic federal appellate judge reconcile his religious and his legal obligations when procedural rules and habeas statutes focus the merits of an appeal on considerations that, from the Catechism's standpoint, seem not particularly important -- or even irrelevant to the basic question of justice?  Inquiring minds want to know.

I think Michael might actually have been saying something a *bit* different -- i.e, not so much that the Catechism should inform the "merits" of the technical question presented but that it should inform a judge's decision about how to vote in cases of genuine, reasonable uncertainty about the legal merits of the question presented.  Michael?

April 27, 2007 in Garnett, Rick | Permalink | TrackBack (0)

War by Sonogram

In December, Nicholas Eberstadt delivered a speech at the UN on "the global war against baby girls."  Joe Carter comments:

Early this year, the British medical journal Lancet estimated the male-female gap at 43 million with 100 million "missing girls" who should have been born but were not. Fifty million would have been Chinese and 43 million would have been Indian. The rest would have been born in Afghanistan, South Korea, Pakistan, and Nepal. . . .

What is fueling this crisis? Eberstadt credits the "freakish" ratios to the "fateful collision" between (a) overweening son preference, (b) the use of rapidly spreading prenatal sex determination technology coupled with gender-based abortion, and (c) the low or dramatically declining fertility levels.

Even if we set aside the moral horror of a world that is killing its daughters, this oft-ignored trend of female feticide could pose a greater threat than many of the high-profile concerns that are touted by the media. For instance, the Chinese government says that by the year 2020--only thirteen years from now--the men in that country will outnumber women by 300 million. Imagine hordes of men, numbering in the hundreds of millions, who will never be able to have sexual contact with a woman, never be able to marry, and never leave a descendant to carry on their lineage.

April 27, 2007 in Vischer, Rob | Permalink | TrackBack (0)