Domino’s Pizza founder Thomas Monaghan created quite a stir on April 7, 1999. Dissatisfied with existing Catholic legal education, he unveiled plans to donate $50 million to open the 26th Catholic law school in the United States—Ave Maria—in Ann Arbor, Michigan. And he announced that Bernard Dobranski, the former law school dean of the Catholic University of America (CUA), would be the school’s new dean.
But Ave Maria wasn’t the only Catholic law school that made the news that day. Boston College Law School publicized its decision to make John Garvey, a respected constitutional law professor at Notre Dame, its new dean. Garvey had been rumored to be the front-runner in the search to replace Notre Dame Dean David Link, so Garvey’s departure threw the school into disarray until it finally settled on Professor Patricia O’Hara on April 30.
Not to be outdone, the University of St. Thomas announced in May of that year its plans to open a new law school on its Minneapolis campus. Former Notre Dame Dean Link and professors Patrick Schiltz, Elizabeth Schiltz, and Reginald Whitt left Notre Dame to teach at St. Thomas; soon afterward professors Charles Rice and Gerard Bradley of Notre Dame agreed to teach for a semester at Ave Maria. In spring 2001, the Catholic University of America finally settled on someone to replace Dean Dobranski permanently: Douglas W. Kmiec, a constitutional law scholar who had taught at Notre Dame.
The recent history of Ave Maria, St. Thomas, Notre Dame, Catholic University, and Boston College demonstrates that there are deep ties—and divisions—among Catholic law schools. While the members of each school seem to be fairly cordial toward each other these days, certain specific issues still generate a lot of heat. I interviewed various faculty and students at these five schools (and Georgetown) to learn more about their respective visions and the complex relationships that exist among them.
Before Tom Monaghan called, Bernard Dobranski said he was “quite comfortable” at CUA’s law school, where he had been dean for four years. But after talking with Monaghan, he was sold on the idea of going to Ave Maria.
Soon afterward, Dobranski decided on his first faculty hire, conservative judge Robert Bork. As a result, Rev. Robert Drinan, a professor at the Georgetown University Law Center, immediately derided Ave Maria as a “holier-than-thou” institution with a primarily political agenda. Dobranski dismisses talk that his choice was politically motivated: “I didn’t know that political conservatives were unacceptable on faculties.” He also noted that Bork taught at Yale, has contributed a seminal text in the area of antitrust law, and is “consistent with all the life issues.”
Overall, the school does seem to attract the politically conservative. According to Tom Alexander, a third-year law student, it has an active Republican Lawyers Association but no corresponding group for student Democrats. Dobranski concedes that the perception of Ave Maria as a conservative institution is probably unavoidable. “Any school which is Catholic is going to be labeled as conservative because of the life issues,” he says. On the issue of the death penalty, he acknowledges the need to respect what Pope John Paul II wrote on the issue in his 1995 encyclical Evangelium Vitae (that in today’s world it should be “very rare, if not practically nonexistent”), but he also emphasizes that the Church has traditionally maintained that the state can have the right to impose it. As for the penal system in the United States, Dobranski says it “is about as fair as you could imagine…. They more than meticulously observe what due process would require.”
These controversial issues aside, the main thing that makes a law school Catholic, Dobranski says, is its commitment to the Catholic intellectual tradition. He explains that this tradition had a great influence on the Anglo-American “common law” system on which our country was founded. Dobranski points to Ave Maria’s courses in canon law and Catholic social teaching but also to less obvious outlets, such as property and tax law (where one can discuss the “universal destination of goods”). He is also justly proud of his school’s vibrant spiritual life: The law school chapel hosts eucharistic adoration, the rosary, the Liturgy of the Hours, and daily Mass. In addition, there are crucifixes in the classrooms, and many classes begin with a prayer.
Dobranski also supports Ex Corde Ecclesiae (Pope John Paul II’s apostolic constitution on Catholic universities) and disagrees with those who say that the document limits academic freedom: “We believe there are things we can talk about here that you can’t talk about elsewhere—the role of religion in public life.” What about the discussion of difficult cases like Roe v. Wade? Tom Alexander notes that his teacher challenged the class to address all sides of the argument: “Ave Maria wants effective and knowledgeable advocates, lawyers who can successfully argue their point to anyone and at any level, like-minded or not.” Dobranski points out that James Krier, a visiting secular professor, and Doug Kahn, a member of a Michigan accreditation committee, were both impressed that free and diverse discussions in the classroom are encouraged at Ave Maria.
Ave Maria’s academic quality has even kept pace with its religious commitment: The GPAs and LSAT scores of incoming students are similar to those of students at law schools ranked in the top 25 percent by U.S News & World Report. Still, there are skeptics of Monaghan and Dobranski’s philosophy, especially on the issues of social justice and the death penalty. When I spoke with Rev. Richard McBrien, a theology professor at Notre Dame, he contended that “cafeteria Catholicism exists, but it exists across the spectrum—among conservatives as well as liberals.” He also felt that Monaghan’s “vast fortune could be better spent on the needs of the poor,” especially since Notre Dame Law School is already “conservative by any standard.” Monaghan has faced such criticism before. In an interview with the Wall Street Journal (June 21, 2000), he responded that “there are a lot of people doing that sort of thing…. There’s no one doing the spiritual, morality kinds of things. There’s more of a need there.”
According to St. Thomas’s associate dean, Patrick Schiltz, “St. Thomas is a little more of a faith-in-action place, while Ave Maria is more focused on conveying the intellectual roots of the Church.” Unlike Ave Maria, St. Thomas now has a plan for loan forgiveness (a policy that Dobranski doesn’t like; he says the money should be given for scholarships) and a requirement of 50 hours of community service (not necessarily law-related) before graduation. Ave Maria currently has the greater academic prestige, though: St. Thomas’s average GPA and LSAT numbers are slightly lower, though they are still comparable with the top 50 percent of law schools.
As Schiltz notes, however, the difference between the two schools is merely one of emphasis. Like Ave Maria, St. Thomas has hosted lectures on matters pertaining to the Catholic intellectual tradition. In fact, one of the things that attracted second-year law student Jennifer Kraska to St. Thomas was that it offered a joint degree in law and Catholic studies. Kraska also points to the fact that writings of the current pope and U.S. bishops were used in her property law and criminal law classes, respectively, and that some of her classes begin with a short prayer. Judging from the law school’s Web site, there are also quite a few professors who have devoted part of their research to the implications of faith on the law.
Schiltz welcomes Ave Maria, saying that the competition can only enhance Catholic legal education. He does disagree with Dobranski on the death penalty, however, and is proud of St. Thomas’s hiring of professor Michael O’Connor, who spent ten years defending clients in death penalty cases. Interestingly, the general political views at the two schools are almost diametrically opposed. Kraska describes the students at St. Thomas as “liberal to moderate” and notes that while there is a Democratic student organization, there is no active group for Republicans. Schiltz says that the faculty includes only two people who have ever voted Republican. However, the school does have a pro-life student group and a Catholic law students association.
In general, the St. Thomas program seems strong and balanced, although like Ave Maria it does tend to attract a certain kind of Catholic—in this case, politically liberal and not as focused on the Catholic intellectual tradition. It would be nice to have an institution where both this intellectual tradition and a commitment to faith-in-action, as well as both conservative and liberal voices, are well-represented. Such a dynamic—at times almost schizophrenic—interplay is exactly what is offered at Notre Dame.
Notre Dame is an unusual place, caught between those trying to hang onto a traditional expression of Catholicism and those who would prefer to leave the school’s Catholic identity behind in an effort to compete with secular schools. When I asked Professor Richard Garnett about Notre Dame’s commitment to Catholic identity, he insisted that his school “does it better than most.” Garnett himself has taught separate courses on the death penalty, the First Amendment, and criminal law, addressing philosophical and theological concerns in each. In general, the course offerings, faculty makeup (which includes noted criminal law professor and pro-life spokesman G. Robert Blakey), and administration (led by Dean O’Hara) reflect the school’s deep engagement with issues of faith.
While Garnett has nothing but praise for St. Thomas, calling the school “exciting” and referring to its “great faculty,” he is a bit more hesitant about Ave Maria. He explains that the school must “avoid the impression that being an authentically Catholic law school means simply being a politically right-leaning school—and I say this as a conservative. The hiring of Robert Bork—a great legal mind, to be sure—might have created this impression.”
The students at Notre Dame interested in a religious perspective on the law seem happy with their choice of schools. Two such students are Shawn Monterastelli and Kyle Forsyth, both Protestants who are involved in the Christian Legal Society. Forsyth says that Notre Dame “is the best law school in the country that makes a genuine effort to incorporate the Christian faith into the study and practice of law.” Michelle Chelvam, the former president of the St. Thomas More Society at Notre Dame, says that when she was applying to law schools, she was particularly disappointed with “unorthodox” institutions like Georgetown: “It was vitally important to me that I receive my legal training at a place where the unity of faith and reason is recognized, exemplified, and proclaimed.”
The spiritual life at Notre Dame complements the faith-based discussions in the classroom. There is a very active St. Thomas More Society and pro-life group, Mass is said twice a week in the chapel, and every Lent there is a daily rosary. With regard to social justice, Notre Dame has a strong legal aid clinic and student public interest group. Chelvam adds that the school has lately made an effort to “more fully integrate the curriculum at the clinic with the Church’s social teaching,” particularly in its search for a new clinic director.
But there are signs that some students aren’t so happy with the Catholic character of the school. A symposium on law and privacy published in the Notre Dame Journal of Law, Ethics, and Public Policy in 2000, for example, originally contained an article in favor of same-sex marriage (which also made positive remarks about adultery), another in favor of physician-assisted suicide, but none on the opposing side of these issues. The content of the symposium was especially surprising considering the journal’s official policy of “examin[ing] public policy questions within the framework of Judeo-Christian values.” (As a member of the journal at the time, I discovered this problem shortly before the publishing date and was able to solicit an article sympathetic to the Church’s teaching on homosexuality.) While recent editions of the journal have been more successful in incorporating articles that reflect Judeo-Christian values, one wonders if the school will continue to face such challenges in the future. Though Notre Dame has done very well in maintaining its Catholic identity, Chelvam says, “I think we might have a hard time filling more religious schools with students who want to promote that identity.”
Catholic University of America
The Columbus School of Law at CUA in Washington, D.C., is almost a cross between Notre Dame and the two newer Catholic law schools. While the school has been in existence since the 19th century (like Notre Dame), its latest dean, Douglas Kmiec, has given the school a renewed sense of direction since beginning his tenure in August 2001. Kmiec says that above all, a Catholic law school must “recognize a Creator” and uphold the unalienable right to life, as did the Declaration of Independence. While the dean points to the unique intellectual and liturgical contributions that a Catholic law school can make, he also notes that it should be ‘constructively engaged in dialogue with other faiths?’
For example, Jews and Catholics at CUA have had an especially warm relationship throughout the school’s history. While there are few Jewish students and professors at Ave Maria, St. Thomas, and Notre Dame, there is a substantial Jewish community at CUA, probably due in part to the school’s location in a major metropolitan area. J.R. Sanchez, the president of the Pope John Paul II Guild of Catholic Lawyers at CUA, estimates that the Jewish Law Students Association has about 15 members and says that the two organizations have a close working relationship. There are also several Jews on the law school’s faculty, including Clifford Fishman, who recently received the Pope John Paul II Guild’s “Mary, Mirror of Justice” Award. Fishman notes that the school “has always gone out of its way to accommodate any form of Jewish religious practice,” and affirms, “I consider myself a member of the family and have always been treated as such, professionally and personally.” While the school welcomes those from different religious traditions, Kmiec says that he has “already disqualified people who were very bright but who basically said that faith is of no interest to them…. [They were] better suited elsewhere.” The new dean’s policy is reflected in the current student and faculty bodies, which manifest a strong and diverse commitment to a Catholic identity.
Kmiec also seems generally favorable to both St. Thomas and Ave Maria as additions to the pool of Catholic law schools. “I think it’s a good thing—competition is always helpful,” he says. “[If] one of us has done something well, we can inspire others.” Kmiec sees Notre Dame as having a “slightly different emphasis” than CUA: While the professors at Notre Dame (such as Gerard Bradley and John Finnis) are known for emphasizing the relationship between natural law and jurisprudence, CUA is more focused on law and public policy. For example, about 40 percent of each graduating class goes directly into judicial clerkships, government work, and public-interest positions.
Perhaps the only bad news for CUA’s law school is its third-tier academic ranking in U.S. News & World Report. Nevertheless, with a new dean, a new law school building, and a prime location, there is no reason to think that this standing might not improve in the future.
On the controversial issues that a Catholic law school must address, Kmiec provides some new insights. He volunteers that the law school’s clinical program is “not involved” with the issue of divorce, “except in a very collateral way.” As for the death penalty, he is “glad the debate is occurring” and notes that CUA recently held a conference on the subject. When John Paul II stated that the death penalty should be “rare if not nonexistent,” Kmiec explains, he was speaking to a pre—September 11 world. The dean feels that today the death penalty might be an appropriate response to international terrorists who “are quite willing to plot from their jail cell, endangering millions of lives.”
Such a moderate position seems reasonable but certainly does not represent a consensus among the schools profiled in this article. The words of Lucia Silecchia, a law professor at CUA, are worth pondering on this point: “People of goodwill all across the political spectrum find something in Catholic teachings that makes them uneasy. But that is exactly the Church’s prophetic role. The Catholic faith answers my questions, but it also questions my answers. That, of course, is exactly what it ought to do.”
In general, the 14 Jesuit law schools in the United States have gotten a tough rap from traditional Catholics. Boston College, in particular, has borne a good deal of this criticism, perhaps due to its increased visibility as a top-25 law school. Under the new leadership of Dean John Garvey, however, several good things have been happening. Joseph Donohue, the current president of the St. Thomas More Society, says that the dean has been “particularly supportive” of the group, which recently hosted a comprehensive lecture series. The school’s attention to issues in the Catholic intellectual tradition is also reflected in a recent Catholic law school conference held for students in the Boston area (which included talks by a few Boston College law professors), three “law and religion” symposia in the past three years in the school’s law review, and a panel sponsored by a local pro-life group and scheduled for the 30th anniversary of Roe v. Wade. There is also daily Mass in the law school chapel. In addition, Donohue describes the school’s commitment to public-interest work as “superlative,” noting that it provides scholarships, loan repayment assistance programs, and several clinical programs to students interested in such work.
In spite of these advantages, there are some shortcomings. For one, a glance at the school’s Web site reveals that very few courses address the implications of faith on the law, and very few of Boston College’s many professors seem to have published anything on the subject. Donohue and Michael Marcucci (the former president of the St. Thomas More Society) have few criticisms of the school, but Marcucci acknowledges that it was “fairly rare to have a particularly religious perspective” in class, and Donohue is surprised that “there are so few practicing Catholic law students.” Donohue adds that in his time at the law school, there has “never been a concerted effort” on the part of the student body to conduct pro-life activities. Marcucci estimates that the “vast majority” are pro-choice, and there is an officially recognized pro-choice group. The past two commencement speakers, Massachusetts Supreme Court Chief Justice Margaret Marshall and Governor Paul Cellucci, are both known abortion advocates.
In addition, there is an officially recognized and activist gay and lesbian student group (Lambda). Furthermore, at the 2002 commencement, Garvey conferred the John D. O’Reilly Award “for contribution to the law school community through service to its students” on a student whose leadership role in Lambda he noted. Finally, the Boston College Law Review recently published two articles sympathetic to same-sex marriage without a response.
To be fair, it would be hard to change any Catholic law school overnight; efforts to “take back” an institution must contend with entrenched resistance and competition with the four aforementioned schools for actively Catholic faculty and students. Donohue acknowledges the value of religious discussion in class but points out that a Catholic law school should draw the line at some point: “I didn’t go to law school to learn theology…. I went to learn the nuts and bolts of the legal system and would be very reluctant to pay someone to teach me if it meant taking time away” from substantive courses. He also points out that the reproductive rights club had only one meeting and that the gay and lesbian organization has only “a handful of members. They do not represent the majority of students.”
Still, giving institutional support to groups and individuals that publicly oppose Church teachings can undermine a law school’s Catholic witness, especially when the Church’s position has not been adequately represented. According to Chelvam, “Students who want to promote causes in direct contradiction to the Catholic faith should not have chosen to attend a Catholic law school. It’s at least as disrespectful as going to a Muslim school and setting up a pork lovers’ society.”
Along with Boston College and Notre Dame, Georgetown is the other Catholic law school ranked in the top 25 and has itself been a magnet for criticism from traditional Catholics. Associate Dean Wendy Collins Perdue does call attention to the school’s strong commitment to public-interest work and in particular to its large clinical program. She also notes the school’s emphasis on legal ethics, as manifested in the research efforts of several of its professors and in its sponsorship of the Journal of Legal Ethics (the only legal journal devoted entirely to legal ethics). In addition, she names three professors who have expertise in the intersection of Catholic teachings and the law—Father Drinan, Rev. Kevin Quinn, and Rev. Ladislas Orsy (the latter teaches canon law)—and mentions the presence of a law school chapel where Mass is said daily.
Georgetown does have its strengths, but its problems appear to be more serious than those at any of the other schools profiled here. In one respect, at least, Georgetown is less Catholic than many non-Catholic schools. I was surprised to learn that the St. Thomas More Society has been “relatively inactive” for the last few years, even though Georgetown has the largest student body (2,030) of the 183 law schools accredited by the American Bar Association. There is also no right-to-life group, although Perdue thought that the Christian Legal Society had been active on this front. On the other hand, there is the Women’s Legal Alliance, which describes itself as “feminist,” and a gay and lesbian awareness group named OutLaw.
With regard to the curriculum, a friend who graduated from Georgetown last year says he cannot remember a single discussion of the intersection of Catholic teachings and law in class. Apparently, there’s only one course in which such discussion is central—Canon Law. There are a few seminars on the general topic of law and religion, one of which purports to deal with the problem of “heterosexism.”
The overall tilt of the faculty is especially disturbing: There are at least seven professors who have published works or served as counsel in the past ten years in support of conduct or legal action directly opposed to the Church’s moral teachings. Ten professors signed a public petition supporting Roe v. Wade in anticipation of the 2000 presidential election. (In comparison, two CUA professors, one Boston College professor, and zero Notre Dame professors signed.) In addition, while he was a member of Congress, Father Drinan was known to vote consistently against the pro-life position.
While the people I interviewed for this article were hesitant to single out Boston College or Georgetown in particular, there does seem to be a general skepticism about the efforts of Jesuit law schools in furthering Catholic legal education. When I asked Kmiec for his opinion of the Jesuit law schools, he preferred to emphasize other educational areas in which the Jesuits have made positive contributions and concluded that “their strongest influence has been on the secondary school level.” Garnett is more disapproving: While he acknowledges the commitment of Jesuit law schools to social justice, he does not believe that they challenge their students to think about their social justice work, or about law generally, in religious terms. He also thinks their hiring and scholarship efforts should be more informed by Catholic concerns: “This does not mean that these schools need to be more `conservative’; it simply means that I wish they had a more distinctive voice than they do.”
Their Own Way
Fortunately, the generally positive developments in Catholic legal education don’t end with the aforementioned schools, Dobranski, who has met on occasion with other Catholic law school deans to discuss the issue, says that while “[w]e don’t all see things the same way, we’re all interested in how we can do a better job?’ Michael Marcucci compares the various schools to different charisms of religious orders, each serving the Church in its own way. They also serve society at large, as Garnett notes: “There is a story out there in which religious people have a part—law and legal education cannot speak to the real world if [they require] that religious people put aside their faith?’
While it remains to be seen whether the schools will be able to maintain their distinctive voices, certainly there will continue to be people willing to help out. “We have come through a decade in which many young people entered professional life focused on money, prestige, stature, and success. What we have seen, however, is that pursuit of such a vision leaves many dissatisfied?’ Lucia Silecchia observes. “It seems natural that in such a time, intelligent young lawyers-to-be are asking for an education that will focus on a healthier and more balanced view of life.”