Mark A. Sargent

The Dean’s Opportunity

There has never been a better time to be the dean of a Catholic law school than today. This conclusion may not seem obvious; it may even seem counter-intuitive. In the view of some, American Catholic higher education – and by extrapolation, Catholic legal education – faces an enormous threat generated by Ex corde ecclesiae¹ to its intellectual, moral and institutional integrity. The result of Ex corde ecclesiae’s implementation in this view, will be, at best, chronic and pervasive divisiveness not only between the Church hierarchy and Catholic universities but within the universities themselves. At worst, the result will be a divorce of Catholic higher and professional education from the American university tradition and a profound marginalization of Catholic institutions of learning. From this perspective, the responsibilities of a dean of a Catholic law school would seem neither particularly clear nor especially rewarding; the only satisfaction would be that of having fought a rear-guard action as bravely as possible.

My purpose in this essay is not to revisit the ongoing debate over the merits of Ex corde ecclesiae or to prognosticate in detail over its implications for the future of American Catholic higher education.² Suffice it to say that I share the reservations of many in Catholic higher education about the wisdom and necessity of creating a juridical relationship between the Church hierarchy and American Catholic colleges and universities.³ I also understand and sympathize with the quandary of many Catholic theologians now faced with an apparent obligation to obtain episcopal certification of the conformity of their work with the Church’s authoritative teachings.⁴ These issues may indeed prove to be highly divisive within both the American Catholic academy and the Church itself. That being said, I contend that the principal effect of Ex corde ecclesiae, and the debates surrounding it, has been essentially positive.

Ex corde ecclesiae has catalyzed and channeled energies already emerging in the Catholic academy into a widespread, passionate reconsideration of what it means for an educational institution to be "Catholic". That effect may be more important than the substance of the document itself, because it has helped Catholic universities and law schools focus with greater urgency on the sense of lost purpose lingering alongside their achievement of a respected and sometimes distinguished position in American higher education. It has helped us think more clearly about how our institutions can be both genuinely Catholic and committed to the American university traditions of academic freedom, critical inquiry, intellectual excellence and democratic inclusiveness. The fruits of all of this rethinking are still emerging, but the net result need not be a crippling and alienating neo-orthodoxy but rather an identity that is distinctive and rich with possibility.

The dean of a Catholic law school today serves in a time of extraordinary intellectual and spiritual opportunity. The opportunity is to help make a contribution to a new understanding of what it means to be a Catholic law school within a Catholic university. The opportunities for rethinking are almost endless. They touch on every aspect of the law school’s life – the scope of its curriculum, the parameters of its intellectual and scholarly life, the direction of faculty appointments, admissions policies, the allocation of resources, the thrust of career counseling and, most globally, the way the law school defines, articulates and lives its values. The dean of a Catholic law school thus need not fight a rear-guard action, but should share in an adventure whose outcome is still incalculable, but which will force us to stretch our imaginative and sympathetic capacities to the utmost.

The heightened self-consciousness of Catholic legal education, as well as a renewed confidence in the vitality of a Catholic approach to legal education, also will provide us with a particular way to address the pervasive anomie that deans in all law schools must face. That anomie has many sources. It is to some extent a function of the "ordinary religion" of the law school classroom.⁵ It reflects the detachment of professionalization from a commitment to justice, the triumph of business values, and the alienation of so many lawyers from their vocations. This is not to say that Catholic law schools possess the only antidote to that anomie. It is merely to suggest that realization of Catholic identity can indeed be one such antidote.⁶ That potentiality makes the opportunity to lead a Catholic law school today something very exciting indeed.

The dean’s role in creating that antidote through a reinvigoration of Catholic identity is crucial. As a "servant leader"⁷ of the law school community, the dean has several roles in the process of realizing the school’s Catholic identity. First, the dean must lead in initiating the discussions that should take place among the faculty and other constituencies of the law school about the nature and implications of Catholic identity. This process of discussion should be both informal and formal. As a threshold matter, it should be a process of learning. Catholic, nominally Catholic and non-Catholic members of the community will be familiar (or unfamiliar) to varying degrees with Catholic thought and values and their possible relevance to legal education and scholarship. Workshops, seminars and open, frank discussions of Catholic thought should create an informed basis for exploring the meaning of Catholic identity for the law school. The dean’s responsibility will be to ensure that such an exploration takes place in an energetic and searching manner.

Second, as the person charged with speaking for the institution, both internally and externally, the dean is charged with articulating, in both private and public contexts, the law school’s sense of itself as a Catholic institution. Of course, this means more than being a mere mouthpiece, or an entirely self-effacing transcriber of some conventional wisdom. It means, first of all, exercising a sensitive receptivity to both the shared understandings and the crosscurrents of meaning within the community. In other words, the dean must be a good "reader" of the institutional culture. But the dean must be a creative, not a passive reader of the culture. The dean must learn to speak for the school in a way that helps it discover its own identity, that helps it construct its own narrative about itself. He or she should seek new ways to express the institutional identity, so that both insiders and outsiders are able to understand that this is who we are, and this is what we stand for. Of course, all law school deans must be able to construct a defining narrative for their institutions. Such story telling, in fact, may be an essential element of leadership itself. The capacity to speak institutionally, however, is particularly important in times of redefinition, when a self-conscious effort to rethink an institution’s identity is underway. The deans of today’s Catholic law schools therefore are particularly challenged to articulate, in creative ways, the meanings of Catholic legal education for their institutions.

Finally, at least in the model of Catholic legal education I am about to propose, the dean of a Catholic law school must be a force for inclusion. The reality of American Catholic legal education is that in most Catholic law schools many faculty members are only nominally Catholic, of different faiths or wholly irreligious. Indeed, some are unsympathetic or even hostile to Catholicism, either as a matter of principle or of prejudice. Committed or confessional Catholics are a minority in many, if not most Catholic law school faculties. Even some confessional Catholics, furthermore, draw a sharp distinction between their professional roles as teachers and scholars (and the role of the law school in which they teach) and the role of faith and the Church in their lives. There thus inevitably will be a wide range of opinion within Catholic law school faculties not only about the nature of the institution’s Catholic identity, but about whether it is desirable to have such an identity at all. Given the importance of this question, and the existential challenge it will pose to some faculty members’ sense of themselves (as well as their vision of legal education), this division of opinion may yield sharp and potentially harmful controversy. This controversy among faculty may also replicate itself among students, most of whom do not attend Catholic law schools because of a deep, personal identification with the school’s Catholic mission. Such a controversy can be destructive, or it can be helpful and productive. Much depends upon the dean’s capacity for leadership in general. More concretely, it depends upon the dean’s capacity to show that a Catholic law school can fulfill its Catholic mission by being broadly inclusive.⁸

My conviction is that realization of a genuinely Catholic identity in today’s Catholic law schools can indeed be a broadly inclusive phenomenon, one that creates an open and welcoming space for people of other faiths or no faith at all, as I will explain below. The dean of such a law school, however has a special – and complicated – responsibility to ensure that such inclusiveness expresses the law school’s Catholic identity and mission.

That responsibility is complicated because it requires at one time a thoroughly unapologetic and enthusiastic insistence on the reality and importance of Catholic identity in all aspects of the institution’s life; a perpetual invitation to frank and critical discussion of the meaning of that identity and, more generally, the relevance of Catholic thought and values to the law and lawyering; and an earnest and welcoming commitment to diversity (in all its senses) within the law school. However complicated that responsibility, it is essential, and one the dean must be committed to meeting.

There is, however, a vision of Christian legal education that would largely eliminate the need to meet that responsibility, or at least some aspects of it. In fact, in such a "sectarian" vision the definition of the dean’s responsibility in those terms might be seen as inconsistent with or even a betrayal of the school’s fundamental Christian identity. Before articulating my vision of how an inclusive law school can be truly Catholic, I must consider both the attractions and weaknesses of the sectarian model as it may be applicable to specifically Catholic legal education.

. The Sectarian Vision

The most eloquent expression of a sectarian vision of a Christian law school can be found in Thomas Shaffer’s provocative article "Erastian and Sectarian Arguments in Religiously Affiliated American Schools."⁹ Shaffer has long been a leading voice for the expression of Christian values, not only in legal education¹⁰ but also in law and lawyering.¹¹ His vision of a "sectarian" (his own term)¹² law school is one with which anyone committed to Catholic legal education should grapple.

Shaffer’s analysis begins with the proposition that the great majority of the almost fifty religiously affiliated law schools in the United States (Catholic and non-Catholic) were functionally secular.¹³ A few others, he argued, operated to some extent under a religious ethos,¹⁴ but only four (all non-Catholic) were truly "sectarian" in his sense of the term. For Shaffer, the only truly religious law school is one that defines as its essential purpose serving God, not the state or civil society generally. The goal of such a law school would be to train lawyers fundamentally committed to the Church’s prophetic office to practice law in a world that is often hostile to the Church’s beliefs.

This unabashedly sectarian law school would have certain basic characteristics, according to Shaffer. First and foremost, it would be "communal," in the sense that students would receive "their legal education in and from the community of the Church. They learn from and within a tradition of value - from the perspective of Christian theology."¹⁵ His assumption, furthermore, is that the graduates of such a law school "would not be diverse."¹⁶ While he is not explicit about all the practical consequences of this concept, it seems inescapable that all, or virtually all of the faculty and students of such an institution would have to be Catholic or at least committed to some Christian faith tradition, or, perhaps, to Judaism. How far he would go beyond that is not clear, but it does seem clear that he would regard such a law school as a "religious community,"¹⁷ and that there would not be a place for the irreligious. The dean of such a law school, as I suggested above would not, indeed should not, bother herself with inclusiveness; a law school defined as a community of believers would be by definition exclusive.¹⁸

Second, the graduates of the ideal sectarian law school will be commissioned to go out as ministers from "the community of the faithful."¹⁹ The responsibility of the "commissioned lawyer-minister,"²⁰ who bears the "authority"²¹ of the faith community’s judgment will be to bear witness to the prophetic voice of the Church.

Third, the communal commission of the lawyer-minister must be regarded as "infallible,"²² in the sense that the "process" of moral reasoning in which the faith community engages will always claim the "dependability of divine authority."²³ This is not to suggest, Shaffer emphasizes, that the human interpretation of divine authority can never be mistaken, but that faith "gives a confidence that allows the believer to go on as if she were certain. Whether that assurance is justifiable depends on whether the right processes are followed in arriving at it."²⁴ I must confess that I find this point somewhat oracular - - how, after all, does one define the "right processes?" I am also not sure that this formulation distinguishes adequately between the truth-claims of faith and a hubristic satisfaction in the community’s all-too-human interpretation of the implications of faith. Nevertheless, it may be read, at least, as an insistence that the "commissioned lawyer-minister" be confident that the process of moral reasoning within the faith community of the sectarian law school reflects the undeniable authority of the truth-claims of the Church.

Finally, the sectarian law school must be "specific,"²⁵ meaning that it must address, concretely and clearly, "how to speak out and act in a lethal political world."²⁶ In other words, it must infuse its graduates with an understanding how they, as individuals, must confront and respond to particular evils in accordance with scriptural ethics.

Shaffer concludes with a lament and, implicitly, a challenge:

A religiously affiliated law school cannot account for itself theologically by being or aspiring to be like law schools maintained by the state or by non-religious private sponsors. To the extent that a religiously affiliated law school is content with being secular, it denies its heritage and purpose. Most religiously affiliated law schools in the United States are in practice secular. I do mean to suggest... that these law schools, their universities, and their law faculties are not faithful to themselves and that what they are doing denies both their heritage and purpose. It is hard to know why their religious sponsors continue to maintain them.²⁷

 

This challenge has, as one commentator has pointed out, a "certain bracing and radical attraction to it."²⁸ It possesses a moral clarity and a call to purity drawn from a separatist vision of the Church best expressed in some reform Protestant traditions, which Shaffer regards as exemplary.²⁹

It also lays out a blueprint for a type of Christian law school whose presence should be welcomed by American legal education and, perhaps more significantly, the accrediting agencies, although it may function more as an ideal type than the design of a real law school. Furthermore, it establishes provocatively a set of principles that should be considered by anyone attempting to articulate a different vision for a religiously affiliated law school. It should be asked, however, whether the sectarian vision of legal education is the only compelling Catholic vision of legal education or, indeed, whether it is a genuinely Catholic vision at all. Is the choice only between an essentially secular law school (with which the Church, according to Shaffer, should not bother) and a sectarian law school? Is there not a third way, and one that more clearly expresses a specifically Catholic tradition?³⁰

The Inclusive Vision

It seems to me that definition of a third way is necessary, both as a practical matter and as a matter of principle. The practical question is straightforward. How likely is it that the many supposedly "secular" Catholic law schools can be transformed into the communities of believers, modeled on the primitive Church, advocated by Shaffer? How many Catholic law school faculty are likely to redefine themselves as "professor/priests" charged with commissioning "lawyer/priests?" Of course, Shaffer’s highly symbolic use of the term "priestly" perhaps should not be pressed too far: he may simply be talking about the role of the Christian law school in training laymen who will heed the call to holiness and participate, as laity, in the mission of Christ. But even that is likely to jar most faculty’s conception of their roles in a way that does not permit accommodation.

Deans are often accused (by faculty, usually) of a professional bias toward the practical, rather than the principled. I may be a victim of that bias, but I must confess an inability to understand how most existing Catholic law schools could be transformed into the type of exclusive community that Shaffer advocates without violating the existing trust relationships among the many different members of law school communities. A new law school could be created by religious sponsors on Shaffer’s principles, but I believe that any attempt to change an existing Catholic law school into such a community – on the inherently limiting terms defined by Shaffer – would be achieved at enormous (and unnecessary) personal cost to those valuable members of the community who do not share a sectarian conception of a Catholic law school’s religious commitment. I doubt that there are many Catholic university administrations that would believe that cost is either justifiable or required for realization of their Catholic missions.³¹

Of course, from the radically sectarian perspective, my practical reservations would simply be an expression of faint-heartedness, inadequate commitment or, even worse, a fundamental corruption of the spirit. Faith, after all, is often "impractical". I can only answer that my practical reservations are ancillary to my reservations on principle. There are many paths to serving God in the world, and the sectarian path, although legitimate, is but one of them, and not necessarily the best for a Catholic institution. Realization of a genuinely Catholic identity by Catholic law schools should be achieved without adoption of the type of separatist and exclusionist ethos explicit in the sectarian vision. With complete respect for the passionate clarity of Thomas Shaffer’s arguments, I would suggest that the debate is not over whether the primary purpose of a Catholic law school should be the service of God, rather than the state or society. I share Shaffer’s premise that a law school is not essentially Christian if it does not define its priority as the service of God, not Caesar, but I disagree with the proposition that only a sectarian institution (as defined by Shaffer) genuinely serves God. The real debate is over the question of how the Catholic law school may serve God.

There is in fact a well-established Catholic tradition that would support a law school quite different from that contemplated by the sectarian model. The tradition was crystallized explicitly in A Statement on the Nature of the Contemporary Catholic University, a 1967 statement by a group of clerical and lay leaders in Catholic higher education (usually known as the "Land O’ Lakes Statement")³². The Statement not only affirmed the necessity for a Catholic university’s independence from external authority, lay or clerical, it articulated how such an independent Catholic university would serve God and the Church. The Statement emphasizes that just as any university should "serve as the critical reflective intelligence of its society," the Catholic university "has the added obligation of performing this same service for the Church."³³ The goal of the Catholic university therefore, "is a continual examination of all aspects and all activities of the Church... The Church would thus have the benefit of continuous counsel from Catholic universities."³⁴ In other words, the Catholic university - - and hence the Catholic law school - - is where the Church does its thinking. This is not to suggest that the result of such thinking should be a suspension of moral judgment, a feeble value-neutrality or a squeamishness about the truth-claims of Catholic belief. It is to suggest that the Catholic campus should be an arena for unrestricted engagement with all the traditions of humanity, for the benefit of the Church itself, and as a service to God. I am not sure that the sectarian vision necessarily would preclude such an engagement, but I suspect that its insistence upon separation from the world, and its preoccupation with purity of faith, could make dialogue and inquiry of that type less, rather than more likely. That would, in my opinion, be unfortunate, and not (just) because of the violence it would do to the secular liberal tradition of academic freedom, but because it could undermine the Catholic university’s unique mission of serving as a privileged space in which the people of God can explore the meaning of their faith in the broadest possible context.

This conclusion necessarily implies something about the apparent premise of the sectarian model that the truly Catholic university and law school would be exclusively a community of believers - - committed Catholics, Christians or at least members of a consistent religious tradition. Without such exclusivity, the law school could not be "communal," a characteristic apparently essential to the sectarian vision.³⁵ Only such a non-diverse law school could discharge its "priestly" function of commissioning "lawyer/priests." There may be a place in some religious traditions for such a priestly institution, but a Catholic university and law school can also serve its religious mission by welcoming those outside of its faith, both as students and faculty colleagues, into its community. Dialogue with those outside the Catholic faith tradition would be fruitful, because it would facilitate the type of open inquiry the Statement defined as essential to the Catholic university’s mission of serving as the Church’s "critical and reflective intelligence." That mission would also be served by rigorous adherence to the highest standards of intellectual inquiry and the application of reason to our social and moral problems. Furthermore, people of faith should have nothing to fear from direct encounters with those of different faiths and even no faith at all. The Catholic law school would be most genuinely Catholic if it is genuinely ecumenical, and willing to contemplate "the possibility and indeed… the reality of grace and truth…in non-Catholic religious traditions, non-Christian as well as Christian, and in non-religious traditions of thought."³⁶

Inclusion of such faculty and students would also serve another Catholic mission. The goal of the sectarian law school, in Shaffer’s conception, is to commission "lawyer/priests." This is an ideal goal, perhaps achievable in a truly inspired community. A Catholic law school, however, also can serve God by instilling in a wide variety of people, especially those who do not or cannot conceive of themselves as "priestly," a set of values that reflects the institution’s Catholic, and more broadly, theistic traditions. The extent to which the school’s graduates will accept those values, the ways in which they will integrate those values into their own belief structures and use them to guide their careers and lives will vary tremendously, but the key is the potential influence that the Catholic law school can have beyond the circle of already committed believers. As much as believers can learn from open engagement with other traditions, those from other traditions can learn from their involvement with Catholic thought and values. This is a way for the inclusive Catholic school to serve as a light in a dark and hostile world, and by so doing serve its prophetic mission.

But how can the inclusive Catholic law school serve as such a light in a hostile world? What would its essential characteristics be, beyond those basic commitments to open inquiry and earnest engagement with those who do not share the Catholic faith tradition? Certain characteristics seem to me essential.

The first is what I have called an unapologetic stance on the school’s Catholic identity. Catholic identity should not be downplayed or de-emphasized because some members (or potential members) of the community may find a frank expression of Catholic character uncomfortable. There should be no reservations, for example, about the use of Catholic symbols in law school buildings or in law school publications, about the presence of prayer at law school functions, the observance of Christian holidays or the flourishing of a liturgical life within the law school. Of course, there should never be a message that non-believers are unwelcome, that belief would be compelled, that indoctrination in Catholic faith is necessary, or that expressions of different or dissenting views or beliefs is anything other than entirely appropriate. Similarly, the commitment to rigorous intellectual inquiry always should be defined as essential to the law school’s functions. Nevertheless, the Catholic law school never should pretend that is not an institution committed to Catholic beliefs and values, and it should proclaim its identity enthusiastically. A Lutheran educator has made this point more precisely: "[a] Christian university privileges and seeks to transmit...in myriad...ways a particular tradition of thought, feeling and practice."³⁷ This goal of teaching within a tradition does not mean that the university or law school is closed to the expression of other views, or that the tradition itself is beyond criticism, but it does mean that the tradition should remain central to the character of the institution, and should be expressed in many ways.

That conclusion underlies a second important characteristic - - the Catholic law school must create a space for religious discourse about the law. Defenders of a more sectarian version may argue that there are many religious voices within secular institutions, and that there is thus nothing truly distinctive about a Catholic law school that attempts to give a home to such voices.³⁸ I disagree both with this observation and its relevance. While there are indeed scholars and teachers with religious orientations who have found homes in secular institutions, my impression, after many years in state and private non-religiously affiliated law schools, is that religious discourse often is devalued, discouraged or regarded with suspicion.³⁹ This is but a particular example of the equivocal place of religious discourse in the public square.⁴⁰ Thus while it is true that some religious voices have flourished in secular law schools, few of those law schools have committed themselves to encouraging, as opposed to tolerating, open and passionate inquiry into the meanings of religious beliefs and values for the law and those who have chosen lives in the law. In contrast, support of such inquiry should be a central mission of the Catholic law school. In the Catholic law school that encouragement should include full support for faculty whose scholarship expresses a religious perspective, and for the development of courses within the curriculum that give students the opportunity to engage with that perspective. In particular, a serious effort should be made to develop an array of courses that reflect Catholic and other religious perspectives on topics that are especially relevant to religious concern (i.e., jurisprudence and philosophy of law; professional ethics; the law of life and death; bioethics generally; war and peace; family law; poverty law; church and state, and so on), as well as to find ways to transmit Catholic thought in the curriculum generally. Especially important in such a Catholic law school would be classroom inquiry into the rich implications of Catholic Social Thought for law and policy.⁴¹ Nothing in this recommendation would inhibit the law school in developing as broad or diverse a curriculum as any other law school. It simply insists that there should be a more important place for religious discourse on the law than is likely to be found in a secular law school. My conception of the place of religious discourse in the law school, furthermore, is not intended to conflict with the fundamental principle that intellectual inquiry is at the core of our educational and scholarly enterprises. The role of religious discourse in the law school (and the university) is not the simple proclamation of faith; it is to participate in a reasoned dialogue on all things, including religious faith and religious practice themselves.

This same accusation of insufficient distinctiveness may be raised by what I would define as a third characteristic of the genuinely Catholic law school: a preoccupation with values and ethics. In the Catholic law school, law must be studied in the context of ethics. The tension between law and morality has always been a fundamental concern of a Church that has never regarded the demands of the State as absolute, and has always required legal obligation to be viewed through the lens of a conscience informed by Christian values and prepared for principled opposition to state action repugnant to those values. Of course, there is nothing exclusively Catholic about this perspective on the law. Secular ideologies and non-Christian faith traditions both express similar beliefs, so it can be argued that a Catholic law school that integrates rigorous ethical inquiry into its teaching of the law is not doing anything uniquely "Catholic." This truism, however, is essentially irrelevant. The important point is that it would be distinctly non-Catholic for a Catholic law school not to insist upon the ethical dimension of the law and legal study. It is something that a Catholic law school must do to be faithful to its Catholic identity. What difference does it make if secular institutions find other paths to a similar ethical stance? Catholic law schools can serve God by exemplary commitment to an ethical critique based on Catholic values.

This means, however, that the Catholic law school cannot take the kind of "grocery store" approach to values so characteristic of modern education. In today’s academic grocery store a strict value neutrality is maintained, and a wide variety of "values" are laid out on the shelves for the students to browse. There may be some weak consensus among the faculty that "values" are somehow important, but there is usually no attempt to define which values are most important to the institution. This may reflect principled doubt that the institution should attempt to embody and transmit any particular values at all, or it may simply result from the academic tendency to avoid confrontation and hard choices. In any event, that kind of value-neutrality cannot be the institutional style of a law school that calls itself Catholic. Catholic law schools are fortunate, however, in that they already possess a value compass that can guide decision-making within the school but, more importantly, convey a message to students that certain conceptions of human dignity and the purpose of human life have a universality, and are not merely "the idols of particular tribes of modern Western democracies."⁴² Understanding of those fundamental moral values will provide students with the ability not just to recognize ethical dilemmas, but how to resolve them in a principled way. Of course, a law school cannot be responsible for a student’s entire moral formation, for they come to us almost fully formed, but we can help them turn from a careless and comfortable relativism to serious engagement with a coherent set of values.

Those values that should animate a Catholic law school are no mystery, for they derive from a Christ-centered ethos. They include, for example, a profound respect for the dignity of the individual, because "[e]ach man and woman is personally loved by God, and the human effects of every encounter and transaction must be considered and evaluated."⁴³ This is more than a platitude or a bromide, and it is certainly more than a call to being nice to each other. It is a moral imperative that requires a radical focus on the consequences of legal decisions and lawmaking on individual human beings, and implicitly critiques any view of the law in which human beings can be treated instrumentally. These values also include a commitment to recognizing and honoring the humanity of the Other, because the Catholic faith requires us to see the face of Christ in all people, regardless of how different and alien they might appear. This type of engagement with culture through dialogue with the Other is an important strand of current Catholic thinking about the nature of "communion". The value of communion with the Other has obvious implications not only for how the law school defines its community and how its members treat each other, it provides a basis for principled consideration of a huge variety of legal issues relating to poverty, inequality, discrimination and much else. Similarly, a set of values centered ultimately on the spiritual welfare of the human soul requires a law school to communicate to its students, regardless of their faith, the falseness of the soul-destroying traits of much of the law world: lust for material wealth, pursuit of personal ambitions at the expense of others, perfection of craft with indifference to consequences, and a cynical belief in the irrelevance of justice or the importance of truth. Indeed, one of the fruits of a Catholic legal education should be a critical understanding of those false idols that many, whether religious or secular, recognize as afflicting the legal profession. Those idols should be replaced, through a Catholic legal education, by a devotion to justice and to the truth that must be discerned before justice is possible. A concern for justice, which for Catholics derives from a faith-based conception of human dignity, tends to disappear as a student is immersed in law-craft, but it is our duty to find ways to instill in our students a "hunger and thirst for justice."⁴⁴

A fourth characteristic of a Catholic law school is that it should devote substantial resources to clinical legal education and pro bono service to the poor. This reflects the "preferential option" for the poor central to Catholic Social Thought.⁴⁵ A Catholic law school has an obligation to instill in its students - - Catholic and non-Catholic alike - - an awareness of their ethical and spiritual obligation as lawyers to serve those afflicted with poverty or oppression. At Villanova University School of Law, our new clinical and pro bono programs were conceived under the inspiration of St. Thomas of Villanova, who said that, "the Lord hears the cry of the poor." This is why we decided to give our students the opportunity to encounter and contend with the reality of poverty and oppression. Of course, there are many reasons why a law school may commit itself to clinical legal education in service to the poor: an entirely secular commitment to remedying injustice and inequality, simple human compassion, or just a belief that clinical education is effective pedagogy. Those reasons all help justify the dedication of resources to the programs.

So, once again, there is nothing uniquely "Catholic" about strong institutional support for such service to the poor.⁴⁶ But that is once more beside the point. The Catholic law school, in my opinion, must commit to such service learning because it is Catholic. The providing of service to the poor, and, perhaps more significantly, the attempt to persuade students that they as lawyers should serve the poor, is, in essence, an essential part of the law school’s Catholic ministry. The fact that non-Catholic law schools attempt to teach similar lessons and that Catholic law schools are not uniquely distinctive because of their commitment to such service establishes nothing of any great importance. What is important is why Catholic schools choose to follow the path of service. Clinical and pro bono programs are tangible expressions of the quest for human solidarity and the "hunger and thirst for justice" grounded in the Catholic conception of human dignity.

Finally, the Catholic law school must include within its community, including its faculty, a critical mass of Catholics. This requirement by no means conflicts with the inclusive character of the Catholic law school I have envisioned. That law school invites people from all perspectives to become members of its community and to share in its commitment to unfettered inquiry, and asks only that its non-Catholic members be respectful of the institution’s Catholic mission, and that they seek in good faith to find their own distinctive ways to contribute to the accomplishment of that mission. Nevertheless, there must be a core of Catholic faculty and students committed to that mission. Without this "critical mass" - - a phrase often used in discussions of the implications of Ex corde ecclesiae for faculty hiring⁴⁷ - - it is hard to see how the institution can remain Catholic.

It is crucial, however, to specify what the goal of achieving a critical mass of Catholics (particularly Catholic faculty) really means and does not mean. It does not mean, for example, that the law school should hire only Catholic faculty. It also does not mean "affirmative action" for Catholics. There should never be any desire (or need) to compromise standards of excellence in either hiring faculty or admitting students in order to recruit more Catholics (although the "standard of excellence" should not be interpreted or applied to exclude categorically those committed to religiously - based scholarship and teaching.) It does mean there should be an attempt to search out and recruit outstanding candidates whose Catholic identity will contribute to the law school’s mission, particularly in those subject areas where the expression of a Catholic perspective would be most relevant. It would also be desirable to surround that core with faculty who identify strongly with other faith traditions to foster the type of intensive dialogue that should be the hallmark of the inclusive Catholic law school. In other words, "hiring towards mission" should be regarded by Catholic law school faculties as an important and legitimate aspect of their hiring agendas. Identification as a Catholic obviously should not be a sine qua non for hiring; quality standards should never be compromised, and goals for gender, racial and ideological diversity should be pursued as vigorously as ever, but the importance of preserving a critical mass of faculty whose Catholic identity will help preserve the law school’s Catholic identity should not be forgotten. It should be added, however, that the "critical mass" of Catholic faculty should be committed themselves to an inclusive vision of the law school and to the principle of open and unrestricted intellectual inquiry.

At one time, Catholic universities and law schools did not have to spend a lot of time worrying about what it meant to be "Catholic." With faculties and student bodies overwhelmingly Catholic, with a strong clerical presence, and a sense (at least tacit) of separation from a non-Catholic social and academic mainstream often ambivalent, if not hostile to Catholicism, it was difficult for those institutions not to be and to feel Catholic.⁴⁸ They were also part of the cradle-to-grave network of institutions provided by the immigrant Church⁴⁹ for its people from the late nineteenth century through the middle of the twentieth: the parish church, the parochial schools, the social organizations for men, women and children, the charitable societies, the Catholic colleges and professional schools, the Catholic law firms, the Catholic professional associations and finally, the Catholic funeral homes and cemeteries. These comforting and comfortable institutions eased the integration of immigrant and second generation Catholics into American society, but they also preserved the "otherness" of American Catholics.

With the waning of immigrant identity, the diminishing presence of the clergy, and the very successful integration of Catholic institutions into the American academic mainstream, the easy sense of identity as "Catholic" began to vanish on Catholic campuses. Awareness of that vanishing identity spurred the reconsideration of what it means to be Catholic so prevalent on those campuses today. The sectarian vision of a Catholic law school has emerged from that reconsideration, and provides a compelling image of how one theological tradition can be used to create a law school that serves God through passionate opposition in a society often fundamentally hostile to Catholic values. The sectarian vision, most importantly, reminds us that any law school that calls itself Catholic must define itself as primarily serving God, not Caesar. My quarrel with the sectarian vision, however, is over the question of how the Catholic law school can serve God. My conception of service to God and the Church through open inquiry in an ecumenical community that is not composed entirely of "priestly" believers, and which reflects the liberal academic tradition, cleaves true to Catholic values, and embodies, in particular, the Catholic tradition of service to God in the world.

**Footnotes to be supplied