Catholic Law Schools and the Church Crisis

Catholic Law Schools and the Church Crisis

By John Garvey

In response to the scandal of clergy sexual abuse that has afflicted the American Catholic Church, University President William P. Leahy, SJ, suggested last May that Boston College, as one of America's premier Catholic universities, had an important role to play in studying the causes and cures for this terrible institutional failure. I stress that the failure is institutional because it cannot be explained or excused as a random conjunction of sinful acts by a few deviant priests. To be sure, each of them is personally responsible for his behavior, and should answer to our law as well as God's.

But there must also be a malady within the Church itself if it has permitted this abuse to go on so long and so secretly without taking measures to end it. Diagnosing that is a complicated matter. There is blame enough to go around for bishops, pastors, and seminaries for their failures in training and supervising the offenders. If they had done their jobs as we have a right to expect, much of this would not have happened.

At a university, though, we look at problems on a different level. Are there, below the layer of human errors, causes on the level of ideas? Some issues, like the idea of celibacy or the role of the laity in the Church, are of special interest to departments like Theology or to the Graduate School of Social Work.

But as anyone who has attended to the news accounts knows, it is the legal ramifications of the hierarchy's actions that have attracted the most attention, and on that score there may be no institution in the United States better situated to think about the crisis than Boston College Law School.

Consider some of the legal issues that will arise:

Torts-What is the theory for holding the institutional church liable? Respondeat superior? Breach of fiduciary duty? Negligence? Does the first amendment entail a higher standard of fault?

Criminal Law-Grand juries have been empanelled in a number of places to investigate the conduct of bishops. Prosecutors have suggested theories of culpability ranging from conspiracy to RICO.

Evidence-Are there privileges or immunities that protect church records or conversations against discovery?

Corporation Law-Who within the church has authority to settle claims? What church assets are at risk? Congregational churches are organized on a local basis, and liability is limited accordingly. In the Catholic Church the bishop controls all diocesan property as corporation sole.

Other issues related to bankruptcy, constitutional law and canon law, among other areas, also are likely to arise.

On several occasions I have heard people express concern that the Catholic identity of Boston College and the Law School will require a certain orthodoxy, or suppress unorthodox opinions, among its faculty and students. No school that regulates ideas can justly call itself a university.

Indeed, it is precisely because we are committed to the search for truth in an atmosphere of academic freedom that the Law School can render a useful service to the Church and the cause of justice. It is natural that we should have a particular interest in the intersection of law and religion. (Though this is not our only focus.) But when people address that subject here they do not speak for (or against) the church hierarchy. They follow where their inquiries lead them.

In its intellectual life, a Jesuit, Catholic law school will want to attend to a variety of religiously salient issues. In the last three semesters we have held conferences on the death penalty, on the shift from separationism to neutrality in establishment clause jurisprudence and on tax exemptions for religious groups involved in political activity. We have offered courses on Law and Religion, Canon Law, Jewish Law, the Religious Foundations of Western Law, and The Moral Responsibility of Lawyers. We held a discussion of Religion in the Legal Workplace and hosted several dozen speakers on topics of religious interest ranging from memoirs of a Holocaust survivor to the Communion of Saints. Our interest in The Church in the 21st Century project is therefore a natural extension of the role we can play.

As Boston College Law School has grown in stature and quality, it has celebrated and benefited from a diverse population of students and faculty. In welcoming members from so many cultures and faiths, we do not attempt to suppress differences or conduct our affairs in neutral, secular terms, as might be appropriate in public political life. On the contrary, we are particularly sensitive to the demands that faith makes on our kindred spirits, because we are a school begun by a religious minority.

The clergy sexual abuse crisis hurts because it shows a rift between belief and action; the Law School tries to connect them. Law schools have a special charge to cultivate the virtue of justice. It is incumbent on us to see that we practice, as well as preach, that virtue. Because we are an academic institution, our focus is heavily weighted to the intellectual side. We stress from the first day of first-year orientation the lawyer's ethical obligations. And we strongly encourage our students to incorporate a commitment to public service in their careers.

The current crisis in the Church is an unhappy occasion for reviewing our role as a Catholic institution. But I think we are in a position to render a real service in this affair, because our concern for the welfare of the Church is coupled with those qualities that mark a great educational institution: a commitment to truth, a spirit of free inquiry, an inclusive community, and a love of justice that is personal and not just intellectual.

John Garvey is dean of the Boston College Law School.  

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