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THE JOURNAL OF COLLEGE AND UNIVERSITY LAW SYMPOSIUM ON EX CORDE ECCLESIAE Introduction John H. Robinson Out of the Heartburn of the Church James T. Burtchaell, C.S.C. Toward Diverse Diversity: The Legal Legitimacy James D. Gordon III of Ex Corde Ecclesiae W. Cole Durham, Jr. The American Civil Corporation, the “Incorporation William W. Bassett Movement” and the Canon Law of the Catholic Church Giving Legal Life to the Ex Corde Ecclesiae Norms: Nicholas P. Cafardi Corporate Strategies and Practical Difficulties “What We Have Here Is a Failure to Communicate”: D.R. Whitt, O.P. The Mind of the Legislator in Ex Corde Ecclesiae Tales of Two Cities: Canon Law and Constitutional Edward M. Gaffney, Jr. Law at the Crossroads Ex Corde Ecclesiae and Mission-Centered Hiring Robert J. Araujo, S.J. in Roman Catholic Colleges and Universities: To Boldly Go Where We Have Gone Before ARTICLE IRS Intermediate Sanctions: How They Will Impact Colleges and Universities Milton Cerny Catherine E. Livingston BOOK REVIEWS Review of Alan Charles Kors’ and Harvey A. Silverglate’s The Shadow University Jonathan R. Alger Review of Annette Kolodny’s Failing the Future: A Dean Looks at Higher Education in the Twenty-First Century Ronald L. Johnstone PUBLISHED BY THE NATIONAL ASSOCIATION OF COLLEGE AND UNIVERSITY ATTORNEYS AND THE Mfayo qy NOTRE DAME LAW SCHOOL VOLUME 25 SPRING 1999 NUMBER 4 NATIONAL ASSOCIATION OF COLLEGE AND UNIVERSITY ATTORNEYS The National Association of College and University Attorneys (NACUA), established in 1961, is a non-profit organization serving the needs of attorneys representing institutions of higher education. NACUA now serves nearly 3000 attorneys who represent more than 1,400 campuses (about 668 institutions). The Association’s purpose is to improve the quality of legal assistance to colleges and universities by educating attorneys and administrators on legal issues in higher education. NACUA accomplishes this goal through its publications, conferences and workshops. NACUA also operates as a clearinghouse for references through which attorneys share knowledge and work products on current legal problems. With its headquarters in Washington, D.C., NACUA monitors governmental developments having significant legal implications for its member institutions, coordinates the exchange of information concerning all aspects of law affecting higher education, and cooperates the exchange of information concerning all aspects of law affecting higher education, and cooperates with other higher education associations to provide general legal information and assistance. Accredited institutions of higher education in the United States and Canada are the prima- ry constituents of NACUA. Each member institution may be represented by several attorneys, any of whom may attend NACUA meetings, perform work on committees, and serve on the Board of Directors. Approximately one-third of NACUA member institutions are private, non-profit institutions of higher education with enrollments below 5,000 students and current fund expenditures below $50 million per year. Collectively, these institutions enroll approximately 880,000 students. The remaining member institutions, whose budgets range up to $5 billion per year, collectively enroll more than seven million students. NACUA 1998-99 Board of Directors President Melinda Grier Oregon State Board Mary Ann Connell University of Mississippi of Higher Education President-Elect Kenneth Andre McKanders.......... Eastern Michigan William R. Kauffman Saint Louis University University First Vice-President 1997-2000 Pamela J. Bernard University of Florida Henry L. Cuthbert University of Second Vice-President Wisconsin System Edward N. Stoner II Franciscan University Charles (Nick) Estes, Jr. ...........:..:esces0 University of of Steubenville New Mexico Ronald C. Leadbetter University of Tennessee Secretary Steve Milam University of Washington Mary Anne Smith Illinois Institute Michael D. Sermersheim University of Akron of Technology 1998-2001 Treasurer Dayton T. Cole University of North Carolina Lawrence White Georgetown University Stephen J. Hirschfeld University of Immediate Past President San Francisco S. Andrew Schaffer, Kaye L. Koonce Trident Technical College 1997-98 Jew York University Margareth Schubert Loyola University of Chicago Members at Large Georgia Yuan University of Idaho 1996-99 Francine T. Bazluke University of Vermont Thomas A. Butcher Grand Valley State University Barbara F. Geffen University of Tulsa NOTRE DAME LAW SCHOOL Notre Dame Law School, the oldest Roman Catholic law school in the United States, was founded in 1869 as the nation’s third law school. The Notre Dame program educates men and women to become lawyers of ex- traordinary professional competence who possess a partisanship for justice, an ability to respond to human need, and a compassion for their clients and colleagues. Notre Dame Law School equips its students to practice law in every state and in several foreign nations. The school raises and explores the moral and religious questions presented by the law. The learning program is geared to skill and service. Thus, the school is committed to small classes, especially in the second and third years, and emphasizes student participation. In order to further its goal of creating lawyers who are both competent and compassionate, Notre Dame Law School is relatively small. The Admis- sions Committee makes its decisions based on a concept of the “whole per- son.” The Law School offers several joint degree programs, including M.B.A./J.D. and M. Div./J.D. Notre Dame Law School is the only law school in the United States that offers study abroad for credit on both a summer and year-round basis. Instruction is given in Notre Dame’s own London Law Centre under both American and English professors. Notre Dame Law School serves as the headquarters for The Journal of College and University Law. The Center for Civil and Human Rights, the Institute for International Peace Studies, the National Institute for Trial Advocacy and the Thomas J. White Center on Law and Government all enrich the Notre Dame Law School experience. The University of Notre Dame The Notre Dame Law School Offices of Administration Officers of Administration President Dean Rev. Edward A. Malloy, C.S.C., Ph.D. David T. Link Provost Director of the Law Library Dr. Nathan O. Hatch, Ph.D. and Associate Dean Executive Vice President RASS. ee Rev. E. William Beauchamp, C.S.C. Associate Dean Vice President-Senior Associate Provost Fernand N. Dutile Rev. Timothy R. Scully, C.S.C. Associate Dean . : : Jimmy Gurulé Executive Assistant to the President " Rev. Mark L. Poorman, C.S.C. Assistant Dean Vice President and Associate Provost Rev. James E. McDonald, C-S.C. Dr. Jeffrey Kantor Vice President and Associate Provost Dr. Carol Ann Mooney THE JOURNAL OF COLLEGE AND UNIVERSITY LAW 1998-99 Editorial Board Abigail Byman, Chair Barbara A. Lee General Counsel Professor of Human Resource University of Scranton Management Rutgers, The State University Fernand N. Dutile of New Jersey Advisory Member Associate Dean David T. Link and Professor of Law Advisory Member, Ex Officio Notre Dame Law School Dean and Professor of Law Notre Dame Law School John Gaal Bond, Schoeneck & King Michael A. Olivas Syracuse, New York William B. Bates Professor of Law University of Houston Law Center Edward von Gerichten Assistant Counsel John H. Robinson Brown University Advisory Member Professor of Law C.K. Gunsalus Notre Dame Law School Associate Provost University of Illinois Michael D. Sermersheim Urbana-Champaign Associate Vice President and General Counsel, Ex Officio William P. Hoye University of Akron Advisory Member Associate Vice President Brian A. Snow and Counsel General Counsel Concurrent Professor of Law Colorado State University Notre Dame Law School William A. 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It is published quarterly by the National Association of College and University Attorneys, Suite 620, One Dupont Circle, N.W., Washington, D.C. 20036 and indexed to Callaghan’s Law Review Digest, Contents of Current Legal Periodicals, Contents Pages in Education, Current Index to Journals in Education, Current Index to Legal Periodicals, current Law Index, Index to Current Periodicals Related to Law, Indes to Legal Periodicals, Legaltrac, National Law Review Reporters, Shepard’s Citators, and WESTLAW. POSTMASTER: Send changes of address requests to The Journal of College and University Law in care of William S. Hein and Company, Inc., 1285 Main Street, Buf- falo, NY 14209-1987. Periodicals postage paid at Washington D.C., and at additional mailing offices. Copyright © 1999 by National Association of College and University Attorneys Cite as — J.C. & U.L. — Library of Congress Catalog No. 74-642623 Except as otherwise provided. 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Hein and Company Inc.) THE JOURNAL OF COLLEGE AND UNIVERSITY LAW Volume 25 Spring 1999 Number 4 SYMPOSIUM ON EX CORDE ECCLESIAE Introduction John H. Robinson Out of the Heartburn of the Church James T. Burtchaell, C.S.C. This article sketches the political context from which Ex Corde Ecclesiae emerged, then it describes its most controversial provisions and the reaction to them in American Catholic academia. It then takes up the draft implementing norms that are currently under discussion and offers a resolution to the issues that appear to divide the academics and the hierarchy. In doing this the article reviews the shift in the Supreme Court’s Establishment clause jurisprudence that has taken place in recent years and makes practicable suggestions regarding how Catholic colleges and universities could become accountable to the hierarchy while maintaining their appropriate autonomy. Toward Diverse Diversity: The Legal Legitimacy of Ex Corde Ecclesiae James D. Gordon III W. Cole Durham, Jr. The authors explore issues raised by Ex Corde Ecclesiae from their perspective at Brigham Young University, a university owned by the Church of Jesus Christ of Latter-day Saints (the “Mormons”). The authors detail various ways in which the linkage between BYU and the LDS Church is even closer than that contemplated by Ex Corde Ecclesiae. They review pertinent religious exemptions to laws governing employment discrimination, typical contract issues, academic freedom questions, and issues of accreditation, and conclude that the implementation of Ex Corde Ecclesiae would not raise significant legal problems. The American Civil Corporation, the “Incorporation Movement” and the Canon Law of the Catholic Church William W. Bassett After sketching the papal suppression of modernist thought early in this century, the author examines the legal implications of the incorporation movement of the late sixties and early seventies. In that movement, Catholic colleges and universities distanced themselves structurally from their founding religious communities by incorporating under boards of trustees on which lay persons played a substantial role. A contemporary analysis of this movement ascribed to it an epochal significance as a matter of both civil and canon law. In this article, the author contests that analysis, arguing that these restructured entities remained Catholic for both civil- and cannon-law purposes, and, in particular, that the incorporation movement had no effect upon the inclusion of American Catholic higher education in the general provisions of canon law. For that reason, the author concludes, Ex Corde Ecclesiae and its implementing norms are surely applicable to American Catholic colleges and universities. The debate, he argues, should focus instead on whether or not it is prudent at this time in the history of those institutions for them to be subjected to the sort of episcopal oversight envisioned in the current draft norms. Giving Legal Life to the Ex Corde Ecclesiae Norms: Corporate Strategies and Practical Difficulties Nicholas P. Cafardi This article addresses one basic issue: Assuming that the draft norms on “Ex Corde Ecclesiae” are adopted by the bishops, what legal steps will Catholic colleges and universities need to take in order to implement them and what if any legal difficulties will this implementation create? The author finds that an initial hurdle in the implementation of the norms will be the willingness of sponsoring religious institutes and the boards of directors of Catholic colleges and universities to do so. Without their cooperation, the bishops have no internal power in these corporations to accomplish this implementation. The legal steps required by the norms, which are enumerated in the article, are neither that many nor that involved, once a decision has been made by the proper corporate authority to move forward. Despite predictions to the contrary, the author sees no serious difficulty with either federal civil rights laws, federal aid statutes or independent accrediting association requirements in the implementation of the norms. Nonetheless, the author states, the legitimate concerns of the academy in the implementation of the norms should be taken into account in the bishop’s final action on the draft norms.