From the heart of the church, the colleges, or the commentators?

In the April 2000 issue of the Journal, professor King Alexander and his brother Minton concluded that the Pope's issuance of Ex Corde Ecclesiae poses grave legal problems for Roman Catholic institutions of higher education.1 This 1990 document provides that these institutions, which enroll over 600,000

students in the United States, "make known their Catholic identity" in various ways.2 These ways include subjecting theology professors to the approval of church officials and filling a majority of faculty and board of trustees' positions with "faithful Catholics."3 If the National Conference on Catholic Bishops embraces and enforces this new initiative whole cloth, the result, according to the Alexanders, will be "[lawsuits over free speech, hiring discrimination, and government support for religion."4

First, the Alexanders traced the relationship between these institutions and the Catholic Church for the past thirty-five years, starting with the ecumenical spirit of Pope Paul VI during the 1960s. This ecumenical period was marked by institutional autonomy, diversity, and, at least in the short run, viability. The pendulum started swinging back in the late 1970s, with the election of Pope John Paul II. The culmination was the publication of Ex Corde Ecclesiae, or "From the Heart of the Church," in 1990, as an overall guideline for Roman Catholic institutions of higher learning. Although the Roman Catholic Church in the United States has not yet approved this Vatican initiative as official legislation, in November 1999 the United States Bishops overwhelmingly passed IMAGE FORMULA 2IMAGE FORMULA 3a modified version, and only two organizational levels remain for such approval.5

Next, after summarizing the ups-and-downs of the Establishment Clause jurisprudence in relation to parochial educational institutions,6 the Alexanders reported that "67% of students attending Roman Catholic institutions receive federal and state aid assistance, while only 43% of public college and university students receive aid."7 They concluded that the changes called for in Ex Corde Ecclesiae, if strictly implemented, would cause these institutions to become "pervasively sectarian,"8 and that the added effect of this "significant portion" of governmental fiscal aid would place a "heavy burden" on these institutions to argue against an Establishment Clause violation.9 Revealing their viewpoint, the Alexanders characterized these developments as hopeful for the re-construction of the eroded "wall of separation" between church and state.10

In the accompanying Counterpoint, Professors Charles Russo and David Gregory characterize the Alexanders as legitimate strict separationists and their articles as "a desperate, last gasp."11 Russo and Gregory suggest that the Alexanders represent "the secular regime, liberal democratic state," but that ultimately, as a policy matter, the implementation of Ex Corde Ecclesiae will revitalize not only Catholic colleges, but also the entire nation. As a constitutional matter, they maintain that vigorous effectuation of these guidelines is "completely defensible" in light of the accommodationist movement of the Supreme Court.12

Whether, as Russo and Gregory advocate, accommodationism is and should be the law of the land depends on one's heart as well as one's mind. Reading their recitation of church and court doctrine in tandem with the Alexanders makes the choice clear and relatively unequivocal.