Academic Freedom and Tenure THE CATHOLIC UNIVERSITY OF AMERICA1 he case investigated by the undersigned by the Middle States Association of Colleges and committee contains much that is unusual in Schools since 1921, when the Middle States Associa- the Association's experience. It involves, first tion began its work. Its theological program is ac- of all, a professor—the Reverend Charles E. credited by the Association of Theological Schools in TCurran—who has not been dismissed from the United States and Canada. his position but who, with conditions imposed upon The By-Laws of the University—previously called his teaching that he considers unacceptable, has cho- Statutes—place "ultimate responsibility for governance sen to take a leave of absence and teach elsewhere. Al- and sole responsibility for fiscal affairs of the Univer- though the events of primary interest in the case oc- sity" in a board of trustees. The board has forty elected curred within the past three years, they can best be members, divided between twenty laypersons and understood in the context of a history spanning more twenty clerics, sixteen of whom must be members of than two decades. The case has been the subject of two the National Conference of Bishops. Three elected books and of countless magazine and newspaper arti- faculty representatives are permitted to attend board cles both in this country and abroad, and aspects of meetings without vote and without the right to par- it have been argued at length before a faculty commit- ticipate in executive sessions. The Archbishop of tee and a superior court; few Association cases, it may Washington serves ex officio as chancellor of the univer- be said, have been so widely publicized or so profusely sity, and both he and the president of the university, documented. Finally, the case arose and developed at who is elected by the board, serve ex officio as mem- a university with a governance structure that has no bers of the board. The present chancellor is James exact counterpart in this country, even among other Cardinal Hickey. The president is the Reverend Wil- Catholic institutions. liam J. Byron, S.J., who was elected to his office in The Catholic University of America, proposed in 1982. 1884 by the Catholic bishops of the United States, was The by-laws also provide for an academic senate, established as a national university in 1887 with the which shares with the president "the immediate approval of Pope Leo XIII, and was incorporated in the responsibility for the academic governing of the District of Columbia in the same year. Providing gradu- University by establishing, maintaining, supervising ate studies in theology from the beginning, it has ex- and in general being responsible for the academic poli- panded over the years to include nine faculties or cies of the University." Senate actions require the schools and a University College, with more than 7,000 president's approval, in the absence of which the sen- students and 400 faculty members. In 1900, when it ate may submit any matter directly to the board. was one of the fourteen American institutions offer- The chancellor has a special relationship with the ing doctoral degrees, it became a member of the As- university's three ecclesiastical faculties: the School of sociation of American Universities. It instituted under- Philosophy, the Department of Canon Law, and the graduate programs in 1904, and it has been accredited Department of Theology. Since 1981, these faculties have been governed by a set of "Canonical Statutes," 1The text of this report was written in the first instance by the mem- which require that the president, as the final step in bers of the investigating committee. In accordance with Association practice, the text was then edited by the Association's staff, and, the appointment of an individual to an ecclesiastical as revised, with the concurrence of the investigating committee, was faculty, forward all relevant information to the chan- submitted to Committee A on Academic Freedom and Tenure. With cellor for the conferral of a canonical mission or for per- the approval of Committee A it was subsequently sent to the faculty mission to teach. Those who teach disciplines in these member at whose request the inquiry was conducted, to the adminis- tration of The Catholic University of America, to the chapter presi- faculties relating to faith and morals must have a ca- dent, and to other persons concerned in the report. In the light of nonical mission, which entitles them "to teach in the the responses received and with the editorial assistance of the As- name of the Church"; others, including non-Catholics, sociation's staff, this final report has been prepared for publication. must have the chancellor's permission to teach. Once ACADEME September-October 1989 27 granted, the canonical mission or permission to teach university's by-laws. Professor Curran, a tenured may be withdrawn by the chancellor for "only the professor in the Department of Theology, was thus most serious reasons," with the affected faculty mem- considered to be subject to these regulations.2 ber entitled to due process in accordance with the THE BACKGROUND Professor Curran was graduated with a Bachelor of lished a five-member board of inquiry to determine Arts degree from St. Bernard's College, Rochester, whether the faculty members had violated their New York, in 1955, and continued his studies at responsibilities to the university or their commitments Rome's Pontifical Gregorian University, which as teachers of theology or other sacred sciences. After awarded him the Licentiate in Sacred Theology in 1959 an exhaustive investigation, including the interroga- and the Doctorate two years later. In 1961 he was also tion of thirty-eight witnesses and the examination of awarded the Doctorate in Sacred Theology by the over 3,000 pages of material, the board of inquiry is- Academia Alfonsonia in Rome, with a specialty in sued its report, which was endorsed unanimously by moral theology. He began his teaching that fall at St. the Academic Senate.3 Although the report, known as Bernard's Seminary, where he was Professor of Moral the Marlowe Report, was received by the board of Theology, and in 1965 he was appointed to an assis- trustees on April 13, 1969, the board did not approve tant professorship in the Catholic University of or disapprove it. In June of that year, the board of America's School of Theology, which later became the trustees did vote to "accept" the report's finding that Department of Theology in the School of Religious the twenty faculty members had acted with academic Studies. His teaching was in the field of moral theol- propriety, and it took no action against them. ogy. In articles and in his first book, Christian Morality The board of inquiry found that the July 30 statement Today, published in 1966, Professor Curran established represented "a responsible theological dissent" from himself as a scholar who subjected accepted views, in- the teaching of the encyclical and that its contents and cluding noninfallible teachings of the Church, to care- style were well within the bounds of academic propri- ful scrutiny and did not hesitate to publicize his con- ety. "The right of a theological scholar," it asserted, clusions. An interest in sexual ethics led him "to dissent from noninfallible teachings of the specifically to dissenting views on such subjects as magisterium [the collective teaching authority of the abortion, birth control, and homosexuality. He was Catholic Church] is well documented, most recently later informed that the Sacred Congregation for the in the 15 November, 1968, pastoral letter of the Ameri- Doctrine of the Faith, the Church's guardian of theo- can Bishops."4 A faculty member's right, it added, to logical correctness, had opened a "docket" on him determine the content of his public statement without during this period. fear of reprisal, even though the statement may em- In the spring of 1967 unanimous recommendations barrass the institution in its relationship with various by the School of Theology and the Academic Senate constituencies, "cannot be challenged." The board of that Professor Curran be reappointed and promoted inquiry also asked the university to assure the aca- to an associate professorship were rejected by the demic community that it would not in the future re- university's board of trustees, the large majority of sort to even a threat of suspension, much less actual whom at that time were bishops. The events that fol- suspension, without first according the faculty mem- lowed constituted a landmark in the history of Ameri- ber academic due process. can higher education. Responding promptly to the It recommended that, in the future, similar cases be board's rejection, faculty members in the School of dealt with according to the norms of academic freedom Theology denounced the board's action as a violation contained in the 1940 Statement of Principles on Academic of academic freedom and voted to withhold their teach- Freedom and Tenure, the 1958 Statement on Procedural ing until the board rescinded it. By a vote of 400-18, Standards in Faculty Dismissal Proceedings, the 1964 Com- the full faculty followed with a similar resolution, and, mittee A Statement on Extramural Utterances, and the with the students joining in the strike, the university 1967 "Report and Draft Recommendation of a Special was effectively shut down from April 19 to April 24. Committee on Academic Freedom in Church-Related On the 24th, the chancellor, Patrick Cardinal O'Boyle, Colleges and Universities." As the most suitable norms announced that the board had rescinded its decision. for institutions at which theology is taught, it cited Professor Curran was accordingly promoted to an as- those of the Association of Theological Schools, which sociate professorship and given a three-year contract.