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Catholic Colleges, the Courts, and the Constitution: A Tale of Two Cases

  • Joseph Richard Preville (a1)


Of the forces that have shaped contemporary American Catholic higher education, few have been more generative or influential than the proceedings of two court cases which tested the constitutionality of direct government aid to sectarian and church-related colleges and universities. These two court cases were Horace Mann League v. Board of Public Works (1966) and Tilton v. Richardson (1971). The impact of these judicial rulings over the radical transformation and substantive reform of American Catholic higher education during the past quarter of a century is the subject of this article.



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The author expresses appreciation to retired professors Marianne and Antonio Gaboury of Montreal, Canada, for their valuable contributions to this research.

1. Horace Mann League v. Board of Public Works, 242 Md. 645, 220 A.2d 51, cert. denied, appeal dismissed, 385 U.s. 97 (1966); Tilton v. Richardson, 403 U.S. 672 (1971).

2. Leo Pfeffer (1909–) is recognized for his persuasive role in shaping the modern judicial interpretation of the religion clauses of the First Amendment to the United States Constitution. As Wisconsin Professor David Fellman has observed recently, “It is no exaggeration to assert that he is one of the principal architects of church-state law in our time” (“How High the Wall of Separation? Pfeffer on Religion and the State,” American Bar Foundation Research Journal 1 [1986]: 123). For a complete listing of Leo Pfeffer's writings and the cases in which he participated, see Wood, James E. Jr, ed., Religion and the State: Essays in Honor of Leo Pfeffer (Waco, Tex., 1985). The author of the present article is writing a biography of Mr. Pfeffer.

3. Joint Record Extract at 521–522, Horace Mann League v. Board of Public Works, 242, Md. 645, 220 A.2d 51, cert. denied, appeal dismissed, 385 U.S. 97 (1966) (hereafter cited as Joint Record Extract).

4. Cathotic Standard and Times 18 December 1964.

5. Washington Post, 13 September 1963.

6. Duckett's, Judge opinion may be found in Joint Record Extract at 5879.

7. Horace Mann League v. Board of Public Works, 242 Md. 645, 670, 220 A.2d 64, cert. denied, appeal dismissed, 385 U.S. 97 (1966).

8. Ibid. at 672, 220 A.2d at 65–66.

9. Ibid. at 683, 220 A.2d at 72.

10. Gallagher, Francis X., “Observations Arising from the Horace Mann Case,” Proceedings and Addresses, 63rd Annual Meeting, National Catholic Educational Association(Aug. 1966):232, Archives of the National Catholic Educational Association, Washington, D.C. (hereafter cited as NCEA Archives).

11. The Horace Mann ruling persuaded administrators at Catholic institutions to tone down or excise overtly sectarian language from college catalogues. At Jesuit Fairfield University, for example, a bold and colorful declaration of the institution's Catholicity (“The Credo of Fairfield University”) in the 1966–67 catalogue was replaced the following year by a bland and only slightly religious mission statement (“The Objectives of Fairfield University”). Fairfield University President Rev. William C. Mclnnes, S.J., urged other changes in the college's catalogue as well, such as minimizing references to the Society of Jesus and the church. (See Rev. McInnes, William C. S.J, “Reflections on our Catalogue considering University changes, ecumenical movement, and Church-State problems,” 28 11 1966, The Presidential Papers of Rev. William C. McInnes, S.J., Nyselius Library, Fairfield University, Fairfield, Connecticut).

12. Proceedings, Commission on Colleges and Universities, 13–15 01 1967, p. 7, Jesuit Educational Association Collection, Boston College, Chestnut Hill, Massachusetts (hereafter cited as JEA Collection).

13. The national movement toward lay trustees at Catholic colleges and universities was also sparked by the proceedings of the Second Vatican Council (1962–65). Vatican II elevated the role of the layperson to full and equal partnership with clergy and religious in the apostolates of the church. In the “Dogmatic Constitution on the Church,” the council declared that “all share a true equality with regard to the dignity and to the activity common to all the faithful for the building up of the Body of Christ” (Abbott, Walter M. S.J, ed., The Documents of Vatican II [New York, 1966], p. 58). The council's views on the role of the layperson were affirmed by the Society of Jesus at its international Thirty-First General Congregation, held between May 1965-November 1966: “According to the mind of the Second Vatican Council, a close collaboration with the laity is recommended.… Therefore, we should consider handing over to them the roles they are prepared to assume in the work of education, whether these be in teaching, in academic and business administration, or even on the board of directors” (Documents of the 31st and 32nd General Congregations of the Society of Jesus [St. Louis, 1977], pp. 237238). The new spirit unleashed by Vatican II yielded an unprecedented debate on the character and organizational structure of Catholic higher education, expressed forcefully in the famous “A Statement on the Nature of the Contemporary Catholic University,” or, as it is known popularly, the “Land O'Lakes Statement.” Signed by twenty-six prominent North American intellectuals and educators at a seminar sponsored by the North American Region of the International Federation of Catholic Universities at Land O'Lakes, Wisconsin, on 23 July 1967, this document addressed a few of the major problems facing Catholic higher education. “Institutional autonomy and academic freedom,” the document argued, “are essential conditions of life and growth and indeed of survival for Catholic universities as for all universities.” The Land O'Lakes Statement also encouraged a restructuring of the organizational patterns governing Catholic colleges and universities (College Newsletter, College and University Department of the National Catholic Educational Association, September 1967, NCEA Archives).

14. “‘Identity Crisis’ on the Catholic Campus,” Newsweek, 27 June 1966.

15. Current Issues in Catholic Higher Education, Sponsorship/Partnership, 1984 Annual Meeting Papers 4, 2 (Winter 1984), Association of Catholic Colleges and Universities, Washington, D.C. See also Stamm, Martin J., “The New Guardians of American Catholic Higher Education: An Examination of Lay Participation on the Governing Boards of Roman Catholic-Affiliated Colleges and Universities” (Ph.D. diss., University of Pennsylvania, 1979).

16. “New Board of Trustees at Saint Louis University,” Catholic Mind (03 1967): 14.

17. “Sharing the Power,” Newsweek, 6 February 1967.

18. Ibid.

19. “Roman Catholicism: A Louder Voice for Laymen,” Time, 3 February 1967.

20. Rev. Friedman, C. W., “Report of the Executive Secretary, College and University Department,” 15 04 1971, NCEA Archives.

21. Rev. McGrath, John J., Catholic Institutions in the United States: Canonical and Civil Law Status (Washington, D.C., 1968), p. 33.

22. Valente, William D., “The Strange Case of Horace Mann,” NCEA Bulletin, Aid to Education: Fact Vs Fiction, 05 1969, p. 12, NCEA Archives. (For a frontal attack on the John J. McGrath thesis, see Cessna, Ruth, Esq., “John J. McGrath: The Mask of Divestiture and Disaffiliation?” Archives of the Association of Jesuit Colleges and Universities, Washington, D.C., 1971).

23. Gellhorn, Walter and Greenawalt, R. Kent, “An Independent Fordham? A Choice For Catholic Higher Education,” 08 1968, p. 208, Fordham University, Bronx, New York. Commissioned by Fordham Unviersity, this independent study was designed to assist the urban Jesuit university to achieve legal parity with other New York private colleges in the competition for direct state aid. In this report Gellhorn and Greenawalt offered sixteen recommendations, including the laicization of the board of trustees, to escape the New York Constitutional ban on the use of public funds in the aid of any institution “wholly or in part under the control or direction of any religious denomination.” Citing the John J. McGrath thesis, Gellhorn and Grenawalt urged the separate incorporation of the university's Jesuit community. To the chagrin of Fordham's administrative officials, Leo Pfeffer was selected as a consultant to the authors of this study. This study was published as The Sectarian College and the Public Purse, Fordham: A Case Study (Dobbs Ferry, N.Y., 1970). After reading the original study Rev. Charles Whelan, S.J., asserted: “I do not see how any university that honestly executed the Gellhorn recommendations could seriously call itself Catholic”; America (16 11 1968): 479.

24. Gellhorn, and Greenawalt, , “An Independent Fordham?” p. 209.

25. Title 1 of the Higher Education Facilities Act of 1963 authorized grants to aid insitutions of higher learning in the construction of academic facilities (classrooms, laboratories, libraries, and related structures) necessary or appropriate for instruction or research in the natural or physical sciences, mathematics, modern foreign languages, engineering, or for use as a library. Facilities designed for sectarian instruction, religious worship, or those connected to divinity schools were deliberately excluded under the terms of the Act.

26. Flast v. Cohen, 392 U.S. 83 (1968).

27. Leo Pfeffer's successful oral argument before the United States Supreme Court in Flast has been used as an instructional aide at the Law School of Georgetown University. Citing it as “an example of effective oral advocacy,” Pfeffer's argument was reprinted in The Law Club Handbook, published by the Barristers' Council of the Georgetown University Law Center, 4th edition, 1978. Pfeffer's opponent in Flast was Solicitor General Erwin N. Griswold, who previously served as dean of the Harvard Law School for twenty-one years (1946–1967).

28. Rev. A. William Crandell, S.J., to Presidents of Jesuit Colleges and Universities, 27 August 1968, Tilton v. Richardson Collection, Nyselius Library, Fairfield University, Fairfield, Connecticut (hereafter cited as Tilton Collection).

29. The Tilton Suit and its implications were discussed at a meeting of Jesuit college presidents in Denver in October 1968. For a summary of the discussion, see “Pfeffer vs. Fairfield,” Proceedings, Commission on Colleges and Universities, 11–12 10 1968, pp. 1011, JEA Collection.

30. John M. Hickson (Vice President for Business and Finance of Fairfield University) to George Mahan, S.J. (Executive Assistant to the President), 14 October 1970, Tilton Collection.

31. For a case study of Tilton v. Richardson, see Preville, Joseph R., “Catholic Colleges and the Supreme Court: The Case of Tilton v. Richardson,” Journal of Church and State 30 (1988): 291307.

32. Rev. Robert Drinan, S.J., to Rev. William C. Mclnnes, S.J., 2 October 1968, Tilton Collection.

33. Rev. Michael Walsh, S.J., to Rev. William C. Mclnnes, S.J., 23 October 1968, Tilton Collection.

34. Rev. C. W. Friedman to Presidents of U.S. Catholic colleges, 25 July 1969, Tilton Collection.

35. Proceedings, Commission on Colleges and Universities, 11–12 01 1969, p. 8, JEA Collection.

36. “Confidential information concerning Boards of Trustees and Separate Incorporation of Jesuit Communities,” 25 October 1967, JEA Collection. (Today, 71 percent of the Jesuit religious communities at the twenty-eight American Jesuit colleges and universities are separately incorporated.

37. Tilton v.Finch, 312. F. Supp. 1191 (1970).

38. Tilton v.Richardson, 403 U.s. 678 (1971).

39. 403 U.S. 679 (1971).

40. 403 U.s. 681 (1971).

41. 403 U.s. 683 (1971).

42. 403 U.S. 687 (1971).

43. 403 U.S. 687–88 (1971).

44. 403 U.S. 689 (1971).

45. In the spring of 1985 the Vatican Office of the Sacred Congregation for Catholic Education released a “Proposed Schema (Draft) for a Pontifical Document on Catholic Universities” to American Catholic colleges and universities. Composed without the consultation of either the U.S. Bishops Committee on Education or the Association of Catholic Colleges and Universities in Washington, D.C., this Vatican document proposes greater control by ecclesiastical officials over the internal affairs of American Catholic colleges. The Schema proposes, for example, that faculty members be selected and tenured on the basis of ambiguous tests of “doctrinal integrity” and “uprightness of life.” Citing Tilton v. Richardson, prominent American Catholic educators informed Vatican officials that their document would surely jeopardize one-half billion dollars a year in government aid that the 235 American Catholic colleges receive. The Board of Directors of the Association of Catholic Colleges and Universities disputed the Vatican assumption that American Catholic colleges maintained a juridical tie with either the pope or local bishops. For the text of the Vatican Schema and the American Catholic reaction to it, see The Chronicle of Higher Education, 26 March 1986. For the second draft of the Vatican Schema, see Origins, 22 December 1988.


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