The Vatican Congregation for Catholic Education temporarily lifted a decree that had taken away the…
Case of Indianapolis high school may decide the oversight roles of bishops
Earlier this year, on June 21, Archbishop Charles C. Thompson withdrew the permission granted to Brebeuf Jesuit Preparatory School to call itself a Catholic school in the Archdiocese of Indianapolis after the school had refused to separate from a teacher who is in a same-sex marriage. In doing so, the archbishop used his executive power of governance. Against such singular administrative decrees, recourse can be made to the competent higher administrative authority, in this case, the competent dicastery of the Roman Curia. It is like recourses being made against decrees to merge several parishes or to relegate a church to profane but not sordid use, although the department of the Roman Curia handling the case, of course, is different.
The Midwest Province of the Society of Jesus (the Jesuits) started a hierarchical recourse against this decree of Archbishop Thompson. A first, mandatory, step was to ask the archbishop to rescind his decree — a request he obviously declined. The Jesuits then took the recourse to the next level, which is the Congregation for Catholic Education — the competent dicastery or department of the Roman Curia to hear this recourse, as they oversee Catholic education and schools — to overturn the decree.
In the earlier stages of the controversy, it was clear that the archbishop and the archdiocese on the one hand and the school and the Jesuits on the other had a different view about the involvement of the archbishop in school governance matters. At the heart of the dispute is the meaning of the right of the diocesan bishop to watch over and visit the Catholic schools in his territory (Canon 806.1). That right of the diocesan bishop and the scope of his vigilance have always been interpreted as limited to ensuring that a correct teaching is offered with regard to faith and morals. But it does not mean that the diocesan bishop can get involved in governance matters of this school run by religious. Religious, in particular when they are of pontifical right, have a high(er) degree of autonomy.
Last week, on Sept. 23, word got out that the Congregation had suspended the execution of the decree. The suspension of the execution of a singular administrative decree is highly exceptional. Only in a limited number of cases does the recourse suspend the execution of the decree by the law itself. Such would be the case for recourse made against an administrative decree imposing a penalty, a decree dismissing a member of a religious institute, a society of apostolic life or a secular institute. The Indianapolis school matter clearly does not fall within the scope of these cases. Therefore, there was no automatic suspension of the decree that came with the recourse itself. In other words, an affirmative action of the Congregation was needed: The Congregation had to grant the suspension, otherwise the decree could be executed. The suspension of the execution of a decree is only granted if two conditions are fulfilled — namely, if there is a fumus boni iuris, meaning there must be some probability that the recourse will be or can be successful, and if the damage caused by the execution of the decree is irreparable. While this suspension is temporary — that is, until the Congregation makes a final determination on the recourse itself — it is nevertheless exceptional since such a suspension is rarely granted during recourses.
In the midst of the ideological colonization of this particular case, one particular yet important element was totally overlooked. Greater oversight comes with greater responsibilities, or, to put it in more legal terminology, greater oversight comes with greater liability. As long as the oversight is limited to what is taught in the classroom on faith and morals, the diocesan bishop and the diocese are fine. That is different when a diocesan bishop tries to interfere in the governance of the school based upon certain actions or behavior. His interventions — or lack thereof — increase the liability of the bishop and the diocese. If indeed a bishop can order a school run by religious to dismiss a teacher, that same bishop also has the power to intervene, let’s say, when students are abused by teachers. If he fails to act, he and the diocese for sure will be on the hook when the liability question is put on the table.
Whatever the outcome of the case, the decision of the Congregation for Catholic Education will be an important one, because the Congregation will have to settle the degree and level of oversight a diocesan bishop has over schools run by religious and because that decision may also have civil legal consequences. That said, the Congregation’s decision may not be the final one. Further recourse is possible to the Supreme Tribunal of the Apostolic Signatura, the highest tribunal in the Church that deals with matters of violation of the law only. And, last but not least, when all is said and done, or even before, an intervention of the pope is always possible, too.
Kurt Martens is an ordinary professor of canon law at The Catholic University of America.