By PAMELA SCHAEFFER
NCR Staff

Ecclesiastical tremors over the proposed sale of a Catholic university hospital in St. Louis give notice of increasingly strained relationships between the church’s hierarchy and administrators of independent Catholic institutions -- warnings that suggest an unstable bridge on the verge of collapse.

The dispute over the proposed sale of the Jesuit St. Louis University Hospital to Tenet Healthcare Corp. has taken on national, perhaps international proportions.

Jesuit Fr. Lawrence Biondi, president of St. Louis University, argues that the hospital, under terms of the $300 million sale to Tenet, the nation’s second-largest for-profit health care organization, will continue to carry out its Catholic and Jesuit mission.

Some say that’s hard to imagine, given the strong vocal opposition not only of Archbishop Justin Rigali of St. Louis, but of three of the highest ranking members of the U.S. hierarchy.

Rigali wants the university to accept a lower offer of $200 million from a consortium of Catholic hospitals. Trustees have said the university needs the additional money to support its medical school.

Cardinals Bernard Law of Boston, James Hickey of Washington and John O’Connor of New York have backed Rigali in public statements. Experts familiar with the controversy -- most of whom requested anonymity -- say the cardinals’ willingness to publicly denounce a decision of a Catholic university president outside their own dioceses hints strongly at possible Vatican intervention ahead.

A canon lawyer in New York cited a previous, recent incidence of Vatican intervention in negotiations aimed at merging a Catholic hospital with a nonsectarian hospital in New Brunswick, N.J. The merger was off after the Congregation for the Doctrine of the Faith expressed a deal-killing opinion, according to Fr. John Coughlin, a canon lawyer for the New York archdiocese. The two hospitals had been struggling to resolve differences over reproductive services.

If Biondi or the St. Louis University board refuses to budge in the St. Louis dispute, it could become a landmark case. Under civil law, St. Louis University is not church property. While Biondi would be subject to pressures from Jesuit superiors in Rome under his vows of obedience, church officials are limited to moral persuasion in their dealings with the board -- or to public statements suggesting that St. Louis University is no longer “Catholic.” Few in St. Louis think Rigali would go that far.

On the other hand, Vincentian Fr. Michael Joyce, a canon lawyer in St. Louis, said Rigali is “not the kind of man who rattles the saber.” He would not have made his opposition public unless he were “very serious” about affecting the outcome, Joyce said.

“If nothing else, this is putting Catholic institutions in this country on notice that they have to be very careful about these procedures,” he said.

The opposition from the hierarchy signals a broad, growing concern over Catholic identity of institutions founded by religious orders but now in the hands of independent, largely lay boards. The dispute underscores and potentially challenges the freedom from church control that many U.S. Catholic institutions apparently achieved when they transferred control in the late 1960s and early 1970s.

It also underscores the power of an idea -- in this case, a thesis set forth by the late Fr. John McGrath, a canon lawyer at The Catholic University of America -- and of a federal court decision affecting funding for Catholic schools.

McGrath, beginning in 1965, assured Catholic college and university presidents that they did not need permission from the Vatican for changes they were making in governance. He set out his reasoning in a 1968 monograph, “Catholic Institutions in the United States: Canonical and Civil Law Status.”

As for the court decision, the Maryland Court of Appeals ruled in 1966 that grants to “legally sectarian” colleges were unconstitutional. Financial implications of the case, Horace Mann League v. Board of Public Works of Maryland, reverberated through Catholic institutions. Such institutions, particularly colleges and universities, would be greatly affected if denied access to federal money. The ruling propelled changes in governance at many institutions.

Those running Catholic institutions at the time were further convinced by other concerns of the need for change. These concerns included an exodus of talented nuns and priests from religious orders in the decades following the Second Vatican Council of the early 1960s.

Ursuline Sr. Alice Gallin, former executive director of the Association of Catholic Colleges and Universities, traces the history of the radical power shifts in a book called Independence and a New Partnership in Catholic Higher Education (University of Notre Dame Press, 1996). Gallin has been dealing with the questions at least since promulgation in 1990 of Pope John Paul II’s apostolic constitution on Catholic universities, Ex Corde Ecclesiae.

Surprisingly, the hand-overs to independent boards -- and, more recently, the dozens of sales and mergers around the country uniting church institutions and for-profit companies -- have gone virtually unchallenged by church authorities.

Gallin points out that the theology of the Second Vatican Council, which championed the sharing of power with the laity, provided a timely rationale and served college and university administrators well.

By the time McGrath’s thesis aroused alarm at the Vatican, in the mid-1970s, many colleges and universities had severed ties with the religious communities that founded them and had wriggled free of canonical control.

McGrath provided the canonical rationale by arguing that institutions founded by religious orders never were church property, but rather, were held in trust for the public good. Although reservations about the argument surfaced as early as 1967, they were “voices crying in the wilderness,” according to Gallin.

In her book, Gallin describes seven cases involving transfer of control, including that of St. Louis University, one of the first schools to make the shift to an independent board. She cites details of the founding of the school that are undoubtedly preoccupying civil and canon lawyers examining the current controversy over the hospital sale.

The school’s original civil charter, which dates to 1832, did not refer to the Jesuits, according to Gallin, even though, from 1832 to 1967, the trustees were entirely Jesuits. According to the university’s first constitution, the school operated under both civil and canon law.

In 1967, when the transfer to an independent board occurred, Jesuit Fr. Paul Reinert, then-president of the university, first said he planned to request an “indult of alienation” from the Vatican -- that is, canonical permission to make the change. (Gallin said she knows of only one school that actually asked for -- and got -- an indult of alienation: the University of Notre Dame.)

Reinert apparently changed his mind about an indult, but said the bylaws would be written to require the new board to uphold canon law. But when the bylaws were adopted on March 15, 1967, reference to canon law was omitted.

St. Louis University’s Reinert became an adviser to other presidents around the country who were engaged in revising governing structures, Gallin said.

Gallin noted that, as at many institutions, the president’s actions at St. Louis University drew criticism. “For some Jesuits, the reconstitution of the board meant a radical loss of their institution and they blamed Reinert as the doctor who performed the surgery,” Gallin wrote.

As other Jesuit universities around the country began making changes, Jesuit Fr. Pedro Arrupe, superior general of the society in Rome, asked how an institution could be Jesuit in its identity if the society’s officials have no governing role. “Time would show this to be a question oft repeated and almost impossible to answer aside from concrete situations,” Gallin wrote.

Driving the changes at St. Louis and Notre Dame, as well as at many other schools, was a desire to compete academically with secular schools, to create places where “Catholic academic excellence would reign supreme,” Gallin said.

She described a speech by Holy Cross Fr. John Walsh, academic vice president at the University of Notre Dame, who in 1958 told other Catholic educational leaders that when trustees are members of religious orders “the institutional church has the power to control them through their vows and through canon law. ... There is not the necessary freedom from ecclesiastical control, as there must be from any outside force, to enable the university to be autonomous and act independently as a university.”

Church influence in the future would derive from “convictions and dedication” of all who had a stake in the university, including the Holy Cross order, Walsh said.

By the mid-1970s, some church leaders in the United States and in Rome were expressing deep concerns about the McGrath thesis, describing it as unacceptable and hinting that some of the transfers might be canonically invalid. But canonical status of institutions has failed over the years to galvanize sustained attention of U.S. bishops.

Ex Corde Ecclesiae represented an attempt by the Vatican to explore the possibility of restoring some degree of canonical control. Generally, U.S. bishops, collectively recognizing the financial and academic benefits of autonomous schools, have been eager to support the document’s call for stronger Catholic identity but reluctant to impose control.

The recent statements by Rigali, Law, O’Connor and Hickey that St. Louis University’s plan to sell its hospital to a for-profit chain is unacceptable may signal that some church leaders are bypassing the national negotiations and going straight to Rome.

Joyce, the canon lawyer in St. Louis, acknowledged the conflict of values implicit in the debate.

“A lot of people in St. Louis are supporting the archbishop,” he said. “He’s exercising spiritual leadership and fighting to promote values that we Catholics hold dear.

Biondi, on the other hand, is interested in “promoting his university as an academic institution. That’s also a good value,” Joyce said.

National Catholic Reporter, October 31, 1997

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