Dec. 2001 Interview with Douglas W. Kmiec, Dean of the Columbus School Law, The Catholic University of America
OGC: Dean Kmiec, now that you have had a bit of time to settle in as Dean of the Catholic University School of Law, can you address what goals you have for the Law School?
DWK: The CUA Law School is the national law school of the Catholic Church in America. My primary goal is first, to convey that point before every relevant constituency, and second, to ensure we are worthy of that designation and trust both in academic excellence and articulation of authentic faith. My secondary goal, is resources. Our law school has a venerable history, an energetic present, and a very bright future, but we are also tuition dependent and this holds us back in scholarship assistance, endowments for institutes and professorships, and library and faculty expansion. With over 8 applications per seat, our challenge is not finding good students. Instead, our immediate challenge is to raise the overall academic quality of both the full and part-time divisions, while attracting young faculty who appreciate the Catholic mission of the university and its importance to the pursuit of a professional calling. In addition, we are already raising our visibility with timely participation and thoughtful contribution to the resolution of national and international problems in the law. Students come to CUA Law both because we are in Washington, D.C., the center of the legal and policy world, and because they want a professional education anchored in timeless values that reflects the inherent dignity of the human person.
OGC: The Catholic University of America is uniquely positioned in terms of its relationship with the Vatican. Do you believe this creates an obligation for this University to set an example of how a university can intertwine faith and reason in accord with Ex Corde Ecclesiae? And how would that play out in the law school?
DWK: Yes, it most certainly does. And it is not so much an obligation, as a gift. Very little of this life, including the law, makes sense without faith. Faith and reason, as the Holy Father so ably has instructed, are collaborators, not competitors. How does it play out? In who we hire, what we teach, how we live and treat each other and our students, and how willing we are to take up other people's burdens. You see it in the Masses offered in our chapel. The Law School Family Mass, the dean's course on Catholic Social Teaching, Jurisprudence and the Law (now required of all first year law students), advanced elective course work of a similar vein in any one of a half dozen sub-disciplines, our vast clinical offerings giving emphasis to the needs of the elderly, the poor, and the abused, the scores of speakers and conferences that go on within our building that are organized around ethical considerations, and the fact that more than ever before, we understand profoundly the significance of the Church's teaching that the creature disappears without the Creator.
OGC: As a constitutional scholar, Washington, D.C. offers a fertile ground for use of your abilities. You testified before the Senate Judiciary Committee on the anti-terrorism legislation, which became the U.S. A. PATRIOT ACT. Do you see this legislation as bringing about any significant changes at the college and university level?
DWK: Not directly. I do think that the present circumstances do call upon universities to be more conscientious in the monitoring of the immigration status of their foreign students. This is not a new obligation, but it has been a neglected one. Universities have a duty to be vigilant in this regard as a matter of citizenship. I expect CUA to be an exemplar.
OGC: The U.S. Supreme Court will be hearing oral argument in the case of Zelman v. Simmons-Harris in the next few months. The Court will be asked in that case to decide if the Ohio Pilot Project Scholarship Program is constitutional. The Ohio program offers vouchers to parents of students from low-income families who are in a failing school district, in this instance Cleveland. (A voucher is a certificate that entitles the student to a certain value of educational expenses.) The vouchers can be used to attend Cleveland private (both religious and non-religious) schools, to attend a public school in an adjacent district, or to receive private tutorial help in the Cleveland schools. The Sixth Circuit Court of Appeals held that this program was unconstitutional as applied, as many of the participating schools were religious, and allowing the state money to go to the religious schools was in violation of the Establishment Clause of the First Amendment. The holding is in direct conflict with the Wisconsin Supreme Court decision in Jackson v. Benson, 218. Wis. 2d 835 (1998). Could you address the topic of school choice?
DWK: I have written widely on this subject. The issue of school choice was -and in more peaceful, less terrorized times- might still be headline news. While naturally overshadowed by the tragic events of September 11 and the various assaults upon American sovereignty and peace of mind ever since, the dispute over school choice is perhaps the most studied and awaited case on the Court's docket this term.
The contending positions, of course, are old ones, and both revolve around the First Amendment obligation not to establish religion. In the founding period, this proscription surely meant no national church, no favoritism for one sect over another and no coercion to worship, or refrain from worship, in particular ways. Beginning in the latter half of the 20th century, however, the constitutional limitation was construed by the Court to mean more, namely, the preclusion of secular assistance to religious schools that were rather derisively labeled as "pervasively sectarian." See, e.g., Meek v. Pittenger, 421 U.S. 349 (1975) and Wolman v. Walter, 433 U.S. 229 (1977), both invalidating state programs providing various instructional equipment, such as maps, as well as other assistance like bus transportation for field trips originating from religious schools.
Meek and Wolman were ultimately questioned in Agostini v. Felton, 521 U.S. 203 (1997) which sustained the provision of substantial remedial instruction in subjects like English and math on religious school premises by public school teachers. Moreover, both cases were largely overruled in Mitchell v. Helms, 120 S.Ct. 2530 (2000) which upheld the neutral allocation of computers and like equipment to religious and nonreligious school alike. A plurality of the Court in Mitchell led by Justice Thomas, opined that what matters is whether the aid is evenhandedly allocated and whether the aid is suitable for use in either a religious or public school. What doesn't matter -- at least to Justice Thomas and the Court plurality -- are formalisms like whether the aid is directly given or whether it is subsequently put to some religious use or whether the aid is used by the teacher, rather than the student. Such things do matter to Justices O'Connor and Breyer who separately concurred in Mitchell to insist that there be reasonable protections in place against the diversion of secular assistance to religious purposes.
OGC: Do you see significant differences between the question presented in the Zelman case and the questions presented in Mitchell v. Helms (530 U.S. 793)?
DWK: Zelman v. Simmons-Harris is unlike the prior cases insofar as it involves not incidental or supplementary help, but a scholarship for tuition. The scholarship program emerged as a result of the financial and educational melt-down of the Cleveland public school system. In 1996, the state auditor declared the Cleveland public schools to be in an unprecedented financial crisis, with only 9% of 9th graders able to do work at that grade level. The state legislature enacted a K-8 scholarship program aimed primarily at families with incomes below 200% of the poverty line.
Worth up to $2500, the scholarship may be directed by the parents to any private school, religious or nonreligious, within the boundaries of the Cleveland school district. Theoretically, the scholarship could have also been applied to any suburban public school, but none chose to participate. This lack of participation is odd, since any suburban public school that did participate would get not only the $2500 scholarship, but an additional sum in excess of $4000 which is the normal public school allotment per student enrolled. Is this implicit favoritism of the public side of the equation? Perhaps, but it certainly gives lie to the notion that it is the private school that is elitist or creaming the crop of the best. Be that as it may, no suburban public school opened its program to the inner city, and largely minority, students, and as a consequence, of the 56 participating private schools, 46 had a religious affiliation.
Does the fact that most of the private schools participating were religious render the Cleveland scholarship program unconstitutional under the Establishment Clause?
The Ohio Supreme Court, following the lead of two other state Supreme Courts -Wisconsin and Arizona- that sustained other similar scholarship programs, found no establishment violation. Simmons-Harris v. Goff, 711 N.E. 2d 203, 211 (Ohio 1999). In a separate federal challenge, the Sixth Circuit in a 2-1 decision disagreed. Simmons-Harris v. Zelman, 234 F.3d 945 (6th Cir. 2000).
The Ohio court reasoned that the scholarships were available to all parents on a neutral basis, and that was good enough. When the federal constitutional argument was taken up anew in the Sixth Circuit, however, the court relied upon Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756 (1973) to strike it down. The dissent and scholarship supporters, however, find Nyquist wholly inapt insofar as assistance in that case was available only to parents with children attending private schools. To the majority, Nyquist is claimed to be relevant because in striking down the private school tuition reimbursement, the Court stated that there [were] no restrictions on the religious schools as to their use of the tuition fund-- the funds may be used for religious instruction or materials as easily as for erasers and playground equipment. 24 F. 3d at 949. This is true here as well, say the opponents of the Ohio plan.
The potential religious use of public funds has been an especially knotty area for Justice O'Connor who is sensitive to any perceived endorsement, particularly as it might make a hypothetical reasonable observer feel excluded or of secondary status. This prompted her (and Justice Breyer) to write separately in Mitchell. For both, neutrality of allocation was not enough since actual diversion of aid directly given to religious schools for religious uses must not be allowed unless it results from the literal exercise of private choice.
OGC: How do you think the Court might rule in this case?
DWK: The supporters of school choice are depending heavily upon the italicized language above stated in the concurrence in Mitchell. At least at some level, both Justices O'Connor and Breyer subscribe to the caveat. As they wrote in Mitchell, when government aid supports a school's religious mission only because of independent decisions made by numerous individuals to guide their secular aid to that school, [n]o reasonable observer is likely to draw from the facts ... an inference that the State itself is endorsing a religious practice or belief. 120 S.Ct. 2530 at 2559. Last term, in Good News Club v. Milford Central School, 121 S.Ct. 2093 (2001), allowing equal access by a Bible Club to a public school classroom, Justice O'Connor was untroubled, presumably because the students came to the club only with parental permission. Justice Breyer was less convinced, wanting more facts to make sure there were sufficient competing secular or nonreligious activities to avoid an impermissible endorsement. This suggests that to him, at least, the unwillingness of the suburban Ohio public schools to participate in the voucher program (and the failure of the Ohio legislature to mandate it) might tip the balance against the program since it leaves an inference of endorsement in the school choices remaining.
Alas, the devil is in the facts or details, and for a religious school seeking to participate equally in public assistance that might still be a problem to Justice Breyer and the three other Justices likely to dissent (Ginsburg, Souter, and Stevens). The betting, however, is that Justice O'Connor's vote in this instance will be on the side of the angels.
OGC: The Supreme Court has stated that in applying the Establishment Clause it has sacrificed clarity and predictability for flexibility. Do you agree? Do you see the Court as moving any closer to clarity on this issue?
DWK: Yes, as explained above, I think the nondiscrimination position articulated by Justice Thomas is historically correct and workable. No establishment under the Constitution should mean: no coercion and no favoritism, but not antagonism or exclusion. That's where the Court seems to be headed, and that is for the good.
OGC: What have you enjoyed the most about your new position?
DWK: The dedication of the faculty and staff to the success of CUA Law. There are many veteran scholars here, and they have seen the program through both good and not so good times. My reward thus far is in their excitement and enthusiasm for our renewed sense of mission, for our commitment to excellence, and their unceasing willingness to help the new fella do good. You can't ask more than that.
Last Revised 05-Aug-08 10:28 AM.
