Saturday, October 01, 2005

Professor Rice shares his personal views on relevant issues facing AMSL


FROM: Prof. Emeritus Charles E. Rice

TO: Ave Maria School of Law (AMSL) Chairman, Dean, Students, Faculty, Staff and Alumni

SUBJ: Comment on issues

DATE: January 10, 2006

In the context of my ejection from the Board of Governors, I have been asked by various members of the AMSL community to state my personal views on some relevant issues. I have decided to do so to prevent misunderstanding and to emphasize that my disagreements with the Chairman, the Dean and other members of the Board are authentic differences of perception and judgment. In my opinion, all the persons involved are acting in what they see as the best interests of AMSL. This memo implies no personal criticism of anyone. Having said that, and subject to that limitation, I venture to state my views with candor.

When AMSL was founded we all understood that Thomas S. Monaghan intended to provide the funding for a university and that affiliation of AMSL with that university would be a possibility when and if such proved to be in the best interests of AMSL. Ave Maria College in Ypsilanti, Michigan, was founded as the potential nucleus of that projected university before AMSL was founded. As an accredited law school, AMSL must be governed only by its designated governing body which is the Board of Governors. The AMSL Board has a mandate to be a governing body and not an advisory council to any person or persons. It owes a fiduciary duty to AMSL and its community to make decisions on the basis of one criterion – the best interests of AMSL. It was never understood that AMSL’s affiliation with a university, the location of AMSL, or any other question, would be determined at the will or influence of any person or persons other than the Board acting in the best interests of AMSL. If the Board were to subordinate those interests to another agenda or to the will or influence of another person or persons, such would be unethical and illegal. I am confident that all involved will agree that AMSL ought not to be governed, in any respect, as a sole proprietorship whether it is controlled directly or through a resident agent.

Mr. Monaghan’s initial and extremely large financial commitment made it possible for AMSL to begin and succeed as it has. However, we ought not to overlook the fact that the initiating concept for AMSL and the initial, substantial donations, from their own personal resources, came from four members of the AMSL faculty, Associate Dean Joseph Falvey and Professors Mollie Murphy, Richard Myers and Stephen Safranek. They approached Mr. Monaghan with the idea of the law school and backed that idea with their own large donations. Mr. Monaghan’s very large benefaction has earned him the gratitude of the AMSL community. But Mark xii, 41-44, the parable of the widow’s mite, should remind us that sometimes a smaller contribution can have greater significance. Mr. Monaghan’s Ave Maria Foundation continues, on a decreasing scale, its support of AMSL. But, as I am sure all will agree, AMSL cannot be described as Tom Monaghan’s law school. Without discounting Mr. Monaghan’s indispensable contribution, it must be noted that hundreds of people, including students, faculty, staff and alumni – and their families – have made personal, career and family commitments to the mission and future of AMSL. Those commitments, founded on trust, are more important, in the context of a Catholic law school, than any financial commitment. All those members of the AMSL community have compelling interests, including the right to be kept fully informed, which must be fully recognized in the making of any decisions as to the future of AMSL. I am sure that all involved, including Mr. Monaghan, will agree on these points.

The projected location of AMSL, at the projected campus of Ave Maria University (AMU) contiguous to Ave Maria Town (AMT), raises significant constitutional issues. Ave Maria Town would be officially a local government or it would be a privately owned “town” performing a “public function”. In either case it would appear to be a state actor subject to the Fourteenth Amendment and therefore bound by the Bill of Rights, including provisions relating to speech, association and religion.1 AMT would not seem to be merely a privatized “common interest community.”2 Even the naming of the town as “Ave Maria”, could be subject to challenge as a religiously motivated selection. Other city names, such as Los Angeles and San Antonio, are different because they have long since lost their religious significance. Incidentally, Florida, like other states, is a “nude dancing” state. An effort to zone out such an establishment, or an “ Ave Maria Hooters,” could be subject to challenge as a religiously motivated enactment as indicated by the symbiotic relationship between the town and AMU.

A speech by Mr. Monaghan, in May, 2004, at a conference on business ethics, as described by Naomi Schaefer Riley, would seem to substantiate these concerns. “‘We’ll own all commercial real estate,’ Mr. Monaghan declared, describing his vision. ‘ That means we will be able to control what goes on there. You won’t be able to buy a Playboy or Hustler magazine in Ave Maria Town. We’re going to control the cable television that comes in the area. There is not going to be any pornographic television in Ave Maria Town. If you go to the drug store and you want to buy the pill or the condoms or contraception, you won’t be able to get that in Ave Maria Town.’ . . . . ‘There are not many out there who are really authentic Catholics,’ he said in the same speech. Creating them ‘is what I plan to do in the rest of my life.’”3 Mr. Monaghan’s expectations appear to be inconsistent with settled interpretations of the First and Fourteenth Amendments. In my opinion, an attempt to mold a community according to Mr. Monaghan’s stated intention would be likely to be held unconstitutional. It would also be imprudent.

The letter in the Wall Street Journal of Nov. 28, 2005, signed by Dean Dobranski, Paul Martinelli of Barron Collier Companies and Nicholas J. Healy, President of AMU, but not by Mr. Monaghan, leaves these constitutional concerns unresolved, particularly in light of the responding letter from AMSL alumni Chris McGowan and John M. Dejak in the December 14, 2005, Wall Street Journal.

It is fair to note here also that the “entwinement,” “entanglement” and “symbiotic relation” of AMU and Ave Maria Town could conceivably subject AMU itself to the Fourteenth Amendment and to Bill of Rights restrictions with respect to admissions, faculty hiring, recognition of a “pro-choice” or “gay rights” club, etc.4

It is not certain how these potential constitutional issues would be decided in the courts. But that is the point. Unless and until they are resolved favorably, any commitment to uproot this well established, phenomenally successful law school and place it in the midst of such an unproven enterprise, which could be potentially embroiled in unpredictable and extended litigation, would be, in my opinion, a gross imprudence.

If AMU were a different institution, say, St. Patrick’s University, and if it were in the same location and in the same organizational stage with the same plans as AMU, and if it were beset by the same contention and uncertainty that still beset AMU, it is difficult to imagine that any rational member of the AMSL community would conceive the idea of uprooting this successful AMSL and moving it to the presently nonexistent campus of that unproven St. Patrick’s University. Perhaps some might consider such a move for AMSL because, unlike our imaginary St. Patrick’s University, AMU is the concept of the main financial benefactor of AMSL. Perhaps some might think, “It’s Tom Monaghan’s law school. He has a right to do what he wants with it.” But, as noted above, and as Mr. Monaghan would surely agree, AMSL is not Tom Monaghan’s law school. Or perhaps some might think that if AMSL does not so move, Mr. Monaghan’s Ave Maria Foundation (AMF) will terminate any further funding commitment to AMSL so as to use its resources elsewhere (as it would have the right to do). It is not at all clear, however, that AMSL could not obtain replacement funding if AMF publicly so terminated its commitment. Moreover, any decision to move to Collier County in Florida, not because such a move would be objectively in the best interests of AMSL but instead because of a feared loss of AMF funding, could convey to AMSL students the message that the most important consideration in evaluating professional options is to avoid disturbing the money flow. A Catholic law school should have a better idea.

Those who propose a move of AMSL to Collier County have the burden of proving that such a move would sufficiently benefit AMSL in comparison with the continued growth and achievement of AMSL in Ann Arbor. AMSL has achieved unprecedented success. But now, in the uncertainty and disorientation created by the recurrent focus on Florida, the momentum has been diminished. The disruptive effects of the Florida focus are multiplied by the general realization in the AMSL community that the proposed move involves, in effect, a potential subordination of the interests of AMSL to the interests of another institution and agenda.

At the very least, a move of AMSL ought not even to be considered until AMU has clearly proven its viability by objective criteria, including the graduation of the first class which had enrolled for its first year at the campus at AMT, and until all the potential legal and constitutional obstacles have been finally and favorably resolved. AMU at AMT in Collier County does not yet exist in fact. AMU is conducting classes in a temporary facility in Naples, but that is not the ultimate destination envisioned for AMSL. It would be wholly irrational to consider moving AMSL to Collier County until there is a functioning university to receive it. AMSL ought not to be uprooted and transplanted to the Everglades in the hope of jump-starting an unproven and problematic university/town enterprise.

The overall bottom line is that there is no conceivably rational basis to conclude that a relocation to Florida would be in the best interests of AMSL now or at any foreseeable time.

I emphasize again my opinion that all those involved in deciding these issues are acting in what they see as the best interests of AMSL. My disagreements reflect differences of perception and judgment. Nothing in this memo should be interpreted otherwise or as a personal criticism of anyone.

1 See Marsh v. Alabama, 326 U.S. 501 (1946).
2 See Paula A. Franzese, “Privatization and Its Discontents: Common Interest Communities and the ‘Rise of Government for the ‘Nice,’” 37 The Urban Lawyer 335 (2005).
3 Naomi Schaefer Riley, “Bringing a Law School Down.” Wall St. Journal, Nov. 11, 20025, p. W-11.
4 See Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961).


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