Catherine Mahern
Associate professor and director,Creighton University’s Abrahams Legal Clinic, Creighton U. School of Law
Heartland III
May 23, 2000

In mulling over ideas for our presentation for today, both Larry Raful and I found that we had many experiences that exposed a conflict with the perceived mission of the University.  Although it is impossible to determine a seamless definition of our mission and our Jesuit identity, we do know one thing:  we are all human, and flawed, and sometimes we will fail our mission.

My perspective of the Catholic nature of the “Catholic” University stems, in part, from my own history.  My upbringing was so Catholic as to be a caricature.  I was one of ten children.  There was Catholic elementary and high school for us all.  The rosary was said often.  Each December we had an Advent calendar and the Advent wreath and candles.  I gave up candy every Lent.  I distinctly recall the middle-of-the night awakenings to go with my father to the far side of town to our old parish, St. Catherine’s, for perpetual adoration, for which my father would sign up for those hours that no one else wanted.  There were the pagan babies we adopted and named for deceased loved ones.  Of course there was church on every Sunday and holy day of obligation, where I often had a tissue bobby-pinned to my head because I forgot my mantilla.  I remember us hauling the big statue of Mary down to the entranceway of our house every May, and surrounding it with ant-infested peonies, and crowing the Virgin Mary with one of my mother’s gaudier bracelets.  My mother was a writer for the Criterion, the local Catholic newspaper (writing, of course about the only subject acceptable, that being the wonders of raising a large family).  And did I mention dysfunctional?

I was told in so many ways and for so many years that my choices in life were that I could become a teacher, or a nurse, until, of course I married.   Now this was not just the Catholic school teachers who told me this, but also all the television shows I was so addicted to, and the example my mother set for me.  Another alternative was that I could enter the convent.  It was apparently okay that I didn’t understand math.  I remember the day and the lesson we were on, when I came to understand that math was optional for girls.  It was the multiplication of fractions that confused me so, when I asked for help I was told it was okay that I didn’t understand math.  But what I heard that day was that, as a girl, I did not matter, I was not worth this teacher’s effort.  I remember in fifth grade writing a paper on “what I want to be when I grow up.”  I wrote that I would be the first nun on the moon.  I remembered the pictures I saw in school of the missionary nuns in exotic places, in darkest Africa and deepest China.   I felt this was the only way to become an astronaut, as the Catholic Church would surely have a presence on the moon.  

My exuberance was beaten out of me.  And my faith was extinguished by the Catholic Church’s lack of relevance.  By age 16, I was a high school drop out and a general pain in the rear.  I had become a studied misanthrope.  Mostly I was just mad at the world, with a big wad of it directed at the Catholic Church. I had become a chronic liar and spent most of my waking hours participating in suspect recreational activities

But somewhere along the line a seed was planted in me.  Maybe it was the Holy Spirit, and perhaps it was the seed of discontent.  Nonetheless, it was only after many years that the seed was able to grow and I was able to return to the faith of my youth.  Last night at the opening ceremony one of the speakers talked about how far some of us had come to be here.  Boy was that an understatement about me, even though I live only a few blocks from the University.  That distance I have traveled to get here has been made possible because I have come to believe my role as a Christian is to participate and to move in the direction I see as meeting our Christian ideals.  But to say that I am cynical of the Catholic Church is an understatement.  But I cannot be heard from the outside, so I returned, and I remain within.  

So, in my work here at Creighton I have an unhealthy, and overdeveloped sense for unchristian behavior.  So please, as I speak, remember, I am a cynic and malcontent, looking to get even.

In preparing for today I had several conversations by phone and e-mail with colleagues at other Catholic and Jesuit colleges and universities to discuss conflict between the university and the mission.  Some people expressed persistent problems and others expressed few.  But even the few that saw little or no actual problem, there was a feeling that it could strike at any time. 

As the director of the Legal Clinic at Creighton I have the distinct pleasure of having a job that is mission itself.  Every day I have the opportunity to reach out into our communities and help those in need.  More importantly, I have the opportunity to expose students to the beauty of helping others.  At the Legal Clinic at Creighton, we represent all manner of low-income clients.  Many of our clients are members of minority communities, many of our clients are disabled, either physically or mentally, or both.  Our goal in the clinic is not just to let our students gain experience as lawyers on this rather captive community of clients, although learning fundamental lawyering skills is critical.  We strive to teach fundamental values such as the duty to zealously advocate for a position, not our own.  We hope to teach our students to value the client and work to overcome the cultural barriers that exist between our students and the clients that may otherwise interfere with our representation.  One value that we hope students learn is the promotion of justice, and their obligation as lawyers to seek justice, even where the cause is unpopular.

As Father Callahan wrote in his article “Coming to Terms with the Mission: The Catholic University in America,” he points out that “the Catholic University must have the courage to speak uncomfortable truths which do not please public opinion, but which are necessary to safeguard the authentic good of society.”  This sounds good and right.  But in practice don’t we bend to public opinion?  After all, public opinion influences reputation and ultimately influences our donors, prospective students, faculty and administrators.  Each of our schools have public relations staff for the very purpose of influencing public opinion favorably.  Can we be true to the ideal of promoting justice where the cause is unpopular if our very existence may depend on favorable public opinion?

In 1993, when the Legal Clinic opened its doors, on of our first clients was a young Hispanic man whose girlfriend of nine years gave up his two youngest children for adoption and refused to tell him where they were.  My students at the time were shocked at his loss and the injustice that occurs when someone in this position is expected to navigate the legal system alone because he had no money.  The loss of one’s children is something none of us hope to experience.  My students were motivated to bring forth this issue to me and ask that we represent this man.  The Clinic was band new.  I had just become licensed in Nebraska.  I didn’t know the courts or the judges here.  I didn’t know the law.  I was hoping to start with small, uncontroverted cases, and to very slowly work our way to more complex cases.  But I was touched by my students’ sense of walking the walk.  I knew that this kind of case had the potential for negative publicity, but I found that I was in a poor position to argue against accepting this case.  The case went on for years with no publicity.  But when the case finally reached the Nebraska Supreme Court, someone decided that this was a case that should be decided in the court of public opinion.  There were numerous articles, editorials and letters to the editor published.  The television media had a field day.  Many of the articles focused on my client and his less positive attributes.  But some editorials and letters to the editor focused on the fact that the Creighton Legal Clinic was representing this man.  One news program called “you paid for it” did a segment on the clinic and the fact that it had at one time received federal funding.  Taxpayers should be outraged that their tax dollars went to representing such bums as my client.  I received threatening phone calls.  Apparently some people find it threatening to have this poor Hispanic man empowered with a couple of law students.   My biggest contribution to minimizing the public relations nightmare was to refuse to speak to the press and instructing my client and his family to do likewise.  

At the next board meeting of the directors of the university someone on the board asked for a copy of the criteria for accepting cases for the Legal Clinic.  When I was asked for a copy for a board member, I knew what was up.  I felt a little threatened.  Someone was not happy about our representation of this client.  Our public relations people were not happy.  Finally, Fr. Morrison, our president, received a letter from the prospective adoptive parents, deriding the university and the legal clinic for assisting this man.  I was accused of having a hidden agenda.  Fr. Morrison wrote back to these people a letter that expressed to me the ideals of the Jesuit University.  He acknowledged the pain that all of the parties felt in this case.  He cited the need to advocate for the poor, even in unpopular causes.  He promised to pray for all those involved, especially the children, and the judge deciding the case, as well as for a fair and just outcome.  
 During this time I felt as though I were on the edge of a negative publicity tornado. But it was the Jesuit ideals that were the calm center of the storm. This was the place I could go to review my participation in this case, and the direction I would take this matter for my client.  This was a place I could go to acknowledge the pain I experienced from this case.  This case was like being in the middle of your own parents’ ugly divorce for several years.  Each time I was sick of my client, or of the opposing side; when I was disgusted with our legal system, or of myself,  I had a place to go and refresh myself.  Many times over the years this case lasted, I had many a conversation with students on how to carry on when things looked grim, how to tell a client they may never see a loved one again.  I hope that my students learned about the importance of having a core of values to rely on in their practice and in their lives to get them through the tough times.

Although I have no doubt that the public relations people hope I never take a case like this again, and hope that I can keep away from the unpopular causes, I have never once been told by anyone in the university that I should desist from representing any person or position.  Now that doesn’t mean that everyone is happy.  I have heard about the grumbling of some of my colleagues and even from some students.  Tornadoes have a tendency to pick up a lot of trash.  In fact, some students in the Clinic had asked not to be assigned that case because they knew all about it from the press and didn’t want to represent such a person.  Of course, this meant I had to assign this case to them  After only meeting their client once, their feelings had turned 180 degrees. They had to acknowledge that they were so wrong to judge this person, and that his cause was a worthy one.  

This case, which lasted some 5 years, is the case for which I receive the most feedback from students long-since graduated.  This case had a lasting impact on many of these students.  One former student, then working in Grand Island drove to Lincoln while she was eight months pregnant to hear oral arguments on this case before the Supreme Court, and on the hope that she could see her old client and tell him not to give up.  Even though she had graduated nearly two years before, this case still had an impact on her.
 
Father Callahan further spoke in his article about the need for official actions and commitments of the University to be in accord with its Catholic identity.  But are we as catholic institutions consistent in this?  At St. Mary’s in San Antonio, Janet Reno was rejected by the law school dean as graduation speaker for the reason that as U.S. Attorney General she might be in the position of defending the right to abortion, a position clearly not in accord our Catholic identity.  One year later, and the speaker chosen and approved by the dean of the law school was the Attorney General of Texas, who boasts of his record for having put to death a record number of people, and who has not merely presided over these cases but actively pushed them through the system.  One cannot accept the first decision and accept the second decision and be in accord with the Catholic teachings on the continuum of life.  What message is communicated to the students, the university community, the catholic community and the larger community when we are inconsistent with our catholicness?  It is not without cause that we are often referred to as cafeteria Catholics, picking and choosing that which we will believe in and discarding the rest.  Leaving us open to the criticism we so richly deserve.

 I am sure that we all know that the university does not live in a vacuum and must compete in this world and as such take on some of the trappings of a business.  But we must never abandon our special identity, even as we move to welcome a diverse population of students representing other religious beliefs.  Our future depends on maintaining this unique identity; otherwise, we will become just another university.  But there is much pressure to be like other schools.  And it can be hard in this day and age for a person in a university, or anyone for that matter to be open about one’s faith.  A judge, praying with a jury before going to render judgment in a brutal murder case is not acceptable.  Prayer in public school is not acceptable.  If not at a Jesuit university, then where can we speak in our god voice?  How do I express to my students the profound impact that God has on my life in our unique Jesuit setting?  I feel as though I must be careful not offend other or lose credibility because others will think I am flaky.  I feel called to act in accordance to the Catholic identity of the university.  I feel this calling in my work as an attorney, as a professor and as a member of the Creighton Community.  But I often make mistakes in deciding the right thing to do, or in how to approach the University if I think it is doing the wrong thing.   
 
I want to tell a story, about Creighton and my work.  It is not intended as an airing of dirty laundry, except perhaps my own failures.  But I want to tell the story about how the mission was lost in a business decision.  A few years ago I represented a couple in a rather complex case involving a lawsuit in another state.  As is typical in cases of some complexity and length, I had the opportunity to visit my clients’ home.  In fact the condition of the home would, be relevant to the case.  My clients clearly wanted the chance to clean their home before I arrived, and with three children, I understood them not wanting an unexpected visit.  When they finally asked me to come see their home, it was clear that every effort had been made to make it clean and comfortable.  But in spite of the efforts made, one could not hide the fact that they were living in substandard housing.  A tread was missing from one of the basement steps, the porch railing was rotted, there was exposed wiring in many places. My clients could only lock their house from the inside, which meant every time they left home, it was left unlocked and anyone could enter.  I got the name of the person my clients’ rented from and gave him a call.  I advised him of the deficiencies in the property and asked him to repair them.  He blamed all the problems on the tenants, which is what I always hear.  I reminded him of his obligation under the law to provide safe accommodations to his tenants.  He promised to look into it.  Weeks went by and I again went to visit my clients.  But this time I  nearly gagged.  In the basement was about a foot of standing sewer water.  You see, in the older parts of Omaha we have a single sewer system for both waste water and the storm sewer system.  This means that when we have terrible rains and the storm sewer is beyond its capacity, water will back up into the basements of the homes in the area.  This is not clean water, but water that is hazardous and most disgusting.  Since it brings in muddy water into basements, the dirt will percolate down and clog the basement drains.  Now, in addition to the water backed up into the basements, everything that was on the basement floor is now floating around in filthy sludge.  Repeated attempts by the client to get the landlord to fix the drain went unanswered.  Her home was clearly unfit for human habitation, and with three small children in the home, it was dangerous.  My clients, who lived on the edge of poverty, had no money to pay rent and a deposit for another place to live.  It was at this time that I learned that the person I spoke to before was the property manager, but that Creighton University was the owner of the property.  I was shocked and embarrassed at any connection between the university and this property.  

Now normally when I find my client in this kind of housing situation I would immediately call the City Planning Office to have an immediate inspection of the property.  I was sure this place would be found unfit for human habitation and the property would have been placarded as such.  But I felt that I shouldn’t turn in my own employer, and I was sure that I could find a way within the University to improve my clients’ housing situation.  But sadly I was not able to make it happen.  I even employed Dean Raful to call property manager to ask him to fix the problem.  Nothing happened.  I called the person on campus that was identified as being responsible for university property.  There was a little movement, the drain was eventually cleaned, and the exposed electrical wires were removed.  None of the other problems were fixed.  The property manager denied knowing of any other problems and that any other problems were due to the tenants.  

Looking back I ask myself where my duty lay in this case.  I made the mistake of thinking my duty to my client was to turn the property in to the authorities but that my duty to Creighton was to work within the University.  I wanted to be a good employee, I wanted to do things in a  nice way.  No one in the University said I had to follow this course of action.  But most frustrating for me was my sense of powerlessness over what the University was doing (not just to my client).    It isn’t as though I think there is some evil plan on the part of the University to be a slum landlord, and in fact I think most people in the University are blissfully ignorant of the fact.  The fact that the University purchases property near the university for future expansion is just good business sense.  Obtaining income on that property until such time as we need it in the future is also good business sense.  Not every action of the University need be mission driven.  But if we think we can separate out our catholic identity from the business decisions, we are wrong.  If we are going to be landlords, let us provide housing that meets or exceeds the minimum dwelling standards.  Let us give dignity and respect to out tenants.

Ultimately I am disappointed in myself for having worried more about my job and my employer, than zealously advocating for my client.  I think that the Jesuit ideal would call for me to zealously represent the needs of this impoverished family.  Creighton can take care of itself -  this family could not.  

I was saddened by the fact that someone was in control of this matter, and I didn’t know how to reach that person or change his or her behavior.  I realized at some point that when it comes to academic questions of any importance that I can speak to my dean or the vice-president for academic affairs.  If I have a fiscal problem, I know to call the budget office or grant administration.  If I have a student with academic or personal problem, I know to call student services.  But where do I call if I see a problem with the University failing its mission in some way.  To every person I did speak to about the problem I felt like I was some little splinter in their foot.   Who is the responsible person that a student, staff person, or faculty member can go to mission complaints?  Perhaps we need a mission ombudsman who will assume the duty of holding everyone in the University accountable to the mission when an issue arises.    Our institutions can become bureaucracies, and we can become just another gear.  Like me, we can end up being more concerned about the institution than about the mission of the institution.  Just as I do not want to sabotage the University, neither do I want decision of the University to sabotage the mission.  Each of us needs to each develop the ability to confront ourselves as well as the University, to keep true to our Catholic and Jesuit identity. Thank you.