Concordia University Texas Litigation Resumes

Posted on by T. R. Halvorson

The Lutheran Church—Missouri Synod filed a civil lawsuit against Donald Christian, Christopher Bannwolf, and Concordia University Texas, Inc. on September 1, 2023. As with most court cases, the filing of the complaint that begins the lawsuit is not the beginning of the story. It is a step in the middle of the story.

A majority of the board of regents of the university, under the leadership and influence of the board chairman and the university president, threw off the control, doctrine, and ownership of the university by LCMS on November 8, 2022. Without authority, they amended the university’s governing documents, denied any control of the synod’s school by the synod, denied the right of the synod to elect and appoint members to the board of regents, and declared that they alone would determine the extent to which they would retain the doctrine of the synod.

The endnote[1] lists my essays and interviews about the context leading up to the filing of the complaint. As we will see in this article, after the filing of the complaint, there has been a suspension of the litigation during an interval of mediation. The mediation has not produced a settlement. Now the litigation resumes.

In 45 years of experience with litigation, I have observed many times that at a juncture like this, memories have tended to fade, and as a result we can be susceptible to misjudging one or another of the parties when we hear about a mediation that did not produce a settlement. For that reason, it is important to firstly keep some key context freshly in mind before we look at the mediation and the resumption of litigation.

In the Missouri Synod, the synod in convention is the supreme and final legislative body. There is no appeal from the synod in convention. Rather, all appeals are to the synod in convention. (These propositions are, of course, said humanly speaking. The synod in convention has no power to decide or declare anything contrary to Scripture or the Lutheran confessions.)

This past summer, the synod in convention overwhelmingly adopted Resolution 7-03. Before doing so, the convention delegates were amply informed of all matters surrounding the situation at CTX. They had enough time to digest the information and assess its significance. The delegates voted to suspend the ordinary rules of the convention so that CTX President Dr. Christian could address them. Dr. Christian stated again his purported justifications. Now at this moment when mediation has ended and the litigation resumes, it is important to recall what the convention resolution says.

Resolved, That the Synod in convention affirm CCM Op. 23-3006 in its entirety; and be it further

Resolved, That the Synod in convention affirmatively conclude that the CTX BOR members who voted in favor of the April 4, 2023 action that affirmed the CTX BOR’s purported separation have acted in direct conflict with the Constitution and Bylaws, as well as CCM Op. 23-3006; and be it further

Resolved, That the Synod in convention affirmatively conclude that the CTX president and those CTX administrators who have advocated for and supported the purported separation have acted in direct conflict with the Constitution and Bylaws; and be it further

Resolved, That the Synod in convention encourage the appropriate ecclesiastical supervisors to investigate and to determine any appropriate disciplinary action that should be taken against the CTX president and any member of the CTX BOR who is a rostered church worker; and be it further

Resolved, That the Synod in convention encourage the President of the Synod, LCMS BOD, the CUS and its board, and the appropriate district presidents to take all appropriate actions to address this situation; and be it further

Resolved, That the Synod in convention call upon the CTX president, those CTX administrators who have advocated for and supported the purported separation, and the CTX BOR to submit to the governance of the Synod as laid out in the Constitution and Bylaws; and be it further

Resolved, That the Synod in convention call upon the CTX president, those CTX administrators who have advocated for and supported the purported separation, and the CTX BOR to repent for having broken the Fourth, Seventh, Ninth, and Tenth Commandments, and to apologize publicly for the illegitimate and wrongful purported separation; and be it finally

Resolved, That the President of Synod stand prepared to grant holy absolution to those who repent and want to do better by rescinding their actions resulting in reconciliation and restoration.

[Resolution 7-03, “To Call Concordia University Texas Leadership to Repentance,” Today’s Business, First Edition, 68th Regular Convention, pp. 139-141.]

The resolution declared rebellion (violation of the Fourth Commandment) and moral theft (violation of the Seventh, Ninth, and Tenth Commandments), besides violation of the synod’s constitution, bylaws, and such.

Within a day or two after that resolution being adopted and the synod in convention electing regents to the CTX board of regents, CTX informed those regents-elect that they would not be seated on the board of regents. The rebellion thus continued. The call for repentance was rejected immediately and out of hand. The synod’s Board of Directors, who have the fiduciary duty to protect the synod’s interest on behalf of the synod, and who were addressed in Resolution 7-03 with direction to act, did so when they filed the civil complaint that commenced the litigation. That action was both authorized and directed by the synod in convention.

“It is required in stewards that one be found faithful.” (1 Corinthians 4:2) Notice the essential difference between the action of the synod’s Board of Directors and that of CTX’s Board of Regents. One acts in faithful stewardship submissive to the synod in convention. The other is a rogue board denying any stewardship to the synod. Indeed, it is not even comprised of the regents lawfully elected by the synod in convention. Thus it is not only a rogue board but an imposter board.

After the service of the complaint on the defendants, they had a finite amount of time within which to file a motion or answer in response to or defense against the complaint. Many readers have wondered what CTX’s response is. The time for filing it was enlarged. That is why there isn’t one so far. On November 1, 2023, the parties jointly filed the following Agreed Motion to Extend Responsive Pleading Deadline:[2]

NOW COME ALL PARTIES in the above-entitled and numbered cause, and file this Agreed Motion to Extend Responsive Pleading Deadline as follows:

1. Defendants waived service pursuant to Fed. R. Civ. Proc. 4(d). As a result, the current deadline for Defendants to file responsive pleadings or motions is November 6, 2023. Plaintiff and Defendants are working to schedule a mediation as an alternative to pursuing litigation and have agreed to extend Defendants’ deadline to file responsive pleadings or motions until January 22, 2024. The Parties request that the Court enter an order granting this motion and extending the deadline for Defendants to file responsive pleadings or motions until January 22, 2024.

WHEREFORE PREMISES CONSIDERED, all parties pray that the Court enter an order granting this motion to extend responsive pleading deadline.

I am not sure why rebellion against the Fourth Commandment and moral theft against the Seventh, Ninth, and Tenth Commandments are proper subjects of what in our world passes for “mediation.” Sometimes the synod acts as if all issues are merely personality conflicts and thus all issues should be submitted to “dispute resolution.” The Board of Directors (and others in offices representing the synod) already had gone more than “the extra mile” in seeking just and amicable resolution of the conflict. I guess this additional attempt at “mediation” at least has the virtue of estopping anyone from saying that the Board of Directors has not done all it should in an attempt to settle. But, as stewards, as fiduciaries, they are not on their own business but on the business of others, namely the synod. In attempting to settle, they are bound to be faithful as stewards. Settlement cannot mean agreeing to moral theft of synod’s property or rebellion as if the regents elected by the synod are not regents. Given CTX’s apparent views of the Fourth and Seventh Commandments, there never was much prospect of mediation producing a satisfactory outcome. But, the Board of Directors gave it a chance.

On December 14, 2023, Dr. Donald Christian, President of CTX, issued a Memo to Concordia University Texas saying among other things:[3]

On Wednesday, December 13, representatives from Concordia University Texas and The Lutheran Church–Missouri Synod participated in a mediation in an attempt to settle the lawsuit. Despite the University’s genuine efforts to find common ground, an agreement could not be reached during the mediation. Consequently, Concordia Texas will now proceed by having its legal representatives file pleadings in response to the lawsuit initiated by the LCMS.

“Common ground.” That is the mantra. As if there were some middle ground between the campus being synod’s property and being the defendants’ property. As if there were some middle ground between the synod’s elected regents being regents and not being regents. And so on, and so on, and so on.

This vacuous rhetoric of “common ground,” in my litigation experience, often is the kissing cousin of so-called Solomonic wisdom of “splitting the baby.” It is as if, when Solomon spoke in 1 Kings 3:24-25, that was his judgment. We read:

Then the king said, “Bring me a sword.” So they brought a sword before the king. And the king said, “Divide the living child in two, and give half to one, and half to the other.”

That was not his judgment. That was his cross-examination of the two witnesses. One was a truth teller. The other was a perjurer. The object was not to find common ground about the baby. Common ground would have killed the baby. No. The object was to find the truth. The truth, not common ground. Who is telling the truth? Whose baby is it? Once that truth was revealed by Solomon’s cross-examination, then came his judgment.

Then the woman whose son was living spoke to the king, for she yearned with compassion for her son; and she said, “O my lord, give her the living child, and by no means kill him!” But the other said, “Let him be neither mine nor yours, but divide him.” (I Kings 3:26)

Divide the baby. Find common ground. That is not Solomonic wisdom. That is kidnapping, perjury, and murder. This is God-given (1 Kings 3:1-15) Solomonic wisdom:

So the king answered and said, “Give the first woman the living child, and by no means kill him; she is his mother. And all Israel heard of the judgment which the king had rendered; and they feared the king, for they saw that the wisdom of God was in him to administer justice. (1 Kings 3:27-28)

Wisdom does justice.

A university that teaches baby splitting as common ground rather than justice does not produce wisdom but ignorance and injustice. That is not Christian or Lutheran education.

[1] I have written about the context leading up to this stage in the following essays and articles:

Pastor Todd Wilken has interviewed me about the context leading up to this stage in the following episodes of Issues, Etc.

[2] The document has been added to the repository in LCMS v Concordia University Texas: Some Related Documents, September 12, 2023, Brothers of John the Steadfast, September 12, 2023.

[3] The document has been added to the repository in LCMS v Concordia University Texas: Some Related Documents, September 12, 2023, Brothers of John the Steadfast, September 12, 2023.

3 thoughts on “Concordia University Texas Litigation Resumes”

  2. Interesting analogy to Solomon’s proposed compromise. I think the fault is in thinking that litigation avoids compromise. In my experience, it is always helpful to assess the possible outcomes and relative likeliness of those outcomes. I question whether the more probable outcomes will be beneficial for the LCMS, and that it may be more likely that it achieves at best a pyrrhic victory in winning what will surely be a compromised university. And there does seem to be common ground, which I would say is that both sides agree the other shouldn’t be running CU Texas. Is there any resolution in that common ground that avoids a worse outcome in litigation? Would a name change and compensation bridge that gap? Or is it just the principle of the matter? What is the wise path?

  3. The analogy is not to the litigation or seeking to retain title to the property. The analogy is to the CTX mantra of “common ground.”

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