Like it or not, religious organizations that apply for and receive government funding for social service programs should expect close scrutiny from those who believe that religious organizations shouldn’t receive governmental funding under any circumstances. The opponents of what have been termed “faith-based” or “charitable choice” programs have devoted considerable resources to monitoring these programs and participating-religious organizations, as well as filing lawsuits when they believe a faith-based organization has overstepped the line between permissible and impermissible activity.
While President Bush has opened the way for religious organization’s to receive government funding to administer social services programs, these organizations cannot use the government funding...
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for religious purposes. For example, a religious organization can receive $200,000 to run a program designed to provide incarcerated felons with job training and workplace skills, but the organization cannot make participation in religious services a condition to participating in the program.
Not surprisingly, opponents of charitable choice have commenced
litigation now that charitable choice has been federally-mandated for
several years and there is actual experience with charitable choice.
For example, the Freedom from Religion Foundation filed suit against a
number of Federal government officials over the administration of
certain programs run by Federal agencies that make Federal funds
available to non-profits, including faith-based charities. In a
January 11, 2005 opinion, a district court for the Western District of
Wisconsin addressed the concerns raised by the Freedom from Religion
Foundation with respect to a program run by MentorKids USA a mentoring
organization located in Phoenix, Arizona. MentorKids applied for and
received a three-year Mentoring Children of Prisoners grant in 2003.
Here are some of the salient facts taken from the district court's opinion:
MentorKids' articles of incorporation state that it was created for specific purposes that include:
To exalt the Lord Jesus Christ as the Son of God, the Savior of the World and the head of his church. (Matthew 16:13-18; Romans 10:8-11; Ephesians 5:23l Col. 1:15-19;
[and]
To propagate the gospel of the Lord Jesus Christ, as outlined in the Bible, at home and abroad, by way of operating and maintaining missions, parsonages, and Christian educational institutions which may offer both religious and secular subjects, Christian camps, and Christian recreational facilities; MentorKids recruits and hires only Christians as mentors.
The MentorKids' mentor application requires an essay entitled "Personal Testimony," which "should include your life before Christ, your conversion, and what your life is like now. Your life now should include who Jesus is for you, and how He affects your daily life." The essay also inquires: "Briefly describe how you might be able to share your Christian faith with a youth." Potential mentors receive a "fact sheet" stating that "mentors introduce children to the gospel of Jesus Christ, allowing them to build their lives on the solid foundation of God's love." Mentors are required to provide monthly reports to their coordinator that assess whether their mentee "seems to be progressing in relationship with God." The monthly report also asks mentors to address whether their mentee has "discussed God;" "participated in Bible Study;" "Attended Church;" or "accepted Christ this month."
In a 2003 memo to case managers, MentorKids' President John Gibson labeled the year as the "year of intentionality." Gibson described MentorKids' mission for the year as follows:
As the ministry moves forward to a new era of excellence we plan to be much more intentional about introducing the kids in the program to Christ and nurturing their growth and foundation in Him. Note the Miniseries [sic] new Mission Statement: Our mission is to locate, train and empower mentors to be the presence of Christ to kids facing tough life challenges through one-on-one relationships. We pledge to provide the tools for you and your mentors to be equipped to maximize the possibility of the child developing an authentic lifechanging relationship with Christ, through relevant bible disciplining interphased with life skills. The mentor relationship will only last a season -- the relationship between the child and their Savior will guide and comfort them every day, and last for eternity." Similar references permeate MentorKids' website, board meeting minutes (e.g., MentorKids' "number one priority" is "to share the gospel of Jesus Christ with MatchKids so that they have an opportunity to know him"), and newsletters (e.g., "we want to be an intentional ministry; intentionally bringing kids into healthy maturity and a relationship with Jesus Christ").
In view of these facts, the Department of Health and Human Services suspended funding for the program. Nevertheless, the district court refused to dismiss the lawsuit on grounds of mootness. It ruled in favor of Freedom from Religion, ordering that the Mentoring Children of Prisoners grant to MentorKids USA to be vacated and denying any further funding to MentorKids under its existing structure. The question that the court did not address is whether MentorKids USA could be forced to repay the grant.
The issue of damages did come up in a 2002 lawsuit brought by the American Jewish Congress and Texas Civil Rights Project against the Texas Department of Human Services and the Jobs Partnership of Washington County on the ground that "Protestant evangelical Christianity permeates" the program. For example, the program maintained that "change can only be accomplished through a relationship with Jesus Christ." The original complaint asked the district court to invalidate the rules under which Texas had operated the program. The case was dismissed as moot because the program had ended, but on appeal, the U.S. Court of Appeals for the Fifth Circuit in an unpublished opinion, remanded the case for a determination as to whether Texas officials were liable for damages. We have been informed by one of the litigants that the litigation was eventually terminated because the total grant in dispute was a relatively small $18,000; segregating the funds that had been used unconstitutionally was difficult; and the program had no assets. In other words, there was no decision on the merits because of the unique circumstances.
The American Civil Liberties Union has also filed a lawsuit making allegations that the organization running a job training programs for prisoners overstepped the bounds of permissible activity. The defendant, The Firm Foundation of America, received federal, state, and local government funding to operate a vocational training program for inmates in the Bradford County Correctional Facility, which is the jail for Bradford County, Pennsylvania. The suit alleges that a significant proportion of inmates’ time in the program was spent on religious discussions, religious lectures, and
prayer. According to the court filing, the Firm Foundation described its program as “a prison ministry,” with staff required to be “believer[s] in Christ and Christian Life today” and to “shar[e] these ideals when opportunity arises,” program staff proselytized inmates in the specific religious beliefs of the Firm Foundation, and inmates were pressured to take part in prayer. The ACLU believes these activities are inappropriate because
virtually all expenses of the Firm Foundation program are paid with federal, state, and local government funds. The Firm Foundation makes no effort to segregate government funds for solely secular uses; nor, as a practical matter, could it do so, given the nature of the Firm Foundation program. The government is thus financing religious activity and instruction. And because government funds are being used to pay the salaries of Firm Foundation employees, who must meet a religious test to be hired, the government is also financing religious discrimination in employment.
Undoubtedly, there will be more suits making similar allegations with respect to other faith-based organizations. Given the current climate, the boards of faith-based organizations should consider taking the following steps to protect their organizations and their ability to use government funds to finance social services programs:
A. Governing documents (articles of incorporation, by-laws, director resolutions and minutes) should not mandate religious teaching or religious activity.
B. If at all possible, the government-funded activities should be conducted through separate corporate entities.
C. Until there is a definitive court ruling, program staff should not be required to subscribe to particular religious views.
D. Participation in the program should not be conditioned on participation in religious services, ceremonies, discussions, or classes.
E. There should be no pressure on participants to participate in religious programs or activities.
Most importantly, boards should be honest with themselves. An organization should not seek public funding if the organization truly believes that participation in religious activities is a necessary and integral part of achieving the program's objectives. Subterfuge will likely lead to trouble because of the monitoring activities conducted by those who oppose the entire concept of faith-based fudning..
There will inevitably be faith-based organizations that will test the limits of permissible activity. Their boards should keep in mind the American Jewish Congress lawsuit. At some point, a plaintiff will ask that the faith-based organization repay government funding that has been misapplied. That could be disastrous, potentially putting the organization out of business. In other words, an organization that loses a case may suffer consequences that go well beyond a court-administered slap-on-the-wrist.
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