On June 2, 2006, Chief Judge Robert W. Pratt of the Southern District Court of Iowa signed an opinion and order requiring the Prison Fellowship Ministries, operating through a subsidiary named InnerChange Freedom Initiative, to return at least $1,529,182.70 in contract money that they received from the Iowa Department of Corrections since 1999. See Americans United for Separation of Church and State v. Prison Fellowship Ministries, et al (S. D. Iowa 2006). The judge immediately stayed his order, recognizing that an appeal of his decision is likely. We would be shocked...
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if the court’s decision were reversed by the Seventh Circuit.
It took Judge Pratt 140 pages to reach his decision. The case, as do all faith-based cases, raises complex standing and constitutional issues, explaining the need for a lengthy opinion. Nevertheless, the rule governing faith-based organizations and government grant money is clear. Even though faith-based organizations are religious organizations, they are entitled to apply for and receive governmental grants, provided that the services that they provide using the grant money contain no religious content/indoctrination. We have always found this rule to be a conundrum. The exact thing a faith-based organization has to offer is a strong spiritual direction so why would they apply for government grants if they can’t utilize their “competitive advantage” in delivering services pursuant to the grant? We don’t have an answer to that question, but the United States Supreme Court has clearly held that the fact that a social services agency is faith-based doesn’t automatically preclude them from applying or receiving grant money.
We are certainly willing to listen to anyone who wants to take issues with our view of existing law. However, before doing so, consider the following statement from the White House Office of Faith-Based and Community Initiatives:
The United States Supreme Court has said that faith-based organizations may not use direct government support to support "inherently religious" activities. Don't be put off by the term "inherently religious" - it's simply a phrase that has been used by the courts in church-state cases. Basically, it means you can not use any part of a direct Federal grant to fund religious worship, instruction, or proselytization. Instead, organizations may use government money only to support the non-religious social services that they provide. Therefore, faith-based organizations that receive direct governmental funds should take steps to separate, in time or location, their inherently religious activities from the government-funded services that they offer. Such organizations should also carefully account for their use of all government money.
This does not mean your organization can't have religious activities. It simply means you can't use taxpayer dollars to fund them. Some faith-based organizations set up separate charitable organizations (so-called "501(c)(3) corporations") to keep programs that receive government money separate from those that engage in inherently religious activities.
The Iowa case involved state money rather than federal money, but the First Amendment's prohibition against the establishment of religion applies equally to the states through the Fourteenth Amendment.
The facts in Americans United may help readers understand the distinctions that the law draws. The Iowa Department of Corrections selected InnerChange. According to Judge Pratt, the selection process worked as follows:
The correctional officials looking for a values-based program genuinely believed that universal, secular values could be instilled in offenders, regardless of any religious context in which they might be offered. Warden Terry Mapes (“Warden Mapes”), eventually the Warden at the Newton Facility, stated that the religious elements of InnerChange did not bother him. Mapes testified that the “Christcentered biblical teaching . . . is a mechanism to the values-based instruction, just as if they done the Dr. Suess education program. That is another method of reaching and achieving the same goals.” Trial Tr. at 1457. Dept. of Corrections officials credibly testified that they would be delighted to offer a broad spectrum of values-based programming utilizing various religious and secular contexts if the budget allowed them to do so.
The pragmatic concerns of on-site correctional administrators at the Newton Facility and the Dept. of Corrections director’s office, who needed to provide inmate programming at a cost within their budget, combined with Kautzky’s own positive view of Prison Fellowship’s role in rehabilitating prisoners through spiritual transformation, meant that the selection of InnerChange as a pre-release Case 4:03-cv-90074-RP-TJS Document 367 Filed 06/02/2006 Page 30 of 140
Later in the opinion, when discussing the bidding and decision process, Judge Pratt wrote:
Warden Mapes took part in evaluating the submissions by InnerChange and Emerald. Mapes was fully aware of the religious nature of the InnerChange program, but his motivation in selecting InnerChange was basic: cost. InnerChange was able to offer a full array of services at a price, $310,000, less than Emerald’s bid at just over $562,000, and much less than the approximately $1,000,000 that Warden Mapes and other correctional officials estimate a similar program would cost the state of Iowa to run. InnerChange met Mapes’ preference for a licensed substance abuse program. Mapes’ also preferred InnerChange’s inmate assessment tool over that used by Emerald. Mapes’ partner in the 2005 RFP submissions evaluation, Jeanette Bucklew, Deputy Director of the Dept. of Corrections, was not so sanguine about the ability of an inmate to differentiate between the religious teachings of InnerChange and the universal values contained therein. Bucklew entered on her evaluation for the InnerChange program that an inmate interested in joining the InnerChange program “must adhere to Christian ideology.” Pls.’ Ex. 209 at 2 (010912). Though knowing about the religious content of InnerChange, Bucklew also recommended InnerChange over Emerald because InnerChange cost less and offered the required, licensed substance abuse program, and had established a well-documented mentoring network that Bucklew did not want to see end. Quite specifically, Bucklew held it against Emerald that they were a first-time bidder from out-of-state...
Ultimately the court rejected good faith budgetary considerations or the view that religious and moral values are indistinguishable as being irrelevant.
InnerChange unsuccessully attempted to argue that it could allocate the funding it receive from the state to non-sectatian features of its program. Judge Pratt shredded that position, writing:
InnerChange bills the state of Iowa only for those portions of the InnerChange program costs and expenses that InnerChange codes or designates as “non-sectarian.” InnerChange, on its bills to Iowa, has assigned a “sectarian” percentage and a “non-sectarian” percentage to the time of each of its staff members and, subject to the appropriate limits allowed for each fiscal year, bills the Dept. of Corrections for what InnerChange has designated as the “non-sectarian” percentage. InnerChange staff, however, do not divide class or counseling time into non-sectarian and sectarian portions, and do not record time they believe is sectarian separately from time they believe is non-sectarian. They also do not record time they spend on each individual task, nor create any other records accounting for time in sectarian and non-sectarian categories.
The opinion then goes into much greater detail, looking at the treatment of cell phone bills among other expenditures.
Judge Pratt then reviewed the facts, which clearly demonstrated that those who participated in InnerChange's program received preferential treatment.
InnerChange inmates do not have to pay for materials used in InnerChange worship experiences such as juice, bread, or song books as do Native American inmates for sweat lodge items, or Jewish inmates for food and items necessary to remain kosher. InnerChange argues that supplies for Friday night revivals and Sunday church are not worship supplies like those needed for Native American or Jewish inmates, but “treatment supplies,” required for the InnerChange program.
The court went on, later in the opinion, to describe other salient facts as follows:
Before the advent of InnerChange, Unit E was formally and informally referenced by inmates and staff alike as the prison’s “honor unit,” and was used to house those inmates awarded with the highest security or privilege levels associated with low risk behavior. Unit E inmates were those inmates who stayed out of trouble, garnered no reports, and worked in full-time jobs. One Newton Facility inmate characterized Unit E as a place where one could be surrounded by like-minded inmates and that, overall, it was less of a madhouse than other living units. In fact, all Newton Facility inmates classified at Level 5 (the highest classification level at the Newton Facility) were placed in Unit E. Unit E, along with Newton Facility Building M, also contains some InnerChange staff offices. When InnerChange moved into Unit E, inmates already residing there were moved to other GP living units if they did not join the InnerChange program....
The cells in Units C, D, and E are all two-man or three-man cells. The toilets and sinks in all Newton Facility cells other than Unit E cells are located in the cells, themselves, and no door, partition, curtain, or other divider separates a toilet in a non-Unit E cell from the rest of the cell. The cells in Unit E are called “dry cells,” meaning that toilet and sink facilities are not in the cells, but are in separate community bathrooms. The toilet stalls in the Unit E community bathrooms are separated by dividers and have doors with sliding locks. The sinks and toilets in the community bathrooms in Unit E are made of porcelain, whereas the sinks and toilets in Units A, B, C, and D (the non-Unit E cells) are constructed out of stainless steel, with the toilet connected directly to the sink pedestal to form one structure....
Normally, inmates who are transferred to the Newton Facility for a reason other than to participate in InnerChange are initially placed in Unit B of the Newton Facility. Inmates transferred to the Newton Facility in order to participate in InnerChange, however, are placed directly in Unit E. Some inmates who have graduated from the in-prison component of InnerChange are allowed to continue living in Unit E for some time after they graduate.
In describing what he eventually would characterize as evidence of religious indoctrination, Judge Pratt wrote:
The Orientation includes, among other things, evening Bible study classes led by InnerChange peer facilitators. Upon completion of the Orientation, and in order to proceed into the InnerChange main program, all InnerChange inmates are required to sign a document entitled “Accountability Covenant.” Pls.’ Ex. 85. The signatory of the Accountability Covenant agrees to, among other things:
[U]nderstand that the principles in Matthew 18:12-35 will be applied in my life within the IFI community.
Those principles are
1. Error leads us to danger (vs. 12)
2. The heart of correction is to restore (vs. 13, 14)
3. It is the responsibility for those involved to reconcile on an interpersonal level (vs. 15)
4. Peer mediation is to be utilized if necessary (vs. 16)
5. Removal from the community is a last resort (vs. 17)
6. Conflict resolution builds a stronger community (vs. 18-20)
7. Interpersonal forgiveness of others is a condition of personal forgiveness from God. (vs. 21-35)
Judge Pratt then wrote:
This document is also an example of the all-pervasive use of the biblical text, primarily that portion of the text that Christians refer to as the New Testament, when InnerChange leaders wish to underscore or explain almost any facet of the InnerChange program’s policies, principles, or instructions.
In describing the applicable law, Judge Pratt wrote:
Under the Lemon test, government practice is permissible for purposes of Establishment Clause analysis only if (1) it has a secular purpose; (2) its principal or primary effect neither advances nor inhibits religion; and (3) it does not foster an excessive entanglement with religion.”
In applying the law and setting forth his conclusions, Judge Pratt wrote:
The InnerChange program is pervasively sectarian in nature. This conclusion does not, as the Defendants warn, require the Court to “parse through hymns, verses, teaching, and ritual to separate‘mere worship’ from the teaching of character and morals.” Bronx Household, 400 F. Supp. 2d at 598.38 The pervasively sectarian inquiry does not consider the theological beliefs or dogmas cherished by the institution in question. Instead, the inquiry looks at the recognizable factors that indicate whether, in practice, “aid . . . flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission or when it funds a specifically religious activity in an otherwise substantially secular setting.” Hunt, 413 U.S. at 743.
And then, in a one, two punch, Judge Pratt continued:
There are many factors that drive the conclusion that the InnerChange program is pervasively sectarian. The program requires attendance at worship services, religious community meetings, and weekly revivals, and orders its participants to engage in daily religious devotional practice. Furthermore, participants are required to lead prayers and share, publically, a personal devotional at the weekly community meeting. InnerChange instructors and employees must sign the Prison Fellowship Statement of Faith. The curriculum is restricted and does not stray from the religious beliefs stated in the Statement of Faith. InnerChange teachers and counselors are allowed to teach only a pre-set, imposed religious curriculum authorized by InnerChange and Prison Fellowship. Though an inmate could, theoretically, graduate from InnerChange without converting to Christianity, the coercive nature of the program demands obedience to its dogmas and doctrines.
Further, InnerChange is an integral part of the religious mission of Prison Fellowship and is under Prison Fellowship’s complete control. Unlike colleges and universities, InnerChange is not characterized by an atmosphere of academic freedom. It is devoted to inculcating religion as described in its own explanation of the transformational model. Every class, save for the computing class, uses materials derived solely from the perspective of Evangelical Christian faith. InnerChange’s daily activities, its required religious qualifications for employees, and the fact that it was chosen by the state, in part, because its religious nature was viewed as a cure for the ills of recidivism, can only lead to the conclusion that its non-sectarian aspects are substantially subsumed within its religious nature....
Here, every activity—worship services, revivals, community meetings, daily devotionals—is organized and developed by the InnerChange program and is designed to transform an individual spiritually. Even the otherwise traditional rehabilitation classes themselves, as set forth above, have been turned into classes intended to indoctrinate inmates into the Christian faith....
Morever, InnerChange inmates are also in a spiritual mentoring relationship with InnerChange staff, who provide spiritual and mental health counseling. The teachers and counselors charged with the control of every aspect of an inmate’s physical existence and spiritual existence in the InnerChange program are the same persons who lead communal worship services, make sure inmates are attending religiously-inspired classes, and grade them in the program for signs of “authentic progress.” To say that such an environment is not intended to coerce or persuade conversion to Christianity is a remarkable assertion.
And there you have it. To get the full flavor of the opinion, you should review it in its entirety. However, the lessons are clear:
A. Faith-based organizations can take government money in the form of direct aid (as distinguished from indirect aid in the form of vouchers, to which a different set of rules apply), but they cannot use the money for religious activities or teaching.
B. Religious organizations that want to pay fast and loose should expect to be challenged by groups like Americans United for Separation of Church and State.
C. The courts are likely to force faith-based organizations that cross the line to return money that has already been expended, possibly creating severe budgetary and financial issues for them.
D. State budgetary considerations do not justify prefering sectarian values over secular values, or viewing them as interchangeable equivalents
We will be awaiting the Seventh Circuit's opinion, but there is no doubt how they will rule. The facts in this case are overwhelming against the defendants.
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