Charitable Choice Conference

Remarks of Dr. Stanley Carlton-Thies

MR. BRADLEY: There is an anecdote about Presidential potential candidate, George Bush on the campaign trail in 1988. He said, was I scared floating around in a little yellow raft off the coast of an enemy-held island, setting a world record for paddling?

Of course, I was. What sustains you in times like that, he asked himself? Well, you go back to fundamental values. I thought about mother and dad and the strength I got from them, and God and faith, and the separation of church and state.

Well, I think we've come a long way since 1988, which appears to be a high water mark for the privatization of religion. And those days, not only politically, but in Constitutional law, privatization was the rule of the day.

It was the high water mark in Constitutional law, partly because school aid was controlled by that duo of cases of just a few years earlier, Aguilar and Ball, cases now eclipsed by Mitchell v. Helms, and also a year or so after, Edwards v. Aguillard, the creation science case, and one of the more thoughtless opinions rejecting the role of religion in public schools.

Now, both Presidential candidates of the major parties profess often and fervently, their devotion to Jesus Christ. It's true that Jesse Ventura thinks religion is only for knuckleheads and neurotics, but Jesse Ventura is not going to be President.

So it seems an opportune time to reexamine on a broad front, the role of religion in our public life. And what better type of issue or better context in which to examine the role of religion in public life than Charitable Choice?

Welcome to all of you. I'm Gerry Bradley, Professor at Notre Dame Law School, and Chair of U.S. Liberties Practice Group. It's my pleasure to welcome you to the conference, and to acknowledge the help of the National Office headed by Leonard Leo, and the local Chapter of the Lawyers Group headed by Tim Fisher, and to introduce to you, the Moderator of our first panel.

Professor Nicole Garnett is on the faculty of the Notre Dame Law School, a graduate of Yale Law School; served as a law clerk to the Honorable Clarence Thomas of the United States Supreme Court; teaches in the area of property, and soon in the area of Constitutional Law at Notre Dame.

She is the head of the Practice Group’s Committee on School Choice and Educational Reform. Nicole Garnett.


PROFESSOR GARNETT: Thank you very much. I am honored to have this opportunity to moderate this panel, in particular, because this panel will focus on something that us [sic] academic types focus too rarely upon, and that is, what is happening in the real world?

Everybody, as we know, is talking about Charitable Choice these days. George W. Bush is for it, Al Gore is for it, most Americans say they are for it, and this panel will tell us a little more about what we all profess to be for.

What is Charitable Choice? What are faith-based charities doing? What can they do, and what can they do in partnership with Government?

Before I introduce the members of this panel, who know an awful lot more about these questions than I do, I want to tell a little anecdote about how I came to be interested in Charitable Choice. I am doing so not simply for narcissistic reasons, but also because I think it really highlights the issues that this panel and that all faith-based organizations and that organizations like the Federalist Society that are concerned about limited government, really need to think about when we embrace Charitable Choice.

After I graduated from law school and before I began my clerkship on the 8th Circuit, I spent a summer working as a law clerk for a place in Washington, D.C. called the Institute for Justice. It's a small, public interest law firm.

And I came -- I got to be involved in a case about a group called Teen Challenge, which is a faith-based drug treatment center, nationwide. This Teen Challenge happened to be in San Antonio, Texas, and it had gotten into a little bit of trouble with the regulators, the Texas Department of Alcohol and Drug Abuse.

They had -- it wasn't that Teen Challenge wasn't doing a good job; in fact, they were doing a great job. By some counts, they were doing something like 30 times better curing people of drug addiction than secular programs.

But they had more serious problems in the eyes of TDADA. Those problems ranged from frayed carpeting to the fact that they did not hire [something] licensed chemical dependency treatment counselors.

Teen Challenge said we can't do that because we hire people who have been saved from their own addictions by God to be counselors and there aren't that many licensed chemical dependency treatment counselors that fit that description.

Things looked pretty bad for Teen Challenge until Governor Bush, with the help of an esteemed member of our panel, stepped in. And we'll hear a little bit more about that, but I do think that incident has always really highlighted to me the risks involved in Charitable Choice, not just because the regulators stepped in and tried to close down Teen Challenge, threatening them with fines of $10,000 a day for every day they remained open with their frayed carpeting and lack of counselors, but also because of the reason that Teen Challenge came to the attention of the regulators.

And that was because they started accepting food stamps. So the hook was, well, we are now taking government money and now you're ours.

Perhaps they could have gotten in trouble without the food stamps, but it is something that always gives me pause. Although I'm a fan of Charitable Choice, we do have to be vigilant when we're putting these programs together, to worry about government strings.

Okay, I'd like to just briefly introduce the panel in the order in which they will speak, and then turn it over to them.

Our first speaker is Dr. Stanley Carlson-Thies. He's the Director of Social Policy Studies at the Center for Public Justice, a nonpartisan, Christian public policy research institute located in the Washington, D.C. area.

He currently directs the Center's project to track the implementation of the 1996 Charitable Choice provision of the Welfare Act.

He is the author of numerous publications on faith-based charities, including "Faith-Based Institutions Cooperating with Public Welfare: The Promise of the Charitable Choice Provision."

He holds a doctorate in political science from the University of Toronto.

Our next speaker is Amy Sherman, who is with the Hudson Institute. She is the Senior Fellow for Welfare Policy at the Hudson Institute, and the Irvin Ministries Advisor at Trinity Presbyterian Church in Charlottesville, Virginia.

She is the co-founder and former Executive Director of Charlottesville Abundant Life Ministries. Dr. Sherman has also authored numerous publications on faith-based charities and Charitable Choice, and has been named by Christianity Today as one of the top 50 evangelical leaders under 40.

She frequently speaks on the topics of welfare reform and provides consulting services to churches who are trying to start their own faith-based ministries and charities.

She also has a Ph.D. from the University of Virginia.

Our third speaker is Dr. Carl Chrisner, who has recently left Teen Challenge to form a consulting service for faith-based ministries, and has a lot of experience and will talk about what it is that faith-based ministries are doing, and what they hope to be able to do through Charitable Choice.

Dr. Chrisner has a Ph.D. in New Testament Studies, and in addition to serving for Teen Challenge, he also has been a college professor and a minister with the Assemblies of God Church.

And, finally, Don Willett, who just recently left Governor Bush's government job to join the Presidential campaign. I actually first came across John when I was an attorney for the Institute for Justice and he was helping us out with another case.

But he has a law degree, clerked on the 5th Circuit, and was very instrumental with Governor Bush in putting together really a groundbreaking plan for government and faith-based institutions to work together, which came out of the Teen Challenge incident in Texas.

So he will tell us a little bit about that, what's happening in Texas, and how it's working.

DR. CARLSON-THIES: Good morning. Everyone might be for Charitable Choice but not everyone understands it. And worse than that, many of those who are supposed to be complying with it aren't.

And that's going to be the burden of my discussion. I hasten to add that there are a lot of very creative and interesting new collaborations going on between the public sector and faith-based organizations.

I think Amy will talk about some of those. They don't all fit the model that they are supposed to, and in some cases, in fact, they are being created and taking shape without the benefit of the legislation, just because it's a good idea, and that's to say that the collaborations don't have the structure that they're supposed to.

So you will see many innovative collaborations happening out there, but when it comes to following the rules of Charitable Choice, things are not going as well as they ought to. So that's what I want to talk about.

We're going to talk about the impact of faith-based organizations working in collaboration with government. We're talking about the impetus that was given to that through Charitable Choice.

And if we want to ask about what good these faith-based organizations now are doing in collaboration, then, as a part of this whole movement, I think we have to ask this prior question, Is government doing its part to craft that hospitable environment that it's supposed to according to Charitable Choice, that environment that allows these faith-based organizations to become active and not to be hobbled? And that's my question here.

I want to start with one assumption, which is that I don't believe that just because an organization is faith-based it's by definition effective and will do wonderful things. Some of them do, some of them don't.

I don't think that's a Charitable Choice question; the Charitable Choice question is that they can't be excluded because they are faith-based; they ought to be looked at for what they can contribute, and many of them are effective and therefore ought not to be excluded from working with the public sector.

Let me speak just briefly about Charitable Choice and its goals, and then let me talk about the compliance issue.

I take it that Charitable Choice basically rests on or is comprised of four principles. I think we can organize those in two pairs:

The first pair is this: in the first place, the eligibility of faith-based organizations to take part in government purchase-of-service programs. That is to say, there is to be a level playing field. They won't be excluded because they are faith-based, because they are religious, because they are too religious, because they are pervasively sectarian. They have an opportunity to take part. That's the first point.

Number Two: The other side of that is that there are certain Constitutional safeguards that are built into Charitable Choice. These organizations are not allowed to use government funds for purposes other than the public purpose of serving the folks who need help.

The money cannot be used for certain inherently religious activities such as sectarian worship, instruction, proselytization.

And in choosing these faith-based organizations, government is supposed to act neutrally; it's not supposed to single them out because they are faith-based, just like they are not supposed to keep them out because they are faith-based.

Then the second pair of principles. Number three is to protect the faith character, the religious character, of participating faith-based organizations. If they come into the program, then their character has to be protected.

That means things like -- and you probably know this -- allowing them to have a religious atmosphere, icons, religious symbols, maintaining religious expression, and so on.

Charitable Choice says that these organizations have the right to hire only staff who fit with the organization's religiously-defined way of meeting the public purpose.

So their religious character is protected if they take public funds. Then the other side to that, number four, is if you're going to strengthen the faith-based organizations then you must make explicit protections for clients.

So Charitable Choice specifies that clients cannot be denied service because of their religion, they cannot be denied service because they don't want to actively take part in an inherently religious activity, and the state government has an obligation to provide an alternative to a recipient who doesn't want to get services from a faith-based provider.

So, first an opportunity to take part; second, there are some limitations on activities; third, faith-based organizations can retain their religious character, and, fourth, there are protections for clients. That's what Charitable Choice is.

The whole point, while at the same time respecting the Constitutional requirements, is to make sure government can have its proper oversight and can buy effective services, and make sure the clients are protected from religious coercion. Charitable Choice is designed within those boundaries, to expand the opportunity for faith-based organizations to work with government, to take government funds, and equally to ensure that when faith-based organizations do take public funding, they don't have to give up their faith-based way of working.

Okay, so that's the goal of Charitable Choice. Well, what's the record of compliance with those new rules? What are states doing with Charitable Choice?

You remember that Charitable Choice is part of a federal law, the 1996 Welfare Reform Act, and it is an obligation that comes to the states, along with the federal money. It's one of those strings that comes, and in that sense, it's binding on states, whether or not they like it or accept it or even know about it.

They don't have to enact it, they don't have to do anything in one sense; it just is binding on them because they have accepted the funds.

On the other hand, Charitable Choice is a dead letter in a state that pays no attention to it. No matter what the federal law says, if a state keeps operating its procurement process the way it always has, then in that state, all of those protections are a dead letter.

And that's because virtually all states, if not every state, in some way or another has been operating a procurement process that is more restrictive than Charitable Choice requires. In fact, that's why and how Charitable Choice came about. Carl Esbeck came up with a catalog of restrictive laws, state and federal laws, and said, let's write a provision that gets rid of these restrictions.

So those restrictions are already there; Charitable Choice says let's get rid of them. Thus, if a state hasn't done anything, you can be pretty sure that it has restrictions in its law that aren't supposed to be there anymore.

There is now a new standard. Each state ought to be taking a close look at that standard; it ought to look at its own procurement policies and practices, and root out the ones that don't meet the new standard.

If states do that, then Charitable Choice becomes a practice in that state, and not just words in a federal law book. And then Charitable Choice makes a difference for the faith-based organizations in that state and for people who need services, some of which can be best provided by faith-based organizations.

So how are states doing at looking at their laws and rooting out the ones that don't conform to the new standards? Well, there is a saying someplace that every happy family is the same, but all unhappy families are unhappy in their own way.

I think that's kind of true of Charitable Choice as well. There are a handful of states that take Charitable Choice seriously, and they're doing similar things, some of them more excellently than others, and I'll come to that.

A few states are just getting on the bandwagon, and many states are flunking miserably. But they have very diverse ways to flunk.

So, let me talk first about the Charitable Choice stars and then I'll talk about the Charitable Choice failures, and then just briefly about the in-between ones.

The Charitable Choice stars, let me name them as Texas, Wisconsin, Indiana, and Ohio. These are states that have taken an explicit look at what Charitable Choice requires.

They have looked at what their own policies and practices have been, and then they have set about to change those state rules, laws, practices, and customs that put barriers in the way of faith-based organizations, barriers that are now illegal under Charitable Choice.

That means things like explicitly complying with the requirements. Charitable Choice says, for example, that faith-based organizations have the right to hire on the basis of faith. But the rule outside of Charitable Choice is that you can't do that. So what a state has to do is put an exception in the case of Charitable Choice.

These "A" states have been going through their own rules, going through contracts, going through requests for proposals and all those things, taking out what no longer belongs, and in some cases putting in positive things that ought to be there, inviting faith-based involvement, and also protecting clients in an explicit way.

That's what Charitable Choice requires, and that's the kind of thing these states have done.

Secondly, they are reeducating the bureaucracy about what the new standards are. It's not enough to just pass it at the state level either, but officials need to actively go out and let the entire government agency know that things need to be done differently.

Then, thirdly, these states are reeducating the public and the faith community. We used to do things that way; we're doing them this way now. And, therefore, there is a new door that's opened that didn't used to be open.

And then fourthly, they are providing all kinds of technical assistance, outreach, and so on, that makes it practically possible for faith-based organizations to get involved. They are building bridges, reaching out, having liaison persons, a point of contact, and sweeping away non-church/state barriers that have made it difficult for groups to get involved -- too much regulation, too much red tape, all those kinds of things.

In this whole process, of those four states I think that Texas, (not just because Don's on the panel), is going the deepest and the widest, and is systematically going through, kind of marching through the rules of the bureaucracies, passing the legislation, rewriting the regulations, pushing for cultural change in the bureaucracy, redesigning service programs to best utilize the strengths of faith-based organizations to make sure that new organizations have a chance and so on.

So here's a place that's doing things, in my view, the way they ought to be done. But in all these leading states, it is clear that there is a new day, which has required new actions by government, and opens up new opportunities for faith communities. Affirmative steps are being taken to clear away barriers and to welcome the participation of faith-based organizations. That's what Charitable Choice ought to be, and that's being done in those states.

In the many states that are failing -- and I won't say exactly how many and I'm not going to name them all because we're not totally finished analyzing or survey in the many states that are failing, they have many different ways of not doing what these four exemplary states are doing.

Some states have told us that they haven't systematically checked their procurement to see if it fits with Charitable Choice, and they haven't changed anything, either. So you can be 100 percent sure that they're just not doing what they ought to be doing. They just admit it; they haven't done anything.

There are some states -- Maryland is one of them -- that actually have taken legislative notice at the state level about Charitable Choice, and actually changed their statutes because of Charitable Choice.

But what some of these states have done -- and, again, Maryland is one of them -- they've made it explicit that the welfare agencies may contract with religious organizations more widely than in the past. They have written into the state law the protections that are required by Charitable Choice for clients of faith-based organizations.

But they forgot the third step, which was to write in the protections for faith-based organizations themselves. So these organizations are being invited to the table, but they're not being given the protection they're supposed to be given under the federal legislation.

There is one state, New Jersey, that has a special Governor's program to target money particularly for religious community development efforts to help them get going. Well, first of all, that's not what Charitable Choice permits. You're not supposed to target it to faith-based organizations. In the second place, New Jersey doesn't understand that all their other procurement is supposed to be run according to these new principles. It's kind of like they have a little playground for faith-based organizations, and that's where they're supposed to do their thing, and the rest of the rules are still the way they've always been. That's not what Charitable Choice requires.

Officials in Nevada told us that they knew about Charitable Choice, they knew they had to do something, but they have been busy with other priorities, so they haven't gotten around to it yet. At least they were honest.

A number of states have devolved welfare to lower levels. Just as welfare has come from the Federal Government down to states, some states have devolved it to counties. California is one, Colorado is another one. Florida has devolved welfare to regional coalitions.

Unfortunately in that process, these states neglected to tell the lower level governments that Charitable Choice was a requirement. So, in these states you will find great diversity. Some places are doing what they should be; some places don't have a clue, they have never heard about it. No one has told them they've got to do it.

The state of New Hampshire responded to our survey by admitting that it wasn't paying any attention to Charitable Choice; it doesn't protect the rights of faith-based organizations the way it's supposed to, and it said, in our state, all vendors are required to be secular and that's just the way we do things. That's not the way they're supposed to be doing things, but that's the way they're doing things.

More than ten states responded to our survey by admitting that despite the clear language of Charitable Choice, they continue to refuse to allow faith-based organizations to take account of religion when they hire staff. So, in our public survey, they said, no, we're not doing that, even though it's required. We know that many other states don't, in fact, protect that right, although they didn't admit that on the survey.

Finally, a number of states told us that Charitable Choice just doesn't apply to them. A Mississippi official told me that he believed Charitable Choice was optional for states. They could do it or not, depending on what they wanted to do, and they didn't want to do it.

Vermont said that Charitable Choice wasn't relevant for the way it operates. Washington, D.C. claims Charitable Choice just doesn't apply inside its borders.

Massachusetts says they run their procurement according to the First Amendment, and they don't care what Congress says the First Amendment requires.

Washington State said Charitable Choice doesn't apply because their own constitution restricts state funding of religious organizations. They have a Blaine Amendment, and, after all, it says in Charitable Choice that the new rule does not preempt state restrictions on funding religious organizations, which is true. But Charitable Choice does say that when it comes to the federal money, it has to be spent according to the federal rules. But Washington State decided that its Blaine Amendment covers the federal funds as well.

So, there are many different ways to not do what ought to be done. These are not all the F-states, but those are the typical ways to ignore what Charitable Choice requires.

Finally, a handful of states are starting to make progress. For example, Pennsylvania understands Charitable Choice. There are some very creative things that are going on, exactly the way they're supposed to. They are beginning to change the way the bureaucracy operates in that state.

Arizona last year passed legislation applying Charitable Choice to not just the federal funds, but to state and local funds for certain departments, and they are starting to educate the bureaucracy about that.

California finally got around to passing a law that requires the Welfare Department to tell the counties that they've got to implement Charitable Choice, and one of these days we hope we'll have good regulations that say that.

Some states like Illinois and Michigan have always been quite positive in working with faith-based organizations, but they haven't take this opportunity to clear up the hindrances that remain. We have tried to encourage them to do that.

And then, finally, let me note that Virginia had a task force last year that recommended an aggressive uprooting of barriers to faith-based involvement. The Legislature picked up all those suggestions, and passed it into legislation. I think we'll begin to see in Virginia, finally, a transformation of the state's climate for collaboration.

Faith-based organizations can't more effectively collaborate with the government if they are kept outside or they are required to set aside their faith when they come inside. Charitable Choice is designed to change that situation. And the unfortunate thing is that many states are dragging their feet on doing what the law requires.

Thank you.


2003 The Federalist Society