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R or Bills wanhau PHOTOCOPY PRESERVATION MEMORANDUM TO: MARIA ECHAVESTE FROM: IRENE BUENO RE: MEETING ON CHARITABLE CHOICE - 4:00 pm Wednesday, September 13, 2000 in your office PURPOSE: You are meeting to get an update on the status of the charitable choice provisions in the new markets legislation. Attached are talking points prepared by WH Counsel's office on current position on charitable choice, differences between the House passed and Santorum/Lieberman bill and a chart that shows how the provision has been improved. BACKGROUND: On Monday, the civil rights groups expressed serious constitutional concerns with the current charitable choice provisions that the Administration is supporting and want to work with us to address those concerns. The Administration worked hard to change the charitable choice provisions of the House-passed legislation which is similar to language included in the welfare reform and community block grant laws. The House provision clarifies the conditions under which religious organizations may participate and provides specific protections to program beneficiaries. For example: funds cannot be used for sectarian worship, instruction, or proselytization; individuals who object to the religious character of an organization must have access to comparable alternative services in a timely manner; and providers may not discriminate against program beneficiaries on the basis of religion. During the House consideration of the bill, Rep. Bobby Scott offered an amendment to strike this section but got few votes (groups say because he did have time to work it). Senator's Santorum and Liberman have introduced legislation and Santorum is willing to give us what we want in the bill if we give him something big on Charitable Choice. Senator Robb's new market legislation is silent on the charitable choice issue, which is the preferred position of the groups. The Administration is negotiating with the Senate to try to get the Senate provision to look more like the House provision. Civil rights groups believe strongly that there is serious constitutional problem and many groups are already taking advantage of this and are discriminating and the discrimination goes beyond religious discrimination to race, gender and sexual orientation. Furthermore, the groups think that religious groups already have ways of serving I No funding to prevasively sectarian but no def. ment he part A you which pursuit 2 your minn 2 Employment Discim Title VII ! In W.R. -accepting Red hand yr religion world not lose you exerption mder the VII. we didn't pere on this exemption only Rep. Scott- hands 80 to bigok = fed. hidy of discombation. Under what the concenture circler are -dnt know hn wide Not much litigation so under 3 Slipperily Slope - Talent/Asheritt. give up mretime I no end to process legislative -area very sung, CA will defer to congure CC- puper L allow uligione organing to copite for fed purding. cpllsrow organizations are concernel af federal insurance Rs say CC allns sectarian to get $- that's not true. not indented in cc h cbumans ment - 10A t new mut - CC Expension except edue t child care but include provision we dent like. weare - trying to uduce the scope similar he the thome in particilar Suls. sbuce. Not engaging on CC. in new mkh on the thil NE IC new mkh mores, need to maintain the House position, scope. cold add 2 e plan. God Can invividual 12 those untiler Sub. above Comparison of House-passed bill (HR 4923) and Santorum-Lieberman (S.2779) Charitable Choice Provisions Overview Faith-based organizations can help address some of our nation's key social problems. Charitable choice is intended to allow such organizations to participate in government programs on the same basis as non-religious community based organizations. At the same time, charitable choice must be implemented with full respect for the constitutional line between church and state. This means that assurances must be made that government funds are not used to support religious worship, instruction, or proselytization. It also means that there must be special safeguards enacted when funds flow directly from the government to religious institutions. Key differences between HR 4923 and Title IV of S. 2779 (Substance Abuse) The provisions of Title IV of S. 2779 do not reflect the final agreement reached between the Administration and Speaker Hastert and raise several problematic issues. Limitation on use of funds: The Senate bill allows funds used in the form of vouchers at programs selected by the beneficiary to be used for sectarian worship or instruction. The House bill does not contain this provision and clearly states that no funds provided through this program shall be used for sectarian worship, instruction, or proselytization. Employment practices: The Senate bill does not currently contain language included in the House bill ensuring that nothing shall be construed to modify or affect the provisions of any other Federal or state law or regulations related to employment discrimination. State certification authority: The Senate bill significantly undermines state certification authority by a) requiring the Federal government to waive state educational qualifications for substance abuse personnel under certain circumstances and b) requiring state or local governments to count a broad range of religious education towards educational qualifications for substance abuse personnel. The House bill does not provide federal waivers. It maintains state and local authority to set eligibility conditions for substance abuse providers, while prohibiting states from discriminating against substantially similar substance abuse education and training provided by religious organization personnel in organizations with a three-year successful track record. Aid to the individual: The Senate bill includes language declaring that these funds are aid to the individual, not to the organization, which weakens protections and safeguards. No such language is included in the House bill. Beneficiary protections: the House bill streamlines and strengthens arrangements for alternative service providers. Key differences between HR 4923 and Title XI of S. 2779 (Charitable Choice Expansion) Senate bill extends charitable choice broadly to federal programs, with the exception of certain education and child care programs. In addition to the broad scope, the charitable choice language raises several problematic issues. For example: it allows religious organizations to require employees to adhere to religious tenets, teaching, and rules forbidding alcohol or drug use; provides weaker protections for beneficiaries using vouchers; and gives non-governmental organizations who subcontract with other non-governmental organizations the same duties as the government while retaining the rights of a non-governmental organization New Markets Bill - HR 4923 Substance Abuse Charitable Choice Provisions July 25, 2000 Both President Clinton and Vice President Gore believe that community- and faith-based organizations can play a valuable role in addressing some of our nation's most pressing social problems, including preventing and treating substance abuse. Charitable choice is intended to allow religious organizations to participate in government programs on the same basis as other community-based organizations. The Administration has been clear that the charitable choice provisions included in this bill and in other legislation signed by the President must be implemented with full respect for the constitutional line between church and state. This means, for example, that government funds cannot be used to support religious worship, instruction, or proselytization. The bill will allow religious organizations to apply for substance abuse prevention and treatment funds from the Substance Abuse and Mental Health Services Administration on the same basis as other non-profit organizations. It covers both Substance Abuse Prevention and Treatment Block Grants that go to states on a formula basis and discretionary grants directly from the Federal government. While current law does not prohibit faith based organizations from receiving SAMHSA funds (and in fact some do), this bill clarifies the conditions under which such organizations may participate and also provides specific protections to program beneficiaries. Although the original House bill (HR 815) had a number of serious constitutional and policy problems associated with charitable choice, the Administration worked hard to ensure that the provisions in the final bill do not move beyond existing charitable choice provisions in the welfare reform law the President signed in 1996 and the Community Services Block Grant reauthorization the President signed in October 1998. The provisions in the bill are consistent with current Supreme Court doctrine including the recent Mitchell V. Helms decision setting forth the appropriate boundaries between church and state. The Administration worked hard to provide important protections for program beneficiaries (similar to the welfare reform law) in the final version of the bill. For example: funds cannot be used for sectarian worship, instruction, or proselytization; individuals who object to the religious character of an organization must have access to comparable alternative services in a timely manner; and providers may not discriminate against program beneficiaries on the basis of religion. The original House bill allowed religious organizations to require program employees to adhere to religious beliefs and practices, as well as to rules related to drugs and alcohol. The Administration worked hard to remove this provision, leaving only language that is virtually identical to that included in the welfare reform law. This provision states that an organization's eligibility for the Civil Rights Act Title VII exemption allowing religious organizations to hire on the basis of religion will not be affected by an organization's receipt of these federal funds. In addition, the Administration secured language assuring that nothing in this provision "shall be construed to modify or affect the provisions of any other Federal or state law or regulation that relates to discrimination in employment." The Administration worked hard to ensure that the final version of the bill maintains state certification authority while prohibiting states from discriminating against substance abuse education and training provided by specifically qualified religious organizations. The Administration insisted on including language ensuring that nothing in this Act shall be construed to restrict the ability of the Federal government, or a state or local government receiving substance abuse funds, from applying the same eligibility conditions to religious organizations as are applied to other non- profits. Similar charitable choice provisions are included in the substance abuse bill that passed the Senate on a bipartisan basis last Fall (S. 976 sponsored by Senator Frist) and the Homeownership and Economic Opportunity Act that passed the House with solid bipartisan support in April 2000. Original Watts-Talent VS. Final Agreement 07/28/00 DRAFT FOR INTERNAL USE ONLY Section Watts-Talent (H.R. 815 As introduced) Administration/House Agreement 1. Bill status and The American Community Renewal Act was introduced in N/A summary House (H.R. 815) and Senate (S.463) in February 1999 to target 100 competitively selected poor communities for pro-growth tax and regulatory relief, Brownfields cleanup, and Family Development Accounts (a version of IDAs). 2. Applicable statAmends title V of Public Health Service Act. Amends title V of Public Health Service Act. 3. Applicable Appears to apply to SAMHSA Substance Abuse Prevention and Sec. 581(a) programs Treatment block grant only. SAMHSA Substance Abuse Prevention and Treatment block grant & substance abuse competitive grants. 4. Program Sec. 581© and Sec 582(a), p69, line 8 & p71, line 13 Sec 581(c) and Sec 582(a) definitions Defines terms to explicitly authorize voReligiouseo ganizations may receive financial assistance" means substance abuse funds to be provided as a assistance or be a provider of services. Financial grant, contract, cooperative agreement or voucherized assistance includes grants, contracts, or cooperative assistance. agreements. Religious orgs can either be the award recipient or make subawards to other orgs. 5. Nondiscrimina8ea 582©(1), p72, line 18 Sec. 582 (b) and (c)(1) against Finds that the Establishment Clause doesn't require social Rel orgs are eligible on same basis as other nonprofits Religious orgs welfare programs to discriminate against faith-based providers or as long as programs are implemented consistent with to abandon/censor religious character to provide SVCS. Establishment Clause and Free Exercise Clause. Sec. 582©(1) Nothing in this Act shall be construed to restrict Fed govt, or state or local govt receiving subst abuse funds, to apply to rel orgs the same eligibility conditions as are applied to other nonprofits. Sec 582(c)(2) Neither the Fed govt nor a state or local govt shall disrcriminate against an org on the basis that the org has a religious character. Sec. 582(d) Rel org shall retain its independence and neither fed govt nor state shall require rel org to alter internal governance or remove symbols in order to be eligible 6. Employment Sec 582(e), p74, line 3 Sec 582(e): practices Nothing changes other fed or state law or angis exemption from title VII of Civil Rights employment discrimination on basis of religion. Act allowing them to hire individual of a particular religion isn't affected by provision of services, or receipt of federal funds, under this program. Nothing in this Section shall be construed to modify or affect provisions of other federal or state laws Exception: Religious orgs may require relating to dissimination in employment (not in to adhere to the religious beliefs and practices of such welfare law). organization, and to any rules of the org regarding the use of drugs or alcohol. Silent 7. Arrangements for2(f) (1), p74, line 20 Sec 582(f)(1)and (2) alternative If a bene objects to program bc it's a religious org, the org or the If an individual objects to relig character of the org, providers non-fed entity making the subaward shall arrange for the the organization must refer, and the appropriate gov'l individual to receive SVCS of same monetary value from an entity must provide, w/in reasonable time period, alternative entity. equivalent and accessible svcs from an alternate provider. The appropriate Federal, State or local governmental entity shall ensure that program recipients or applicants are notified of their rights. An entity making a referral shall consider any list that the state or local govt makes available of entities that provide program svcs, and ensure that the individual makes contact with an alternative svc provider. 8. Nondiscrimination 582(f)(5), p75, line 23 Sec. 582(f)(4) against Relig orgs can't discriminate on basis of religion or relig belief, Relig orgs can't discriminate on basis of religion or beneficiaries BUT, they may require a bene to actively participate in religious relig belief in providing program services or engaging practice, worship and instruction, and to follow rules of behavior in outreach. that are religious in content 9. Fiscal Sec 582(g)(2), p9, line 6 Sec 582(g(1) and (2)) accountability Must comply with other federal regulations as other recipients of Must comply with other federal regulations as other federal assistance to account for use of funds, but if put federal recipients of federal assistance to account for use of funds in separate account, then federal audit limited to federal funds, but if put federal funds in separate account, funds. then federal audit limited to federal funds. 10. Treatment of Sec 584(a), p77, line 11 Sec 581(c) N/A Sec 1994A(b)(2) funds-Aid Financial assistance is aid Applies to financial Applies to contracts, grants, to to beneficiary not assistance, which means a certificates, vouchers, or other individual organization & receipt of grant, cooperative agreement forms of disbursement, to vs. services at an organization or contract. provide assistance to organizatio does not constitute federal beneficiaries n assistance to the organization. (No similar language in Frist or welfare law.) 11. Limitation on Sec 583, p77, line 1 Sec 583 1955(i) 1944A(k) Use of Funds pNo fued provided [through No funds provided directly No funds provided through a Funds a program can't be this program shall be used through this program shall grant or contract to a religious used for sectarian for sectarian worship, be used for sectarian org shall be expended for worship or instruction. instruction, or worship, instruction, or sectarian worship, instruction, Exception. proselytization. or proselytization. chooses where such assistance is No apparent limit on use of redeemed, such as funds provided through indirect vouchers, funds may disbursement. be used for sectarian worship or instruction. 12. Preemption fSec. 584(b) Silent. Silent. Note: Welfare law Silent state laws p77, line 20 has non-preemption Allows federal funds to be language. expended in a religious facility or by a religious organization even if forbidden by state laws or constitutions by segregating federal funds from state funds. 13. Intermediary Silent Sec 1955(k) Sec. 1944A(m) Organizatio If the nongovernmental org If the nongovernmental org ns (intermediate org) is given (intermediate org) is given authority under contract or authority under contract or agreement to select agreement to select nongovernmental nongovernmental organizations organizations to provide to provide assistance, the assistance, the intermediate intermediate organization shall organization shall have the have the same duties as the same duties as the government but shall retain all government but shall retain other rights of a all other rights of a nongovernmental under this nongovernmental under this section. section. 14. Compliance Sec. 582(h) Sec. 1955(h) Sec 1994A(j) Rel org may obtain judicial Any party that seeks to A party alleging violation of review of agency action in enforce rights under this rights by state or local govt may accordance with Ch 7 of title section my assert a civil bring civil action under sec 5, USC. action for injunctive relief 1979. A party alleging exclusively in appropriate violation by Fed govt may bring Fed or State court against civil action for appropriate the entity, agency or official relief in appropriate fed district that allegedly commits such court. violation. [WHC - pls review whether the differences between these bills raise any issues] 15. Educational Sec. 585 Sec. 585 Note: Nothing similar in N.A. requiremen p78, line 5 welfare law. Findings re: unduly rigid or ts for Finds that fomifialm educational personnel educational qualifications. in drug qualifications for drug In determining whether treatment counselors may personnel of org with programs undermine record of successful effectiveness of treatment for past three programs years meets state or local Requires statequirdnoaltstqprohibits treat religious states or local gov't from education and training discriminating against as equivalent to education and training secular course work in provided by a religious drug treatment. org as long as it includes State or locange contents can establish formal substantially equivalent educational to that provided by qualifications. nonreligious orgs. Exception-Sec'y may waive these requirements for applicant religious organizations (with burden of proof on state). WASHINGTON OFC PAGE 02 WASHINGTON NATIONAL OFFICE Laura W. Murphy Director AMERICAN CIVIL LIBERTIES UNION 122 Maryland Avenue, NE Washington, D.C. 20002 Tel (202) 544-1681 Fax (202) 546-0738 Memorandum Bill To: Gene Sperling, The White House (Attention: Joe Crisci) From: Laura W. Murphy, Director, ACLU Washington Office form Re: Meeting with Gene Sperling Date: July 11, 2000 Thank you for taking my call yesterday concerning a meeting with Mr. Sperling on the issue of Charitable Choice (federal funding for religiously controlled institutions). This measure is contained in the New Markets Initiative proposal sponsored by President Clinton and House Speaker Hastert. Because this legislation is on the fast track, we are anxious to meet with Mr. Sperling, Maria Echaveste and Bruce Reed, during the next ten days, to discuss the civil rights implications of Charitable Choice. Representatives from a number of organizations that have constituencies affected by this legislation would like to meet with you. The following individuals have agreed to make themselves available for such a meeting: Wade Henderson, Leadership Conference on Civil Rights Rabbi David Saperstein, Union of American Hebrew Congregations Richard Foltin, American Jewish Committee Brent Walker or Melissa Rogers, Baptist Joint Committee Nancy Zirkin, American Association of University Women Hillary Shelton, National Association for the Advancement of Colored People Laura W. Murphy and Terri Schroeder, American Civil Liberties Union Michael Lieberman, Anti-Defamation League Eliot Minceberg, People for the American Way Catherine Lilm 467-4999 Thank you for your prompt attention to this request. Please call me if you have any questions at (202) 675-2305. Nadine Strossen President (ra Glasser Executive Director Kenneth B. Clark Chair, National Advisory Council Richard Zacks Treasurer - National Headquarters 125 Broad Street, New York, NY 10004-2400 (212) 549-2500 Policy Considuction - Religioue organ don't want-ditunt interferen - unnecessary -can cute non-profite or other spin offe -will incoure discum by entihi tet setufed they will the guise title VII Legal view occ. of pm. in Home bill- our new -If - previously religion, no fed hand - If " ", " can disaiminate Question - what's left? LS this - boy priblem? Port artocle -GoP plett. charitable Choice -7/28/00 of Hastert Pre- mtg= House bill a deal w/ wath Santurum wantz to give us whatwa we wat but he wante CC Started on w/ bad stuff. Robb doesn't like Admin position back packet only on Need to sine Sant. something but as little as possible, and on area to it. (eg foodbanks itc.) after # resisting Acru disaim. Rep Bobby Scott -employment (did not set alot voites.) have p POTUS sympathetic VP to stuff Titu VII exerptions time wher cuite aspining theres allms discommention Rosenbing -authorise no N mre entaylent Holy for purely religroun basis can swithers and Arros uphild by Suplt ACLU- grit to support faithbased b/c they prease back laby stuff about the other uligion taguge on religion. ACKA but not clear race, write Title VII Exerption to allow them hive people of then own faith News NC got CS-BG Same new mate prosin some as W.R. t other btls ex cept Liseansing was the only thing her know your concerne Not going mary bak on ded wf the nome but we cnt ulitigate May ask us to Support legislated hoge. In N.M 1 Culd old more program Hourt will pall Suntern to take the Howe bill Corpres CmA so to previsionsly Sectarin ok Emplant Disa - Didend support licnes, Edue require Cirl be kepelared No Issulinew sround? force name window prevaux summ + entaggent issue First challege to CC in Houston, TX but Loder Like shite law Charitable Choice 47/28/00 House passed Some disagreement sinate Santorm/Lecbum timbet no CC prision Robb Dem bill introduced There has better sufeguarde Wade - Vey topes abnt passage JRLPA process mean worked here turias as a model Not a new usue with the ble avoir came up = Support new mkk by generally but CC provinn press presents a serious constitutional publine have Mupty have discussions WW # about this in W.R. suverile justice but felt pushated w new mktz Reg Bobby Scott t other-male overtune but no response want a process groups 007 CRD W.H.CComale DPC, AEC) what dow you Exemption Language men Title VII (Bill M) new legal ground original bill went was byal w R. We pushed bue so to new Life like W.R. Not CA decision in this and If Xn were eligible he TItle III exemption then you contine to be Admin talking point indicated that civil MAS issue- nothing in this law, -Care not So byl can't Little JII examption wo clse. Lauge denhid incaption is the saving poir would be used wold be allend to dicumate foces ) If Admir puntin previously recture art sit fuls mitchells V. Helory capier / at the sentitues some Kimi Title VII you nut be prevoinlysectain M But somall pupublicons are pucking pouse saying that it will alta it Group) Religiourly Affiliated groups - do disamule = it's already a publace United CC Views WAS cortain this name Legye Paul will Bruie Hillary eich Gene Laur Melissa miche may 13 it constitute to alla handle togo togoto P non-pressively sectarion groups t alla the discum Wade- This cald result ix discum or nee sixual 3rd - uth circuit ? - If THE VII is involved, EEOC can't investry ate G Tuel - discive. Care want name eximption for THERE Lawa Religine sunps Can set up a non-prodit organizations. no problem right now that needs C.C, -Some grops fed $ + no went to discumente + potholitized It can be used to undermine C.V. rights laws. This the out Support anbits by constitute Mrs. provision Melissa That are other options -see UP speed Partnership of Caps., ek CC will be a set bale Broader discrimination will occur Postin being hinded attached shed not discum E tel Not a pusnasive publame that get funded non profit Sound Smity Shidy shas Het chenches dad want $ but may che I H accilb4. Frees up mre cherch $ for protably Fed $ shildnet be used to endorse discomnt & wode wint towark with wis Nextstep: Continue concersation -WH Compl NEC DPC, CRD, OLC Will probibly unit Los Kp JC Wattz Su. Sentorn, Rys. Talent Admin latse put Salle w/c.(. Irene Bueno 07/28/2000 05:52:21 PM Record Type: Record To: Maria Echaveste/WHO/EOP@EOP CC: Subject: Summary of the mtg on Charitable Choice provisions in the New Market bill Here's my summary of the premtg and mtg with the civil rights groups. In the premtg, Gene explained that we made an agreement with Hastert/Watt on a number of things including charitable choice provisions. During the House consideration of the bill, Rep. Bobby Scott offered an amendment to strike this section but got few votes (groups say b/c he did have time to work it). Senator Santorum has a bill and is willing to give us what we want in the bill if we give him something big on Charitable Choice. Gene thinks that we should push back but perhaps we could give him a little if we really had to but don't offer it up front. Examples of give backs would be adding certain sectors. Senator Robb's bill is silent on this issue whicht the groups like. We agreed that we would mainly listen to the groups. In the meeting with the groups, they asked our reading of the provision in the House bill. DPC's view is that the provision in the House bill is very similar to the provision that is included in the welfare reform law and the community social block grants law and includes some safe guards do not expand the groups that can discriminate. WH Counsel/OLC reading of the provision is that pervasively sectarian groups cannot get federal funding and groups that are not pervasively sectarian cannot discrimination under Title VII therefore we are unsure how many groups would be eligible for federal funding and would be allowed to discrimination under Title VII. Groups felt strongly that there is a problem and there are many groups that are already taking advantage of this and are discrimination and the discrimination goes beyond religious discrimination to race, gender and sexual orientation. Furthermore, the groups think that religious groups already have ways of serving communities without being allowed to discrimination. Indeed they think that religious groups don't want federal funding if it means that it will mean interference by the federal government. Finally, groups think the federal funds to religious organizations will simply give more funds for proselytizing Groups asked that we set up a process similar to the one that we did for Religious Liberties Act for which they were very happy and look to as a model. We agreed to set up such a process. They want to work with us and don't want to go public. Groups also informed us that they are planning to speak with Rep. Watts and Sen. Santorum about their concerns.