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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.