Charitable Choice - Implementation
Putting Charitable Choice into Practice
Charitable Choice is the governing law when state and local governments use certain federal funds to buy welfare, social-service, and drug-treatment services from nongovernmental providers--nonprofits, faith-based organizations, and other community groups. However, Charitable Choice is just fine words in the federal law books until state and local governments take action in response to it.
That is because state and local procurement practice is typically more restrictive than Charitable Choice permits. In fact, Charitable Choice was originally written as a response to restrictions in federal and state laws. So, until a state or local government evaluates its procurement practices and changes the rules that do not conform with the new provision, Charitable Choice will be a dead letter in that jurisdiction. Despite the federal rules, in that jurisdiction faith-based organizations will continue to run into barriers, religious providers will discover that elements of their religious character are not protected if they accept government money, or the religious liberty rights of clients may not be adequately protected.
Listing religious organizations that currently contract with a government agency is not a good substitute for actually reviewing the terms and conditions of contracts, grants, and vouchers. A house of worship that provides federally funded child care services does so not because of Charitable Choice but because of a 1990 federal law on child care. Government has often contracted with religious organizations to provide services; the key question now is what are the terms of those contracts? Do the religious organizations enjoy all the freedoms Chariable Choice protects? Are they held responsible as it requires? Are the rights of recipients protected? What is key is not whether government contracts with religious organizations, but under what conditions the contracting takes place.
Officials should review the details of procurement to ensure compliance with Charitable Choice. This means checking contract and grant documents, civil rights compliance forms, communications about procurement opportunities, procurement manuals, and other documents to be sure that faith-based organizations have an opportunity to compete, their religious character is honored (e.g., their right to use religious criteria in employment decisions is protected), and their obligations are spelled out. Officials may need to take special steps to be sure an alternative is always available for recipients who object to receiving services from a faith-based organization.
New Implementation Guide!
See the Center's new Implementation Guide for detailed information on Charitable Choice and how to reform procurement policy and practice to comply with it. The guide includes a detailed check list for reforming procurement documents, regulations, and practices. The guide provides specific information on complying with Charitable Choice as it applies to TANF, Welfare-to-Work, and Community Services Block Grant (Community Action Agencies) funds. Charitable Choice for Welfare and Community Services: An Implementation Guide for State, Local, and Federal Officials (Center for Public Justice, Dec. 2000). To order, go to Charitable Choice Resources -- Publications.
Complying with Charitable Choice and, in general, making government programs and procedures more hospitable to groups that have not historically worked with government, can require significant change in government policy and practice. Such changes are unlikely to take place without strong leadership. Regulations and statutes may need to be changed. Agency culture may require modification. New direction needs to be imparted to overcome inertia.
Here are some ways that states have acted to promote Charitable Choice implementation:
1. The governor issues an Executive Order directing state agencies that spend money covered by Charitable Choice to evaluate and change procurement policy and practice (Texas, Colorado, Arkansas).
2. A state legislature passes legislation writing Charitable Choice into the state's own laws to ensure there is no ambiguity about its validity and/or to expand its scope beyond the federal scope (Wisconsin, Texas, Arizona).
3. The governor or the legislature institutes a task force to examine government barriers preventing full participation by faith based and grassroots groups and to propose solutions (Virginia, Texas, Wisconsin).
4. The Attorney General or other legal officials distribute an advisory brief about compliance with Charitable Choice (Ohio).
5. When welfare policy is devolved from the state to local or regional bodies, state officials draft regulations or other guidance about changing procurement to comply with Charitable Choice (California, Arkansas).
For further suggestions on implementing Charitable Choice, see the Center's new Implementation Guide.
Charitable Choice: Top 10 Tips for Public Officials
Charitable Choice Compliance - A National Report Card
Restrictions on Faith-Based Organizations
For restrictions on faith-based organizations in federal and state laws and regulations, see:
Carl Esbeck, The Regulation of Religious Organizations as Recipients of Governmental Assistance (Center for Public Justice, 1996) (for ordering information, go to Charitable Choice Resources -- Publications.)
Stephen V. Monsma, When Sacred and Secular Mix: Religious Nonprofit Organizations and Public Money (Rowman & Littlefield, 1996).
American Law Division, Congresional Research Service, "Federal Statutes and Regulations That Discriminate Against Religion" (CRS, March 18, 1996).
