What to Do If Officials Ignore Charitable Choice

Stanley W. Carlson-Thies

The Center for Public Justice

Charitable Choice has been the law of the land for certain federal funds since it was first adopted as part of the federal welfare reform law (PRWORA) by Congress and the President in August, 1996. It covers federal funds for welfare and Welfare-to-Work services, Community Action Agencies, and cer-tain drug treatment programs. Charitable Choice is a federal requirement that state and local govern-ments cannot avoid when they accept those funds.

However, for Charitable Choice to make a difference for a faith-based group that wishes to collaborate with government programs, state and local authorities first have put the new rules into effect. They must ensure that their own procurement regulations and practices have been made to comply with Charitable Choice.

Instead, many state and local governments have yet to come into compliance with Charitable Choice. In too many cases, officials do not even know that Charitable Choice has established new rules for pro-curement. In other cases, officials have chosen not to comply with Charitable Choice, arguing that the rules conflict with the constitution (federal or state) or with state or local laws forbidding religious dis-crimination. Or they assert that compliance is useless because faith-based organizations are not large enough or mature enough to contract with government. In some places officials refuse to comply be-cause they are beholden to existing relationships with nonprofit organizations.

Faith-based organizations should not be surprised if they encounter blank stares or opposition when they approach public officials to claim their right under Charitable Choice to compete to provide serv-ices. But don't give up! Instead, be a change agent! Prayerfully play a part in helping to open up the public square to full participation by religious service organizations. Start by informing yourself fully about Charitable Choice: how it protects faith-based organizations, what limits it places on religious activities, and how it protects people who need services.

Educate

If you get the brush-off when you ask how your faith-based organization can compete to provide services the government seeks to buy . . .

If the officials just don't know, share with them A Guide to Charitable Choice or Charitable Choice 101 - An Introduction.

If the local officials are resistant, go higher up: find out who in the welfare or workforce development system is in charge of community outreach or relations with community or religious groups. This person may know about Charitable Choice, may be looking exactly for opportunities to link with the faith community, and may be able to help overcome the local resistance.

Challenge

Local resistance may reflect indifference or opposition to Charitable Choice by the entire welfare or workforce development agency, the attorney general, the legislature, or the governor . . .

If so, you may want to make implementation of Charitable Choice a key priority on behalf of your organization, other faith-based providers, and the poor, who deserve the best assistance they can get. Join with others, if you can, and search for a sympathetic legislator, or someone in the governor's office who knows the power of God's love unleashed in service, or an official in the welfare system who un-derstands that faith is the root of love, not a toxin to be kept hidden away. Start to educate the officials and win their support for expanded collaboration that respects the special character of faith-based organizations.

If you are prevented from competing to provide services or, after being selected as a provider discover that the conditions of the contract violate Charitable Choice, consult a knowledgeable lawyer to see what your recourse is. A word from the lawyer may be enough to help the officials recall what the law actually requires. Or you may have to decide whether to challenge the violation in court, generate publicity about the violation, or organize public pressure.

Work Around

If officials resist putting Charitable Choice into practice, you may wish to try alternatives (perhaps while also pressing for compliance):

Build strong relations with local officials so that they can see how your programs would assist their clients. Their desire to collaborate may outweigh their resistance to Charitable Choice.

Remind officials about the great challenge posed by the families remaining on welfare, the significant surpluses they have in their welfare accounts, and the broad scope the federal government has given them to try innovative approaches to assisting needy families. Propose that they work "outside the box" with you and with other faith-based ministries, emphasizing the importance of new approaches and the growing public consensus in favor of government collaboration with faith communities.

If officials claim that they cannot contract with your organization because it is too religious or inexpe-rienced, see if you can subcontract with some group that the government has accepted as a provider. Whether religious, secular, or for-profit, that group may be looking exactly for an organization like yours that is rooted in the community, and they may find your faith basis to be an asset, not a liability.

Your ministry might join with other ministries or congregations in a faith-based consortium that partners with an experienced religious contractor. Officials are familiar with groups such as Salvation Army, Catholic Charities, and Lutheran Social Services, and many of these groups are used to dealing with government requirements. They may be willing to be the contract administrator and intermediary between the faith-based consortium and skeptical government officials.

If officials insist that faith-based groups must be excluded from government money or you prayerfully determine that the government's conditions are unacceptable, you may want to explore the possibilities of a nonfinancial relationship with the public programs. Officials may be willing to refer clients to you on an occasional basis. And they even may be happy to enter into a formal referral arrangement, convinced that you can offer their clients essential assistance, despite their (false) belief that gov-ernment money must not flow to you.

Legal Resources

A Guide to Charitable Choice: The Rules of Section 104 of the 1996 Federal Welfare Law Governing State Cooperation with Faith-based Social-Service Providers, (Center for Public Justice and Center for Law and Religious Freedom, 1997); 410-571-6300 or http://cpjustice.org

Gammon and Grange (www.gandglaw.com), 703-761-5000. Ask for Peter Rathbun, Rick Campanelli, or Chip Grange. Will refer to local counsel if appropriate.

Alliance Defense Fund (www.alliancedefensefund.org), 602-953-1200. Ask to be referred to a staff attorney or to local counsel.

Christian Legal Society, 703-642-1070. Explain your concern and ask to be directed to a staff attorney or to one of the hundreds of CLS member attorneys throughout the country.