# ** More Than Rules  *How Equal Treatment Can Expand Services to America's Needy ***

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# *** Overview***

## Common FBCI Myths

## Meet the "Armies of Compassion"

## The Faith-Based and Community Initiative:

##  A History

## Federal Efforts to Remove Barriers 

## & "Level the Playing Field"

## Equal Treatment Regulations: Core Principles

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# **Myths v. Reality**

## **MYTH**

## *"The Faith-Based and Community Initiative is about government favoring (or wanting us to favor) faith-based groups when we award federal funds."*

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## **REALITY**

## By law, government is required to be ***neutral*** with respect to religion

## The Initiative:

### Removes barriers to participation by FBCOs in federal programs

### Ensures a "level playing field" for all groups and individuals, regardless of religious affiliation or lack of affiliation

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# **Myths v. Reality**

## **MYTH**

## *"The Constitution strictly prohibits the government from providing funding to or partnering with any faith-based group."*

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## **REALITY**

## The Supreme Court has "consistent\[ly\] reject\[ed\] . . . the argument that 'any program which in some manner aids an institution with a religious affiliation' automatically violates the Establishment Clause" (*Mueller v. Allen* (1983) (citing cases as far back as 1899); ***See also** Mitchell v. Helms* (2000).

## ***Key Questions*** 

##  (1) How is federal assistance being provided to the FBCO? 

##  (2) What is the *actual use* to which the funding is being put?

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# **Myths v. Reality**

## **MYTH**

## *"Faith-based groups that receive government assistance must hide their religious identity; limit their religious activities; restrict governing board membership; and remove religious signs, symbols, and art from their facilities"*

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## **REALITY**

## FBOs can partner with government and still retain their religious identities.

## The restrictions on faith-based groups listed above (and others) are *prohibited* by:

### Executive Order 13279, guaranteeing equal treatment for faith-based groups.

### Regulations at 8 Federal Agencies (DOL, DOJ, HHS, HUD, DOEd, USDA, VA, USAID) implementing Executive Order 13279; and

### Various federal "Charitable Choice" statutes (*e.g.*, 42 U.S.C. 290kk-1(d)(2)(B), relating to programs governed by SAMHSA)

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# **Myths v. Reality**

## **MYTH**

## *"Faith-based recipients of federal support are more deserving of government scrutiny than secular recipients"*

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## **REALITY**

## Neutrality means that faith-based organizations:

### Have the same opportunity as other groups to apply for and administer federal assistance

### Be held to the same levels of scrutiny and accountability as other government partners

## Their religious identity should not single them out for greater oversight or monitoring

## Regardless of their identity, any new recipient of federal funds may initially need additional training to comply with federal requirements

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# **Meet the "Armies of Compassion"**

## FBCOs include religious and non-religious non-profit groups that:

### Provide social services

### Vary greatly in size and resources

### Operate in communities ranging from the most urban to the most rural, serving both domestically and internationally

### Identify themselves with various (1) community initiatives/objectives; and (2) religious or nonreligious traditions or philosophies

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# **Meet the "Armies of Compassion"**

## FBCOs provide:

### Unique access to underprivileged communities, high-need individuals, and community leaders

### Close cultural connections to local communities

### Dedicated volunteers

### Deep personal commitment to the individuals being served

### Individualized, supportive services

### Services that effectively complement federal programs

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# **A History of the FBCI**

# ***Why is the Initiative Necessary?***

## Internal audits found that federal agencies frequently imposed the following barriers to participation of faith-based groups in their programs:

### Assumed faith-based groups could not partner with government because of their religious identity 

### Excluded faith-based groups, but not secular ones, from certain programs

### Conditioned receiving assistance on a faith-based group's willingness to accept restrictions on its religious identity and activities that were not legally mandated

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# **A History of the FBCI* Why is the Initiative Necessary?***

## Barriers specific to small or novice FBCOs (religious and non-religious) included:

### *Federal Agencies*:

#### Procurement and grant-making processes designed in ways that benefited prior grantees

#### Lack of awareness about FBCO services and capabilities

#### Limited outreach to non-traditional partners

#### Unnecessarily complex applications and reporting

### *Small or Novice FBCOs*:

#### Lack of knowledge and information about or experience with federal procurement and grant-making

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# **Federal Responses to Barriers *Leveling the Playing Field***

## ***Equal treatment regulations*** at eight federal agencies (DOL, DOJ, HHS, HUD, DOEd, USDA, VA, USAID) are designed to:

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### Ensure equal treatment of and religious liberty for organizations providing services with federal financial assistance

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### Protect the religious liberty of beneficiaries

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### Clarify proper, Constitutional uses of federal assistance

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# **Federal Responses to Barriers *Leveling the Playing Field***

## Federal agencies are implementing:

### Policy and program changes to expand public-nonprofit-private partnerships

### Outreach and technical assistance to strengthen the effectiveness of non-traditional partners and their ability to work with federal programs

### Innovative partnership strategies to improve federal social services to the most needy

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# **Federal Responses to Barriers *Leveling the Playing Field***

## The Centers work within their respective departments or agencies to:

### Expand ways in which FBCOs can partner with government to meet people's needs

### Ensure the equal treatment of FBCOs in the administration and distribution of federal financial assistance

### Protect the religious liberty of (1) FBCOs that partner with the federal government and (2) beneficiaries of federally-supported social service programs

### Equip federal agencies and other entities to work more effectively with FBCOs

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# **Federal Responses to Barriers* Precursor: Charitable Choice***

## Applies to TANF, WtW, CSBG, and SAMHSA;

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## Prohibits government from excluding faith-based providers from competing on an equal basis for government funds based on faith;

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## Prohibits discrimination for or against faith-based groups;

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## Obligates government to protect the religious character and independence of groups that receive government funds;

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## Protects the religious liberty of beneficiaries by expanding their service options and requiring alternatives if anyone objects to a faith-based program (regardless of whether funding is direct or indirect);

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## Prohibits direct funding of inherently religious activities like worship, religious instruction, or proselytization;

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## Prohibits discrimination against beneficiaries on the basis of religion;

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## And Preserves Title VII religious hiring liberty.

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# **Federal Responses to Barriers *Leveling the Playing Field***

## ***Equal treatment regulations*** apply to:

### Federal, state, and local officials that distribute or administer federal assistance

### Non-profit, for-profit, or public organizations that receive, distribute, or administer federal assistance

### Federal discretionary, formula, and block grants

### State funds commingled with federal assistance

### State, local, or private funds that are required as a match for federal assistance

### Cooperative agreements (federal contracts for services)

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# **Federal Responses to Barriers** ***Leveling the Playing Field***

## ***Equal Treatment does not apply:***

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### Where social services are provided by one of the covered government entities in-house

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### Where a program is covered by existing Charitable Choice Provisions

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# **Core Principles of the** 

# **Equal Treatment Regulations**

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## Constitutional Use of Federal Assistance

## Equal Opportunity for All Organizations

## Respect for the Rights of Faith-Based Organizations

## Respect for the Religious Liberty of Beneficiaries

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# **Core Principles of Equal Treatment *Proper, Constitutional Uses of Federal Assistance***

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## ***"Direct" federal assistance*** includes most kinds of federal assistance provided to an organization *unless* the funding satisfies the tests for being "indirect" assistance (see next slide)

## ***"Direct" federal assistance*** can be:

### Contracts 

### Grants

### Sub-awards

### Cooperative agreements

### Loans

### Formula and block grants

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# **Core Principles of Equal Treatment *Proper, Constitutional Uses of Federal Assistance***

## ***"Indirect" federal assistance*** means the beneficiary:

### Is given *genuine, independent choices* about where to use the federal aid, including having at least one non-religious option

### *Freely chooses* where to use the aid

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## ***"Indirect" federal assistance*** can be:

### Vouchers

### Certificates

### Coupons

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## To promote *genuine and independent choice*, program descriptions should briefly identify any religious elements

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# **Core Principles of Equal Treatment *Proper, Constitutional Uses of Federal Assistance***

## **Direct vs. Indirect**

## **Federal Assistance**

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## ![](media/image1.wmf){width="0.8333333333333334in" height="0.6583333333333333in"}

## **Direct:** 

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## ![](media/image3.wmf){width="0.8479166666666667in" height="0.7611111111111111in"}

## **Indirect:**

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# **Core Principles of Equal Treatment *Proper, Constitutional Uses of Federal Assistance***

## How do you know if the use of federal assistance is ***proper and Constitutional***?

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## ***No [direct]{.underline} funds for "inherently religious activities" like*** 

## Prayer, Worship, Religious Instruction, or Evangelization

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## ***BUT***

## *Such activities are permissible if:*

## *Privately-funded*

## *Separate in time or location from gov't program*

## *Voluntary for program beneficiaries*

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# **Core Principles of Equal Treatment *Proper, Constitutional Uses of Federal Assistance***

## If the federal assistance is ***indirect***, then inherently religious activities may be:

### Incorporated into a program

### Made mandatory for program participants

### *Unless a program statute contains a prohibition on doing so*

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## When "indirect" federal assistance is used, participation by the beneficiary in religious activities is considered voluntary because it is the beneficiary who has freely chosen to participate in the training program, knowing that it had religious aspects

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# **Core Principles of Equal Treatment *Proper, Constitutional Uses of Federal Assistance***

## "Direct" federal assistance cannot be used for inherently religious activities. Which of the following activities would this include?

### Worship

### Religious Instruction

### Prayer

### Proselytizing

### All of the above

## If a FBO receives "direct" federal assistance, when are inherently religious activities permissible?

### A. Never

### When privately funded

### When separate in time or location from a federally-supported program

### When voluntary for program beneficiaries

### B, C, and D

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# **Core Principles of Equal Treatment *Proper, Constitutional Uses of Federal Assistance***

## Under which kind of funding scenario could a FBO incorporate religious activities into a federally-supported program and require beneficiaries to participate in those religious activities (*unless a program statute contains a prohibition on doing so*)?

### "Direct"

### "Indirect"

####### C. Both 

## True or False? A FBCO can use "direct" federal assistance to purchase religious or scriptural materials (e.g., Bible, Torah, Koran, Talmud) or other materials intended for inherently religious activities.

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### False

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# **Core Principles of Equal Treatment *Proper, Constitutional Uses of Federal Assistance***

## Train your staff, including program monitors, on the principles of proper, Constitutional uses of federal assistance

## Include language in all funding notices, grants, and contracts that explains the proper, Constitutional uses of federal assistance (and state or local funds commingled with federal assistance)

## Ensure that checklists and monitoring guides for desk and field reviews ask about the proper, Constitutional uses of federal assistance, religious freedom, and other activities

## Provide information to organizations that receive federal assistance about their rights and responsibilities when administering both "direct" and "indirect" federal assistance

## For greater flexibility, consider ways to incorporate vouchers and other "indirect" funding mechanisms into programs

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# **Core Principles of Equal Treatment *Equal Opportunity for All Organizations***

## Federal, state, or other mechanisms through which federal assistance is provided to organizations must, by law, be *neutral* with respect to religion

## No eligible organization may be denied the opportunity to compete for or receive federal assistance based on the organization's religious character or affiliation

## No organization may be discriminated for or against on the basis of religious character or affiliation

## There must not be any quotas or set-asides for faith-based groups or assumptions of effectiveness or ineffectiveness

## Faith-based providers must not be excluded from federally-supported programs simply because they are perceived as "too religious" or "pervasively sectarian"

## Organizations must be judged by what they can do, not who they are

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# **Core Principles of Equal Treatment *Equal Opportunity for All Organizations***

## Equal treatment regulations prohibit discrimination for or against an organization on the basis of religious character, affiliation, or lack thereof. This applies to which level of government?

### State (if mixed with federal assistance)

### Local (if mixed with federal assistance)

### Federal

### All of the above

## Which of the following assumptions is false?

### The effectiveness of FBOs is based on results, not on their identity as FBOs

### "Faith-saturated" FBOs are ineligible to apply for federal assistance

### FBOs are eligible to apply for federal assistance on the basis that they are generally more effective at providing services

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### All of the above

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# **Core Principles of Equal Treatment *Ways to Ensure Equal Opportunity for All Organizations***

## Train your staff, including program monitors, on the principles of equal opportunity and treatment for all organizations

## Review grant, contracting, and other procurement procedures to identify and remove unnecessary barriers to new or non-traditional partners

## Make competitive funding opportunities easily accessible to the public and broadly advertised to potential providers, including faith-based and community organizations

## Ensure that eligibility requirements are clear and affirm the principles of equal treatment

## Revise, clarify, and advertise competitive funding announcements, regulations, and compliance forms governing federally-supported programs

## Rotate members of peer review panels more frequently

## Avoid defining "community organizations" to exclude faith-based organizations

## Increase the competitiveness of funding opportunities by removing any special advantages given to incumbent organizations

## Provide technical assistance to small or novice non-traditional providers

## Take steps to foster social service partnerships with all types of civic, charitable, faith-based, and community organizations

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# **Core Principles of Equal Treatment *Respect for the Rights of Faith-Based Organizations***

## Faith-based organizations that receive federal assistance may:

## Continue to carry out their religious activities

## Keep and display religious signs or symbols inside and outside their facilities

## Continue to use religion as a basis to select their board members (including members of the clergy) and otherwise govern themselves on a religious basis

## Offer *voluntary* religious activities to program beneficiaries---keep in mind that no "direct" federal assistance can be used for religious activities, which must be separate in time or location from federally-supported activities, voluntary for program beneficiaries, and privately funded

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# **Core Principles of Equal Treatment *Respect for the Rights of Faith-Based Organizations***

## Title VII of the Civil Rights Act of 1964 ensures that faith-based organizations (FBOs) have the freedom to base employment decisions on religion, *unless a program statute contains a prohibition on doing so*

## Title VII generally applies to FBOs that receive or administer federal assistance, *except under certain program statutes*

## The Religious Freedom Restoration Act (RFRA) may apply if a FBO can show its free exercise of religion is "substantially burdened" by a prohibition on making employment decisions based on religion

## In addition to FBOs' right to religious hiring, faith-based and community organizations may make employment decisions based on factors not prohibited by federal, state, or local statutes

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# **Core Principles of Equal Treatment *Respect for the Rights of Faith-Based Organizations***

## Many federal programs require providers to be non-profits; ***however*** if not specifically required by a federal statute, states ***cannot*** impose 501(c)(3) status as a condition of eligibility for government funding

## Various ways to prove non-profit status:

### Tax-exempt status letter from the IRS; ***or***

### Appropriate state agency verification; ***or***

### Articles or charter of incorporation filed with state; ***or***

### Local non-profit affiliate of a state or national non-profit

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# **Core Principles of Equal Treatment *Respect for the Rights of Faith-Based Organizations***

## True or False? A FBO that receives federal assistance must discontinue their religious activities, limit board membership to non-clergy, change their religious name, and remove or cover religious art or symbols.

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### False

## True or False? A FBO that receives federal assistance may base employment decisions on religion, unless a program statute contains a prohibition on doing so.

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### False

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# **Core Principles of Equal Treatment *Respect for the Rights of Faith-Based Organizations***

## Train your staff, including program monitors, on respecting the rights of faith-based organizations

## Include language in all funding notices, grants, and contracts that explains the rights of faith-based organizations

## Ensure that checklists and monitoring guides for desk and field reviews ask about respecting the rights of faith-based organizations, religious freedom, and other activities

## Ensure that federally-supported programs respect the rights of faith-based organizations, in keeping with the equal treatment regulations

## Provide information to faith-based organizations that receive or administer federal assistance (and state or local funds commingled with federal assistance) on their rights, as well as to other groups that may partner with faith-based organizations

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# **Core Principles of Equal Treatment *Respect for the Religious Liberty of Beneficiaries***

## Prospective or current program beneficiaries:

## Must not be treated differently because of their religion or religious beliefs (or lack thereof)

## Must be permitted to exercise their right to religious freedom

## Must be provided with *reasonable accommodation* for their religious beliefs in federally-supported programs ("*reasonableness*" is determined on a case-by-case-basis, based on the particular circumstances involved)

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# **Core Principles of Equal Treatment *Respect for the Religious Liberty of Beneficiaries***

## Prospective or current program beneficiaries:

## Must be informed that (1) participation in *inherently religious activities* *is voluntary* and (2) their choice whether or not to participate will not affect the quality of the service they receive

## May *freely choose* to participate in religious activities (see rules for "direct" and "indirect" assistance)

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# **Core Principles of Equal Treatment *Respect for the Religious Liberty of Beneficiaries***

## What should a program employee do if a participant asks him/her about his/her personal faith while he/she is providing a federally-supported service?

### Give a detailed account of his/her religious faith

### Don't respond

> C. Give a short answer and offer to talk to the participant outside
> the context of the federally-supported program

## True or False? An organization that receives federal assistance may discriminate against a potential or current program participant because of their religion, religious beliefs, or lack thereof.

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# **Core Principles of Equal Treatment *Respect for the Religious Liberty of Beneficiaries***

## Train your staff, including program monitors, on respecting the religious liberty of beneficiaries

## Include language in all funding notices, grants, and contracts that explains the religious liberty of beneficiaries

## Ensure that federally-supported programs respect the religious rights of beneficiaries

## Ensure that checklists and monitoring guides for desk and field reviews ask about respecting the religious liberty of beneficiaries

## Provide information to individuals that receive federally-supported assistance about their religious rights

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# **Federal Resources & Contact Information**

## **White House Office of Faith-Based and Community Initiatives**

## [**[www.whitehouse.gov/government/fbci/index.html]{.underline}**](http://www.whitehouse.gov/government/fbci/index.html)

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## **Federal Regulatory Changes (all agencies)**

## [**[www.whitehouse.gov/government/fbci/regulatory-changes.html]{.underline}**](http://www.whitehouse.gov/government/fbci/regulatory-changes.html)

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