# Presentation: 530378

## The President’s Faith-Based and Community Initiative

- 	What is It?
- 	What Are Your Legal Responsibilities Under It?
- 	Presented by:  Jessica Lyn
- 				Attorney
- 				Office of the Solicitor
- 				U.S. Department of Labor

## Purposes of Executive Order 13279

- To ensure equal protection of laws for faith-based and community organizations (FBCOs)
- To expand opportunities for FBCOs to meet the social needs of Americans
- To ensure the equal treatment of FBCOs in the administration and distribution of Federal financial assistance

**Notes:**
On December 12, 2000, President Bush issued Executive Order 13279 to ensure equal protection of laws for FBCOs; to expand opportunities for FBCOs to meet the social needs of Americans; and to ensure the equal treatment of FBCOs in the administration and distribution of federal financial assistance.  The guiding principle behind the Order is that all organizations should be able to compete on an equal footing for Federal dollars and furthermore that organizations and individuals participating in government social service programs must not be discriminated for or against on the basis of religion or religious belief.  As part of this Initiative, the President ordered implementation of these policies throughout the executive branch, consistent with the First Amendment to the U.S. Constitution.  In implementing these policies DOL has adopted a three-tiered approach.

## What does this mean for you?

- Be aware of new regulations published at 29 CFR Part 2, Subpart D
- Familiarize yourselves with recent changes made to regulations governing both
- WIA (29 CFR 37.6(f)); and
- Job Corps (29 CFR 667.266; 667.275; 670.555)

**Notes:**
First, the Department of Labor published rules governing how the Department and DOL social service providers administer and distribute federal financial assistance.  These regulations are published at 29 CFR Part 2, Subpart D.  They apply to DOL, DOL social service providers and State and local governments administering DOL support.  In essence, they govern any entity that receives Federal financial assistance from the Department of Labor.  They therefore govern entities operating under the One Stop System, including Job Corps operators.

Second, as part of its effort to comply with the President’s Executive Order, the Department reviewed its various programs and regulations regarding the treatment of religious activities under WIA and Job Corps, among others, to ensure they were consistent with this new Initiative and that they were compliant with the First Amendment to the U.S. Constitution.  As a result of this review, DOL made several changes to its regulations governing both WIA and Job Corps.  This presentation will highlight the general provisions set forth in Subpart D and the changes recently made to the WIA and Job Corps regs.

Third, DOL is in the process of putting together more detailed guidance on what these regulations and regulatory changes mean for WIA and Job Corps, so a lot of details will be fleshed out in the forthcoming guidance.  Today, I am hoping to provide you with the basic framework.

## All Roads Lead to Subpart D (of 29 CFR Part 2)

- Applies to all social service providers, including State and local governments, that implement DOL supported social service programs.  So . . .
- Applies to the One Stop system, including operators of Job Corps centers.
- Governs the administration and distribution of DOL support.
- Applies equally to DOL support, State funds commingled with Federal funds, and funds the State is required to contribute under a matching or grant agreement.

**Notes:**
It is important to familiarize yourselves with the regulations at 29 CFR Part 2, Subpart D, b/c these regulations apply to . . .

The regulations are broad and govern the . . .

AND, they apply equally to DOL support . . .

## What is “DOL support”?

- Defined as “Federal financial assistance, as well as procurement funding provided to a non-Federal organization to support the organization’s administration of or participation in a DOL social service program.”  29 CFR 2.31(g).
- Includes grants, contracts, and cooperative agreements.

**Notes:**
Before we get in to the nitty gritty of the regulations, I think it’s important to define a few key terms that I will use throughout this presentation.

These regs govern the use of DOL support.  What do we mean by DOL support?

Remember, “Federal financial assistance” includes more than just dollars and cents – It also includes the permission to use Federal property (on other than a casual or transient basis), the detail of personnel, and other arrangements with the intention of providing assistance.

## Two types of “DOL support”

- Direct support
- Indirect support

**Notes:**
You need to understand this distinction to understand when WIA financial assistance can be used for religious activities and when it can’t.  This distinction is important because under the First Amendment of the Constitution, the government is generally prohibited from encouraging religion over non-religion or from favoring one religion over another.  Courts have held that such endorsement or establishment of religion occurs when direct support is used to fund religious activities.

## What is “direct support”?

- DOL financial assistance or procurement funding:
- provided directly
- by DOL, or
- by an entity standing in the shoes of DOL
- to a non-governmental organization (including a religious organization)

**Notes:**
Direct DOL support includes, for example, (1) the contracts to operate Job Corps centers and (2) grants awarded to organizations to run DOL social service programs.

## When is DOL support considered “indirect”?

- Program through which support is provided must be *neutral* with respect to religion (neither favors nor disfavors religion)
- Beneficiaries are given *genuine, independent choices* about where to direct the aid (whether to religious or secular providers/institutions/program options)
- Beneficiaries *freely choose* to direct the aid to religious providers or program options

**Notes:**
Essentially, indirect support is support that passes through the hands of individuals who themselves freely decide where the support is to be directed.  Courts permit the use of indirect financial assistance for inherently religious activities in part because the aid flows to the religious institution/organization b/c of the choices of private individuals and not strictly speaking as the result of government action.

In assessing the validity of a government program that provides indirect financial assistance to religious institutions, courts look for the following indicators:

Let’s look at an example.  When we wrote the regulations, we had in mind the ITA program, whereby job training is provided to individuals through the use of ITAs or Individual Training Accounts.    Under this program, individuals may freely select who they would like to receive training from, provided that the program selected is on an eligible training provider list.  The list is supposed to be quite broad, designed to maximizes choice in the selection of an eligible training provider. These regulations clarifty that if an individual wishes to receive training to become a minister, for instance, such training is permissible.  

## Four Basic Provisions of 29 CFR Part 2, Subpart D

- You must not discriminate for or against an organization on the basis of religion, religious belief, or religious character in administering or distributing DOL support (including WIA Title I financial assistance).

**Notes:**
What does this mean?

This means that all organizations are eligible to participate in DOL social service programs without regard to their religious character or affiliation.  You may not exclude Catholic Charities, for example, from eligibility for a grant simply b/c they are a catholic organization or even just faith-based.  

## Four Basic Provisions of 29 CFR Part 2, Subpart D (Cont’d)

- 2.	Faith-based organizations that are DOL social service providers or that participate in DOL social service programs may retain their independence and carry out their mission.

**Notes:**
This means that such organizations may use space in their facilities to provide DOL supported social services without removing religious art, icons, scriptures or other religious materials.

Let’s say a DOL social service provider wants to offer a seminar on effective job search strategies but lacks sufficient space to hold the seminar.  And let’s say the only place in town that offers a meeting room large enough is the local church, the provider may rent space from the church to hold the seminar and need not worry about removing the religious symbols from the meeting room.

## Four Basic Provisions of 29 CFR Part 2, Subpart D (Cont’d)

- 3.		You must not discriminate for or against 	beneficiaries / participants on the basis of 	religion or religious belief (or lack 	thereof).

**Notes:**
In other words, if the local Jewish community center received a grant to provide job training, the center could not limit eligibility for the training to jews only.

You may not condition the receipt of social services on whether someone is of a particular religion or even religious at all.

## Four Basic Provisions of 29 CFR Part 2, Subpart D (Cont’d)

- 4.		No direct DOL support may be used for 	inherently religious activities such as 	worship, religious instruction, or 	proselytization.

**Notes:**
This means that social service providers may not require that participants pray, for instance, to receive their services.  Nor may they subject participants to proselytization or for that matter mandatory worship.

## What are “inherently religious activities” (IRAs)?

- No precise definition
- Examples (from court cases) of what *are* religious activities:
- Prayer
- Administering communion
- Performing baptisms

## May DOL social service providers offer IRAs?

**Yes.**  IRAs are permitted so long as:
- No direct DOL support is used; *and** *
- The IRAs are offered separately in time or location from the services offered with direct DOL support; *and** *
- Participation by program beneficiaries is voluntary.

**Notes:**
May SS providers who receive DOL support offer IRAs?

So, can a religious organization that offers a job training program offer a prayer at the start of the day under the program?

Yes, if the prayer is offered separately in time or location.

So, if the program starts at 9:00, the organization could offer the prayer at 8:30 a.m. in a room down the hall, provided that the organization made clear that attendance was not mandatory and that it would have no effect on the rest of the program or training. 

## Regulatory Changes Re:  Training in Religious Activities 	

- Prior to August 11, 2004:
- The regulations (29 CFR 37.6(f)(1)) flatly prohibited the use of any WIA Title I assistance for employment or training in sectarian activities.

**Notes:**
Now that we have a basic understanding of the general regulations regarding the equal treatment of faith-based organizations in the administration and distribution of DOL support  , I’m going to change the focus a little bit and turn to the regulatory changes regarding training in religious activities under WIA.

## As of August 11, 2004:

- WIA Title I financial assistance *provided indirectly* may be used for the employment or training of participants in religious activities.

**Notes:**
Why the change?

The Department revised its regulations to reflect changes in Federal law.  The law now states that such indirect financial assistance is permissible.

Courts have determined that such assistance is permissible b/c there is little threat of government endorsement or establishment of religion.  The government is not determining where the aid should go rather the individual is.  

## Construction, operation, maintenance activities

- Reg provisions (29 CFR 37.6(f)(2) and (f)(3)) revised:
- For clarity
- To be more consistent with language of WIA Section 188(a)(3)
- No change in meaning

**Notes:**
I’d like to turn your attention now to the second place where the Department made revisions to the WIA regs.  And that’s to the regulations governing Employment of WIA Title I Participants to Construct, Operate, or Maintain a Facility Used for Religious Instruction or Worship.  Really, all I want to do is alert you that changes were made. These changes were minor and done for clarity and to mirror language in the statute.

The Dep’t is in the process of developing further guidance on these provisions.  This guidance will be distributed hopefully within the near future.

Let’s turn now to Job Corps.

## How have the Job Corps regulations changed?

- Two Main Changes:
- Voluntary religious activities, including religious services, must now be permitted on center.
- 2.	Direct DOL support may now be used to provide inherently religious activities, including religious services, at isolated residential Job Corps centers.

**Notes:**
Where transportation to/from local religious facilities is not feasible or impractical.  The following chart should help illustrate how the faith based initiative will impact job corps centers with regard to religious activities.

## Before and After August 11, 2004

- Voluntary student prayer
- Voluntary student-initiated religious services
- Transportation of students to local religious facilities
- Center-sponsored religious services when transportation to/from religious facilities off center impractical
- Center-sponsored *and funded* when transportation to/from religious facilities off center impractical

- Voluntary student prayer
- Voluntary student-initiated services
- Transportation of students to local religious facilities
- Center-sponsored religious services when transportation to/from religious facilities off center impractical
- Center-sponsored *and funded* when transportation to/from religious facilities off center impractical