PERFORMANCE, ACCOUNTABILITY, AND 

REFORMS AT THE CORPORATION FOR 

NATIONAL AND COMMUNITY SERVICE 

HEARING

BEFORE THE 

SUBCOMMITTEE ON SELECT EDUCATION 

OF THE 

COMMITTEE ON EDUCATION AND 

THE WORKFORCE 

HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

HEARING HELD IN WASHINGTON, DC, APRIL 1, 2003 

Serial No. 108-11 

Printed for the use of the Committee on Education 

and the Workforce

86-809 pdf 

For sale by the Superintendent of Documents, U.S. Government Printing Office 

Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 

FAX: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
ii

COMMITTEE ON EDUCATION AND THE WORKFORCE 

JOHN A. BOEHNER, Ohio, Chairman 

THOMAS E. PETRI, Wisconsin GEORGE MILLER, California 

CASS BALLENGER, North Carolina DALE E. KILDEE, Michigan 

PETER HOEKSTRA, Michigan MAJOR R. OWENS, New York 

HOWARD P. “BUCK” McKEON, California DONALD M. PAYNE, New Jersey 

MICHAEL N. CASTLE, Delaware ROBERT E. ANDREWS, New Jersey 

SAM JOHNSON, Texas LYNN C. WOOLSEY, California 

JAMES C. GREENWOOD, Pennsylvania RUBEѳN HINOJOSA, Texas 

CHARLIE NORWOOD, Georgia CAROLYN McCARTHY, New York 

FRED UPTON, Michigan JOHN F. TIERNEY, Massachusetts 

VERNON J. EHLERS, Michigan RON KIND, Wisconsin 

JIM DeMINT, South Carolina DENNIS J. KUCINICH, Ohio 

JOHNNY ISAKSON, Georgia DAVID WU, Oregon 

JUDY BIGGERT, Illinois RUSH D. HOLT, New Jersey 

TODD RUSSELL PLATTS, Pennsylvania SUSAN A. DAVIS, California 

PATRICK J. TIBERI, Ohio BETTY McCOLLUM, Minnesota 

RIC KELLER, Florida DANNY K. DAVIS, Illinois 

TOM OSBORNE, Nebraska ED CASE, Hawaii 

JOE WILSON, South Carolina RAUѳL M. GRIJALVA, Arizona 

TOM COLE, Oklahoma DENISE L. MAJETTE, Georgia 

JON C. PORTER, Nevada CHRIS VAN HOLLEN, Maryland 

JOHN KLINE, Minnesota TIMOTHY J. RYAN, Ohio 

JOHN R. CARTER, Texas TIMOTHY H. BISHOP, New York 

MARILYN N. MUSGRAVE, Colorado 

 MARSHA BLACKBURN, Tennessee 

 PHIL GINGREY, Georgia 

 MAX BURNS, Georgia 

 Paula Nowakowski, Chief of Staff 

 John Lawrence, Minority Staff Director

 ____________ 

 SUBCOMMITTEE ON SELECT EDUCATION 

 PETER HOEKSTRA, Michigan, Chairman

JON C. PORTER, Nevada, Vice Chairman RUBEѳN HINOJOSA, Texas

JAMES C. GREENWOOD, Pennsylvania SUSAN A. DAVIS, California 

CHARLIE NORWOOD, Georgia DANNY K. DAVIS, Illinois 

PHIL GINGREY, Georgia TIMOTHY J. RYAN, Ohio 

MAX BURNS, Georgia 
iii

TABLE OF CONTENTS 

TABLE OF CONTENTS................................................................................................................. i 

OPENING STATEMENT OF CHAIRMAN PETE HOEKSTRA, SUBCOMMITTEE ON 

SELECT EDUCATION, COMMITTEE ON EDUCATION AND THE WORKFORCE, U.S. 

HOUSE OF REPRESENTATIVES ............................................................................................... 1 

OPENING STATEMENT OF RANKING MEMBER RUBEN HINOJOSA, SUBCOMMITTEE 

ON SELECT EDUCATION, COMMITTEE ON EDUCATION AND THE WORKFORCE, 

U.S. HOUSE OF REPRESENTATIVES ....................................................................................... 4 

STATEMENT OF LESLIE LENKOWSKY, CHIEF EXECUTIVE OFFICER, CORPORATION 

FOR NATIONAL AND COMMUNITY SERVICE...................................................................... 6 

STATEMENT OF CARL H. ESBECK, ISABELLE WADE AND PAUL C. LYDA 

PROFESSOR OF LAW, UNIVERSITY OF MISSOURI, COLUMBUS, MISSOURI .............. 26 

STATEMENT JOHN PRIBYL, SENIOR COMPANIONS AND FOSTER GRANDPARENTS 

DIRECTOR, LUTHERAN SOCIAL SERVICE OF MINNESOTA ........................................... 28 

STATEMENT OF MATTHEW C. SPALDING, DIRECTOR, B. KENNETH SIMON CENTER 

FOR AMERICAN STUDIES, THE HERITAGE FOUNDATION, WASHINGTON, D.C. ...... 31 

STATEMENT OF RICHARD T. FOLTIN, LEGISLATIVE DIRECTOR AND COUNSEL, 

OFFICE OF GOVERNMENT AND INTERNATIONAL AFFAIRS, AMERICAN JEWISH 

COMMITTEE, WASHINGTON, D.C. ........................................................................................ 33 

APPENDIX A – WRITTEN OPENING STATEMENT OF CHAIRMAN PETE HOEKSTRA, 

SUBCOMMITTEE ON SELECT EDUCATION, COMMITTEE ON EDUCATION AND THE 

WORKFORCE, U.S. HOUSE OF REPRESENTATIVES .......................................................... 43 

APPENDIX B – WRITTEN STATEMENT OF LESLIE LENKOWSKY, CHIEF EXECUTIVE 

OFFICER, CORPORATION FOR NATIONAL AND COMMUNITY SERVICE.................... 47 

APPENDIX C –WRITTEN STATEMENT OF CARL H. ESBECK, ISABELLE WADE AND 

PAUL C. LYDA PROFESSOR OF LAW, UNIVERSITY OF MISSOURI, COLUMBUS, 

MISSOURI ................................................................................................................................... 63 

APPENDIX D – WRITTEN STATEMENT JOHN PRIBYL, SENIOR COMPANIONS AND 

FOSTER GRANDPARENTS DIRECTOR, LUTHERAN SOCIAL SERVICE OF 

MINNESOTA............................................................................................................................... 87 

APPENDIX E – WRITTEN STATEMENT OF MATTHEW C. SPALDING, DIRECTOR, B. 

KENNETH SIMON CENTER FOR AMERICAN STUDIES, THE HERITAGE 

FOUNDATION, WASHINGTON, D.C....................................................................................... 93 
iv

APPENDIX F – WRITTEN STATEMENT OF RICHARD T. FOLTIN, LEGISLATIVE 

DIRECTOR AND COUNSEL, OFFICE OF GOVERNMENT AND INTERNATIONAL 

AFFAIRS, AMERICAN JEWISH COMMITTEE, WASHINGTON, D.C. .............................. 113 

APPENDIX G – WRITTEN LETTER SUBMITTED FOR THE RECORD NY NATHAN J. 

DIAMENT, DIRECTOR, UNION OF ORTHODOX JEWISH CONGREGATIONS OF 

AMERICA WASHINGTON, D.C. ............................................................................................ 121 

TABLE OF INDEXES ............................................................................................................... 125
1

HEARING ON PERFORMANCE, ACCOUNTABILITY, 

AND REFORMS AT THE CORPORATION FOR NATIONAL 

AND COMMUNITY SERVICE

____________________________________________________

Tuesday, April 1, 2003 

 Subcommittee on Select Education, 

Committee on Education and the Workforce, 

U.S. House of Representatives, 

Washington, D.C. 

 The subcommittee met, pursuant to notice, at 2:13 p.m., in Room 2175, Rayburn House 

Office Building, Hon. Peter Hoekstra [chairman of the subcommittee] presiding. 

 Present: Representatives Hoekstra, Porter, Burns, Hinojosa, Davis, and Ryan. 

 Staff present: Julian Baer, Legislative Assistant; Kevin Frank, Professional Staff Member; 

Melanie Looney, Professional Staff Member; Sally Lovejoy, Director of Education and Human 

Resources Policy; Alexa Marrero, Press Secretary; Krisann Pearce, Deputy Director of Education 

and Human Resources Policy; Deborah L. Samantar, Committee Clerk/Intern Coordinator; Rich 

Strombres, Professional Staff Member; Ellynne Bannon, Minority Legislative Associate/Education;

Denise Forte, Minority Legislative Associate/Education; Ricardo Martinez, Minority Legislative 

Associate, Education; and Joe Novotny, Minority Staff Assistant/Education. 

OPENING STATEMENT OF CHAIRMAN PETE HOEKSTRA, 

SUBCOMMITTEE ON SELECT EDUCATION, COMMITTEE ON 

EDUCATION AND THE WORKFORCE, U.S. HOUSE OF 

REPRESENTATIVES
2

Chairman Hoekstra. A quorum being present, the Subcommittee on Select Education will come 

to order. 

 We are meeting today to hear testimony on performance, accountability, and reforms at the 

Corporation for National and Community Service. 

 Under Committee Rule 12B, opening statements are limited to the chairman and the ranking 

minority member of the subcommittee. Therefore, if other members have statements, they may be 

included in the hearing record. 

 With that, I ask unanimous consent for the hearing record to remain open 14 days to allow 

member statements and other extraneous material referenced during the hearing to be submitted in 

the official hearing record. 

 Without objection, so ordered. 

 I would like to welcome each of you to the hearing on performance, accountability, and 

reforms at the Corporation for National and Community Service. 

 The purposes of today's hearing are to learn about our nation's national service programs, to 

evaluate the performance and efficiency of the Corporation for National and Community Service, 

and to discuss various perspectives on legislation to reauthorize programs administered by the 

Corporation.

 The major federally funded national service programs in this country are authorized under 

two states, the National and Community Service Act and the Domestic Volunteer Service Act. 

 In general, the programs authorized by these statues are administered by the Corporation for 

National and Community Service, an independent federal agency. Although authorizations for 

these programs expired at the end of fiscal year 1996, they continue to be funded through 

appropriations legislation. 

 Last Congress, the Subcommittee on Select Education and the Committee on Education and 

the Workforce reported H.R. 4854, the Citizen Service Act of 2002, to reauthorize programs 

administered by the Corporation through fiscal year 2007. 

 The purposes of H.R. 4854 were to reform and strengthen national service programs 

administered by the Corporation, implement first-time accountability measures for grantees under 

the national service laws, and make the Corporation an effective outlet for leveraging volunteers 

and community service activities among the many service organizations across the country. 

 In addition to the many important reforms within last year's Citizen Service Act, the 

Subcommittee on Select Education will work to build on last year's progress and address several 

issues to better our chances at completing a reauthorization bill that will improve our nation's 

national service laws and, more importantly, a reauthorization bill that President Bush can sign into 
3

law.

 Today I am looking forward to hearing testimony about religious staffing rights as they 

pertain to the Constitution and whether the protection of religious staffing rights is prudent and 

good public policy for programs administered by the Corporation for National and Community 

Service.

 This is a matter of concern for some of us, because under the current national service laws, 

faith-based groups are denied the protections of the Civil Rights Act that would otherwise allow 

them to hire employees or accept participants on a religious basis while accepting federal funds. 

 I also hope to review living stipends and other supplemental benefits provided to program 

participants by the Corporation. Under current law, programs receiving AmeriCorps funding must 

provide full-time participants with a living stipend of at least $9,900 in which the Corporation 

provides a maximum of 85 percent of the living allowance, and the grantees pay at least 15 percent. 

 Full-time participants that do not otherwise have health care coverage also qualify for 

health coverage in which the Federal Government covers up to 85 percent of the cost. While the 

federal share varies among the many national service programs, CRS reports that the average 

amount spent on health coverage per participant for program year 2002 for AmeriCorps grants was 

$893.

 In addition, child care is provided to full-time, low-income participants. CRS reports that 

the average amount spent on child care per qualified participant for program year 2002 was $3,324. 

 Finally, the Corporation provides an educational award in the amount of $4,725 to qualified 

participants who serve for a full term of service, which is 1,700 hours over a period of 10 to 12 

months.

 In light of the significant federal share of costs associated with the national service laws, 

there are some tough questions we need to ask about various ways to control spending while 

maximizing the federal contribution to national service programs: 

 Should the Federal Government provide a living stipend for national service participants? 

 If there is a living stipend provided, should it and other benefits, such as health coverage 

and childcare, be awarded based on financial need? 

 Should there be a cap on the federal share of benefits provided to AmeriCorps participants? 

 If programs are operating indefinitely with full-time, federally supported participants, 

should the Congress limit the number of years a grantee may receive funds to support full-time 

participants to help encourage long-term program sustainability with non-federal funds? 

 In light of the many issues and programs associated with the Corporation and the fact that 

the national service laws have not bee authorized since fiscal year 1996, this subcommittee has a 
4

lot of work to do. I look forward to crafting legislation that builds on last year's progress and 

focuses on improved performance, accountability, and reforms at the Corporation. 

 I would like to thank our distinguished witnesses for appearing before the subcommittee 

today. I look forward to hearing your testimony and the unique perspective that each of you brings 

to this discussion. 

 At this time, I would like to yield to my colleague from Texas, Mr. Hinojosa, for his 

opening statement. 

WRITTEN OPENING STATEMENT OF CHAIRMAN PETE HOEKSTRA, SUBCOMMITTEE 

ON SELECT EDUCATION, COMMITTEE ON EDUCATION AND THE WORKFORCE, U.S. 

HOUSE OF REPRESENTATIVES – SEE APPENDIX A 

OPENING STATEMENT OF RANKING MEMBER RUBEN HINOJOSA, 

SUBCOMMITTEE ON SELECT EDUCATION, COMMITTEE ON 

EDUCATION AND THE WORKFORCE, U.S. HOUSE OF 

REPRESENTATIVES

Mr. Hinojosa. Good afternoon. I also want to join Chairman Hoekstra in welcoming you before 

our subcommittee today. 

 The Corporation for National and Community Service provides opportunities for Americans 

of all ages and income groups to serve their communities through three groups and programs: 

Senior Corps, AmeriCorps, and Learn and Serve America. 

 Volunteers for these programs serve with national and community non-profit organization, 

faith-based groups, and local agencies to help meet local needs in education, the environment, 

public safety, homeland security, and other critical areas. 

 I strongly support the national legislation and the Corporation in its administrative 

endeavors and want to recognize some of the successful programs within my own district in South 

Texas.

 Some of these programs include: the Boys and Girls Clubs of Edinburg; the Center for 

Economic Opportunities; and the Hidalgo County Bar Association; the Nuestra Clinica del Valle in 

Pharr; Sunset Dreams in Donna; the Lower Rio Grande Valley Development Council in McAllen; 

and several others I could name. 

 I would emphasize, though, that the strength of these programs resides in how much they 

are able to contribute towards bettering the lives of individuals at the local level. In my district, 

AmeriCorps volunteers are making positive contributions to the success of these programs, and I 

am sure that is true in districts throughout the country. 
5

 Today we will hear from Dr. Lenkowsky, CEO for the Corporation, along with several 

outstanding witnesses—Dr. Carl Esbeck, Dr. Matthew Spalding, John Pribyl, and Richard Foltin.

Welcome to all of you. 

 Last Congress, the legislation reauthorizing our national service programs was carried 

through in a bipartisan manner. Indeed, the measure passed by voice vote at the subcommittee and 

at full committee. 

 I am committed also to replicating those efforts and to working with you, the chairman, 

members of the committee, and our Senate colleagues, to send a good, bipartisan reauthorization 

bill to the President. National service is something that we all value. I am confident that if we 

work in a bipartisan way, we can successfully reauthorize this important program. 

 The war in Iraq shows us vivid images every day of the thousands of young Americans who 

proudly serve their country in uniform. There are also thousands of men and women who want to 

contribute towards improving the lives of our citizens across America. These programs will give 

them the opportunity to do so. 

 I look forward to the testimony, and I yield back the balance of my time. 

Chairman Hoekstra. Thank you, Mr. Hinojosa, and I am hopeful that we can duplicate the 

success that Mr. Roemer and I had last year in getting a bipartisan piece of legislation through the 

subcommittee and through full committee, and will look forward to working together in getting that 

done.

 To kick off that process, we will begin with the doctor, Dr. Lenkowsky. I guess I do not 

ever treat you with enough respect, because I always call you Les, but doctor, welcome. 

 As many of you know, Dr. Lenkowsky is the Chief Executive Officer for the Corporation 

for National and Community Service. He was appointed to this position by President Bush and 

served as CEO since October 2001. Prior to his appointment, Dr. Lenkowsky served the 

Corporation as a member of its board of directors since its creation in 1993. 

Dr. Lenkowsky, welcome, and the floor is yours. 

 Push the button, Les. There you go. 
6

STATEMENT OF LESLIE LENKOWSKY, CHIEF EXECUTIVE OFFICER, 

CORPORATION FOR NATIONAL AND COMMUNITY SERVICE 

Mr. Lenkowsky. Thank you very much, Mr. Chairman, Congressman Hinojosa, members of the 

Select Education Subcommittee. 

 I am pleased to be here this afternoon to report to you on the operations of the Corporation 

for National and Community Service and to discuss the Bush administration's proposals for 

improving and enhancing its programs. In a more profound sense, I am here and you are here 

because at this critical moment in our nation's history, millions of Americans are asking the same 

question: what can I do to help? 

 While our country is rich in ways to answer this question, we are responsible for an 

important group of them, the programs of the agency I am privileged to lead. These programs 

provide opportunities for some 2 million Americans of all ages and backgrounds to serve the 

United States. 

 Working together, it is up to us now to make these programs more effective in helping our 

fellow citizens fulfill their desire to pitch in at a time of great national need. 

 For nearly 40 years, the Corporation's programs have been enlisting Americans in full-time 

and part-time service, sometimes with a small living allowance in return, and sometimes with 

nothing more than the satisfaction that comes from doing a good deed. 

 Presidents of both parties have endorsed and improved these programs, as have members of 

both parties in Congress. Last year, all 50 governors backed their renewal; as did our country's 

most respected charities, including Habitat for Humanity, Teach for America, and Communities 

and Schools. 

 In 2002, when he established the USA Freedom Corps, a coordinating council and White 

House office to help build a culture of service, citizenship, and responsibility that strengthens our 

country and offers help to those in need, President Bush made the programs of the Corporation a 

major component of it. 

 Since several of you are new to the subcommittee, let me briefly describe these programs. 

 In terms of the number of Americans involved, Learn and Serve America is our largest 

program. Through grants to state education agencies, colleges, universities, and community-based 

groups like the YMCA, over 1.5 million young people learn the habits of good citizenship through 
7

volunteering related to their classwork. 

 This year, we are giving special emphasis to programs that focus on American history and 

civics so that the rising generation of Americans can become better informed citizens while they 

serve their communities. 

 At the other end of the age range is our Senior Corps, which is really three programs: 

Foster Grandparents, whose members work up to 20 hours each week with needy children; Senior 

Companions, who assist family caretakers to look after frail elderly relatives; and the Retired 

Senior Volunteer Program, which engages people 55 years of age or older in activities ranging 

from tutoring and mentoring to assisting police departments and other emergency service workers. 

 All together, 500,000 Americans at over 70,000 different locations are part of Senior Corps, 

staying active and healthy after their working years by helping others. 

 Our final program is AmeriCorps, which last year enrolled nearly 50,000 people 17 years of 

age or older in assignments requiring up to 40 hours per week working to help meet unmet needs in 

education, health, public safety, the environment, and other areas. 

 All of them were volunteers, but 75 percent received a full or partial living allowance from 

the Corporation, and most an award that could be used for further education or to repay student 

loans, and they received this not because they were needy, though many are, but because they had 

given up other ways of earning a living to do something substantial and valuable for their country. 

 All served with front-line units in the armies of compassion, charities large and small, faithbased and secular, helping build their capacities to better achieve their goals, including by 

recruiting other Americans to give a few hours each week. 

 Each of these programs has a long record of accomplishment that we at the Corporation and 

many others are proud of, but as you know, the management of these programs has often not been 

one we could be proud of. 

 Indeed, last November, because of a serious weakness in our controls over obligations from 

the National Service Trust, I had to take the drastic but necessary step of instituting a pause in 

AmeriCorps enrollments, which I was only recently able to lift. 

 Since taking office, this administration has been pursuing a comprehensive management 

improvement agenda, emphasizing outcome-based performance measurement, financial 

transparency, re-engineered procedures, and accountability from Corporation, staff, and grantees. 

 We have made a great deal of progress, symbolized by the clean opinion the Corporation 

received for the third consecutive year from its independent auditors. However, we still have a 

great deal more to do, which I look forward to discussing with you. 
8

 Management changes will not be enough to ensure that the Corporation's programs can 

respond effectively to the desire of Americans to serve. 

 We also need to make changes in the laws establishing our programs to foster greater 

engagement of citizens in volunteering, make federal support for service more responsive to state 

and local needs, strengthen our efforts to make federal funding more accountable and cost 

effective, and provide great assistance to faith-based and secular community organizations. 

 These were the principles and reforms for a Citizen Service Act proposed by President Bush 

almost exactly one year ago. They were embodied in H.R. 4854, which as you noted, was 

approved by the House Education and the Workforce Committee on a bipartisan voice vote last 

June.

 Unfortunately, time ran out before the Citizen Service Act could be enacted. As the 

President said in his State of the Union address, we hope that the Congress will complete the work 

it began last year on this long overdue set of improvements in the Corporation's programs. 

 That would be the best way we can answer the question, ``What can we do to help?'' 

 My written testimony, which I have submitted for the record, goes into more detail about 

our proposals for the Citizen Service Act. I look forward to discussing these further with you. 

Mr. Chairman, that concludes my oral testimony. I would now be glad to answer your questions. 

WRITTEN STATEMENT OF LESLIE LENKOWSKY, CHIEF EXECUTIVE OFFICER, 

CORPORATION FOR NATIONAL AND COMMUNITY SERVICE – SEE APPENDIX B 

Chairman Hoekstra. Thanks, Les. 

 Can you explain to me exactly what the current status is of the $64 million that you have 

asked for? I thought that with the money in the omnibus bill we would have sufficient money in 

the trust and we were going to be done with it. 

Mr. Lenkowsky. We had hoped that would be the case, too, but unfortunately, some information 

was not submitted in a timely enough manner for you to take action on it in the Congress. 

 The $64 million reflects a procedural program that the Office of Management and Budget 

discovered as they were reviewing the situation with our National Service Trust that I discussed 

earlier.

 Essentially, we had been handling our books in a way that led everybody to think we had 

surpluses. As you may remember those surpluses were rescinded at various times by our 

appropriations committees. 
9

 In fact, by using proper accounting procedures and recognizing our obligations properly, we 

would not have had as much of a surplus as people thought. 

 So the $64 million, in effect, is to un-rescind some of the money that was rescinded, and we 

are going forward using proper accounting procedures so that this problem will not recur again. 

Chairman Hoekstra. But you're still $64 million short in the account? 

Mr. Lenkowsky. We need the $64 million to make up a shortfall in our national trust. 

Chairman Hoekstra. Then how did you start re-signing students again? 

Mr. Lenkowsky. We have a ruling from the Office of Management and Budget that said, ``The 

$100 million that you appropriated for the National Service Trust in the 2003 omnibus 

appropriation act was designed to pay for educational awards,'' and as you know, the President has 

submitted a request to Congress not only for the $64 million as a supplemental to deal with this 

accounting issue, but also some other changes that would help us avoid future problems. 

Chairman Hoekstra. Now, we have given $100 million in the trust in the omnibus bill, right? 

Mr. Lenkowsky. Correct. 

Chairman Hoekstra. Why does that not take care of the $64 million? 

Mr. Lenkowsky. It does not because the $64 million is, in effect, for past obligations. The $100 

million is for current obligations. 

Chairman Hoekstra. For the new people you enlist? 

Mr. Lenkowsky. The people we will enlist in 2003. 

 Again, we did have money in the trust to cover those. It was reported in the wrong way.

The money had been rescinded in prior years by the Appropriations Committee. 

 This was largely the result of improper accounting practices that had been in place going 

back to the beginning of the Corporation, which we discovered as part of our effort to remedy 

another problem in the National Service Trust. 

Chairman Hoekstra. So the only way you are going to fix the $64 million is for a special 

appropriation for $64 million? 

Mr. Lenkowsky. That is correct. 

Chairman Hoekstra. Even though we have just given you $100 million? 
10

Mr. Lenkowsky. That is correct. 

Chairman Hoekstra. Why do you not take $64 million out of the $100 million and say it is done, 

and allocate new positions for the $36 million? 

Mr. Lenkowsky. I think it is the Office of Management and Budget position that, barring some 

future enactment by this Congress, that the $100 million was intended for education awards for the 

50,000 AmeriCorps members that we are scheduled to enroll in 2003. 

 The $64 million does not apply to that group, but un-rescinds the earlier year rescissions to 

put the trust in a proper balance. 

Chairman Hoekstra. So what are you going to do when those young people want money out of 

that $64 million, and you do not have it? 

Mr. Lenkowsky. We have ample money in the trust to cover the obligations we anticipated 

incurring immediately. We think that with the $64 million on hand, recognizing our obligations 

properly, the trust will be completely solvent. 

Chairman Hoekstra. For how long will it be? 

Mr. Lenkowsky. Long enough to handle all obligations that we have made under the trust. 

Chairman Hoekstra. So then why do you need $64 million? 

Mr. Lenkowsky. In effect, this is a bit like your bank account. We had been accumulating funds 

for a rainy day. We had surpluses in the trust. 

 Those surpluses, though, appeared to be larger than they really were. 

Chairman Hoekstra. Right. You rescinded some of those. 

Mr. Lenkowsky. We rescinded over $100 million of them. 

Chairman Hoekstra. So do you need $64 million or not? 

Mr. Lenkowsky. We do need $64 million to make good for the rescissions that were done. 

Chairman Hoekstra. Yes, to make good for the rescissions. 

Mr. Lenkowsky. There are incorrect obligations. 

Chairman Hoekstra. Do you have the money to make good to the people that have worked, or 

who have earned the award? If everybody who earned the award today walked in and said, ``I want 

it,'' do you have the money or not? 
11

Mr. Lenkowsky. I would want to check with our finance people on that, but my understanding is 

we need to have the $64 million in the trust to pay for the obligations we have incurred in prior 

years.

Chairman Hoekstra. So you are not, you are still not solvent in that area? 

Mr. Lenkowsky. Money was rescinded. The President has requested $64 million. 

Chairman Hoekstra. I know what he has requested. 

Mr. Lenkowsky. That request is to make up a shortfall. 

Chairman Hoekstra. You do have a shortfall? 

Mr. Lenkowsky. There is a shortfall. 

Chairman Hoekstra. Hmm. I think that is an interesting decision on your part, and the part of 

OMB, to say go ahead and award 50,000 more without an agreement or even a leadership position 

that says Congress is going to give you $64 million. 

Mr. Lenkowsky. Well, this is the opinion we have, which we will be glad to submit for the record. 

Chairman Hoekstra. You have explained the opinion. You have explained the opinion very, very 

well. I just find it interesting. 

Mr. Lenkowsky. I think what is behind this is while, hypothetically, everybody could claim their 

education award tomorrow if they wanted to, the trust of the matter is that people have seven years 

in which to claim those education awards, and we would expect that to occur over a seven-year 

period.

 So we think that getting the $64 million in place will ensure that out over that period we 

will have the adequate funds to meet all obligations. 

Chairman Hoekstra. So we can give you $9 million a year for the next seven years and you would 

be happy? 

Mr. Lenkowsky. Well, not if, as you suggested, Mr. Chairman, people start coming in at a higher 

rate than we expect. I think it is the sort of thing we want to get done right now so we do not have 

to be asking these questions at future hearings. 

Chairman Hoekstra. That is what I thought we were going to do, and I am tremendously proud of 

the work that you have done there. You got a clean audit. I believe it is a clean audit, right, maybe 

two or three in a row? 

Mr. Lenkowsky. It is the third in a row. 
12

Chairman Hoekstra. The third in a row means, that you have done a tremendous job in cleaning 

up the books there. 

 This is that kind of dark cloud on the horizon, and it is kind of like you could have taken 

care of it by taking $64 million out of the $100 million that we gave you and saying, ``This covers 

our past transgressions, that is now behind us, and yeah, it is painful, but I only have $36 million in 

awards to offer this year, and if Congress wants to enroll more students or participants in the 

program, then there is going to have to be an additional appropriation to make that happen.'' 

 With the track record that you and the board have established at the Corporation for not 

keeping funny books, having it pass muster, I love what you are doing. However, I do not agree 

with your decision on the $64 million. I wish you would clean that off your books, bite the bullet, 

and as painful as that is for this year in enrolling students, recognize that this is the bite you have to 

take to get this issue off of the books and to have us stop talking about it. 

Mr. Lenkowsky. Well, we had certainly hoped that that would happen in the 2003 omnibus bill as 

well, but if I may use the phrase, “the fog of the appropriations process” at that end, led to a certain 

amount of confusion. 

 We really did not have much to do with that, as you know. That is something that goes on 

between the Office of Management and Budget and the appropriations committees, and I think that 

we have to abide by their decisions. 

Chairman Hoekstra. Yes, but it is your decision as to whether you are going to transfer that $64 

million. 

Mr. Lenkowsky. Well, I think the OMB ruling reflects the understanding, which seems fairly clear 

in the language accompanying our appropriation, that the appropriations committees expected us to 

use the money to enroll 50,000 members in 2003. 

 That seems clear, and I think that is the basis of the OMB ruling. So we are going to do 

that.

 So you might say that we are sort of caught between two different things here. We have a 

congressional appropriation with accompanying language that directs us to enroll 50,000 members 

in 2003, and we have a shortfall that we have to cure, and we are intending to do that, and I think 

President Bush's request to Congress is meant to enable us to do this. 

Mr. Hoekstra. Right. Thank you. Mr. Hinojosa. 

Mr. Hinojosa. I am new to this committee, and I find it very difficult to understand how this 

Corporation, possibly prior to your coming in, could have used accounting procedures that would 

produce a $64 million shortfall. That is a huge amount. It reminds me of Enron and it reminds me 

of all of these awful things that happened last year. 
13

 Can you briefly tell me what kind of accounting procedures and what kind of accountants 

would have allowed such a mess? 

Mr. Lenkowsky. Well, I wish I could, but I must say that I have asked at OMB as well as had our 

own files searched, and I cannot tell you conclusively. 

 The problem basically was that, as we requested funding for the trust, our request was based 

on how much we expected to spend out of the trust in any given year. The proper procedure is to 

request funds based on your obligations, which in our case involves a calculation based on the 

number of AmeriCorps enrollments. 

 We do not know conclusively whether or not the prior accounting method had received 

OMB approval. We do have testimony from previous CEOs to our appropriations committee that 

seems to suggest that it had been approved. On the other hand, OMB tells us they have no records 

that it has been approved. 

 Rather than spend my time looking at the past, I want to look forward, get this thing done 

right, keep it done right, deal with any shortfalls that are a consequence of prior practices, and go 

on from there. 

 Ultimately, we have to make sure, as I said in my opening statement, that we are in a 

position to respond to the desire of Americans to serve. 

 I should point out, by the way, that during the whole period there was a lot of bad publicity 

about the Corporation, including stories saying we were not enrolling members. Our on-line 

applications actually went up 15 percent. People were still anxious to come into this program. 

 I regard my responsibility to make sure that we clean up whatever I have inherited and go 

forward in a proper manner. 

Mr. Hinojosa. So the clean audits that you have, apparently OMB is telling you that the 

accounting procedures are acceptable to them and to everyone, so that we won't have this 

happening anymore? 

Mr. Lenkowsky. Currently, that is correct. I do not want to get too deeply into the language of 

audits, though I do have a fair amount of experience with that. We have a new chief financial 

officer who has been very instrumental in helping work through these problems. 

 We believe now we have established procedures with regard to our accounting for the 

National Service Trust and are relating those accounts to the obligations we are making in 

AmeriCorps that will keep us on a solid footing going forward. 

Mr. Hinojosa. Well, tell me this. Was there any fraud, was there any embezzlement found in those 

$64 million that is causing this shortfall? 
14

Mr. Lenkowsky. No, Congressman, there was not. We have both the inspector general 

investigating and the GAO is investigating. We will await the final outcome of that, but at the 

moment, no one has suggested to me that there was any fraud, embezzlement, or other illegal 

activities under way. 

Mr. Hinojosa. Well, I feel like I'm looking at a situation with a fog that I just can't see through it, 

and I would reserve the right to come back and ask more questions, because I am not satisfied with 

the explanation on the $64 million shortfall. 

 Last Congress, you and the chairman of your board, as well as President Bush, supported 

the bipartisan efforts that passed our subcommittee as well as the full committee. This Congress, 

you have fairly significant changes that may discourage similar cooperation on certain provisions, 

especially civil rights and religious rights issues. Could you please elaborate on some of the 

specific reasons for your changes now and why they were not included last year? 

Mr. Lenkowsky. When I testified last year, Congressman Scott, who was a member of this 

subcommittee at that time, asked me about this. We had an interesting, if inconclusive, discussion.

I made quite clear that we have a provision relating to religious liberty that is unique to the 

Corporation.

 There were discussions elsewhere in Congress about different provisions, and certainly the 

courts have been speaking on this, as well. 

 We have continued to study this throughout the entire year, talking to members. You will 

hear later in this hearing from a very distinguished lawyer we have consulted on these matters. We 

have concluded that both as a matter of law, but also to make our programs more amendable to the 

organizations that we are trying to reach, and particularly the faith-based organizations. It is better 

to reduce the confusion by amending the provision we currently have. It is known as Section 

175C. We should amend this instead of relying on the civil rights law of 1964 as well as the 

President's recent executive order in this matter, Executive Order 13279. 

 We believe this provides full coverage with respect to the existing standards of law and it is 

also consistent with the law in other programs of the Federal Government. Therefore, it will be less 

confusing to potential grantees and more likely to be helpful to our reaching out to the small 

grassroots faith-based groups, like some of the ones you mentioned, that we want to reach. 

Mr. Hinojosa. Are you prepared for the division that this is going to cause in our committee? 

Mr. Lenkowsky. Well, we would hope there would not be a division. 

 We stand strongly behind the civil rights laws, the existing civil rights law. The civil rights 

laws are a great monument of our democracy. We believe they provide more than adequate 

protection for individuals as well as balance that with protection for organizations, religious 

organizations in this particular case, and we support those completely, and think that is also 

reflected in the President's executive order. 
15

 So we hope that, at this point in our history, that support would not be divisive. 

Mr. Hinojosa. Well, Les, if you don't have evidence of how the $64 million shortfall occurred, 

what evidence do you have that faith-based organizations are experiencing confusion or having 

difficulties? 

Mr. Lenkowsky. We have heard that faith-based organizations are concerned about this Section 

175C in our program. They are not quite sure what it means. Some are afraid, as you know, as you 

will hear testimony later. 

 Part of the impetus for clarification in this area is the concern on the part of potential 

grantees that there would be, through the regulatory process, undue involvement with the religious 

liberties of those organizations. We have heard from constituency groups who tell us that 175C 

creates that fear. 

 We do not think it is necessary to create it. To reiterate it, we think the civil rights laws, as 

they are currently interpreted through our courts, provide the kind of protection that both 

individuals want against being discriminated against and organizations need in order to maintain 

their character, in this case, their religious character. 

Mr. Hinojosa. Mr. Chairman, my time is up, and I will stop at this point. 

Chairman Hoekstra. Good. Thank you. 

 Just to clarify, Mr. Hinojosa, in the late 1990s, there were a number of cases of fraud and 

abuse within the department, but I believe there were also problems in the trust with tracking who 

was eligible for what amount and who would actually pull out their dollars and those types of 

things, but those issues are a separate issue from the $64 million question. They are two different 

things.

 The waste and the fraud within the Corporation and some of the lack of information within 

the trust, existed, and they were documented; but the $64 million problem is something that came 

out once they applied proper accounting procedures to the trust to figure out exactly what potential 

liabilities might be. 

 You asked if there had been fraud, and there had been, but it does not relate to the $64 

million. 

 All right. Mr. Porter. 

Mr. Porter. Thank you, Mr. Chairman. 

 Also being a new member, I realize this situation is an A through Z problem, and I am 

coming in the middle at P and Q, so bear with me as I ask you a couple questions. 
16

 Regarding the $64 million, and I know that we are spending a lot of time on this, but 

explain to me again how you determined this problem, and how it came about? Because I am not 

really clear on that at this point. 

 In fact, is it an ongoing problem over the last decade, or is it something that has just 

happened? 

Mr. Lenkowsky. We believe it is an ongoing problem that goes back pretty much most of the 

decade, since the Corporation was started. 

 Each year when we request, and the President requests funds for the Corporation, there are 

two parts to the request for AmeriCorps. One part is for program funds that would enable us to 

enroll AmeriCorps members. The other part is for an appropriation to the trust. 

 The practice we had been using was requesting as much for the trust as we felt we needed to 

meet the expenditures of the trust in that particular year. 

 The official way of doing it would probably be a better way to characterize it. The way to 

do it is to request in funding from the trust the amount you expect to obligate that year, even if all 

of it will not be expended that year, which is true in our case. 

 As I mentioned earlier, a member of AmeriCorps has seven years after completing his or 

her service to claim an education award. 

 So we have been using annual outlays. OMB feels we should properly be using amounts 

obligated. We have accepted that. That will mean in each particular year we will be requesting 

more for the National Service Trust than we have in prior years. 

Mr. Porter. Excuse me. So what you are saying is that you are going to establish a reserve? 

Mr. Lenkowsky. That is correct, and we had been building a reserve, anyway. 

Mr. Porter. What you were talking about earlier, that may cover you in the short term, but you are 

trying to build a larger reserve? 

Mr. Lenkowsky. Well, it will cover us. It will balance out over the seven years so that we should 

have in the trust enough to cover our expected obligations over the seven-year period. 

Mr. Porter. How can we be assured this will not happen again? Would you suggest, or shall we 

suggest some standards to be put in place to prevent it from happening again? 

Mr. Lenkowsky. Well, I think certainly we would be very open to doing that. 

 I think the critical standard is to recognize that we have put in a number of procedures in 

place already, which again I will be glad to submit for the record. 
17

 The critical one is to make sure that the chief financial officer has to approve, and has to 

certify that there are funds for the trust before we start making awards for AmeriCorps. I think that 

is a fairly straightforward procedure. 

 It is so straightforward that, frankly, I am amazed it did not go into place before, but as I 

said, I ca not really explain a number of things that happened before. All I can do is fix them and 

get them done right. 

Mr. Porter. We expect you should have this crystal ball so you can answer things that happened 

before.

 I appreciate your answer. 

 Thank you, Mr. Chairman. 

Chairman Hoekstra. Mr. Ryan. 

Mr. Ryan. Thank you, Mr. Chairman. 

Chairman Hoekstra. Welcome to the subcommittee. 

Mr. Ryan. Glad to be here. 

Chairman Hoekstra. All new faces surround me. 

Mr. Ryan. That is right. It'll keep you young, Mr. Chairman. 

 Thank you very much for showing up today. I'm also new and may ask a few elementary 

questions, but I hope that you can bear with us. 

 Looking through your testimony and listening a little bit to it, under the National and 

Community Service Act, there's a part near the bottom of your testimony that says you're going to 

be getting tough on prohibited political activity. 

 Can you just kind of let me know what was going on that is not going on anymore, or 

maybe is still going on but will not be happening anymore? 

Mr. Lenkowsky. A lot of this was in the past, as the chairman suggested. We have very stringent 

restrictions on AmeriCorps members, some of which actually are tougher than the rules governing 

501C non-profit organizations. 

 For example, AmeriCorps members on AmeriCorps time are not allowed to engage in voter 

registration efforts, even non-partisan ones. That is simply a rule that we have adopted. 

 As you probably know, non-profit organizations are allowed to do that, as long as it is nonpartisan.
18

 We want to continue to enforce this. In the past, these rules have been administrative in 

nature. We really want to make them part of our regulations, and to the extent necessary, part of 

the existing law. 

 We think that this is a program, and getting to Congressman Hinojosa's point, this is a 

program that deserves strong bipartisan support, and to do that, we want to make sure there is not 

the slightest suspicion of a doubt that any of our AmeriCorps or Senior Corps or Learn and Serve 

members are engaged in any sort of partisan political activities. 

Mr. Ryan. Thank you. So no voter registration? 

Mr. Lenkowsky. That is our existing rule. That is correct. 

Mr. Ryan. Okay. Also, I had an opportunity, down by the earmarked section, you talked a little bit 

about the organizations that do receive earmarks: Teach for America, Points of Light Foundation, 

and America's Promise. 

 And then at the bottom, it says, ``Limit the use of earmarking funds through the 

appropriations process.'' 

 Can you talk to me a little bit about what, in a general sense, in a nutshell, what each of 

those do, maybe what their level of funding is now, and why it's going to be capped or limited or 

whatever your plans are for it? 

Mr. Lenkowsky. The Points of Light Foundation has been a long-time partner of this organization, 

going back to our earliest days under the first Bush administration. 

 The Points of Light Foundation was contained in, created in the same law, and it provides a 

variety of things to help promote volunteering in the United States. The one that you are perhaps 

most familiar with would be the support of the national network of volunteer centers. There are 

such centers all over the country, and they provide a way by which people in your community and 

many other communities who want to volunteer can find organizations that are looking for 

volunteers, and that is a principal activity of the Points of Light Foundation, along with others. 

 America's Promise was created a few years later, in the middle of the 1990s, following the 

bipartisan Presidential Summit on Volunteering and National Service that occurred in Philadelphia. 

 You may recall that General Colin Powell was the chairman of that, and out of that, to 

implement the work of the summit, came America's Promise. It focuses on mobilizing volunteers, 

again, in communities throughout the United States to help young people. 

 It has a list of five promises to young people, that every young person should have a safe 

place to go after school and so on, and America's Promise is a vital link in the nation's voluntary 

infrastructure trying to assist the realization of those promises in our communities. 
19

 Teach for America also is one of our oldest national service grantees and one of the most 

successful. What Teach for America does is recruit students from some of our nation's finest 

colleges and universities, gives them some training, and then places them in underserved school 

systems, including in the Rio Grande Valley, where they will spend a year or two in public schools 

teaching students who are anxious to get an education. 

 It is one of the most heralded innovations in the non-profit world over the last decade, and 

this particular earmark in this year's budget is designed to deal with something I believe we will be 

talking about, which is to promote sustainability on the part of these organizations. 

 Teach for America receives 15 times as many applications, I believe, as it has spaces for. 

More students, the story goes, at Yale University went into Teach for America last year than went 

down to Wall Street. That tells you something about Wall Street, too, I expect. 

Mr. Ryan. Right. 

Mr. Lenkowsky. But they are poised to grow. They want to triple the number of people in the 

program, and this is meant to help them as part of their expansion plans, while also maintaining the 

ratio of private money to our money. 

 They raise significant amounts of private money, so you might think of this as a kind of 

investment, a venture capital kind of investment in a program that has proven itself. Their teachers 

already teach hundreds of thousands of students, and I can testify firsthand to the quality of them, 

since some of my best students have gone into teach for America. 

Mr. Ryan. Thank you very much. 

 So the Points of Light, just so I can try to keep this organized, the Points of Light is more of 

a promotional volunteer piece? 

Mr. Lenkowsky. Network. 

Mr. Ryan. Network. You use the Internet, I would imagine. 

Mr. Lenkowsky. That is right. 

Mr. Ryan. To try to recruit volunteers. The American Promise is a way to maybe mobilize some 

of these volunteers? 

Mr. Lenkowsky. Yes, it is, particularly youth-serving ones. 

Mr. Ryan. Youth-serving ones, and then the Teach for America is obviously geared towards 

recruiting people to come and teach in under-served areas? 

Mr. Lenkowsky. That is correct. 
20

Mr. Ryan. You said there was a ratio of private-public money for the Teach for America? 

Mr. Lenkowsky. They have raised substantial amounts of public-private money. They have a lot 

of very generous supporters, a number of major foundations, plus they get support from local 

school systems where they are operating. 

 The earmark in this year's appropriation does not change the ratio of non-corporation 

dollars to corporation dollars at all, but it is meant to get them on a faster growth path. 

Mr. Ryan. Mr. Chairman, if you don't mind, one final? 

Chairman Hoekstra. All right. 

Mr. Ryan. Thank you. As far as the appropriations and the earmarks, what are you going to be 

asking for each of these? You said they wanted there to be an increase for Teacher for America, is 

that correct, and if so, what are you asking for the other two? 

Mr. Lenkowsky. I do not have our appropriations request in front of me, but I believe we have 

requested $10 million for the Points of Light Foundation; $7.5 million for America's Promise, and 

$3 million for Teach for America, but we will double check those to make sure we have the 

accurate figures in the record. 

Mr. Ryan. Are those increases over the past year? 

Mr. Lenkowsky. Well, Teach for America has not been an earmark. Well, it was a $1 million 

earmark before, so it is somewhat an increase, but again, as part of a growth plan for Points of 

Light Foundation and America's Promise. Those are the same numbers that we requested in the 

past.

 I would have to double check, but I believe the 2003 appropriation provided 5 million for 

America's Promise, although the President's request had been 7.5 million and that is what we again 

request for 2004. 

Mr. Ryan. Okay. Thank you very much. Thank you, Mr. Chairman. 

Chairman Hoekstra. Thank you. Let us not create too many earmarks, okay? 

Mr. Lenkowsky. That is not our intent. As you know, Mr. Chairman, one of the most important 

things we do is our competitive process, and when I spoke about re-engineering procedures, that 

has been a lot of our focus. 

Chairman Hoekstra. I think in some of the other programs there are areas where we got too many 

earmarks or too many programs that have become authorized. They lose some of their edge and 

some of their vitality. 
21

Mr. Lenkowsky. We agree. 

Chairman Hoekstra. Yes. Mr. Burns. 

Mr. Burns. Thank you, Mr. Chairman. 

 Like so many others, we need a bit of education as we move through this process. 

 Help me understand how the Corporation establishes full-time participant slots. What is the 

total number authorized, and then what is the total number filled? 

Mr. Lenkowsky. We have a grant process each year. We are at the beginning of the grant process; 

and organizations, charities, over 2,000 of them, will apply. 

 There are several different routes by which they can apply. Some will apply directly to us 

nationally, some will apply through our state commissions, and some are kind of a hybrid. They 

apply in the first instances to the states and then the states apply their best ones for national. 

Mr. Burns. Can we address just AmeriCorps? 

Mr. Lenkowsky. Yes, those are all AmeriCorps programs. 

Mr. Burns. Okay. 

Mr. Lenkowsky. A reporter once referred to our organization as a dinky little organization by 

federal budget standards. Perhaps we are that, but we are very complex, which is part of the reason 

a lot of people have difficulty quite understanding what we are doing, and that is one thing we are 

trying to fix. 

 In terms of your question, the division of full-time, part-time, reduced part-time is really 

driven in the first instance by the applications of our grantees, so they will say, for example, that 

we need so many full-time members and so many part-time members to accomplish our objectives. 

It might be tutoring kids or recruiting tutors for kids or doing homeland security or anything else. 

 We will review this in light of the case they make for it, or this will occur at the state level, 

and we will reach judgment as to whether they have made a good case for the number of slots and 

the kinds of slots they are requesting. 

 That is also obviously affected by the amount of money available. A full-time slot costs 

more, for obvious reasons, than a part-time slot or education award only, where the only 

expenditure from the Corporation is a commitment for an education award and a very small 

administrative fee. 

 So we will, in our grant review process, try to match up how our grantees define their needs 

in terms of the kinds of slots they would like with the allocation available in the budget. 
22

 One of the things that is part of the Citizen Service Act request is to take this education 

award only program, which now accounts for about one out of four AmeriCorps members, and 

move it out of our demonstration authority, which is where it began. It was an innovation and we 

tested it and it works extremely well. We would like to move it into our general AmeriCorps 

program authority. 

 The reason for that is if you are running an organization that wants both regular 

AmeriCorps members and education award only AmeriCorps members, we now make you apply 

twice, once for each competition. 

 What we would really like to do is have you look at the needs of your organization, submit 

one application, and tell us what you want, and then, as I suggested before, we would review it in 

terms of the merits and against what is available in the budget, and make an award. 

Mr. Burns. What does your budget establish as far as an upper limit for AmeriCorps or for fulltime? 

Mr. Lenkowsky. Right now, we do not have a cap per full-time member in AmeriCorps. In the 

Citizen Service Act that was passed by this subcommittee and the full committee last year, for the 

first time we established a cap of $16,000 for a full-time AmeriCorps member, not including our 

education award. 

 That cap will cover such things as the living allowance, health care, child care, 

administrative support, training, a very important part of what we do, since, unlike traditional 

volunteers, AmeriCorps members are going to be engaged, if they are full time, 35 to 40 hours a 

week. It gives us time to give them training in methods of tutoring or things like that, and that is 

part of the program budget, as well. 

Mr. Burns. What I am trying to get at is the number of total volunteers, total participants, and fulltime equivalents. I realize we have some part-time, some full-time, perhaps some reduced, and 

different types of categories. 

 But in the budget that you deal with on an annualized basis, how many volunteers, full-time 

equivalent participants would your budget support? 

Mr. Lenkowsky. The 2003 appropriation will support 35,000 full-time equivalent members, 

roughly, in AmeriCorps. 

Mr. Burns. What is the current level? 

Mr. Lenkowsky. That is the current level. 

Mr. Burns. That is the current level? 

Mr. Lenkowsky. Right. 
23

Mr. Burns. So you are saying it could not go above that? 

Mr. Lenkowsky. Well, in 2004, the President has requested 75,000 slots, which, again, I would 

need to double check the figures, but I think that would be slightly in excess, in the 40 to 45,000 

range for full-time equivalents, because we are also increasing the percentage devoted to the 

education award only program. 

Mr. Burns. Over the past three, four, five years, have you experienced slots, actuals, higher than 

what you were able to support financially? 

Mr. Lenkowsky. Oh, absolutely. That is exactly why we had to put in a request. 

Mr. Burns. That is why we are in the middle of a shortfall? 

Mr. Lenkowsky. Right. What happened was, in the year 2000, awards were made for somewhere 

in excess of 65,000 slots, not full-time equivalents. That was about a 125 percent increase over the 

prior year. 

Mr. Burns. So 65,000 slots, but they were not all full-time? 

Mr. Lenkowsky. Right. But it was a substantial increase. 

Mr. Burns. Right. 

Mr. Lenkowsky. This increase really put a lot of strain at a time we were budgeting for no 

particular change. 

 Now, because the demand for our programs was not as great as it became after 9/11, so 

immediately the actual enrollments were slightly above the budgeted number, not a lot, despite the 

fact that we had made awards significantly above the budgeted number. 

 But as we started going into 2001 and 2002, people were coming in to serve. In effect, we 

had left the door open, and initially, not many more people came through than we expected, but 

partly because of the great surge in enthusiasm to serve our country, more people started coming in, 

and that is when we realized we needed to put a pause in place. 

Mr. Burns. Right. Certainly, we appreciate the volunteers and the people wishing to serve in this 

area, but you have a challenge of trying to pull together a budget that supports a certain number. 

Mr. Lenkowsky. That is correct. 

Mr. Burns. My final question is, "How are you now managing that process, where certainly the 

need is there?" We have a potential group of individuals who wish to be of service to America, we 

would hope to utilize their talents, but we still have to make sure that we live within certain 

constraints?
24

Mr. Lenkowsky. That is correct. Prior to the past few months, the folks who were making the 

awards for AmeriCorps slots, the program staffs, were not required to check whether or not as they 

made those slots they were actually creating obligations in our trust fund that went beyond what the 

trust fund could sustain. 

 That is why I suggested that it was a really simple fix to get this done right, and why it had 

not been done before, I do not know, but we have a list of procedures, including timelier 

notification of obligations, commitments to people to serve in AmeriCorps, than we have done 

previously that are now going into place, and we think they will prevent a recurrence of that 

problem. 

Mr. Burns. You are confident those controls are in place? 

Mr. Lenkowsky. I am as confident as I can be until I have actually tried them. As you know, you 

put the procedures in place, you try them, and then if we have to fix them, we will fix them again. 

 But I am very confident that we have the right procedures in place now. 

Mr. Burns. Thank you. Thank you, Mr. Chairman. 

Chairman Hoekstra. Mrs. Davis, do you have any questions? 

Mrs. Davis. I'm going to pass now, Mr. Chairman. 

Chairman Hoekstra. You are going to pass? All right. 

 Les, thank you. I think we are going to go to the second panel. I think there are a number 

of questions that members may still have. I am sure that if they are submitted to you in writing, 

you will be more than willing to answer those. 

 As we work and go through the reauthorization process, we may just have some meetings 

where we invite you down to sit down, on a bipartisan basis, to talk about some of these questions 

and these issues as we try to pull this together. 

Mr. Lenkowsky. Thank you very much, Mr. Chairman. We would be delighted to do so. 

Chairman Hoekstra. Great. Thank you. 

 I would then like to ask the second panel to move forward, and as we are doing that, let me 

introduce the second panel. 

 Rumor has it that we may have some votes in a few minutes. It is musical chairs up there. 

Find the right one. But we will get started. 

 The first member of our second panel is Professor Esbeck. He has been a faculty member 

at the University of Missouri since 1981. He also has practiced law in New Mexico. He has done a 
25

number of things. He has been Senior Counsel to the Deputy Attorney General and Director of the 

Task Force on the Faith-Based and Community Initiatives in the U.S. Department of Justice. 

 Professor Esbeck has written numerous articles and essays on the issues of church-state 

relations and civil rights in addition to serving on several advisory boards and committees in those 

areas.

 Welcome. Thank you for being here. 

Mr. John Pribyl. Mr. Pribyl has been the Director of the Senior Companions Program of 

the Lutheran Social Service of Minnesota since 1974. In addition, he currently serves as the 

Director of the Foster Grandparents Program. 

 He has previously served as the President of the National Association of Senior 

Companions Program Directors and has been active in numerous facts of the community, including 

the school board, his church, and other volunteer activities. 

 Welcome. Thank you for being here. 

Dr. Matthew Spalding is the Director of the Heritage Foundation's new Center for American 

Studies. Previously, he served as the Director of the foundation's Lectures and Educational 

Programs Division and as manager of the academic programs. 

 He serves in numerous other capacities, including as an adjunct fellow at the Clairmont 

Institute, a national board member of the Fund for the Improvement of Post-Secondary Education, 

and as a contributing editor to several publications. 

 Welcome. Good to see you here. 

 Then we have Mr. Richard Foltin. Mr. Foltin is the Legislative Director and Counsel for 

the Government and International Affairs Office of the American Jewish Committee. He serves as 

the co-chair of the ABA's Section on Individual Rights and Responsibilities Committee on First 

Amendment Rights, and is a member of the National Council of Churches Committee on Religious 

Liberty.

Mr. Foltin is also a faculty member at the Florida College of Advanced Judicial Studies. 

 That is our panel. 

 Welcome. Thank you for being here. 

 I ask each of you to limit your statements to five minutes. Your entire statements will be 

submitted for the record. 
26

 Professor Esbeck, we will begin with you. 

STATEMENT OF CARL H. ESBECK, ISABELLE WADE AND PAUL C. 

LYDA PROFESSOR OF LAW, UNIVERSITY OF MISSOURI, COLUMBUS, 

MISSOURI 

Mr. Esbeck. Thank you, Mr. Chairman and members of the subcommittee. 

 The Acts that are before you for reauthorization seek to capitalize on the principle of 

volunteerism. When the challenges are enormous but spirits are high, the voluntary principle 

manifests great power to do great good. 

 But these Acts, at least in their original construction, are in one crucial respect not 

consistent with the voluntary spirit. I speak here of Section 175C, where the government's hand 

falls unevenly, regulating some but not others. The section prevents religious organizations from 

staffing on a religious basis. 

 Now, our government is committed to religious pluralism, and that is commendable, but the 

government is inconsistent in implementing this commitment, and in two respects. 

 Let me illustrate the first one by a reference to an environmental group. An environmental 

group is every bit as much committed to a cause or mission, and it can hire and fire people based 

on devotion to environmentalism, but recollection groups do not have that kind of privilege 

because of the restriction of 175. 

 The government lacks consistency in its commitment to religious pluralism in a second 

respect, and this one perhaps is the more important. Some religious groups are eligible for 

assistance, but not others, and let me illustrate that, as well. 

 We have, for example, Reform, Conservative, and Orthodox Jewish charities, but it is only 

the Orthodox group which are not eligible under these Acts. Why? They are not eligible because 

they staff on a religious basis. That is not pluralism. 

 Similarly, we have liberal and mainline and evangelical Protestant groups, but only the 

evangelical groups, who staff on a religious basis, are not eligible under these Acts. That is not 

pluralism. 

 That Section 175 is inconsistent with religious pluralism has been obscured by a clever 

slogan, and the slogan, I am sure you have heard it or read it, and goes something like this: 

 “Well, to repeal 175 is to throw the door open,” and here is the slogan, “to government 

funding of religious discrimination.” 
27

 Well, that is a big deception, and it is repeated again and again and again, and those who do 

not know the principles of law or are sloppy in their reasoning begin to believe it. 

 So let me walk you through why it is a deception. 

 In my longer, written testimony, I begin with Congress's recognition of freedom for 

religious staffing rights dating back to Title VII of the Civil Rights Act of 1964, and as you know, 

Title VII provides for faith-based organizations to continue to staff on a religious basis. 

 The amendment that made that possible was introduced by Senator Sam Ervin. You 

recognize Ervin, because he became famous during the Watergate hearings, a Democrat from North 

Carolina, recognized by his Senate colleagues at the time as something of a constitutional scholar, 

and justly so. 

 In introducing his amendment, which passed, he said the following: 

 ``This amendment is to take the political hands of Caesar off the institutions of God, where 

they have no place to be.'' 

 You see, Senator Ervin appreciated that his amendment reinforced, and buttressed, the 

separation of church and state. It did not undermine it. It was taking Caesar out of the regulatory 

mode.

 The government does not establish religions by leaving it alone. That is common sense, 

and he saw that. 

 Now, Title VII has become the gold standard, and that is proper. It has become the standard 

not because it dates all the way back to 1972 in its present form, but because it is about freedom, 

and because it is about religious pluralism, and when it was challenged in the courts and it went all 

the way to the U.S. Supreme Court in the Amos case in 1987, the religious hiring rights provision 

was upheld, and by a unanimous, or nine/zero court. 

 Now, you are thinking, well, but perhaps Amos is somewhat different because it does not 

involve government funding, but under the Acts that are to be reauthorized here, the purpose of the 

government's grant funding is to host and train volunteers, so the applicable rule of law is found in 

cases like Rendell-Baker v. Cohen, a Supreme Court case in the 1980s. 

 Let me briefly describe Rendell-Baker. We had a private school. Ninety to 95 percent of 

the funding of the students in that school was from the government, but when a teacher was fired 

and then challenged it, the Court said it was not the government that had dismissed the teacher, it 

was the school, and the presence of overwhelming government funding did not change that fact. 

 Well, the parallel is pretty obvious to our situation here. A faith-based organization gets 

funding to do volunteerism, or to host AmeriCorps members and participants, and that then does 

not make all that that faith-based organization does, in particular its employment practices, the acts 
28

of the government. 

 So it is wrong, it is just false to say that when the government funds a faith-based 

organization to do volunteerism, it is also funding religious discrimination. 

 So I call on the Congress to be consistent in its commitments to religious pluralism. Stop 

funding some religious groups and not others. All that we want here is a complete religious 

freedom to continue to hire those of like-minded faith. No group ought to be confronted with the 

cruel choice of either recanting its faith or to be denied at least the opportunity to compete for grant 

funding.

 Thank you. 

WRITTEN STATEMENT OF CARL H. ESBECK, ISABELLE WADE AND PAUL C. LYDA 

PROFESSOR OF LAW, UNIVERSITY OF MISSOURI, COLUMBUS, MISSOURI – SEE 

APPENDIX C 

Chairman Hoekstra. Mr. Pribyl. 

STATEMENT JOHN PRIBYL, SENIOR COMPANIONS AND FOSTER 

GRANDPARENTS DIRECTOR, LUTHERAN SOCIAL SERVICE OF 

MINNESOTA 

Mr. Pribyl. Thank you, Mr. Chairman, and members of the committee. 

 I am here today to talk specifically about the Senior Corps programs of Foster Grandparents 

and Senior Companions, and I will focus my remarks on some specific innovations that we have 

been able to try in Minnesota with some state funding and some local funding, and we feel that 

those demonstration things have had some significant impact on our programs, and we would like 

to see them incorporated into the Act. 

Dr. Lenkowsky already talked about the three Senior Corps programs, and I would just like 

to reinforce the impact on the society from those programs is immeasurable. Now, as we look at 

reauthorizing these time-tested programs, it is time to make some minor adjustments to keep them 

relevant as we approach this new phenomenon in our society of the aging of the baby boomers. 

 My involvement in service began early in my life as I served in the Catholic priesthood for 

four years, from 1970 to 1974. After much thought and prayer, I made a difficult decision to take 

another career path, which ended up in my developing and implementing the original Senior 

Companions grant in Minnesota back in 1974. 
29

 I currently now serve as the Senior Companions director and the Foster Grandparents 

director, operating under the sponsorship of Lutheran Social Service. In this position, I have had 

the opportunity to see firsthand the development and the growth of the programs and how this 

simple structure gives older adults the opportunity to give back to their community. 

 As I said, we have had some chances to do some demonstration activities to find out what 

are the barriers that limit recruiting in the current legislation, and they also end up limiting the 

volunteer participation. 

 So first of all, we would very much support the lowering of the age from 60 to 55 for Foster 

Grandparents and Senior Companions as the current law already states for the RSVP volunteers. 

 Secondly, we would like to see you remove the income eligibility limitations for Senior 

Companions and Foster Grandparents. 

 There are many challenges in encouraging people that are retired to volunteer, especially in 

the two programs with stipends. 

 When these programs started, the poverty rate among seniors was 33 percent, and the 

stipend amount was roughly 71 percent of minimum wage. As a result, many people that 

volunteered when I started with this program looked at it as more of a job to earn money, because 

the stipend was a higher amount in relationship to the minimum wage at that time. 

 Today, the stipend is about 50 percent of minimum wage, and the poverty rate among 

seniors is around 11 percent instead of 33 percent, so today if people come in that really 

desperately need the money, I think I have an ethical obligation to tell them to go down and get a 

job at Wal-Mart and be a greeter and get minimum wage, or work at a fast food chain, because they 

are basically going to get more money and it is going to help them in their very low income 

situation.

 The stipend today is more of an incentive to encourage a regular commitment of time from 

people. I see that as a real asset. It is not just to get people out of poverty, as it was 30 years ago. 

 As a result, when the stipend is lower, programs are facing a major recruiting problem.

During the last fiscal year, approximately two-thirds of the Senior Companions programs and 

Foster Grandparents programs had a difficult time filling their allotted slots of volunteers. They 

could not find enough people, and basically, that was because of the income guidelines. 

 There have been several ideas proposed to fix that problem. One was to raise the income 

guidelines to a higher percentage of poverty. Another one was to look at guidelines from other 

government programs. Another is to maybe allow a certain percentage of people to be over the 

income guidelines. 

 My suggestion is to support what the administration recommended last year, to remove the 

income criteria completely and put the responsibility on the individual projects to continue to focus 

on recruiting low-income older adults and make that determination based on the cost of living in 
30

the area where the program is funded. The stipend then is based on somebody's commitment of 

time and not simply on what their income happens to be. 

 Since 1997, the Minnesota Senior Companions and four Foster Grandparents programs 

have had the opportunity to test this very idea with this demonstration grant of non-federal dollars.

We set up an option for volunteer of any income to come and serve in our Senior 

Companions/Foster Grandparents program. 

 Volunteers who wanted to receive some financial reimbursement had to commit to at least 

40 hours of service, 10 hours a week. 

 After conducting this demonstration for five full years out of the 900-plus volunteers we 

have in our Senior Companions/Foster Grandparents program, over 75 percent meet the current 

income criteria, and my point is, we have been recruiting without any income guidelines, and yet 

75 percent still meet those income guidelines; so we can and we do focus on lower income 

volunteers.

 The best part is, now, the people in our program do not have any stigma on their foreheads 

saying that ``Hey, I am a Foster Grandparent because I am low income.'' ``I am a Foster 

Grandparent because I make a major commitment of time,'' and I think that is a better 

representation, and it does not classify people at all. 

 Furthermore, if we did not have that flexibility over the last five years, we would not have 

been able to find enough seniors to provide the service to the growing list of children and older 

adults that have specific needs and want to be in program. 

 You know, there are many programs that provide this stipend, and they are not means tested 

at all, and I just do not see why the Senior Companions and Foster Grandparents programs today, 

in 2003, should have that means testing part of it. 

 Thirdly, I would have you look at promoting innovations in programming, looking at more 

flexible types of service, and I will sum up with the following propositions: allow a Foster 

Grandparent to serve with more than one child, and provide an incentive for an RSVP volunteer 

who wants to contribute a significant amount of time. 

 Finally, I would give you one example. We have got a volunteer leader that is currently 

allowed in our Senior Companions program. Arlene is one of our volunteer leaders in Minnesota. 

She not only serves her clients, but she also provides leadership and support to new volunteers and 

helps them in the introductory process to their new clients. She has a way about her to make 

everybody feel at ease. 

 Hopefully, this leadership option would be available in developing more flexible 

programming to be more attractive to those baby boomers that are coming into the programs today. 
31

 Thank you very much for the chance to testify. Thank you very much for the opportunity to 

talk to you about programs that I really feel can make a difference in our society. 

WRITTEN STATEMENT JOHN PRIBYL, SENIOR COMPANIONS AND FOSTER 

GRANDPARENTS DIRECTOR, LUTHERAN SOCIAL SERVICE OF MINNESOTA – SEE 

APPENDIX D 

Chairman Hoekstra. Thank you. 

Dr. Spalding. 

STATEMENT OF MATTHEW C. SPALDING, DIRECTOR, B. KENNETH 

SIMON CENTER FOR AMERICAN STUDIES, THE HERITAGE 

FOUNDATION, WASHINGTON, D.C. 

Mr. Spalding. Thank you, Mr. Chairman. I thank you for the opportunity to testify in support of 

this Congress' and this administration's effort to foster service, citizenship, and responsibility. 

 I think that working with the Bush administration, Congress should propose a reformed 

legislative package that builds on the changes proposed in last year's session, takes additional steps 

to correct the infringement of religious liberty in current service laws, and fundamentally 

transforms the current government's international service into a true citizen service initiative. 

 I believe there are some principles that should be behind and at the heart of the Citizen 

Service Act, and I would like to go through those very briefly. 

 The primary goal of citizen service should be to protect and strengthen civil society, 

especially the non-governmental institutions at its foundation. Policymakers must recognize that 

President Bush's call to service will be answered not by a government program, but by the selfless 

acts of millions of citizens in voluntary associations, local communities, and private organizations. 

 Secondly, the goal of an authentic citizen service initiative should not be to engage citizens 

in a program, nor to create an artificial bond between citizens and the state or organization that 

coordinates that service, but to energize a culture of personal compassion and commitment to those 

in need. 

 Third, reform of the national service laws should redesign service programs as an 

opportunity for true voluntary service rather than a jobs program. Volunteerism that is paid and 

organized by the government belittles authentic volunteerism by presenting service as an 

employment option rather than a sacrificial giving of one's time and resources. 

 Fourth, where possible, reform should prevent government support and presumed public 

endorsement of frivolous, controversial, and special interest activities. It should focus instead on 
32

encouraging traditional service opportunities that address real problems of those in need. 

 Fifth, reform should reduce government's financial, administrative and regulatory role in the 

voluntary sector. 

 There already exists between government and many large nonprofit organizations what Dr. 

Lenkowsky has called a dysfunctional marriage in which government money has led to significant 

loss of nonprofit independence. Expanding this relationship to include the voluntary sector 

generally, and especially those smaller organizations that have thus far eluded the federal reach, 

would only expand and intensify that problem. 

 The Citizen Service Act of 2002 contained many useful and innovative changes in existing 

programs and should serve as a basis for future reform. More fundamental changes are required, 

however, to transform today's national service into a true citizen service. 

 First, I believe that policymakers should eliminate the stipends and benefits for AmeriCorps 

participants, thus ending the program as an employment option and reorganizing it as a true 

volunteer service initiative. 

 You could allow AmeriCorps to continue to award modest educational grants, not as a 

financial incentive or an in-kind payment for volunteering, as a nominal award for service 

rendered.

 Eliminating the financial stipend and pay benefits still leaves participants with a 

considerable education voucher that is nearly double the amount of the current Pell Grant. 

 Concerning VISTA, I would recommend focusing VISTA as much as possible, focusing it 

on helping to solve the most important poverty-related problems of the day. 

 VISTA could be focused on strengthening families through groups like Marriage Savers 

and the training of mentoring couples. Another possibility is to focus VISTA activity on mentoring 

in low-income communities. 

 Whatever focus is selected for the agency's service activities, in keeping with renewed 

interest in government accountability, VISTA programs should be subject to appropriate rigorous 

and regular methods of assessment and measurement. 

 I also believe VISTA should be changed from a federally operated program to a federally 

assisted program. 

 The problem with Learn and Serve America is more fundamental. It has to do with the 

methodology of service learning. I recommend that Congress end the Learn and Serve program, 

and if they do not, that at the very least, they back away from their support of the philosophy of 

service learning by changing some of the definitions in the legislation. 
33

 To conclude, now more than ever, at a time when Americans are volunteering and engaging 

in service to their country in unprecedented numbers and unprecedented ways, policy makers must 

reject the model of government-centered national service that undermines, in my opinion, the 

American character and threatens to weaken the private associations that have always been the 

engine of moral and social reform in this country. 

 The better course is to bolster President Bush's noble call to service by creating a true 

citizen service initiative that is consistent with principles of self-government, is harmonious with a 

vibrant civil society, and promotes a service agenda based on personal responsibility, independent 

citizenship, and civic volunteerism. 

 Thank you. 

WRITTEN STATEMENT OF MATTHEW C. SPALDING, DIRECTOR, B. KENNETH SIMON 

CENTER FOR AMERICAN STUDIES, THE HERITAGE FOUNDATION, WASHINGTON, 

D.C. – SEE APPENDIX E 

Chairman Hoekstra. Thank you. 

Mr. Foltin, we are going to probably have to hold you as close to five minutes as we can, 

only because you got caught by the bells, which means we are going to have to vote, but let us get 

started.

STATEMENT OF RICHARD T. FOLTIN, LEGISLATIVE DIRECTOR AND 

COUNSEL, OFFICE OF GOVERNMENT AND INTERNATIONAL AFFAIRS, 

AMERICAN JEWISH COMMITTEE, WASHINGTON, D.C. 

Mr. Foltin. Thank you. My name is Richard Foltin. I am the legislative director and counsel in the 

Office of Government and International Affairs of the American Jewish Committee, and I thank 

you, Mr. Chairman, and Mr. Ranking Member, for the opportunity to testify today about AJC's 

perspective on the need to retain protections against employment discrimination based on religions 

with respect to positions funded under the Corporation for National and Community Service. 

 We are here today discussing a proposal to eliminate Section 175C from the National and 

Community Service Act is really a testament to the power of an idea, and it is an idea that I have to 

give credit for to my distinguished colleague on the panel, Professor Esbeck. This idea is this 

notion of charitable choice and of ending what is called religious discrimination with respect to 

religious institutions that receive public funds to provide social services. 

 Now, the danger of having a big idea sometimes is that it tends to sweep aside competing 

concerns, and that it can sweep aside, as well, a pragmatic resolution of competing concerns in a 

particular program, and so we have, in 175C, a narrow and appropriate attempt to reconcile some 
34

very crucial priorities within our constitutional system, and an appropriate attempt to do so. 

 The government and all citizens have a strong interest in not seeing taxpayers' dollars 

utilized to underwrite the funding of employment positions for which hiring decisions are made 

based on religion. 

 At the same time, any prohibition on religious discrimination by religious organizations 

when they operate programs for which they receive government funds must be carefully cabined so 

as not to encroach on the legitimate interests of religious organizations' autonomy with respect to 

their positions that are privately funded. 

 So if there is common ground, and I think there is, between those who have differing 

positions on 175C, it is this intense respect for the necessity of respecting religious autonomy, the 

autonomy of religious organizations. 

 It's grandfather clause aside, Section 175 of the National and Community Service Act of 

1990 limits its prohibition on religious discrimination by a funded institution to a member of the 

staff of such project that is paid with funds received under this subchapter. 

 Thus, unlike the civil rights law that prevail in certain other circumstances, it does not apply 

to the entire institution, does not say that funds may not flow to an institution if somewhere else in 

some other program or with respect even to some other position that is funded with private funds, 

there is a preference based on religion. This restriction exists only with respect to those positions 

that are funded with federal money. 

 In so doing, as I discuss in my statement, Section 175 draws a careful line that seeks to 

safeguard the important interests of both the government and religious institutions. 

 Those arguing for deleting Section 175 point to the need to enable faith-based groups to 

promote common values, a sense of community, and shared experiences through service. These are 

all important values, but there is something inherently problematic as a matter of public policy, it is 

not as a matter of constitutional law, in the government funding what it itself cannot do. Namely, 

subject employment positions to a religious test. 

 Put more bluntly, applicants for a government-funded position should not be confronted 

with a sign, real or metaphoric, that says, ``No Jews need apply, no Baptists need apply.'' Neither 

the First Amendment nor any other provision of the Constitution requires religious institutions to 

be given unlimited autonomy in their employment decisions with respect to employment positions 

that are government funded. 

 Indeed, the presence of government funding implicates several clauses of the Constitution: 

the Establishment Clause, the Free Exercise Clause, and the Equal Protection Clause. All of which 

preclude government discrimination on the basis of religion. 

 But the importance of this principle of non-discrimination does not mean that it cannot be 

reconciled with another important priority, the autonomy of religious institutions and safeguarding 
35

those institutions from undue government interference. 

 The discretion of religious organizations is, to be sure, a fundamental aspect of the religious 

freedom that is protected as our first liberty in the First Amendment, that religious organizations, 

the vehicle through which religious communities manifest their religious missions, should be able 

to demand, as a general principle, that the individuals that they hire to work for those organizations 

subscribe to the creed and practices of their faith. 

 But the case which established Congress's right to allow this broad zone of discretion for 

religious organizations involved a privately funded, not a government-funded position. Extension 

of the exemption upheld in Amos to cover employees providing publicly funded services is not 

required by concerns addressed in that decision. 

 Much of the Amos analysis, as amplified in concurring opinions, turns on the problems that 

would be posed in limiting the exemption to religious activities of a religious organization, not the 

least of which would be placing the state in the position of parsing which activities of the 

organization are secular and which are religious; but with respect to programs funded by the 

government, the state, as a matter of constitutional.... 

Chairman Hoekstra. Excuse me. 

Mr. Foltin. Yes, sir. 

Chairman Hoekstra. We are going to have to interrupt. We will let you finish your statement 

when we get back.

Mr. Foltin. Thank you. 

Chairman Hoekstra. We now have a firmer gavel on the floor of the House than we have in this 

subcommittee, which means that if we do not get there soon, we will miss our vote. 

 [Recess.] 

Chairman Hoekstra. The subcommittee will reconvene. 

Mr. Foltin. Shall I restart, or not restart, but continue? 

Chairman Hoekstra. Not from the beginning, that is right. Not that we did not think it was 

worthwhile or valuable. 

Mr. Foltin. It sinks in better if I say it twice. 

Chairman Hoekstra. Yes. 

Mr. Foltin. It does for me, anyway. 
36

Chairman Hoekstra. All right. Just wrap up. 

Mr. Foltin. I will wrap up. 

 Just first, let me return, just to conclude the discussion about Amos, to say that with respect 

to programs funded by the government, however, the state, as a constitutional principle, may fund 

only the secular activities of a religious organization, which makes unnecessary an explicit 

extension of the Title VII exemption to cases involving government funding or by, on appropriate 

anti-discrimination provisions in particular, authorizing legislation with respect to employees 

providing publicly funded services. 

 To the contrary, such an approach runs counter to the fundamental civil rights principles of 

non-discrimination, as well as identifies the government with using religious criteria for 

employment. 

 This is even more the case when we are faced, as we are today, with an initiative that is 

premised on substantial expansion of the role of religious organizations in social services provision. 

 Of course, even if the Title VII exemption is not automatically waived with respect to a 

government-funded employment position, this is far from the end of the inquiry. Congress may 

determine, as it did in enacting Section 175C, that as a matter of policy, it does not want publicly 

funded employment positions to be subject to religious preference. 

 The Amos court did not rule that the broad exemption from Title VII carved out by 

Congress so as to extend even to employees with no religious duties was constitutionally required, 

only that it was constitutionally permitted, and this was with respect to a privately funded position. 

 So what I want to conclude by saying is that to be sure, any effort to prohibit religious 

discrimination by religious organizations when they operate programs for which they receive 

government funds must be carefully cabined so as not to encroach on the legitimate interests of 

religious organizations in autonomy with respect to positions that are privately funded. 

 Any such positions should be crafted so that even while it prohibits discrimination on the 

basis of religion with respect to an employment position funded with federal financial assistance, it 

does not encroach upon such exemption from the federal prohibition on religious discrimination as 

a religious organization may enjoy in the use of its own or privately donated funds. 

 That is the careful line that 175C seeks to draw, unlike the case, as I said at the outset, with 

civil rights laws that generally cover federally funded institutions, and recognizing the particular 

constitutional concerns that are presented by religious organizations, the anti-discrimination 

provision of Section 175 does not extend to the entire institution nor even to all staff employed in 

connection with the funded activity, but only to those who are actually paid with federal funds. 

 By thus limiting its reach, Section 175 takes an appropriate approach in seeking to protect 

the important interests of both the government and of religious institutions when the latter receive 
37

government funds. 

 Thank you. 

WRITTEN STATEMENT OF RICHARD T. FOLTIN, LEGISLATIVE DIRECTOR AND 

COUNSEL, OFFICE OF GOVERNMENT AND INTERNATIONAL AFFAIRS, AMERICAN 

JEWISH COMMITTEE, WASHINGTON, D.C. – SEE APPENDIX F 

Chairman Hoekstra. Thank you. 

 What happens if the reauthorization is silent on 175, meaning 175 is eliminated, Mr. Foltin? 

Mr. Foltin. Well, I think what will happen is that there will be an argument as to what the 

implications of the government funding are, as there is an argument generally now. 

 There are cases in the courts, not having to do with federal legislation, but with state 

legislation, I think, at this point, which test whether or not when there is a government-funded 

position there is allowed to be discrimination with respect to that position. 

 A particular case arises out of the State of Georgia, in which a Methodist social service was 

about to hire a very qualified person for a position. The interviewer discovered during the 

interview that this person was Jewish, and basically said to that person, “I'm sorry, we just do not 

hire Jews.'' 

 Whether or not that can constitutionally be done with state funding is now under debate. 

Chairman Hoekstra. You would think there would be a court challenge? 

Mr. Foltin. Well, I cannot say there necessarily would be, but there might be. I would hope, as 

well, that, in implementing the programs, which many religious organizations, as they do now, 

would see fit not to discriminate on the basis of who they hire. 

 But it is very important that this provision, which is very limited and very modest, I think, 

be part of this program. 

 I would note here that this is not the only social service legislation that includes this kind of 

religious protection against discrimination with respect to publicly funded programs. 

Chairman Hoekstra. The question is just what happens if it is not, and you think the question as to 

whether a religious organization could or could not discriminate would be determined through the 

courts? 

Mr. Foltin. I think that that might be one route that that might occur. 
38

Chairman Hoekstra. All right. Does anybody else want to take a shot at what they think would 

happen if 175 were not in? 

Mr. Esbeck. Mr. Chairman, I would like to speak to that if I could. 

Chairman Hoekstra. Okay. 

Mr. Esbeck. Then, of course, we fall back on Title VII, which as I characterized, is the gold 

standard here that applies pretty much throughout all federal legislation, including social service 

legislation, and we would also have in place what was referred to earlier as the December 12, 2002 

executive order of the President, and I think Dr. Lenkowsky referred to that. We would have that in 

place as well as protecting religious hiring rights. 

 Of course, anybody can sue in this country. It is said that America is a litigious country, 

and we get all kinds of lawsuits. 

 The real question is not would there perhaps be a lawsuit, but would the lawsuit be 

successful. I think not. 

 Again, just go back to the Rendell-Baker case that I referred to. There, 90, 95 percent of the 

funding of that private school was from the government, but the court said, ``Look, we are funding 

in that case educational services. That does not make the employment practices of that private 

organization the responsibility of the government.'' 

 If 95 percent of the funding came from the government, you can bet that the teacher that 

was dismissed there was receiving some of those government funds to pay her salary. 

 So the fact that the government funding actually flows to the particular salary of the person 

that it alleges was improperly handled as an employee is a distinction without any merit. 

Mr. Foltin. May I respond? 

Chairman Hoekstra. You can, and I bet we are going to hear a whole lot more of this over the 

next three to five months. So yes. 

Mr. Foltin. Yes, that certainly is a good argument for one side, but I think that these are issues that 

are not resolved at this point. It is an important Supreme Court case going back to 1973 that says 

that a state may not induce, encourage, or promote private persons to accomplish what it is 

constitutionally forbidden to accomplish, namely, discrimination. 

 There is a case, and it is the closest thing to a case on point we have, from a district court in 

1989, that suggests that it violates the Establishment Clause when the government, in effect, 

finances a position with respect to which there is discrimination. 
39

 But I would not be candid if I did not say that these are matters that are very much still in 

issue, and it is not at all clear how the courts will deal with this when they are faced with it. 

 I think the best course is for there to be a clear standard, in addition to the gold standard of 

Title VII, to have this bill, when reauthorized, continue to include the provision that it already had 

in place. 

Chairman Hoekstra. Dr. Spalding? 

Mr. Spalding. I will just add a practical point. 

 As I understand it, the status quo is not Section 175. Section 175 is really an unusual 

circumstance. 

 So making it consistent with existing law, going back to the 1964 Civil Rights Act, would 

seem to me to be the practical objective here, and so it is not a question of what would happen if 

you remove it. The question is what happens if you leave it in there, which is to leave something in 

there which is a sore thumb, to say the very least, in light of other legislation passed by Congress. 

Chairman Hoekstra. Yes, we had this debate last week as to what the standard is and what is a 

retrenchment and what is current law. 

 It is hard to determine if it is current law or if it is in the authorizing statute. It is there, but 

should we let civil rights law be the standard and be the gold standard? That is what these actions 

should be measured against. 

 We heard the debate last week. We heard the debate today, and I am believing that, over 

the next few months, Mr. Hinojosa and I and others will be talking about it and hearing it a number 

of more times. 

 But thank you very much for that. 

Mr. Hinojosa. 

Mr. Hinojosa. Thank you, Mr. Chairman. 

 This question is for Mr. Foltin. 

 Many religious organizations that participate in federally funded programs have voiced 

their opposition to charitable choice provisions and continue to do so today. 

 Can you share with us some of the concerns of the religious community as it relates to 

charitable choice? 

Mr. Foltin. Well, that is a whole other debate that, of course, is ongoing. 
40

 I think the concern that a number of religious organizations have is really concerns that 

many communities have about the implications of charitable choice, and I see this discussion today 

as part of that larger debate, and I alluded to that earlier, even in terms of constitutional analysis of 

the problem of this effort to remove 175C as being part of this larger effort to draw religious 

organizations into the charitable choice provision. 

 What does charitable choice do? For one thing, it allows organizations of a kind that I think 

even with recent Supreme Court decisions are problematic recipients of federal financial assistance 

to discriminate. Namely, these are pervasively religious organizations like churches, synagogues, 

mosques, and religious schools. 

 The reason that is problematic is because these are the kinds of organizations that it is 

intrinsically difficult to see how they are going to separate out their provision of the secular 

services that the government is supposed to be financing from their engagement in religion 

teaching activities, which are very worthy activities, of course, but the issue is that the government 

should not be funding them. 

 Once, and when they start to receive these funds, the question is whether or not there are 

going to be sufficient safeguards in place for beneficiaries of these services so they are not 

effectively coerced into participating in religious activities that they do not wish to be part of, even 

when there are some formal protections in place to guard against that. 

 There are, of course, the issues of whether or not there is going to be decisions made on the 

basis of religion in terms of who gets hired for providing these services, and perhaps most 

crucially, from the religious community's perspective, and of course, I only speak for those 

religious communities that are in agreement with these concerns, there are others on the other side, 

the most significant concern is what all of this means for the autonomy of these religious 

organizations on an ongoing basis. 

 The late Reverend Dean Kelly of the National Council of Churches used to say, “With the 

king's shilling comes the king.'' 

 As soon as you start to have great amounts of funding, of federal funding, government 

funding, going into religious organizations, particularly to these that are pervasively religions 

organizations, you more and more begin to run the risk that these organizations will have their 

religious autonomy interfered with, their ability to carry out their religious mission interfered with, 

and this, I think, is really an immense danger and one that we ought to be very careful about as we 

look to expanding the ways in which government funds the provision of services by religious 

organizations.

Mr. Hinojosa. My next question goes to Mr. Pribyl. 

Mr. Pribyl. Yes. 

Mr. Hinojosa. Is that the correct pronunciation? 
41

Mr. Pribyl. Close enough. 

Mr. Hinojosa. Thank you for your many years of service and for the set of recommendations you 

have put forth today. 

 I'd like to know how you have dealt with the issue of providing these services to individuals 

who do not speak English or who are limited English proficient? What is your recommendation for 

how Senior Corps could work in my congressional district along the Texas-Mexico Southern 

Borders? 

Mr. Pribyl. Thank you, Congressman. 

 Maybe one way I could answer that is, one of my best friends in the Senior Corps business 

is the Senior Companions director in your district, Jose Perez from Alamo, Texas, just a great 

gentleman, and I have learned a lot from him about diversity and how the Hispanic population is 

served in his community. 

 What we have done in Minnesota, we have a lot of diversity in our program with a lot of the 

new Americans, and translating is a major problem when we are dealing with a Somali population, 

a Liberian population, a Hmong population, a Vietnamese population, a North Korea, or South 

Korean population. We have all these groups in our program. 

 We are able to do it because we rely on the agencies that we contract with that are the 

experts with those particular populations. 

 For instance, the Women's Association of Hmong and Lao in St. Paul is our volunteer 

station for Senior Companions there, and they help us with the translation, to do the training, and 

gather the time sheets, and work with that population, and it works very well. 

 It does take some time, it does take some effort; and I think we have proven that we can do 

it.

Mr. Hinojosa. Thank you. 

Mr. Chairman, I yield back the balance of my time. 

Chairman Hoekstra. Mr. Porter? No questions? I have no additional questions. 

 I thank the panel for being here. I appreciate the input. Now I have got to find out whether 

I have got a script here as to any formal things here I have to get right at the end. 

 I think that is it. 

 So thank you. We look forward to working with individuals like yourselves over the 

coming months, learning about the programs and the things that you have in place. 
42

 Obviously, we have a number of reform ideas that have been proposed, and we have got 

some issues here dealing with Section 175. We may call on you again to help us work through that 

maze, but the commitment is here to try to build on the bill that we had in the last session and to 

move forward and get this reauthorized. 

 I know that just about everybody agrees that a reauthorized program with some level of 

reforms is much better than to continue funding the program under the old authorization. 

 So thank you very much, and with that, the subcommittee will stand adjourned. 

 [Whereupon, at 4:30 p.m., the subcommittee was adjourned.] 
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TABLE OF INDEXES 

Chairman Hoekstra, 2, 5, 8, 9, 10, 11, 12, 15, 17, 20, 21, 24, 28, 31, 33, 35, 36, 37, 38, 39, 41 

Mr. Burns, 21, 22, 23, 24 

Mr. Esbeck, 26, 38 

Mr. Foltin, 25, 33, 35, 36, 37, 38, 39 

Mr. Hinojosa, 4, 12, 13, 14, 15, 39, 40, 41 

Mr. Lenkowsky, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 

Mr. Porter, 15, 16, 17 

Mr. Pribyl, 28, 40, 41 

Mr. Ryan, 17, 18, 19, 20 

Mr. Spalding, 31, 39 

Mrs. Davis, 24