On February 22, 2006, the U.S. Department of Health and Human Services (HHS)[1] and the American Civil Liberties Union of Massachusetts (ACLU) agreed to settle a lawsuit that arose from the agency's funding of a faith-based sexual abstinence education program [2]. In May of 2005, the ACLU sued HHS over a series of federal grants made to Silver Ring Thing (SRT) for its sexual abstinence education programs with teenagers[3]. The lawsuit alleged that SRT interweaves religious messages throughout its government-funded program, uses that program to proselytize, and provides only a weak form of the program to students who choose to receive a secular message[4]. The expenditure of government funds on such a program, the ACLU claimed, violates the Establishment Clause's prohibition on direct public financing of religious activities.
In August of 2005, HHS suspended SRT's grant after concluding that SRT lacked adequate safeguards to segregate the secular, government-funded portions of its program from the privately-funded religious components. HHS provided SRT with a list of "Safeguards Required" to bring its program into compliance and restore government funding. For reasons that remain somewhat disputed, HHS did not restore SRT's funding, and the grant was terminated in January, 2006[5].
In the agreement that settles the ACLU lawsuit, HHS does not concede that its own actions violated any constitutional, statutory, or regulatory norms governing the use of public funds by religious entities. HHS does commit itself, however, to follow a specified set of procedures should SRT apply for and receive future federal grants for sexual abstinence education programs. These procedures include notice to the ACLU that SRT has applied for or received future HHS funding, detailed requirements of HHS monitoring of expenditures under any grant to SRT, and a duty to obtain special assurances by SRT that it would comply with the terms of such a grant. The most significant aspect of this settlement, however, resides in the three-page document captioned "Safeguards Required," which HHS originally supplied to SRT as the set of conditions for reinstating the program's grant. This document provides the clearest and most specific guidance that the Bush Administration has yet offered concerning the constitutional limits on direct aid to faith-based organizations.
Analysis:
In its complaint, the ACLU alleged that SRT "makes no effort to segregate government funds for solely secular uses," and that it "uses taxpayer dollars to promote religious content, instruction, and indoctrination." The ACLU also alleged that HHS failed to establish and monitor safeguards to ensure that SRT would not divert government funds to religious uses[6]. Although SRT denied - and continues to deny - any misuse of government funds, an HHS review of SRT's expenditures concluded that "the Federal project that is funded under the SRT grant includes both secular and religious components that are not adequately separated," and for that reason HHS suspended future payments to SRT under the grant[7]. In an important sense, the HHS action responded to both facets of the ACLU's challenge. By addressing SRT's apparent failure to segregate secular and religious uses of government funds, HHS was also answering the ACLU's claim that the federal agency had itself failed to establish and monitor adequate means of ensuring such segregation. If nothing else, HHS was showing that it can identify and police the line between permissible and impermissible uses of government funds.
In September, 2005, a month after completing its review of SRT's program, and suspending the grant that had supported that program, HHS provided SRT with a set of "Safeguards Required" for operation of the program in compliance with existing law and regulations[8]. HHS never restored SRT's funding - perhaps because SRT did not want to change its program to meet the requirements imposed by the Safeguards[9] - but the Safeguards document will, and rightly should, have a life beyond the termination of SRT's grant. As a practical matter, the Settlement Agreement ensures the continued importance of the Safeguards document, because the Agreement incorporates the provisions and procedures set forth in the Safeguards document as the normative framework to which any future grants to SRT will be subjected.
The Settlement Agreement contains a number of items in addition to the Safeguards document. During the term of the agreement, which runs through the end of the 2008 fiscal year (September30, 2008), HHS agrees to scrutinize any SRT application for a grant to fund sexual abstinence education, and closely monitor the performance by SRT of any grant that might be awarded. Moreover, HHS promises to notify the ACLU if SRT applied for or received a grant, and also to make publicly available the reports of any HHS inquiry into SRT's compliance with program restrictions.
Each of these parts of the agreement, however, depends on the answer to a more basic question. What activities may the government directly support? It is this question that the "Safeguards Required" document answers, and it does so in terms that are constitutionally accurate, unambiguous, and detailed. For this reason, we think that HHS's Settlement Agreement in ACLU v. Leavitt, and more specifically the Safeguards document incorporated in the agreement, represents a significant legal development within the Bush Administration's Faith-Based and Community Initiative (FBCI).
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Clarification of the Phrase "Inherently Religious Activities"
Since December of 2002, all rules and guidance materials promulgated as part of the FBCI have used the same phrase to define the Establishment Clause's limit on direct government aid to religion. For example, the HHS regulation governing SRT's grant provides that "Organizations that receive direct financial assistance from [HHS] under any Department program may not engage in inherently religious activities, such as worship, religious instruction, or proselytization, as part of the programs or services funded with direct financial assistance from the Department[10]." For the past three years, the White House and federal agencies have declined to provide additional guidance or clarification about the meaning of "inherently religious activities" under the regulations.
In many previous reports and comments on developments in the FBCI, we have raised concerns about the adequacy of the phrase "inherently religious activities" to describe the set of prohibited objects of direct government aid. That phrase, we have argued, could be construed to mean that the government may directly fund any activities except those that are "exclusively religious." The specific examples invariably given by FBCI publications to illustrate "inherently religious activities" - "religious worship, instruction, or proselytization" - leaves the phrase open to exactly that misunderstanding, because those activities seem to be done solely for religious purposes.
The U.S. Supreme Court's current interpretation of the Establishment Clause does prohibit direct government funding of "exclusively religious" activities, such as worship, religious instruction, or proselytization. It also forbids direct public aid for any program that has significant religious content, even if that content is provided in a service activity that is not exclusively religious. The controlling law is found in Justice O'Connor's opinion in Mitchell v. Helms, in which the Establishment Clause analysis focuses on the government's support for religious indoctrination, even if that indoctrination occurs in a program that has a secular goal. For example, substance abuse treatment is not an exclusively religious activity, but direct government funding of a treatment program violates the Establishment Clause if that program incorporates religious messages in the service it provides at public expense[11].
Greater clarity about the line between permissible and impermissible direct expenditures has been the single most important improvement needed in the FBCI's legal guidance. If the Establishment Clause forbids the use of public aid only for activities that are "exclusively religious," then SRT would be permitted to use religious messages and commitments throughout its program, including the vows of sexual abstinence, because making - and, more importantly, learning how to keep - a commitment to sexual abstinence before marriage is not an "exclusively religious activity.[12]" The Court's governing Establishment Clause law, however, focuses on the content of the activity supported, not on whether the activity is "inherently" or "exclusively" religious. If the activity involves a significant amount of specifically religious content, and the ACLU's complaint alleges that SRT's activity did include such content, then that program may not receive direct government aid.
The Safeguards document resolves any ambiguity about the meaning of "inherently religious activity," at least with respect to SRT's program. In its opening sentence, the document reads: "Any abstinence education program with religious content must be a separate and distinct program from the federally funded abstinence education program[13]." Later, the document makes the same point with its requirement that SRT "eliminate all religious materials from the presentation of the federally funded abstinence education program" (SR 3) "Religious materials" encompasses any item or activity with religious content, from messages on rings to the wording of abstinence vows to materials sent home to parents. Throughout the document, the prohibition on aid for activities with religious content is treated as a logical conclusion from the regulatory ban on the use of funds for "inherently religious" activities.
Two aspects of this new clarification deserve special attention. First, the clarification originated within the federal government. It was not forced on the government by the court or by the ACLU. An HHS administrator, Jeffrey Trimbath, identifies the Safeguards document in his September 20, 2005 letter to SRT, in which he indicates that the provisions contained in that document had been reviewed in a conference call with SRT that took place a day earlier[14].
Second, the Settlement Agreement seems to recognize - at least implicitly - that the constitutional interpretation reflected in the Safeguards document rests on a body of Establishment Clause law that might change, perhaps even before the agreement expires on September 30, 2008. Paragraph 2 of the Settlement Agreement requires HHS to impose the Safeguards on any grant to SRT only "to the extent consistent with then-existing legal requirements administered by [HHS] as to all grantees." Changes in the personnel of the Supreme Court, and in particular Justice Samuel Alito's replacement of the retiring Sandra Day O'Connor, lead many to speculate about future rulings on government aid to FBOs. One can certainly imagine a majority of the Supreme Court adopting a more limited reading of the Establishment Clause, one that permitted the use of religious messages in the service of secular goals such as substance abuse treatment or sexual abstinence education. Nonetheless, the Safeguards embody the present state of the law regarding aid to FBOs. Government may not provide direct support for programs that, like SRT, have specifically religious content.
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The Safeguards and Sexual Abstinence Education Programs
Although the Safeguards document first surfaced in connection with this litigation, the document refers to sexual abstinence education programs generally, and by its own terms should apply to any federally funded sexual abstinence education program. It is fitting that the FBCI's clearest guidance on this core issue should arrive in the context of sexual abstinence education, because Bowen v. Kendrick (1988), the Supreme Court's landmark decision that opened the door to Charitable Choice and the Faith-Based Initiative, arose in the same context. In Bowen, the Court held that the Adolescent Family Life Act (AFLA) did not violate the Establishment Clause, even though the Act allowed religious entities (among a broad set of community organizations) to receive government funds for providing sexual abstinence education to minors. The Establishment Clause is not offended simply because a religious entity, funded under the public program, has religious reasons for promoting sexual abstinence that coincide with the government's secular reasons. The government's purposes remain validly secular, even when furthered by religious entities.
The Court in Bowen upheld AFLA, but sent the case back to the lower courts to determine "whether [HHS] has permitted AFLA grantees to use materials that have an explicitly religious content or are designed to inculcate the views of a particular religious faith[15]." The object of such an inquiry was twofold. First, it sought to discover whether particular AFLA grantees were engaging in religious indoctrination in and through the government service program. As the Court had earlier held, and Justice O'Connor would later emphasize, the Establishment Clause prohibits "government-financed or government-sponsored indoctrination into the beliefs of a particular religious faith[16]," even if such indoctrination occurs in a program that has a manifestly secular purpose.
Second, Bowen also required the lower court to determine whether HHS had developed and implemented adequate procedures to monitor AFLA grantees' compliance with constitutional restrictions on the use of government funds. The Bowen Court's wording of the remand instructions is significant, and worth repeating: "whether [HHS] has permitted AFLA grantees to use materials...." In a program without meaningful procedures for monitoring grantees' compliance, the government may be deemed constitutionally responsible for a provider's religious indoctrination of program beneficiaries, even if that indoctrination violates specific written regulations[17].
On remand in Bowen, the parties to the litigation reached agreement on conditions for the funding of religious providers under AFLA. In addition to excluding all "pervasively sectarian" providers, these conditions focused on a strict system of monitoring by HHS, including prior approval of all curricula used by religious providers, and restrictions on the presence of religious images or publications in the space used for the program[18]. Although the Bowen agreement expired in 1998, HHS sexual abstinence education programs continued to abide by those restrictions at least into 2002[19].
HHS's decision to lift the restrictions imposed by the Bowen agreement falls within the broader narrative of the Faith-Based Initiative. A number of elements of that agreement clearly belong to an earlier, more Separationist era of Establishment Clause law. Most significantly, the agreement's categorical exclusion of "pervasively sectarian organizations" is not required by current law, which focuses on the religious content of the activity funded, not the religious character of the funded entity. In addition, the Bowen agreement requires that religious images or symbols must be removed from any space used to provide the sexual abstinence education program. Like the ban on "pervasively sectarian organizations," such a requirement seems to be aimed more at the religious character of a funded entity than at the religious content of its program.
Although freed of the detailed conditions imposed by the Bowen agreement, HHS and its religious grantees still face the strictures of Establishment Clause law. In many respects, that law has shifted considerably since Bowen, but the underlying inquiry remains unchanged. Should the government be deemed responsible for a grantee's religious indoctrination of program beneficiaries? The Safeguards document explains why that inquiry demands heightened sensitivity in the context of sexual abstinence education programs for minors.
[F]ederal guidelines that have been drafted for situations where a federal grantee also provides religious programming use examples where an organization offered programs that are completely different from each other such as a soup kitchen and a prayer meeting. Because the SRT organization offers two programs that both promote abstinence until marriage and because the clients served are children, it is very important that the separation between the [secular and religious] programs be accentuated (SR 2).
The comment tacitly acknowledges that existing federal guidance materials have not adequately addressed the important - and entirely foreseeable - issues raised by religious grantees providing services that involve personal transformation, whether through substance abuse treatment, prisoner reentry preparation, or sexual abstinence education.
The comment then identifies the two characteristics of sexual abstinence education grants that require heightened governmental scrutiny. First, the program targets minors, who are especially vulnerable to indoctrination (when compared to adults). This can be readily seen in the Supreme Court's Establishment Clause decisions concerning religion in public schools. Although Establishment Clause jurisprudence has generally moved away from Separationism, the Court's decisions on government sponsored religious expression in public schools have moved in the opposite direction, toward even greater exclusion[20]. In programs that involve minors, the government may have special obligations to ensure that providers do not exploit the vulnerability of beneficiaries.
Second, careful application of the Establishment Clause requires greater governmental scrutiny, and more robust restrictions on the grantee, when that grantee provides religious programming that involves the same subject matter or set of problems as its government-funded programming. In part, this scrutiny of the close tie between the two programs arises from a concern that public funds will be diverted from the secular to the religious program. Such concerns are exacerbated by the difficulty of monitoring employees' time when that time is shared between the religious and secular programs[21]. As we noted above, the government has an affirmative duty to guard against improper use of funds for religious purposes. Such a duty is considerably harder to fulfill where grantees offer secular and religious programs that are closely aligned.
In addition, the Safeguards comment offers a specific and useful vantage point from which to view the connections between a grantee's religious and secular programs. According to the comment, "the distinction [between religious and secular programs] must be completely clear to the consumer" (SR 1). This analytic approach owes much to Justice O'Connor's Establishment Clause jurisprudence, which routinely examined problems from the perspective of those individuals most affected by a governmental action[22]. If a beneficiary is led to believe that participation in religious components of a program is a condition of receiving a government-provided service, the beneficiary may believe that the government itself is forcing her to choose between accepting the religious experience or foregoing the benefits of the service. Thus, sharp distinctions between the grantee's secular and religious programs are required to ensure that beneficiaries do not come to believe that the government is responsible for the content of both programs.
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The Safeguards as Model Guidance
Those responsible for abstinence education programs are not the only ones who would benefit from a close study of the Safeguards document. Any government-funded social service that involves transformation of character or behavior must confront the same issues addressed in that document. In the following paragraphs, we identify the basic legal principles within the Safeguards document that can be applied across a wide range of service areas, and suggest how an understanding of those principles can help to provide sound, program-specific guidance for government officials and FBO leaders alike.
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Context
The most important feature of the Safeguards document is its recognition that Establishment Clause analysis depends greatly on the specific context of the program at issue. This dependence flows from the core constitutional inquiry - is the government responsible for a grantee's religious indoctrination of program beneficiaries? The answer to that question rests on at least three basic features of a program: the vulnerability of beneficiaries to such religious indoctrination; whether the service is of a type that aims at the personal transformation of beneficiaries, rather than simply delivering goods such as food or shelter; and whether the service provider offers religious programming that is closely related to the secular service funded by the government.
Those three features provide an interpretive prism that can then be used to evaluate other characteristics of a program. In the SRT case, the prism disclosed a context that required heightened sensitivity. The beneficiaries were all minors, and SRT's program certainly had more ambitious aims than that of delivering basic goods. Its program intended to reshape the teenagers' values, and specifically elicited from them commitments to lead lives of a particular quality. Finally, SRT's government-funded program was seamlessly joined with its religious program, such that the program seemed to be suffused with the hope of transforming teenagers' moral commitments of sexual abstinence into religious commitments. As we explain below, those characteristics of SRT's program significantly increased the likelihood that the government would be found responsible for any religious indoctrination of beneficiaries. Given that increased likelihood, the responsible government agency was faced with a choice: revoke the grant; or impose stricter limits on the use of government funds, along with more intense monitoring of such limits.
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Line-Drawing and Governing Principles
Establishment Clause analysis, especially in the consideration of direct aid programs, is essentially an exercise in line-drawing. One side of the line represents the set of activities permitted within a government-funded program; the other side of the line represents the set of activities that the government may not directly finance. A lawyer averse to legal risk might recommend a broad exclusion of religious grantees, thereby minimizing the chances that a program would involve the government in religious indoctrination. And indeed, many government officials did - and some continue to - exclude at least some types of FBOs from participation in social welfare programs. Such broad strategies of exclusion, however, run contrary to the strong public policy of the federal government, and are certainly not required by the currently prevailing reading of the Establishment Clause. Instead, those required to provide legal guidance to government agencies must attempt to reconcile the policy goals of providing a "level playing field" for FBOs, and for enlisting such organizations' assistance in reaching those most in need, with the Establishment Clause's restrictions on direct aid to religion.
That work of reconciliation begins with a return to Justice O'Connor's statement of the core legal issue, from her controlling opinion in Mitchell v. Helms. When is the government constitutionally responsible for religious indoctrination, by government-funded service providers, of program beneficiaries? In Mitchell, O'Connor provides two answers. Government is responsible for such indoctrination if public aid is diverted to uses that are not secular in content. Government is also responsible if the service program lacks adequate safeguards to prevent funds from being diverted to religious uses[23].
Although perhaps hard to appreciate in the abstract, O'Connor's Mitchell analysis is far from hostile to FBOs and their public grantors. Most significantly, O'Connor rejects the presumption that religious entities and officials will divert public aid to religious purposes. The alternative to such a presumption is evident from the Mitchell dissent. If government cannot trust FBOs or their officials to comply with restrictions on the use of public aid, then such aid may only flow to religious entities in very limited circumstances. For O'Connor, however, FBOs enjoy the benefit of doubt that they can and will comply with rules governing appropriate uses of funds. Nonetheless, that benefit can be forfeited, either through proof that aid has actually been diverted to religious uses, or through a showing that government lacks effective monitoring to determine whether any such aid has been diverted.
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The Safeguards
The Safeguards document translates Justice O'Connor's Mitchell analysis into a model of clear, practical guidance for sexual abstinence education programs. We offer here a brief commentary on each paragraph of the Safeguards, attempting to place the document's guidance within a broader framework of constitutional and regulatory norms.
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Separate and Distinct Programs
The first paragraph requires SRT or any similar grantee to create wholly secular abstinence education programs, entirely distinct from their faith-based programs. At first glance, this requirement appears similar to a traditional rule that required religious entities to set up separate, secular charitable entities in order to be eligible for government grants and contracts. Erasing that traditional rule has been one of the main goals of the Faith-Based Initiative, which has sought to allow FBOs to participate in government aid programs, while maintaining their religious character.
On closer inspection, however, it seems unlikely that the first paragraph of the Safeguards document was intended as a limit on the religious character of SRT or any other provider. Instead, the paragraph focuses on the potential diversion of public funds to religious use. If, as was the case with SRT, the religious and publicly supported programs share the same "brand," and the same embodiments of such a brand - name, promotional materials, website - public resources devoted to the support of the secular program will inevitably, and directly, support the religious program as well.
Moreover, the requirement of separate and distinct programs is essential, at least in the context of sexual abstinence education, to avoid governmental responsibility for the religious indoctrination of service beneficiaries. This analysis takes a somewhat different approach than the prior treatment of diversion, because the concern here is more fundamental. The problem with a seamless unity of secular and religious programs rests not merely in the subtle subsidy that the public program might provide for the religious program, but in the risk that the public program as a whole might be operated for the benefit of the religious program. In SRT's case, that concern gave rise to suspicions that the publicly financed program of sexual abstinence education intentionally steered teenagers into religious experience.
Finally, the first paragraph's guidance also rests - if less explicitly - on the second prong of Justice O'Connor's Mitchell analysis, the requirement of adequate safeguards against diversion of funds to religious use. Seen in light of this analysis, the demand for separate and distinct programs can be understood as a reliable means of ensuring that promotional aid for the secular program is not captured for the primary benefit of the religious program.
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Separate Presentations
The second paragraph follows logically from the first. Because the secular and religious programs are separate and distinct, the grantee's presentation of those programs also must be separate and distinct. Not surprisingly, the rationale for this guidance also follows the same general line as that for the first paragraph. The requirement of separate presentations minimizes the risk that government funds will be diverted to religious use, and also makes it somewhat less likely that the publicly funded program will be designed and run as a means to steer beneficiaries into the provider's religious program.
Unlike the guidance in the first paragraph, which is developed as an interpretation of agency rules, the second has an explicit regulatory basis. If a grantee holds religious activities, "the activities must be offered separately, in time or location, from the programs or services funded with direct financial assistance from [HHS][24]." The Safeguards document adds one significant interpretive gloss to the rule. The document suggests that the relevant perspective for determining the "separateness" of presentations should be that of a program beneficiary. Each of the examples focus attention on beneficiaries' experience of the respective programs, emphasizing the need for beneficiaries' subjective disengagement from one program before another can begin.
This focus on beneficiaries and their experience has at least two implications. First, it reflects a commitment that beneficiaries' participation in religious experience should be consciously chosen, and not something entered thoughtlessly, as beneficiaries proceed without pause or question through the public program and into the religious one. Second, the focus on beneficiaries reflects an even deeper commitment that religious experience should be freely chosen, rather than an experience accepted by beneficiaries because they believe it is a condition of receiving the public service. Whether beneficiaries drift into, or feel themselves compelled into, religious experience, the Establishment Clause violation arises out of the government's responsibility for their journey into religious experience.
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Religious Materials
The third paragraph requires grantees to "eliminate all religious materials from the presentation of the federally funded abstinence education program." Like the first paragraph, this exclusion seems to strike a chord of hostility to religious identity or character. As with the first, however, the exclusion is limited to the content of the service - "the presentation" - not the religious identity of those who provide the service.
Perhaps implicit in this list of excluded items is an assumption that many program beneficiaries, if given a choice, would want to receive religious materials, such as Bibles or rings inscribed with religious messages. Apart from programs of indirect financing (such as a school voucher system), however, the voluntary consent of program beneficiaries does not cure Establishment Clause problems. Direct public aid for a program that, as an integral part of its service, distributes Bibles or other religious materials, violates the Establishment Clause.
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Cost Allocation
The question of allocating costs - whether the salary of a substance abuse counselor, or the maintenance of a van used to transport service beneficiaries - may appear mundane, but it raises the most basic issues under the Establishment Clause. The prohibition on diversion of public aid to religious uses, and the obligation imposed on government to provide adequate safeguards against such diversion, directly implicate the question of how costs are allocated. A counselor employed by a provider of sexual abstinence education might spend part of her time working on a publicly financed, secular program, and another part of her day working on a religious program. Courts in other contexts have been skeptical of claims that such counselors could or would honestly segregate their time between hours of secular work, which are eligible for government subsidy, and hours of religious work[25].
The Safeguards document, however, follows the analysis Justice O'Connor adopted in Mitchell. Her analysis rests on a presumption that individuals will act in good faith, and are generally willing and able to comply with clear rules. That presumption itself rests on a prior condition, one also recognized by the Safeguards document. Our hypothetical counselor can only allocate time to one program rather than the other if she can reliably determine when work for one program ends and the other begins. The first two paragraphs of the Safeguards should be seen in this light; without clear distinction between programs, cost allocation is impossible. And if cost allocation is impossible, the government cannot meet its obligation of ensuring that public funds are not diverted to religious use.
Resting on the foundation of separate and distinct programs, the fourth paragraph offers sound examples of how to allocate a range of costs. With respect to staff time, the default requirement is that public funding must be linked to specific hours worked by specific staff, documented by time sheets. Such a policy both avoids diversion to religious use, and also provides the means through which government can monitor the grantee's use of funds. The Safeguards document indicates that, under some narrow and limited circumstances costs may be shared between publicly funded and other programs. Such shared e
Conclusion - Lessons Learned
The Safeguards document represents a major legal development in the FBCI because the document - following the line of decisions that reaches back to the Supreme Court's own encounter with sexual abstinence education - concisely and accurately identifies the set of goods and activities that the government may not directly fund. At least in the context of abstinence education, the government may not directly fund programs that have religious content. The document then proceeds to draw from that answer a body of practical guidance. This guidance starts with the requirement of segregated programs, a requirement that meets the constitutional demands both to avoid diversion of funds and to establish effective safeguards against such diversion. The document then shows how separation of programs in that manner satisfies a variety of constitutional or regulatory concerns, ranging from the voluntary participation of beneficiaries in religious activities to the method for allocating costs when staff members work on both government-sponsored and religious programs. All of this guidance, however, depends on that first step - the clear designation of what is permitted, and what is prohibited, as an object of direct government support. Where that first step remains unsure, no clarity may follow.
Notes:
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For technical reasons the lawsuit was brought against Mike Leavitt, Secretary of HHS, acting in his official capacity, as well as against two other HHS administrators, also acting in their official capacities: Wade Horn, Assistant Secretary for Children and Families, and Harry Wilson, Associate Commissioner, Administration on Children, Youth and Families. For purposes of simplicity, we will refer to these defendants as HHS.
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Our analysis of the ACLU's initial complaint in this lawsuit can be found at:
http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=37
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For more information about SRT's programs, see: www.silverringthing.com
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The ACLU's complaint can be found at:
http://www.aclu.org/ReproductiveRights/ReproductiveRights.cfm?ID=18242&c=147
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On its face, the settlement agreement suggests that SRT's funding was not restored because its program did not comply with the "Safeguards Required" by HHS.
See p.2 of the Settlement Agreement, at:
http://www.religionandsocialpolicy.org/docs/legal/cases
/SRT-HHS-ACLU_Settlement%202-24-06.pdf
SRT, however, claims that the grant was fully paid notwithstanding the ACLU lawsuit. See SRT press release, at:
http://www.silverringthing.com/press22806.html.
That statement is difficult to reconcile with HHS's order of August 22, 2005 to "suspend[] the drawdown of all Federal funds" until SRT complied with the ban on religious use of government funds - unless, of course, no funds remained to be withdrawn. See p. 2 of the Settlement Agreement.
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Complaint, 71 - 73.
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Letter from Harry Wilson, Associate Commissioner, Family and Youth Services Bureau, HHS, to Mr. Denny Pattyn, SRT (August 22, 2005). The letter is attached to the settlement agreement as Exhibit 1.
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Letter from Jeffrey Trimbath, Director, Abstinence Education, Family and Youth Services Bureau, HHS, to Mr. Denny Pattyn, SRT (September 20, 2005). The letter is attached to the settlement agreement as Exhibit 2.
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In the September 20 letter, SRT was asked to provide HHS with a Corrective Action Plan (CAP) that would conform its program to the provisions set forth in the Safeguards document. The settlement agreement is silent on the question of whether SRT filed such a plan.
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45 CFR ยง 87.1(c).
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See, for example, Freedom from Religion Foundation v. McCallum, 179 F. Supp. 2d 950 (W.D. Wisc. 2002) (holding unconstitutional direct public aid to Faith Works, a faith-intensive substance abuse treatment program). See also our analysis of that decision at:
http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=3
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In light of this lack of clarity about the meaning of "inherently religious activities," we find wholly unsurprising SRT's claim that, at the time HHS suspended payment of the grant, SRT believed that it was acting in compliance with federal guidelines. SRT press release, online at:
http://www.silverringthing.com/press22806.html
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"Safeguards Required," 1 (document attached to Settlement Agreement). All subsequent references to this document will be incorporated in the text as "SR."
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Trimbath letter, Settlement Exhibit 2.
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Bowen v. Kendrick, 487 U.S. 589, 621 (1988). The Court also remanded the case to determine whether grants had been made to "pervasively sectarian organizations." As we noted in our earlier commentary on ACLU v. Leavitt, the Court has almost certainly jettisoned the concept of "pervasively sectarian organizations" as a set of entities barred from direct public aid. See our discussion of this concept in the 2002 State of the Law Report, at 29-34.
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Bowen, 487 U.S. at 611 (citing Grand Rapids v. Ball, 473 U.S. 373, 385 (1985)).
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Justice O'Connor's concurring opinion in Bowen points to the constitutional significance of program safeguards against diversion of funds, but the concept only becomes fully developed - and constitutionally determinative - with her opinion in Mitchell v. Helms. See our analysis of O'Connor's view of safeguards in the 2005 State of the Law Report, at 14-17; see also Lupu and Tuttle, The Faith-Based Initiative and the Constitution, 55 DePaul L. Rev. 1, 89-102 (2005) (available at:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=727744).
In ACLU of Louisiana v. Foster (2002), a federal district court held that the Louisiana Governor's Program on Abstinence violated the Establishment Clause because it provided government funds to religious providers, and then failed to monitor their compliance with restrictions on religious content in the program, or even to respond when several providers disclosed extensive use of religious literature and themes. For further detail about this decision, see our analysis at:
http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=5.
As the court in Foster concluded, the government may bear responsibility for religious indoctrination in programs that it funds if it fails to provide and enforce appropriate restrictions on the inclusion of religious content in such programs.
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Documents from the 1993 AFLA consent decree.
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See 2002 State of the Law Report, at 59-63 (on HHS sexual abstinence education program restrictions in 2002).
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On the same day that the Supreme Court decided Mitchell v. Helms (2000), which permitted a much broader range of direct aid to religious schools, the Court also decided Santa Fe v. Doe, which held unconstitutional a rule that created a regime of student-led prayer before public school athletic events. See 2002 State of the Law Report, at 30.
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We discuss this problem of apportionment both in the context of employees' pay, in FFRF v. McCallum:
http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=3,
and in the context of aid for the restoration or repair of religious structures, in the essay New Federal Policies on Grants for Disaster Relief or Historic Preservation at Houses of Worship and Places of Religious Instruction, online at:
http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=16.
See below for further discussion of the proportional payment issue as addressed in the Safeguards document.
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See 2005 State of the Law Report, at 10-19.
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We develop Justice O'Connor's Mitchell analysis at much greater length in Lupu & Tuttle, The Faith-Based Initiative and the Constitution, 55 DePaul L. Rev. at 75-102.
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45 CFR 87.1 (c)
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In Freedom from Religion Foundation v. McCallum, the court rejected a counselor's estimation of relative time spent engaged in religious and secular counseling. 179 F. Supp. 2d 950 (W.D. Wisc. 2002) See also our analysis of that decision at:
http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=3
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The Safeguards document also explicitly rejects any proposal to allow proportional allocation of costs for promoting the shared religious/secular brand. 1.
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Settlement Agreement, 3.A.2.
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3.A.2.c.
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