Overview
On September 12, Americans United for the Separation of Church and State filed suit against the Secretary of Health and Human Services and two of that department's grantees under the Compassion Capital Fund [1]. The suit, filed on behalf of thirteen Washington taxpayers, alleges that those grants have been used to finance religious activities, in violation of the Constitution's Establishment Clause. The lawsuit targets two grants made to the Northwest Marriage Institute (NMI) [2] , a faith-based marriage education and counseling provider. NMI has used the grant funds to purchase computer and audio-visual equipment, create and maintain a website, and train its staff in fundraising and financial management. The lawsuit alleges that NMI has used the resources and skills acquired with the grants to conduct and support its program of expressly religious marriage counseling. The plaintiffs have asked the court to declare defendants' expenditure of public funds to be unconstitutional, to enjoin future HHS grants to NMI, and to order the grantees to repay all government aid that has been used for unconstitutional purposes. The defendants will have several weeks in which to answer the complaint, and are expected to raise legal and factual challenges to the plaintiffs' claims.
The lawsuit raises difficult and novel questions about the constitutionality of government financial assistance in building the capacity of religious organizations. Such aid has an uncertain status under current Establishment Clause jurisprudence, because the aid constitutes financial support for the organization's religious activity, but at the same time is not directly related to the religious content of the organization's programming. Clarity on this question is greatly needed, because the Compassion Capital Fund (CCF) - among the most important components of the Faith-Based and Community Initiative - focuses its financial aid on capacity-building in faith-based and community-based organizations.
Moreover, the lawsuit represents the first Establishment Clause challenge to a faith-based program of marriage education and counseling. Although plaintiffs in this case challenge grants made under the CCF, Congress and the Administration have made a significant investment in this area through a different program, the Healthy Marriage Initiative [3], under which the government plans to spend $750 million over the next five years on marriage-related education and research. The Healthy Marriage Initiative, like all federal grant programs, is open to faith-based providers, and this lawsuit may clarify the constitutional restrictions imposed on public funding of such providers.
Description
In its lawsuit, Americans United for the Separation of Church and State (AU) alleges that two CCF grants were used to subsidize the religious activities of NMI. The Department of Health and Human Services (HHS) made the first grant, through the CCF Demonstration Program, to an intermediary entity, the Institute for Youth Development (IYD) [4], which provides training and technical assistance to faith-based and community-based organizations. Under its CCF grant, IYD also makes subgrants to such organizations, for the purpose of capacity-building. In June of 2005, NMI received a $47,750 subgrant from IYD, and used the proceeds from the grant to purchase computer, audio-visual, and other office equipment; to teach employees how to apply for and manage government grants, and to improve skills in financial management; and to pay part of the salaries of NMI's two staff members.
HHS made the second grant, under the CCF Targeted Capacity-Building Program, directly to NMI. In September 2005, NMI received a $50,000 grant that the organization has used to create and maintain a website, and to receive additional staff training in fundraising.
AU's complaint asserts that HHS and its intermediary, IYD, violated the Establishment Clause by financing the religious activities of NMI, and by failing to institute adequate safeguards that would have prevented NMI from using public funds for religious purposes. In the paragraphs below, we explain and analyze the specific constitutional claims that AU raises against HHS and its grantees.
Analysis
In its lawsuit, AU identifies four discrete categories of expenditures, each of which presents somewhat different issues for analysis under the Establishment Clause. These four categories are: (A) design and maintenance of NMI's website; (B) computers, audio-visual equipment, and other office equipment, including a copier and printer; (C) training and technical assistance in fundraising and financial management; and (D) part of the salaries of NMI's two employees.
Although the differences among the expenditures are important, as our analysis will describe, the four categories share one legally significant characteristic: All reflect direct public aid for a religious organization, and are thus governed by the constitutional rule set out by Justice O'Connor in her concurring opinion in Mitchell v. Helms [5]. Because the CCF grant funds cannot reasonably be described as a type of indirect aid [6] - or voucher -for NMI, the government will be deemed constitutionally responsible for NMI's use of funds for religious purposes unless the following four conditions are met:
(1) The government aid must be offered to a broad class of beneficiaries, both religious and secular;
(2) The aid must be secular in content;
(3) The aid must not be used for specifically religious activities, which includes programs with religious content;
(4) Government must establish safeguards that are adequate to prevent grantees from diverting public funds to religious uses.
The expenditures challenged in AU's lawsuit all pass scrutiny under the first two requirements. CCF grants are open to both religious and non-religious entities, and selection of grantees is based on secular factors, such as the specific types of need in a community [7]. Moreover, all four types of aid are secular in content; the government has not directly financed religious materials or worship. Electronic devices, website designers, and fundraising trainers all constitute forms of governmental assistance that are not intrinsically religious.
Thus, the constitutional analysis turns on the last two requirements of the Mitchell test - the restriction on the use of public funds for religious activities, and the means used to enforce that restriction. Using those two requirements as our measure, we will explore each category of aid challenged in the AU lawsuit.
(A) The NMI Website
AU alleges that NMI has used part of its direct funding under the CCF Targeted Capacity-Building Program to create and maintain a website "to disseminate information and to solicit donations" (Complaint, 40). The complaint asserts that NMI's website contains a significant amount of religious content, including scriptural references and explicitly theological concepts used to support or explain the messages advanced by the program (Complaint, 43) [8]. AU's claims about the website exemplify its most basic argument about NMI - the grantee's programs thoroughly intertwine religion with the marriage education and counseling services it offers, and thus NMI's website reflects its religious approach to the full range of issues that the organization addresses.
Before turning to the constitutionality of public aid for NMI's website, we note that HHS might claim that NMI's use of the CCF-funded website violates the terms of its CCF grant. In the grant application, HHS instructs grantees that the "inherently religious activities" of grantees must be segregated from "programs or services funded with CCF assistance." The application continues: "Some of the ways this may be accomplished include, but are not limited to, promoting only the Federally funded aspect of the program in materials, websites, or commercials purchased with any portion of the Federal funds [9]." If the NMI website was financed through the CCF grant, then the use of funds would appear to violate the requirement that public funds only support the "Federally funded aspect of the program," because NMI's explicitly religious marriage counseling and instruction is constitutionally ineligible for direct federal funding. The CCF's restriction could understandably create confusion for a grantee such as NMI, because - if AU's factual claims are accurate - NMI might be able to pay for a website with its CCF grant, but the website would not be permitted to say anything about the program for which NMI exists, its faith-rich marriage counseling.
Even if the website expenditure does not violate the terms of NMI's grant, however, public aid for the website raises serious issues under current Establishment Clause jurisprudence. As noted above, the Mitchell standard provides that government funds may not be used to directly support religious activities. Here, AU alleges, NMI is using a government-supported website to promote and disseminate its explicitly religious marriage counseling program. Under the Mitchell standard, the diversion of public aid to support religious activities violates the Establishment Clause, and the facts alleged by AU suggest such a diversion in this case, at least with respect to the website.
In assessing the website, the court might also examine HHS's safeguards against diversion of funding, and on this issue, too, the court might rule against the defendants. HHS, in its CCF grant application, does inform grantees that CCF-supported activities must be segregated from those that are "inherently religious." But HHS does not offer a clear and comprehensive statement of the activities courts would deem to be "inherently religious." Indeed, as we have argued elsewhere, by suggesting that only "worship, religious instruction, and proselytization" are prohibited uses of direct aid, the government may inadvertently lead grantees to believe that the law permits them to use explicitly religious language and concepts in the provision of social welfare services, such as marriage counseling or substance abuse treatment. Under current Establishment Clause law, however, such use is considered just as religious for constitutional purposes as worship or proselytizing [10].
(B) Computers, Office Machines, and Audio-Visual Equipment
AU claims that NMI used part of its CCF subgrant from IYD to purchase "computers, printers, an LCD projector, and a portable public-address system," and that NMI has used at least some of these resources in the presentation of its marriage counseling program (Complaint, 42). As with the website, NMI's use of government-funded goods falls under the Mitchell standard, which requires that such goods must be segregated from the religious activities of the grantee. If AU's factual allegations are correct, then NMI appears to have used the equipment to promote its religious message, in violation of the Establishment Clause.
NMI's use of these resources raises two additional questions that are not made explicit in the AU complaint, but are likely to arise at some point in the legal proceedings. First, does the constitutional restriction on a grantee's use of government-funded resources continue or expire at the end of the grant term? The question is important, because the CCF grants and subgrants are typically short in duration, and are not generally renewable. NMI's subgrant from IYD, for example, lasted for only six months.
Property acquired by a grantee using government aid is subject to certain restrictions on its use or disposition at the end of the grant, and these restrictions are contained in OMB Circular A-110, Part C [11]. Under these regulations, the resources at issue would be classified as "supplies," and NMI would be required to reimburse HHS for some portion of their value if the aggregate value of retained supplies exceeds $5,000 at the end of the grant [12]. Thus, if NMI's computers, audio-visual equipment, and office machines have a total fair market value of more than $5,000 at the end of NMI's grant, then NMI would be required to pay HHS some portion of the current value of the goods in order to retain them [13].
Nothing in the HHS or IYD informational materials about the CCF, however, suggests that grantees will need to return or repay the cost of computers and other equipment purchased with the grant funds. Indeed, at least part of the justification for the program is that the capacity-building grants will enable small organizations to acquire the resources necessary for them to engage in a broader scope of service activities and partnerships, and computers and similar equipment are important means through which that expansion can occur. An obligation to repay HHS for the equipment would seem to undermine the program's basic purpose.
Even if NMI is not required to reimburse HHS for the value of the equipment - either because its aggregate value is less than $5,000, or the agency elects not to pursue this remedy - the federal policy on disposition of grant-financed property does not resolve, or even begin to address, the constitutional issue of such property held by a religious entity. Federal rules provide that legal title to such supplies is held by the grantee. Therefore, one might reasonably believe that once the grant is completed and the grantor agency does not seek return of the goods, the grantee is free to use the property as it sees fit, including for religious purposes. In such circumstances, the grantee might think that the government is not constitutionally responsible for the grantee's religious use of the property because the property no longer belongs to the government, and the religious entity is not using the property as part of a government-funded program.
Such an argument, however, conflicts with the Supreme Court's decision in Tilton v. Richardson (1971) [14]. In Tilton, the Court upheld a federal program that provided financial assistance for construction of buildings at colleges and universities, including religiously affiliated schools; the program provided that funds were not to be used for construction of buildings that would be used for religious purposes. Nonetheless, the Court struck down a provision of that program under which the restriction on religious use was limited to 20 years. After 20 years, the schools would have been permitted to use the buildings for any purpose, including worship or religious instruction. The Court reasoned that:
Limiting the prohibition for religious use of the structure to 20 years obviously opens the facility to use for any purpose at the end of that period. It cannot be assumed that a substantial structure has no value after that period and hence the unrestricted use of a valuable property is in effect a contribution of some value to a religious body. . . . The restrictive obligations of a recipient institution under [the Act] cannot, compatibly with the Religion Clauses, expire while the building has substantial value.
Under Tilton, the applicable restrictions must last as long as the property financed by the government has "substantial value." The Tilton decision thus stands in significant tension with a rule that would permit NMI to make unrestricted use of government-funded property, even if the grant under which the goods were purchased has expired. Such restrictions - which require that government-funded property must not be used for religious purposes - must endure for the useful life of the purchased property [15]. Thus, if Tilton is followed, NMI must either pay the government for the value of the used goods, or wait until the useful life of the goods has expired to use them for religious purposes.
NMI's use of the government-funded equipment raises a second and much more complex question: does the use of such equipment to support and promote an entity that engages in exclusively religious social service activities reflect an unconstitutional diversion of aid to religious purposes? In other words, if NMI does not conduct programs that are eligible for direct public aid - because, AU alleges, NMI employs overtly religious language and concepts in its entire service program - then does not any form of direct public support for the organization violate the conditions set forth in the Mitchell standard? We address this difficult question in connection with the third category of expenditures, the aid for training and technical assistance in fundraising and financial management.
(C) Training and Technical Assistance
AU alleges that NMI has used federal grant funds to pay for three types of consulting services: "a financial consultant to audit its books and to establish and train staff in a fiscal-management system"; "a federal-grant specialist to offer training in writing successful government-grant applications"; and a "fundraising consultant . . . to train the director and administrative assistant in fundraising techniques and to train the administrative assistant in using the donor-management software" (Complaint, 38, 49). These three services reflect core components of CCF's vision for building the capacities of faith-based and community-based organizations. The CCF is designed to assist such organizations "to increase their effectiveness, enhance their ability to provide social services to serve those most in need, expand their organizations, diversify their funding sources, and create collaborations to better serve those in need [16]."
The capacity-building assistance at issue here is only that which occurs through a discretionary government grant awarded to an organization, which uses such funds to purchase training and technical assistance. This analysis does not address training and technical assistance programs offered to all eligible organizations, such as a grant-writing workshop provided by HHS and open to any organization that now provides, or wants to provide, social welfare services.
AU does not allege that CCF funding for these consultants was used to develop or promulgate NMI's religious message. Instead, AU challenges the government's aid for the organization itself, on the theory that the support inevitably and intentionally subsidizes NMI's explicitly religious marriage education and counseling program. At first glance, the argument seems to revive the now-discredited principle that "pervasively sectarian organizations" are ineligible to participate in government-funded social welfare programs [17]. Over the past decade, Establishment Clause jurisprudence has shifted its focus from the institution to the activity. The constitutionality of an expenditure depends on the religious character of the activity supported, not the religious character of the institution that conducts the activity. Seen in that light, the CCF aid for capacity-building appears to be permissible, because the subsidized activities - training in fundraising and financial management - are secular.
The challenge to CCF funding of capacity-building, however, is more complex than it first seems. Under current Establishment Clause doctrine, the government likely would not be permitted to provide a grant to a house of worship (that engages in no social welfare activities), to assist the entity in improving its fundraising techniques. Such assistance to a religious organization would likely be found defective under the Mitchell rule that government funds must be used only for secular activities. Assisting a house of worship in its general fundraising does not support such a secular activity.
That analogy returns us to the reasoning through which Establishment Clause jurisprudence has moved away from the category of "pervasively sectarian institutions." Under the Mitchell standard, government may fund non-religious activities of religious organizations, but may not fund religious activities, whether conducted by a religious or non-religious organization. If an organization conducts exclusively religious activities, however, then the government would be prohibited from all direct funding of the organization. That result would follow whether the government proposes to pay for the rent, utilities, office expenses, fundraising costs, or any other overhead expense of the entity. Government aid for overhead costs that are traceable to the conduct of religious activities would seem to have the same constitutional status as direct public aid for the activities themselves [18].
That reading of the Mitchell standard would have a serious impact on the CCF, because the program does not exclude from eligibility those faith-based organizations that conduct exclusively religious social welfare services. Indeed, the most restrictive interpretation of Mitchell might lead to a ban on capacity-building aid to any organization that does not engage in exclusively secular programming, because the benefits of such capacity-building cannot be segregated into religious and secular components. In other words, capacity-building for secular services would invariably help an organization in ways that could be used also to enhance its religious services, as with skills in financial management. This restrictive interpretation of Mitchell is unlikely to be adopted by a court, because its logic would undermine all forms of direct aid for the secular activities of a religious organization. Any type of aid, whether food for a feeding program or a building for an affordable housing provider, may confer indirect but foreseeable benefits on the religious activities of the religious entity. Adoption of this restrictive reading of Mitchell would, for all practical purposes, return to the widespread exclusion of religious entities, and courts are highly unlikely to take that path again.
A somewhat less restrictive interpretation of the Mitchell standard might prove more persuasive to courts, but would still have a significant impact on the CCF. Under this interpretation, the government would be permitted to finance the capacity-building of entities that currently conduct some activities that are eligible for direct government aid. The government's purpose might reasonably be construed as expanding the organization's ability to provide such services. A court adopting this interpretation would then need to decide whether CCF funds could be used to finance the entire cost of capacity-building activities, or only a share that reflects the organization's proportion of non-religious services. In either case, however, entities that do not conduct any secular services would remain ineligible for CCF capacity-building funds.
Only the least restrictive interpretation of the Mitchell standard in this context would permit the CCF to continue its present policy of allowing all (otherwise eligible) providers to compete for funds. Under this third reading, the government would be permitted to finance the capacity-building of any entity that promised to provide, at some point in the future, activities that would be eligible for direct government assistance [19]. Indeed, NMI's subgrant from IYD required it "to develop and submit a Federal Grant Application within two years of receipt of the CCF/IYD grant award [20]." This promise of future participation would supply the government's reason for extending present support, notwithstanding the fact that the funded entity now conducts exclusively religious social welfare services.
The least restrictive reading finds some support within current Establishment Clause jurisprudence, especially in Justice O'Connor's opinions in Mitchell and Agostini v. Felton (1997). O'Connor's dispositive analysis in both cases turned, at least in part, on the extent to which she believed that officials of government and religious institutions would act in good faith in attempting to comply with restrictions on religious uses of public aid. A similar reliance on grantees' good faith effort to participate in future government programs might be sufficient to justify the present award of aid for capacity building.
O'Connor's reliance on good faith in Agostini and Mitchell, however, seems to have been predicated on the officials' realistic ability to segregate the secular, government-supported activity from the religious programs of the funded entity. But aid for a program that has no current secular activities might stretch the limits of a judge's willingness to rely on that good faith, especially if the funded entity cannot point to any objective evidence of its effort to create a secular program that would be eligible for direct aid. In the absence of such evidence, aid for the capacity-building of a religious entity, based solely on the promise that it will develop a program eligible to receive government funds, seems hard to distinguish - in constitutional terms - from the provision of such aid to a house of worship that offers no social service programs at all. Nonetheless, a court may accept this argument based on trust in good faith as the sole ground on which the CCF, as presently designed, may survive constitutional scrutiny.
(D) Salaries of NMI Staff
Finally, AU alleges that NMI "used funds from both the subgrant and the direct grant to pay a portion of the salaries and benefits for its director and administrative assistant" (Complaint, 44). AU makes two discrete claims with respect to the use of public funds for NMI salaries. First, the complaint alleges that the salary payments subsidize the religious activities of the director and administrative assistant of NMI, because the grants pay for more time than the employees actually devote to the capacity-building activities permitted under the grant [21]. This allegation raises questions that are essentially factual. If NMI cannot produce adequate records showing that its employees have spent the required time working on grant-appropriate activities, rather than engaging in the organization's religious programming, then AU's Establishment Clause challenge to the salary aid is likely to succeed.
Second, even if NMI can show that it charged to the grant only the time that employees actually spent working on activities appropriate under the grant, AU's challenge to the training and technical assistance funding remains just as salient when applied to employee salaries. The constitutional issue here is identical to that raised in the previous section. If a funded entity engages in exclusively religious social welfare services, will any direct support for the organization and its mission survive scrutiny under the Mitchell standard? There would seem to be no legally relevant difference between aid that pays for a fundraising consultant, and aid that pays the salary of the organization's leader while she obtains training from that consultant. In both cases, the organization receives direct public support for its mission.
Conclusion: Monitoring and Remedies
The success of AU's lawsuit will turn on how the court assesses each of the four categories of public expenditures - whether the aid is itself unconstitutional, whether HHS and its intermediary failed in their responsibility to establish adequate protections against such unconstitutional use of public funds, and finally, what remedies a court might award if AU were to prevail. In conclusion, we briefly address the questions of safeguards and remedies.
Adequate Safeguards
Under the Mitchell standard, the government is required to establish and enforce adequate safeguards to prevent the diversion of public resources to religious uses. AU alleges that neither HHS nor IYD established or enforced such safeguards, and that the lack of guidance and monitoring renders the government constitutionally responsible for NMI's religious use of government aid (Complaint, 52). AU's claim is strongest with respect to NMI's website, as we noted above, because the language in the grant that imposes the relevant restriction is easily misunderstood by grantees, who may in good faith make impermissible use of public aid. Moreover, AU alleges that the government failed to monitor the NMI website, even though the government should have known that (1) NMI intended to use public aid to create the website, (2) NMI's program is overtly religious in content, and (3) religious content would be likely to appear on any NMI website.
AU will also have a reasonable claim against HHS and IYD with respect to CCF's rules for disposition of property at the end of the grant term. Neither HHS nor its intermediary, IYD, seems to inform religious grantees in any particularized manner of their obligations, both regulatory and constitutional, with respect to property financed through the government grant. Under the Tilton rule, restrictions on religious use should remain through the "useful life" of the object. HHS and IYD do not provide guidance on this point, nor do they seem to have engaged in any monitoring of grantees to ensure compliance with the Tilton standard.
Courts are less likely to find the guidance defective with respect to the question of capacity-building grants, because the important constitutional issues remain conceptually difficult and unsettled. If a court ultimately restricts participation in CCF capacity-building grants to entities that offer at least some secular activities, it will be hard to hold HHS legally accountable for failing to foresee - and thus monitor grantees in light of - such a decision. HHS' constitutional obligation in such a case would be primarily prospective - to ensure that future grants comply with the restriction on providers with exclusively religious services.
Remedies
In its Complaint, AU asked the court for declaratory and injunctive remedies - that is, an order announcing that the grants to NMI violate the Establishment Clause, and an order commanding HHS and its intermediary grantees to cease direct public funding of NMI. If AU prevails in its factual and legal claims, the court will likely grant that requested relief. AU also asked the court, however, to order NMI and IYD to repay to HHS funds that were used to support the religious activities of NMI. As we have discussed in other contexts [22], orders of repayment (also called "recoupment") are highly unusual in Establishment Clause cases, because they require a court to conclude that the funded organization did not reasonably rely on the government's representation that its grant was lawful when awarded.
Even if the court were to agree with AU that all of the categories of CCF funding for NMI violate the Establishment Clause, the court would almost certainly not order repayment of the funds used to pay for training and technical assistance, because the constitutional status of such expenditures is unclear, and it would have been reasonable for NMI to rely on the lawfulness of the government grant. Similarly, NMI would not likely be ordered to repay the cost of staff salaries, computers, and office equipment traceable to capacity-building activities.
Equipment, the website, and staff time that may have been diverted to conduct the religious activities of NMI, however, might present a closer case, because the constitutional law governing such expenditures is far clearer than that concerning training and technical assistance. This is especially true with respect to the use of property acquired with the CCF grant, for which HHS may have some obligation to seek at least partial reimbursement. Nonetheless, a recoupment order remains highly unusual, and considering NMI's apparent lack of sophistication in the grants process, most courts would not impose such an order in this case.
As we noted above, HHS, IYD, and NMI will now have several weeks in which to respond to the lawsuit, and they are likely to raise both factual and legal challenges to AU's claims. We would not anticipate any substantive rulings on this case until well into 2007.
Notes:
- http://www.acf.hhs.gov/programs/ccf/
- http://www.northwestmarriage.org
- http://www.acf.hhs.gov/healthymarriage/
- http://www.youthdevelopment.org/
- 530 U.S. 793, 837 (2000). We have provided extended analysis of this constitutional rule at a number of other places. See, e.g., 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 a program of indirect aid, government provides all eligible beneficiaries with a choice among a wide range of uses for the public assistance, such as a college scholarship that can be redeemed at any place of higher education. For a description of indirect aid programs - also referred to as beneficiary choice programs - see our analysis of the Supreme Court's decision in Zelman v. Harris (2002), online at: http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=10. See also our analysis of the federal appellate court’s decision in FFRF v. McCallum (7th Cir. 2003), online at: http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=15.
- In an earlier lawsuit involving a CCF intermediary’s subgrants, a federal district court found that the method for awarding such grants did not impermissibly favor religious applicants. FFRF v. Towey (W.D. Wisc. 2005), see our analysis of this decision online at: http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=32.
- The complaint also alleges - and inspection of the website confirms - that NMI uses the website to actively solicit donations for its program. Such solicitation would appear to contravene federal restrictions on the use of public funds for direct fundraising activities. OMB Circular A-122, Part B.17(a). Online at: http://www.whitehouse.gov/omb/circulars/a122/a122_2004.html.
- The 2006 CCF Targeted Capacity-Building Grant application is available online at: http://www.acf.hhs.gov/grants/open/HHS-2006-ACF-OCS-IJ-0036.html. The relevant portion is located in Part I.B of the application.
- See, e.g., FFRF v. McCallum (W.D. Wisc. 2002), and our analysis online at: http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=3. See also our analysis of the settlement in ACLU v. Leavitt (a lawsuit involving the Silver Ring Thing sexual abstinence education program), online at: http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=44.
- These can be found online at: http://www.whitehouse.gov/omb/circulars/a110/a110.html. The relevant OMB provisions mirror those found in the HHS regulations, 45 CFR §§ 74.34 & 74.35.
- 45 CFR § 74.35(a).
- 45 CFR § 74.34(g) ("The amount of compensation shall be computed by applying the percentage of Federal participation in the cost of the original project or program to the current fair market value of the equipment.") If the CCF grant financed 100% of the purchase price of the computers, et.al., then NMI would be required to pay HHS 100% of the current fair market value of the items.
- 403 U.S. 672 (1971). Because Tilton has not been overruled, we assume for purposes of this analysis that it remains binding precedent on lower courts. We discuss the Tilton decision in our analysis of government grants for religious structures, 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
- A court would certainly give the agency significant latitude in determining what constitutes the "useful life" of an item, but the agency must articulate some reasonable basis for making the determination, such as the ordinary depreciation schedule for property.
- http://www.acf.hhs.gov/programs/ccf/about_ccf/index.html (HHS website for CCF).
- On the demise of the "pervasively sectarian" standard, see our analysis of ACLU of Louisiana v. Foster (2002), online at: http://www.religionandsocialpolicy.org/legal/legal_update.cfm?id=5.
- This would also be true for government-financed computers and office equipment - if the grantee does not have secular programming, then direct government assistance in any form would be constitutionally suspect.
- The promise must involve direct rather than indirect aid, because constitutionally sufficient programs of indirect aid do not reimburse the overhead expenses of providers. Providers in such programs may only receive public funds through the choices of specific beneficiaries.
- IYD grant forms for CCF subgrant program, letter of intent, available online at: http://www.youthdevelopment.org/pdf/Intent.pdf.
- In 48-49 of the Complaint, AU alleges that the direct grant pays for one-third of the full-time salary of the two employees, but neither employee works full-time for NMI. Moreover, AU claims, the training in fundraising accounts for only a small fraction of the time that NMI employees are supposed to devote to grant activities.
- The issue has received prominent attention in the wake of the district court’s decision in Americans United v. Prison Fellowship Ministries (2006), in which the court ordered Prison Fellowship Ministries to repay over $1.5 million that the grantee had received from the state of Iowa. That issue is now being appealed. Our analysis of that decision can be found online at: http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=49. See also our analysis of American Jewish Congress v. Bost (2002), which raised the same issue, online at: http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=4.
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