ACLU Comments on Proposed Rule on the Equal Treatment in Department of Labor Programs for Faith-Based and Community Organizations; Protection of Religious Liberty of Department of Labor Social Service Providers and Beneficiaries [RIN 1290-AA21]

BY ELECTRONIC MAIL

Department of Labor
Washington DC 20210

Re: Proposed Rule on the Equal Treatment in Department of Labor Programs for Faith-Based and Community Organizations; Protection of Religious Liberty of Department of Labor Social Service Providers and Beneficiaries [RIN 1290-AA21]

Dear Sir or Madam:

The American Civil Liberties Union respectfully submits these comments urging the Department of Labor (DoL) to revise the proposed rule altering the provisions that apply to religious organizations participating in DoL programs and activities. As written, the proposed rule is inconsistent with constitutional requirements, conflicts with positions that the United States has taken in arguing the importance of eradicating religious discrimination, and does not sufficiently detail the scope of constitutionally prohibited religious activities that must be excluded from federal programs. Unless substantially revised, the proposed rule will likely result in the Department of Labor and organizations participating in its programs engaging in unconstitutional or otherwise illegal conduct.

The Proposed Rule Will Likely Result in Unconstitutional and Illegal Employment Discrimination

The proposed rule abets unconstitutional illegal employment discrimination based on religion as it purports to provide an exemption to the statutory prohibition against employment discrimination. The paragraph providing that a religious organization does not forfeit its exemption under Title VII of the Civil Rights Act of 1964 is nothing short of bizarre. Unlike statutes that authorize an exemption to Title VII for religious organizations participating in welfare reform, community services, and substance abuse programs, Congress has never authorized an exemption to Title VII for government-funded religious discrimination.

In fact, despite active lobbying by the White House itself, Congress rejected legislation offered during the last Congress that would have provided the exemption that DoL now claims is available. As DoL well knows, that legislation failed. And as DoL should also be well aware, the Senate refuses to agree to repealing important civil rights protections in the Workforce Investment Act (WIA) against government-funded religious discrimination-despite intense lobbying by the Administration this Congress.

As a result, there is no exemption to Title VII for government-funded religious discrimination in DoL programs. Any DoL-funded religious organization discriminating based on religion will be subject to the same Title VII liability as any other employer-and nothing in this proposed rule can limit that statutory liability. DoL should delete this unauthorized paragraph.

Moreover, even if Congress had provided an exemption to Title VII, the entire proposition that a religious organization can discriminate with federal dollars is unconstitutional. For example, the charitable choice provisions authorized for three HHS programs improperly allow a religious organization receiving funds to retain its exemption from the provision in Title VII of the Civil Rights Act of 1964 generally prohibiting religious discrimination in employment. For example, the employment practices provision for the TANF welfare reform program provides that “”the participation of a religious organization in, or its receipt of funds from, an applicable program does not affect that organization’s exemption under 42 U.S.C. 2000e-1 regarding employment practices.”” 67 Fed. Reg. at 77363. The referenced section Title VII permits religious organizations to prefer members of their own religion when making employment decisions. Although the Supreme Court upheld the constitutionality of the religious organization exemption in Title VII, Corporation of Presiding Bishop v. Amos, 483 U.S. 327, 336-39 (1987), the Court did not consider whether a religious organization could discriminate based on religion when making employment decisions in programs that the government finances to provide governmental services.

Several courts have considered whether a religious organization can retain its Title VII exemption after receipt of indirect federal funds, e.g., Siegel v. Truett-McConnell College, Inc., 13 F. Supp.2d 1335, 1344 (N.D. Ga. 1994) (clarifying that its decision permitting a religious university to invoke the Title VII exemption is because the government aid is directed to the students rather than the employer), but only one federal court has decided the constitutionality of retaining the Title VII exemption after receipt of direct federal funds, Dodge v. Salvation Army, 1989 WL 53857 (S.D. Miss. 1989). In that unreported decision, the court held that the religious employer’s claim of its Title VII exemption for a position “”substantially, if not exclusively”” funded with government money was unconstitutional because it had “”a primary effect of advancing religion and creating excessive government entanglement.”” Id. The analysis applied by the court in Dodge should apply with equal force to the DoL programs that would provide direct federal funds to religious organizations.

In addition to causing the Establishment Clause violation cited by the court in Dodge, the employment provisions in the proposed rule may also subject the government and any religious employer invoking the proposed rule to liability for violation of constitutional rights under the Free Exercise Clause and the Equal Protection Clause. Although mere receipt of government funds is insufficient to trigger constitutional obligations on private persons, a close nexus between the government and the private person’s activity can result in the courts treating the private person as a state actor. Rendell-Baker v. Kohn, 457 U.S. 830 (1982).

It is beyond question that the government itself cannot prefer members of a particular religion to work in a DoL-funded program. The Equal Protection Clause subjects governments engaging in intentional discrimination on the basis of religion to strict scrutiny. E.g., United States v. Batchelder, 442 U.S. 114, 125 n.9 (1979); City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976). No government could itself engage in the religious discrimination in employment accommodated and encouraged by the proposed rule’s employment provision. Thus, the government would be in violation of the Free Exercise Clause and the Equal Protection Clause for knowingly funding religious discrimination.

Of course, a private organization is not subject to the requirements of the Free Exercise Clause and the Equal Protection Clause unless the organization is considered a state actor for a specific purpose. West v. Atkins, 487 U.S. 42, 52 (1988). The Supreme Court recently explained when there is a sufficient nexus between the government and the private person to find that the private person is a state actor for purposes of compliance with constitutional requirements on certain decisions made by participants in the government program:

[S]tate action may be found if, though only if, there is such a ‘close nexus between the State and the challenged action’ that seemingly private behavior ‘may be fairly treated as that of the State itself.’ . . . We have, for example, held that a challenged activity may be state action when it results from the State’s exercise of ‘coercive power,’ when the state provides ‘significant encouragement, either overt or covert,’ or when a private actor operates as a ‘willful participant in joint activity with the State or its agents’ . . . . .

Brentwood Academy v. Tennessee Secondary School Athletic Association, 121 S. Ct. 924, (2001) (citations omitted).

The extraordinary role that the government has taken in accommodating, fostering, and encouraging religious organizations to discriminate based on religion when hiring for DoL programs creates the nexus for constitutional duties to be imposed on the provider, in addition to the requirements already placed on government itself. There is no doubt that DoL understands what it is doing in stating that DoL-funded religious organizations can engage in religious discrimination in employment. The clear intent of the proposed rule is to encourage certain providers receiving federal funds to discriminate based on religion.

The proposed rule’s employment provision is part of a growing pattern of congressional, presidential, and regulatory actions taken specifically for the purpose of accommodating, fostering, and encouraging federally-funded private organizations to discriminate in ways that would unquestionably be unconstitutional if engaged in by the federal government itself. The proposed rule followed Executive Order 13279, which amended an earlier executive order, which had provided more than 60 years of protection against discrimination based on religion by federal contractors. The Bush order provides an exemption for religious organizations contracting with the government to discriminate in employment based on religion. In addition, the federal government is simultaneously proposing to allow religious organizations to discriminate based on religion in employment for federal programs involving substance abuse counseling, welfare reform, housing, and veterans benefits.

The Proposed Rule Does Not Provide Grantees With Clear Notice of Statutory Prohibitions on Religious Discrimination in DoL Programs

The proposed rule does not provide grantees with clear notice of the binding force of existing “”statutory provisions requiring that recipients refrain from discriminating on the basis of religion.”” Specific authorizing statutes for certain DoL programs such as the Workforce Investment Act contain specific statutory prohibitions on discrimination based on religion in those programs. Because the statutory nondiscrimination provisions do not exclude employment decisions, as Title VI largely does, employment decisions are within the coverage of the nondiscrimination provisions. Thus, even if a religious organization receiving or administering DoL funds can somehow escape Title VII liability for imposing a religious test on employees in the DoL-funded program, the program-specific statutory nondiscrimination provision completely bars DoL from providing any federal funds to a provider that will discriminate based on religion in hiring persons to provide services with those DoL funds.

The proposed rule cannot simply suggest that grantees consult with the “”appropriate

DoL program official or with the Civil Rights Center”” to determine the scope of any applicable requirements, but instead must provide specific directions on which programs statutorily bar religious discrimination. In the absence of such clarity, DoL employees and grantees likely will misunderstand the statutory prohibitions.

The Proposed Rule Could Lead to Confusion on Whether Federal Funds Can Be Used for Capital Improvements to Religious Buildings

As currently drafted, the proposed rule incorporates by reference an earlier proposed rule, which could be interpreted to unconstitutionally allow the use of public funds for the improvement of structures used for religious activities. The earlier proposed rule would allow WIA funds to be used “”to engage in employment or training activities that involve the maintenance of a facility that is used, or will be used, for religious instruction or religious worship [t]o the extent that the facility is not primarily or inherently devoted to religious instruction or religious worship, and [p]rovided that the organization operating the facility is part of a program or activity providing services to participants.”” This aspect of the proposed rule could result in religious organizations unconstitutionally retaining the benefits of federally funded capital improvements.

More than 31 years ago, in an opinion written by Chief Justice Warren Burger, the Supreme Court established a bright-line test on whether and how the government may finance “”brick-and-mortar”” improvements to real property owned by religious institutions. In that seminal decision, the Supreme Court held that public funds may be used by religious institutions for capital improvements only when the structures are wholly and permanently dedicated to secular use. Tilton v. Richardson, 403 U.S. 672 (1971). The Court held that a public subsidy used to construct buildings at sectarian academic institutions was constitutional only if the buildings were subject to a permanent prohibition on religious use. Id. at 683. The Court invalidated a twenty-year limitation on this prohibition, holding that the public funds would otherwise have the effect, at the end of the twenty-year period, of advancing religion.

The problem in the proposed rule is that a participant in a WIA program could interpret “”maintenance of a facility”” to include improvements to the real property that is used, at least in part, for religious activities. However, any improvement to real property that is not permanently dedicated to wholly secular purposes is unconstitutional under Tilton. The Department should revise the rule to specify that “”maintenance”” does not include any activity that would result in any improvement to any building or other real property used, in any part or at any time, for religious activity.

The Proposed Rule Raises Serious Establishment Clause Concerns

Although the proposed rule seemingly intends to limit the role of faith-based groups to conduct consistent with the Establishment Clause, it falls far short of that goal. The proposed rule is inconsistent with at least 104 years of Supreme Court interpretation of the constitutional prohibition against government-funded religious discrimination as highlighted in Bowen v. Kendrick, 487 U.S. 589 (1988). The Court made clear that, although the Constitution does not bar religious organizations from participating in federal programs, it requires (1) that no one

participating in a federal program can “”discriminate on the basis of religion”” in the federal program, and (2) that all federal programs must be carried out “”in a lawful, secular manner.”” Id. at 609, 612.

The Supreme Court has never allowed government-funded religious discrimination in employment in federally-funded programs. Rather, Chief Justice Rehnquist in Bowen cited the Supreme Court’s opinion in an 1899 case, Bradfield v. Roberts, 175 U.S. 291 (1899), as an example of the type of religious organization that can participate in a federal program. In Bowen, Rehnquist (for the majority of the Court) explained that one of the most important reasons that the Court in Bradfield had found constitutional government funding of a new building on the grounds of a Catholic-run hospital was because the hospital did not “”discriminate on the basis of religion.”” Bowen at 609.

The Supreme Court’s citation of the 1899 case in its Bowen opinion was consistent with the Court’s position that the federal government has a compelling interest in eradicating discrimination in federally-funded programs-even if a grantee is claiming a religious right to discriminate. In Bob Jones Univ. v. United States, 461 U.S. 574 (1983), the Supreme Court held that federal government could deny a religiously-run university tax benefits because the university imposed a racially discriminatory anti-miscegenation policy. Id. at 605. The Court decided that the federal government’s compelling interest in eradicating racial discrimination in education superceded any burden on the university’s religious exercise of enforcing a religiously-motivated ban on students interracial dating. Id. at 604.

There is no meaningful difference between the government prohibiting tax benefits to organizations that discriminate based on race and the prohibition against organizations participating in DoL programs discriminating on the basis of religion when hiring for government-funded positions. In fact, the United States itself-during the current Administration-squarely rejected the proposition that intentional religious discrimination gets less protection under the Equal Protection Clause than race. In its October 26, 2001 brief defending the religion prong of Title VII from an Eleventh Amendment attack, the United States stated that “”[c]ontrary to Defendant’s contention that the Supreme Court has ‘distinguished claims involving differential treatment on the basis of race and speech from those involving religion,’ there can be no doubt that the Equal Protection Clause subjects State governments engaging in intentional discrimination on the basis of religion to strict scrutiny.”” Brief of Intervenor United States in Endres v. Indiana State Police (N.D. Ind. Oct. 26, 2001) (brief is available on www.usdoj.gov).

The Proposed Rule Cannot Authorize a Voucher Program Without Adequate Constitutional Safeguards

The proposed rule establishes a mechanism for the provision of vouchers without meeting the requirements recently laid out by the Supreme Court. While the Supreme Court decision Zelman v. Simmons Harris, 536 U.S. 639, 122 S.Ct. 2460 (2002) has allowed the use of vouchers at religious schools, it also established a strict set of requirements that must be met in order to make a voucher program constitutional. According to the Court, a voucher program must be completely neutral with respect to religion, use of vouchers at a religious institution must be a wholly genuine and independent private choice, the vouchers must pass directly through the hands of the beneficiaries, the voucher program must not provide incentives to choose a religious institution over a non-religious one, the program must provide genuine, legitimate secular options, and there must be a secular purpose for the program. Id.

The proposed rule must be constructed to comply with the strict framework laid out by the court in Zelman. The most challenging issue the proposed rule must address is the existence of “”real choice.”” The proposed rule must necessarily limit voucher programs to those communities in which wide-ranging secular options are available. Currently, it is unclear that this standard can be met in many places in this country. Unlike the education context, in the social service context, there is no clearly comparable and available public, charter, magnet, or private social service structure in place to ensure real choice. Moreover, the proposed rule goes so far as to contemplate a system where the alternative options are not even secular.

The Proposed Rule Must Establish a Rule that Beneficiaries Have the Right to Secular Service Provider Alternatives and Must Be Given Proper Notice of This Right

The proposed rule does not address the rights of beneficiaries to object to a religious provider assigned to them or to receive an alternative secular provider. The proposed rule must require providers to ensure that beneficiaries’ rights are respected. The proposed rule gives states virtually unbridled discretion in determining how beneficiaries receive notice of their right to object to a religious provider and their right to an alternative provider. In addition to clearly establishing this right, the rule must define the time within which a referral to an alternative provider must be made, how accessible the program must be, and whether the services provided will be comparable.

The proposed rule must include a provision to protect beneficiaries who object to the religious character of a provider and it must provide standards to guide the states and ensure remedies for beneficiaries. The propose rule must, for example, require states and/or providers to notify beneficiaries of their rights and options. By the same token, the rule should require that referrals be made in a set number of days, not less than five for example, and provide similar guidance for all undefined terms. The rule must also provide a grievance process for beneficiaries who are not promptly provided with an adequate alternative. The rule must ensure protections against, for example, the government establishing a program whereby an individual is assigned and forced to remain for any period with a religious provider, contrary to his or her beliefs.

In this country, a person should never be forced to make a choice between government-funded programs, all of which are religious. The rule needs to be clarified to state that if a person objects to being assigned to a religious provider the government must provide a secular alternative. In light of the lack of clear prohibitions on religious content in the services, the need for this clarification is certainly amplified.

The Proposed Rule Does Not Sufficiently Detail the Scope of Religious Content That Must Constitutionally Be Omitted From Government-Funded Programs

Although the proposed rule specifies that no DoL funds may be used for “”inherently religious activities,”” it fails to clarify the scope of religious activity that must, by mandate of the Constitution, be omitted from publicly funded programs. The proposed rule defines “”inherently religious activities”” only as conduct “”such as worship, religious instruction, or proselytization.”” Such guidance is insufficient to ensure that grantees do not run afoul of the Constitution. The proposed rule must be clear:[1] Religious organizations using public funds to provide social services must provide those services in an entirely secular manner. The list of examples provided by the proposed rule does too little to prevent the unconstitutional inclusion of religious messages in government-financed programs.

For example, although none of the following scenarios falls clearly within the “”inherently religious activities”” barred by the proposed rule, each violates the Establishment Clause and therefore must be prohibited:

• A faith-based organization receives federal funds to run a vocational training program. The counselors running the program use Bible stories to help emphasize the importance of a good work ethic.
• A faith-based organization receives federal funds to run a welfare-to-work program. As one presentation for program participants, the organization puts on a skit in which Jesus appears as a character forgiving past sins and encouraging a fresh start.
• A faith-based organization receives federal funds to run a drug treatment program. The program’s counselors encourage participants to accept and trust in a higher power as one of many steps necessary for recovery.

These scenarios are based on actual conduct, by recipients of public funds, that have been held unconstitutional. For example, in a lawsuit challenging the state of Louisiana’s distribution of federal dollars to faith-based organizations in the context of abstinence education, the ACLU established (among many other constitutional violations) that one faith-based organization had used the story of Joseph and Mary and the virgin birth to teach teenagers the importance of abstinence; that others relied heavily on scriptural precepts to promote abstinence; and that others used theatrical skits with Jesus as a character to teach the importance of abstinence. The United States District Court for the Eastern District of Louisiana held that the use of public dollars for such conduct violates the Establishment Clause. ACLU v. Foster, 2002 WL 1733651 (E.D.La.)

The risk of the occurrence of such conduct is very real, and the proposed rule must be changed to make clear that it is impermissible. To ensure that the use of DoL dollars does not violate the Establishment Clause, the proposed rule must be changed to make clear that the government may not “”disburs[e] [public] funds to organizations or individuals that convey religious messages or otherwise advance religion in any way in the course of any event supported in whole or in part by [public] funds, or in any document or other resource produced?in whole or in part using [public] funds.”” ACLU v. Foster, 2002 WL 1733651 (E.D.La.)

The Proposed Rule Authorizes Conduct That Will Impermissibly Convey the Message That the Government Endorses Religious Content

For instance, the proposed rule allows organizations to use their facilities for government-financed programs “”without removing religious art, icons, scriptures, or other religious symbols,”” and permits personnel running the taxpayer-funded to invite participants to attend subsequent religious worship sessions. Yet allowing such intermingling of government financing and religious content impermissibly fosters the impression of government support for a religious mission. See, e.g., County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 592-93 (1989) (holding that government actions with the purpose or effect of endorsing religion violate the Establishment Clause); see also Mitchell v. Helms, 530 U.S. 793, 843 (2000) (O’Connor, J., concurring) (government-financed programs violate the Establishment Clause if “”the reasonable observer would naturally perceive the aid program as government support for the advancement of religion””) (emphasis in original). The proposed rule must be changed to remedy these constitutional deficiencies.

The proposed rule allows the direct granting of public dollars to organizations, such as churches and religious seminaries, in which religious missions overpower secular functions. Yet binding Supreme Court authority forbids the direct grant of public dollars to such organizations. In Bowen v. Kendrick, 487 U.S. 589, 610 (1988), the Supreme Court held that the government may not issue direct money grants to institutions in which “”religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission.”” See also Mitchell 530 U.S. at 819-20 (plurality opinion) (recognizing “”special Establishment Clause dangers”” when public dollars flow to such sectarian institutions); id. at 855 (O’Connor, J., concurring) (noting “”our continued recognition of the special dangers associated with direct money grants to [such sectarian] institutions””). The Court explained that the ban on direct financial aid to such institutions is necessary because “”there is a risk that direct government funding, even if it is designated for specific secular purposes, may nonetheless advance the pervasively sectarian institution’s ‘religious mission.'”” Id. at 610; see also id. at 612 (“”[I]n the context of aid to [such] institutions . . . there [i]s a ‘substantial’ risk that aid to these religious institutions would, knowingly or unknowingly, result in religious indoctrination.””). To meet constitutional mandates, the proposed rule must be changed to prohibit direct financial grants to such sectarian institutions.

DoL Does Not Have the Constitutional or Statutory Authority to Require States to Waive, for Their Own Funds, State Laws That Are More Protective of Individual Rights Than the Federal Rules

The proposed rule is unclear on whether it requires states to apply the proposed rule to their own funds. Statements in the proposed rule declaring that state and local governments administering DoL support “”must not discriminate for or against an organization on the basi