After two years of trying and failing to win congressional approval of its plan to increase the number of faith-based organizations receiving government grants for social services programs, the Bush Administration took matters into its own hands and implemented several of the most controversial provisions in Executive Order: Equal Protection of the Laws for Faith-based and Community Organizations. Another Executive Order creates faith-based centers in the Department of Agriculture and Agency for International Development, similar to those established (also by executive order) in five other cabinet agencies in January 2001. It also requires religious organizations to be eligible for federal aid when they are damaged in a disaster. Two agencies announced new guidance for grantees on the same day. Bush announced the changes at a December 12 White House sponsored conference on federal assistance to faith-based and community groups held in Philadelphia. The orders, which allow federal agencies to award grants or contracts to religious organizations that discriminate in hiring on the basis of religion, and to provide services in facilities that display religious icons and art, also specifies that a religious organization can maintain its structure and pursue its religious mission, “provided that it does not use direct Federal financial assistance to support any inherently religious activities, such as worship, religious instruction or proselytization.” Agencies are required to review their existing policies and regulations for consistency with the orders, including data collection on participation by faith and community based organizations, and report to the White House within 90 days on actions they propose to take. Protection for Program Beneficiaries? Also on December 12, the Department of Health and Human Services announced proposed regulations for the program and programs funded under the Community Services Block Grant (CSBG) which provide more detailed guidance on implementing the Executive Order. Although federally funded social services must be offered at a separate time and location from religious instruction or worship activities, invitations to participate in religious activities may be extended in the course of providing services, if the religious organization “is careful to reassure program beneficiaries that they will receive help even if the do not participate in these activities, and that their decision will have no bearing on the services they receive,” and participation in religious activities is “voluntary.” The proposed regulations only apply in cases of direct federal assistance, where the sponsoring organization has received a grant or contract. However, in cases of indirect assistance, where program beneficiaries redeem vouchers, certificates, coupon or a “similar funding mechanism” provided under a program, the intent is to give individuals a choice of providers. In these cases, there is no restriction on mixing social services with inherently religious activities. Comments are due February 18, 2003, and HHS has provided an electronic comment mechanism on its website. The Department of Education also took immediate action to implement the President’s order, releasing a revised draft of non-regulatory guidelines on supplemental services under Title 1 of the No Child Left Behind Act of 2001, which applies to extra help for students in schools designated as needing improvement. The guidance states that providers that receive indirect federal funds are not covered by federal civil rights laws, unless they also receive other funds that impose such a requirement. The press release accompanyingthe release of the Executive Orders stated that further regulatory changes will be made in programs operated by HHS in the Substance Abuse and Mental Health Services Administration and Housing and Urban Development’s Community Development Block Grant, HOME, and other programs. Hiring Discrimination These orders come at a time of increasing executive implementation of controversial policies, and implement the most controversial part of the administration's faith-based plan. While the House passed a bill authorizing almost all of the administration's plan, the Senate crafted a far less controversial bill focusing on tax breaks for charitable giving, but was silent on the discrimination issue. Since the Department of Education interpreted similar silence in the Leave No Child Behind bill as allowing religious discrimination, concern over this issue kept the bill from passing. Some religious groups, however, maintain that being able to discriminate on religious grounds in their hiring process is essential, even in publicly funded programs. Most notably, last summer there were reports that the Salvation Army was spending upwards of $100,000 a month to lobby for provisions allowing religious organizations to discriminate in hiring for federally-funded programs. Non-religious organizations, however, do not have the "luxury" of practicing discrimination in hiring. The administration has mischaracterized the hiring discrimination issue by stating it is merely applying an existing exemption. However, this exemption has only applied to religious groups' hiring of staff for religious based activities. For more background see Americans United for Separation of Church and State’s legal explanation on Title VII exemption. Concerns About Administration’s Policy of Regulatory Implementation While the main focus of these executive orders seems to be allowing religious grantees to discriminate in hiring, and opening the door to proseltyzation in voucher-based programs, there are general concerns with the regulatory implementation of the administration's faith-based plan. There is no universal definition of what exactly constituted a "faith-based organization" and there are concerns about grantee accountability due to the reliance on sub-grants by direct federal grantees to smaller faith-based organizations. For more information on these concerns, see the November 6 OMB Watch Executive Report. Despite the administration's emphasis on getting grant funds to faith-based and community groups, this is merely a reshuffling of the deck. A true emphasis on smaller community and faith-based groups (with strong church/state safeguards) could be a tremendous help to people in need. There is, however, no new federal money for social services programs, and in fact, many programs are either facing cutbacks, or are being funded at the same level yearly, with no adjustments for inflation. While many supporters claim that faith-based organizations can do more with less, there is little to no evidence to back up this claim. Perhaps, in a time of budget cuts and declining federal revenues, ordering the creation of a faith-based office at the Department of Agriculture is a desperate attempt to find a group that can feed thousands with only a few loaves and fishes. While the administration has publicly held that their faith-based initiative simply "levels the playing field" for religious organizations, on December 12 the Associated Press quoted "administration officials" as saying the orders are "aimed at giving those groups a leg up in the competition for federal money." By directing federal resources to faith-based groups, the administration is discriminating against secular groups and setting the stage for unilateral changes to the focus of federal programs, for example by allowing funding of faith-based abstinence-only educators for an AIDS prevention program.