ACLU Comments on Proposed Rule Revising Provisions Governing the Use of Federal Financial Assistance for Religious Activities Under the Nondiscrimination and Equal Opportunity Provisions of the Workforce Investment Act of 1998 (RIN 1291-AA29)

Annabelle T. Lockhart, Director
Civil Rights Center
Department of Labor

Re: Comments on Proposed Rule Governing the Use of Federal Financial Assistance for Religious Activities Under the Nondiscrimination and Equal Opportunity Provisions of the Workforce Investment Act of 1998; 29 CFR Part 37 (RIN 1291-AA29)

Dear Ms. Lockhart:

The American Civil Liberties Union respectfully submits these comments urging revision of the proposed rule applicable to Workforce Investment Act programs administered by the Department of Labor. As written, the proposed rule is inconsistent with constitutional requirements and does not sufficiently detail the constitutional requirements imposed on both using federal funds in religious buildings and operating a voucher program that includes religious organizations as participants. Unless substantially revised, the proposed rule will likely result in grant recipients engaging in unconstitutional or otherwise illegal conduct.

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 could be interpreted to unconstitutionally allow the use of public funds for the improvement of structures used for religious activities. The 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 Cannot Authorize a Voucher Program for Religious Training Without Adequate Constitutional Safeguards

The proposed rule establishes a mechanism for the provision of vouchers for religious training 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 revised 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, if any, 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, including secular providers.

In addition, the proposed rule must clearly state 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 protected. 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.

A person cannot 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 heightened.

Please do not hesitate to call us if you need any additional information regarding this matter.

Respectfully submitted,

Laura W. Murphy
Executive Director

Christopher E. Anders
Legislative Counsel

Terri A. Schroeder
Legislative Analyst