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How Faith-based Initiatives And Vouchers Can Increase Churches' Accountability

Thursday, Feb. 28, 2002

The issue of public funding for religious institutions continues to reside at the forefront of our national agenda. The Bush Administration is still pushing hard for the public funding of faith-based social services. And last week, the Supreme Court heard oral argument in a case involving government-provided vouchers for use at private schools, with the mix of schools receiving the vouchers mostly religious schools.

Moreover, the Justices' questions and remarks during the argument suggested that the Court may well hold that well-crafted voucher systems need not violate the Establishment Clause. (However, the Cleveland system at issue, the particulars of which could trouble some of the Justices, may not entirely fit the bill.)

Of course, many criticisms of the move towards government funding of religious institutions' services and schools have been raised and have merit. However, one strong benefit of this trend has been little discussed. That benefit is the potential for increased accountability of religious institutions to children's welfare.

Tax proceeds--the people's money--have strings attached. Politicians cannot afford to do really stupid things with the people's money, at least when the press is watching. (They, of course, do all sorts of stupid things when no one is watching.) And when it comes to children and churches, the press could not be more interested lately.

As a result, the more government funding goes to church day care programs, religious schools, and teen-age addiction or correction centers, the more it ought to be possible for government to protect children in a church setting just as it would protect them in a private daycare facility or a public school. Churches should not be permitted to accept government funds without also accepting at least some government oversight - and when it comes to children, that oversight is a necessity.

The Conflict Between Church Autonomy and State Funding of Services and Schools

Churches have long urged courts to adopt the "church autonomy doctrine," a rule that requires the government, including the courts, to stay out of church business. They have argued that the doctrine has its roots in both the Free Exercise and Establishment Clauses, for it would both interfere with the free exercise of religion and effectively establish a state church if government were to tell churches what to do within their organizations.

However, in supporting voucher programs and faith-based initiatives, churches have invited the government in - effectively conceding full autonomy. While aspects surely remain immune from government regulation--such as belief, creed, and church governance--when churches offer public services using public funds they must account to the public and serve the greater good, and that includes the welfare of the children.

Particularly when children are involved, oversight is crucial. If the government is going to follow what appears to be an irresistible temptation to fund religious mission and education, and if churches are going to acquiesce, then the people have the right to demand that every institution that takes such money and involves children operate in the "best interests of the child." Every institution touching children's lives and taking government money must subject itself to frequent government visits and monitoring to make sure children are being properly cared for, and never abused.

Repeated Scandals Show the Need for Accountability

It is hard to deny the importance of such oversight nowadays, when we have seen scandal after scandal involving children and religious institutions. All of these cases have given rise to front-page headlines - and many have raised questions of why abuse was not detected and ended earlier.

Consider the wave of Catholic Archdioceses reporting child abuse by priests stretching back decades. Then recall the revelation of child abuse in faith-based organizations providing childcare in Texas and Indianapolis. (In Indianapolis, young children were reported by a local television station to have been sent to a "prayer closet" - in other words, put in solitary confinement - for days at a time, and spanked naked with wooden and metal rods.)

Consider, too, the recent hefty settlements by churches such as the Church of Latter-Day Saints in cases in which clergy-caused abuse was alleged. And think of the faith-healing couple that refuses to account for the whereabouts of their infant. Finally, remember the recent case of the New York cantor who allegedly continued a family tradition of male-on-male incest.

With all these examples of abuse, can anyone still maintain that no government oversight is necessary? Even President Bush's own Texas deregulation of faith-based organizations opened the door to a Texas faith-based juvenile home abusing its teen-age participants by tying them to trees for lengthy periods of time.

Incorporating the "Best Interests of the Child" Standard Into Related Legislation

As I argued in an earlier column, particularly in light of these scandals, churches' bids for complete autonomy, and even for liability waivers, should be denied, and they should be held liable for civil damages, and face criminal penalties, when they were aware of child abuse and did not address it. The Massachusetts' House vote this week to require clergy to report child abuse, which was already required of therapists, teachers, and social workers, is a step in the right direction.

The fact that the churches are accepting public money only adds additional government leverage. For instance, public funds should be automatically cut off as soon as credible complaints are brought. And accessible, fast-moving administrative procedures run by the government, not the church, should be made available whenever it is alleged that children are being harmed.

More generally, legislation creating voucher or faith-based initiatives programs can require oversight directed towards ensuring that the churches are acting only in the "best interests of the child" in their school and day care programs. (I'd like to meet the politician who is willing to hold a press conference to announce that he or she will not limit funding for faith-based initiatives only to those organizations that operate "in the best interests of the child.")

Fighting For Autonomy While Seeking Funding At the Same Time

The churches, of course, have been fighting to avoid government oversight even when they receive money, but they cannot succeed for long.

Granted, the churches' lobbyists seem to have already gotten to the Bush Administration - as evidenced by a Health and Human Services report to the White House Office of Faith-based Initiatives. The report claims that requiring the licensing of faith-based social services will be an obstacle to participation - suggesting the churches either do not wish to satisfy licensing requirements or, more troubling still, would not be able to do so. The report accordingly recommends that the Secretary of HHS "appoint a Task Force to identify one or more alternative systems of credentialing/licensing for faith-based substance abuse counselors."

The White House should not buy this argument, nor should it create special, alternative licensing systems for religious institutions. If the money is to flow equally to religious and nonreligious providers, so should the burdens that come with it - and so should the accountability.

Religious providers should be held to the same standards nonreligious providers must meet. Moreover, before proceeding with, or implementing, the faith-based initiatives, Congress should do its homework to examine the state and local regulatory framework for religious providers, to ensure that there is adequate accountability and protection for the initiatives' beneficiaries at that level. If there is not, the federal government needs to provide it. The historical church autonomy movement may, in some cases, have resulted in a vacuum of authority on the state and local level when it comes to overseeing churches to prevent abuse.

Without Oversight, Government Will Be Complicit In Future Abuse Scandals

The Administration should beware of taking HHS's advice that licensing requirements should be loosened for religious providers - and the President should recall his Texas experience, and learn from it.

After all, if lack of oversight results in reports that federal government-supported faith-based service providers are abusing children, you'll need a stopwatch to time the minutes between the wire reports and the ensuing Congressional hearings. Imposing some legislative checks like those I have suggested can ensure that the Administration averts a scandal, rather than enduring one.

Politicians such as the President and Senator Joseph Lieberman, who strongly affirm their support of religion and seek to further it, may not have fully thought through the ramifications of the remarkable movement now afoot to steer government money into church mission and education - particularly the possible effects on children. If they seek to avoid the blame for government enrichment of child abuse or neglect, they must insist that every tax dollar spent is spent in the best interests of the children.

Politicians now can use the "power of the purse" to help avoid and remedy the abuse of children, and they should use that power. Otherwise, especially in light of recent revelations, the government will be complicit in the harm that will be done.

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Cardozo Law School. Copyright c 2002 Marci A. Hamilton.

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