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Government Shekels without Government Shackles?
The Administrative Challenges of Charitable Choice
By Sheila Suess Kennedy and Wolfgang Bielefeld
As President
Bush plans to expand “Charitable Choice,” civil libertarians worry
that the legislation is part of a new assault on separation of church and
state. Religious Right activists demand assurances that funds will not
flow to groups like the Nation of Islam or Scientologists. African
American pastors in urban areas—arguably the main targets of the
initiative—are concerned that “government shekels” will be
accompanied by “government shackles,” that the costs and regulatory
burdens accompanying collaborations with government will divert resources
from client services and mute their prophetic voice.
Caught in the middle are public managers, who must make the legislation
work in the face of significant administrative challenges. Those
challenges occur in three areas: contracting procedures, contract administration, and
evaluation. In each of these categories, political realities and
constitutional constraints will significantly complicate the manager’s
job.
Article appears in Public Administration Review, January/February
2002, 62, 1.
To view article, please go to http://www.blackwellpublishers.co.uk/journals/par.
Social Responsibility, Accountability and U.S.
Welfare Reform:
The Context of America's Faith-Based Initiatives
By Sheila Suess Kennedy
The history of welfare in the U.S. is a history
of ambivalence about the nature of our social obligation to the poor,
the identification of appropriate vehicles through which we should discharge
those responsibilities, and the degree of accountability we should demand
from nongovernmental social service providers. Accountability is problematic
when there is not clarity of expectations or agreed-upon goals, and that
lack of clarity has long been a characteristic of social welfare in the
United States.
Not by Bureaucracy Alone: Charitable Choice and
the Reinvention of Church as State.
By Laura S. Jensen
Paper presented at the Annual Meeting of the New
England Political Science Association, Portsmouth, NH.
Redemption or Rehabilitation? Charitable Choice
and Criminal Justice
By Sheila Suess Kennedy
In 1996, Congress passed the Personal Responsibility
and Work Opportunity Reconciliation Act, reforming welfare "as we
know it." Among the provisions of that bill was a "charitable
choice" requirement that states contract with faith-based social
service providers on the same basis as they contract with other nonprofits.
"Pervasively sectarian" organizations were not to be discriminated
against; such providers were permitted to maintain hiring policies based
upon their religious dictates and could not be required to divest the
premises where services were delivered of religious iconography.
In many contexts, such partnerships long preceded the legislation, and present relatively few constitutional problems. In the criminal justice arena, however, Charitable Choice raises thorny issues. Drug rehabilitation programs, prison ministries and the like are more than "faith based"-they are faith-infused. This paper considers the difficulties posed by the legislation to public administrators charged with responsibilities in these sensitive areas.
Privatization and Prayer: The Case of Charitable
Choice
By Sheila Suess Kennedy
The
“Charitable Choice” provisions of 1996 welfare reform legislation
inaugurated a policy debate that continues with President George W.
Bush’s “faith-based initiative.” Proponents of greater religious
involvement in social service provision argue that “faith-based”
organizations have untapped resources, that they have encountered
unnecessary barriers to participation, and that they are more effective
than are government or secular contractors. Opponents note the absence of
evidence of greater efficacy, the historic involvement of religious
providers like Catholic Charities, Lutheran Social Services and the
Salvation Army, and the absence of additional funding, and charge that the
new rules are merely an effort to erode the Constitutional separation of
church and state. Public administrators are left with a number of thorny
questions: how to identify and recruit the “faith-based organizations”
targeted by these initiatives, how to evaluate and augment their capacity
to deliver services, and how to encourage their increased participation
while adhering to constitutional principles.
When Is Private Public?
State Action in the Era Of Privatization and Public-Private Partnerships
By Sheila Suess Kennedy
The Bill of Rights applies only to the government;
that is, there must be state action in order to find a constitutional
infringement. By "reinventing" government, we have created mutants
and hybrids, neither public nor private, and in the process have seriously
compromised both the state action doctrine and basic constitutional protections.
Constitutional jurisprudence has not satisfactorily confronted this reality.
The Court must fashion a coherent jurisprudence that will safeguard the
distinction between public and private and thus protect constitutional
liberties without engulfing truly private enterprises.
Previously published in George Mason Civil Rights Law Review, March 2001.
Implementing Charitable Choice
By Edward L. Queen II
This paper outlines the provisions of "Charitable
Choice" legislation and discusses the beginning of the study, including
areas of both qualitative and quantitative analyses. The study is focused
on five major elements that also are addressed in the paper. The capacities
of faith-based service organizations (FBSOs) successfully to bid for and
manage these monies, the effectiveness of these organizations compared
to secular agencies, the manner in which states choose to work with FBSOs,
the accountability levels of both the FBSOs and state agencies in dealing
with them, and the legal questions emerge in the course of implementation.
Paper presented at 29th annual ARNOVA conference, New Orleans, November, 2000.
Reinventing Government Accountability: Public
Functions, Privatization, and the Meaning of "State Action"
By Robert S. Gilmour and Laura S. Jensen
Privatization is, for many, the contemporary answer
to inefficient government administration. But when public functions are
relegated to the nongovernmental sector, more is altered than mere organizational
arrangements to promote governmental economy. While such transfers may
offer efficiencies, they may simultaneously enable government and its
officials to escape legal responsibility for actions that are permitted,
encouraged, controlled, or paid for by the state. The rights of citizens
at the hands of official authority are protected by the Constitution and
an array of public laws; at the hands of private parties, very different
and less protective rules apply. This article makes the case that contemporary
judicial treatment of the transfer of government authority to "private"
third parties, though inconsistent, is implicated in a wholesale loss
of government accountability. The authors argue that the existence of
an effective public accountability scheme requires a coherent understanding
of "state action"-both before and after privatization decisions.
Toward that end they outline a four-step inquiry for the recognition of
state responsibility so that government accountability is assured and
citizen rights are preserved.
Previously published in Public Administration
Review, May/June 1998.
