THE SUPREME Court's recent decision upholding school vouchers for private and religious education will resonate far beyond the education battleground. The decision also lifts the constitutional cloud that loomed over "charitable choice" programs - government funding for faith-based social services.
As advocates for these programs gear up for expansion, little discussion is taking place as to whether or not these programs work. Yet, plenty of evidence indicates that states and localities are doing far too little to ensure that taxpayer dollars obtain results.
Charitable choice entered the lexicon with the enactment of the welfare reform package in 1996. Before then, local governments regularly contracted with religiously affiliated groups such as the Salvation Army and Catholic Charities to provide discrete social services to welfare populations.
Under charitable choice, governments can fund churches, synagogues, mosques and other religious groups directly by contracting with them or giving welfare recipients vouchers to redeem at participating churches.
The school voucher decision makes it likely that the use of social service vouchers will expand. Relying on the school voucher case, a U.S. District Court in Wisconsin upheld a faith-based drug and alcohol rehabilitation program for criminal offenders.
Churches accepting government funds need not tone down their religious nature. They can, for example, keep religious symbolism on the walls and discriminate on the basis of religion in hiring. They can even use their own funds to proselytize people who come in the door for government-funded services.
Under charitable choice, churches and other religious groups provide welfare-related services such as substance abuse treatment, child care, homeless aid, mental health counseling and the like.
President Bush has proposed expanding charitable choice into all federally funded social service programs. His legislative proposals, which foundered this year over constitutional objections, will likely have new momentum when Congress reconvenes.
In addition, Bush has ordered executive agencies to seek ways to expand funding of faith-based providers by eliminating regulatory barriers. In response, the Department of Labor and the Department of Health and Human Services announced recently that they will spend $50 million to encourage and fund charitable-choice programs under their auspices.
Yet there is no reliable empirical evidence that religiously motivated social service programs work. The anecdotal evidence points in both directions.
For every claimed success story, such as the 85 percent drug rehabilitation success rate of a Christian treatment program called Teen Challenge, comes a horror story, such as alleged child abuse at Roloff Homes, a church-run program for troubled youths in Texas. At the home, "tough love" included tying teen-agers together and forcing them to spend nights digging in sewage-filled pits.
In response, the Texas legislature let expire a law, supported by then-Gov. George W. Bush, that allowed religious child care providers to escape licensing by submitting to being monitored by a group of Christian preachers.
So much for self-regulation.
Little is known about these religious programs, but states and cities are willing to push people toward charitable-choice providers while failing to demand accountability from these inexperienced providers. Part of the problem derives from failure of states to define clear goals and objectives, a complex task in the intensely interpersonal environment of social service delivery. The decentralized and localized nature of social welfare also makes it hard to measure and compare performance.
Internal accountability is patchy at best, as can be seen by problems that have visited such respected charities as the Red Cross and United Way.
Unlike for-profit corporations, which are judged on the measurable yardstick of profitability, nonprofits have more vague goals and a broader set of constituents, each with its demands. Coupled with a lack of state oversight, nonexacting volunteer directors and the reluctance of courts to give charitable beneficiaries and donors the right to sue charities for alleged abuses, little is there to deter these institutions from engaging in risky behavior.
Churches have a greater layer of insulation from oversight. For instance, the Internal Revenue Service does not gather financial data on churches as it does on other nonprofits. In addition, because of First Amendment concerns, legislators and courts have rightfully feared interfering with the internal operations of churches.
Voucher advocates contend that these failings are more than compensated for by the market, which will reward high-performing providers and screen out the less capable. However, these market-based assumptions do not necessarily work when applied to our most vulnerable and disenfranchised populations.
To begin with, it is questionable how rigorous the market of competitors will be. Charitable-choice legislation requires a secular option for every religious one. But in rural areas, it is often hard to find a single provider, be it secular or sectarian. In urban areas, it is not clear how a beneficiary would gather the data necessary to select the best provider. Certainly, the states are not required to gather or offer this information. Do we really want to force people to troop around searching for needed services on a trial-and-error basis?
It is not clear that the poor, hungry and homeless truly have a "free" choice in shopping for the best provider. Instead, desperate people are likely to accept substandard services - along with a dose of religious indoctrination - as a small price to pay for food, shelter or counseling. For these reasons, even a "market-based" voucher program will need to be regulated and overseen by the government agencies distributing vouchers.
A variety of measures could improve accountability from charitable-choice providers without embroiling governments in internal church matters.
Governments could work with welfare recipients and religious providers to define secular goals and standards and to evaluate performance according to these objective measures.
Government agencies could serve as centralized clearinghouses to gather information about effective practices and educate other providers about them.
Beneficiaries could be surveyed at regular intervals as to the effectiveness of services and provided with ombudsmen to help work out grievances. Ineffective providers would be ineligible for participation in voucher programs.
These suggestions are starting points for ensuring that beneficiaries receive quality services.
Many churches are likely to bristle at such oversight. Indeed, President Bush has contended that money should flow to churches with no strings attached. This favoritism for religion lacks precedent and would seem to have little support from a Supreme Court using neutrality as the touchstone for evaluating church-state programs.
Churches are subject to neutral regulations that affect their day-to-day operations, such as labor, zoning, and tax laws. Such neutral regulations are upheld by the courts. In return, churches have access to an array of municipal services available to secular entities, such as roads, electricity, and police protection.
Even more importantly, just like the parents using school vouchers, churches have a choice whether to accept charitable-choice funds. If they do not want the government poking around, they can continue to provide spiritually motivated social services from their own funds, as they have always done.
Oversight of government-funded, privately delivered social services should be neutral - but not as Bush defines it. Government oversight should be focused on achieving secular objectives and ensuring that public funds are spent on programs that deliver results. The point is not to proscribe or prescribe any particular method for delivering services, but to evaluate all providers according to neutral criteria.
We should not forget the true purpose of charitable choice. It is not a funding program for churches. It is meant to improve the lives of our poorest, most dependent citizens by giving them access to spiritually based services if they so choose. Simply handing out vouchers cannot achieve results. Demanding results will achieve results.
Michele Gilman is an assistant professor of law at the University of Baltimore School of Law.