Guidance on Nondiscrimination in Matters Pertaining to Faith-Based Organizations

Guidance on Nondiscrimination in Matters Pertaining to

Faith-Based Organizations

Information and Materials for Federal Employees, Intermediary Entities, and

Faith-Based and Neighborhood Organizations

Receiving USDA Financial Assistance

USDA Center for Faith-Based & Neighborhood Partnerships

July 2016

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Table of Contents

1. Introduction ......................................................................................................................... 3

2. Nondiscrimination Requirements for Direct and Indirect USDA Financial Assistance ..... 3

3. Prohibited Uses of Direct USDA Financial Assistance ...................................................... 4

4. Preserving Faith-Based Organizations’ Religious Identity................................................. 5

5. Separation of Explicitly Religious Activities ..................................................................... 6

6. Guidance for Programs Supported by Direct Financial Assistance .................................... 6

A. Separate and Distinct Programs ................................................................................ 6

B. Separate Presentations .............................................................................................. 7

C. Explicitly Religious and Anti-Religious Activities .................................................. 8

D. Cost Allocation ......................................................................................................... 8

E. Eligibility, Outreach, and Recruitment ..................................................................... 9

F. Availability of Separate Religious Programs ............................................................ 9

7. Model Guidance on Protections for and Obligations of Organizations That Administer

Social Service Programs Supported by USDA Financial Assistance ........................................... 10

8. Model Guidance on Transparency .................................................................................... 12

9. Model Guidance on Monitoring, Training and Enforcement ........................................... 13

A. Introduction ............................................................................................................. 13

B. Agency Compliance ................................................................................................ 14

C. Grant and Contract Reviewer Training Guide ........................................................ 15

D. Summary of Principles From Executive Order 13279, as amended by Executive

Order 13559, and USDA Implementing Regulations at 7 C.F.R. Part 16 ........................ 17

E. Using USDA Funds in Compliance with Constitutional Principles ....................... 19

10. Model Guidance on Protections for and Obligations of Organizations That Administer

Social Service Programs Supported by USDA Financial Assistance ........................................... 23

Appendices .................................................................................................................................... 25

A. Executive Order 13279 (Dec. 12, 2002) ................................................................. 25

B. Executive Order 13559 ........................................................................................... 30

C. Title 6, C.F.R. part 19 ............................................................................................. 36

D. Model Notice of Beneficiary Rights and Beneficiary Referral Request ................. 42

1. Introduction

The purpose of this guidance is to provide faith-based and other neighborhood

organizations that receive financial assistance from the United States Department of Agriculture

(USDA) with clear and uniform instructions on fundamental principles that apply to their

awards or contracts. Specifically, this guidance addresses certain nondiscrimination requirements

for recipients of direct and indirect USDA financial assistance; prohibited religious uses of direct

USDA financial assistance; protections and separation requirements to ensure that faith-based

groups are able to retain their religious identity after receiving an award; and protections for

beneficiaries to ensure that they are not discriminated against on the basis of religion, a religious

belief, or a refusal to attend or participate in a religious practice.

USDA’s overarching regulation on equal opportunity for religious organizations to participate in

USDA assistance programs can be found at 7 CFR Part 16. The final rule entitled Federal

Agency Final Regulations Implementing Executive Order 13559: Fundamental Principles and

Policymaking Criteria for Partnerships With Faith-Based and Other Neighborhood Organizations

(Final Rule) amended 7 CFR Part 16 and directed agencies to provide policy guidance or

reference materials on a number of program-specific topics.

This guidance is not a substitute for carefully reviewing the terms and conditions of any grant

document or contract, or USDA’s regulations on Equal Opportunity for Religious Organizations

at 7 C.F.R. part 16, which are included as Appendix C to this guidance (and are referred to

throughout this guidance as the USDA regulations).

Please note: Throughout this guidance, except where expressly noted or where

inapplicable, “financial assistance” includes both grants and contracts, and “beneficiary”

includes a prospective beneficiary. See 7 C.F.R. § 16.2

2. Nondiscrimination Requirements for Direct and Indirect USDA

Financial Assistance

Section 2(d) of Executive Order 13279, as amended by Executive Order 13559, applies

beneficiary nondiscrimination obligations to direct and indirect aid programs. A direct aid

program is one where USDA, or an intermediary like a local government, selects a provider and

purchase services or awards funds to that provider to carry out a service. An indirect aid program

is one where USDA or an intermediary provides an individual beneficiary with a voucher,

certificate, or similar means of payment, and the beneficiary chooses the service provider. Any

organization that participates in a program funded by direct or indirect USDA financial

assistance is prohibited from, in providing services or in outreach activities related to such

services, discriminating against a program beneficiary on the basis of religion, a religious belief,

or a refusal to attend or participate in a religious practice.

While organizations that participate in programs funded by indirect aid cannot turn away

beneficiaries on the basis of religion or religious beliefs or lack thereof, they are not required to

modify their program activities to accommodate beneficiaries who choose to expend the indirect

aid on the organization’s program. For example, a faith-based organization that offers a Bible

study as part of its programming need not remove that study from its program activities or create

alternative programming for an indirect aid beneficiary who does not wish to participate in the

Bible study. Furthermore, the prohibited uses of direct USDA financial assistance described

below do not apply to programs funded by indirect USDA financial assistance.

The remainder of this guidance applies only to programs supported either in whole or in

part through direct USDA financial assistance, not to programs receiving indirect USDA

financial assistance.

3. Prohibited Uses of Direct USDA Financial Assistance

Section 2(g) of Executive Order 13279, as amended by Executive Order 13559, prohibits

the use of direct Federal financial assistance to support or engage in “explicitly religious

activities,” which includes “activities that involve overt religious content such as worship,

religious instruction, or proselytization.”

Other examples of explicitly religious activities and

materials include devotional exercises, production or dissemination of devotional guides or other

religious materials, or counseling in which counselors introduce religious content. More

specifically, in the context of social services, providing devotional booklets during a summer

food service program or leading a group prayer among beneficiaries receiving Women, Infants,

and Children (WIC) assistance are examples of social service activities that are explicitly

religious. While it is not feasible to develop a comprehensive list of all “explicitly religious

activities,” each of these is an example of an activity that is not religiously neutral because it

promotes or endorses religion to beneficiaries.

Application of the prohibition against explicitly religious activity must be consistent with

the First Amendment of the U.S. Constitution, which both prevents the government from

promoting or sponsoring religion and protects privately initiated religious expression and

activities from government interference and discrimination. This means that staff carrying out

programs supported by direct USDA financial assistance, and the materials disseminated by staff

persons in those programs, must be neutral in their treatment of religion. Neither staff nor

materials used in these programs should promote, endorse, or favor religious beliefs over non-

religious beliefs, nor should they disparage religious beliefs in any way. Further, they should not

express a judgment with regard to religious beliefs or non-belief, or seek to influence the beliefs

of participants with respect to religion.

If a local program is directly supported by USDA financial assistance, program

administrators should be aware that the bar against use of Federal financial assistance for

explicitly religious activities applies to activities, speech, and materials that are generated or

controlled by the administrators, instructors, or officials of the USDA financed program. The

requirement generally does not apply to the activities of persons whose speech is not controlled,

encouraged, or approved after the fact by program administrators, instructors, or officials, such

as spontaneous comments made by individual beneficiaries in the context of a USDA program.

The Supreme Court has repeatedly held that the First Amendment requires that officials and

administrators in publicly-funded programs be neutral in their treatment of religion, showing

neither favoritism toward nor hostility against religious expression.

See also 7 C.F.R. 16.2

Direct USDA financial assistance for explicitly religious activities that can be publically

funded consistent with the Establishment Clause is constitutionally permissible and necessary

under limited circumstances, such as for chaplaincy services. For example, the prohibition

against the use of direct USDA financial assistance to support explicitly religious activities may

not apply for programs where funds are provided to chaplains to work with detainees in

detention facilities, or where funds are provided to religious or other organizations for programs

in detention facilities in which such organizations assist chaplains in carrying out their duties.

If you have questions about whether one of your programs might be exempt from the bar

on the use of direct USDA financial assistance for explicitly religious activities, you should

consult your USDA program office through the program’s project officer, contracting officer, or

other responsible USDA or State official. Determinations will be made on a case-by-case basis,

based on applicable Federal law and USDA’s discretion under that law to determine whether and

under what conditions the expenditure is appropriate.

4. Preserving Faith-Based Organizations’ Religious Identity

While faith-based organizations need to ensure that programs directly supported by the

government comply with the requirement that these programs are religiously neutral, various

protections also exist to ensure that faith-based organizations do not have to change their

religious identities after receiving a USDA award. Religious entities may receive Federal

financial assistance to support social service programs “without impairing their independence,

autonomy, expression outside the programs in question, or religious character.”

Accordingly, a

faith-based organization that applies for, or participates in, a social service program supported

with Federal financial assistance may continue to carry out its mission in this way, including the

definition, development, practice, and expression of its religious beliefs. At the same time, as

explained below, it may not use direct Federal financial assistance to support or engage in any

explicitly religious activities and those activities must be both separate in time or location from

the Federally-funded program and voluntary for beneficiaries.

A faith-based organization may also use its facilities to provide USDA-financed social

services without removing or altering religious art, icons, scriptures, or other symbols from the

facility. Additionally, a faith-based organization that applies for, or participates in, a social

service program supported with USDA financial assistance may retain religious terms in its

name, select its board members on a religious basis, and include religious references in its

mission statements and other chartering or governing documents. Faith-based organizations that

See Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972) (per curiam) (explaining that “reasonable opportunities

must be afforded to all prisoners to exercise the religious freedom guaranteed by the First and Fourteenth

Amendments without fear of penalty”); Katcoff v. Marsh, 755 F.2d 223, 234 (2d Cir. 1985) (finding it “readily

apparent” that the Government is obligated by the First Amendment “to make religion available to soldiers who

have been moved by the Army to areas of the world where religion of their own denominations is not available to

them”); Sch. Dist. of Abingdon Twp. v. Schempp, 374 U.S. 203, 299 (1963) (Brennan, J., concurring) (observing that

“hostility, not neutrality, would characterize the refusal to provide chaplains and places of worship for prisoners and

soldiers cut off by the State from all civilian opportunities for public communion”).

E.O. 13279, § 2(g), 67 FR 77141 (Dec. 16, 2002), as amended by E.O. 13559, § 1(b), 75 FR 71319,

71320 (Nov. 17, 2010); see also 7 C.F.R. § 16.4

provide social services retain these rights while observing the separation requirements described

further below.

5. Separation of Explicitly Religious Activities

Section 2(f) of Executive Order 13279, as amended by Executive Order 13559, provides

that explicitly religious activities must be separated from programs supported with direct

financial assistance from the Federal government:

Organizations that engage in explicitly religious activities (including activities

that involve overt religious content such as worship, religious instruction, or

proselytization) must perform such activities and offer such services outside of

programs that are supported with direct Federal financial assistance (including

through prime awards or sub-awards), separately in time or location from any

such programs or services supported with direct Federal financial assistance, and

participation in any such explicitly religious activities must be voluntary for the

beneficiaries of the social service program supported with such Federal financial

assistance.

In addition to the worship and religious services that faith-based organizations conduct

separately from their Federally-supported project, faith-based organizations may also carry out

separate social service programs with explicitly religious activities or content after receiving a

Federal award. In some cases, an organization may elect to carry out a separate social service

program that is explicitly religious that is similar to the government-funded project. For example,

a faith-based organization may carry out two disaster case management programs, one of which

is privately-funded and overtly religious, while the other is USDA-supported directly and free of

explicitly religious content. But where such religious activities or programs are undertaken, it is

especially important for it to be clear that they are separate and distinct, and that participation in

the religious activities is voluntary for participants in the USDA-supported program.

6. Guidance for Programs Supported by Direct Financial Assistance

A. Separate and Distinct Programs

Recipients of USDA financial assistance must ensure that any program that involves

explicitly religious activities (including activities that involve overt religious content such as

worship, religious instruction, or proselytization) is separate and distinct from the program that

receives direct USDA financial assistance, and that the distinction is completely clear to the

beneficiary. See E.O. 13279, § 2(f), as amended by E.O. 13559, § 1(b), 75 FR at 71320; see also

7 C.F.R. § 16.4

Some of the ways to ensure separate and distinct programs include, but are not limited

to, the following examples:

 creating separate and distinct names for the programs;

E.O. 13279, § 2(f), as amended by E.O. 13559, § 1(b), 75 FR at 71320. This provision is reflected in the

USDA regulations at 7 C.F.R. § 16.4

 creating distinct appearances for the materials used to promote each program;

 establishing separate registrations for the programs; and

 promoting only the USDA-supported program in materials, websites or

commercials purchased with any portion of direct Federal financial assistance.

Websites with explicitly religious content may include a link to the page promoting the

USDA-supported program; subject to applicable grant or contract provisions, the page about the

USDA supported program may be supported with direct Federal financial assistance, but the

explicitly religious page may not. The USDA-supported page may link to pages with explicitly

religious content; however, such links should be accompanied by statements noting that the

linked content is separate from the USDA supported program, privately funded, and purely

voluntary for beneficiaries.

B. Separate Presentations

Recipients of Federal financial assistance must implement measures to separate the

presentation of any program with religious content from the presentation of the USDA-supported

program by time or location in such a way that it is clear that the two programs are separate and

distinct. When separating the two programs by time but presenting them in the same location, the

service provider must ensure that one program completely ends before the other program begins.

Some of the ways in which separation of presentations may be accomplished include

the following examples:

 The programs are held in completely different sites or on different days.

 If the programs are held at the same site at completely different times, the

service provider may separate programs through such means as:

o having sufficient time between the two programs to vacate the room, turn

down the lights, leave the stage, etc., in order to conclude the first program

before beginning the second; and

o completely dismissing the participants of the earlier program.

 If the programs are held in different locations at the same site at the same

time, the service provider may separate programs through such means as:

o completely separating registration locations; and

o completely separating areas where programs are held such as by room,

hallway, or floor.

Note: If an organization offers a USDA-supported program and a privately funded

religious program and both provide the same social service, it is especially important that the

organization accentuate the separation between the programs. Furthermore, because the law

recognizes that children are particularly susceptible to coercion, if the clients served are

children, it is particularly important that the separation between the programs be made clear.

C. Explicitly Religious and Anti-Religious Activities

Recipients of USDA financial assistance must ensure that there are no explicitly

religious or anti-religious activities in a program supported by direct Federal financial

assistance.

These include:

 registration procedures that include religious inquiries or references; and

 program activities that include religious outreach or promotion, endorsement,

or favoring of religious beliefs, or activities that are intended to dissuade

program participants from holding religious beliefs.

D. Cost Allocation

Recipients of USDA financial assistance must be able to demonstrate that direct Federal

financial assistance is only being used for the Federally-supported program.

Some of the ways in which separation of funds may be accomplished include the

following examples:

Implement the use of time sheets that keep track of all staff hours charged to the

Federally-supported program, whether the staff work in other programs or not.

Require that staff working in both Federally-supported programs and other programs

indicate clearly how many hours are spent on each program.

Require that any staff working on both a Federally-supported program and a non-

Federally-supported program, at the same site and on the same day, clearly indicate both the

number of hours spent on the Federally-supported program and the actual time during which they

worked on that program. The hours should reflect that time spent on any program with explicitly

religious activity has been completely separated from hours during which time was spent on the

Federally-supported program.

Show cost allocations for all items and activities that involve both Federally-supported

and non-Federally supported programs, such as staff time, equipment, or other expenses, such as

travel to event sites. This may be accomplished through such means as the following:

Example: If staff in the Federally-supported program travel to a site where the

organization conducts both a Federally-supported program and a privately-funded religious

program, then only one- half of the travel costs (e.g., gas, lodging, and other related expenses)

may be charged to the Federal program. If the award recipient conducts three separate and

distinct programs at one site, and one of the programs is Federally-supported, then only one-third

of the travel costs may be charged to the Federal program.

See E.O. 13279, § 2(g), as amended by E.O. 13559, § 1(b), 75 FR at 71320; see also 7 C.F.R. § 16.4

See 2 CFR 200.430 (2014) (Cost Principles—Compensation—Personal Services); 48 CFR 31.201-4(b)

(Contracts With Commercial Organizations—Determining Allocability).

Example: If an electronic device is used 30% of the time for the Federally-supported

program, this use should be documented through clear record keeping. Only 30% of the cost of

the electronic device may be charged to the Federally-supported program.

E. Eligibility, Outreach, and Recruitment

Recipients of USDA financial assistance must ensure that the Federally-supported

program is open to all qualified beneficiaries, regardless of their religion or religious belief,

refusal to hold a religious belief, or refusal to attend or participate in a religious practice.

USDA

award recipients may not establish selection criteria that have the effect of discriminating against

beneficiaries based on religion or non-religion. Accordingly, USDA funded programs may not

limit outreach, recruitment efforts, or advertising of the Federal program services exclusively to

religious or non-religious target populations.

F. Availability of Separate Religious Programs

After the USDA-supported program has ended, a staff person may provide a brief and

non-coercive invitation to program participants to attend a separate religious program. The

demarcation between the Federally-supported program and the religious program must at all

times be clear. The invitation must emphasize that the religious program is a separate program

from, and not a continuation of, or complementary to, the USDA-supported program. It also

must be clear that participants are not required to attend the separate religious program, and that

participation in Federally-supported programs is not contingent on participation in other

programs sponsored by the organization. If the beneficiaries are children, then Federally-

supported programs should obtain parental consent before inviting the children to separate

religious activities in order to ensure that the invitation is non-coercive and that participation is

voluntary.

See E.O. 13279, § 2(d), as amended by E.O. 13559, § 1(b), 75 FR at 71320; 7 C.F.R. § 16.2

7. Model Guidance on Protections for and Obligations of

Organizations That Administer Social Service Programs Supported

by USDA Financial Assistance

The following material may be used in presentations for government employees and/or

staff of intermediary entities and faith-based and neighborhood organizations that receive

Federal financial assistance.

Protections

• In the administration or distribution of USDA financial assistance under social service

programs, governmental officials and bodies must not discriminate against organizations based

on their religious character or affiliation, or lack thereof.

• Organizations must be permitted to compete for USDA financial assistance used to

support social service programs and to participate fully in the social service programs supported

with Federal financial assistance without impairing their independence, autonomy, expression

outside the programs in question or religious character.

• Organizations may retain their independence and ability to carry out their missions,

including the definition, development, practice, and expression of their religious beliefs,

provided that organizations do not use direct Federal financial assistance to support any

explicitly religious activities (including activities involving overt religious content such as

worship, religious instruction, or proselytizing) or in any other manner prohibited by law.

• Organizations may conduct privately funded religious activities that are separated in

time or location from activities funded by direct USDA financial assistance and are purely

voluntary for beneficiaries of such assistance.

• Organizations may use their facilities to provide social services supported with USDA

financial assistance, without removing or altering religious art, icons, scriptures, or other

symbols from these facilities.

• Organizations may retain religious terms in organizational names, select board members

on a religious basis, and include religious references in organizational mission statements and

other chartering or governing documents.

• Organizations must not be subjected to regulation or monitoring that would create

excessive entanglement between the government and religious entities.

Obligations

• Organizations must not discriminate against beneficiaries on the basis of religion or

religious belief or a refusal to attend or participate in a religious practice.

• Organizations must conduct their outreach activities in ways that do not favor or

disfavor beneficiaries based on their religious beliefs or lack thereof.

• Organizations must provide beneficiaries with written notice of certain protections prior

to the time they enroll in programs supported by direct Federal financial assistance.

• Organizations that offer activities that are supported by direct USDA financial

assistance as well as privately funded explicitly religious activities (activities involving overt

religious content such as worship, religious instruction or proselytization) must separate, in time

or location, these privately funded explicitly religious activities from any programs or services

supported with direct USDA financial assistance and ensure that beneficiaries’ participation in

such programs is voluntary.

• If a beneficiary objects to the religious character of an organization that provides

services under the program, the organization must promptly undertake reasonable efforts to refer

the beneficiary to an alternative provider. If the organization is unable to identify an alternative

provider, the organization must notify USDA or an intermediary entity.

• Organizations that receive USDA financial assistance must comply with applicable laws

and regulation. By virtue of their acceptance of such assistance, organizations also agree to

appropriate monitoring and enforcement of these standards.

8. Model Guidance on Transparency

This guidance should be given to government employees so that they will have clear

instructions on transparency obligations under Executive Order 13279, as amended by Executive

Order 13559. To promote transparency and accountability, the agency will post online, in an

easily accessible manner, regulations, guidance documents, and policies that reflect or elaborate

upon the fundamental principles described in the executive orders. Federal agencies will also

post online a list of entities that receive Federal financial assistance for the provision of social

service programs.

1. Agencies should determine which regulations, guidance documents, and policies

should be posted online, based on a presumption of disclosure and consistent with their Open

Government plans. The following categories of policies should generally be posted online:

 Policies to provide guidance on equitable competition for direct Federal

financial assistance used to support social service programs. See E.O. 13279,

§§ (2)(b) & (g), as amended by E.O. 13559, § 1(b), 75 FR at 71319, 71320.

 Policies to ensure separation in time or location of explicitly religious

activities from programs or services supported with direct Federal financial

assistance. See id. § (2)(f), 75 FR at 71320.

 Policies to implement Federal programs in compliance with the Establishment

and Free Exercise Clauses (including prohibited uses of direct Federal

financial assistance). See id. § (2)(e).

 Policies and procedures that provide guidance to ensure that social service

providers of a Federal program make appropriate and timely referrals to an

alternative provider, where beneficiaries object to the religious character of an

organization that provides the Federally-supported social service program. See

id. § (2)(h), 75 FR at 71320–21.

 Policies regarding the award of direct Federal financial assistance, including

policies providing that decisions must be made on the basis of merit, not on

the basis of religious affiliation of the recipient organization or lack thereof,

free from political interference or even the appearance of such interference.

See id. § (2)(j), 75 FR at 71321.

This information should be made readily available to the public. Executive departments and

agencies should also solicit public feedback to identify information of greatest use to the public.

2. Agencies need not provide a separate posting of entities that receive direct Federal

financial assistance, where such information is publicly displayed on USAspending.gov,

pursuant to the Federal Funding Accountability and Transparency Act of 2006, Pub. L. 109-282.

USAspending.gov is a single searchable website, accessible to the public at no cost. An

advanced search feature allows the public to search the data by criteria including Catalog of

Federal Domestic Assistance Program Number, funding agency, fiscal year, type of recipient

(including nonprofit) and keyword. The Working Group determined that section (2)(i) of

Executive Order 13279, as amended by Executive Order 13559, does not require that Federal

agencies differentiate between recipients based on whether or not they are faith-based. This

determination is consistent with the Advisory Council’s Report of Recommendations to the

President. See Advisory Council Report, Recommendation 8, at 135–36.

9. Model Guidance on Monitoring, Training and Enforcement

This guidance should be given to USDA employees so that they will have clear

instructions on monitoring, training, and enforcement obligations under Executive Order 13279,

as amended by Executive Order 13559, and as implemented in 7 C.F.R. Part 16.

A. Introduction

To guard against inappropriate uses of direct Federal financial assistance, the

Government must monitor and enforce the constitutional, statutory, and regulatory standards that

govern social service financial assistance. The obligation to monitor and enforce these standards

applies to all such financial assistance, whether they flow to religious or secular organizations,

and the Government should not assume that one class of providers is more apt to violate

applicable standards than another. There is, however, a component of the Government’s

monitoring obligation that is constitutionally mandated and specifically focused on religion-

related issues. The First Amendment requires the Government to monitor the activities and

programs it funds to ensure that they comply with church-state requirements, including the

prohibition against the use of direct Federal financial assistance in a manner that results in

governmental indoctrination on religious matters.

At the same time, the Government must respect the constitutional command against

excessive entanglement between government and religion.

So, for example, the Government

need not and should not engage in “pervasive monitoring” of religious bodies.

The Supreme

Court has said that excessive entanglement includes “comprehensive, discriminating, and

continuing state surveillance.” Id. at 619. Also, oversight need not constitute a “failsafe

mechanism capable of detecting any instance of diversion” of government aid to religious use.

But the Government clearly fails to discharge its responsibilities if its safeguards “exist in theory

only” or “only on paper.”

In several cases involving government funds administered by nongovernmental

organizations, including religious institutions, the Supreme Court has found that a variety of

methods of monitoring meet these standards. For example, the Supreme Court has upheld an

educational aid program in which various levels of government engaged in monitoring activities

See Bowen v. Kendrick, 487 U.S. 589, 615 (1988) (“There is no doubt that the monitoring of

[government] grants is necessary if the [government] is to ensure that public money is to be spent in the way that

Congress intended and in a way that comports with the Establishment Clause.”); Comm. for Pub. Educ. & Religious

Liberty v. Nyquist, 413 U.S. 756, 780 (1973) (“In the absence of an effective means of guaranteeing that the state aid

derived from public funds will be used exclusively for secular, neutral, and nonideological purposes, it is clear from

our cases that direct aid in whatever form is invalid.”).

Lemon v. Kurtzman, 403 U.S. 602, 613 (1971).

Id. at 627.

Mitchell v. Helms, 530 U.S. 793, 861 (1999) (O’Connor & Breyer, JJ., concurring in the judgment)

(emphasis in original).

Freedom From Religion Found. v. McCallum, 179 F. Supp. 2d 950, 976, 977 (W.D. Wisc. 2002).

such as (1) requiring participating nonpublic schools to sign assurances that they would use

Federal funds only for “secular, neutral and nonideological purposes” and retaining the power to

cut off aid in the event of failure to abide by these promises; (2) requiring nonpublic schools to

submit applications with project plans for approval; (3) visiting nonpublic schools once a year

and conducting follow-up visits when necessary; and (4) conducting random reviews of materials

used in the government-funded programs.

The Court has also determined that government

review of educational materials and programs coupled with periodic site visits is another way of

meeting constitutional requirements in this area.

In 1976, the Court upheld a program that

required nongovernmental educational institutions to promise that the aid they received would

not be used for sectarian purposes.

These nongovernmental bodies also were required to

describe specific nonsectarian uses of government funds and to file reports itemizing the use of

such funds.

B. Agency Compliance

Executive Order 13559 amended Executive Order 13279 to describe the Government’s

obligation to monitor and enforce constitutional, statutory, and regulatory requirements relating

to the use of Federal financial assistance, including the constitutional obligation to monitor and

enforce church-state standards in ways that avoid excessive entanglement between religion and

government. Agencies should comply with those requirements by taking the following steps:

Monitoring Plans. Agencies should formulate and make public an agency plan for

monitoring compliance with this guidance, specifying who will do the monitoring and what

measures they will use. Agencies should provide a public summary of their monitoring activities.

All grants and contracts involving Federally-supported social services should set forth applicable

responsibilities and restrictions. Church-state safeguards also should be included in the

monitoring tools used in the audit required of non-Federal entities expending $500,000 or more

annually in direct Federal financial assistance and in all other audits of non-Federal entities

receiving direct Federal financial assistance.

Training Plans. Agencies should develop training plans that cover training of both

internal personnel and grant recipients.

Enforcement. Agencies should develop and implement plans for enforcement or

corrective action in the event of non-compliance. In addition, when addressing recommendation

9 of the Advisory Council Report, the Working Group identified six monitoring measures that

Federal staff should be encouraged to use to oversee Federally-financed programs and to ensure

compliance with the Executive Orders. Those measures, listed below under “Recommendations

for Monitoring Faith-Based and Neighborhood Recipients of Financial Assistance,” should be

used by Federal agencies when developing monitoring plans:

Recommendations for Monitoring Faith-Based and Neighborhood Recipients of Direct

Federal Financial Assistance. All Federal agency staff tasked with monitoring the recipients of

Mitchell v. Helms, 530 U.S. at 861–63 (O’Connor & Breyer, JJ., concurring in the judgment).

Bowen v. Kendrick, 487 U.S. at 615–17.

Roemer v. Bd. of Pub. Works, 426 U.S. 736, 742–43 (1976).

Federal awards should ensure that they comply with the terms and conditions of their particular

awards as well as any applicable rules, regulations, OMB circulars, and other governing

authorities. Among the program requirements that Federal agencies routinely oversee through

monitoring measures, Federal programs should ensure that service providers administer

programs that comply with rules and policies implementing Executive Orders 13279 and 13559,

in consultation with Federal agencies’ civil rights and grant offices. Grant and contracting

officers, as well as program specialists, must monitor awards through effective methods, which

may include the following:

1. Conducting monitoring-related phone calls;

2. Reviewing grant-related documents and reports that include, but are not

limited to:

a. periodic financial and progress reports;

b. audit reports or financial statements prepared by an independent,

government-approved, Certified Public Accountant;

c. specialized programmatic reports; and

d. reports to appropriate payment points (in accordance with instructions

received from the payment office);

3. Reviewing recent or relevant audit reports from the Office of Inspector

General (if conducted);

4. Conducting site visits;

5. Conducting “desk reviews,” such as internet searches, where appropriate; and

6. Conducting conferences, roundtables, and workshops.

These methods are among the measures that should be used to discern whether recipients and

sub-recipients are in compliance with Executive Orders 13279 and 13559 and 7 C.F.R. Part 16.

C. Grant and Contract Reviewer Training Guide

The following guidance provides additional information for individuals who review

applications or proposals for awards of Federal financial assistance.

Persons who review applications for Federally-financed grants and contracts should be

aware that faith-based organizations must be considered for awards in Federally-financed

projects to which they are otherwise eligible and should be neither favored not disfavored on the

basis of religion or religious belief. Such award decisions must be free from political interference

or even the appearance of such interference, and must be made on the basis of merit, not the

basis of the religious character or affiliation, or lack thereof. There are restrictions as to how the

projects may be carried out, and reviewing staff should identify any application information that

indicates that a project has been proposed to undertake activities that violate principles in

Executive Order 13279, as amended by Executive Order 13559, and as implemented in 7 C.F.R.

Part 16. If answers to any of the following questions are affirmative, then the application should

be flagged by the reviewer so that the awarding agency may resolve the issue prior to funding the

proposed project:

1. Does the applicant propose to use direct Federal financial assistance for

“explicitly religious activities (including activities that involve overt religious

content such as worship, religious instruction, or proselytization)”? For

example, does the applicant propose to use direct Federal financial assistance

to pay for religious activities like devotional studies of sacred scriptures,

worship services, or religious items like Bibles or prayer books?

2. Does the applicant propose to integrate “explicitly religious activities”

(activities that involve overt religious content such as worship, religious

instruction, or proselytization) into a program supported with direct Federal

financial assistance? For example, does the applicant propose to include

religious instruction into the Federally-supported program?

3. Does the applicant propose to discriminate against program beneficiaries or

applicants based on religion or religious belief, a refusal to hold a religious

belief, or a refusal to attend or participate in a religious practice?

4. Are outreach or recruitment efforts for the Federally-supported programs

targeted exclusively or primarily to religious groups or exclusively to non-

religious groups? For example, does the application state that the Federally-

supported program will be publicized only at a church, or in a synagogue,

mosque or temple newsletter, without identifying other ways that it will also

be publicized to inform persons who don’t attend such religious institutions?

5. After receiving the award, does the recipient of direct Federal financial

assistance intend to select new project partners based on religious

considerations by considering, for example, only organizations that are

religious or share a similar faith affiliation or by considering only

organizations that are non-religious?

6. Does the applicant of direct Federal financial assistance propose to require or

encourage beneficiaries to participate in explicitly religious activities?

Reviewing staff also should remain mindful of various activities and measures that are

protected and that should not be regarded as a potential violation of the principles in Executive

Order 13279, as amended by Executive Order 13559 and as implemented in 7 C.F.R. Part 16, as

follows:

1. Faith-based organizations may conduct explicitly religious activities and

programs with private funds outside of a program supported by direct Federal

financial assistance, provided that the explicitly religious activities are not

only privately funded but also separate in time or location from the

government-supported program and voluntary for participants in the Federally

financed programs.

2. Faith-based organizations providing Federally-supported social services are

free to maintain their religious character, and therefore do not need to remove

religious art, icons, and symbols from the facility in which the proposed

project will be held.

If you are unsure as to whether any particular area of concern complies with these principles,

please err on the side of raising the concern with the awarding entity. Staff will then review the

matter prior to awarding.

D. Summary of Principles From Executive Order 13279,

as amended by Executive Order 13559, and USDA Implementing

Regulations at 7 C.F.R. Part 16

The following material may be used in presentations for government employees and/or

staff of faith-based and neighborhood organizations that receive Federal financial assistance.

When competing for Federal financial assistance for which they are otherwise eligible,

faith-based organizations are to be treated the same as non-faith-based organizations.

The government and any grantee or intermediary

may not refuse to review an award

application or make an award based on the organization’s religious character, religious

affiliation, or lack thereof.

Direct Federal financial assistance may not be used to support explicitly religious

activities (including activities involving overt religious content such as worship, religious

instruction, or proselytizing).

Do not use direct Federal financial assistance for activities such as religious worship,

religious instruction, or proselytizing. Do not use direct Federal financial assistance for materials

that endorse, promote or denigrate religion.

Do not integrate privately-funded explicitly religious activities into activities supported

by direct Federal financial assistance.

Note: The use of Federal financial assistance in circumstances where the courts have

allowed such funding under the Establishment Clause, such as for chaplaincy services, is not

subject to this restriction.

Faith-based organizations may conduct privately funded explicitly religious activities

(including activities involving overt religious content such as worship, religious instruction, or

proselytizing) separate from activities supported by direct Federal financial assistance.

Any explicitly religious activities must be privately funded.

Privately funded explicitly religious activities must be separate in time or location from

programs supported by direct Federal financial assistance and must be voluntary for program

participants.

Direct Federal financial assistance must be separately and carefully accounted for.

Faith-based organizations are free to maintain their religious character.

There is no need to remove religious art, icons, or symbols from facilities.

Faith-based organizations may retain authority over their internal governance.

Organizations that are awarded Federal financial assistance may not discriminate

against program beneficiaries based on religion, religious belief, refusal to hold a religious

belief, or refusal to attend or participate in a religious practice.

Do not discriminate against beneficiaries based on religion or religious belief. Do not

discriminate against beneficiaries who do not hold a particular religious belief, or any religious

belief, or who refuse to attend or participate in any religious practice, or in all religious practices.

Make it clear to beneficiaries that they are not required to attend or participate in any

privately funded explicitly religious activities that are offered by the organization.

Ensure that any privately funded explicitly religious activities that are offered by the

provider are separated in time or location from activities funded by direct Federal financial

assistance.

These non-discrimination requirements apply to any services funded in whole or in part

with Federal financial assistance.

If a beneficiary or prospective beneficiary of a social service program supported by

direct Federal financial assistance objects to the religious character of an organization that

provides services under the Federal program, that organization shall promptly undertake

reasonable efforts to identify and refer the beneficiary to an alternative provider to which the

prospective beneficiary has no objection.

The referral should be to an alternative provider that is in reasonable geographic

proximity to the organization making the referral and that offers services that are similar in

substance and quality to those offered by the organization making the referral. The alternative

provider also must have the capacity to accept additional clients. If a Federally-supported

alternative provider meets these requirements and is acceptable to the beneficiary, a referral

should be made to that provider. If, however, there is no Federally-supported alternative provider

that meets these requirements and is acceptable to the beneficiary, a referral should be made to

an alternative provider that does not receive Federal support but does meet these requirements

and is acceptable to the beneficiary. .

When the organization makes a referral to an alternative provider, it must keep a record.

When the organization determines that it is unable to identify an alternative provider after

making reasonable efforts, it shall both keep a record and notify USDA or an intermediary.

After a referral has been made, the organization should follow up with the beneficiary or

prospective beneficiary, or with the alternative provider, when authorized to do so by the

beneficiary or prospective beneficiary, to determine whether the beneficiary or the prospective

beneficiary contacted the alternative provider or providers.

However, when appropriate, USDA may require the awarding entity to provide

organizations information about alternate providers, and the organization that provides services

may rely on that information to fulfill its duty under this proposed rule. For example, in the case

of The Emergency Food Assistance Program (TEFAP), a State Distributing Agency may provide

contact information for beneficiaries of publicly available Web sites or telephone “hotlines”

that direct individuals to local emergency kitchens or pantries, a list of the emergency kitchens or

pantries to which the State Distributing Agency distributes food, or another applicable directory

or list of food assistance. It must be noted that in some instances, the awarding entity may also be

unable to identify a suitable alternate provider within a reasonable geographic proximity.

Grantees shall ensure that all sub-recipient agreements make organizations receiving

program assistance aware of these requirements.

E. Using USDA Funds in Compliance with Constitutional Principles

The following material may be used in presentations for USDA employees and/or staff of

intermediary entities and faith-based and neighborhood organizations that receive USDA

financial assistance by grant or contract.

Directions: Select the correct answer for each of the following questions.

This questionnaire is intended as a learning exercise rather than as legal advice. In

practice, the answers may vary depending on the facts in any particular instance. If these

questions provoke further questions, please make a note so that you may follow up during the

group discussion time.

1. Faith-based organizations that receive USDA financial assistance must serve all

eligible participants regardless of those persons’ religious beliefs. True or False?

2. Recipients of USDA financial assistance, including State and local governments, may

not discriminate in the provision of program services on the basis of religion. True or False?

3. Faith-based organizations receiving USDA financial assistance may require that

beneficiaries profess a certain faith or participate in religious activities in order to receive the

Federally-supported services. True or False?

4. Grantees and their project partners that administer USDA-supported programs have

many of the same responsibilities as the government in that they cannot favor or disfavor faith-

based organizations on the basis of their ____________________. (Fill in the blank.)

5. An intermediary organization that awards sub-grants can prefer faith-based charities in

its selection process. True or False?

6. An intermediary organization that awards sub-grants can prefer non-religious charities

in its selection process. True or False?

7. There is no money set aside by USDA for faith-based organizations to receive a

designated portion of awards in USDA social services. True or False?

8. Federal grant funds may be used to buy religious materials as long as the materials are

used in a social service program serving the needy. True or False?

9. A rabbi may teach a relationship skills seminar to ex-offenders as part of a USDA

grant program when worship services or other explicitly religious activities are separated by time

or location, are voluntary for participants in the Federal program, and are privately funded. True

or False?

10. A grantee or contractor can integrate religious instruction into a program supported

with direct USDA financial assistance so long as that assistance is not used to pay for the

religious instruction. True or False?

11. A grantee or contractor may limit outreach regarding its USDA-supported program to

churches sharing its denomination/affiliation. True or False?

12. Beneficiaries of a social service program supported with direct USDA financial

assistance can be actively encouraged to attend a religious class that is privately funded, so long

as they aren’t required to attend. True or False?

13. A church receiving direct USDA financial assistance may not invite a client to attend

a Bible study even if it is optional and her choice to attend, and doesn’t affect the services she

will receive in the Federally-supported program. True or False?

14. Organizations that receive a USDA grant or contract must hold explicitly religious

activities at a different _______ or________ than Federally-supported services. (Fill in the

blanks.)

15. For each item, check the appropriate column, indicating whether the activity is

explicitly religious (and therefore not an allowable expense) or an allowable expense for direct

USDA financial assistance. The answers may vary depending on the facts in any particular

instance:

Explicitly Religious

Allowable Expense for Direct USDA Funds

a. Worship expenses

b. Secular marriage education curriculum purchased

by a faith-based or neighborhood organization

c. Religious instructional materials

d. Bible study

e. Prayer newsletter

f. Staff training for direct service program delivery

Explicitly Religious

Allowable Expense for Direct USDA Funds

g. Church staff hours spent on religious activities

h. Church staff hours spent on delivering

government-funded program services

i. Printing a devotional booklet for a social service

program

j. Printing a training booklet for a government-funded

program that does not include language that endorses

religion or proselytizes

16. If a charity receives direct USDA financial assistance for providing a public service,

then USDA requires that the charity abandon its religious character. True or False?

17. Facility space used to provide a USDA-funded service may not ever be used for

religious purposes and must not display any religious symbols. True or False?

18. An organization may receive direct USDA financial assistance and maintain a

religious name and religious references in its chartering documents. True or False?

19. A church that operates a social service program supported by direct USDA financial

assistance can purchase explicitly religious curricula if the provider pays for the materials with

its own funds and the materials will be used only in programs that are privately funded, are

optional for beneficiaries, and are separate from the Federally-supported program. True or False?

20. The government violates the Constitution if it requires a faith-based organization that

receives direct Federal financial assistance to demonstrate that such funding has only been used

for non-religious activities. True or False?

Answer Key:

1. True

11. False

2. True

12. False

3. False

13. False

4. Fill in the blank: “religious character

or affiliation.”

14. Fill in the blanks: “time” or “location”

5. False

15. See chart below

6. False

16. False

7. True

17. False

8. False

18. True

9. True

19. True

10. False

20. False

Explicitly

Religious

Allowable Expense for

Direct USDA Funds

a. Worship expenses

Yes

b. Secular marriage education curriculum purchased by a

faith-based or neighborhood organization

Yes

c. Religious instructional materials

Yes

d. Bible study

Yes

e. Prayer newsletter

Yes

f. Staff training for direct service program delivery

Yes

g. Church staff hours spent on religious activities

Yes

h. Church staff hours spent on delivering government-

funded program services

Yes

i. Printing a devotional booklet for a social service program

Yes

j. Printing a training booklet for a government-funded

program that does not include language that endorses

religion or proselytizes

Yes

10. Model Guidance on Protections for and Obligations of