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"Charitable Choice" and the Accountability Challenge: Reconciling the Need for Regulation with the First Amendment Religion Clauses
Vanderbilt Law Review
  • Michele E. Gilman
Publication Date

Charitable choice, or the use of federal money to fund social services provided by religious organizations, has engendered controversy and confusion since its inception in the 1996 welfare reform legislation. Under the welfare reform statute, entitled the Personal Responsibility and Work Opportunity Reconciliation Act ("PRA"), states may contract out administration of their welfare programs to private entities, including houses of worship. President Bush is promoting the expansion of charitable choice into other federal social service programs as a major policy initiative of his administration. Federal funding of faith-based organizations has supporters and opponents on both the left and the right. Supporters argue that charitable choice ends discrimination against religious organizations in competing for federal funds, and that religious organizations provide more effective social services than governments because of the spiritual and moral guidance the religious organizations provide. Opponents on the right counter that charitable choice will destroy the unique nature of religious organizations, make churches overly reliant on federal funds, and result in federal funding of objectionable groups. Opponents on the left charge that charitable choice violates the separation of church and state and federally subsidizes discrimination, because religious organizations are exempt from some antidiscrimination employment laws.

Yet these arguments miss an equally vexing problem arising under charitable choice: How can government ensure accountability from its sectarian contracting partners? This has profound ramifications for all of the constituents involved, including government funding agencies, the tax-paying public, social service providers, program beneficiaries, elected officials, advocacy groups, foundations, agency administrators, and others affected by, or interested in, a particular human services program.

The PRA aims to move welfare recipients into the workforce. Rather than handing out welfare checks, welfare administrators- whether public or private-are charged with putting people to work. As a result, under the PRA's charitable choice provision, faith-based organizations are providing a variety of social services designed to move welfare recipients towards self-sufficiency, including child care, substance abuse treatment, homeless services, English courses, parenting classes, mentoring, job training, mental health counseling, life skills training, affordable housing, domestic violence shelters, transportation to job sites, and fatherhood pro- grams. With President Bush's proposed expansion of charitable choice into other federally funded programs, churches can be expected to provide an even greater array of social services. Despite this proposed expansion, there is scant empirical evidence as to the effectiveness of the faith-based approach. The existing anecdotal evidence points in both directions. For every claimed success story, such as the eighty-five percent drug rehabilitation success rate of a Christian treatment program called Teen Challenge, there is a horror story, such as the alleged child abuse that occurred at Roloff Homes in Texas, a church-run home for troubled youths. Given the lack of empirical evidence, ensuring accountability should be a paramount concern. Currently, it is not. To the contrary, several charitable choice proponents, including President Bush, advocate removing regulatory burdens from faith-based providers altogether to encourage their participation in federally funded programs.

When government provides social services, a mix of laws and legal doctrines operate to constrain official discretion and to provide openness and participation in the administrative process.

Citation Information
Michele E. Gilman. ""Charitable Choice" and the Accountability Challenge: Reconciling the Need for Regulation with the First Amendment Religion Clauses" (2002) p. 797
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