Guidance For Government On
The Design and Operation of a Constitutionally-Valid
“Voucher”-Based Delivery System of Reentry Services for Ex-Offenders

       A. PURPOSE OF VOUCHER SYSTEM

       In a voucher system beneficiaries choose their provider of a government-funded service. Many believe that a voucher-based program will increase the supply, variety and quality of reentry services available to clients: more job placement specialists, drug counselors, transitional housing beds, and mentors than before. Faith-based organizations (FBOs) may be attracted by the fact that under a voucher system (unlike a direct grant) they may integrate their religious perspective with the federally-funded social service, to provide a holistic approach. Religious providers of transitional housing, for example, need not separate by time or location a group prayer or scripture study from the meal time. As a result, faith-based providers can be authentic to their mission and message in all their programming and at all times. Some believe this will ensure that FBOs can more efficiently do what they do best.

       In addition, a voucherized system may be easier to administer. As explained below, a “choice” system will require less monitoring because no one will have to ensure that inherently religious activities do not occur during the funded social service.

       B. LEGAL GUIDELINES

       1. What law applies when federal funds are provided through vouchers to non-government agencies, including faith-based ones?

        Because federal funds are involved, the rights and responsibilities of all parties--the participating ex-offender clients, the Fiscal Agent, Reentry Coordinator, USAO, State and Local Government, private service providers, including faith-based and other community organizations--are governed in part by a federal regulation: “Equal Treatment For Faith-Based Organizations,” 28 CFR Part 38 (1/21/04). This regulation specifically addresses vouchers and other indirect funding mechanisms.¹ It comports with the Supreme Court’s ruling in 2002, which held that the First Amendment’s ban on government establishment of religion is not violated when government includes faith-based social service providers in a voucherized funding program pursuing a secular purpose like reducing crime.²

       2. What are the essentials of a legally-valid, voucher-based system of reentry assistance?

       a. Choice of Providers  A voucher- or choice-based delivery system for reentry services only exists if the beneficiaries have a "genuine and independent private choice" of where to obtain the reentry service. This means that clients must be able to choose from a menu of providers that includes a secular, non-faith-based provider. No matter how long the menu or list of optional providers might be, it must include at least one nonreligious provider of equal quality, or else it does not provide clients with a genuine choice and thus is not clearly constitutional.

       b. Public Funds Follow the Client  The amount the government pays to the service provider must directly depend on the number of clients that freely choose that service provider. As the DOJ’s Equal Treatment regulation puts it, a voucher system allows the beneficiary to direct where funds are to be paid. Obviously, you need not hand a coupon or anything with “street value” to a client ex-offender. Rather, whichever provider (secular or faith-based, for-profit or nonprofit) the client chooses to go to will be paid an agreed per capita fee-for-service.

       c. Neutrality  The reentry pilot program must be neutral toward religion in its effort to advance a secular purpose appropriate to the government.³ For example, the program may seek to lower crime and recidivism by providing secular social services to returning offenders.

       d. Broad availability  The program should be available to a “broad class of individual recipients defined without regard to religion.”⁴ For example, ex-offenders of any or no faith should be eligible if they meet the non-religious criteria of your target beneficiary population. Participants must not be selected on the basis of their interest or disinterest in faith-based versus secular programs.

       C. FAQS & PRACTICAL GUIDELINES

       1. What if no secular programs bid to participate?

• Scour the service area for secular providers and invite them to apply.
• Make sure that any secular providers that did apply but that were not approved for the menu of qualified providers were given equal and fair consideration, no better or worse than any faith-based provider, based on the quality of their social service.
• If no secular provider can be found or “recruited”, then the religious providers of that particular service in your community will need to separate by time or location their inherently religious activity from the federally funded reentry service, and service providers will not be allowed to mandate participation in inherently religious activities as a condition of participation in the non-religious program.⁵ Providers who cannot separate the religious and secular elements of their program will not be eligible to participate. In other words, unless there is at least one secular provider on the menu of approved providers, then that particular reentry service should be operated as if the providers were direct grantees, bound by the restrictions on inherently religious activities described in DOJ’s Equal Treatment regulation. See 28 CFR Part 38.

       2. Must all the programs be identical?

        The scope of services solicited and the criteria used in selecting programs must be the same, to ensure that the client has a “genuine” choice and is not skewed toward a faith-based program because of government favoritism. Government should not favor or disfavor religious programs in composing the menu; rather it should select qualified providers by using religion-neutral criteria based upon the secular purposes of the program (e.g., all programs must demonstrate an understanding of factors associated with re-offending; must be properly credentialed; any facility must meet fire code; etc.)

       3. What if a religious program becomes more popular because it supplements the publicly-funded service with other helpful, privately-funded services, far superior to any offered by a secular agency on the menu?

        Your “voucher” should pay for the same services, no more and no less, from all providers, religious and secular. But all programs need not (and realistically cannot) be identical in the quality, features, or length of their program. “[Q]uality cannot be coercion . . . It is a misunderstanding of freedom . . . to suppose that choice is not free when the objects between which the chooser must choose are not equally attractive to him.”⁶ Is the faith-based program superior because it offers the client far more services, in addition to the service for which the voucher pays? That does not invalidate your voucher system, as long as the government-funded service is comparable to that required of all providers.⁷ If a faith-based provider uses private funding to also offer supplementary services that make it more attractive to clients, then that is the beneficial result of competitive free enterprise, not of governmental establishment of religion. And the winners are the clients, their families, those who would otherwise become new victims of client recidivism, and the safer community.

       4. Can a faith-based provider of reentry services require that all participating ex-offenders who come to their program attend its religious programming?

        Yes. In a voucherized system, a faith-based provider may require religious participation provided the ex-offender was given and made an informed and genuine choice to come to that religious provider to obtain services. Unlike a direct grantee, a faith-based provider in a voucher or choice system can, for example, require clients to attend chapel services as part of their substance abuse therapy. This does not violate the First Amendment, because the client--not a judge or parole officer--chose the religious program.

       5. What monitoring and accountability is required with a voucher program?

        The Fiscal Agent for the Reentry component must verify that a pre-qualified agency rendered the complete service to an eligible client; then compensate the agency as performance measures met (attended x hours; made Y interviews; was hired; retained same or better job after X weeks). You need not monitor for religious content as it may be interwoven in the funded service under a voucher system. But whether operating under a direct grant or an indirect (voucher) system, the federally-funded service provider may not discriminate on the basis of religion or lack thereof among qualified clients who seek their services.

       6. How does one find competent providers of reentry services?

• Weed & Seed steering committee;
• Licensing agencies (e.g., that certify drug counselors, mental health counselors, or offender employment specialists);
• Local clergy associations;
• National reentry associations and prison ministries with local chapters (Kairos, Prison Fellowship, Aleph, Celebrate Recovery);
• National nonprofits with local chapters (Alcoholics Anonymous; Narcotics Anonymous; Salvation Army, Teen Challenge);
• State agencies that administer federal formula and block grants (e.g., Juvenile Justice & Delinquency Prevention, Title II Part B, Residential Substance Abuse Treatment, Office on Violence Against Women’s STOP Formula);
• Local service organizations (e.g., Rotary, Lions Clubs);
• Referrals from each of these.

       7. What criteria should be used to pre-qualify or approve a service provider to be included on the menu of providers (from which ex-offenders may choose to receive “voucherized” reentry assistance)?

• Single set of criteria: use the same competence criteria for both faith-based and secular agencies;
• Religion-neutral: providers should neither be preferred nor disfavored because they are faith-based or are of a particular faith;
• Set clear, measurable performance standards, and enforce them (e.g., job placement service gets paid if client gets hired at an hourly wage at or above $X and retains the job or a better one for 90 days);
• Tour facility and ensure compliance with building code, zoning, and health regulations;
• If service must be accredited or government-licensed, confirm that agency is in good standing;
• Run criminal record check on those who will be working with returning ex-offenders;
• Train agency how to access list of clients qualified to receive subsidized services and how to report to and bill Fiscal Agent after services rendered.

       8. May a faith-based agency that hires its staff or volunteers on the basis of their religion be included on the menu of qualified service providers?⁸

Yes, if either:

a) The agency does not exercise that hiring policy with respect to those staff who will provide the federally-reimbursed service⁹ ; or

b) The agency can show that to be denied this right to hire co-religionists in order to participate in the voucher program would impose a “substantial burden on [the FB agency’s] free exercise of religion;” upon such a showing, under federal statutory law, you must allow the agency to participate and to continue its faith-specific hiring policy unless you can show that denying such an exemption would be “the least restrictive means of furthering [a] compelling governmental interest.”¹⁰

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¹ “To the extent otherwise permitted by Federal law, the restrictions on inherently religious activities set forth in this section [prohibiting an organization receiving a direct federal grant from engaging in inherently religious activities as part of its federally-funded program] do not apply where Department funds are provided to religious organizations as a result of a genuine and independent private choice of a beneficiary, provided the religious organizations otherwise satisfy the requirements of the program. A religious organization may receive such funds as the result of a beneficiary’s genuine and independent choice if, for example, a beneficiary redeems a voucher, coupon, or certificate, allowing the beneficiary to direct where funds are to be paid, or a similar funding mechanism provided to that beneficiary and designed to give that beneficiary a choice among providers.” 28 CFR 38.1(i).

² Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (Cleveland’s tuition vouchers redeemable at public or private schools, including faith-based).

³ Zelman, supra, at 652-3.

⁴ Zelman, supra, at 662.

⁵ 28 CFR 38.1(b).

⁶ Freedom From Religion Foundation v. McCallum, 324 F. 3d 880, 884 (7^th Cir. 2003)(Held: First Amendment’s establishment of religion clause not violated when a faith-based halfway house is included among secular programs from which parole violator may choose, even if the religious program is superior in length and quality.)

⁷ “The constitutionality of a neutral [ ] aid program simply does not turn on whether and why, in a particular area, at a particular time, most [programs] are run by religious organizations, or most recipients choose to use the aid at a religious [provider].” Zelman, supra, at 641.

⁸ The funding from DOJ’s Bureau For Justice Assistance for this Reentry component is subject to 42 U.S.C. § 3789d(c), the nondiscrimination provision of the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197. 42 U.S.C. § 5672(b) (2000) (“Section[] 3789d(c) . . . shall apply with respect to the administration of and compliance with this chapter . . . .”). That provision states that “[n]o person in any State shall on the ground of . . . religion . . . be subjected to discrimination under or denied employment in connection with any programs or activity funded in whole or in part with funds made available under this chapter.” 42 U.S.C. § 3789d(c)(1). Obviously, if the statutory basis for funding the Reentry component of this pilot changes, then you will need to research whether the new statute contains a similar provision prohibiting religious preference in hiring, as well as in beneficiaries served.

⁹ The nondiscrimination provision in the Omnibus Crime Control and Safe Streets Act of 1968 prohibits a recipient from making hiring decisions based on religion only “in connection with any programs or activity funded in whole or in part with [the grant].” 42 U.S.C. § 3789d(c)(1).

¹⁰ Religious Freedom Restoration Act of 1993, as amended, 42 U.S.C. § 2000bb-1(b) (2000). While RFRA has been held not to apply to state law and actors, City of Boerne v. Flores, 521 U.S. 507 (1997), it applies to all federal funding, programs and actors, including the Reentry program here.