Rights of Gov't Grantees

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HHS Proposes Restrictive Rules for HIV/AIDS Grantees 04/29/2008
On April 17, the Department of Health and Human Services (HHS) published a notice of proposed rulemaking that seeks public comments on special requirements for organizations that receive HIV/AIDS funding from HHS. The rule would require "legal, financial, and organizational" separation between a grantee and any affiliate organization that does not adopt mandatory language opposing prostitution and sex trafficking. This "pledge requirement" is being challenged in court by groups that say the policy might stigmatize and alienate the people in need of HIV/AIDS prevention services and violates First Amendment rights because it applies to other programs that are not federally funded. Comments on the proposed regulation are due May 19. Read More

USAID Temporarily Delays Implementation of Partner Vetting System 09/11/2007
The U.S. Agency for International Development (USAID) has agreed to temporarily delay implementation of a new database, called the Partner Vetting System (PVS), that would "[ensure] that neither USAID funds nor USAID-funded activities inadvertently or otherwise provide support to entities or individuals associated with terrorism." Under the plan, initially announced on July 17, all nonprofits that apply for grants, contracts or other financial partnership with USAID would have to provide the government with highly detailed personal information about employees, executives, trustees, subcontractors and others associated with the organization. On July 20, USAID also proposed to exempt portions of the PVS database from the Privacy Act. USAID is accepting comment on the Privacy Act exemption until Sept. 18. Charities are actively objecting to this burdensome and unwarranted program in which thousands of nonprofit workers would have to be screened. USAID is moving forward with a pilot program for aid recipients working in the West Bank and the Gaza Strip before expanding it globally as first intended. Read More

Agencies Extend Legal Services Restriction to HIV/AIDS Grants 08/21/2007
In an apparent attempt to derail a constitutional challenge to a requirement that all grantees in an HIV/AIDS prevention program adopt formal policies against sex trafficking, the United States Agency for International Development (USAID) and the Department of Health and Human Services (HHS) have issued guidelines for grantees that allow affiliations with groups that do not adopt such pledges. The guidelines, issued July 23, are even more restrictive than similar requirements for legal services programs that are also the subject of a constitutional challenge. They require separate "management and governance" and complete physical separation "between an affiliate which expresses views on prostitution and sex-trafficking contrary to the government's message…" and the grantee. Four leaders in the House have written to USAID urging it to adopt the less restrictive standards that allow faith-based organizations to keep religious and government funded activity separate in time and place without the need for a separate affiliate. Although the guidance is already effective, HHS intends to publish the rule for public comment. Read More

Head Start Reauthorization Passes House without Faith-based Discrimination Language 05/15/2007
On May 2, the Improving Head Start Act of 2007 (H.R. 1429) passed the House without a provision that would have allowed grantees to discriminate on the basis of religion when hiring for positions funded by Head Start. The 365-48 vote followed the defeat of an amendment sponsored by Rep. Howard McKeon (R-CA) that would have permitted the religion-based hiring decisions. The long battle over Head Start reauthorization will now move forward as the Senate considers Sen. Ted Kennedy's (D-MA) Head Start for School Readiness Act (S.556), which does not include a religious preference measure. In addition, neither bill contains controversial limitations on use of private funds for voter registration by Head Start agencies. Read More

Appeals Court Upholds USAID Pledge Requirement for HIV/AIDS Grantees 03/20/2007
On Feb. 27, a three-judge panel of the U.S. Circuit Court for the District of Columbia overturned a lower court ruling that voided a USAID requirement that grantees under an HIV/AIDS program adopt certain policies on prostitution. The ruling in DKT International v. USAID is the first decision in two cases in separate federal appeals courts that involve the same issue. DKT expects to seek a re-hearing before the entire Circuit Court. An appeal from another lower court ruling that overturned the same requirement is pending in the U.S. Court of Appeals for the Second Circuit in New York. Conflicting rulings in the two appeals courts could increase the likelihood the issue will reach the Supreme Court. Read More

Courts Defining When Government Funds Cannot Support Faith-Based Programs 02/06/2007
The U.S. Supreme Court will soon hear oral arguments about whether taxpayers have the right to challenge the constitutionality of government funding for conferences supported by the White House Office of Faith-Based and Community Initiatives that are alleged to promote religious groups over secular ones. Meanwhile, several recent court decisions involving separation of government-funded and religious programs provide some clarity to vague federal regulations. Read More

Federal Court Rules Against Taxpayer-Funded Religious Programs for Inmates 06/13/2006
A federal judge has ruled that an evangelical Christian program operating in an Iowa state prison promotes religion with state funds, in violation of the Establishment Clause of the Constitution. The court ordered the program to reimburse the government $1.5 million. Read More

USAID Pledge Requirement Again Found Unconstitutional 05/31/2006
A second federal judge has ruled that a sweeping restriction on the privately funded speech of groups participating in the federal government's international HIV/AIDS program violates the First Amendment. Read More

Federal Grant Rules in the Courts 05/16/2006
Decision Favors Charity, Another Case Challenges OMB Favoritism of Faith-Based Groups
In a victory for nonprofit advocacy rights, a sweeping restriction on the privately-funded speech of nonprofits that participate in the U.S. government's international HIV/AIDS program has been held in violation of the First Amendment. Meanwhile, a challenge is being mounted against an OMB grading system allegedly used to encourage an increase in government funding to religious charities. Read More

HHS Gives Guidance on Keeping Federal Funds Out of Religious Programs 03/07/2006
Settling a lawsuit filed by the American Civil Liberties Union (ACLU), the U.S. Department of Health and Human Services (HHS) has agreed to suspend funding of a nonprofit accused of using taxpayer dollars to present religious messages in a federally-funded sexual abstinence program. Read More

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