Charitable Choice and the Accountability Challenge: Reconciling the Need for Regulation with the First Amendment Religion Clauses

Since 1996, Congress has included charitable choice provisions in several social welfare statutes to encourage the participation of religious organizations in administering government-funded social service programs. In this Article, Professor Michele Gilman discusses the lack of accountability to beneficiaries that occurs when public funds are given to religious organizations for secular programs, and she proposes solutions to this problem. As Professor Gilman explains, doctrines that constrain abuses of governmental discretion, such as administrative procedure acts and constitutional restrictions, generally do not apply when public programs are privatized. Moreover, religious organizations are often insulated from public scrutiny because of First Amendment concerns about entangling government in religion, as well as special immunities from tort liability and limited fiduciary duties for directors. The mechanisms of privatization, such as contracts and vouchers, also fail to ensure that beneficiaries receive quality services. As a result, Professor Gilman proposes a set of measures to improve accountability, all of which hinge on including beneficiaries in setting clear standards, evaluating outcomes, and enforcing rights to quality services. Finally, Professor Gilman analyzes current Supreme Court caselaw on public funding to religious entities and explains why imposing accountability measures on charitable choice programs does not violate the First Amendment religion clauses