Protect Civil Rights Laws
Oppose Attempt to Repeal longstanding, critical civil
rights protections in head start program

Dear Representative:

The House is expected to consider legislation re-authorizing the Head Start program later this week.  The American Civil Liberties Union strongly urges you to oppose any attempts to repeal longstanding critical civil rights protections that explicitly prohibit government-funded employment discrimination based on religion in Head Start program.  This longstanding anti-discrimination provision has existed, without controversy, in Head Start since it’s inception 33 years ago and is designed to protect Head Start children, teachers, staff and parent volunteers from employment discrimination based on religion in federally-funded Head Start programs.  The civil rights protections afforded to Head Start children, teachers and parent volunteers are essential and should not be repealed. 

Longstanding Civil Rights Protection in Head Start was Never Controversial

Current law explicitly prohibits participants in Head Start programs from discriminating based on race, creed [religion], color, national origin, sex, political affiliation or beliefs, or disability.  42 U.S.C. 9849.  If this protection is repealed, Head Start would allow taxpayer dollars to fund religious organizations that discriminate against Head Start teachers, staff and parent volunteers in federally-funded Head Start classrooms.

The civil rights provision barring Government-funded religious discrimination was adopted without controversy.  The provision was first included in Head Start legislation that was signed by President Richard Nixon and subsequently by President Ronald Reagan.  Throughout its 33-year history, the civil rights provision has not been an obstacle to the participation of religiously-affiliated organizations in Head Start programs.  In fact, many religiously-affiliated organizations participate in Head Start and comply with the same civil rights provision that applies to everyone else.

Repealing Existing Civil Rights Protections in Head Start Would Reverse the Government’s Long Fight Against Federally-Funded Discrimination

Repealing critical civil rights protections in Head Start attacks the very core of civil rights protections historically supported by the federal government.  More than 60 years ago, the first success of the modern civil rights movement was a decision by President Franklin Roosevelt to bar federal contractors from discriminating based on race, religion, or national origin.  From that first presidential decision through the Supreme Court’s decision allowing the federal government to deny special tax advantages to Bob Jones University, which claimed a religious right to retain the tax benefits while pursuing racist practices, the federal government has made the eradication of federally-funded discrimination among its highest priorities.

If amended, Head Start would allow a religious organization, such as Bob Jones University, that discriminates based on religion, to participate in federal Head Start programs.  In a disturbing result, Bob Jones University could be denied tax benefits because of its racist policies toward its students, but could receive federal Head Start money under an amended Head Start to discriminate against teachers and parent volunteers working in Head Start classrooms--simply because the employees do not meet Bob Jones University’s religious tests.  Moreover, in the many religious organizations in which the adherents are all of a single race, the result of Government-funded religious discrimination will effectively be federal funds going to the employment of persons of a single race.

The federal government clearly has a compelling interest in applying the Head Start Act’s civil rights provision to everyone receiving federal funds--including religious organizations seeking to discriminate on the basis of religion in hiring persons to work in Head Start.  Repealing critical civil rights protections prohibiting discrimination in employment would be inconsistent with the leading Supreme Court case on the use of federal funds by religious organizations that discriminate. 

In Bob Jones Univ. v. United States, 461 U.S. 574 (1983), the Supreme Court held that federal government could deny a religiously-run university tax benefits because the university imposed a racially discriminatory anti-miscegenation policy.  Id. at 605.  The Court decided that the federal government’s compelling interest in eradicating racial discrimination in education superceded any burden on the university’s religious exercise of enforcing a religiously-motivated ban on students interracial dating.  Id. at 604.

There is no meaningful difference between the government prohibiting tax benefits to organizations that discriminate based on race and the Head Start Act’s statutory prohibition on discrimination based on religion in Head Start classrooms.  In fact, the United States itself--during the current Administration--squarely rejected the proposition that intentional religious discrimination gets less protection under the Equal Protection Clause than race.  In its October 26, 2001 brief defending the religion prong of Title VII from an Eleventh Amendment attack, the United States stated that “[c]ontrary to Defendant’s contention that the Supreme Court has ‘distinguished claims involving differential treatment on the basis of race and speech from those involving religion,’ there can be no doubt that the Equal Protection Clause subjects State governments engaging in intentional discrimination on the basis of religion to strict scrutiny.”  Brief of Intervenor United States in Endres v. Indiana State Police (N.D. Ind. Oct. 26, 2001) (brief is available on www.usdoj.gov).  Congress should not now take the position that it cannot or will not enforce a civil rights ban on federal funds going to an organization claiming a right to discriminate based on religion when the Supreme Court specifically authorized the United States to enforce a civil rights ban on federal tax benefits going to an organization making a directly analogous religious exercise claim to discriminate based on race.  Thus, the claim that the Congress has no duty to fully enforce the nondiscrimination statute is contrary to law--and abandons one of the seminal decisions in civil rights, namely Bob Jones Univ.

If Critical Civil Rights Protections are Repealed, the Resulting Head Start Program Would be Unconstitutional

Head Start, if amended, would abet unconstitutional employment discrimination based on religion.  The proposed amendment’s exemption of religious organizations from the prohibition on religious discrimination in the program is contrary to constitutional law, and will open the door to government-funded discrimination. 

Proponents of stripping the explicitly clear prohibition of religious employment discrimination, thereby allowing religious organizations to use federal funds to discriminate against their employees, argue that their position is consistent with a provision in Title VII of the Civil Rights Act of 1964 that generally permits religious organizations to prefer members of their own religion when making employment decisions.  However, that provision in Title VII does not consider whether federally-funded religious groups can discriminate with federal taxpayer dollars.   Moreover, although the Supreme Court upheld the constitutionality of the religious organization exemption in Title VII, Corporation of Presiding Bishop v. Amos, 483 U.S. 327, 336-39 (1987), the Court has never considered whether it is unconstitutional for a religious organization to discriminate based on religion when making employment decisions in programs that the government finances to provide governmental services. 

Several courts have considered whether a religious organization can retain its Title VII exemption after receipt of indirect federal funds, e.g., Siegel v. Truett-McConnell College, Inc., 13 F. Supp.2d 1335, 1344 (N.D. Ga. 1994) (clarifying that its decision permitting a religious university to invoke the Title VII exemption is because the government aid is directed to the students rather than the employer), but only one federal court has decided the constitutionality of retaining the Title VII exemption after receipt of direct federal funds, Dodge v. Salvation Army, 1989 WL 53857 (S.D. Miss. 1989).  In that decision, the court held that the religious employer’s claim of its Title VII exemption for a position “substantially, if not exclusively” funded with government money was unconstitutional because it had “a primary effect of advancing religion and creating excessive government entanglement.”  Id.  The analysis applied by the court in Dodge should apply with equal force to the Head Start Act programs that would provide direct federal funds to religious organizations.

In addition to causing the Establishment Clause violation cited by the court in Dodge, an amended Head Start would also subject the government and any religious employer invoking the right to discriminate with federal dollars to liability for violation of constitutional rights under the Free Exercise Clause and the Equal Protection Clause.  Although mere receipt of government funds is insufficient to trigger constitutional obligations on private persons, a close nexus between the government and the private person’s activity can result in the courts treating the private person as a state actor.  Rendell-Baker v. Kohn, 457 U.S. 830 (1982).

It is beyond question that the government itself cannot prefer members of a particular religion to work in a federally-funded program.  The Equal Protection Clause subjects governments engaging in intentional discrimination on the basis of religion to strict scrutiny.  E.g., United States v. Batchelder, 442 U.S. 114, 125 n.9 (1979); City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976).  No government could itself engage in the religious discrimination in employment that would be accommodated and encouraged by the changes to Head Start.  Thus, the government would be in violation of the Free Exercise Clause and the Equal Protection Clause for knowingly funding religious discrimination.

Of course, a private organization is not subject to the requirements of the Free Exercise Clause and the Equal Protection Clause unless the organization is considered a state actor for a specific purpose.   West v. Atkins, 487 U.S. 42, 52 (1988).  The Supreme Court recently explained when there is a sufficient nexus between the government and the private person to find that the private person is a state actor for purposes of compliance with constitutional requirements on certain decisions made by participants in the government program:

[S]tate action may be found if, though only if, there is such a ‘close nexus between the State and the challenged action’ that seemingly private behavior ‘may be fairly treated as that of the State itself.’ . . . We have, for example, held that a challenged activity may be state action when it results from the State’s exercise of ‘coercive power,’ when the state provides ‘significant encouragement, either overt or covert,’ or when a private actor operates as a ‘willful participant in joint activity with the State or its agents’ . . . . .

Brentwood Academy v. Tennessee Secondary School Athletic Association, 121 S. Ct. 924, (2001) (citations omitted).

The extraordinary role that the current Administration--and the advocates calling for the civil rights repeal--have taken in accommodating, fostering, and encouraging religious organizations to discriminate based on religion when hiring for federally-funded programs creates the nexus for constitutional duties to be imposed on the provider, in addition to the requirements already placed on government itself.  The clear intent of efforts to repeal the civil rights provision in the Head Start Act is to encourage certain providers receiving federal funds to discriminate based on religion.

These efforts are part of a growing pattern of congressional, presidential, and regulatory actions taken specifically for the purpose of accommodating, fostering, and encouraging government-funded private organizations to discriminate in ways that would unquestionably be unconstitutional if engaged in by the federal government itself.  For example, in December of 2002, President Bush signed Executive Order 13279, which amended an earlier executive order, which had provided more than 60 years of protection against discrimination based on religion by federal contractors.  The Bush order provides an exemption for religious organizations contracting with the government to discriminate in employment based on religion.  In addition, the federal government is simultaneously proposing regulations to allow religious organizations to discriminate based on religion in employment for federal programs involving substance abuse counseling, welfare reform, housing, and veterans benefits.

Although religious employers have the right under Title VII to apply religious tests to employees, the Constitution requires that direct receipt and administration of federal funds removes that exemption.  In addition, the federal government itself has constitutional obligations to refrain from religious discrimination or from establishing a religion.  H.R.1429, if amended, would fail to meet any of those constitutional mandates.

For these reasons, the ACLU strongly urges you to vote “NO” on any attempt to repeal critical civil rights protections in Head Start.  A repeal would create an unconstitutional loophole allowing federally-funded religious discrimination. Thank you for your attention to this matter, and please do not hesitate to call Terri Schroeder at 202-675-2324 if you have any questions regarding this issue.    Very truly yours,                                        

Caroline Fredrickson                                              Terri Schroeder
Director                                                                  Senior Lobbyist