A nondiscrimination provision in the $1.85 trillion social policy bill could disqualify some religious organizations, spurring a fight over who can benefit from President Biden’s landmark bill.
WASHINGTON — A coalition of conservative religious groups is waging an intensive lobbying effort to remove a nondiscrimination provision from President Biden’s ambitious prekindergarten and child care plans, fearing it would disqualify their programs from receiving a huge new infusion of federal money.
The fight could have major consequences for a central component of Mr. Biden’s $1.85 trillion social policy bill, which the House is to consider as soon as this week. It could go a long way toward determining which programs, neighborhoods and families can benefit from the landmark early-childhood benefits established in the legislation, given that child care centers and preschools affiliated with religious organizations make up a substantial share of those offered in the United States — serving as many as 53 percent of families, according to a survey last year by the Bipartisan Policy Center.
The provision at issue is a standard one in many federal laws, which would mandate that all providers comply with federal nondiscrimination statutes. Religious organizations, whose child care programs are currently exempt from some such laws, argue that it would effectively block many of their providers from participating, while civil rights advocates contend it is long past time for such institutions to comply.
Some of the faith groups are pressing lawmakers to scrap or modify the nondiscrimination language, asserting that it would essentially shut them out of the new federal program unless they made major changes to the way they operate. For instance, it could bar federal funds from going to programs that refused to hire a gay employee, gave preference to applicants of their faith or failed to renovate their facilities to accommodate disabled students.
The organizations argue that the rules would force them to choose between participating in the child care initiative and continuing to teach religious content, convene all-boys or all-girls programs, or give preferences in hiring or admissions to people of their religion. Congressional staff members working on the bill do not believe it prohibits religious organizations from teaching religious content.
The groups — including the American leaders of the Catholic Church and one of the country’s largest Orthodox Jewish groups — contend that unless the bill is rewritten, they will be forced to turn away families that want to use benefits from the bill to send children to their centers.
“It will be detrimental to our ability to participate,” said Jennifer Daniels, the associate director for public policy at the United States Conference of Catholic Bishops. “It would impact our ability to stick with our Catholic mission in a variety of ways. We’ve worked really hard to make our concerns known.”
Their efforts appear to have gained some traction in the Senate, where Joe Manchin III of West Virginia, a key Democratic swing vote on the social policy bill, has privately told Democrats he wants to ensure that religious programs can fully participate in the child care initiative.
But in the House, Democrats are just as adamant that the provision be retained in order to prevent federal money from flowing to any organization that discriminates. Defenders include the Congressional Black Caucus and Representative Robert C. Scott, Democrat of Virginia and the chairman of the Education and Labor Committee, who wrote it into the social policy legislation.
The fight over preschool and child care programs is among the major conflicts that remain to be resolved before the social policy legislation can clear Congress and be signed into law by Mr. Biden.
“The Build Back Better Act must not allow government-funded discrimination — in employment or in the provision of services to participants — in publicly funded programs,” Mr. Scott and Representative Joyce Beatty, Democrat of Ohio and the chairwoman of the Black Caucus, wrote in a previously undisclosed letter to Speaker Nancy Pelosi.
“We believe that allowing such discrimination financed with public funds collected from all taxpayers is wrong,” the lawmakers wrote. “We are asking you to oppose any effort to remove or change the nondiscrimination provisions included in the child care and universal preschool provisions of the Build Back Better Act.”
The bill would provide nearly $400 billion to help states build universal prekindergarten and affordable child care programs over six years. It is intended to ensure that the vast majority of families — those with four-person households earning up to $300,000 — spend no more than 7 percent of their income on child care. Families that earn under 75 percent of the state’s median income would pay nothing.
It explicitly includes religious organizations.
“Nothing in this section shall preclude the use of such certificates for sectarian child care services if freely chosen by the parent,” it says. “For the purposes of this section, child care certificates shall be considered federal financial assistance to the provider.”
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At issue is what’s arguably a major change the bill would make in how the federal government treats institutions that receive aid for the care of small children. For decades, low-income families have received funds from the Child Care and Development Block Grant program that they may use at a variety of child care centers. But since those centers are not necessarily considered direct recipients of federal funds, they are not bound by some nondiscrimination laws.
A similar situation exists for religious elementary schools that receive money through local school systems to educate low-income students.
Mr. Scott’s legislation would categorize any prekindergarten or child care center that participates in the new program as a federal financial recipient, requiring it to either comply with nondiscrimination laws or turn away families, the conservative religious organizations argue.
“Religious providers are absolutely eligible to participate in the program — including receiving certificate funding, which is not considered direct federal financial assistance,” an aide to the Senate’s education committee said. “We are working with concerned organizations to ensure this distinction is clear.”
The bill would also prohibit any child care provider from using the funds to perform work on “buildings or facilities that are used primarily for sectarian instruction or religious worship.”
Senate Democrats say they are working to accommodate the religious organizations that object, but will not agree to anything that would allow religious providers to discriminate against families that want to enroll children in their facilities. They note that some religious organizations — particularly those with a less conservative worldview — have no problem with the bill, including a few that signed a letter urging its passage.
And civil rights groups have pushed back hard at the efforts to remove the nondiscrimination provision, saying that any institution that wants to receive federal funds must submit to such laws.
“Who do they want to shut out? Is it the lesbian mom you want to shut out?” said Liz King, the director of the Education Equity Program at the Leadership Conference on Civil and Human Rights. “Is it the children with autism you want to shut out? Since at least 1964, the law and basic principle has been that federal funds cannot be used to discriminate. No one should have to subsidize their own discrimination.”
But religious organizations that have spent decades successfully steering clear of federal mandates say the legislation could be crippling to their educational programs.
“As a general rule, Catholic schools and most nonpublic schools purposefully avoid federal financial recipient status, because it triggers a whole host of federal regulatory obligations with which nonpublic schools are not currently required to comply,” Michael B. Sheedy, the executive director of the Florida Conference of Catholic Bishops, wrote in a letter last week to Senator Marco Rubio, Republican of Florida. “The provisions of most obvious concern include nondiscrimination provisions related to sexual orientation and gender identity that could create religious freedom issues for religious providers.”
Mr. Manchin raised the issue at a recent closed-door meeting with Senate Democrats, emphasizing that the church and other faith-based organizations play a crucial role in helping care for many families in West Virginia, according to a person familiar with his comments.
Mr. Manchin argued that a little bit of funding would go a long way in helping religiously affiliated institutions provide a quality education for pre-K children, the person said, and he insisted they be eligible for any funds that are available. His position found widespread agreement among the other Democratic senators in the room, said two people familiar with the private discussion who described it on the condition of anonymity. Democrats did not get into the finer details of the dispute during their discussion, they said.
The debate is the latest skirmish in the battle over the role of religious organizations in participating in government programs — and how to include them while ensuring federal nondiscrimination protections that may conflict with their practices and beliefs.
The Civil Rights Act of 1964 made it unlawful for an employer to discriminate against someone because of the “individual’s race, color, religion, sex or national origin.” It exempted church groups and faith-based organizations, but the act made no mention of whether such provisions could be applied if the groups were to accept federal funding.
President George W. Bush, through a series of executive orders, made it easier for churches and other faith-based organizations to receive federal money while circumventing certain anti-discrimination laws.
The United States Conference of Catholic Bishops and the Orthodox Union want those practices to stay in place. In recent days, they have made the case to members of Congress that they could not accept money to run preschool or child care programs unless the bill expressly exempts them from anti-discrimination laws, such as Title IX, which protects against discrimination by sex, and the Americans With Disabilities Act, which they argue could require costly upgrades to old buildings, including houses of worship.
“We appreciate that key Senate Democrats have told us that they agree that churches and synagogues must be included, but the devil is indeed in the details,” said Nathan J. Diament, the public policy director at the Union of Orthodox Jewish Congregations of America. “Right now, the way the bill text is drafted, there are details that will deter, if not make it impossible for, faith-based providers to participate.”