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April 05, 2019 Practice Points

Government-Funded Discrimination in Foster Care Placement Decisions

What practitioners and advocates should know about the South Carolina waiver.

By Jessalyn Schwartz

In January, the Department of Health and Human Services (HHS) granted a request by South Carolina Governor Henry McMaster, allowing for a waiver to Obama-era regulation barring discrimination on the basis of religion, sexual orientation, or gender identity for a federally-funded, faith-based foster care agency, Miracle Hill Ministries. The South Carolina request argued that the federal regulation found at 45 C.F.R. 75.300(c) limits the free exercise of religion of faith-based organizations in violation of the Religious Freedoms Restoration Act (RFRA). 45 C.F.R. 75.300(c) states as follows:

It is a public policy requirement of HHS that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services based on non-merit factors such as age, disability, sex, race, color, national origin, religion, gender identity, or sexual orientation. Recipients must comply with this public policy requirement in the administration of programs supported by HHS awards.

In a letter dated January 23, 2019, HHS granted the request for a waiver, stating that Miracle Hill’s “sincere religious exercise would be substantially burdened by the application of the religious non-discrimination requirement of 45 C.F.R. 75.300.” The letter further stated that a denial would not be in the least restrictive means of advancing the compelling government interest in discriminatory protection on the part of HHS and that there were nine other agencies available to serve potential foster parents. HHS allowed the conditional exception with respect to Miracle Hill and other subgrantees in the South Carolina foster care program using similar religious criteria in selecting prospective foster parents. 

This is not the first time that Miracle Hill has made news due to discriminatory practices. In 2017, they came under fire for discriminating against potential foster parents who were Jewish, and Governor McMaster issued an executive order permitting such action on the basis of religion in 2018. Miracle Hill is responsible for up to 15 percent of the foster care placements in South Carolina, and it is of note that the state is experiencing a severe shortage in foster homes, with the population of foster youth rising from 3,100 in 2012 to 4,600 in 2018.

The first legal challenge to the exception was filed by the Americans United for Separation of Church and State who, with Catholic foster parent Aimee Maddonna, claim that the waiver is a license to discriminate and is violative of the Establishment Clause of the Constitution and denies her equal protection. Maddonna applied to be a foster parent and, when she attempted to use her Catholic church as a reference, was told that only Christians attending the “right” type of Protestant church were acceptable foster parents for the agency. The suit alleges that the agency’s actions are “irrational and illegitimate” and that the state and federal governments are authorizing and funding religious discrimination.

The lawsuit also points out that the Miracle Hill manual even includes language against discrimination on the basis of race, color, national origin, sex, age, religion, political beliefs, or disability, showing that the agency is now going against its own policies in addition to the law. South Carolina law requires foster children receive religious teachings in accordance with the expressed wishes of their natural parents, and religious exemptions like this may allow for agencies to “effectively terminate biological parents’ rights to direct children’s religious upbringing” while in care. Miracle Hill also has explicit anti-LGBTQ policies in place and expect its placements to agree with those positions, which could be incredibly detrimental to LGBTQ youth who are overrepresented in foster care and in need of supportive placements.

While proponents of the exemption argue religious-based agencies are in danger of losing their license under the existing anti-discrimination regulations, critics of the waiver feel that this federally-funded agency has been granted the right to freely discriminate against foster parents. The Anti-Defamation League and other organizations in opposition feel this is a “dangerous precedent,” which would violate civil liberties, and Currey Cook of Lambda Legal argues that the contention that religious providers are being shut out of the foster care system is a “false narrative.” Legal scholars have opined that the idea of religious beliefs being allowed as an exemption from the law may have a broader impact and could allow discrimination in housing, employment, and education decisions in the future. Texas has already filed for a similar waiver and a 2020 HHS draft budget request, which is not yet public, is seeking the broad authority to include faith-based foster care and adoption groups in the federally-funded child welfare programs, which would cause federal tax dollars to be used to reject LGBTQ and non-Christians, among others, as foster placements.

In mid-February, 63 Congressional Democrats sent a letter to HHS Secretary Alex Azar against the waiver, stating that the agency wrongly used the RFRA as a justification to bypass non-discrimination protections in place. They argued that tax-payer funded child welfare agencies would be allowed to discriminate on religious grounds, ignoring the best interests of the vulnerable children and exacerbating the existing shortage of qualified foster care placements. Further, the representatives argued that the waivers are violative of the Constitution by allowing religion to be used to harm others and are a drastic shift from long-standing federal protections. The South Carolina waiver is also not the first instance of such discrimination, as it is important to recall that the ACLU filed a district court case against the Michigan Department of Health and Human Services and the Michigan Child Services Agency in September 2017 on behalf of families turned away because of religious objections to same-sex relationships. Similarly, the argument in that case is that the practice is violative of the Equal Protection and Establishment Clauses of the Constitution.

Child welfare policy advocates and those engaged in direct representation of children should keep a close eye on these legal battles, as well as on the continuing 2020 budget debates which have amped up this week with the Trump Administration’s proposed cuts to many social welfare programs. It would not be surprising to see more states apply for similar waivers to South Carolina’s and it is important that the practices of religious-based agencies stay under scrutiny to ensure that discriminatory activities are not going unchecked. 

Jessalyn Schwartz is an attorney in Washington, D.C. with a background in child welfare, mental health, and education.

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