Biden's Act of Child Care Sacrifice | Opinion

When President Barack Obama promoted the Affordable Care Act, he famously declared: "If you like your doctor, you can keep your doctor." Politifact rated this its "Lie of the Year" at the time, and the populist backlash changed the course of American politics.

To his credit, "Honest Joe" Biden has made no such claim regarding Build Back Better's child care expansion. If the legislation passes as written, millions of parents will be surprised and enraged to see their preferred child care centers shutter their doors.

American parents prefer to send their kids to faith-based child care centers. But with a subtle yet significant statutory shift, Build Back Better targets these centers for destruction.

Traditionally, the federal government has funded child care through the Child Care Development Block Grant. This nearly $10 billion program has received substantial bipartisan support because it funds students, not systems, by providing parents with child care certificates. These certificates don't count as formal federal grants, which would subject child care centers to a slew of regulations. They effectively put cash in parents' pockets, providing the financial basis for a robust and diverse array of trusted child care providers.

But Build Back Better's $225 billion child care plan defines federal financial aid as formal grants. This means that faith-based child care providers will be required to navigate the Americans with Disabilities Act (ADA), Title VI and Title IX of the Civil Rights Act, Section 504 of the Rehabilitation Act, the Age Discrimination Act and the Head Start program's myriad non-discrimination regulations.

Child care centers newly subjected to the ADA will be pressured to undergo costly physical renovations. Secular child care centers may tap into federal facilities funding, but church-based providers may not. The law specifies, with seeming antagonism, that providers "may not use federal funds for buildings or facilities that are primarily used for sectarian instruction or religious worship." It is unclear at best whether this hostility to religious institutions is constitutional, but such is the current state of the law nonetheless.

Faith-based centers that can afford costly renovation fees will face other, particularly unpleasant burdens. Build Back Better omits reference to Title IX's customary religious exemption. This is an ominous signal, given that Title IX generally operates by a "one drop" rule—subjecting an entire institution to Title IX if only one part receives funding—and given that the Biden Department of Justice has directed federal agencies to enforce Title IX as prohibiting discrimination on the basis of sexual orientation and gender identity. Religious institutions may therefore be forced to choose between providing subsidized child care and retaining dedicated men's and women's ministries and marriage counseling programs predicated on the proposition that marriage is a union between one man and one woman.

 U.S. President Joe Biden delivers remarks before
U.S. President Joe Biden delivers remarks before signing the Infrastructure Investment and Jobs Act during a ceremony on the South Lawn at the White House on November 15, 2021 in Washington, DC. Kenny Holston/Getty Images

Churches, synagogues and mosques that still opt to provide subsidized child care thus may be forced to sacrifice the religious character of their programs. Under Head Start's non-discrimination regulations, religious institutions may be prohibited from requiring that staff share their particular religious beliefs. And given that Department of Health and Human Services regulations prohibit recipients of federal funding from engaging in explicitly religious activities, faith-based child care providers may be prohibited from leading students in prayer or offering religious instruction.

The only institutions with the bureaucratic and legal capacity to readily comply with the slew of federal regulations are the ones that are already doing so: traditional public schools. Build Back Better will destroy church-based child care and swell public school enrollment, which in turn will expand the membership and power of the Democrats' most powerful special interest group: teachers' unions. And that's probably the point.

Close observers expect that many states would opt out of Build Back Better's child care expansion, just as many states opted out of Obamacare's Medicaid expansion. But opting out would merely delay, not fully forestall, the destructive effects.

That's because local school districts would still get funding to provide two years of universal pre-K. In the child care market, revenue from three- and four-year-olds acts to subsidize care for infants and toddlers, who require far more intensive and expensive services. So without a massive subsidy for infant and toddler care, universal public pre-K will implode the economics of the private child care sector.

But it doesn't have to be this way. If Democrats want to dramatically expand child care access and affordability without destroying faith-based providers, there's a simple solution: expand the Child Care Development Block Grant. Give parents more purchasing power to support institutions that they trust with their children. This path would undoubtedly prove massively popular with working- and middle-class parents. On the other hand, destroying traditional, faith-based child care providers would likely provoke a populist backlash comparable to when families realized that Obamacare would not, in fact, let them keep their doctors.

Congressional Democrats have a decision to make. Do they really want to sacrifice faith-based child care on the altar of teachers' union power?

Max Eden is a research fellow at the American Enterprise Institute.

The views expressed in this article are the writer's own.