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Brown v. Collier

United States Court of Appeals, Fifth Circuit

July 2, 2019

BOBBY R. BROWN, individually and on behalf of all others similarly situated, Plaintiff-Appellee,
BRYAN COLLIER, Executive Director of the Texas Department of Criminal Justice, Defendant-Appellant. WILLIAM E. SCOTT, Intervenor Plaintiff-Appellee, TYRONE DAY; KENNETH HICKMAN; R. WAYNE JOHNSON; TORRANCE FLEMINGS; KENNETH PRYOR; JULIAN A. RANDALL; LONNIE DEAN COLLINS; LAMONT EDWARD WILSON, Intervenor Plaintiffs-Appellees, BOBBY R. BROWN, individually and on behalf of all others similarly situated, Plaintiff-Appellee, TYRONE DAY; KENNETH HICKMAN; R. WAYNE JOHNSON; TORRANCE FLEMINGS; KENNETH PRYOR; JULIAN A. RANDALL; LONNIE DEAN COLLINS; LAMONT EDWARD WILSON, Intervenor Plaintiffs-Appellees,
BRYAN COLLIER, Executive Director of the Texas Department of Criminal Justice, Defendant-Appellant.

          Appeals from the United States District Court for the Southern District of Texas

          Before KING, DENNIS, and OWEN, Circuit Judges.

         Pursuant to a provision of the Prison Litigation Reform Act (PLRA), [1] the Texas Department of Criminal Justice (TDCJ) seeks to terminate a consent decree entered in 1977, which exempts Muslim inmates from the requirement that all religious gatherings and activities in Texas state prisons attended by more than four inmates must be directly supervised by either prison staff or a prison-approved outside volunteer. The district court denied the motion in part, concluding that a portion of the consent decree remains necessary to correct current and ongoing violations of the Religious Land Use and Institutionalized Persons Act (RLUIPA), [2] the Free Exercise Clause of the First Amendment, and the Establishment Clause of the First Amendment. We reverse and terminate the 1977 consent decree.


         More than forty years ago, Bobby Brown (Brown), a Muslim, initiated a class action against the executive director of TDCJ that resulted in the 1977 consent decree. That decree required TDCJ to make an exception for Muslim inmates to a policy that otherwise applied to those attending religious activities. TDCJ's rules and policies have required religious worship services or study gatherings attended by more than four inmates to be "directly" supervised by either prison staff, which would include a chaplain employed by TDCJ, or a prison-approved outside volunteer.[3] Direct supervision means that either a TDCJ employee or a qualified volunteer is in the room during the religious activities at all times and is supervising only those activities, with no responsibility for supervising other areas of the prison or other inmates until the activities have concluded.[4] However, when a volunteer is supervising or leading the religious gathering, a TDCJ officer "will be roving the hallways checking on the offenders, checking on the volunteers."[5] If an officer is not available, the service or activity will be cancelled, even if a volunteer is scheduled to be present.[6]

         The 1977 consent decree afforded Muslim inmates the right to participate in group religious services and studies that were "indirectly" supervised if no prison staff member or outside volunteer was available for direct supervision.[7] Indirect supervision means that a prison staff member is in the vicinity and observes the religious gathering intermittently, through windows or by the use of audio or video equipment, but does not remain present in the room or area where the activity is occurring.[8] The consent decree also provided that adherents to the Religion of Islam must be allowed "equal time for worship services and other religious activities each week as is enjoyed by adherents to the Catholic, Jewish and Protestant faiths," and the decree said that TDCJ must "specifically, allow adherents to the Religion of Islam at least two (2) full hours of time for worship services or other religious activities each week, rather than the one (1) hour previously permitted."[9] In the present proceedings, the district court found that from 1977 until January 1, 2013, Muslim, Jewish, Catholic, Protestant, and Native American inmates could engage in an average of six hours of religious activities each week at units in which members of each of these faith groups were housed.[10]

         However, members of other faiths were not permitted to gather as frequently due to the lack of civilian volunteers. William Scott, a Jehovah's Witness, sued the director of TDCJ in federal district court in 2009, seeking an injunction ordering prison officials to allow him and other members of the Jehovah's Witness faith to meet without volunteers, just as Muslims were permitted to do as a result of the consent decree. The district court's 2012 opinion and order in the Scott suit reflected that there were 217 offender faith preferences represented in the TDCJ system, and 59 designated faith groups at the Huntsville Unit, where Scott had been confined for a period of time.[11] TDCJ asserted that it did not have sufficient staff to provide adequate supervision of all offender faith groups if they were allowed to meet without volunteers present.[12] The district court held in Scott that the Establishment Clause requires "denominational neutrality," its "prohibition against preferential treatment of religion is 'absolute, '" and that Muslim inmates "are preferred to Jehovah's Witnesses with respect to the volunteer policy."[13] The court concluded "[i]f alternative means exist to treat Muslim and Jehovah's Witness prisoners without favoritism, then the Establishment Clause demands them."[14] The district court concluded that injunctive relief based on the Establishment Clause violation was warranted but did not enter an injunction at that time. It instead ordered the Executive Director of TDCJ "to propose a method of compliance" within sixty days.[15] The district court's opinion in Scott observed that "if Muslims regularly engage in communal worship without an approved religious volunteer present, evidence exists that the government's rule against Jehovah's Witnesses' meetings is not 'closely fitted' to the government's compelling interest in enforcing the [Brown] consent decree."[16]

         In the Scott litigation, Scott had also requested injunctive relief under RLUIPA. The district denied that request, reasoning that "the accommodation of an offender's religious or spiritual needs does not outweigh a prison's need to maintain order and safety, "[17] that "due deference" is to be given to prison administrators regarding "good order, security and discipline, consistent with consideration of costs and limited resources," and "that a rational connection exists between" requiring directly supervised religious gatherings "and the government's legitimate interest in prison security."[18]

         TDCJ responded to the district court's decision in Scott by promulgating Administrative Directive AD-07.30 (rev. 7) (June 30, 2014), which the parties refer to as the "Scott Plan." Under the Scott Plan, all religious gatherings of more than four inmates require direct supervision, including worship and studies by more than four Muslim inmates.[19] The Scott Plan conflicts with the 1977 consent decree that permitted Muslim inmates to congregate with only indirect supervision. Under the Scott Plan, each religious group is permitted to have a group worship service for one hour per week that is directly supervised by prison staff. Additional group religious activities are permitted if supervised by an outside, authorized volunteer.[20]

         In the present case, and as a result of the district court's conclusion in the Scott case that TDCJ had violated the Establishment clause by preferring adherents to the Religion of Islam over the Jehovah's Witness faith group, TDCJ moved to terminate the 1977 Brown consent decree pursuant to the PLRA.[21] The PLRA provides that "in any civil action with respect to prison conditions in which prospective relief is ordered, such relief shall be terminable upon the motion of any party or intervenor," if the order has been in effect for a certain period of time, unless "the court makes written findings based on the record that prospective relief remains necessary to correct a current and ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right, and that the prospective relief is narrowly drawn and the least intrusive means to correct the violation."[22]

         Pursuant to provisions of the PLRA, TDCJ's motion operated as an automatic stay of the 1977 Brown consent decree, [23] allowing TDCJ to implement the Scott Plan pending further proceedings in the district court. Accordingly, the direct supervision requirement for all religious groups in TDCJ prisons, including members of the Religion of Islam, went into effect in 2013.[24]

         After the implementation of the Scott Plan, Muslim inmates may attend a weekly, one-hour Jumu'ah service directly supervised by TDCJ chaplains or employees, but opportunities for Muslim prisoners to participate in other communal worship or studies diminished due to a dearth of Muslim volunteers from outside the prison system.[25] Protestant and Catholic prisoners, by contrast, maintained the ability to engage in group worship or study in addition to the one-hour, weekly service directly supervised by TDCJ-employees because of a relative abundance of outside volunteers.[26]

         The district court held an evidentiary hearing on TDCJ's motion to dissolve the 1977 decree. That decree had twenty-two specific provisions, twenty of which the district court terminated without objection by any party. But the district concluded that two provisions were necessary to correct current and ongoing violations of the federal Constitution and to give effect to statutory rights of Muslim inmates, effectively rejecting the Scott Plan as it applies to Muslim inmates.[27] One of the two provisions of the 1977 consent decree that the district court refused to dissolve, found in section III(15) of the decree, required TDCJ officials to "[a]llow adherents to the Religion of Islam at each unit of the Texas Department of Corrections equal time for worship services and other religious activities each week as is enjoyed by adherents to the Catholic, Protestant and Jewish faiths."[28] The other provision that the district court ordered be left intact is found in section III(8) of the consent decree, which required TDCJ officials to permit inmates professing adherence to the Religion of Islam to congregate for worship, study, and other religious functions and activities under the supervision of an inmate leader whenever an ordained Islamic minister is unavailable at a regularly scheduled time for worship and study.[29]

         The district court focused on three required practices of the Islamic faith-Jumu'ah, Taleem, and Qur'anic studies-that necessitate group gathering.[30] The district court concluded that the one hour of direct supervision per week allotted to the roughly 6, 775 Muslim inmates in Texas state prisons by TDCJ staff under the Scott Plan is not enough time to meet the requirements of Jumu'ah, Taleem, and Qur'anic studies, [31] and that the number of Muslim chaplains employed by the TDCJ, and of available Muslim volunteers, is insufficient to provide adequate group study and worship.[32] The district court found that by contrast, Christian inmates are able to attend an average of six hours of religious gatherings per week, due to the large number of Christian volunteers available to supervise such assemblages directly.[33] The court concluded that "Jewish inmates are specifically assigned to units" that are in closer proximity to prospective volunteers, and Native American inmates are assigned to a specifically designated unit to facilitate access to one another and to enhance Native American religious activities.[34] The TDCJ has not assigned Muslim prisoners to specifically designated units.[35]

         The district court held that the Scott Plan and its direct supervision requirement result in violations of three different federal rights. Specifically, the district court held that the Scott Plan (1) unjustifiably imposes a substantial burden on Muslim inmates' religious exercise, thereby violating RLUIPA;[36] (2) restricts Islamic religious exercise in violation of the Free Exercise Clause of the First Amendment;[37] and (3) disfavors Islam and favors other faiths, violating the Establishment Clause of the First Amendment.[38]Subsequently, the district court awarded attorneys' fees in favor of Brown and a group of Muslim inmates who intervened in the case (the Inmate Intervenors) as prevailing parties.[39]

         The TDCJ appeals both the district court's denial of its motion to terminate the consent decree and the award of attorneys' fees. A motions panel of this court ordered that the district court's judgment on the merits be stayed pending appeal.[40]


         We have held that "[t]he application of the relevant sections of the PLRA requires the district court to make a finding of an ongoing constitutional violation, which is a mixed question of law and fact, "[41] and that "[w]e review mixed questions of law and fact de novo."[42] with the definite and firm conviction that a mistake has been committed.'"[43]


         "The PLRA strongly disfavors continuing relief through the federal courts; indeed, its fundamental purpose was to extricate them from managing state prisons."[44] As noted above, prospective relief like the consent decree at issue in this case must be terminated on the motion of any party unless such relief "remains necessary to correct a current and ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right, and . . . is narrowly drawn and the least intrusive means to correct the violation."[45] The 1977 consent decree applies to the entire TDCJ prison system and "terminates unless the district court makes [the requisite] findings" and "also finds ongoing, system-wide violations."[46] We have held that "the burden of proof to support these findings is obviously on the party opposing termination."[47]

         The district court found violations of RLUIPA, the Free Exercise Clause, and the Establishment Clause. It is important to bear in mind in our analysis that our focus ultimately remains on the PLRA. No inmate has brought a freestanding claim that he is entitled to injunctive relief under RLUIPA or the Constitution.

         The relief granted by the district court was not limited to continuing the 1977 Consent Decree in effect. The PLRA does not authorize the district court to expand the consent decree. The district court erred in doing so. The remaining inquiry under the PLRA is whether there is an ongoing violation of a federal right.


         We first consider RLUIPA. It states, in relevant part:

No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person-
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.[48]

         RLUIPA prevents government practices that substantially burden the religious exercise of an inmate unless the practice furthers a compelling governmental interest and is the least restrictive means of doing so.

         Initially, "it falls to the plaintiff to demonstrate that the government practice complained of imposes a 'substantial burden' on his religious exercise."[49] To demonstrate a substantial burden, "the plaintiff must show that the challenged action 'truly pressures the adherent to significantly modify his religious behavior and significantly violate his religious beliefs.'"[50] If the inmate makes this showing, the burden shifts to the government "to show that its action or policy is the least restrictive means of furthering a compelling interest."[51] In making this assessment, we must give "due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources."[52] However, the Supreme Court has made clear that even when prison regulations are at issue, "RLUIPA requires [courts] to 'scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants' and 'to look to the marginal interest in enforcing' the challenged government action in that particular context."[53]

         The district court held that (1) Muslim prisoners' religious exercise is "substantially burdened" by the Scott Plan's direct supervision requirement because it causes them to forgo group religious practices that they sincerely believe are required by their faith, [54] (2) the State has failed to prove that the policy's application to Muslim prisoners actually advances prison security or any other "compelling governmental interest, "[55] and (3) even if direct supervision does advance a compelling interest, it is not the least restrictive means of doing so.[56] Brown, the Inmate Intervenors, and several amici contend on appeal that the Scott Plan's direct supervision requirement imposes a substantial burden because it limits Muslim inmates to one hour of group religious services per week, which, they assert, is insufficient time to complete weekly Jumu'ah, Taleem, and Qur'anic studies as required by their religious beliefs. They also assert that permitting indirect supervision of these services does not raise security issues and that TDCJ could provide direct supervision at little additional cost.

         TDCJ contends that it is not the direct supervision policy that limits opportunities for Muslim inmates to participate in Taleem and Qur'an Studies but instead, it is a lack of volunteers to supplement the teaching and worship opportunities supervised by TDCJ Muslim chaplains and TDCJ staff. Precedent from this court supports such a conclusion. TDCJ's policy allows Muslim volunteers to conduct services and studies for and with inmates. But, as the district court expressly found, "despite specific and concerted efforts over the past years to recruit volunteers to participate in Muslim religious activities at the prison, TDCJ has been unsuccessful in securing a significant number of Muslim religious volunteers."[57]

         This court has considered several challenges under RLUIPA to TDCJ's policy that religious worship and study when more than four inmates are involved must be directly supervised by a TDCJ employee or a TDCJ-approved volunteer.[58] In Adkins v. Kaspar, the plaintiff was a member of the Yahweh Evangelical Assembly (YEA).[59] Like the Muslim inmates in the present case, he complained that the direct supervision requirement, together with a shortage of outside YEA volunteers, deprived him of adequate opportunities for group religious practice.[60] This court held that the lack of opportunity for group religious practice resulted "not from some rule or regulation that directly prohibits such gatherings" but instead "from a dearth of qualified outside volunteers available to go to [the prison]."[61] We concluded in Adkins that the TDCJ's policies had not imposed a substantial burden on the plaintiff.[62]

         Subsequently, in Baranowski v. Hart, an inmate had protested the recurring failure of one of the TDCJ's prisons to allow for group religious services on Jewish holy days.[63] This court took note of the fact that on each of the days on which religious services were not held, "no rabbi or approved religious volunteer was available to lead the services."[64] As in Adkins, the court held that the lack of volunteers, and not the direct supervision requirement, caused the religious gatherings to be infrequent, such that "the acts of Defendants regarding religious services have not placed a substantial burden on Baranowski's free exercise of his Jewish faith, within the contemplation of RLUIPA."[65]

         These decisions did not adopt a per se rule. We said in Adkins that "whether the government action or regulation in question imposes a substantial burden on an adherent's religious exercise" "requires a case-by-case, fact-specific inquiry."[66] In Mayfield v. Texas Department of Criminal Justice, [67] an Odinist submitted affidavits averring that group worship meetings known as Blotar should be conducted on a monthly basis at a minimum.[68] There was evidence that outside volunteers came only once every 18 months to conduct Blotar, and Odinists inmates were "unable to conduct Blotar on a regular basis because the TDCJ requires that they have a security-trained, religious volunteer present for their group meeting."[69] But there was also evidence in Mayfield that the volunteer policy was not imposed uniformly because an exception was made for Muslim inmates in order to comply with the consent decree that is at issue in the case now before us.[70] Pertinent to our analysis in the present case, we said in Mayfield that "[b]ecause the volunteer policy was implemented uniformly in the Adkins case, it was not the policy imposing the burden on Adkins' religious practice, but instead the lack of qualified volunteers."[71]

         The present case differs materially from Mayfield because in the case before us, there is no evidence that "calls into question the uniformity of the policy's application."[72] The direct supervision requirement under the Scott Plan has been imposed uniformly, as it was in Adkins. Accordingly, applying our precedent as we are bound to do, it is not the Scott Plan that has imposed a burden on Muslim inmates' religious exercise. It is the lack of volunteers who adhere to the faith of Islam.


         The district court also held that the Consent Decree remains necessary to remedy ongoing violations of the Free Exercise Clause.[73] The district court recognized that "the Fifth Circuit Court of Appeals has upheld TDCJ's volunteer policy," citing Baranowski, Adkins, and an unpublished opinion, [74]but concluded that we had done so "on a record very different from the ones in the present case."[75] We disagree with the district court's conclusions in that regard.

         The district court did not discuss or cite the Supreme Court's decision in O'Lone v. Estate of Shabazz, [76] in which Muslim inmates brought challenges based on the Free Exercise clause to "policies adopted by prison officials which resulted in their inability to attend Jumu'ah, a weekly Muslim congregational service regularly held in the main building" of the prison on Fridays.[77] The prison officials in O'Lone refused to exempt Muslim inmates from working outside the main building on Friday afternoons, and therefore, they were unable to attend Jumu'ah. The Supreme Court held that this "did not violate respondents' rights under the Free Exercise Clause of the First Amendment."[78] The Supreme Court applied the standard of review set forth in Turner v. Safley, [79] ultimately concluding that "[w]e take this opportunity to reaffirm our refusal, even where claims are made under the First Amendment, to 'substitute our judgment on . . . difficult and sensitive matters of institutional administration . . . for the determinations of those charged with the formidable task of running a prison."[80]

         Under Turner, we consider:

(1) whether a "valid, rational connection exists between the prison regulation and the legitimate governmental interest put forward to justify it," (2) whether there exist "alternative means of exercising the fundamental right that remain open to prison inmates," (3) what "impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally," and (4) whether there is an "absence of ready alternatives" to the regulation in question.[81]

         Applying these factors to the case presently before us, we cannot agree with the district court that the TDCJ's direct supervision requirement fails Turner's rationality review and violates the Free Exercise clause.


         The Supreme Court explained in Turner that in analyzing whether there is a "'valid, rational connection' between the prison regulation and the legitimate governmental interest put forward to justify it, . . . the governmental objective must be a legitimate and neutral one."[82] The Court continued, "[w]e have found it important to inquire whether prison regulations restricting inmates' First Amendment rights operated in a neutral fashion, without regard to the content of the expression."[83] The Scott Plan is uniform. It applies to all religions, without regard to the what beliefs or principles are held or espoused.[84]

         The TDCJ contends that the legitimate government interest at stake in imposing the direct supervision requirement is ensuring prison security, especially in light of the TDCJ's limited resources. It asserts that direct supervision, including that undertaken by volunteers, deters wrongful behavior, and that the direct supervision provided by volunteers differs from that provided by inmates. Volunteers are more likely to report violations than inmates. These common-sense justifications are sufficient to establish a rational connection between direct supervision and prison security.[85] "[I]t cannot seriously be maintained that 'the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational.'"[86]

         These justifications are also amply supported by the record, notwithstanding the district court's conclusion that direct supervision of Muslim services is not necessary to promote safety. The district court's focus solely on Muslim services was in error. The question is whether the TDCJ's policy, which applies to all inmates, not just Muslim inmates, is rationally connected to prison security and safety. There is unrefuted evidence that security issues arise during directly supervised worship. It stands to reason that opportunities for disruption or violence would increase if worship services were only indirectly supervised. Though the district court refused to permit TDCJ to offer evidence that fights or assaults at services other than Muslim services had occurred, [87] the record nevertheless establishes that direct supervision of inmate religious gatherings of more than four individuals furthers legitimate government interests. The district court's findings and conclusions to the contrary are not supported by the record or common sense.

         It is undisputed that when the consent decree regarding Muslim inmates was in effect, "[a]ll the other faith groups were [directly] supervised," which meant a chaplain, volunteer or a correctional officer was in the room with the inmates, "not just someone roving, walking by, checking on them frequently."[88] When the consent decree was in effect, TDCJ required direct supervision of the more than 132, 000 non-Muslim inmates. Presently, under the Scott Plan, TDCJ requires direct supervision of all inmates when worshiping because otherwise, as a TDCJ employee testified, "we'd have large amounts of offenders meeting without direct supervision, and anything can happen in a prison," such as "escape attempts," "staff assaults," and "inmate assaults."[89] The evidence is undisputed that offenders with histories of serious criminal conduct attend worship services. "Some of these offenders are G4 offenders that have escape histories, they have assault histories, they're confirmed gang members even though they're out in the offender population, they have a history of staff assaults, inmate assaults. You've got all these offenders coming into one area of the facility to congregate, and anytime you have a large group of offenders and even sometimes a small group of offenders, that's areas that we need to directly supervise for public safety, for the safety of staff and the safety of the inmate population."[90]

         There was testimony that having personnel "in there to respond to that when something's happening during a service, "[91] rather than camera surveillance, is necessary because a person in the room is "getting the tone of the service or the cell block and watching the offenders, if they're grouping up or, you know, just how the offenders are acting that particular day," and "[y]ou're not going to get that through a video surveillance system."[92]

         An expert witness who was formerly a warden in Florida testified that altercations occurred during religious services in the units he supervised, some of which involved "a serious incident of bodily harm."[93] This witness also testified that if inmates are leading a service, security is needed, and having a person in the room observing them is the "best form" of security.[94] He also confirmed that "some offenders have custody levels that make them dangerous"; when they are present in religious services, it is important to have security; and that the "best way" of supervision in those cases is direct supervision.[95] But more broadly, he testified that in light of his experience, a security presence in the form of a volunteer or a chaplain observing and directly supervising the inmates in the service "needs to be there in a religious service to prevent inmates from conducting any disruptive or criminal activity in a service."[96]

         A TDCJ Muslim inmate who testified at the hearing confirmed that he has seen "fights break out" at "church services" other than Muslim services, and that the prison in which he was incarcerated was "locked down" as a result of "fights [that] have taken place in church services."[97]

         There was also unrefuted testimony from TDCJ that "we have a Prison Rape Elimination Act that we have to come into compliance with. There are almost 50 standards that we're trying to come into compliance with, and the only way we can come in compliance with that is to make sure that we have appropriate supervision of our offender population."[98] Relatedly, the National Prison Rape Elimination Commission Report 6 (June 2009) recommends direct supervision of inmates should be used "wherever possible" "because it is the most effective mode of supervision for preventing sexual abuse and other types of violence and disorder."[99] That Commission made the following finding and recommendation:

Supervision is the core practice of any correctional agency, and it must be carried out in ways that protect individuals from sexual abuse. The Commission believes it is possible to meet this standard in any facility, regardless of design, through appropriate deployment of staff. Direct supervision, which features interaction between staff and prisoners, should be used wherever possible because it is the most effective mode of supervision for preventing sexual abuse and other types of violence and disorder.[100]

         The district court's own findings reflect that if TDCJ were to permit adherents of each faith to gather in groups of more than four with only indirect supervision, security risks would exist. The district court recognized "there is evidence that the more serious incidents that occurred at or near religious activities occurred during Catholic and Protestant services even though a Chaplain, prison guard, or outside volunteer was present."[101] Yet, the district court concluded that this was not evidence of a need for direct supervision of inmates during religious activities.

         The district court's conclusion in this regard appears to be based upon a "Finding of Fact" that the "practice of permitting inmate-led services, as described in the Consent Decree, was the 'usual' practice in prison systems."[102] The district court cited the testimony of three witnesses in support of this conclusion, but read in context, each witness said that in the wake of the Consent Decree in the present case, prisons in some other jurisdictions had adopted the provisions of the Consent Decree for Muslim inmates, not for inmates of other faiths.

         The district court's opinion states:

McAndrew testified that prisons use methods other than direct supervision to ensure security at religious meetings, such as roving patrols and visual observations through windows. He also testified that, in his experience, the practice of permitting inmate-led services, as described in the Consent Decree, was the "usual" practice in prison systems.[103]

         This is incorrect. McAndrew testified that after the consent decree in the present case was entered, an unspecified number of prisons used the consent decree as a model for a policy regarding Muslim inmates and have allowed indirectly supervised, inmate-led religious meetings by Muslim inmates.[104] McAndrew did not testify that indirect supervision is a "usual" practice with regard to any other faith group.

         The district court also relied upon the testimony of a former Chaplain in New York, Ibrahim Ezghair. Ezghair recounted that a state prison system less than half the size of the Texas system had adopted and implemented the terms of the consent decree at issue in the present case and had "experienced no security or safety threats or events involving inmate-led or indirectly supervised Muslim religious activities."[105] The district court characterized another Muslim Chaplain's testimony, that of Chaplain Shabazz, as saying that "many prison systems throughout the United States" permit indirect supervision of inmate-led religious activities by Muslims, and that the witness was "unaware of any safety concerns."[106] This evidence is not only conclusory and lacking in specificity, it is myopically focused on Muslim services. It is not evidence that indirect supervision of religious services in prisons as a general proposition presents no safety concerns. None of these witnesses testified that prisons have permitted or reasonably should permit virtually all worship or religious activities by inmates to occur with only indirect supervision.

         In a letter to this court, the plaintiffs assert that "the Consent Decree regime is the model followed by penal institutes throughout the nation." The plaintiffs do not provide any specificity in this regard. They cite to one page in the district court's opinion in this case, [107] which in turn relied on conclusory testimony, just discussed above, from two witnesses regarding indirect supervision of Muslim religious gatherings adopted by some prison systems in the wake of the consent decree that is presently at issue.[108] None of that testimony averred that indirect supervision of religious gatherings for inmates has been widely accepted or even that indirect supervision of Muslin inmates, admittedly modeled after the consent decree in the present case, has been widely accepted.

         The plaintiffs' letter to this court also cites an amicus brief by four individuals who denominate themselves "Former Prison Wardens." That brief relates those individuals' own experiences, which amounts to unsworn testimony that is not part of the record in this case and is not subject to cross-examination. In support of the assertion that "monitoring through indirect supervision is a common method of ensuring security for inmate-led worship," the amicus brief cites regulations in four jurisdictions.[109] The existence of such policies in four states does not establish that the Federal Government, the vast majority of States, or even a bare majority of the States, have such a policy.

         We also know from court decisions around the country that at least seventeen other jurisdictions do not permit inmates to gather for religious exercise without direct supervision.[110] "'While not necessarily controlling, the policies followed at other well-run institutions would be relevant to a determination of the need for a particular type of restriction.'"[111]

         The amicus brief additionally asserts that an expert witness at the hearing, Ron McAndrew, "testified that allowing indirectly supervised, inmate-led services was a 'usual' practice in other prison systems." This is misleading. McAndrew testified that after the consent decree in the present case was entered, an unspecified number of prisons used the consent decree as a model for a policy regarding Muslim inmates and have allowed indirectly supervised, inmate-led religious meetings by Muslim inmates.[112] McAndrew did not testify that this is a "usual" practice with regard to any other faith group.

         The amicus brief also quotes snippets of testimony from another expert witness at the hearing, Alexander Taylor, asserting that he "testified that 'the most common practice . . . is where the chaplain in the building is able to do that roving type of observation, sitting in as needed . . . .'" But read in its entirety, that was not the import of Taylor's testimony. He said a chaplain roving during services "sit[s] in as needed, and sometimes through entire services."[113] But more importantly, he testified that though such a roving practice is employed, "oftentimes" it is "not" the most common practice.[114] He then explained that "[q]uite frequently" there is "direct supervision, having someone physically in the room."[115] He testified that, in lower security institutions, "constant supervision isn't quite as well practiced."[116] "[D]irect supervision, having someone physically in the room, is utilized in religious services . . . quite frequently."[117] "[S]pecific circumstances" when direct supervision is used depends on the custody level of the institution, but even in lower security units, when there are large numbers of inmates, a security officer would be present:

[E]very institution has a profile for the type of custody levels that they embrace. And the higher the custody level, the more difficult the prison population is, the more likely you will have constant supervision.
With the less, lower security level institutions, then the constant supervision isn't quite as well practiced. In there, you would have somebody, you know - a chaplain would be there, and the service may take part while the chaplain is moving from room to room. But another reason for the provision of a security officer is simply the numbers. When there are large numbers of inmates, we want to have appropriate supervision.[118]

         Taylor made clear that when he was a chaplain in a Florida prison, there was indirect supervision in an inmate-led service only "[w]hen there are smaller services and there is [sic] only a few inmates."[119] At the time of the hearing, there were 6, 775 Muslim inmates[120] in 96 prisons across Texas.[121] Averaging the number of inmates across 96 prisons would mean that 70 Muslim inmates in each prison would potentially attend services and other religious activities. We know from some of the findings of the district court that in at least one prison, in Childress County, there were 53 Muslim inmates.[122] But if only 53 inmates in each prison desired to attend group worship or study, that is a significant number.

         Taylor also testified that, based on his experience in Texas and Florida, when "inmates are leading a service . . . having someone there in person observing them" would be "the best form" of security.[123] He also confirmed that in services in which "some offenders who have a custody levels that make them dangerous" are present, the "best way" of supervising is "direct supervision."[124]He summarized and reiterated his opinion that direct supervision "needs to be there in a religious service to prevent inmates from conducting any disruptive or criminal activity in a service."[125]

         The district court's "Findings of Fact" state that "[d]uring the thirty-five years the Consent Decree was in effect and being adhered to by TDCJ, there has been no evidence of a single reported or known incident involving a serious security risk to the prison, its staff, inmates or the public at large involving inmate-led Muslim religious activity."[126] The district court then reasoned that "[i]n other words, adherence to Sections III(8) and III(15) of the Consent Decree," which exempts only Muslim inmates from direct supervision, "has not presented or posed a threat to the security or safety of the institution or the public."[127]

         The implicit assumption underlying this ruling, and the plaintiffs' arguments, is that Muslim inmates have been relatively peaceful in the past when indirectly supervised, and therefore, all present and future Muslim inmates, unlike inmates of other faiths, pose no threat to security, safety or order within the TDCJ system of 111 prisons. Muslim inmates therefore must be permitted to conduct inmate-led religious gatherings without direct supervision. This rationale is problematic for at least two reasons: (1) it ignores evidence that there is a need for direct supervision of Muslim inmates, and (2) it gives disparate, preferential treatment to Muslim inmates over inmates of other faiths.

         Courts have recognized that permitting inmates to lead worship services without appropriate supervision can create hierarchies that are detrimental to a prison's discipline structure. The Seventh Circuit, for example, has observed that "allow[ing] inmates to conduct their own religious services [is] a practice that might not only foment conspiracies but also create (though more likely merely recognize) a leadership hierarchy among the prisoners."[128] Relatedly, the Supreme Court credited testimony in O'Lone v. Estate of Shabazz that allowing "'affinity groups' in [a] prison to flourish" leads to "'a leadership role and an organizational structure that will almost invariably challenge the institutional authority'" and that "special arrangements for one group would create problems as 'other inmates [see] that a certain segment is escaping'" a prison requirement applicable to all others.[129] The "affinity group" in O'Lone was comprised of Muslim inmates seeking exemption from work details on Friday afternoons in order to attend Jumu'ah services.[130]

         In the case before us, there was evidence of hierarchies among Muslim inmates in the TDCJ system. TDCJ Muslims inmates testified "[we would] police ourselves"[131] when problems arose during inmate-led services that were only indirectly supervised. Inmate worship leaders would prohibit an inmate who behaved inappropriately from attending services for a period of time[132]and did not report incidents to prison officials because "we take care of ourselves."[133] Accordingly, for those who attended indirectly supervised religious gatherings, whether a Muslim inmate would be permitted religious exercise was left to the sole discretion of another inmate, and TDCJ officials were kept unaware of disciplinary issues. It is detrimental to the rights of inmates when they are disciplined by other inmates, and such a system undermines the prison's disciplinary and oversight functions.

         The district court did not discuss this evidence. Nor did the district court discuss unrefuted evidence that violence occurred during a Muslim worship service even though that service was directly supervised by a TDCJ employee who was able to intervene immediately.[134] In another incident, an intense argument among Muslim inmates at a religious gathering resulted in a response team from the prison being called due to the potential for violence and harm to those present at the worship service, though no physical injury occurred before the response team arrived to quell the disorder.[135] There was also evidence of other disruptions in Muslim religious gatherings that did not result in physical violence but were disruptions, nevertheless.

         The district court reasoned that volunteers are not security personnel and "the presence of an outside volunteer [does not] further [TDCJ's] compelling state interest in prison security."[136] The record as a whole does not support this conclusion.

         There was unrefuted testimony that prisons across the country utilize volunteers to supervise religious exercise by inmates because volunteers do have a positive impact on maintaining security, safety, and orderliness.[137] An expert witness testified that, in his opinion, a volunteer or a chaplain "needs to be there in a religious service to prevent inmates from conducting any disruptive or criminal activity."[138] This witness also testified that "volunteers do conduct some of the similar duties like a correctional officer who watches offenders . . . they watch offenders."[139] Though volunteers do not have to power to discipline or search inmates or physically restrain them, an expert witness testified that he would be satisfied with volunteer-provided security through direct supervision because they can inform staff if something were to happen within the service "that shouldn't be happening" and because when a volunteer is present, "the offenders would be more likely to stay with the topic and with what should be said instead of going off on tangents or discussing things that maybe were not religious in nature."[140] There was other expert testimony that a volunteer or chaplain can provide observations during religious gatherings of inmates as well as a corrections officer can provide observations.[141]

         TDCJ conducts background checks of volunteers and provides training regarding security issues, what to be mindful of and look for when in an inmate population and in services, what to do if a fight or riot erupts.[142] TDCJ volunteers are trained to report any security breaches to prison officials.[143]Muslim inmates attending indirectly supervised religious activities have not always reported misbehavior or security breaches because of "the offender code and telling on each other and as to labeling each other as a snitch."[144]

         The district court's conclusion that "[t]here is no evidence that the presence of a volunteer during a Muslim religious activity at TDCJ increases prison safety or security in any way"[145] failed to consider that the evidence on this point is limited. The TDCJ inmates who testified regarding Muslim religious exercise said that, due to the paucity of Muslim volunteers, no volunteers were in any of the services or religious activities that they attended.[146] The evidence was extremely sparse, if not non-existent, as to the impact volunteers might have had if they had been available to supervise Muslim inmates' religious exercise. As already discussed, because the Muslim inmates "take care of their own," we do not know what issues arose that could have been obviated by the presence of volunteers.

         There is a rational connection between the TDCJ's indirect supervision requirement and the governmental interest in providing security in prisons.


         As to Turner's second consideration-Muslim inmates' "alternative means of exercising" their religion beliefs[147]-"[t]he pertinent question is not whether the inmates have been denied specific religious accommodations, but whether, more broadly, the prison affords the inmates opportunities to exercise their faith."[148] In Adkins we upheld the direct supervision requirement against a Free Exercise challenge because the record reflected that "(1) Adkins had access to religious materials; (2) he and other YEA inmates were not required to work on the Sabbath; (3) video and audio tapes were made available on Mondays to all YEA members; and (4) YEA members were permitted to hold and attend live services" when a volunteer was available, approximately monthly.[149] Here, the record demonstrates, and none of the plaintiffs contest, that Muslim TDCJ inmates are permitted to attend a weekly Jumu'ah service, [150] significant accommodations are made for religious festivals such as Ramadan, [151] and Muslim inmates are permitted to keep religious objects, including a Qur'an, a prayer rug, and prayer beads, in their cells for personal prayer and study.[152] Muslims inmates may gather in groups of four or fewer to worship and study. All Muslim inmates have access to a diet that conforms to their faith's restrictions. While Muslim inmates may not be permitted to engage in as many religious gatherings with the numbers of inmates as they wish, we conclude, as in Adkins, that they have alternative means of exercising their religious rights.


         The third Turner consideration addresses the impact the accommodation sought would have on other inmates and prison staff and on the allocation of prison resources, generally. We conclude, as we did in Adkins, that continuing to allow Muslim inmates the freedom to congregate without direct supervision "could 'spawn a cottage industry of litigation and could have a negative impact on prison staff, inmates and prison resources.'"[153] Furthermore, "if [Muslim inmates] were accommodated and other similarly situated small religious groups were not, [Islam] could appear to be favored over the others, a perception that could have a negative effect on prison morale and discipline."[154]

         The evidence was unrefuted that TDCJ is short-staffed in spite of sustained efforts to hire security personnel.[155] The TDCJ offered evidence that the situation was "critical." At the time of the hearing, the TDCJ was "3, 000 officers short," and "spending 5 million plus in overtime a month."[156] In some of the TDCJ's "units in West and South Texas," it was "critically short," and "a very serious situation."[157] "[W]e're doing all we can, as [others testified], about trying to recruit new staff," and "[w]e're doing all we can to try to retain the staff that we have on our facilities."[158] Priority is given to positions such as "a dorm housing rover or a cell block rover, an inside picket officer, . . . central control officer, our outside guard towers, things like that, those things that are crucial to the safety and security of the institution."[159] The TDCJ offered evidence that it does not have staff to provide more than one hour of directly supervised religious activities to all inmates seeking to engage in religious activities beyond the one-hour weekly services that are directly supervised by TDCJ employees or even solely to Muslim inmates.

         The district court's response to this evidence was that the TDCJ should cease training and organizing volunteers for religious gatherings in prisons. But the costs that would be saved were not quantified, and there was no evidence that requiring TDCJ to cease and desist from permitting volunteers in the prisons would free sufficient time for TDCJ employees to provide an additional hour of direct supervision of Muslim religious activities each week, much less the additional hours that the district court would require. Requiring TDCJ to cease allowing volunteers would also be contrary to the district court's finding and unrefuted evidence that volunteers have a substantial, positive impact on inmates and lessen the potential for violence in the prisons.


         The fourth consideration under Turner's standard of review is whether there is an absence of ready alternatives to the TDCJ's direct supervision requirement. We have examined alternatives above and do not repeat that discussion here.

         In sum, we conclude that the Scott Plan poses no violation of the Free Exercise Clause that would render the consent decree, and its allowance of indirect supervision of Muslim religious gatherings, "necessary to correct a current and ongoing violation of the Federal right."[160]


         The district court concluded that the TDCJ's regulations and policies favored Catholic, Jewish, Native American and Protestant inmates over Muslim inmates.[161] Citing the Supreme Court's decision in Larson v. Valente, which involved a state statute imposing registration and reporting requirements on religious organizations that solicited more than fifty percent of their funds from nonmembers, [162] the district court concluded that "when it is claimed that a prison regulation violates an inmate's Establishment Clause rights it must be subjected to strict scrutiny analysis and is upheld only if it is 'closely fitted' to further a 'compelling government interest.'"[163] The TDCJ contends that the more deferential standard articulated in Turner v. Safley[164]applies. I first consider the appropriate standard for analyzing the inmates' Establishment Clause claims.


         The Supreme Court has not directly addressed the standard of review that applies when inmates assert a violation of the Establishment Clause, and more particularly, whether the applicable standard may depend upon the specifics of the claim. The Supreme Court has recognized, however, that the "constitutional prohibition of denominational preferences is inextricably connected with the continuing vitality of the Free Exercise Clause."[165]

         As discussed in Section V above, O'Lone v. Estate of Shabazz analyzed Free Exercise claims and "consider[ed] once again the standard of review for prison regulations claimed to inhibit the exercise of constitutional rights."[166] In O'Lone, prison regulations precluded Muslim inmates assigned to outside work details from attending Jumu'ah.[167] The Third Circuit had held that the prison's "policies could be sustained only if: 'the state . . . show[s] that the challenged regulations were intended to serve, and do serve, the important penological goal of security, and that no reasonable method exists by which [prisoners'] religious rights can be accommodated without creating bona fide security problems.'"[168] The Supreme Court rejected this standard of review. "We think the Court of Appeals['] decision in this case was wrong when it established a separate burden on prison officials to prove 'that no reasonable method exists by which [prisoners'] religious rights can be accommodated without creating bona fide security problems.'"[169]

         The Court explained at length in O'Lone why the "reasonableness test" set forth in Turner v. Safley, rather than strict scrutiny, applied.[170] The O'Lone decision then admonished, "[t]o ensure that courts afford appropriate deference to prison officials, we have determined that prison regulations alleged to infringe constitutional rights are judged under a 'reasonableness' test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights."[171] Referring to Turner, the Court said, "[w]e recently restated the proper standard: '[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.'"[172] The Court continued, "[t]his approach ensures the ability of corrections officials 'to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration,' and avoids unnecessary intrusion of the judiciary into problems particularly ill suited to 'resolution by decree.'"[173] The regulations at issue in Turner included restrictions on the rights of inmates to marry.

         However, Turner's "reasonableness" standard of review does not apply to all claims that prison policies are unconstitutional. The Supreme Court held in Johnson v. California that "strict scrutiny is the proper standard of review"[174] for "an equal protection challenge" to a state prison's "policy of racially segregating prisoners in double cells in reception centers for up to 60 days each time they enter a new correctional facility."[175] The Court observed that "[w]e have never applied Turner to racial classifications," and "[w]e think this unsurprising, as we have applied Turner's reasonable-relationship test only to rights that are 'inconsistent with proper incarceration.'"[176] The Supreme Court held in Johnson that "[t]he right not be discriminated against based on one's race is not susceptible to the logic of Turner. It is not a right that need necessarily be compromised for the sake of proper prison administration."[177]

         At least two Circuit Courts of Appeals have applied a standard to certain categories of Establishment Clause claims that differs from Turner's standard of review.[178] In those cases, prison officials allegedly coerced inmates to participate in a program founded on religious tenets. No one contends that the standard applied in those cases is appropriately applied to the facts of the present case.

         The question before us is whether an inmate's claim that prison policies afford some faiths more favorable treatment than others implicates "a right that need [not] necessarily be compromised for the sake of proper prison administration, "[179] to which strict scrutiny would apply, or whether such an Establishment Clause claim is instead grounded in "certain privileges and rights [that] must necessarily be limited in the prison context, "[180] to which Turner's more deferential standard would apply. I conclude that Turner's standard applies.

         The Supreme Court has explained that prison officials are not required to provide "identical facilities or personnel" to "every religious sect or group within a prison."[181] "A special chapel or place of worship need not be provided for every faith regardless of size; nor must a chaplain, priest, or minister be provided without regard to the extent of the demand."[182] Nevertheless, "reasonable op[p]ortunities must be afforded to all prisoners to exercise the religious freedom guaranteed by the First and Fourteenth Amendments without fear of penalty."[183]

         Prison officials, therefore, are required to facilitate opportunities for prisoners to worship or otherwise exercise religious beliefs even though, outside the prison context, such involvement would undoubtedly implicate Establishment Clause concerns. When policies ostensibly designed to honor the Free Exercise rights of inmates are challenged on the basis that they violate the Establishment Clause because the policies favor one or more faith groups over another, logic demands that Turner's standard applies. In attempting to accommodate the religious beliefs of varying faith groups in compliance with the Free Exercise Clause, prison officials must operate within a zone of "reasonableness." If policies meet Turner's reasonableness standard in effectuating the Free Exercise rights of inmates, then those policies should not be pruned or eliminated as a result of higher scrutiny under the Establishment Clause, even if those policies do not treat all faith groups precisely the same. Prison officials have been accorded some flexibility in providing Free Exercise opportunities for inmates. Inmates' opportunities for religious exercise would be diminished if a more restrictive standard were applied to Establishment Clause claims than is applied to Free Exercise claims, when the allegation is that preference has been given to inmates of one or more faiths. If prison policies are in fact balanced and meet the Turner standard, those policies are vindicating only what the First Amendment requires, and such policies do not amount to government involvement in religious matters to such an extent that the Establishment Clause is violated.

         The district court concluded that the TDCJ violated the Establishment Clause in three ways.


         The district court observed that there "is an ample supply of clerics and laymen who will volunteer to conduct meetings" for some faith groups, "but that among Muslims it has been hard to find a consistent supply of such volunteers."[184] The district court concluded that, "[i]n such circumstances, a policy that makes the availability of religious activities dependent upon the availability of outside volunteers necessarily makes it easier for one group to practice its religion over other groups."[185] Relatedly, the district court concluded that "TDCJ openly favors the Protestantism [sic] and disfavors Islam by devoting state resources to the former disproportionately."[186] The district court reasoned that "TDCJ has chosen to allocate substantially more resources to religious groups who can procure outside volunteers than for those who are unable to recruit sufficient numbers of outside volunteers to comply with AD 7.30."[187] The record is clear, however, that the disparity as to resources expended is a function of the number of volunteers, not their religious affiliations.

         There is a "valid, rational connection" between permitting volunteers to provide additional opportunities for the exercise of religious rights and "the legitimate governmental interest"[188] of prison officials in complying with their obligation to afford "reasonable op[p]ortunities . . . to all prisoners to exercise the religious freedom guaranteed by the First and Fourteenth Amendment[s]."[189] "[T]he governmental objective" in permitting volunteers into the TDCJ prisons to provide or assist with religious services and studies is "a legitimate and neutral one" that "operate[s] in a neutral fashion, without regard to the content of the expression."[190] The record is replete with evidence that inmates who participate in religious services and studies are less likely to have disciplinary issues while confined and have lower recidivism rates once released. The fact that more volunteers in the TDCJ system were Protestant or Catholic than Muslim was not due to any policy of the TDCJ. The TDCJ made efforts to recruit more Muslim volunteers, and Muslims who volunteered were treated the same as other volunteers.

         The second Turner factor is "whether there are alternative means of exercising the right that remain open to prison inmates."[191] The Muslim inmates who are the plaintiffs in this case do not seek to eliminate the volunteer policy as violative of the Establishment Clause. Nor do they ask that additional training and resources be provided to Muslim volunteers. The plaintiffs instead seek an order permitting all Muslim inmates to gather in groups of more than four without direct supervision by prison employees or a volunteer. That would not vindicate the right to have a state actor cease excessive entanglement with religion.[192] What the plaintiffs seek indicates that their complaints regarding the volunteer policy and resources devoted to implementing volunteers' access to inmates is not grounded in the Establishment Clause. If the volunteer policy were eliminated or fewer resources were expended to support volunteer efforts, inmates, including Muslim inmates, would have fewer opportunities for worship and religious study.

         The third Turner "consideration is the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally."[193] "When accommodation of an asserted right will have a significant 'ripple effect' on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of corrections officials."[194] If the volunteer policy were eliminated as violative of the Establishment Clause, inmates would be adversely impacted, but resources would no longer be spent by the TDCJ to implement the volunteer program.

         The final Turner consideration is that "the absence of ready alternatives is evidence of the reasonableness of a prison regulation."[195] "By the same token, the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an 'exaggerated response' to prison concerns."[196] The alternatives to allowing volunteers into the TDCJ prisons to facilitate religious worship and study include excluding the volunteers or paying other individuals to replace them. The first alternative would, as discussed, reduce inmates' religious exercise. The second would require considerable expenditures.

         When assessed under the Turner considerations, the volunteer policy and the resources expended to implement it are reasonably related to the TDCJ's obligation to afford inmates reasonable opportunities to exercise religious freedom.

         The district court erred in applying strict scrutiny to the claim that the volunteer policy violates the Establishment Clause because fewer Muslims volunteer than Protestants or Catholics and more resources are devoted to Protestant and Catholic volunteers than Muslim volunteers. The TDCJ's policies are facially neutral. The Larson v. Valente decision, [197] on which the district court relied, [198] explains that strict scrutiny does not "apply to laws affording a uniform benefit to all religions."[199] Seven years after Larson was decided, the Supreme Court reiterated, "Larson teaches that, when it is claimed that a denominational preference exists, the initial inquiry is whether the law facially differentiates among religions. If no such facial preference exists, we proceed to apply the customary three-pronged Establishment Clause inquiry derived from Lemon v. Kurtzman."[200] The Lemon inquiry does not employ strict scrutiny.[201] However, for the reasons considered above, we conclude that Turner, rather than Lemon, provides the proper standard of review.

         Brown argues that we should apply the Lemon test. The Supreme Court has observed that "just two years after Lemon was decided, we noted that the factors identified in Lemon serve as 'no more than helpful signposts, '"[202] and "[m]any of our recent cases simply have not applied the Lemon test."[203] The Supreme Court then proceeded to apply an "analysis . . . driven both by the nature of the monument and by our Nation's history" to a claim that a Ten Commandments monument displayed on the grounds of the Texas capitol violated the Establishment Clause.[204] The Supreme Court did not apply either strict scrutiny or the Lemon factors.[205]

         My conclusion that the Turner v. Safley standard of review[206] applies, rather than the Lemon v. Kurtzman criteria, [207] is informed by these precedents. Additionally, if applied literally, the criteria set forth in Lemon are in tension with the obligation the Supreme Court has said prison officials have to afford inmates opportunities to attend religious services and pursue religious studies. The second Lemon criterion is that the regulation's "principal or primary effect must be one that neither advances nor inhibits religion."[208] Prison policies that provide opportunities for inmates to worship and pursue religious studies have the purpose of facilitating inmates' exercise of First and Fourteenth Amendment Free Exercise rights and advance religion for those inmates who choose to participate. It is difficult to see how the Supreme Court's jurisprudence could be construed to require prison officials to facilitate religious services and studies and at the same time, to deem prison officials in violation of the Establishment Clause if they do facilitate such religious activities.

         The Lemon factors could arguably be applied with the acknowledgement that prison officials have an obligation grounded in the First and Fourteenth Amendments to afford inmates reasonable opportunities to exercise their religious beliefs. Viewed through that lens, the secular purpose of a direct supervision policy, when applied to secular as well as religious gatherings, is to maintain safety and security within a prison. The secular purpose of training volunteers who facilitate religious activities or who supervise inmates conducting or participating in religious pursuits is to comply with the constitutional obligation to provide inmates reasonable opportunities to engage in the free exercise of their religious beliefs. Viewed in light of this overarching obligation, the direct supervision policy and the training of volunteers is facially neutral and neither advances nor inhibits any particular faith. Here again, it is the paucity of Muslim volunteers as compared to Christian volunteers that results in Christian inmates having more opportunities for religious exercise. As to the third Lemon factor, a facially neutral policy that provides reasonable opportunities for inmates to exercise their religious beliefs is not excessive governmental entanglement with religion.


         The district court additionally determined that Jewish and Native American inmates were housed in a manner that facilitates the exercise of their religious beliefs, while Muslim inmates were not. The district court concluded this violated the Establishment Clause:

The fact that Jewish inmates are assigned to four particular units within the prison system specifically to bring them closer to Jewish religious volunteers and that Native American inmates are assigned to housing units specifically selected to make religions [sic] activities more available to them, while TDCJ makes no effort to house Muslim inmates in units close to the population centers where Muslim volunteers might be recruited, constitutes a clear violation of the Establishment Clause. Prison officials are deliberately favoring Jewish and Native American inmates over Muslim inmates by facilitating their access to religious activities. Thus, TDCJ has intentionally made it easier for Jewish inmates over Muslim inmates to have volunteer-led religious activities. That circumstance alone, in and of itself, constitutes a violation of the Establishment Clause."[209]

         The record does not support the conclusion that the TDCJ's policies have resulted in greater access to religious exercise for Jewish and Native American inmates as compared to Muslim inmates. There are proportionately more Muslim volunteers than Jewish or Native American volunteers. Nor does the evidence support a conclusion that large numbers of Jewish or Native American inmates are concentrated in a few prison units, even though it is undisputed that four prison units were designated as "Jewish. Nor is there support in the record for the inmates' assertion that Jewish and Native American inmates had more religious services or more access to religious activities than Muslim inmates. I consider the evidence as to each of the district court's findings or conclusion in more detail.


         The TDCJ classified nine faith groups[210] as comprising the category of "Jewish" inmates in May 31, 2013, for purposes of providing information to the parties and the district court in this litigation. That evidence, on which all parties rely, reflects that as of May 31, 2013, there were 922 Jewish inmates housed in 95 of 117 TDCJ prison units. At that time, there were no Jewish chaplains, [211] no certified volunteer chaplains' assistants, [212] "one contract Jewish Chaplain[], "[213] and 15 Jewish or Hebrew volunteers.[214] That is a ratio of one chaplain or volunteer to approximately 58 inmates. Though the district court concluded that "Jewish inmates are specifically assigned to units in order that they are closer to prospective volunteers, "[215] if that were the intent (and there is no evidence that it was), then significant numbers of Jewish volunteers did not materialize.

         By comparison, the undisputed TDCJ data reflects there were 6, 775 Muslim inmates (comprised of 12 different Muslim faith groups identified by TDCJ inmates) as of May 31, 2013, [216] who were confined in 113 of the 117 TDCJ units.[217] There were five Muslim chaplains as of that date, [218] no certified volunteer chaplain's assistants, [219] and 222 Muslim volunteers.[220] That results in a ratio of one volunteer or chaplain to approximately 30 Muslim inmates.

         A TDCJ employee testified that there have been four units designated for "Jewish" inmates, [221] and one of these was also a "Kosher" unit.[222] The record is sparse as to why four units were designated as "Jewish", and there is no evidence in the record as to how inmates are chosen to be assigned there. The record reflects that the Wynne Unit was designated as a Jewish unit, but the names of the other three units do not appear in the record. A Muslim chaplain and a non-Roman Catholic chaplain were the two chaplains assigned to the Wynne Unit.[223] It housed 2592 inmates who had expressed a faith preference, of whom 28 were Jewish (approximately 1%), 135 were Muslim (approximately 5.2%), and 48 were Native American (1.6%).[224] The Muslim chaplain testified that he did not know whether the reason that the Wynne Unit was designated as a "Jewish" unit was so that "volunteers might be more available to the urban areas."[225] He said that it was his responsibility to "make sure" that the Jewish inmates at the Wynne Unit "have their services" and "their holidays" and that "if they have any problem, they come to me."[226]

         As to the other three "Jewish" units, it is clear that none of them housed a large percentage of Jewish inmates. From an analysis of the Parties Joint Exhibit 16, it can be determined that at most, 21% of the 922 Jewish inmates (as many as 196) were housed within four units designated for Jewish inmates.[227] The remaining 79% or more of Jewish inmates were housed in 94 other TDCJ units.

         There was testimony that an unspecified number of Native Americans have been assigned to an unspecified number of units to make communal worship feasible.[228] As of May 31, 2013, there were 4, 473 Native American inmates[229] housed in 108 of 117 TDCJ units.[230] Native American inmates were widely distributed among these units.[231] They were not concentrated in a small number of prison units. There was one Native American chaplain, [232] no certified volunteer chaplain's assistant, [233] and there were six Native American volunteers.[234] That results in a ratio of 1 chaplain or volunteer to 744 Native American inmates. Native American inmates had access to far fewer chaplains and volunteers than Muslim inmates.

         The district court concluded that TDCJ had assigned "Muslim inmates[] primarily to housing units that are long distances from population centers where a significant numbers [sic] of Muslim civilians reside."[235] The district court detailed evidence of the number of Muslim inmates confined in particular counties as compared to the Muslim populations in those counties.[236] The district court concluded, "[w]hether it is the intent of the TDCJ to assign Muslim inmates to areas in the state where Muslim volunteers do not reside that, nevertheless, is the effect of unit assignments."[237] These findings imply that TDCJ could and should house Muslims in prison units closer to larger populations of Muslims. But there is no evidence that there are any TDCJ prison units that are close to larger populations of Muslims or that it is physically feasible to house 6, 775 Muslim inmates near larger populations of Muslims.

         Brown's brief in this court implicitly acknowledges that none of Texas's prison units are located near Muslim residents. Brown asserts that the TDCJ has "construct[ed] . . . prison units in areas where there are plentiful Christian volunteers but virtually no Muslim residents anywhere close." But there is absolutely no evidence that the State of Texas has chosen prison locations based on faith preferences of inmates, the proximity of civilian populations of particular faiths, or to create distances from Muslim civilian populations.


         The evidence does not support the conclusion that the assignment of some Jewish and Native American inmates to particular units resulted in greater access to chaplains or volunteers than was available to Muslim inmates. I will nevertheless assume that the TDCJ intentionally assigned some number of Jewish and Native American inmates to specific prison units to facilitate the exercise of their respective religious beliefs but did not do so for any Muslim inmates.

         The first consideration under Turner is whether such a policy has a valid, rational connection to the governmental interest in providing reasonable opportunities for all inmates to exercise their religious freedom rights. As previously noted, the Supreme Court has recognized that prison officials are not required to provide "identical facilities or personnel" to "every religious sect or group within a prison."[238] Jewish and Native American volunteers were even more scarce than Muslim volunteers. There were no Jewish chaplains, only one paid outside Jewish chaplain, and there was one Native American Chaplain. Assigning some Jewish inmates and some Native American inmates to specific prison units to facilitate the opportunity for religious exercise for those inmates, was reasonable.

         The second Turner consideration is whether there are alternative means for Muslim inmates to exercise their Establishment Clause rights. Eliminating any favoritism that might have been shown to Muslim inmates is not the remedy that the plaintiffs seek. Nor is there evidence that, had Muslim inmates been housed differently, their opportunities for religious exercise would have been increased.

         The evidence is silent as to the third Turner consideration, which is the impact on guards, other inmates, or the allocation of prison resources generally. With regard to the fourth Turner factor, it does not appear that ceasing to assign Jewish and Native American inmates in the way that the TDCJ has done would either decrease the "favoritism" shown to those inmates or increase Muslim inmates' opportunities to worship and study. There is no evidence that Jewish or Native American inmates enjoyed more than one hour of worship each week, or its equivalent. The number of Muslim volunteers exceeded the relative number of Jewish and Native American volunteers even under the TDCJ's existing housing policies, and there is no indication that changing that policy would have any effect other than reducing the opportunities for religious exercise by Jewish and Native American inmates.

         The TDCJ's housing policies do not fail Turner's rationality review. The policy does not violate the Establishment Clause.


         Brown argues that the direct supervision policy applies only to religious activities and not to secular ones within TDCJ's prisons and therefore, that the direct supervision policy violates the Establishment Clause. The district court did not ground its finding of an Establishment Clause violation on such a basis.

         Brown contends, without any record citations, that band, choir practice, craft shop, and Safe Prison Program classes are indirectly supervised. As a factual matter, the evidence reflects that secular activities in prisons that are not directly supervised almost invariably involve inmates who have been screened for disciplinary violations. Religious gatherings, by contrast, involve inmates with varying security classifications. Applying the Turner considerations, there was no Establishment Clause violation.

         The first Turner inquiry is whether there is a "'valid, rational connection' between the prison regulation and the legitimate governmental interest put forward to justify it."[239] Two inmates testified that two craft shops at the Robertson Unit were indirectly supervised.[240] However, another witness testified that craft shops are directly supervised, [241] and the unrefuted testimony was that all inmates in all craft shops were "screened very closely."[242] Being allowed to go to craft shop was "a kind of a privilege," and "craft shop privileges" could be lost due to disruptive conduct.[243] The evidence reflects that "[t]here's a big difference between craft shop and religious services."[244] The evidence was undisputed that TDJC "screen[s] all the offenders in the craft shop . . . very closely," but "these offenders going to all these religious services all across the unit in different custodies" are "not screened and they have gang tendencies and staff assault histories and weapons possessions."[245] There is therefore "a greater propensity for violence in ...

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