Laura Keevan v. Donald Smith

___________

No. 95-1289
___________

Laura Keevan; Verna Mae Jones; *
Sheila Gordon; Melissa Ann *
Wagner; Laverna Goree; Tanya *
Goins; Carol Jean Klaus, and *
on behalf of the class, *
*
Appellants, *
*
v. *
*
Donald Smith, Superintendent * Appeal from the United States
of Fulton Reception and * District Court for the
Diagnostic Center; Ron Schmitz, * Western District of Missouri.
Superintendent of Kansas City *
Community Release Center; Janet *
Schneider, Superintendent of *
St. Louis Community Release *
Center; Thelma Grandison, *
Superintendent of Chillicothe *
Correctional Center; Donna *
Schriro, Director of the *
Department of Corrections, *
*
Appellees. *

___________

Submitted: May 16, 1996

Filed: November 18, 1996
___________

Before BOWMAN, HEANEY, and WOLLMAN, Circuit Judges.

___________

BOWMAN, Circuit Judge.

Appellants, a certified class of female inmates who are now or who
may be in the future confined in Missouri penal institutions,
appeal a portion of the judgment of the District Court,1 in favor of
Missouri Department of Corrections and Human Resources (Department)
officials. The women inmates originally brought this 42 U.S.C. § 1983
action against Department officials alleging discriminatory treatment and
seeking injunctive relief. Only two issues have been raised in this
appeal. The female prisoners contend that the District Court erred in
rejecting their claims that prison officials discriminated against them on
the basis of gender in violation of the Equal Protection Clause by failing
to provide them with equal access (1) to post-secondary educational
programs and (2) to prison industry employment. The District Court held
that the availability of post-secondary educational courses hinged on
fiscal decisions made by the academic providers and on a lack of demand by
female inmates rather than on any discriminatory action taken by the
Department. The Department has since filed a motion to dismiss as moot the
female inmates' appeal regarding post-secondary educational opportunities.
We agreed to take this motion into consideration with the merits of the
case and hereby grant the Department's motion to dismiss this portion of
the case as moot. To that extent, the order of the District Court is
vacated. As to the prison industries claim, the District Court found
insufficient evidence of discriminatory intent on the part of Department
officials to support an equal protection challenge. Concluding that the
District Court's finding of no discriminatory intent is not clearly
erroneous, and further concluding that the female inmates are not similarly
situated to male inmates for purposes of equal protection analysis, we
affirm the District Court's order dismissing this claim.

1
The Honorable Scott O. Wright, United States District Judge
for the Western District of Missouri, adopting the Report and
Recommendation of The Honorable William A. Knox, United States
Magistrate Judge for the Western District of Missouri.

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 I.

The facts of the case are not in dispute. Male and female inmates
incarcerated within Missouri Department of Corrections prisons are
2
segregated into particular facilities by gender. The Department operates
fifteen penal institutions, two of which, the Renz Correctional Center3
(Renz) and the Chillicothe Correctional Center (Chillicothe), house solely
adult female inmates. Corrected Joint Stipulations, Appellant's App. at
27. The vast majority of the total inmate population in adult institutions
in Missouri, approximately ninety-five percent, is male. Id. at 28. Both
male and female inmates are assigned custody level classifications ranging
from minimum security, C1, to maximum security, C5, and these designations
affect inmate housing assignments within the gender-segregated facilities.
Generally, the higher custody classifications, C4 and C5, are assigned to
male and female inmates with longer sentences to serve and to shorter-term
inmates of both genders who represent an increased security risk. Female
inmate custody levels range from C1 through C3 at Chillicothe and from C3
through C5 at Renz.

2
Appellants do not challenge the constitutionality of this
gender-based classification. See Women Prisoners of the Dist. of
Columbia Dep't of Corrections v. District of Columbia, 93 F.3d 910,
926 (D.C. Cir. 1996); Pitts v. Thornburgh, 866 F.2d 1450, 1458-59
(D.C. Cir. 1989).
3
The Magistrate Judge observed that, due to extensive flooding
which occurred in July and August, 1993, Renz was evacuated and the
female inmates at the facility were moved to facilities that
normally house only male inmates, including Central Missouri
Correctional Center (CMCC) and Fulton Reception and Diagnostic
Center (FRDC). The majority of the females from Renz were moved to
CMCC and will remain at that institution during the emergency
conditions created by flood waters. Renz will not be reopened in
the immediate future, if at all, due to considerable damage to the
facility. Interim arrangements for educational classes and prison
industries have been implemented.

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 Approximately 725 female inmates are incarcerated in the Department's
female-only prisons, some 420 at Chillicothe and some 305 at Renz.4
Approximately 13,000 male inmates are incarcerated in the Department's
male-only prisons, some 1200 at Algoa Correctional Center; 900 at
Booneville; 1200 at Central Missouri Correctional Center; 1800 at
Farmington Correctional Center; 2000 at Jefferson City Correctional Center;
1265 at Moberly Correctional Center; 1100 at Missouri Eastern Correctional
Center; 500 at Potosi Correctional Center; 2000 at Western Missouri
Correctional Center; and 600 at Ozark Correctional Center.

Female inmates incarcerated at the Renz and Chillicothe facilities
have access to the same adult basic education and G.E.D. programs as male
inmates. Both male and female prisoners can take advantage of college-
level correspondence courses at their own expense. Post-secondary courses
conducted within the confines of the prison facilities are offered by
community colleges, state universities, and private colleges, and not by
the Department itself. Educational institutions enter into agreements with
the Department for access to physical space within both male and female
prisons and for administrative support, such as security and assistance in
enrolling the inmates. Decisions regarding the number and variety of post-
secondary programs offered at a particular prison facility are made by the
educational institutions involved and not by the Department. The
Department requires that any courses that the schools choose to offer be
of the same quality as those the schools offer to their on-campus students.

Prison enterprises are operated by Missouri Correctional Enterprises
(MCE), a private, self-supporting, profit-making enterprise that does not
receive funding from the Missouri General

4
Renz was originally a male institution, then housed both
women and men, and finally became a women's prison in December
1989.

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Assembly. Twenty-one such enterprises are located at male institutions and
three at female institutions. Report and Recommendation at 10. Male
inmates have a broader range of industry job opportunities, but industries
are located at both women's facilities and only at some of the male
facilities. Id. For fiscal year 1991, approximately thirteen percent of
the total female inmate population was employed in prison industry
programs. Corrected Joint Stipulations, Appellant's App. at 28, 36.
During the same time period, only eight percent of the total male inmate
population was so employed. Id.

II.

We first consider the Department's motion to dismiss as moot the
women prisoners' claim that Department officials purposely discriminated
against them on the basis of gender in the management of post-secondary
educational opportunities. During the pendency of this appeal, Department
officials terminated their former practice of allowing outside educators
access to male and female prison facilities for the purposes of providing
college-level courses to inmates. Affidavit of John J. Bell in support of
Appellee's Motion to Dismiss Point I of Appellants' Appeal as Moot.
Neither male nor female prisoners are currently provided this opportunity,
a fact appellants do not contest.

A claim is properly dismissed as moot if it "has lost its character
as a present, live controversy of the kind that must exist if we are to
avoid advisory opinions on abstract questions of law." Princeton Univ. v.
Schmid, 455 U.S. 100, 103 (1982) (per curiam) (quotations and citations
omitted) (holding that university's amendment of regulation made moot a
challenge to regulations). Where, as here,

(1) it can be said with assurance that there is no reasonable
expectation . . . that the alleged violation

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 will recur, and (2) interim relief or events have completely
and irrevocably eradicated the effects of the alleged violation
. . . it may be said that the case is moot because neither
party has a legally cognizable interest in the final
determination of the underlying questions of fact and law.

County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (quotations and
citations omitted). Here, prison officials have abandoned the post-
secondary educational programs about which the women prisoners complained.5
There is no indication that Department officials will reinstate these
educational programs. In these circumstances, the requested relief--equal
access to such programs by both male and female inmates--has become an
abstraction, and this aspect of the case has "lost its character as a
present, live controversy." Schmid, 455 U.S. at 103 (quotation omitted).
As a result, we conclude that the women prisoners' equal protection claim
concerning post-secondary educational programs is moot and we grant the
Department's motion to dismiss this claim. Those portions of the District
Court's order dealing with this claim are vacated. United States v.
Munsingwear, Inc., 340 U.S. 36, 39 (1950); Cranford v. Nix, 43 F.3d 1210,
1211 (8th Cir. 1995).

III.

We turn now to the women's contention that Department officials'
policy for determining the placement of prison industries is exercised in
a manner that violates the Equal Protection Clause. To establish a gender-
based claim under the Equal Protection Clause, the appellants must, as a
threshold matter, demonstrate that they have been treated differently by
a state actor than others who are similarly situated simply because

5
At oral argument, counsel advised the Court that inmates no
longer are able to secure federal financial assistance for
enrolling in these educational programs. Colleges and universities
that offered these programs at Department prisons have elected to
discontinue the practice for economic reasons.

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appellants belong to a particular protected class. See, e.g., Klinger v.
Department of Corrections, 31 F.3d 727, 731 (8th Cir. 1994), cert. denied,
115 S. Ct. 1177 (1995). In general, the Equal Protection Clause requires
that the government treat such similarly situated persons alike. See,
e.g., City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439
(1985); Klinger, 31 F.3d at 731; Moreland v. United States, 968 F.2d 655,
660 (8th Cir.) (en banc), cert. denied, 506 U.S. 1028 (1992). Treatment
of dissimilarly situated persons in a dissimilar manner by the government
does not violate the Equal Protection Clause. Klinger, 31 F.3d at 731; see
Barket, Levy & Fine, Inc. v. St. Louis Thermal Energy Corp., 21 F.3d 237,
242 (8th Cir. 1994); Women Prisoners of the Dist. of Columbia Dep't. of
Corrections v. District of Columbia, 93 F.3d 910, 924 (D.C. Cir. 1996).
Therefore, the initial inquiry in any equal protection claim is whether the
plaintiff has established that she was treated differently than others who
are similarly situated to her. Klinger, 31 F.3d at 731; United States v.
Whiton, 48 F.3d 356, 358 (8th Cir.), cert. denied, 116 S. Ct. 227 (1995).
As we observed in Klinger, "Absent a threshold showing that she is
similarly situated to those who allegedly receive favorable treatment, the
plaintiff does not have a viable equal protection claim." 31 F.3d at 731.

Thus, before we may entertain the merits of the female inmates' equal
protection claim, we must first determine whether women incarcerated by the
Missouri Department of Corrections are similarly situated, for purposes of
the program in issue, to men likewise incarcerated. Whether the female
inmates are similarly situated to male inmates requires an inquiry focusing
on the purposes of the challenged government action, namely, the assignment
of prison industry programs among the various institutions controlled by
the Department. See More v. Farrier, 984 F.2d 269, 271 (8th Cir.), cert.
denied, 510 U.S. 819 (1993).

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 In Klinger, this Court was asked to determine whether female
prisoners, all of whom were incarcerated at the Nebraska Center for Women
(NCW), were subjected to gender discrimination by the Department of
Correctional Services in violation of the Equal Protection Clause due to
the alleged inferiority of the vocational, educational, and employment
opportunities and programs offered to women in comparison to those offered
to male prisoners incarcerated at Nebraska State Penitentiary (NSP), one
of a number of male-only prisons. 31 F.3d at 729. This Court held, as a
matter of law, that female inmates at NCW and male inmates at NSP were not
similarly situated for purposes of prison programs and services and,
therefore, that the plaintiffs failed to establish a violation of the Equal
Protection Clause. Id. at 731.

In arriving at our conclusion that the male and female inmates in
Klinger were dissimilarly situated, we considered a number of factors
including prison population size, average length of sentence, security
classification, types of crimes, and other special characteristics. Id.
at 731-32; see also Pargo v. Elliott, 894 F. Supp. 1243, 1259 (S.D. Iowa
1995), aff'd, 69 F.3d 280 (8th Cir.), cert. denied, No. 95-8906, 1996 WL
271195 (U.S. Oct. 7, 1996). Because a comparison of these factors between
the male inmates at NSP and the female inmates at NCW revealed a wide
disparity in each category, this Court concluded that "the programs at NSP
and NCW reflect separate sets of decisions based on entirely different
circumstances." Klinger, 31 F.3d at 732. Programming decisions regarding
industry and education differed from prison to prison, "depending on
innumerable variables that officials must take into account" and not on
illegitimate, discriminatory factors. Id. Analysis of the sort that we
employed in Klinger leads us to the same result in the present case.

Initially, the irrefutable differences between the female-only
facilities, Renz and Chillicothe, and the various institutions housing male
inmates in Missouri must be acknowledged. Most

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notably, because women account for such a small proportion of the total
prison population, their facilities are necessarily smaller in size than
any of the male-only prisons.

Taking into account security classification levels in addition to
population size further illustrates that female inmates are dissimilarly
situated from male inmates. For example, Chillicothe has a population of
430 female inmates assigned the lowest classification levels ranging from
C1 through C3. Corrected Joint Stipulations, Appellant's App. at 27, 28.
The most comparable male institution with respect to population size,
Potosi Correctional Center with 500 inmates, bears no resemblance to
Chillicothe with respect to security levels, as it houses only male
prisoners assigned the highest security classification, C5. Id. at 27.
The male institutions most comparable to Chillicothe with respect to
security classification, Central Missouri Correctional Center and Western
Missouri Correctional Center, which both confine inmates classified at
levels C2 and C3, house considerably larger inmate populations, namely,
1000 men at Central Missouri and 1975 men at Western Missouri. Id.

The average sentence length for female inmates as compared to male
inmates confirms that these two diverse groups are not similarly situated.
Significantly fewer female inmates will be serving lengthy prison sentences
in comparison to male inmates. This observation is evidenced by the vast
disparity in the number of female inmates classified as medium or maximum
security risks as compared to the number of male inmates likewise
classified. See Corrected Joint Stipulations, Appellant's App. at 27-28.
A small number of women prisoners, approximately 305, are assigned the
highest security classifications, thereby indicating that they will be
incarcerated for extended periods of time. In contrast, roughly 6700 male
inmates have been assigned the highest security classifications and will,
therefore, likely be serving lengthy prison sentences. This distinction
also tends to establish that

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male inmates have been convicted of more serious crimes, thus justifying
the higher security classifications associated with lengthier prison
sentences.

As is apparent from the above observations, male and female inmates
incarcerated in Department prisons are far from similarly situated for
purposes of equal protection analysis. In determining the availability and
location of prison programs and services, officials "must balance many
considerations, ranging from the characteristics of the inmates at that
prison to the size of the institution, to determine the optimal mix of
programs and services." Klinger, 31 F.3d at 732; see Turner v. Safley, 482
U.S. 78, 84-85 (1987). Because these considerations are diverse and the
circumstances of each prison are different, female inmates as a group and
male inmates as a group simply cannot be considered similarly situated for
purposes of comparing the availability and variety of prison programming.
The size of the institution, its location, and the types of inmates housed
there necessarily will affect the number, type, and length of programs
offered.

The women prisoners urge this Court to conduct a program-by-program
comparison between Department prisons housing solely female inmates and
those housing only male inmates to confirm the existence of gender
discrimination. We reject that approach to equal protection analysis of
the Department's placement of prison industries. There can be no such
meaningful comparison for equal protection purposes between two sets of
inmates who are not similarly situated. See, e.g., Association of
Residential Resources v. Gomez, 51 F.3d 137, 140-41 (8th Cir. 1995);
Klinger, 31 F.3d at 733; Women Prisoners of the District of Columbia, 93
F.3d at 927. The substantial differences discussed above between male and
female prisoners demonstrate the dissimilarity of the two distinct groups
and the irrelevance of any attempt to compare the number or type of
programs offered. Furthermore, this Court concluded in Klinger that "using
an inter-prison program comparison

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to analyze equal protection claims improperly assumes that the Constitution
requires all prisons to have similar program priorities and to allocate
resources similarly." 31 F.3d at 732. We also noted that inter-prison
program comparison "results in precisely the type of federal court
interference with and 'micro-management' of prisons that Turner condemned."
Klinger, 31 F.3d at 733 (following Turner v. Safley, 482 U.S. 78 (1987)).

For the foregoing reasons, we hold that male and female prisoners are
not similarly situated for purposes of an equal protection comparison of
prison industry programs.

IV.

Even assuming, for the sake of argument, that male and female inmates
were similarly situated for purposes of the Department's placement of
prison industries, an equal protection review of Department decisions
requires further analysis. It must be determined whether the unequal
treatment in accessibility to prison industry employment allegedly
resulting from gender discrimination stems from a Department policy that
is facially neutral or from a policy that, on its face, classifies by
gender. A facially gender-based classification is subject to heightened
scrutiny and violates the Equal Protection Clause if the classification is
not substantially related to the achievement of important governmental
objectives. United States v. Virginia, 116 S. Ct. 2264, 2275 (1996);
Personnel Adm'r v. Feeney, 442 U.S. 256, 273 (1979); Mississippi Univ. for
Women v. Hogan, 458 U.S. 718, 724 (1982).

A facially neutral policy, on the other hand, is not subject to the
same exacting standard as it does not categorize on the basis of a quasi-
suspect class. If, however, a neutral policy employed by the Department
has a disproportionately adverse effect upon women, it is unconstitutional
under the Equal Protection

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Clause only if that impact can be traced to a discriminatory purpose.
Feeney, 442 U.S. at 272.

When a statute gender-neutral on its face is challenged on the
ground that its effects upon women are disproportionately
adverse, a twofold inquiry is . . . appropriate. The first
question is whether the statutory classification is indeed
neutral in the sense that it is not gender based. If the
classification itself, covert or overt, is not based upon
gender, the second question is whether the adverse effect
reflects invidious gender-based discrimination.

Id. at 274; see Village of Arlington Heights v. Metropolitan Housing Dev.
Corp., 429 U.S. 252, 264-66 (1977); Marshall v. Kirkland, 602 F.2d 1282,
1299 (8th Cir. 1979). If the adverse impact of a facially neutral policy
cannot be plausibly explained on a neutral ground, the impact itself would
signal that the real classification made by the policy was in fact not
neutral.6 Feeney, 442 U.S. at 275.

Here, the women prisoners do not challenge the Department policy of
segregating male and female prisoners by gender. Rather they challenge the
Department policy which determines the placement of a particular prison
industry at a specific penal facility. It is this policy that the
appellants contend results in a disparate impact on female prisoners and
constitutes a violation of the Equal Protection Clause. The disparate
impact, according to the female inmates, is evidenced through the placement
of stereotypically female jobs at the Renz and Chillicothe facilities and
the exclusion of female inmates from the more skilled and industrial jobs
located at male prisons.

6
As we noted in Ricketts v. City of Columbia, 36 F.3d 775, 781
(8th Cir. 1994), "in only a few cases, where a facially neutral
policy impacted exclusively against one suspect class and that
impact was unexplainable on neutral grounds, has the impact alone
signalled a discriminatory purpose. See Gomillion v. Lightfoot,
364 U.S. 339 (1960); Yick Wo v. Hopkins, 118 U.S. 356 (1886)."

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 Initially, we note that the statutory provisions granting the
Department authority to establish and monitor prison industries are gender-
neutral on their face. See, e.g., Mo. Rev. Stat. § 217.550 (1994).
Likewise, a review of Department officials' testimony indicates that
Department policy for the placement of prison industries is based on
factors such as population size, availability of a steady work force, and
location of the prison in relation to potential purchasers of industry
products, not on the basis of gender considerations. Department officials
have countered the appellants' allegations of gender-motivated
discrimination with a plausible explanation for the alleged disparate
impact. As such, it is appellants' burden to establish that the adverse
effect this Department policy has on women inmates is the result of a
discriminatory purpose.

The District Court found that the scope of prison enterprise
opportunities provided to male and female inmates "appears directly related
to the size and location of the prisons and a recognition that more male
inmates are available for long-term manufacturing jobs than women
7
inmates." Report and Recommendation at 10.

Because the policy challenged by the appellants is neutral on its
face, the female prisoners must establish that the alleged disparate impact
is the result of discriminatory purpose. We agree with the District Court
that appellants have failed to prove the requisite discriminatory intent
on the part of Department officials. Assuming as a threshold matter that
the women prisoners

7
The statutory mandate bestowing on the Department the power
to establish prison industries instructs that the director shall
take into account: "offender custody levels, the number of
offenders in each correctional center so the best service or
distribution of labor may be secured, location and convenience of
the correctional centers in relation to the other correctional
centers to be supplied or served and the machinery presently
contained in each correctional center." Mo. Rev. Stat.
§ 217.550(1) (1994).

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have demonstrated disparate impact, their equal protection claim will fail
nonetheless without a showing of discriminatory intent. See Feeney, 442
U.S. at 274; Arlington Heights, 429 U.S. at 265. "'Discriminatory purpose'
. . . implies more than intent as volition or intent as awareness of
consequences. It implies that the decisionmaker . . . selected or
reaffirmed a particular course of action at least in part 'because of,' not
merely 'in spite of,' its adverse effects upon an identifiable group."
Feeney, 442 U.S. at 279 (citation and footnote omitted).

The District Court's findings show that prison industry jobs are
located at both women's facilities and only at certain male facilities.
Report and Recommendation at 10. A proportionately larger number of female
inmates have prison industry jobs than do male inmates, and the data-entry
industry located at the Renz facility, criticized by plaintiffs as a
stereotypically female occupation, formerly employed male inmates when the
institution housed males. Department officials testified that the location
of prison industries was motivated not by stereotypes but by legitimate
concerns such as work force stability and proximity to clientele. Thus,
as the District Court found, the evidence does not support a claim that the
Department's placement of prison industry jobs was intentionally
discriminatory or gender-motivated. See also Klinger, 31 F.3d at 733-34;
Pargo, 894 F. Supp. at 1280; Women Prisoners of the Dist. of Columbia, 93
F.3d at 925.

Because no two prisons are the same, it is a virtual certainty that
inmates in one prison will have certain amenities not available to inmates
in another. "Thus, female inmates can always point out certain ways in
which male prisons are 'better' than theirs, just as male inmates can
always point out other ways in which female prisons are 'better' than
theirs." Klinger, 31 F.3d at 732; see also Women Prisoners of the Dist.
of Columbia, 93 F.3d at 926-27. "Differences between challenged programs
at . . . prisons are virtually irrelevant because so many variables affect

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the mix of programming that an institution has. . . . In short, comparing
programs . . . is like the proverbial comparison of apples to oranges."
Klinger, 31 F.3d at 733. When attempts are made to compare programs
offered at facilities housing inmates who are not similarly situated, "it
is hardly surprising, let alone evidence of discrimination, that the
smaller correctional facility offered fewer programs than the larger one."
Women Prisoners of the Dist. of Columbia, 93 F.3d at 925.

V.

For the reasons stated, we affirm the District Court's order
dismissing the appellants' equal protection claim with respect to prison
industry programs and grant the Department's motion to dismiss as moot
appellants' equal protection claim regarding post-secondary educational
opportunities. The order of the District Court is vacated insofar as it
deals with the latter claim.

HEANEY, Circuit Judge, concurring in part and dissenting in part.

I agree that the female inmates' claim that prison officials
purposefully discriminated against them in the management of post-secondary
educational programs is rendered moot by the correction department's
unfortunate suspension of all contracts with local colleges and
universities to offer post-secondary and vocational courses to either male
or female inmates. I disagree, however, with the majority's conclusion
that the class of female inmates is not similarly situated to male inmates
for the purpose of challenging the assignment and organization of prison
industry programs under the Equal Protection Clause. I also disagree that
the female inmates have failed to show discriminatory intent on the part
of the Department of Corrections. Therefore, I respectfully dissent from
Parts III and IV of the majority's opinion.

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 I do not quarrel with the majority's citation to the basic rule that
a party seeking relief for gender-based discrimination under the Equal
Protection Clause must demonstrate that a state actor has treated her
differently than other similarly situated persons because of her gender.
Nor do I dispute the corollary rule that a state may treat dissimilarly
situated persons in a dissimilar manner. In my view, however, the court
is wrong to adopt an overly formalistic approach to the threshold question
of whether female and male inmates are similarly situated.

While the court in Klinger v. Department of Corrections, 31 F.3d 727,
731 (8th Cir. 1994), compared inmate populations, length of sentences, and
security classifications in holding that female inmates at one Iowa prison
were dissimilarly situated from male inmates at another institution, such
factors should not be rigidly applied. As the majority artfully
demonstrates, it is highly unlikely that any two institutions in a state's
prison system will have an identical inmate composition but for the fact
that one houses women and the other houses men; specific differences become
more tenuous and less important when the challenge is system-wide. While
the segregation of inmates by gender is constitutional, the natural
consequences of that segregation--e.g., smaller institutions, shorter
aggregate lengths of stay, broader ranges of security ratings within
institutions--must not be used as a per se bar to our examination of the
respective treatment women and men receive while incarcerated. If our
equal protection inquiry ended every time a plaintiff fell short of showing
different treatment at a mirror-image facility, then despite our admonition
to the contrary, Klinger would "stand for the proposition that women and
men prison inmates can never be similarly situated for purposes of equal
protection analysis." Prago v. Elliot, 49 F.3d 1355, 1356 (8th Cir. 1995).

It is important not to lose sight of basic commonalities that justify
similar treatment. All inmates, regardless of gender, are

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under the custody and control of the state as a result of their criminal
behavior; all are subject to the same general departmental regulations and
policies; and the incarceration in all cases shares common goals, including
the reform and rehabilitation of individual offenders. These common
characteristics provide a basis for the Department of Corrections to design
a program that gives substantially equal opportunities to women and men for
rehabilitative work while confined. Although gross institutional
differences might sometimes provide basis for finding groups of inmates
dissimilarly situated, they do not in this case. General, legitimate
concerns for security, the availability of inmates to fill positions, and
the like are more relevant in examining whether dissimilar treatment of
male and female inmates can be supported on non-discriminatory grounds.

Turning to that question, I further disagree with the majority's
conclusion that the female inmates' claim must fail because they have not
proved discrimination on the part of prison officials. The women have
brought forth enough to establish gender-based discrimination. The
department offers women only three opportunities to participate in industry
jobs, whereas male inmates have the opportunity to participate in twenty-
one, on-site enterprises as well as an off-site warehousing and trucking
operation. The jobs for men require more skills and give the men a
considerable market advantage outside the prison setting. Where the same
type of operation is set up at both a men's and women's institution, the
men's facility is significantly more sophisticated and industrial than the
women's counterpart. For example, while men at Moberly work in a printing
industry that is equipped to do layout work for forms, letterhead, and
envelopes, the Quick Print operation for women at Renz is "closer to a copy
center." App. at

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231-32. With very few exceptions,1 the industrial opportunities offered
to female inmates fall within prevailing stereotypes of "women's work":
telephone operators/telemarketers; data entry; and office copying. The
Missouri Department of Corrections cannot adequately explain the
disparities between the industrial opportunities for women and men on
neutral grounds and, more important, cannot explain its unwillingness to
expend the effort to provide women with the same opportunities it provides
to men. I disagree with the district court's statement, adopted by the
majority, that the dissimilar treatment is directly related to the size and
location of the prisons and to the greater long-term availability of male
inmates. Most of the industries could operate independent of their
geographical location. Moreover, as of 1991, only a handful of the
industries at the men's institutions had staff sizes that might be
difficult to generate at the women's institutions. The state has not shown
non-discriminatory reasons for determining the industrial opportunities it
offers to female inmates. The women, in contrast, have produced enough
evidence from which to infer the Department of Corrections' industry
placements are based on stereotypical notions of what jobs women can
perform and the lesser need for women to become skilled laborers.

In my view, the women inmates have established their case under the
Equal Protection Clause that the Missouri Department of Corrections
discriminates against them on the basis of their gender in the assignment
and organization of prison industries throughout the state's prison system.
I would remand this case to the district court with directions to instruct
the Department of

1
For example, as of 1991, two women at Renz were employed in
what is called an agri-business enterprise where they perform minor
maintenance and repair jobs on small machines. This operation,
however, is a scaled-down version of what was in place when Renz
housed male inmates and is quite different from and less skilled
than the traditional cattle and crop farming work currently offered
to male inmates at another Missouri institution.

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Corrections to establish a remedial plan to correct the gender-based
disparities.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

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