Fegans v. Norris

COLLOTON, Circuit Judge.

Michael J. Fegans, an inmate in Arkansas, brought this suit against the director of the Arkansas Department of Corrections (“ADC”), Larry Norris, and other prison officials, alleging violations of his rights under the First and Fourteenth Amendments, the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-l et seq., the Arkansas Constitution, and the Arkansas Civil Rights Act. Fegans, a follower of the teaching of the Assemblies of Yahweh, claimed that the ADC’s failure to provide Kosher meals and a religious exemption from its grooming policy created a substantial burden on the exercise of his religious beliefs that could not be justified under federal or state law. The district court1 agreed with Fegans in part, ruling that Fegans had a clearly established constitutional right to receive Kosher meals and awarding him $1500 in damages. The district court disagreed, however, with Fe-gans’ challenge to the grooming policy, and determined that the policy was constitutional and consistent with RLUIPA. Fe-gans appeals both the amount of damages awarded and the district court’s decision on the grooming policy. We affirm.

I.

On December 12, 1991, Fegans was sentenced to 18 years’ imprisonment for four counts of aggravated robbery, one count of second degree battery, and one count of criminal attempt to escape. In 1994, Fe-gans received a major disciplinary sanction after attempting to escape and possessing a weapon and drugs. In that incident, Fegans was able to smuggle a firearm, shotgun shells, smoke grenades, marijuana, and a large amount of cash through an air-conditioning vent, and to have the items placed in a maintenance van to which he was assigned. (T. Tr. 293, 326). Fegans testified that around this same time, he underwent a religious conversion, inspired by the radio broadcasts of Jacob O. Meyer. Fegans began studying the teachings of Meyer and the Assemblies of Yahweh, a Christian sect which requires its members to follow Old Testament law. Fegans eventually concluded that he should follow a Kosher diet and refrain from “rounding the corners” of his hair and beard.

Fegans stopped trimming his hair and beard in 1995. In June 1997, Fegans formally notified the ADC that he was a follower of the Assemblies of Yahweh and began requesting a Kosher diet. While the ADC’s policy at the time apparently allowed Fegans to wear his hair and beard as he wished, the ADC advised Fegans that Kosher meals were not an option and placed him on a pork-free diet instead. Fegans protested the ADC’s meal policy, and eventually exhausted his administrative remedies on this claim.

On April 20, 1998, Director Norris issued Administrative Directive 98-04 (“AD 98-04”), which set forth a new grooming policy for all Arkansas prisons. The policy requires all male prisoners to keep their *901hair above their ears and no longer than the middle of the nape of the neck in the back. The policy allows female prisoners to wear shoulder-length hair. A separate provision prevents male inmates from wearing “facial hair other than a neatly trimmed mustache,” but provides an exception for inmates diagnosed with dermatological problems, such as pseudofolliculi-tis barbae, a medical condition that causes painful bumps from shaving. Inmates with such a “diagnosed dermatological problem” are permitted to “wear facial hair,” provided that it is kept “no longer than 1/4 inch.” The policy’s stated purpose is “[t]o provide for the health and hygiene of incarcerated offenders, and to maintain a standard appearance throughout the period of incarceration, minimizing opportunities for disguise and for transport of contraband and weapons.” The policy went into effect immediately.

On April 28 and May 5, 1998, Fegans was approached by an ADC officer and ordered to get a haircut. Fegans refused, stating that cutting his hair was against his religion. The ADC issued Fegans a major disciplinary sanction for each refusal, and eventually transferred him from the Cummins Unit in Grady to the East Arkansas Regional Unit (“EARU”) in Briekeys. Fegans continued to resist the grooming policy while at the EARU, and continued to receive disciplinary reports as a result of his failure to comply. In an effort to secure compliance, the ADC gradually stripped Fegans of privileges and ultimately transferred him first to a maximum security cell and then to the Varner Supermax Unit.

Fegans brought suit against several ADC officials on March 14, 2008, claiming that the ADC’s failure to provide Kosher meals and a religious exemption to the grooming policy violated his constitutional rights and RLUIPA. Following a bench trial, the district court determined that Director Norris had violated Fegans’s firmly established constitutional right to receive Kosher meals. The court relied on its previous holding in Love v. Evans, 2:00-cv-0091 (E.D.Ark. Dec. 19, 2002), where it held that the ADC was required to accommodate an inmate’s requests for Kosher meals. Because the ADC did not begin providing Kosher meals until March 3, 2004, the district court found that Norris “knowingly violated established law requiring Kosher diets” from December 19, 2002, through March 3, 2004, and awarded Fe-gans $1500 in damages.

The district court found that Fe-gans had a sincere religious objection to the grooming policy, but rejected Fegans’s challenges to the policy. The court reasoned that this court’s decision in Hamilton v. Schriro, 74 F.3d 1545 (8th Cir.1996), foreclosed Fegans’s claims based on the First Amendment. The court also rejected Fegans’s challenge under RLUIPA, holding that the grooming policy served compelling state interests and was “no more restrictive than necessary to further its stated goals.” While Fegans testified that he would have been satisfied to abide by the women’s hair-length regulation, and thus implied that it presented a less restrictive means available to meet the ADC’s security concerns, the district court disagreed, finding that “[t]he security concerns attendant female inmates housed in a single unit are not as great.” The court rejected Fegans’s Equal Protection claim for the same reason, concluding that different security concerns presented by male and female inmate populations provide a sufficient basis for the distinction in the grooming regulations. The court also ruled that the defendants were immune from suit on the state law claims, because Fegans’s “conclusory allegations that Defendants acted with malice [were] not sup*902ported by the evidence.” In this appeal of the district court’s judgment after a bench trial, we consider legal issues de novo and review the court’s finding of fact for clear error. Eckert v. Titan Tire Corp., 514 F.3d 801, 804 (8th Cir.2008).

II.

A.

Prison inmates retain constitutional rights protected by the First Amendment, including the right to free exercise of religion. O’Lone v. Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987). These rights are limited, however, by the fact of incarceration and valid penological objectives, such as deterrence of crime, rehabilitation of prisoners, and institutional security. Id. The evaluation of penological objectives in this context is “committed to the considered judgment of prison administrators,” and to ensure appropriate deference to those judgments, courts review prison regulations alleged to infringe constitutional rights under a “reasonableness” test that is less restrictive than ordinarily applied to alleged infringements of fundamental constitutional rights. Id.; see also Turner v. Safley, 482 U.S. 78, 87-91, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987).

Congress has granted additional protection for religious exercise by institutionalized persons. The RLUIPA, enacted in 2000, succeeded a similar statute, the Religious Freedom Restoration Act (RFRA), which failed to pass constitutional muster as a valid exercise of Congress’s power under the Fourteenth Amendment, insofar as it applied to the States. See City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). RLUIPA, like RFRA, provides that no government shall impose a “substantial burden” on the religious exercise of an inmate, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden (1) is in furtherance of a compelling governmental interest, and (2) is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. § 2000cc-l. The Supreme Court has remarked that “context matters” in the application of this “compelling governmental interest” standard, and that RLUIPA does not “elevate accommodation of religious observances over an institution’s need to maintain order and safety.” Cutter v. Wilkinson, 544 U.S. 709, 722, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005). Indeed, the Court noted that lawmakers who supported RLUIPA were “mindful of the urgency of discipline, order, safety, and security in penal institutions,” id. at 723, 125 S.Ct. 2113, and expected that courts would apply the Act with “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.” Id. (quoting 146 Cong. Rec. S7774, S7775 (July 27, 2000) (joint statement of Sen. Hatch and Sen. Kennedy on RLUIPA)).

We applied these standards, through RFRA, to a prison hair-length regulation in Hamilton v. Schriro, 74 F.3d at 1551-55, and much of Fegans’s argument against the ADC’s hair-length'regulation is foreclosed by the reasoning of Hamilton. The regulation at issue in Hamilton, which prohibited male inmates from wearing their hair below the collar, was supported by testimony from prison officials who explained that “inmates could conceal contraband, including dangerous materials, in their long hair,” and that long hair “could also cause problems with inmate identification.” Id. at 1548. The officials suggested that a more liberal policy would place a strain on prison resources and inmate-staff *903relations because, in the absence of a policy, “prison staff would be required to perform more frequent searches of inmates, which could cause conflicts between staff and inmates.” Id.

In holding that the regulation did not conflict with RFRA, we cited Congress’s expectation “that the courts will continue the tradition of giving 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.” Id. at 1554 (quoting S.Rep. No. 111, 103rd Cong., 1st Sess. (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1899-1900). We observed that while RFRA reinstated the “balancing test” that had been applied by some courts to free exercise claims of inmates prior to the Supreme Court’s decision in O’Lone, the pre-O’Lone case law nonetheless emphasized that “judgments regarding prison security ‘are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.’ ” Id. at 1553 (emphasis in original) (quoting Pell v. Procunier, 417 U.S. 817, 827, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974)). Our opinion in Hamilton thus gave deference to “the prison officials’ testimony that long hair presented a risk to prison safety and security and that no viable less restrictive means of achieving that goal existed,” and upheld the hair-length restriction. Id. at 1555; accord Diaz v. Collins, 114 F.3d 69, 73 (5th Cir.2001); Harris v. Chapman, 97 F.3d 499, 504 (11th Cir.1996).

These observations about RFRA are equally applicable to RLUIPA, see Murphy v. Mo. Dept. of Corrections, 372 F.3d 979, 987-88 (8th Cir.2004); Hoevenaar v. Lazaroff, 422 F.3d 366, 370 (6th Cir.2005), and the rationale of Hamilton thus applies with equal force in this case. As in Hamilton, the prison officials here testified that the policy was “all about security,” and that it was designed to minimize the smuggling of contraband and to reduce the opportunity for disguise. To underscore the reality of these concerns, Norris and another correctional officer pointed to specific examples showing that inmates had used their hair to conceal contraband and to change their appearance after escaping. (T. Tr. 161-63, 169, 175, 228). Norris testified that there was no less restrictive means to address ADC’s security concerns, both because longer hair created a greater opportunity for inmates to conceal contraband, and because correctional officers are placed at risk of assault if they are required to search through the long hair of individual inmates. (T. Tr. 279-80). We see no basis to distinguish these safety and security concerns from those deemed sufficient in Hamilton.

The partial dissenting opinion attempts to distinguish Hamilton by relying on a snippet from an unpublished opinion in Pounders v. Kempker, 79 Fed.Appx. 941 (8th Cir.2003), where the panel noted that the record in Hamilton had been “fully developed as to the prison officials’ basis for denying the inmate’s requests.” The dissent asserts that the record in this case was not so developed. A look beyond the snippet to context, however, demonstrates that Pounders reviewed a district court’s pre-service dismissal of an inmate’s complaint. By a record that was “fully developed” in Hamilton, the Pounders panel meant a “hearing at which various officials testified,” as opposed to the record in Pounders, which included nothing but the *904complaint. Id. at 943. The record here, of course, involves a hearing at which various officials testified; it includes a complete bench trial conducted over three days with ten witnesses.

The dissent also relies on Teterud v. Burns, 522 F.2d 357 (8th Cir.1975), which refused to defer to a prison warden’s opinion on “hair net and reidentification requirements,” because it was “unsupported by empirical proof.” Id. at 361. Hamilton distinguished Teterud, holding that “the hair length regulation was founded on the legitimate concern that prison safety would be compromised by inmates concealing contraband in their long hair or identifying with a particular gang.” 74 F.3d at 1555 n. 11. So too here. Hamilton relied for “empirical proof’ on the testimony of prison officials, “based on their collective experience in administering correctional facilities,” that “prison security requires them to prevent inmates from concealing contraband in their long hair.” Id. at 1554-55. The district court here relied on testimony of experienced prison officials, who opined that the hair-length policy was necessary to prevent inmates from concealing contraband in their long hair or changing appearance after an escape, and who described specific (ie., empirical) examples of inmates who had done just these things under a previous policy that permitted long hair. There is no material distinction between this case and Hamilton. See also Rogers v. Scurr, 676 F.2d 1211, 1215-16 (8th Cir.1982) (pre-O’Lone decision vacating district court injunction against policy prohibiting the wearing of caps and robes outside prayer meetings, where explanation of prison officials that the attire “makes it too easy to conceal contraband” was “eminently reasonable”).

This case is unlike Murphy v. Missouri Department of Corrections, 372 F.3d 979, a summary-judgment decision in which the court found a genuine issue of material fact concerning whether the prison’s refusal to permit group worship by white separatists was necessary to prevent racial violence. Murphy did not require evidence that racial violence “had in fact occurred in the form of a riot,” but said that “some evidence” must be presented to show that the prison’s decision was the least restrictive means necessary to preserve its security interest. It was not clear in Murphy that the prison had considered any other options; the only evidence presented was testimony suggesting that the inmate was a racist, and that his religion limited participation to Anglo-Saxon individuals. Arkansas officials, by contrast, not only considered other options, they tried one. Under the former ADC policy, which permitted long hair, prison officials found that use of long hair to conceal contraband or to change appearance after an escape had in fact occurred. The district court’s decision is thus entirely consistent with Murphy's requirement that “some evidence” short of an actual incident be presented in support of a challenged policy.

Fegans argues alternatively that the uniform hair-length regulation for male inmates is not the least restrictive means available, because the ADC is able to address safety and security concerns in the women’s barracks while allowing shoulder-length hair. In contrast to male prisoners, however, female prisoners are housed in a single unit, and thus have less opportunity to obtain and transport contraband. See Kellensworth v. Norris, No. 5:98-cv-00157-SWW, slip op. at 5 (E.DArk. Feb. 22, 1999) (“Since most female inmates are housed in a single unit, the security concerns attendant with daily transfers of male inmates are not nearly as great.”) (reproduced at R. Doc. 183-2). Based on his more than thirty years with the ADC, *905Norris gave this further explanation for the distinction in hair-length policy: “Women are not generally as violent as men. They are not as escape prone as men. They are not as prone to give us problems with contraband as men.” (T. Tr. 237-38). Unlike the situation in Warsoldier v. Woodford, 418 F.3d 989, 1000-01 (9th Cir.2005), the record here includes no data to refute Norris’s expert testimony about the relative security risks in the male and female facilities, and the district court credited Norris’s unrebutted testimony. This finding of fact is not clearly erroneous, and given that factual premise, the district court correctly held that the differing hair regulations for men and women did not undermine the ADC’s contention that its hair-length regulation for males was the least restrictive means available to satisfy security concerns.2

Fegans also claims that AD 98-04 is not the least restrictive means available, because other prison systems employ more liberal grooming policies. These other policies, however, were rejected by Norris and the ADC as less effective in meeting the ADC’s security and safety concerns.3 We concluded in Hamilton that “[although prison policies from other jurisdictions provide some evidence as to the feasibility of implementing a less restrictive means of achieving prison safety and security, it does not outweigh the deference owed to the expert judgment of prison officials who are infinitely more familiar with their own institutions than outside observers.” Hamilton, 74 F.3d at 1556 n. 15. Norris opined that more liberal policies would be less effective in the ADC, because he had seen one of these policies at work in the past, and “our security wasn’t nearly as good then as it is now.” Fegans did not effectively rebut this testimony.

Finally, Fegans proposes that a less restrictive alternative would be to house inmates seeking a religious exemption in administrative segregation, apart from the general inmate population, in order to al*906leviate security concerns. This proposal, however, does not lessen the safety risk to correctional officials assigned to pat down the prisoners, and it would place a strain on the ADC’s facilities, which are already full. See Cutter, 544 U.S. at 723, 125 S.Ct. 2113 (observing that lawmakers supporting RLUIPA expected that courts would apply the statute with deference to the expertise of prison administrators who must act “consistent with consideration of costs and limited resources”). Because this option, like the others proposed by Fegans, would allow accommodation of religious observances to override other significant state interests, see id. at 722, 125 S.Ct. 2113, we agree with the district court that AD 98-04 withstands scrutiny under RLUIPA.

Fegans’s constitutional claims fail under the applicable “reasonableness” standard. O’Lone, 482 U.S. at 349, 107 S.Ct. 2400; Turner, 482 U.S. at 89, 107 S.Ct. 2254. As we noted in Hamilton, “ ‘when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.’ ” 74 F.3d at 1550 (quoting Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)). Given the district court’s unassailable finding that long hair poses a threat to security, the ADC’s hair-length regulation does not violate an inmate’s constitutional right to the free exercise of his religion. Hamilton, 74 F.3d at 1551; Iron Eyes v. Henry, 907 F.2d 810, 813 (8th Cir.1990). For similar reasons, the ADC regulation does not violate Fegans’s constitutional right to equal protection of the laws. As the factual record stands in this case, the district court did not err in concluding that the ADC has a valid reason for differing hair-length rules for men and women, and that the regulations are “reasonably related” to the State’s legitimate, penological interests of safety and security.

B.

Fegans also contends that the requirement of the grooming policy that he shave his beard violates his rights under the First Amendment and RLUIPA. In explaining the justification for this rule, Norris testified that the prohibition on facial hair “keeps [inmates] from being able to change their appearance,” and makes it easier for law enforcement to track and identify an inmate after an escape. Norris also suggested that long beards, like long hair, facilitate the transport of contraband. These safety and security concerns are compelling governmental interests. See Cutter, 544 U.S. at 725 n. 13, 125 S.Ct. 2113.

Fegans acknowledges that institutional security is a compelling interest, but argues that the shaving requirement is not the least restrictive means available to address these concerns. He observes that the ADC grants a medical exemption from the shaving requirement for inmates with a diagnosed dermatological condition, and contends that this exemption shows that the ADC can permit facial hair without endangering institutional security.

The ADC’s medical exemption does not win the day for Fegans, because he has not been disciplined merely for growing facial hair consistent with that exemption (i.e., facial hair that does not exceed a quarter-inch in length), and he did not communicate to the ADC or testify at trial that the medical exemption would satisfy his religious beliefs. Rather, Fegans testified that his religion requires that he refrain from “rounding the corners” of his beard, and he was disciplined for wearing a beard that was uncut altogether. The beard permitted by the medical exemption has rounded corners, and we therefore *907presume that it is not satisfactory to Fe-gans. This is not a case, therefore, in which the ADC grants an exemption to some inmates for medical reasons, but refuses to grant the same exemption to another inmate for religious reasons. Cf. Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 366-67 (3d Cir.1999). We need not decide whether such a distinction would be permissible under RLUIPA or the First Amendment, because the record does not present the question.4

On this record, the ADC disciplined Fe-gans for wearing an uncut beard. The record shows that uncut beards create safety and security concerns that are not presented by clean-shaven faces or quarter-inch beards. Norris explained at trial that an uncut beard would make identification more difficult and would facilitate the smuggling of contraband. An uncut beard creates a better disguise for an escapee than a quarter-inch beard, because it conceals the contours of an inmate’s face. (T. Tr. 262). And an uncut beard allows a prisoner to transport contraband, while a quarter-inch beard is too short to serve that purpose. See Green v. Polunsky, 229 F.3d 486, 490 (5th Cir.2000). In applying this policy to Fegans, prison officials were aware of his disciplinary history, which included two previous escape attempts and the smuggling of contraband within the prison. (T. Tr. 293-94, 326). We therefore agree with the district court that the ADC demonstrated a compelling penological interest in prohibiting Fegans from wearing an uncut beard, and that this prohibition was the least restrictive means available to further that interest.

For all of its criticism of the ADC’s grooming policies, the dissent, in the end, is not prepared to order the prison to permit Fegans to grow long hair and a full beard. Rather, the dissent urges “a remand to give the prison the opportunity to conduct the individualized review RLUIPA requires.” Post, at 912. We do not agree with the implication that RLUI-PA calls for the federal courts to impose procedural requirements on the internal disciplinary processes used by prison administrators. Fegans was afforded individualized consideration at a bench trial in which the ADC was required to prove that the burden imposed on Fegans’ religious exercise by the grooming regulations was the least restrictive means of furthering the compelling governmental interests in order, safety, and security. Moreover, particularly given the Supreme Court’s emphasis in Cutter on giving “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,” 544 U.S. at 722, 125 S.Ct. 2113 (emphasis added) (internal quotation omitted), we do not interpret RLUIPA to prevent a prison from applying certain important security regulations to all inmates without providing for exemptions. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 436, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006) (“We do not doubt that there may be instances in which a need for *908uniformity precludes the recognition of exceptions to generally applicable laws under RFRA.”).

Fegans’s constitutional challenges to the prohibition on uncut beards fail for the same reasons. The ADC has established that it has a compelling interest in safety and security, and that the grooming policy is “reasonably related” to those interests. See O’Lone, 482 U.S. at 349, 107 S.Ct. 2400.

C.

Fegans claims that the district court abused its discretion in awarding only $1500 in damages for the ADC’s failure to provide Kosher meals. Aside from punitive damages, the Prison Litigation and Reform Act limits recovery for mental or emotional injury to nominal damages only. Royal v. Kautzky, 375 F.3d 720, 723 (8th Cir.2004). We conclude that an award of $1.44 for each constitutional violation is a sufficient nominal damage award, and that the district court did not abuse its discretion in declining to award a greater amount. See id. at 724 (affirming award of one dollar in nominal damages). To the extent that Fegans appeals the district court’s refusal to award punitive damages, we discern no abuse of discretion. The district court accurately stated the legal standard for an award of punitive damages, but found that Norris and the ADC did not act with malice, and that punitive damages were not warranted to deter future unlawful conduct, because the ADC already had instituted a policy for providing Kosher meals. These reasons are sufficient to support the court’s ruling.

D.

Fegans also challenges the district court’s dismissal, with prejudice, of his state law claims. As the district court held, employees of the State of Arkansas acting in their official capacity are immune from civil suits for damages. See Fegans v. Norris, 351 Ark. 200, 89 S.W.3d 919, 924 (2000). While prison officials acting in their individual capacities may be liable for damages if they act with malice, id. at 924-25; Grine v. Bd. of Trustees, 338 Ark. 791, 2 S.W.3d 54, 58 (1999), the district court did not clearly err in finding that Fegans failed to present evidence of malice. Accordingly, the district court properly dismissed the state law claims.

For the foregoing reasons, we affirm the judgment of the district court.

. The Honorable James M. Moody, United States District Judge for the Eastern District of Arkansas.

. Without confronting the "clear error” standard of review applicable to findings of fact, the dissent rejects the district court's decision to credit Norris’s testimony about the relative security risks of male and female inmates, and launches into an inapposite discussion of which party bears the burden of proof. Post, at 910-12. In Warsoldier, the Ninth Circuit rejected a prison's argument that women inmates were “much less likely” to commit violent crimes than male inmates, because the data submitted by the prison to support its position did not focus on the relevant type of institution, and did not clearly bear out the prison’s assertion. 418 F.3d at 1000-01. Here, the prison relied instead on historical testimony of the director of the ADC that female inmates are not as prone to create problems with contraband as are male inmates. The district court credited this testimony and found that it satisfied the burden of proof. While Fegans did not bear the burden of proof on this issue, he was free to present countervailing evidence. The dissent evidently would go beyond the Ninth Circuit in Warsoldier and require that the ADC make a formal statistical presentation to support the testimony of experienced prison officials. This approach is contrary to the law of our circuit, and we decline to adopt it. See Hamilton, 74 F.3d at 1554 (upholding prison hair length regulation based on testimony of prison officials).

. The dissent cites a moment in Norris's testimony during which he is unable to recall the details of the alternative grooming policies considered by the prison nine years earlier. Post, at 910. At other points, however, Norris explained that his staff, in 1997, had provided a memorandum detailing the hair and grooming policies of five other States and the Federal Bureau of Prisons, (App. of Exh's at 3), that this memorandum played a role in formulating the ADC policy, (T. Tr. 233), and that prison officials considered other alternatives during their deliberations. (T. Tr. 240, 278-80). Norris also discussed two other alternatives raised by counsel during the trial. (T. Tr. 290-91, 324).

. Security concerns underlying a grooming policy that governs inmates may differentiate such a policy from a similar rule applicable to police officers or other public employees. Where one purpose of a prohibition on beards is to prevent inmates from changing appearance in the event of escape, there may be good reason to distinguish between inmates with a dermatological condition, if it permanently precludes shaving (and a corresponding change in appearance), and inmates with no skin condition who could alter their appearances after an escape.