In for a half inch, not in for two feet

|The Volokh Conspiracy |

Earlier this year, the Supreme Court held (Holt v. Hobbs) that the Religious Land Use and Institutionalized Persons Act required prisons to allow religious inmates to grow half-inch beards, even when a general prison rule forbids all facial hair. But Wednesday, the U.S. Court of Appeals for the 11th Circuit in Knight v. Irvin held that prisons don't have to let religious inmates grow their hair long, if they have a general short-hair requirement. The result strikes me as quite right, and it illustrates well how fact-specific decisions under religious accommodations schemes often have to be. Here's the panel's explanation of how Hobbs affects the analysis (some paragraph breaks added):

[The Alabama Department of Corrections'] short-hair policy forbids Plaintiffs from wearing their hair unshorn in accordance with the dictates of their Native American religion. In our previous opinion, we affirmed the district court's entry of judgment in favor of the ADOC. On January 26, 2015, the Supreme Court vacated our previous opinion and remanded for further consideration in light of Holt v. Hobbs…. [W]e conclude that Holt does not dictate a change in the outcome of this case….

In Holt, the Supreme Court considered a RLUIPA challenge to the Arkansas Department of Correction's ("the Department") "no-beard policy." The no-beard policy prohibited inmates from wearing facial hair other than a neatly trimmed mustache. The policy made no exception for inmates who objected on religious grounds but did allow inmates with diagnosed dermatological problems to wear a ¼-inch beard…. [T]he Supreme Court reversed, holding that the Department's grooming policy violated RLUIPA insofar as it prevented [Gregory] Holt from growing a½-inch beard in accordance with his religious beliefs.

Plaintiffs here raise three arguments worth addressing for why Holt changes the outcome in their case. First, Plaintiffs argue that, like the lower courts in Holt, the district court in this case failed to engage in a "focused inquiry." We disagree. In Holt, in relevant part, the Department argued that its grooming policy represented the least restrictive means of furthering a broadly formulated interest in prison safety and security. The Supreme Court cautioned, however, that RLUIPA demands "a more focused inquiry and requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law to … the particular claimant." Thus, RLUIPA requires a court to "scrutinize 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."

While Holt sought to grow a ½-inch beard, such that the Department had to show how denying him a ½-inch beard actually furthered its compelling interests, the Plaintiffs here request a complete exemption of long, unshorn hair from the ADOC's short-hair policy. Therefore, RLUIPA requires us to scrutinize the asserted harm of granting that specific exemption of long, unshorn hair and to look to the marginal interest in enforcing the short-hair policy in that particular context.

That is exactly the focused inquiry that this Court and the district court applied…. "[The magistrate judge] found that inmates can use long hair to alter their appearances, long hair impedes the ability of officers to quickly identify inmates in the prisons, and inmates can use long hair to identify with special groups, including gangs." … "Plaintiffs have not presented any less restrictive alternative that can adequately contain the risks associated with long hair …." "The ADOC has shown that Plaintiffs' requested exemption poses actual security, discipline, hygiene, and safety risks." …

Second, the Plaintiffs claim that the district court applied "unquestioning deference" to prison officials' testimony. In Holt, the Supreme Court admonished the lower courts for engaging in "unquestioning deference" to the Department's assertion that allowing Holt to grow a½-inch beard would undermine its compelling interest instead of requiring the Department "to prove that denying the exemption is the least restrictive means of furthering a compelling governmental interest."

Notably, the prison officials in Holt provided largely conclusory and speculative testimony in justification of their no-beard policy; for example, they could point to no instance in Arkansas or elsewhere where an inmate had hidden contraband in a½-inch beard, and they could not explain why a dual-photo method could not be employed to address the concern of an escaped inmate shaving his beard to disguise his appearance.

Here, in contrast, the district court made various factual findings concerning inmates' hair length based on the ADOC's witnesses' "elucidating expert opinions, lay testimony, and anecdotal evidence based on their decades of combined experience as corrections officers." As we explained in our previous decision, "the detailed record developed during the trial of this case amply supports the [d]istrict [c]ourt's factual findings about the risks and costs associated with permitting male inmates to wear long hair."

The ADOC's witnesses offered more than "speculation, exaggerated fears, or post-hoc rationalizations," and the type of "unquestioning deference" that concerned the Holt Court simply did not occur in this case. In other words, the ADOC didprove that denying Plaintiffs' specific exemption is the least restrictive means of furthering its compelling governmental interests.

Third, the Plaintiffs contend that, in light of Holt, the district court erred in disregarding the evidence presented below that the prison systems of 39 other states "would allow the religious accommodation Plaintiffs request." Holt presented evidence that "the vast majority of States and the Federal Government permit inmates to grow ½-inch beards, either for any reason or for religious reasons."

The Supreme Court concluded that the Department failed to show, in the face of this evidence, why it could not do the same. The Supreme Court explained that "when so many [other] prisons offer an accommodation, a prison must, at a minimum, offer persuasive reasons why it believes that it must take a different course, and the Department failed to make that showing here." Id.

As an initial matter, on this record, it is not apparent that the Plaintiffs presented evidence that all of these 39 other prison systems would allow their specific requested accommodation—long, unshorn hair. For instance, while several of the written policies of other prison systems proffered by Plaintiffs indicate that inmates generally have freedom in choosing their hair length, the policies make clear that the chosen hair length cannot pose risks for health, safety, hygiene, order, or security. Thus, it is not clear that these policies would allow for entirely unshorn hair.

In any event, unlike in Holt, the district court here did not defer to the ADOC's "mere say-so" that it could not accommodate Plaintiffs' requested accommodation even though other prison systems offer such an accommodation. As already discussed, the "detailed record developed" below distinguishes this case from Holt, where the lower courts gave "unquestioning deference" to prison officials' conclusory and speculative assertions. As we stated in our previous opinion, the ADOC has "shown that Plaintiffs' requested exemption poses actual security, discipline, hygiene, and safety risks" and neither we nor Plaintiffs can "point to a less restrictive alternative that accomplishes the ADOC's compelling goals."

Therefore, we reinstate our Knight I opinion with revisions only in Part III.B.ii on pages 1284 to 1286. We file that reinstated opinion with those revisions, contemporaneously with this opinion.

For the full revised opinion, see here. Thanks to Jeffrey Redfern for the pointer.