Amicus Curiae Brief — Thunderhorse v. Pierce

DE \

No. 09-1353 -

Jn the Supreme Court of the Anited States

IRON THUNDERHORSE, PETITIONER

Uv.

BILL PIERCE, INDIVIDUALLY AND IN HIS OFFICIAL

CAPACITY AS CHAPLAINCY DIRECTOR OF THE TEXAS

DEPARTMENT OF CRIMINAL JUSTICE, ET AL.

ON PETITION FORA WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

NEAL KUMAR KATYAL

Acting Solicitor General

Counsel of Record

LEONDRA R. KRUGER

Acting Deputy Solicitor

General

THOMAS E. PEREZ

Assistant Attorney General

SAMUEL R. BAGENSTOS

Deputy Assistant Attorney

General

SARAH E.. HARRINGTON

Assistant to the Solicitor

General

DIANA K. FLYNN

HOLLY A. THOMAS

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@ usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals erred in its application

of the “least restrictive means” test of the Religious

Land Use and Institutionalized Persons Act of 2000, 42

U.S.C. 2000ce et seq., in upholding a prison grooming

policy that prohibits inmates from growing long hair.

TABLE OF CONTENTS

CS re ee

Discussion

A. The courts of appeals are in agreement about

how to apply RLUIPA’s “least restrictive means”

standard

The court of appeals in this case erroneously

departed from accepted standards governing

inmates’ RLUIPA claims

Conclusion

TABLE OF AUTHORITIES

Cases:

Baranowski v. Hart, 486 F.3d 112 (Sth Cir.),

cert. denied, 552 U.S. 1062 (2007)

City of Boerne v. Flores, 521 U.S. 507 (1997)

Cutter v. Wilkinson, 544 U.S. 709 (2005)

Diaz v. Collins, 114 F.3d 69 (5th Cir. 1997)

Fegans v. Norris, 537 F.3d 897 (8th Cir. 2008)

Gonzales v. O Centro Espirita Beneficente Uniao

Do Vegetal, 546 U.S. 418 (2006)

Gooden v. Crain, 353 Fed. Appx. 885 (5th Cir.

2009)

Grutter v. Bollinger, 589 U.S. 306 (2003)

Hamalton v. Schriro, 74 F.3d 1545 (8th Cir.),

cert. denied, 519 U.S. 874 (1996)

Hoevenaar v. Lazaroff, 422 ¥'.3d 366 (6th Cir. 2005),

cert. denied, 549 U.S. 875 (2006) Pare slr 11,17

Jovav. Smith, 582 F.3d 410 (2d Cir. 2009),

cert. denied, 130 S. Ct. 2111 (2010)

(111)

Williams v. Snyder, 367 Fed. Appx. 679 (7th Cir.),

cert. denied, 131 5. Ct. 343 (2010)

yases—Continued Pap

Koger v. Bryan, 528 b.3d 789 (7th Cir. 2008) 1]

Lathan v. Thompson, 251 Fed. Appx. 665 (11th Cir.

DEE Gabecéeevuuneees 1]

Longoria Vv. Dretke, 507 F.3d 898 (5th Cir. 2007) 5, 7, 18

Lovelace v. Lee, 472 l'.3d 174 (4th Cir. 2006) 10

Mayfield v. TDC, 529 F.8d 599 (Sth Cir. 200%) lo, 20

McRae v. Johnson, 261 ed. Appx. 554 (4th Cir

| 14

Murphy v. Missouri Dep't of Corr., 872 V°.8d 979

(Sth Cir.), cert. denied, 543 U.S. 991 (2004) 10, Ll, lo

Newby v. Quarterman, 3825 Fed. Appx. 345

(5th Cir. 2009) ay 1Z, lo, ZV

Odneal v. Pierce, 324 Fed. Appx. 297 (5th Cn

ZUUD) . ie sarees 5 ae IZ, 19, 20

Sherbert v. Verner, 3874 U.S. 898 (1963) 13

Smith v. Ozmaint, 578 F.3d 246 (4th Cir. 2009) . 12

Sossamon v. Texas, 560 F.3d 316 (5th Cir. 2009),

cert. granted, No. 08-1438 (argued Nov. Z,

DEE og aca u ee acd , 1M), b>

Spratt v. Rhode Island Dep't of Corr., 482 F.3d 33

(Ist Cir. 2007) .... s : 10, 14, lo

Warsoldier v. Woodford, 418 F.3d 989

(9th Cir. 2005) ..... , , 11,13, 15, 18

Washington v. Klem, 497 I .38d 272 (3d Cir. 2007) lO

Statute: Pape

Civil Rights of Institutionalized Persons Act of 1995

42 U.S.C. 1997

Prison Litigation Reform Act, 42 U.S.C. 1997e(a) 14

teligious I'reedom Restoration Act of 19938, 42 U.S.C

ZO00bb et seq (}

42 U.S.C. Z000bb-1(a) 6,13

Religious Land Use and Institutionalized Persons Act

of 2000, 42 U.S.C, 2000ce ef seg

12 U.S.C. 2000ec-1

12 U.S.C. 2000ce-1(a) 6.8. 1s

12 U.S.C. 2000c¢e-2(b) 2 8

12 U.S.C. 2000ce-5(2) 2

12 U.S.C. 1988 ,

Miscellaneou

146 Cong. Kec. 16,699 (2000) \)

Rep. No. 111, 108d Cong., Ist Sess. (1993) {y

‘Texas Department of Criminal Justice, Offender

Orientation Handbook, Ch. 1,8 TILA (Nov. 2004),

http://www.tdcj.state.tx.us/publications/eid/

OffendOrientHbkNov04 pal

Jn the Supreme Court of the Guited States

No. 09-1353

LRON THUNDERHORSKE, PETITIONER

Uv,

BILL PIERCE, INDIVIDUALLY AND IN HIS OFFICIAL

CAPACITY AS CHAPLAINCY DIRECTOR OF THE TEXAS

DEPARTMENT OF CRIMINAL JUSTICE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is filed in response to the Court’s order

inviting the Acting Solicitor General to express the

views of the United States. In the view of the United

States, the petition for a writ of certiorari should be de-

nied, or, in the alternative, should be granted and the

decision below summarily reversed and remanded for

application of the correct legal standard.

STATEMENT

1. Congress enacted the Religious Land Use and

Institutionalized Persons Act of 2000 (RLUIPA), 42

U.S.C. 2000ce et seq., to provide statutory protection

against religious discrimination—including unequal

treatment of religions in the provision of accommoda-

tions and unjustified infringement of the free exercise of

(1)

religion—by state and loeal governmental entities. The

statute applies to two specific contexts: land use regula-

tion and institutionalization. The provision at issue in

this case is Section 3 of RLUIPA, which provides:

(a) General rule. No government shall impose a sub-

stantial burden on the religious exercise of a person

residing in or confined to an institution, as defined in

section 2 of the Civil Rights of Institutionalized Per-

sons Act (42 U.S.C. 1997), even if the burden results

from a rule of general applicability, unless the gov-

ernment demonstrates that imposition of the burden

on that person—

(1) isin furtherance of a compelling governmen-

tal interest; and

(2) is the least restrictive means of furthering

that compelling governmental interest.

12 U.S.C. 2000ee-1. Section 4 of RLUIPA specifies that

a “plaintiff shall bear the burden of persuasion on

whether” a challenged law “substantially burdens the

plaintiff’s exercise of religion.” 42 U.S.C. 2000ec-2(b).

Section 6, in turn, makes clear that the government de-

fendant bears the burdens of proof and persuasion on

whether any burden imposed is the least restrictive

means of furthering a compelling governmental interest.

42 U.S.C. 2000ec-5(2) (defining “demonstrates” to mean

“meets the burdens of going forward with the evidence

and of persuasion”).

2. Petitioner is a prisoner in the custody of the Tex-

as Department of Criminal Justice (TDCJ). Pet. App.

2a. In its Offender Orientation Handbook, 'TDCJ man-

dates the following cleanliness and grooming standards

for male and female offenders, respectively:

Male offenders must keep their hair trimmed up the

back of their neck and head. Hair must be neatly

eut. Hair must be cut around the ears. Sideburns

will not extend below the middle of the ears. No

block style, afro, natural or shag haircuts will be per-

mitted. No fad or extreme hairstyles/haireuts are

allowed. No mohawks, tails, or designs cut into the

hair are allowed.

KFemale offenders will not have extreme hairstyles.

No mohawk, “tailed” haircuts or shaved/partially-

shaved heads will be allowed. Female offenders may

go to the beauty shop on their unit; however, going to

the beauty shop is a privilege. Female offenders may

be restricted from going to the beauty shop as the

result of disciplinary action.

Pet. 3-4; see TDCJ, Offender Orientation Handbook,

Ch. 1, § LILA, at 10-11 (Nov. 2004), http://www.tdej.

state.tx.us/publications/cid/OffendOrientHbkNov04.pdf.

The handbook does not provide that exemptions from

the grooming policy are available to accommodate reli-

gious practices.

Petitioner practices Native American Shamanism.

Pet. App. 4a. In 2004, he was transferred from the

Stiles Unit of the TDCJ to the Polunsky Unit. bred.

According to his complaint, petitioner was able to main-

tain long hair, with braids falling to his.lower back, as he

alleges his religion requires, before he was transferred

to the Polunsky Unit. /b¢d. Petitioner also alleges that

he was permitted other religious acecommodations—such

as wearing a colored headband, performing pipe ceremo-

nies, and possessing other religious items—-while in the

general population and while in administrative segrega

tion before his transfer to the Polunsky unit. /bid. Af-

ter his transfer, petitioner alleges that guards at the

Polunsky Unit confiscated his medicine bag, religious

medallion, and quartz crystal. /d. at 5a. He further al-

leges that the harassment led to an altercation with a

prison guard, which resulted in petitioner’s being placed

in administrative segregation, where he is not permitted

to attend pipe ceremonies, conduct a pipe ceremony in

his cell, or possess a flute or drum. /b2d. In addition,

TDCJ does not aliow petitioner to wear a colored head-

band, and refused to grant him an exception to its hair

length restrictions so that he may maintain long hair in

accordance with the tenets of his religion. /d. at 2a, 5a.

3. In October 2004, petitioner filed suit pro se under

42 U.S.C. 19838 and RLUIPA, alleging violations of his

federal constitutional and statutory rights. Pet. App. 3a,

20a. Specifically, petitioner challenged TDCJ’s (1) confi-

scation of various religious items, (2) denial of programs

for shamans, (3) denial of a racial category for “Native

Americans,” (4) failure to provide exemptions or accom-

modations to the dress code and grooming code,

(5) failure to allow equal services for inmates in segrega-

tion, and (6) failure to honor prior agreements that he

had entered into with prison officials. /d. at 2a-3a, 61a.

The ease was assigned to a magistrate judge, who

granted summary judgment for TDCJ on petitioner's

RLUIPA elaims. /d. at 38a. Petitioner appealed and the

court of appeals vacated the grant of summary judgment

and remanded for further proceedings. The court found

that the magistrate judge had not given petitioner suffi-

cient notice to allow him to properly respond to TDCJ’s

motions, and that the lack of notice had prevented peti-

tioner from filing a “large amount of evidence.” /bid.

On remand, after holding a bench trial, the magis-

trate judge issued an opinion ordering that: (1) TDCJ

-

o

“recognize Native American Shamanism as a valid

faith”; (2) petitioner be permitted to request the desig-

nation of a reasonable number of holy days and tradi-

tional foods for feast days, in conformity with TDCJ reg-

ulations; and (3) TDCJ allow petitioner reasonable ac-

cess to various religious objects in the event that he is

released from administrative segregation. Pet. App. 3a-

4a. The judge denied all of petitioner’s other requests

for relief. Jbid. Regarding TDCJ’s grooming policies,

the magistrate judge held that petitioner’s claim was

foreclosed by a prior Fifth Circuit ruling that “upheld

the dismissal of an inmate’s challenge to the TDCJ’s

grooming code based on religious reasons.” /d. at 69a

(citing Longoria v. Dretke, 507 F.3d 898, 904 (5th Cir.

2007)).

4. Petitioner again appealed, challenging, among

other things, the magistrate judge’s dismissal of his

RLUIPA claims. Pet. App. 2a. He argued that “the

magistrate judge failed to analyze his claims under

RLUIPA’s compelling interest, least-restrictive-means

standard of review.” /d. at 8a. The court of appeals af-

firmed in an unpublished per curiam opinion. /d. at la-

19a.

The court of appeals held that the magistrate judge

correctly dismissed petitioner’s RLUIPA challenge to

TDCJ’s grooming policy as foreclosed by circuit prece-

dent. Pet. App. 8a. The court relied on Diaz v. Collins,

114 F.3d 69 (Sth Cir. 1997), and Longoria, supra, both of

which concerned challenges to prison grooming policies

on the ground that the policies imposed a substantial

burden on the religious exercise of inmates who wanted

to grow long hair for religious reasons. Pet. App. 8a-9a.

In each case, the court of appeals noted, the grooming

policy in question was upheld as “the least restrictive

6

way to serve a compelling governmental interest—

prison security.” bid.

As the court of appeals explained, Pet. App. 9a-10a,

Diaz arose under RLUIPA’s predecessor statute, the

Religious Freedom Restoration Act of 1993 (RFRA), 42

U.S.C. 2000bb et seq., before this Court invalidated that

statute as applied to the States and their subdivisions.

See City of Boerne v. Flores, 521 U.S. 507, 532-536

(1997); see also Cutter v. Wilkinson, 544 U.S. 709, 714-

715 (2005) (describing background of RLUIPA). Like

Section 3 of RLUIPA, RFRA requires governmental

entities to justify imposing a substantial burden on reli-

gious exercise by demonstrating that doing so is the

least restrictive means of furthering a compelling gov-

ernmental interest. Compare 42 U.S.C. 2000bb-1(a)

with 42 U.S.C. 2000cce-1(a). The court in Draz found that

TDCJ’s grooming code was the least restrictive means

of furthering the government’s compelling interest in

security because it prevented inmates from hiding weap-

ons and other contraband in their hair and made it more

difficult for escaped prisoners to alter their appearance.

114 F.3d at 73; see Pet. App. Ya. The Diaz court con-

cluded that “the security interest at stake cannot mean-

ingfully be achieved appropriately by any different or

lesser means than hair length standards.” 114 F.3d at

73. The court of appeals in this case observed that

TDCJ had introduced “similar evidence” here, and that

the Regional Director of the TDCJ had also testified

that the policy prevented hair-grabbing during alterca-

tions. Pet. App. 9a n.2.

Relying on Diaz, the court in Longoria rejected a

RLUIPA challenge to the same grooming policy that

had been at issue in that case. See Pet. App. 9a. Noting

that “the test under RLUIPA is sufficiently the same as

7

that previously imposed under RFRA,” the court in

Longoria upheld the grooming policy without requiring

TDCJ “to demonstrate, as it did in Diaz, that its groom-

ing policy ‘is related to security, and, as such, involves a

compelling state interest,’ which ‘cannot meaningfully be

achieved appropriately by any different or lesser means

than hair length standards.’” 507 F.3d at 904 (quoting

Diaz, 114 F.3d at 73).

The court of appeals in this case acknowledged peti-

tioner’s argument that the policy could not be “the least

restrictive means to maintain prison security|, ] because

the TDCJ [had] enforce{d] it in an arbitrary manner”

(by previously allowing petitioner and other inmates to

have long hair) and because “other prison systems, in-

cluding the Federal Bureau of Prisons, permit long

hair.” Pet. App. 10a n.3. The court concluded, however,

that it was “bound by Diaz and Longoria,” and accord-

ingly affirmed dismissal of petitioner’s RLUIPA chal-

lenge to TDCJ’s grooming policy. [bid.; see id. at 10a.’

DISCUSSION

As numerous courts of appeals have affirmed,

RLUIPA requires defendants to demonstrate that prac-

tices that impose substantial burdens on inmates’ reli-

gious exercise are the least restrictive means of further-

ing a compelling interest under the facts of the particu-

lar case. Although the Fifth Circuit has recognized that

principle in other cases, in its unpublished opinion in

this case the court erroneously affirmed the dismissal of

' The court also affirmed the magistrate judge’s rejection of the

remainder of petitioner’s claims. Pet. App. 10a-19a. In his petition for

a writ of certiorari, petitioner seeks review only of the court of appeals’

ruling on his RLUIPA challenge to TDCJ’s grooming policy. See Pet.

i.

8

petitioner’s RLUIPA challenge to TDCJ’s grooming

policy without requiring respondent to address record

evidence that tended to show that prison officials poten-

tially could further compelling governmental interests

through less restrictive means. That case-specifie error

does not warrant plenary review by this Court. The

Court may, however, wish to consider summarily revers-

ing the judgment of the court of appeals and remanding

for application of the correct standard.

A. The Courts Of Appeals Are In Agreement About How To

Apply RLUIPA’s “Least Restrictive Means” Standard

1. Section 3 of RLUIPA prohibits a government

from imposing a substantial burden on the religious ex-

ercise of an institutionalized person unless the govern-

ment can demonstrate that the burden is the least re-

strictive means of furthering a compelling governmental

interest. 42 U.S.C. 2000ec-1(a). Although a plaintiff

bears the burden of establishing that a challenged prac-

tice substantially burdens his religious exercise, see 42

U.S.C. 2000cc-2(b), RLUIPA places the burden on de-

fendants to justify such a burden under the compelling-

interest/least-restrictive-means test, 42 U.S.C.

2000cc-2(b), 2000ce-5(2).

In upholding RLUIPA against an Establishment

Clause challenge in Cutter v. Wilkinson, 544 U.S. 709

(2005), this Court noted that “[clontext matters” in the

application of RLUIPA’s substantive standard. /d. at

723 (quoting Grutter v. Bollinger, 539 U.S. 306, 327

(2003)). The Court acknowledged that the lawmakers

supporting RLUIPA “anticipated that courts would ap-

ply the Act’s standard with ‘due deference to the experi-

ence and expertise of prison and jail administrators in

establishing necessary regulations and procedures to

9

maintain good order, security and discipline, consistent

with considerations of costs and limited resources.’”

Ibid. (quoting Joint Statement of Senator Hatch and

Senator Kennedy on the Religious Land Use and Insti-

tutionalized Persons Act of 2000, 146 Cong. Rec. 16,699

(2000) (Joint Statement)); rd. at 725 n.13 (“It bears repe-

tition, however, that prison security is a compelling state

interest, and that deference is due to institutional offi-

cials’ expertise in this area.”). Those lawmakers also

recognized, however, that “inadequately formulated

prison regulations and policies grounded on mere specu-

lation, exaggerated fears, or post-hoc rationalizations

will not suffice to meet the act’s requirements.” Jornt

Statement, 146 Cong. Rec. at 16,699 (quoting S. Rep. No.

111, 108d Cong., Ist Sess. 10 (1993)).

2. Asa general matter, courts of appeals evaluating

prisoners’ RLUIPA claims have correctly enforced

RLUIPA’s allocation of burdens. In so doing, they have

appropriately balanced the deference due to the exper-

tise of prison administrators with RLUIPA’s require-

ment that defendants do more to justify the imposition

of a substantial burden on religious exercise than rely on

speculation or unjustified fears. Courts have performed

that balancing by requiring prison administrators to

offer evidence—usually in the form of affidavits from

prison officials—explaining how the imposition of an

identified substantial burden furthers a compelling gov-

ernmental interest and why it is the least restrictive

means of doing so, with reference to the circumstances

presented by an individual case. Once a defendant has

offered such evidence, courts have granted due defer-

ence to the expertise brought to bear in formulating the

prison’s policies.

lO

a. The First Circuit, for example, has made clear

that prison officials must “do more than merely assert a

security concern” in order to justify imposing a substan-

tial burden. Spratt v. Rhode Island Dep’t of Corr., 482

F.3d 33, 39 (2007) (quoting Murphy v. Missoun Dep't of

Corr., 372 F.3d 979, 988 (8th Cir. 2004), cert. denied, 543

U.S. 991 (2004)). Although that court recognized that

“prison officials are to be accorded deference in the way

they run their prisons,” the court explained that “this

does not mean that [the court] will rubber stamp or me-

chanically accept the judgments of prison administra-

tors.” Jd. at 40 (internal quotation marks and citation

omitted). Other courts of appeals agree. See, e.g., Jova

v. Smith, 582 F.3d 410, 415 (2d Cir. 2009) (noting that

“the state may not merely reference an interest in secu-

rity or institutional order in order to justify its actions;

rather, ‘the particular policy must further this interest’;

and must be more than conclusory”) (internal citation

omitted), cert. denied, 130 S. Ct. 2111 (2010); Washing-

ton v. Klem, 497 F.3d 272, 283 (3d Cir. 2007) (“Even in

light of the substantial deference given to prison author-

ities, the mere assertion of security or health reasons is

not, by itself, enough for the Government to satisfy the

compelling governmental interest requirement. Rather,

the particular policy must further this interest. A con-

clusory statement is not enough.”) (internal citations

omitted); Lovelace v. Lee, 472 F.3d 174, 190 (4th Cir.

2006) (“Here, the first job is to require [the defendant

prison] to take the unremarkable step of providing an

explanation for the policy’s restrictions that takes into

account any institutional need to maintain good order,

security, and discipline, or to control costs. That expla-

nation, when it comes, will be afforded due deference.”);

Sossamon v. Texas, 560 F.3d 316, 335 (5th Cir. 2009)

1]

(noting that a State’s “conclusional assertion” regarding

the least restrictive means of furthering a compelling

interest is not sufficient to justify imposition of a bur

den), cert. granted, No. 08-1438 (argued Nov. 2, 2010);

Hoevenaar v. Lazaroff, 422 F.3d 366, 370 (6th Cir. 2005)

(acknowledging that “the district court is not required

to blindly accept any policy justifications offered by

state officials”), cert. denied, 549 U.S. 875 (2006); Koger

v. Bryan, 523 F.3d 789, 800 (7th Cir. 2008) (“We can only

give deference to the positions of prison officials as re-

quired by [Cutter] when the officials have set forth those

positions and entered them into the record.”); Murphy

at 988-989 (“Although we give prison officials wide lati

tude within which to make appropriate limitations, they

must do more than offer conclusory statements and post

hoe rationalizations for their conduct.”) (internal quota-

tion marks omitted); Warsoldier v. Woodford, 418 F.3d

989, 1000 (9th Cir. 2005) (finding that prison’s “con-

clusory statements are insufficient to meet its burden

that it has adopted the least restrictive means to achieve

[a compelling] interest”); Lathan v. Thompson, 251 Fed.

Appx. 665, 667 (11th Cir. 2007) (unpublished) (per

curiam) (remanding a RLUIPA claim to the district

court so that prison officials could present evidence that

was not “over ten years old” to justify the restriction at

issue in that case).*

b. The courts of appeals have, moreover, undertaken

case-specific evaluations of RLUIPA defendants’ as-

serted justifications for imposing substantial burdens on

prisoners’ religious exercise. The Fourth Circuit, for

example, has rejected prison officials’ reliance on an affi-

’ Neither the Tenth nor D.C. Circuit apnears to have addressed the

burden RLUIPA places on prison officials to justify imposing a sub-

stantial burden on an inmate’s religious exercise.

No

davit justifying a challenged grooming policy, but cre

ated for different litigation involving a different institu-

tion, because the affidavit “had nothing to do” with the

institution at issue in the case and was, therefore, “sim

ply not on point.” Smith v. Ozmint, 578 F.3d 246, 252

254 (2009).

The Fifth Circuit has required that Texas prison offi

cials justify their refusal to grant a religious exemption

to TDCJ’s grooming rule for the particular type of hair

style the inmate seeks to grow. Odneal v. Pierce, 324

Fed. Appx. 297, 300-301 (2009). In that case, the plain-

tiff sought permission to grow a long patch of hair at the

base of his neck called a kouplock. /d. at 301. The court

rejected Texas’s reliance on Diaz v. Collins, 114 F.3d 69

(5th Cir. 1997)—one of the two decisions on which the

court of appeals relied in this case, see Pet. App. Va—

which upheld application of the grooming rule to long

braids. The court explained that “RLUIPA’s rules can-

not be applied to a particular governmental policy in a

generic fashion; it is not enough to say that the ‘groom

ing policy’ has been upheld when the case at hand deals

with [a requested hairstyle that is] potentially very dif

ferent from” the one considered in the prior case. Od-

neal, 324 Fed. Appx. at 300. As the Fifth Circuit stated

in another case, a court reviewing a prisoner’s RLUIPA

claim must “‘examin|e] the particular facts of the case’

before it.” Newby v. Quarterman, 325 Fed. Appx. 345,

351 (2009).”

* That approach is consistent with this Court’s interpretation of

RI RA, which employs the same substantive standard as RLUIPA. In

Gonzales v.O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S.

418, 430 (2006) (O Centro), for example, the Court held that the federal

government could not satisfy RF RA by arguing thata statutory scheme

“simply admits of no exceptions.” Rather, “RFRA operates by man-

c. Finally, as a means of ensuring that prison offi

cials demonstrate that the application of a challenged

practice to a particular plaintiff is the least restrictive

means of furthering a compelling governmental interest,

the courts of appeals have required that officials demon

strate that they have considered whether there are al

ternative, less restrictive means of furthering the rele

vant interest. No court of appeals requires prison offi

cials to undertake the “herculean burden” of “refut[ing|

every conceivable option in order to satisfy the least

restrictive means prong of” RLUIPA. Hamilton \

Schriro, 74 F.3d 1545, 1556 (8th Cir.), cert. denied, 519

U.S. 874 (1996). But the courts of appeals that have

reached the question agree that, when there is evidence

that potentially less restrictive alternatives exist, prison

officials must at least demonstrate that they have “con

sidered and rejected the efficacy of” those alternatives

Warsoldier, 418 F.3d at 999; see, e.g., Washington, 497

F.3d at 284 (noting that prison must “consider and re

ject other means before it can conclude that the policy

chosen is the least restrictive means”); Murphy, 372

i.3d at 989 (remanding for further proceedings where

it was “not clear that [the defendant] seriously consid

ered any other alternatives, nor were any explored be

fore the district court”). Consistent with that practice,

the courts of appeals have upheld rulings in favor of

dating consideration * * * of exceptions to ‘rule[s] of general applica

bility.’” /d. at 1223 (quoting 42 U.S.C. 2000bb-1(a)). The Court noted

that RFRA had expressly adopted the compelling interest test as set

forth in cases such as Sherbert v. Verner, 374 U.S. 398 (1963), in which

the “Court looked beyond broadly formulated interests justifying the

general applicability of government mandates and scrutinized the a:

serted harm of granting specific exemptions to particular reliyiou

Claimants.” O Centro, 546 U.S. at 431

14

prison defendants when the defendants have explained

why specific less restrictive alternatives are not feasible.

K.g., Williams v. Snyder, 367 Fed. Appx. 679, 681-683

(7th Cir.) (unpublished order), cert. denied, 131 S. Ct.

343 (2020); Gooden v. Crain, 353 Fed. Appx. 8&5, 889

(5th Cir. 2009) (unpublished) (per curiam); Melae v.

Johnson, 261 Fed. Appx. 554, 559 (4th Cir. 2008) (unpub

lished) (per curiam); Megans v. Norris, 5387 I .38d 897, 904

(Sth Cir. 2008).

Ata minimum, defendants’ obligation to address po

tential alternatives extends to those alternatives specifi

cally identified in the course of the administrative priev

ance process. Incarcerated persons are required by the

Prison Litigation Reform Act of 1995, 42 U.S.C.

1997e(a), to exhaust administrative grievance proce

dures prior to filing a lawsuit, including a suit to enforce

RLUIPA. See Cutter, 544 U.S. at 723 n.12. The re

quirement that an inmate request a religious accommo

dation through a prison’s internal grievance procedures

permits prison officials and inmates to work together in

the first instance to come up with workable solution:

that balance an inmate’s religious exercise with an insti

tution’s compelling interests. That process also serves

the function of developing an evidentiary record about

what potential alternatives would be acceptable to a

plaintiff and why such alternatives would or would not

work for an institution. If an inmate ultimately files suit

under RLUIPA, a defendant should be prepared to ad

dress the feasibility of potential alternatives identified

through the administrative process.

Moreover, when there is evidence in the record that

different prison systems—or different prisons within the

same system—provide exemptions to a rule that imposes

a substantial burden on religious exercise or otherwise

15

utilize less restrictive means of furthering their inter-

ests, the courts of appeals properly require defendants

to explain why they cannot adopt those less restrictive

practices. E.g., Fegans, 537 F.3d at 905; Kroger, 523

F.3d at 801; Spratt, 482 F.3d at 42; Warsoldrer, 418 F.3d

at 1000. The same is true with respect to evidence that

the defendant institution permits exemptions for some

purposes, religions, or populations, but not for others.

E..g., Sossamon, 560 F.3d at 335; Newby, 325 Fed. Appx.

at 352; Mayfield v. TDCJ, 529 F.3d 599, 615 (Sth Cir.

2008). At the same time, courts recognize that “evidence

of policies at one prison is not conclusive proof that the

same policies would work at another iustitution.”

Spratt, 482 F.3d at 42; see Fegans, 537 F.3d at 905 (“Al-

though 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.”). In the face of evidence that other institu-

tions employ less restrictive means, an institution must

satisfy the same burden generally applicable under

RLUIPA: it must demonstrate that its practices are the

least restrictive means of furthering its compelling in-

terest under the facts at issue in the particular case.

3. Petitioner argues (Pet. 10-11) that the courts of

appeals are divided “over the meaning of strict scrutiny

under RLUIPA.” In particular, petitioner contends that.

(Pet. 11), although seven circuits “require the govern-

ment to submit specific evidence and closely examine it

on the issue of least restrictive means,” the Fifth and

Sixth Circuits simply “accept the government’s own as-

16

sertion of what constitutes least restrictive means.”

That contention is incorrect.

In addition to this case and the Diaz and Longoria

decisions on which it relies, petitioner’s assertion about

the law in the Fifth Circuit rests on Baranowski v. Hart,

486 F.3d 112, cert. denied, 552 U.S. 1062 (2007). In

Baranowski, the Fifth Circuit upheld a district court’s

determination that Texas did not violate RLUIPA by

refusing to provide kosher meals to inmates. /d. at 125-

126. Although petitioner asserts that the Fifth Circuit

in that case reached that conclusion by merely

“accept|ing] the assertion of prison officials that denial

of a religious diet was ‘related to maintaining good order

and controlling costs and as such, involves compelling

government interests,’” Pet. 13 (quoting Baranowski,

486 F.3d at 125), the court in fact based its conclusion on

the “uneontroverted summary judgment evidence”

prison officials had submitted to justify their choice to

offer inmates vegetarian or pork-free meals instead of

“either providing a separate kosher kitchen or bringing

in kosher food from outside,” Baranowski, 486 F.3d at

125. That evidence included an affidavit attesting that

prison officials had “studied the impact of complying”

with requests to provide a separate kosher kitchen or

kosher meals from outside the facility, including by ex-

amining the practices of the Florida prison system. /d.

at 118. The affidavit concluded that the cost to Florida

of providing kosher meals ($12 to $15 per day per of-

fender, as compared to the $2.46 per day the State of

Texas paid for each offender’s meals) was not feasible in

light of constraints on TDCJ’s budget, and that “[p]ro-

viding kosher meals for a very small subset of offenders

would place a tremendous burden on the ability of TDCJ

to provide a nutritionally appropriate meal to all other

17

offenders.” /bzd. In concluding that the record was suf-

ficient to uphold the prison policy, the court of appeals

in Baranowski did precisely what petitioner appears to

suggest a court evaluating such a claim ought to do: it

verified that the defendants had provided an actual

explanation—not merely conclusory statements—that

their practice was the least restrictive means of further-

ing governmental interests, and that they had consid-

ered and rejected potential alternatives, including the

practice of a different prison system. /d. at 125-126.

In Hoevenaar, the Sixth Circuit reversed the grant

of a preliminary injunction permitting an inmate to grow

a kouplock as an exception to the prison’s general

grooming policy. 422 F.3d at 369-371. In so doing, the

court examined record evidence indicating that the “dis-

trict court’s solution of allowing kouplocks on an individ-

ualized basis for low-threat prisoners was not sufficient

to protect the state’s interest in safe and secure pris-

ons.” /d. at 371. Although, as petitioner notes (Pet. 16),

prison officials had not produced data showing “that

previously recognized exceptions had resulted in secu-

rity incidents,” the court of appeals reviewed evidence

that “contraband was a problem for all types of prison-

ers”; that the plaintiff in the case “hald] a long history

of possessing and hiding contraband,” and had “twice

attempted to escape from prison, utilizing contraband”;

and that “contraband could be hidden in a kouplock, in-

cluding dangerous items, such as an ice pick,” as well as

various types of small items the plaintiff “had previously

been found guilty of possessing.” Jd7zd. The court of

appeals, in short, did not rest its decision on “simple

assertions of security,” Pet. 12; it instead ensured that

prison officials had offered a substantive and relevant

justification for the burden they were imposing, and that

18

the officials had considered any alternatives suggested

in the case.

Finally, petitioner notes (Pet. 13-18) that some

courts of appeals have upheld restrictive grooming poli-

cies in the face of RLUIPA challenges while at least one

court has granted a preliminary injunction requiring a

religious exception to such a policy. See Warsolder,

supra. That different courts have reached different re-

sults in different cases is, however, unremarkable, par-

ticularly given RLUIPA’s requirement that courts con-

sider the circumstances of the particular parties before

it. See 42 U.S.C. 2000cec-1(a) (requiring that defendant

justify “imposition of the burden on that person”). Dif-

ferent prison systems, and different facilities within a

single prison system, hold different types of inmate pop-

ulations and are subject to different types and degrees

of logistical constraints. The courts of appeals’ context-

specific decisions do not, as petitioner suggests (Pet. 10,

17), reflect any general disagreement among the courts

of appeals about the correct legal standard.

B. The Court Of Appeals In This Case Erroneously De-

parted From Accepted Standards Governing Inmates’

RLUIPA Claims

1. Although petitioner fails to identify a general con-

flict about the standard applicable to inmates’ RLUIPA

claims, he is correct that the court of appeals failed to

apply the correct standard in this ease. In its unpub-

lished, per curiam opinion affirming the dismissal of peti-

tioner’s RLUIPA challenge to TDCJ’s grooming policy,

the court of appeals concluded that the challenge was

foreclosed by prior Fifth Circuit decisions rejecting sim-

ilar challenges brought by prisoners in other TDCJ fa-

cilities. Pet, App. 8a-10a (citing. Diaz and Longoria,

19

supra). But petitioner in this case raised arguments and

evidence not addressed in Diaz or Longoria: that other

prison systems (including the federal Bureau of Prisons)

permit long hair, and that TDCJ enforces its grooming

policy in an inconsistent manner. /d. at 10a n.3. The

courts below, however, never required respondents to

explain why the alternative, less restrictive practices

utilized in other prison systems would not work in the

Polunsky unit. Nor did they require prison administra-

tors to explain why the previous inconsistent application

of the grooming policy to petitioner and to others (in-

cluding Texas’s female inmate population) did not indi-

cate that a less restrictive alternative was appropriate.

See zbid. Although respondent acknowledges (Br. in

Opp. 14-15 (citing Odneal, supra)) that the Fifth Circuit

requires prison officials to justify application of a chal-

lenged policy under the facts of a particular case, re-

spondent notably does not even attempt to justify the

court of appeals’ refusal to hold officials to that standard

in this case.

The court of appeals erred in affirming the dismissal

of petitioner’s RLUIPA challenge in the absence of such

explanations. Although courts are certainly entitled to

take into account a prior adjudication of the legitimacy

under RLUIPA or RFRA of a particular prison practice,

RLUIPA’s requirement that courts focus on the particu-

lar facts of the case before it can make exclusive reliance

on such a prior holding inappropriate. What is impossi-

ble in one institution or system may be possible—and

therefore possibly required under RIL.UIPA—in another

facility or system. In addition, when a subsequent case

includes evidence of potentially less restrictive alterna-

tives that was not part of an earlier case, simple reliance

on the previous decision cannot suffice under RI.UIPA.

20

As noted above, see p. 12, supra, the Fifth Cireuit in

other cases has recognized that its prior decision in Diaz

is “not dispositive” of all challenges to TDCJ’s grooming

policy, and it has emphasized that “RLUIPA’s standards

cannot be applied to a particular governmental policy in

a generic fashion.” Odneal, 324 Fed. Appx. at 301 (re-

manding for consideration of application of TDCJ’s pol-

icy to a plaintiff wishing to maintain a kouplock); see

also Gooden, 353 Fed. Appx. at 861 n.1. The Fifth Cir-

cuit has, moreover, made clear that a RLUIPA defen-

dant bears the burden of “explaining why [a plaintiff’s

proposed] alternative would be unfeasible, or why it

would be less effective in maintaining institutional secu-

rity,” 2d. at 888, and that “allegations of disparate appli-

cation” of a challenged policy “might provide a reason-

able basis for a faetfinder to conclude that the [chal-

lenged] policy is not the least restrictive means of fur-

thering a compelling government interest,” Newby, 325

Fed. Appx. at 352; see Mayfreld, 529 F.3d at 615. By

those standards, the court of appeals in this case erred

in affirming the magistrate judge’s grant of summary

judgment to respondent on petitioner’s hair-length

claim. The court should have remanded the case to al-

low respondents to respond to petitioner’s evidence of

potentially less restrictive alternatives.

2. Because the court’s error in this case is clear, it

may be an appropriate candidate for summary reversal.

In any event, for the reasons explained above, see pp. 8-

18, supra, the court’s error does not reflect any general

disagreement among the courts of appeals about the

correct legal framework under RLUIPA, including the

burden a defendant must bear to satisfy the compelling-

interest/least-restrictive-means test, that requires reso-

lution by this Court. Unless the Court opts to sum-

? 1

marily reverse the court of appeals and remand for ap-

plication of the correct legal standard, it should deny the

petition for a writ of certiorari.

CONCLUSION

The petition for a writ of certiorari should be denied.

In the alternative, the Court should grant the petition,

summarily reverse the judgment of the court of appeals,

and remand for further proceedings.

Respectfully submitted.

NEAL KUMAR KATYAL

Acting Solicitor General

LEONDRA R. KRUGER

Acting Deputy Solicitor

General

THOMAS E. PEREZ

Assistant Attorney General

SAMUEL R. BAGENSTOS

Deputy Assistant Attorney

General

SARAH E.. HARRINGTON

Assistant to the Solicitor

General

DIANA K. FLYNN

HOLLY A. THOMAS

Attorneys

DECEMBER 2010