___________ 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.

Appella nts, a certified class of female inmates who are now or wh o may be in the future confined in Missouri penal institutions,

### The Honorable Scott O. Wright, United States District Judge 1 

### for the Western District of Missouri, adopting the Report an d Re commendation of The Honorable William A. Knox, United State s Magistrate Judge for the Western District of Missouri.
-2- appea l a portion of the judgment of the District Court, in favor o f 1 Missouri Department of Corrections and Human Resources (Department ) offic ials. The women inmates originally brought this 42 U.S.C. § 198 3 action against Depart ment officials alleging discriminatory treatment and seek ing injunctive relief. Only two issues have been raised in thi s appea l. The female prisoners contend that the District Court erred i n rejecting their claims that prison officials dis criminated against them on the basis of gender in violation of the Equal Pr otection Clause by failing to pro vide them with equal access (1) to post-secondary educationa l programs and (2) to prison industry employment. The District Court held that th e availability of post-secondary educational courses hinged o n fiscal decisions made by the academic providers and on a lack of demand by fema le inmates rather than on any discriminatory action taken by th e Department. The Department has since filed a motion to dismiss as moot th e female inmates' appeal regarding post-secondary educational opportunities. We agreed to take this motion into consideration with the merits of th e
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 i s vacated. As to the prison industries claim, the District Court foun d insufficient evidence of discriminatory intent on the part of Department officials to support an equal protection challenge. Concluding that the Distri ct Court's finding of no discriminatory intent is not clearl y erroneous, and further concluding that the female inmates are not similarl y situated to male inmates for purposes of equal protection analysis, w e affirm the District Court's order dismissing this claim.

### Appellants do not challenge the constitutionality of thi s 2 

### 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). The Magistrate Judge observed that, due t o extensive flooding 3 

### which occurred in July and August, 1993, Renz was evacuated and the female inmates at the facility were moved to facilities tha t nor mally house only male inmates, including Central Missour i Correc tional Center (CMCC) and Fulton Reception and Diagnosti c Center (FRDC). The majority of the females from Renz were m oved to CMC C and will remain at that institution during the emergenc y conditions created by flood waters. Renz will not be reopened in the immediate future, if at al l, due to considerable damage to the facility. Interim arrangement s for educational classes and prison industries have been implemented.
-3- I.

The f acts of the case are not in dispute. Male and female inmate s incarcerated within Missouri Department of Corrections prisons ar e segregated into particular facilities by gender. The Department operates 2 fifteen penal institutions, two of which, the Renz Correctional Center 3 (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 institution s in Missouri, approximately ninety-five percent, is male. Id. at 28. Both male and female inmates are assigned custody lev el classifications ranging from minimum security, C1, to maximum security, C5, and these designations affect inmate housing assignments within the gen der-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 gende rs who represent an increased security risk. Female inmate custody levels range from C1 through C3 at Chillicothe and from C3 through C5 at Renz.

### Renz was originally a male institution, then housed bot h 4 

### women and men, and finally became a women's prison in Decembe r 1989.
-4- Approximately 725 female inmates are incarcerated in the Depart ment's fe male-only prisons, some 420 at Chillicothe and some 305 at Renz. 4 Appr oximately13,000 male inmates are incarcerated in the Department' s male-o nlyprisons, some 1200 at Algoa Correctional Center; 900 a t Boo neville; 1200 at Central Missouri Correctional Center; 1800 a t Farmington Correctional Center; 2000 at Jefferson City Correctional Center ; 1265 at Moberly Correctional Center; 1100 at Mis souri Eastern Correctional Center ; 500 at Potosi Correctional Center; 2000 at Western Missour i Correctional Center; and 600 at Ozark Correctional Center.

Fe male inmates incarcerated at the Renz and Chillicothe facilitie s have access to the sa me 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 expens e. Post-secondary courses conduct ed within the confines of the prison facilities are offered b y community colleges, state universities, and private colleges, and not by the Department itself. Educational institutions enter into agreements wit h the Department for access to physical space within both male and femal e 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 priso n facility are made by the educat ional institutions involved and not by the Department. Th e 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 M issouri Correctional Enterprises (MCE), a private, sel f-supporting, profit-making enterprise that does not receive funding from the Missouri General

### -5-

Assembly. Twenty-one such enterprises are located at male institutions an d three at f emale institutions. Report and Recommendation at 10. Mal e inmates have a broader range of industry job opp ortunities, but industries
are locat ed at both women's facilities and only at some of the mal e facilities. Id. For fiscal year 1991, approximately thirteen percent of the to tal female inmate population was employed in prison industr y progra ms. 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 th e
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 fe male 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 i s properly dismissed as moot if it "has lost its character
as a present, live controversy of the kind that must exist if we are t o avoid advisory opinions on abstract questions of law." Princeton Univ. v. Sch mid , 455 U.S. 100, 103 (1982) (per curiam) (quotations and citation s omitte d) (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

### At oral argument, counsel advised the Court that inmates no 5 

### lo nger are able to secure federal financial assistance fo r enrolling in these educational programs. Colleges and unive rsities that offered these programs at Department prisons have elected to discontinue the practice for economic reasons.
-6- wil l recur, and (2) interim relief or events have completel y and irrevocably eradicated the effects of the alleg ed violation

. . . it may be said that the case is moot because neithe r party has a legally cognizable interest in the fina l determination of the underlying questions of fact and law.

County of Los Angeles v. Davis , 440 U.S. 625, 631 (1979) (quotations and citati ons omitted). Here, prison officials have abandoned the post

secondary educational programs about which the women prisoners c omplained. 5 There is no indication that Department officials will reinstate thes e educational programs. In these circumstances, t he requested relief--equal
acces s to such programs by both male and female inmates--has become a n abs traction, and this aspect of the case has "lost its character as a present, live controv ersy." Schmid , 455 U.S. at 103 (quotation omitted). As a result, we concl ude that the women prisoners' equal protection claim
concer ning post-secondary educational programs is moot and we grant th e Department's motion to dismiss this claim. Thos e portions of the District Cour t's order dealing with this claim are vacated. United States v

. Munsingwear, Inc. , 34 0 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 determinin g 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

### -7-

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. , Cit y of Cleburne v. Cleburne Living Ctr., Inc. , 473 U.S. 432, 43 9 (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 situa ted persons in a dissimilar manner by the government does not violate the Equal Protection Clause. Klinger , 31 F.3d at 731; se e 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. o f 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 th e plaintiff has established that she was treated d ifferently than others who are similarly situate d 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 i s similarly situated to those who allegedly receiv e favorable treatment, the plaintiff does not have a viable equal protectio n 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 th e Missouri Department of Corrections are similarly situated, for purposes of the program in issue, to men likewise incarcerated. Whether the femal e inmates are similarly situated to male inmates requires an inquiry focusin g
on the purposes of the challenged government action, namely, the assignmen t 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).

### -8- In Klinger , this Court was asked to determine whether femal e prisoners, all of who m were incarcerated at the Nebraska Center for Women (NCW), were subjected to gender discrimination by the Department o f Correctional Services in violation of the Equal Protection Clause due to the alleged inferiority of the vocational, educational, and employmen t opportunities and programs offered to women in c omparison to those offered to male prisoners incarcerated at Nebraska State Penitentiary (NSP), one of a number of male-o nly prisons. 31 F.3d at 729. This Court held, as a matter of law, that female inmates at NCW and ma le inmates at NSP were not simila rlysituated for purposes of prison programs and services and , therefore, that the plaintiffs failed to establish a violation of the Equa l Protection Clause. Id. at 731.

In arriving at our conclusion that the male and female inmates i n Klinge r were dissimilarly situated, we considered a number of factor s incl uding prison population size, average length of sentence, securit y 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 compariso n of these factors between the male inmates at NSP and the female inmates at NCW revealed a wid e disparity in each category, this Court concludedthat "the programs at NSP and NCW reflect separate sets of decisions based on entirely differen t circumstances." Klinger , 31 F.3d at 732. Progr amming decisions regarding indust ryand education differed from prison to prison, "depending o n inn umerable variables that officials must take into account" and not o n 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-onl y facilities, Renz and Chillicothe, and the various institutions housing mal e inmates in Missouri must be acknowledged. Most

### -9-

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

Takin g into account security classification levels in addition t o population size further illustrates that female inmates are dissimilarly situated from male inmates. For example, Chillicothe has a population of 430 female inmates as signed the lowest classification levels ranging from C1 through C3. Corre cted Joint Stipulations, Appellant's App. at 27, 28. The mo st comparable male institution with respect to population size , Potosi Correctional Center with 500 inmates, bears no resemblance t o Chillicothe with respect to security levels, as it houses only mal e pri soners assigned the highest security classification, C5. Id. at 27

. The ma le institutions most comparable to Chillicothe with respect t o security classificati on, Central Missouri Correctional Center and Western Miss ouri Correctional Center, which both confine inmates classified a t levels C2 and C3, house considerably larger inmate populations, namely , 1000 men at Central Missouri and 1975 men at Western Missouri. Id.

The aver age sentence length for female inmates as compared to mal e inmates confirms that these two diverse groups a re not similarly situated. Significantly fewer female inmates will be serving lengthy prison sentence s in comparison to male inmates. This observation is evidenced by the vast disparity in the numb er of female inmates classified as medium or maximum
secur ity risks as compared to the number of male inmates likewis e classified. See Corr ected Joint Stipulations, Appellant's App. at 27-28. Asmall number of women prisoners, approximately 305, are assigned th e high est security classifications, thereby indicating that they will b e incarcerated for extended periods of time. In c ontrast, roughly 6700 male inmates have been ass igned the highest security classifications and will, therefore, likely be serving lengthy prison sentences. This distinction also tends to establish that

### -10-

male inmates have been convicted of more serious crimes, thus justifying th e higher security classifications associated with lengthier priso n sentences.
As is app arent from the above observations, male and female inmates incarc erated in Department prisons are far from similarly situated fo r purposes of equal protection analysis. In determining the availability an d locati on of prison programs and services, officials "must balance man y consid erations, ranging from the characteristics of the inmates at tha t prison to the size of the institution, to determine the optimal mix o f programs and services." Klinger , 31 F.3d at 732; see Turner v. Safley , 48 2 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 conside red similarly situated for purposes of comparing the availability and variety of prison programming. The size of the institution, its location, and t he types of inmates housed there necessarily will affect the number, type, and length of program s offered.

The womenprisoners urge this Court to conduct a program-by-program comparison between Department prisons housing solely female inmates an d those ho using only male inmates to confirm the existence of gende r discrimination. We reject that approach to equal protection analysis of the D epartment's placement of prison industries. There can be no suc h meanin gful comparison for equal protection purposes between two sets o f inmates who are not similarly situated. See , e.g. , Association o f Resi dential 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 discus sed above between male and female prisoners demo nstrate the dissimilarity of the two distinct groups and the i rrelevance of any attempt to compare the number or type o f programs offered. Furthermore, this Court concluded in Klinger that "usin g an inter-prison program comparison

### -11-

to analyze equal protection claims improperly assumes that the Constitutio n req uires all prisons to have similar program priorities and to allocat e
resources similarly." 31 F.3d at 732. We also noted that inter-priso n progra mcomparison "results in precisely the type of federal cour t interference with and 'micro-management' of prisons that Turner condemned. " Klinger , 31 F.3d at 7 33 (following Turner v. Safley , 482 U.S. 78 (1987)).

For the foregoing reasons, we hold that male and female prisone rs 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 i nmates
were s imilarly situated for purposes of the Department's placement o f prison industries, an equal protection review of Department decision s require s further analysis. It must be determined whether the unequa l treatment in accessibility to prison industry employment allegedl y resulting from gender discrimination stems from a Department policy that is facially neutral or from a policy that, on its face, classifies b y gender. A facially gender-based classification is subject to heightened scrutiny and violates the Equal Protection Claus e if the classification is not substantially related to the achievement of important governmenta l objectives

. United States v. Virginia , 116 S. Ct. 2264, 2275 (1996) ; Personnel Adm'r v. Feeney , 442 U.S. 256, 273 (19 79); Mississippi Univ. for Women v. Hogan , 458 U.S. 718, 724 (1982).

A faciall y neutral policy, on the other hand, is not subject to the same exacting standar d as it does not categorize on the basis of a quasisuspect class. If, however, a neutral policy employed by the Department has a disproportionately adverse effect upon wom en, it is unconstitutional under the Equal Protection

### As we noted in Ricketts v. City of Columb ia , 36 F.3d 775, 781 6 

### (8th Cir. 1994), "in only a few cases, where a facially neutra l po licyimpacted exclusively against one suspect class and tha t impact was unexplainable on neutral grounds, has the impact alone signal led a discriminatory purpose. See Gomillion v. Lightfoot , 364 U.S. 339 (1960); Yick Wo v. Hopkins , 118 U.S. 356 (1886)."
-12- Clause onl y if that impact can be traced to a discriminatory purpose

. Feeney , 442 U.S. at 272.

When a statute gender-ne utral on its face is challenged on the ground that its effects upon women are disproportionatel y ad verse, a twofold inquiry is . . . appropriate. The firs t question is whether the statutory classification is indee d neu tral in the sense that it is not gender based. If th e classif ication itself, covert or overt, is not based upo n gender, the second question is whether the adverse effec t reflects invidious gender-based discrimination.

Id. at 274; see Villa ge 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 groun d, the impact itself would signal that the real classification made by the policy was in fact no t neutral. Feeney , 442 U.S. at 275.

6

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

### The statutory mandate bestowing on the Department the power 7 

### to est ablish prison industries instructs that the director shal l take into account: "offender custody levels, the number o f offend ers in each correctional center so the best service o r distribution of labor may be secured, location and convenience of th e correctional centers in relation to the other correctiona l center s to be supplied or served and the machinery presentl y cont ained in each correctional center." Mo. Rev. Stat

. § 217.550(1) (1994).
-13- Initially, we note that the statutory provisions granting th e Department authority to establish and monitor prison industries are gender

neutral o n their face. See , e.g. , Mo. Rev. Stat. § 217.550 (1994)

. Li kewise, a review of Department officials' testimony indicates tha t Depa rtment policy for the placement of prison industries is based o n factors such as popul ation size, availability of a steady work force, and location of the prison in relation to potential purchasers of industr y products, not on the basis of gender considerati ons. Department officials have countered the appellants' allegations of gender-motivate d discrim ination with a plausible explanation for the alleged disparat e impact. As such, it is appellants' burden to establish that the adverse eff ect this Department policy has on women inmates is the result of a discriminatory purpose.

The District Court found that the scope of prison enterpris e opportunities provided to male and female inmates "appears directly relate d to the size and location of the prisons and a recognition that more male inm ates are available for long-term manufacturing jobs than wome n inmates." Report and Recommendation at 10.

7

Becau se the policy challenged by the appellants is neutral on it s face, the female prisoners must establish that the alleged disparate impac t is the result of discriminatory purpose. We agr ee with the District Court that appellants have failed to prove the requisite discriminatory intent on the part of Depart ment officials. Assuming as a threshold matter that the women prisoners

### -14-

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 '

. . . impl ies more than intent as volition or intent as awareness o f
conse quences. It implies that the decisionmaker . . . selected o r reaffirmed a particular course of action at least in part 'because of,' no t 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 ar e loc ated at both women's facilities and only at certain male facilities

. Report and Recommendation at 10. A proportionately larger number of femal e inmates have prison industry jobs than do male i nmates, and the data-entry indu strylocated at the Renz facility, criticized by plaintiffs as a stereotypically female occupation, formerly empl oyed male inmates when the institution housed males. Department officials testified that the locatio n of prison industries was motivated not by stereotypes but by legitimat e
concerns such as work force stability and proximity to clientele. Thus,
as the District Court found, the evidence does not support a claim that th e Depar tment's placement of prison industry jobs was intentionall y discriminatory or gen der-motivated. See also Klinger , 31 F.3d at 733-34; Pargo , 894 F. Supp. a t 1280; Women Prisoners of the Dist. of Columbia , 93 F.3d at 925.

Because n o two prisons are the same, it is a virtual certainty that inmates in one prison will have certain amenitie s not available to inmates in anothe r. "Thus, female inmates can always point out certain ways i n which male prisons are 'better' than theirs, just as male inmates ca n always poi nt out other ways in which female prisons are 'better' tha n 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 affec t

### -15-

the mix of programmin g that an institution has. . . . In short, comparing programs . . . is like the proverbial comparison of apples to oranges. " Klinge r , 31 F.3d at 733. When attempts are made to compare program s offered at facilities housing inmates who are not similarly situated, "it is har dly surprising, let alone evidence of discrimination, that th e smaller correctional facility offered fewer prog rams 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 orde r dismissing the appellants' equal protection claim with respect to prison industryprograms and grant the Department's motion to dismiss as moo t app ellants' equal protection claim regarding post-secondary educationa l 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 official s purposefully discriminated against them in the management of post-secondar y ed ucational programs is rendered moot by the correction department' s unfortunate suspension of all contracts with local colleges an d universities to offer post-secondary and vocatio nal courses to either male
or female inmates. I disagree, however, with the majority's conclusio n that the class of female inmates is not similarl y situated to male inmates for the purpose of challenging the assignment and organization of prison industry programs under the Equal Protection Cla use. 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.

### -16- I do not quarrel with the majority's citation to the basic rul e that
a part y seeking relief for gender-based discrimination under the Equa l Protect ion Clause must demonstrate that a state actor has treated he r differentlythan other similarly situated persons because of her gender. Nor do I dispute the corollary rule that a state may treat dissimilarl y 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.3 d 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 sit uated from male inmates at another institution, such fa ctors should not be rigidly applied. As the majority artfull y 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 becom e more tenuous and less important when the challenge is system-wide. While the se gregation of inmates by gender is constitutional, the natura l
con sequences of that segregation--e.g., smaller institutions, shorte r aggreg ate lengths of stay, broader ranges of security ratings withi n institutions--must not be used as a per se bar to our examination of the respective treatment women and men receive while incarcerated. If ou r equal protection inquiry ended every time a plaintiff fell short of showin g different treatment at a mirror-image facility, then despite our admonitio n 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 j ustify similar treatment. All inmates, regardless of gender, are

### -17-

under the custody and control of the state as a result of their criminal behavior; all are subject to the same general de partmental regulations and policies; and the incarceration in all cases shares common goals, includin g the re form and rehabilitation of individual offenders. These commo n characteristics provide a basis for the Department of Corrections to desig n
a program that gives substantially equal opportunities to women and men fo r rehabi litative work while confined. Although gross institutiona l differ ences might sometimes provide basis for finding groups of inmate s dissimi larlysituated, they do not in this case. General, legitimat e concerns for security , the availability of inmates to fill positions, and the like are more relevant in examining whether dissimilar treatment o f 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 f emale inmates' claim must fail because they have not prove d discrimination on the part of prison officials. The women hav e broug ht forth enough to establish gender-based discrimination. Th e department offers women only three opportunities to participate in industr y jobs, whereas male inmates have the opportunity to participate in twentyone, 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 a dvantage 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 sophisticat ed and industrial than the women's counterpart. For example, while men at Moberly work in a printing indus try that is equipped to do layout work for forms, letterhead, an d envelopes, the Quick Print operation for women at Renz is "closer to a cop y center." App. at

### For example, as of 1991, two women at Renz were employed in 1 

### what is called an agri-business enterprise where they perfor m minor mainte nance and repair jobs on small machines. This operation , however, is a scaled-down version of what was in place when Ren z housed male inmates and is quite different from and less skille d than the traditional cattle and crop farming work currently offered to male inmates at another Missouri institution.
-18- 231-32. With very few exceptions, the industrial opportunities offere d 1 to fem ale inmates fall within prevailing stereotypes of "women's work" : telephone operators/telemarketers; data entry; and office copying. Th e Misso uri Department of Corrections cannot adequately explain th e dispar ities between the industrial opportunities for women and men o n 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 th e majority, that the dissimilar treatment is directly related to the size an d location of the priso ns and to the greater long-term availability of male inmates. Most of the industries could operate independent of thei r geographi cal location. Moreover, as of 1991, only a handful of th e industri es at the men's institutions had staff sizes that might b e difficult to generate at the women's institutions. The state has not show n non-discriminatory reasons for determining the i ndustrial opportunities it offers to female inmates. The women, in contrast, have produced enoug h eviden ce from which to infer the Department of Corrections' industr y plac ements are based on stereotypical notions of what jobs women ca n perform and the lesser need for women to become skilled laborers.
In my vie w, the women inmates have established their case under the Equal Protection Clause that the Missouri Department of Correction s 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 w ith directions to instruct the Department of

### -19-

Correc tions to establish a remedial plan to correct the gender-base d disparities.

A true copy.

Attest:

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