___________

No. 95-1289

___________

Laura Keevan; Verna Mae Jones; *

Sheila Gordon; Melissa Ann *

Wagner; Laverna Goree; Tanya *

Goins; Carol Jean Klaus, and *

on behalf of the class, *

*

Appellants, *

*

v. *

*

Donald Smith, Superintendent * Appeal from the United States

of Fulton Reception and * District Court for the

Diagnostic Center; Ron Schmitz, * Western District of Missouri.

Superintendent of Kansas City *

Community Release Center; Janet *

Schneider, Superintendent of *

St. Louis Community Release *

Center; Thelma Grandison, *

Superintendent of Chillicothe *

Correctional Center; Donna *

Schriro, Director of the *

Department of Corrections, *

*

Appellees. *

___________

 Submitted: May 16, 1996

 Filed: November 18, 1996

___________

Before BOWMAN, HEANEY, and WOLLMAN, Circuit Judges.

___________

BOWMAN, Circuit Judge.

Appellants, a certified class of female inmates who are now or who

may be in the future confined in Missouri penal institutions,
 The Honorable Scott O. Wright, United States District Judge 1

for the Western District of Missouri, adopting the Report and

Recommendation of The Honorable William A. Knox, United States

Magistrate Judge for the Western District of Missouri. 

-2-

appeal a portion of the judgment of the District Court, in favor of

1

Missouri Department of Corrections and Human Resources (Department)

officials. The women inmates originally brought this 42 U.S.C. § 1983

action against Department officials alleging discriminatory treatment and

seeking injunctive relief. Only two issues have been raised in this

appeal. The female prisoners contend that the District Court erred in

rejecting their claims that prison officials discriminated against them on

the basis of gender in violation of the Equal Protection Clause by failing

to provide them with equal access (1) to post-secondary educational

programs and (2) to prison industry employment. The District Court held

that the availability of post-secondary educational courses hinged on

fiscal decisions made by the academic providers and on a lack of demand by

female inmates rather than on any discriminatory action taken by the

Department. The Department has since filed a motion to dismiss as moot the

female inmates' appeal regarding post-secondary educational opportunities.

We agreed to take this motion into consideration with the merits of the

case and hereby grant the Department's motion to dismiss this portion of

the case as moot. To that extent, the order of the District Court is

vacated. As to the prison industries claim, the District Court found

insufficient evidence of discriminatory intent on the part of Department

officials to support an equal protection challenge. Concluding that the

District Court's finding of no discriminatory intent is not clearly

erroneous, and further concluding that the female inmates are not similarly

situated to male inmates for purposes of equal protection analysis, we

affirm the District Court's order dismissing this claim. 
 Appellants do not challenge the constitutionality of this

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 to extensive flooding 3

which occurred in July and August, 1993, Renz was evacuated and the

female inmates at the facility were moved to facilities that

normally house only male inmates, including Central Missouri

Correctional Center (CMCC) and Fulton Reception and Diagnostic

Center (FRDC). The majority of the females from Renz were moved to

CMCC and will remain at that institution during the emergency

conditions created by flood waters. Renz will not be reopened in

the immediate future, if at all, due to considerable damage to the

facility. Interim arrangements for educational classes and prison

industries have been implemented.

-3-

I. 

The facts of the case are not in dispute. Male and female inmates

incarcerated within Missouri Department of Corrections prisons are

segregated into particular facilities by gender. The Department operates 2

fifteen penal institutions, two of which, the Renz Correctional Center3

(Renz) and the Chillicothe Correctional Center (Chillicothe), house solely

adult female inmates. Corrected Joint Stipulations, Appellant's App. at

27. The vast majority of the total inmate population in adult institutions

in Missouri, approximately ninety-five percent, is male. Id. at 28. Both

male and female inmates are assigned custody level classifications ranging

from minimum security, C1, to maximum security, C5, and these designations

affect inmate housing assignments within the gender-segregated facilities.

Generally, the higher custody classifications, C4 and C5, are assigned to

male and female inmates with longer sentences to serve and to shorter-term

inmates of both genders who represent an increased security risk. Female

inmate custody levels range from C1 through C3 at Chillicothe and from C3

through C5 at Renz.
 Renz was originally a male institution, then housed both

4

women and men, and finally became a women's prison in December

1989.

-4-

Approximately 725 female inmates are incarcerated in the Department's

female-only prisons, some 420 at Chillicothe and some 305 at Renz.4

Approximately 13,000 male inmates are incarcerated in the Department's

male-only prisons, some 1200 at Algoa Correctional Center; 900 at

Booneville; 1200 at Central Missouri Correctional Center; 1800 at

Farmington Correctional Center; 2000 at Jefferson City Correctional Center;

1265 at Moberly Correctional Center; 1100 at Missouri Eastern Correctional

Center; 500 at Potosi Correctional Center; 2000 at Western Missouri

Correctional Center; and 600 at Ozark Correctional Center. 

Female inmates incarcerated at the Renz and Chillicothe facilities

have access to the same adult basic education and G.E.D. programs as male

inmates. Both male and female prisoners can take advantage of collegelevel correspondence courses at their own expense. Post-secondary courses

conducted within the confines of the prison facilities are offered by

community colleges, state universities, and private colleges, and not by

the Department itself. Educational institutions enter into agreements with

the Department for access to physical space within both male and female

prisons and for administrative support, such as security and assistance in

enrolling the inmates. Decisions regarding the number and variety of postsecondary programs offered at a particular prison facility are made by the

educational institutions involved and not by the Department. The

Department requires that any courses that the schools choose to offer be

of the same quality as those the schools offer to their on-campus students.

Prison enterprises are operated by Missouri Correctional Enterprises

(MCE), a private, self-supporting, profit-making enterprise that does not

receive funding from the Missouri General
-5-

Assembly. Twenty-one such enterprises are located at male institutions and

three at female institutions. Report and Recommendation at 10. Male

inmates have a broader range of industry job opportunities, but industries

are located at both women's facilities and only at some of the male

facilities. Id. For fiscal year 1991, approximately thirteen percent of

the total female inmate population was employed in prison industry

programs. Corrected Joint Stipulations, Appellant's App. at 28, 36.

During the same time period, only eight percent of the total male inmate

population was so employed. Id.

II. 

We first consider the Department's motion to dismiss as moot the

women prisoners' claim that Department officials purposely discriminated

against them on the basis of gender in the management of post-secondary

educational opportunities. During the pendency of this appeal, Department

officials terminated their former practice of allowing outside educators

access to male and female prison facilities for the purposes of providing

college-level courses to inmates. Affidavit of John J. Bell in support of

Appellee's Motion to Dismiss Point I of Appellants' Appeal as Moot.

Neither male nor female prisoners are currently provided this opportunity,

a fact appellants do not contest. 

A claim is properly dismissed as moot if it "has lost its character

as a present, live controversy of the kind that must exist if we are to

avoid advisory opinions on abstract questions of law." Princeton Univ. v.

Schmid, 455 U.S. 100, 103 (1982) (per curiam) (quotations and citations

omitted) (holding that university's amendment of regulation made moot a

challenge to regulations). Where, as here,

(1) it can be said with assurance that there is no reasonable

expectation . . . that the alleged violation
 At oral argument, counsel advised the Court that inmates no 5

longer are able to secure federal financial assistance for

enrolling in these educational programs. Colleges and universities

that offered these programs at Department prisons have elected to

discontinue the practice for economic reasons.

-6-

will recur, and (2) interim relief or events have completely

and irrevocably eradicated the effects of the alleged violation

. . . it may be said that the case is moot because neither

party has a legally cognizable interest in the final

determination of the underlying questions of fact and law.

County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (quotations and

citations omitted). Here, prison officials have abandoned the postsecondary educational programs about which the women prisoners complained.5

There is no indication that Department officials will reinstate these

educational programs. In these circumstances, the requested relief--equal

access to such programs by both male and female inmates--has become an

abstraction, and this aspect of the case has "lost its character as a

present, live controversy." Schmid, 455 U.S. at 103 (quotation omitted).

As a result, we conclude that the women prisoners' equal protection claim

concerning post-secondary educational programs is moot and we grant the

Department's motion to dismiss this claim. Those portions of the District

Court's order dealing with this claim are vacated. United States v.

Munsingwear, Inc., 340 U.S. 36, 39 (1950); Cranford v. Nix, 43 F.3d 1210,

1211 (8th Cir. 1995).

III.

We turn now to the women's contention that Department officials'

policy for determining the placement of prison industries is exercised in

a manner that violates the Equal Protection Clause. To establish a genderbased 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., City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439

(1985); Klinger, 31 F.3d at 731; Moreland v. United States, 968 F.2d 655,

660 (8th Cir.) (en banc), cert. denied, 506 U.S. 1028 (1992). Treatment

of dissimilarly situated persons in a dissimilar manner by the government

does not violate the Equal Protection Clause. Klinger, 31 F.3d at 731; see

Barket, Levy & Fine, Inc. v. St. Louis Thermal Energy Corp., 21 F.3d 237,

242 (8th Cir. 1994); Women Prisoners of the Dist. of Columbia Dep't. of

Corrections v. District of Columbia, 93 F.3d 910, 924 (D.C. Cir. 1996).

Therefore, the initial inquiry in any equal protection claim is whether the

plaintiff has established that she was treated differently than others who

are similarly situated to her. Klinger, 31 F.3d at 731; United States v.

Whiton, 48 F.3d 356, 358 (8th Cir.), cert. denied, 116 S. Ct. 227 (1995).

As we observed in Klinger, "Absent a threshold showing that she is

similarly situated to those who allegedly receive favorable treatment, the

plaintiff does not have a viable equal protection claim." 31 F.3d at 731.

Thus, before we may entertain the merits of the female inmates' equal

protection claim, we must first determine whether women incarcerated by the

Missouri Department of Corrections are similarly situated, for purposes of

the program in issue, to men likewise incarcerated. Whether the female

inmates are similarly situated to male inmates requires an inquiry focusing

on the purposes of the challenged government action, namely, the assignment

of prison industry programs among the various institutions controlled by

the Department. See More v. Farrier, 984 F.2d 269, 271 (8th Cir.), cert.

denied, 510 U.S. 819 (1993).
-8-

In Klinger, this Court was asked to determine whether female

prisoners, all of whom were incarcerated at the Nebraska Center for Women

(NCW), were subjected to gender discrimination by the Department of

Correctional Services in violation of the Equal Protection Clause due to

the alleged inferiority of the vocational, educational, and employment

opportunities and programs offered to women in comparison to those offered

to male prisoners incarcerated at Nebraska State Penitentiary (NSP), one

of a number of male-only prisons. 31 F.3d at 729. This Court held, as a

matter of law, that female inmates at NCW and male inmates at NSP were not

similarly situated for purposes of prison programs and services and,

therefore, that the plaintiffs failed to establish a violation of the Equal

Protection Clause. Id. at 731. 

In arriving at our conclusion that the male and female inmates in

Klinger were dissimilarly situated, we considered a number of factors

including prison population size, average length of sentence, security

classification, types of crimes, and other special characteristics. Id.

at 731-32; see also Pargo v. Elliott, 894 F. Supp. 1243, 1259 (S.D. Iowa

1995), aff'd, 69 F.3d 280 (8th Cir.), cert. denied, No. 95-8906, 1996 WL

271195 (U.S. Oct. 7, 1996). Because a comparison of these factors between

the male inmates at NSP and the female inmates at NCW revealed a wide

disparity in each category, this Court concluded that "the programs at NSP

and NCW reflect separate sets of decisions based on entirely different

circumstances." Klinger, 31 F.3d at 732. Programming decisions regarding

industry and education differed from prison to prison, "depending on

innumerable variables that officials must take into account" and not on

illegitimate, discriminatory factors. Id. Analysis of the sort that we

employed in Klinger leads us to the same result in the present case.

Initially, the irrefutable differences between the female-only

facilities, Renz and Chillicothe, and the various institutions housing male

inmates in Missouri must be acknowledged. Most
-9-

notably, because women account for such a small proportion of the total

prison population, their facilities are necessarily smaller in size than

any of the male-only prisons. 

Taking into account security classification levels in addition to

population size further illustrates that female inmates are dissimilarly

situated from male inmates. For example, Chillicothe has a population of

430 female inmates assigned the lowest classification levels ranging from

C1 through C3. Corrected Joint Stipulations, Appellant's App. at 27, 28.

The most comparable male institution with respect to population size,

Potosi Correctional Center with 500 inmates, bears no resemblance to

Chillicothe with respect to security levels, as it houses only male

prisoners assigned the highest security classification, C5. Id. at 27.

The male institutions most comparable to Chillicothe with respect to

security classification, Central Missouri Correctional Center and Western

Missouri Correctional Center, which both confine inmates classified at

levels C2 and C3, house considerably larger inmate populations, namely,

1000 men at Central Missouri and 1975 men at Western Missouri. Id. 

The average sentence length for female inmates as compared to male

inmates confirms that these two diverse groups are not similarly situated.

Significantly fewer female inmates will be serving lengthy prison sentences

in comparison to male inmates. This observation is evidenced by the vast

disparity in the number of female inmates classified as medium or maximum

security risks as compared to the number of male inmates likewise

classified. See Corrected Joint Stipulations, Appellant's App. at 27-28.

A small number of women prisoners, approximately 305, are assigned the

highest security classifications, thereby indicating that they will be

incarcerated for extended periods of time. In contrast, roughly 6700 male

inmates have been assigned the highest security classifications and will,

therefore, likely be serving lengthy prison sentences. This distinction

also tends to establish that
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male inmates have been convicted of more serious crimes, thus justifying

the higher security classifications associated with lengthier prison

sentences.

As is apparent from the above observations, male and female inmates

incarcerated in Department prisons are far from similarly situated for

purposes of equal protection analysis. In determining the availability and

location of prison programs and services, officials "must balance many

considerations, ranging from the characteristics of the inmates at that

prison to the size of the institution, to determine the optimal mix of

programs and services." Klinger, 31 F.3d at 732; see Turner v. Safley, 482

U.S. 78, 84-85 (1987). Because these considerations are diverse and the

circumstances of each prison are different, female inmates as a group and

male inmates as a group simply cannot be considered similarly situated for

purposes of comparing the availability and variety of prison programming.

The size of the institution, its location, and the types of inmates housed

there necessarily will affect the number, type, and length of programs

offered.

The women prisoners urge this Court to conduct a program-by-program

comparison between Department prisons housing solely female inmates and

those housing only male inmates to confirm the existence of gender

discrimination. We reject that approach to equal protection analysis of

the Department's placement of prison industries. There can be no such

meaningful comparison for equal protection purposes between two sets of

inmates who are not similarly situated. See, e.g., Association of

Residential Resources v. Gomez, 51 F.3d 137, 140-41 (8th Cir. 1995);

Klinger, 31 F.3d at 733; Women Prisoners of the District of Columbia, 93

F.3d at 927. The substantial differences discussed above between male and

female prisoners demonstrate the dissimilarity of the two distinct groups

and the irrelevance of any attempt to compare the number or type of

programs offered. Furthermore, this Court concluded in Klinger that "using

an inter-prison program comparison
-11-

to analyze equal protection claims improperly assumes that the Constitution

requires all prisons to have similar program priorities and to allocate

resources similarly." 31 F.3d at 732. We also noted that inter-prison

program comparison "results in precisely the type of federal court

interference with and 'micro-management' of prisons that Turner condemned."

Klinger, 31 F.3d at 733 (following Turner v. Safley, 482 U.S. 78 (1987)).

For the foregoing reasons, we hold that male and female prisoners are

not similarly situated for purposes of an equal protection comparison of

prison industry programs.

IV. 

Even assuming, for the sake of argument, that male and female inmates

were similarly situated for purposes of the Department's placement of

prison industries, an equal protection review of Department decisions

requires further analysis. It must be determined whether the unequal

treatment in accessibility to prison industry employment allegedly

resulting from gender discrimination stems from a Department policy that

is facially neutral or from a policy that, on its face, classifies by

gender. A facially gender-based classification is subject to heightened

scrutiny and violates the Equal Protection Clause if the classification is

not substantially related to the achievement of important governmental

objectives. United States v. Virginia, 116 S. Ct. 2264, 2275 (1996);

Personnel Adm'r v. Feeney, 442 U.S. 256, 273 (1979); Mississippi Univ. for

Women v. Hogan, 458 U.S. 718, 724 (1982). 

A facially neutral policy, on the other hand, is not subject to the

same exacting standard as it does not categorize on the basis of a quasisuspect class. If, however, a neutral policy employed by the Department

has a disproportionately adverse effect upon women, it is unconstitutional

under the Equal Protection
 As we noted in Ricketts v. City of Columbia, 36 F.3d 775, 781 6

(8th Cir. 1994), "in only a few cases, where a facially neutral

policy impacted exclusively against one suspect class and that

impact was unexplainable on neutral grounds, has the impact alone

signalled a discriminatory purpose. See Gomillion v. Lightfoot,

364 U.S. 339 (1960); Yick Wo v. Hopkins, 118 U.S. 356 (1886)."

-12-

Clause only if that impact can be traced to a discriminatory purpose.

Feeney, 442 U.S. at 272.

When a statute gender-neutral on its face is challenged on the

ground that its effects upon women are disproportionately

adverse, a twofold inquiry is . . . appropriate. The first

question is whether the statutory classification is indeed

neutral in the sense that it is not gender based. If the

classification itself, covert or overt, is not based upon

gender, the second question is whether the adverse effect

reflects invidious gender-based discrimination.

Id. at 274; see Village of Arlington Heights v. Metropolitan Housing Dev.

Corp., 429 U.S. 252, 264-66 (1977); Marshall v. Kirkland, 602 F.2d 1282,

1299 (8th Cir. 1979). If the adverse impact of a facially neutral policy

cannot be plausibly explained on a neutral ground, the impact itself would

signal that the real classification made by the policy was in fact not

neutral. 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 the

Department policy which determines the placement of a particular prison

industry at a specific penal facility. It is this policy that the

appellants contend results in a disparate impact on female prisoners and

constitutes a violation of the Equal Protection Clause. The disparate

impact, according to the female inmates, is evidenced through the placement

of stereotypically female jobs at the Renz and Chillicothe facilities and

the exclusion of female inmates from the more skilled and industrial jobs

located at male prisons. 
 The statutory mandate bestowing on the Department the power 7

to establish prison industries instructs that the director shall

take into account: "offender custody levels, the number of

offenders in each correctional center so the best service or

distribution of labor may be secured, location and convenience of

the correctional centers in relation to the other correctional

centers to be supplied or served and the machinery presently

contained in each correctional center." Mo. Rev. Stat.

§ 217.550(1) (1994).

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Initially, we note that the statutory provisions granting the

Department authority to establish and monitor prison industries are genderneutral on their face. See, e.g., Mo. Rev. Stat. § 217.550 (1994).

Likewise, a review of Department officials' testimony indicates that

Department policy for the placement of prison industries is based on

factors such as population size, availability of a steady work force, and

location of the prison in relation to potential purchasers of industry

products, not on the basis of gender considerations. Department officials

have countered the appellants' allegations of gender-motivated

discrimination with a plausible explanation for the alleged disparate

impact. As such, it is appellants' burden to establish that the adverse

effect this Department policy has on women inmates is the result of a

discriminatory purpose. 

The District Court found that the scope of prison enterprise

opportunities provided to male and female inmates "appears directly related

to the size and location of the prisons and a recognition that more male

inmates are available for long-term manufacturing jobs than women

inmates." Report and Recommendation at 10. 7

Because the policy challenged by the appellants is neutral on its

face, the female prisoners must establish that the alleged disparate impact

is the result of discriminatory purpose. We agree with the District Court

that appellants have failed to prove the requisite discriminatory intent

on the part of Department officials. Assuming as a threshold matter that

the women prisoners
-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'

. . . implies more than intent as volition or intent as awareness of

consequences. It implies that the decisionmaker . . . selected or

reaffirmed a particular course of action at least in part 'because of,' not

merely 'in spite of,' its adverse effects upon an identifiable group."

Feeney, 442 U.S. at 279 (citation and footnote omitted). 

The District Court's findings show that prison industry jobs are

located at both women's facilities and only at certain male facilities.

Report and Recommendation at 10. A proportionately larger number of female

inmates have prison industry jobs than do male inmates, and the data-entry

industry located at the Renz facility, criticized by plaintiffs as a

stereotypically female occupation, formerly employed male inmates when the

institution housed males. Department officials testified that the location

of prison industries was motivated not by stereotypes but by legitimate

concerns such as work force stability and proximity to clientele. Thus,

as the District Court found, the evidence does not support a claim that the

Department's placement of prison industry jobs was intentionally

discriminatory or gender-motivated. See also Klinger, 31 F.3d at 733-34;

Pargo, 894 F. Supp. at 1280; Women Prisoners of the Dist. of Columbia, 93

F.3d at 925. 

Because no two prisons are the same, it is a virtual certainty that

inmates in one prison will have certain amenities not available to inmates

in another. "Thus, female inmates can always point out certain ways in

which male prisons are 'better' than theirs, just as male inmates can

always point out other ways in which female prisons are 'better' than

theirs." Klinger, 31 F.3d at 732; see also Women Prisoners of the Dist.

of Columbia, 93 F.3d at 926-27. "Differences between challenged programs

at . . . prisons are virtually irrelevant because so many variables affect
-15-

the mix of programming that an institution has. . . . In short, comparing

programs . . . is like the proverbial comparison of apples to oranges."

Klinger, 31 F.3d at 733. When attempts are made to compare programs

offered at facilities housing inmates who are not similarly situated, "it

is hardly surprising, let alone evidence of discrimination, that the

smaller correctional facility offered fewer programs than the larger one."

Women Prisoners of the Dist. of Columbia, 93 F.3d at 925. 

V.

For the reasons stated, we affirm the District Court's order

dismissing the appellants' equal protection claim with respect to prison

industry programs and grant the Department's motion to dismiss as moot

appellants' equal protection claim regarding post-secondary educational

opportunities. The order of the District Court is vacated insofar as it

deals with the latter claim. 

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

I agree that the female inmates' claim that prison officials

purposefully discriminated against them in the management of post-secondary

educational programs is rendered moot by the correction department's

unfortunate suspension of all contracts with local colleges and

universities to offer post-secondary and vocational courses to either male

or female inmates. I disagree, however, with the majority's conclusion

that the class of female inmates is not similarly situated to male inmates

for the purpose of challenging the assignment and organization of prison

industry programs under the Equal Protection Clause. I also disagree that

the female inmates have failed to show discriminatory intent on the part

of the Department of Corrections. Therefore, I respectfully dissent from

Parts III and IV of the majority's opinion.
-16-

 I do not quarrel with the majority's citation to the basic rule that

a party seeking relief for gender-based discrimination under the Equal

Protection Clause must demonstrate that a state actor has treated her

differently than other similarly situated persons because of her gender.

Nor do I dispute the corollary rule that a state may treat dissimilarly

situated persons in a dissimilar manner. In my view, however, the court

is wrong to adopt an overly formalistic approach to the threshold question

of whether female and male inmates are similarly situated. 

While the court in Klinger v. Department of Corrections, 31 F.3d 727,

731 (8th Cir. 1994), compared inmate populations, length of sentences, and

security classifications in holding that female inmates at one Iowa prison

were dissimilarly situated from male inmates at another institution, such

factors should not be rigidly applied. As the majority artfully

demonstrates, it is highly unlikely that any two institutions in a state's

prison system will have an identical inmate composition but for the fact

that one houses women and the other houses men; specific differences become

more tenuous and less important when the challenge is system-wide. While

the segregation of inmates by gender is constitutional, the natural

consequences of that segregation--e.g., smaller institutions, shorter

aggregate lengths of stay, broader ranges of security ratings within

institutions--must not be used as a per se bar to our examination of the

respective treatment women and men receive while incarcerated. If our

equal protection inquiry ended every time a plaintiff fell short of showing

different treatment at a mirror-image facility, then despite our admonition

to the contrary, Klinger would "stand for the proposition that women and

men prison inmates can never be similarly situated for purposes of equal

protection analysis." Prago v. Elliot, 49 F.3d 1355, 1356 (8th Cir. 1995).

It is important not to lose sight of basic commonalities that justify

similar treatment. All inmates, regardless of gender, are
-17-

under the custody and control of the state as a result of their criminal

behavior; all are subject to the same general departmental regulations and

policies; and the incarceration in all cases shares common goals, including

the reform and rehabilitation of individual offenders. These common

characteristics provide a basis for the Department of Corrections to design

a program that gives substantially equal opportunities to women and men for

rehabilitative work while confined. Although gross institutional

differences might sometimes provide basis for finding groups of inmates

dissimilarly situated, they do not in this case. General, legitimate

concerns for security, the availability of inmates to fill positions, and

the like are more relevant in examining whether dissimilar treatment of

male and female inmates can be supported on non-discriminatory grounds.

Turning to that question, I further disagree with the majority's

conclusion that the female inmates' claim must fail because they have not

proved discrimination on the part of prison officials. The women have

brought forth enough to establish gender-based discrimination. The

department offers women only three opportunities to participate in industry

jobs, whereas male inmates have the opportunity to participate in 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 advantage outside the prison setting. Where the same

type of operation is set up at both a men's and women's institution, the

men's facility is significantly more sophisticated and industrial than the

women's counterpart. For example, while men at Moberly work in a printing

industry that is equipped to do layout work for forms, letterhead, and

envelopes, the Quick Print operation for women at Renz is "closer to a copy

center." App. at
 For example, as of 1991, two women at Renz were employed in 1

what is called an agri-business enterprise where they perform minor

maintenance and repair jobs on small machines. This operation,

however, is a scaled-down version of what was in place when Renz

housed male inmates and is quite different from and less skilled

than the traditional cattle and crop farming work currently offered

to male inmates at another Missouri institution. 

-18-

231-32. With very few exceptions, the industrial opportunities offered

1

to female inmates fall within prevailing stereotypes of "women's work":

telephone operators/telemarketers; data entry; and office copying. The

Missouri Department of Corrections cannot adequately explain the

disparities between the industrial opportunities for women and men on

neutral grounds and, more important, cannot explain its unwillingness to

expend the effort to provide women with the same opportunities it provides

to men. I disagree with the district court's statement, adopted by the

majority, that the dissimilar treatment is directly related to the size and

location of the prisons and to the greater long-term availability of male

inmates. Most of the industries could operate independent of their

geographical location. Moreover, as of 1991, only a handful of the

industries at the men's institutions had staff sizes that might be

difficult to generate at the women's institutions. The state has not shown

non-discriminatory reasons for determining the industrial opportunities it

offers to female inmates. The women, in contrast, have produced enough

evidence from which to infer the Department of Corrections' industry

placements are based on stereotypical notions of what jobs women can

perform and the lesser need for women to become skilled laborers.

In my view, the women inmates have established their case under the

Equal Protection Clause that the Missouri Department of Corrections

discriminates against them on the basis of their gender in the assignment

and organization of prison industries throughout the state's prison system.

I would remand this case to the district court with directions to instruct

the Department of
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Corrections to establish a remedial plan to correct the gender-based

disparities.

A true copy.

Attest:

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