Prison Beard OK; RLUIPA Scope Murky After Cert. Denial

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By Patrick Gregory

May 3 — Texas can't stop a Muslim prisoner from growing a four-inch beard and wearing religious headgear under the Religious Land Use and Institutionalized Persons Act, the U.S. Court of Appeals for the Fifth Circuit held May 2.

But the law's scope depends on which circuit a prisoner is in for now, thanks to the U.S. Supreme Court's denial of review issued the same day in an Eleventh Circuit RLUIPA dispute, Douglas Laycock, a professor at the University of Virginia Law School, Charlottesville, Va., told Bloomberg BNA by e-mail May 3.

That uncertainty exists despite the U.S. Supreme Court's 2015 RLUIPA ruling invalidating Arkansas's beard restriction in Holt v. Hobbs, 83 U.S.L.W. 4065, 2015 BL 12127 (U.S. Jan. 20, 2015) (83 U.S.L.W. 1061, 1/20/15), in which Laycock argued for the prisoner-petitioner.

The Texas Department of Criminal Justice failed to show that its beard and headgear restrictions were the least-restrictive means of promoting its compelling interests under Holt, the Fifth Circuit held in a decision by Judge Edward C. Prado.

There were less restrictive ways of preventing contraband transfer, identifying prisoners and controlling costs, the court said.

Adding to the RLUIPA uncertainty, the department “will probably seek rehearing en banc,” Laycock said.

The panel decision affirmed the district court's ruling upholding a permanent injunction against the restrictions.

SCOTUS Stays Out

In contrast, the Eleventh Circuit upheld a “short hair policy” for Alabama's male prisoners as applied to American Indians under Holt in Knight v. Thompson, 796 F.3d 1289 (11th Cir. 2015) (84 U.S.L.W. 229, 8/18/15).

The high court denied review May 2 in Knight v. Thompson, U.S., No. 15-999, review denied 5/2/15.

The Supreme Court “is presumably willing to invest only so much effort in prison grooming rules” after Holt, Laycock said.

Holt invalidated an Arkansas restriction that prohibited beards longer than a quarter-inch.

Unlike the Fifth Circuit, the Eleventh Circuit “is a court refusing to take RLUIPA and Holt seriously,” Laycock said.

The Eleventh Circuit issued its initial ruling before Holt, which was “vacated and remanded for consideration in light of Holt,” Laycock said.

The appeals court “then re-entered its original opinion with the thinnest of tissue paper excuses for distinguishing Holt,” Laycock said.

The Fifth Circuit distinguished Knight, saying it raised “factual issues that are distinct from a request for a beard that is four-inches.”

Contraband Risk

The Fifth Circuit rejected three justifications for the beard restriction—which banned beards longer than a half-inch—as applied to the prisoner, David Rasheed Ali.

The department argued that the restriction was needed to prevent contraband transfer, the court said.

But Ali's experts testified that having corrections officers visually inspect a prisoner's beard while having him “shake out his beard hair” would effectively reveal contraband, the court said.

The district court didn't err in crediting that testimony, the court said.

Holt bolsters” the district court's conclusion, the court said.

Holt“found that a less restrictive alternative to prohibiting beards would be to require inmates to conduct a self-search,” the court said.

Prisoner Identification

The department also failed to show the beard restriction was the least restrictive way to promote its interest in identifying prisoners, the court said.

“In Holt, the Supreme Court rejected a similar argument concerning the risk that inmates would shave to disguise themselves,” the appeals court said.

There are many ways for a prisoner to “permissibly change his appearance” besides shaving, the court said.

Further, the department can simply require an inmate to change his identification picture if he shaves or grows a beard, the court said.

Cost Control

The court also rejected the department's argument that allowing four-inch beards would be too expensive.

The trial court found that even if the department hired new staff to search beards, it would “amount to $3,445.84 each year,” the court said.

That's “an insignificant fraction of” the department's $3 billion budget, the appeals court said.

Judges James E. Graves Jr. and Leslie H. Southwick joined the decision.

Michael A. Benefield of Albritton Law Firm, Longview, Texas, represented the prisoner.

Leah O'Leary of the Texas attorney general's office, Austin, Texas, represented the state defendants.

To contact the reporter on this story: Patrick L. Gregory in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

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