C. Your Right to Be Free from Discrimination

LibraryThe Jailhouse Lawyer's Handbook (CCR) (2021 Ed.)

C. Your Right to be Free from Discrimination

√ The Rule: Any claim for discrimination must show that the regulation has both a discriminatory effect and intent. If there is discriminatory effect and intent, the court will use strict, intermediate, or rational-basis scrutiny to decide if the practice is constitutional. Which test it uses depends on whether you are complaining about race, religion, gender or some other form of discrimination.

What this means in practice is that prison officials cannot treat you differently because of your race, religion, ethnicity or gender and the prison can't segregate prisoners by race, ethnicity or religion except in very limited circumstances. However, proving discrimination is hard.

The Fourteenth Amendment to the Constitution guarantees everyone "equal protection of the law." Equal protection means that a prison cannot treat some prisoners differently than it treats others without a reason. How good of a reason the prison needs varies depending on what kind of discrimination is at issue. The courts are much more critical of laws that discriminate against people based on "suspect classifications." The most important suspect classification is race. For that reason, courts are very strict in reviewing laws that treat people of one race differently than another. Such laws are subjected to a type of review called "strict scrutiny" and are frequently struck down.

Other suspect classifications include ethnicity and religion. Suspect classifications target groups that are (1) a "discrete or insular minority," (2) have a trait they cannot change, also called an "immutable trait," (3) have been historically discriminated against, and (4) cannot protect themselves through the political process. The Supreme Court discussed each of these factors in a case called City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985). In that case, the Supreme Court decided that people with developmental disabilities are not entitled to suspect classification status.

The Supreme Court has applied an intermediate level of scrutiny to groups who need more protection than usual, but not quite as much as the most suspect classifications. Some courts refer to such groups as "quasi-suspect." Sex and/or gender is a "quasi-suspect" classification. Quasi-suspect classifications are subject to an intermediate level of scrutiny that is sometimes called "heightened scrutiny." Some lower courts have found that discrimination against LGBTQ+ status is also subject to heightened or intermediate scrutiny, but the Supreme Court has not yet weighed in. For more discussion about the equal protection rights of LGBTQ+ people, visit Section I Part 1.

LEVEL OF SCRUTINY

GOVERNMENT INTEREST OR OBJECTIVE

RELATION TO GOVERNMENT INTEREST

STRICT SCRUTINY (racial discrimination)

Compelling

Narrowly tailored

HEIGHTENED/INTERMEDIATE SCRUTINY (sex, gender and, in some circuits, LGBTQ+ status)

Important

Substantially related

RATIONAL BASIS (other)

Legitimate

Rationally related

1. Freedom from Racial Discrimination

Racial discrimination and racial segregation by prison authorities are unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. Washington v. Lee, 263 F. Supp. 327 (M.D. Ala. 1966). For example, prisons cannot prevent Black prisoners from subscribing to magazines and newspapers aimed at a Black audience. Jackson v. Godwin, 400 F.2d 529 (5th Cir. 1968). Nor can they segregate prisoners by race in their cells. Sockwell v. Phelps, 20 F.3d 187 (5th Cir. 1994). The Supreme Court stated that racial segregation in prison cannot be used as a proxy (a stand-in) for gang membership or violence without passing "strict scrutiny"—which is defined several paragraphs below and in the chart on the previous page.

The easiest type of equal protection claim to bring is a challenge to a policy that is explicitly race based, for example, if a prison has a written policy of segregating prisoners by race. It is rare to come across written policies of that nature these days. More likely, you will be challenging a policy or practice...

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