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Fifth Circuit Terminates Consent Decree for Muslim Services in Texas Prisons

by Matt Clarke

On July 2, 2019, a strongly divided three-judge panel of the Fifth Circuit Court of Appeals issued an opinion terminating the consent decree in Brown v. Collier, which allowed Muslim prisoners in the Texas Department of Criminal Justice (TDCJ) to hold religious services without direct supervision when a TDCJ-trained religious volunteer or chaplain was unavailable.

The consent decree had been previously superseded by the “Scott Plan,” which gave all religious groups of a sufficient size the ability to meet one hour per week under direct staff supervision when a volunteer or chaplain was unavailable.

Brown v. Collier, a federal class-action civil rights lawsuit, was brought by a TDCJ prisoner named Bobby R. Brown in 1977. It alleged discrimination against Muslim prisoners and requested that they receive the same number of group religious services per week as adherents of the Protestant, Catholic and Jewish faiths.

The resulting consent decree exempted Islamic services from the TDCJ policy requiring direct supervision of all religious services, allowing indirect staff supervision of prisoner-led services when needed.

In 2009, TDCJ prisoner William Scott, a Jehovah’s Witness, filed a federal lawsuit seeking the same accommodation for his faith. The court in that case found the consent decree in Brown violated the Establishment Clause by giving Muslims preferential treatment, and ordered the TDCJ to devise a religion-neutral plan. In response, prison officials developed the Scott Plan.

They then filed a motion to terminate the Brown consent decree pursuant to the termination provision of the Prison Litigation Reform Act. This operated as a stay of the consent decree. The TDCJ then implemented the Scott Plan, which applied to all religions and permitted one hour of staff-supervised group religious services per week when a volunteer or chaplain was unavailable.

The Brown court dismissed without opposition 20 of the 22 provisions in the consent decree. However, it held that the provisions requiring Muslims be given equal time for religious services each week as Protestants, Catholics and Jews, and allowing prisoner-led indirectly-supervised Islamic services when a volunteer or chaplain was unavailable, should continue to be enforced.

On appeal, the Fifth Circuit acknowledged the district court’s finding that one hour per week would not be sufficient for Muslim prisoners to complete the three mandatory group practices of their faith – Jumu’ah, Taleem and Qur’onic studies. However, it held that the reason for that insufficiency was not the facially neutral policy requiring direct supervision, but the lack of Islamic volunteers.

The appellate court noted that lawsuits attempting to require the TDCJ to allow prisoner-led services had failed for members of the Yahweh Evangelical Assembly, Jewish and Odinist faiths. The TDCJ justified its direct-supervision requirement on concerns over potentially disruptive behavior and PREA requirements.

The Court of Appeals also found that the fact that the TDCJ concentrated Jewish and Native American prisoners in a few facilities – which the district court found was to facilitate their religious worship and house them closer to volunteers – but did not do so for Muslim prisoners, did not violate the Establishment Clause. Therefore, the Fifth Circuit reversed the district court’s order and terminated the Brown consent decree.

Judge Carolyn King filed an opinion concurring in part and concurring in the judgment, in which she concluded that the housing policy violated the Establishment Clause but the consent decree was broader than needed to remedy that violation. Judge James Dennis filed a dissenting opinion, concluding that the Scott Plan violated the rights of Muslim prisoners under the Religious Land Use and Institutionalized Persons Act (RLUIPA). He also criticized the majority for retrying the facts of the case de novo. See: Brown v. Collier, 929 F.3d 218 (5th Cir 2019). 

Related legal case

Brown v. Collier