Knight v. Thompson: The Eleventh Circuit's Perpetuation of Historical Practices of Colonization
Knight v. Thomp son: The E leventh Circuit's Perpetuation of Historical Practices of Colonization
Randi Dawn Gardner Hardin 0 1
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1 Randi Dawn G. Hardin,Knight v. Th ompson: Th e Eleventh Circuit's Perpetuation of Historical Practices of Colonization , 38 Am. Indian L. Rev. 579, 2014
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KNIGHT V. THOMPSON: THE ELEVENTH CIRCUIT’S
PERPETUATION OF HISTORICAL PRACTICES OF
In the case Knight v. Thompson, Ricky Knight and several other
plaintiffs sued the Alabama Department of Corrections (ADOC) over its
severely restrictive grooming policy, asserting that the policy impermissibly
violated the Religious Exercise in Land Use and by Institutionalized
Persons Act (RLUIPA) and infringed upon the plaintiffs’ rights to wear
their hair in accordance with their religious beliefs. The ADOC instituted a
policy to promote health and safety within its prison system that “requires
all male prison inmates to wear a regular hair cut . . . off the neck and
ears.”1 The ADOC does not allow any exceptions to this policy for any
reason.2 However, many people follow religions that dictate they maintain
long hair, including Ricky Knight—a Native American who believes that
“wearing long hair is a central tenant of [his] religious faith.”3
Many states impose hygiene standards for inmates, but few refuse to
allow inmates the ability to groom themselves as mandated by their
religion.4 Congress enacted the RLUIPA in order to protect inmates from
arbitrary policies that prevent the exercise of their religious beliefs. In an
attempt to secure his rights to wear his hair in accordance with his religion,
Knight sued the ADOC on the basis that their strict grooming policy
violated the RLUIPA.
The Eleventh Circuit reviewed the policies of the ADOC, and ruled that
even though there was a substantial burden upon Knight’s right to practice
his religion, the ADOC’s policies were permissible and did not violate the
RLUIPA. In doing so, the Eleventh Circuit ignored the requirements of the
RLUIPA in order to uphold the policy of the ADOC.
Part II of this paper discusses the law prior to this case, including the
First Amendment, the RLUIPA, and how courts have interpreted the
* Second-year student, University of Oklahoma College of Law.
1. Knight v. Thompson, 723 F.3d 1275, 1277 (11th Cir. 2013).
4. Dawinder S. Sidhu, Religious Freedom and Inmate Grooming Standards, 66 U.
MIAMI L. REV. 923, 927 (2012).
RLUIPA. Part III describes the facts of this case, the primary issues, and the
Eleventh Circuit’s holding that the ADOC did not violate the RLUIPA. Part
IV discusses how the court reached its decision. Part V analyzes how the
court erred by giving excessive deference to the ADOC and imposing the
ADOC’s burden of proof on Knight; the negative implications that will
result due to the continued allowance of policies which infringe upon the
religious exercise of inmates; and how the Eleventh Circuit’s ruling further
perpetuates the United States’ historical practices of colonization to the
detriment of Native Americans.
II. Law Before Knight v. Thompson
The idea of “freedom of religion” is one of the founding principles of the
United States. The Founding Fathers of our country codified this belief
within the U.S. Constitution, further solidifying this standard within
American culture and law. This country’s strong policy of permitting
unfettered religious practice continues today, and the U.S. Supreme Court
has upheld this tenet numerous times. The Supreme Court has stated, “no
liberty is more essential . . . than is the religious liberty protected by the
Free Exercise Clause.”5 However, the U.S. government and its courts have,
at times, violated this sacred principle by allowing unchecked violations of
religious freedoms to stand uncorrected. When the courts allow
degradations of private citizens’ religious rights to continue in direct
contradiction to the Constitution, they impermissibly endanger the rights of
all U.S. citizens, and fail to uphold the philosophy upon which this country
A. Federal Constitutional Protections for Religious Beliefs
The First Amendment’s Free Exercise Clause states, “Congress shall
make no law respecting an establishment of religion, or prohibiting the free
exercise thereof.”6 The First Amendment works to protect against undue
governmental regulation of religious beliefs. “Government may neither
compel affirmation of a repugnant belief . . . nor penalize or discriminate
against individuals or groups because they hold religious views abhorrent to
the authorities.”7 The government must refrain from regulating religious
acts which do not “pose some substantial threat to public safety, peace or
order.”8 When a law puts a person in a position where they have to choose
between complying with the law and complying with the principles of their
faith, it violates the Free Exercise Clause.9
The hallmark of modern First Amendment interpretation comes from
Sherbert v. Verner, where the Supreme Court stated that only a compelling
government interest would justify a law that substantially infringes on an
individual’s religious rights.10 The Court held that the state of South
Carolina violated the Free Exercise Clause by denying unemployment
benefits to the Plaintiff.11 The Plaintiff refused to take employment
requiring Saturday work in accordance with her religious beliefs, and
although South Carolina gave unemployment benefits to people who
refused to work on Sundays for religious reasons, it did not afford the same
exception for those who observed the Sabbath on other days.12 The Court
adopted a balancing test akin to strict scrutiny, weighing the burden of
imposition on the Plaintiff’s beliefs against the interests of the government,
and found that South Carolina could not deny unemployment benefits to the
Plaintiff as this made her choose between adhering to her faith and
receiving a government benefit.13
Later, in Employment Division, Department of Human Resources of
Oregon v. Smith, the Supreme Court deviated from this high standard and
severely limited the application of the Free Exercise Clause.14 The Court
declared that Oregon could deny unemployment benefits to the Plaintiffs
after they were fired for ingesting peyote—a Schedule I narcotic15—in
accordance with their beliefs and practices as members of the Native
American Church.16 The Court held that laws which prohibit conduct may
enjoin an individual’s right to practice their religion so long as the law itself
is not unconstitutional on other grounds, and “that the right of free exercise
does not relieve an individual of the obligation to comply with . . . valid and
neutral” laws “of general applicability” conflicting with the individual’s
8. Id. at 403 (citations omitted).
9. Id. at 406.
10. Id. at 406, 407.
11. Id. at 410.
12. Id. at 401-02.
13. Id. at 403.
14. Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872 (1990).
15. 21 U.S.C. § 812 (2012).
16. Smith, 494 U.S. at 874, 890.
17. Id. at 879, 890.
B. Congressional Response to Smith and Subsequent Statutory Law
In response to the Court’s decision in Smith, Congress enacted the
Religious Freedom Restoration Act of 1993 (RFRA),18 which reinstated the
Sherbert test requiring strict scrutiny. Under the RFRA, the “Government
shall not substantially burden a person’s exercise of religion” unless the law
in question “(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental
interest.”19 The RFRA initially applied to the states under the Fourteenth
Amendment, but the Court later held that the RFRA could not be imposed
upon states under the Fourteenth Amendment alone.20
Congress then enacted the Religious Exercise in Land Use and by
Institutionalized Persons Act (RLUIPA) after the Supreme Court held that
the RFRA was unconstitutional as applied to states.21 Congress passed the
RLUIPA in order to protect individual’s religious rights from burdens
imposed by governmental policies, especially for inmates, who depend on
the government to accommodate their religious beliefs and practices.22 It
No government shall impose a substantial burden on the
religious exercise of a person residing in or confined to an
institution . . . even . . . from a rule of general applicability,
unless . . .
(1) [it] is in furtherance of a compelling government interest; and
(2) is the least restrictive means of furthering that compelling
Congress meant for the RLUIPA to break down the “‘frivolous or arbitrary’
barriers imped[ing] institutionalized persons’ religious exercise.”24
The standards of review are the same for the RLUIPA as they were for
the RFRA, but the RLUIPA’s scope is much more limited, applying only to
land use regulations and religious exercise of inmates.25 The RLUIPA is a
valid exercise of Congress’ powers under the Spending Clause, which
18. 42 U.S.C. § 2000bb (2012).
19. Id. § 2000bb-1(a)-(b).
20. City of Boerne v. Flores, 521 U.S. 507, 519 (1997).
21. Sidhu, supra note 4, at 933.
22. Cutter v. Wilkinson, 544 U.S. 709, 721 (2005).
23. 42 U.S.C. § 2000cc-1(a) (2012).
24. Cutter, 544 U.S. at 716.
25. Id. at 714.
permits Congress to place limitations when it offers federal funds to states
to promote the general welfare of citizens.26 The RLUIPA falls under the
Spending Clause authority by working to protect “prisoners’ religious rights
and to promote the rehabilitation of prisoners.”27 Congress has the authority
to condition the receipt of federal funds by states by allowing the states to
either (1) choose to receive the money and comply with federal law, or (2)
choose to refuse the federal funds and refrain from instituting the federal
law.28 In the case at hand, Alabama chose to accept federal funding for its
prisons; therefore, Alabama is bound to follow the RLUIPA.29
The RLUIPA balances the substantial burden certain policies place on
the exercise of religious rights by prisoners with the need of correctional
facilities to maintain order. In doing so, it imposes strict scrutiny upon laws
that burden religious practice.30 Under the RLUIPA, the plaintiff must first
prove “(1) that an institutionalized person’s religious exercise has been
burdened and (2) that the burden is substantial . . .”31 Once the plaintiff
proves these two elements, the burden shifts “to the government to show (3)
that the burden furthers a compelling governmental interest and (4) that the
burden is the least restrictive means of achieving that compelling
interest.”32 A court should defer to the expertise of prison officials as they
are more aware of the particular requirements to maintain order and safety
within correctional facilities,33 but this level of deference does not allow the
government to make mere conclusory statements to justify its regulations.34
Empty references to safety and security will not suffice to fulfill the high
standard that the RLUIPA sets.35 Instead, the government’s policy must
26. Charles v. Verhagen, 348 F.3d 601, 606, 608 (7th Cir. 2003).
27. Id. at 607.
28. Id. at 608.
29. For comparison as to why the RLUIPA binds the state to adopt the least restrictive
means test, see id. at 608 (“If the DOC objected to the imposition of the least restrictive
means test, it certainly could have refused federal funding.”).
30. Fegans v. Norris, 537 F.3d 897, 908 (8th Cir. 2008) (Melloy, J., concurring in part
and dissenting in part) (citing 42 U.S.C. § 2000cc 1(a) (2012)).
31. Spratt v. R.I. Dep't of Corr., 482 F.3d 33, 38 (1st Cir. 2007).
33. See Cutter v. Wilkinson, 544 U.S. 709, 723 (2005) (citing 146 CONG. REC. 16698,
16699 (2000) (joint statement of Sen. Hatch and Sen. Kennedy on RLUIPA)).
34. See id. at 722-23; see also Warsoldier v. Woodford, 418 F.3d 989, 998 (9th Cir.
35. See Couch v. Jabe, 679 F.3d 197, 204 (4th Cir. 2012); Smith v. Ozmint, 578 F.3d
246, 253 (4th Cir. 2009); Spratt, 482 F.3d at 42, 43; Washington v. Klem, 497 F.3d 272, 283
(3d Cir. 2007); Warsoldier, 418 F.3d at 998.
actually be the least restrictive means of achieving their compelling interest
as applied to the case at hand.36
Most jurisdictions have recognized that inmates have the right to groom
themselves in accordance with their religious mandates.37 Only eleven
states have restrictive hair policies preventing male inmates from
maintaining hair in accordance with their beliefs, whereas thirty-nine states,
the District of Columbia, and the Federal Bureau of Prisons all have
grooming policies that either do not mandate the length of male inmates’
hair or allow for religious exemptions.38 The eleven states that restrict an
inmate’s ability to control his or her own hair cite reasons including
identification, health, and order in explaining why they must maintain strict
Although substantive statutory law exists concerning both Native
American religious rights and inmate religious rights, the law in this area
inadequately protects the rights of Native American prisoners to engage in
religious practices. Likewise, case law in this area fails to fully afford
nationwide protections for Native American prisoners. “Native religious
traditions . . . are religions . . . of ritual practice” and because the Free
Exercise Clause focuses on religious beliefs and not necessarily religious
practices, “the First Amendment and the concept of religion it embodies can
never afford full protection to Native religious traditions.”40 The RLUIPA
aims to protect religious exercise of inmates, and therefore better conforms
to Native American religious viewpoints. However, courts have interpreted
the RLUIPA differently in jurisdictions across the nation, and while most
correctional institutions subject to the RLUIPA accommodate the religious
grooming needs of their inmates, the Eleventh Circuit has systematically
and repeatedly failed to live up to its obligations under the RLUIPA.
C. The Eleventh Circuit’s Application of the RLUIPA
The Eleventh Circuit has routinely ruled in favor of correctional facilities
grooming policies and against prisoner rights, both under the RFRA and
under the RLUIPA. For example, in Harris v. Chapman41 the Plaintiff, an
inmate at the Martin Correctional Institution (MCI), sued MCI under the
RFRA for violating his rights to exercise his religious beliefs.42 The
Plaintiff was a Rastafarian and believed that he must keep his hair and
beard unshorn; he refused to comply with MCI’s strict grooming policy
requiring male inmates to keep their hair above the collar line and remain
clean-shaven.43 In return, the correctional officers at MCI held the Plaintiff
down against his will while another inmate cut off his dreadlocks.44 The
court assumed the policy was a substantial burden on the Plaintiff’s
religious exercise, and likewise, summarily stated that MCI had a
compelling interest in upholding the grooming policy.45 In regards to
whether the policy was the least restrictive means of furthering that interest,
the court shifted the burden from MCI to the Plaintiff.46 The court stated
that because it could not imagine less restrictive means, and because the
Plaintiff had not proposed any less restrictive means, the regulation passed
that prong of the RFRA test.47 This same standard was later applied to
claims arising under the RLUIPA, as the Eleventh Circuit later recognized
the two statutes impose the same standard upon governmental policies that
burden religious exercise.48
The Eleventh Circuit has not always consistently contradicted the
standards set under the RFRA and the RLUIPA and has, at least on one
occasion, recognized that the RLUIPA imposes a higher burden upon
governmental policies burdening prisoner’s religious exercise.49 Two
months before the Eleventh Circuit decided Knight, it held that the Florida
Department of Corrections (FDC) had the burden to demonstrate its policy
of denying kosher meals to Jewish inmates was the least restrictive means
of furthering its interests in security and cost control.50 The court stated that
because the FDC could not explain why other institutions were able to
provide kosher meals without having security concerns, its policy failed the
least restrictive means test. It adopted the standard found in Warsoldier in
regards to evidence from other penal institutions, and stated that, “[w]hile
the practices at other institutions are not controlling, they are relevant to an
inquiry about whether a particular restriction is the least restrictive means
by which to further a shared interest.”51
D. Interpretation of the RLUIPA by Other Federal Circuit Courts
Other jurisdictions have found restrictive hair grooming policies violate
the RLUIPA, including the Ninth Circuit, where the court held that the
California Department of Correction’s (CDC) strict grooming policies were
impermissibly restrictive.52 In Warsoldier, the Plaintiff—a Native
American inmate—sued the CDC for infringing on his religious exercise
after he was punished for violating the CDC’s grooming policy.53 The court
found first that the CDC’s policy was a substantial burden on the Plaintiff’s
religious beliefs, and then looked to whether the CDC could show that its
policy was “both ‘in furtherance of a compelling governmental interest’ and
the ‘least restrictive means of furthering that compelling governmental
interest.’”54 To be upheld, the CDC’s policy had to clear both hurdles set by
The court focused the majority of its analysis on whether the CDC had
fulfilled its obligations to show the policy was the least restrictive means of
achieving its goals, and found that the CDC had failed to do so.55 The
CDC’s evidence included statements that all other regulations would be
unworkable, but did “not elaborate why this is the case or what other modes
of regulation it considered and rejected.”56 The court stated that the “CDC
cannot meet its burden to prove least restrictive means unless it
demonstrates that it has actually considered and rejected the efficacy of less
restrictive measures before adopting the challenged practice.”57 Further,
evidence showing that other penal institutions with similar interests had
implemented less restrictive policies gave credence to the argument that the
CDC’s policy was not the least restrictive means of furthering its interests.
We have found comparisons between institutions analytically
useful when considering whether the government is employing
the least restrictive means. Indeed, the failure of a defendant to
explain why another institution with the same compelling
interests was able to accommodate the same religious practices
may constitute a failure to establish that the defendant was using
the least restrictive means . . . ‘prison officials must set forth
detailed evidence, tailored to the situation before the court, that
identifies the failings in the alternatives advanced by the
Because the CDC failed to meet its burden under the RLUIPA, the court
overturned the policy as an undue burden on the Plaintiff’s religious rights.
Other circuits—including the First, Second, Third, and Fourth Circuits—
have also adopted this same standard.59
III. Statement of the Case
In the case Knight v. Thompson, the Eleventh Circuit analyzed whether
the ADOC’s grooming policy, which requires male inmates to keep short
hair, violated the RLUIPA by impermissibly infringing upon the religious
exercise of Native American inmates whose faith dictated keeping long
Ricky Knight,60 an inmate in custody of the ADOC, sought a religious
exemption to the ADOC’s strict grooming policy, which “requires all male
prison inmates to wear a regular hair cut, defined as off the neck and ears”
without “any exemptions . . . religious or otherwise.”61 The ADOC cited
several reasons for instituting the strict grooming standards, including
“security, safety, control, order, uniformity, discipline, health, hygiene,
sanitation, cost-containment, and reducing health care costs.”62 Knight, a
Native American, fought for an exemption to the male grooming policy for
ten years, stating that it unduly burdened his religious practice “because
wearing long hair is a central tenant of [his] religious faith.”63 He filed his
first claim in 1993 under the RFRA, along with several other similarly
situated male inmates.64
B. Procedural History
In addition to challenging the grooming policy, Knight and the other
plaintiffs also challenged the ADOC’s policy prohibiting sweat lodges as
violating their religious exercise rights.65 After the Supreme Court held that
the RFRA was unconstitutional as it applied to states and after Congress
enacted the RLUIPA, Knight amended his claim to reflect the change.66
The district court ruled for summary judgment in favor of the ADOC, and
Knight appealed to the Eleventh Circuit.67 The Eleventh Circuit upheld the
ruling in favor of the ADOC for all causes of action except the challenge to
the grooming policy, and remanded that claim to the district court.68 After
the district court again ruled in favor of the ADOC, Knight again appealed
to the Eleventh Circuit.69
In line with its prior decisions, the Eleventh Circuit held that although
the ADOC’s policy undoubtedly significantly burdened Knight’s religious
beliefs and practices, it was nevertheless permissible for the ADOC to
maintain such strict grooming policies with no religious exemption under
the RLUIPA.70 The court found that Knight had offered “extensive,
undisputed testimony that long hair has great religious significance” which
equated cutting his hair with “an assault on [his] sacredness.”71 The court
summarily found that Knight had fulfilled his burdens under RLUIPA and,
likewise, the ADOC had shown that it has a compelling interest in
maintaining the safety and security of its facilities.72 “The crux of this
appeal, then, is simply whether the ADOC’s blanket short-hair policy
furthers those goals and is the least restrictive means of doing so.”73
The court focused primarily on whether the testimony of the ADOC’s
expert witnesses justified the continuation of the grooming policy. A court
should give “due deference” to correctional facilities as noted in Cutter, but
this deference is limited. Unlike in Warsoldier, where the Ninth Circuit
stated that the correctional facility had to actually consider and reject
alternatives in order for the policy to be found to be the least restrictive,74
this court said “the RLUIPA . . . does not give courts carte blanche to
second-guess the reasoned judgments of prison officials” and took the
testimony of ADOC’s experts at face value.75 The RLUIPA imposes strict
scrutiny on governmental policies that substantially burden inmate’s
religious practices; therefore, these practices should only be upheld if there
is no feasible alternative.76 The government bears the burden of proving
that its questioned policy is necessary, and that it has no way of furthering
its interest without the policy.77 However, in this case the Eleventh Circuit
shifted this burden to Knight.
IV. Decision of the Court
In this case, because the ADOC testified that the alternatives to the
grooming policy offered by Knight would not alleviate their concerns, the
court found that the ADOC’s policy was the least restrictive means of
furthering its interests.78 The court placed the burden upon Knight to prove
that less restrictive alternatives existed, and dismissed the Ninth Circuit’s
holding in Warsoldier requiring the government to bear the burden of
proving no less restrictive alternatives exist.79 Here, because the ADOC did
not show that less restrictive means existed, and because the ADOC
testified that Knight’s alternatives did not further the ADOC’s interests, the
court ruled that the ADOC’s substantially burdensome policy was
The Eleventh Circuit justified its decision despite the overwhelming
evidence presented by Knight showing that the majority of other
jurisdictions maintain permissive grooming policies, which allow inmates
to accommodate their religious beliefs. The court noted that although many
other jurisdictions permit men to keep their hair in accordance with their
religious beliefs, these jurisdictions have simply “elected to absorb [the]
risks” associated with having a more permissive grooming policy.81 The
evidence showing other jurisdictions have implemented permissive
grooming policies was “some evidence” but not “dispositive evidence.”82
Further, the court found the ADOC’s evidence concerning the severe
overcrowding of its facilities combined with its lack of adequate staffing
and funding as further proof that the ADOC had justifiable reasons for
adopting policies incongruous with other jurisdictions.
The Eleventh Circuit’s decision to uphold the restrictive policies of the
ADOC strikes against the very nature of the RLUIPA. The court cited
several reasons for upholding the policy, notably that it afforded due
deference to the decisions of correctional officers and its prior precedence
supported allowing the policy. The court further opined that, because
Knight had not proven less restrictive means existed which would advance
the ADOC’s purported goals, and because the ADOC had shown that each
of Knight’s proposed alternatives was not feasible to pursue its goals, the
ADOC had met its burden under the RLUIPA of showing no less restrictive
means were available.
A. Problems with the Eleventh Circuit’s Decision
The court’s decision is flawed for a number of reasons. First and
foremost, the court here misconstrues the RLUIPA’s requirement of
affording due deference to correctional officers. The RLUIPA requires that
no governmental entity impose burdens on a prisoner’s religious beliefs
unless it is in furtherance of a compelling government interest, and is the
least restrictive means of furthering that compelling government interest.83
Further, although courts do owe deference to correctional officers, the
RLUIPA must be construed broadly in favor of protecting religious rights
81. Id. at 1286.
82. Id. at 1281.
83. 42 U.S.C. §§ 2000cc(a)(1), 2000cc-2(b) (2012).
of inmates.84 The court here acknowledged that the ADOC bears the burden
of proving that least restrictive means to achieving its interest do not exist.
Yet, the court found that because Knight failed to show any viable less
restrictive means existed, the ADOC had fulfilled its burden under the
The RLUIPA imposes a high burden on governmental policies seeking to
infringe upon the religious rights of prisoners. The language “compelling
government interest” and “least restrictive means” is indicative of
Congress’ intent to apply strict scrutiny to governmental policies that
inhibit prisoners’ religious rights.85 Thus, the RLUIPA requires the
government to actually show that no alternatives exist to achieving their
compelling interest. In order to fulfill its substantial burden, the court in
Warsoldier stated the correctional facility “cannot meet its burden . . .
unless it demonstrates that it has actually considered and rejected the
efficacy of less restrictive measures before adopting the challenged
practice.”86 As the Eleventh Circuit acknowledged, the First and Third
Circuits, in addition to the Ninth Circuit, have also recently found this to be
the proper standard for evaluating whether the government has met its
burden of proving least restrictive means under the RLUIPA.87 The Second
and Fourth Circuits have also held that prison officials must actually
consider other alternatives prior to deciding a policy is the least restrictive
means of achieving its goals.88 Yet the Eleventh Circuit dismissed the
persuasive precedence of other circuits by implying this requirement is set
higher than the standard set under the RLUIPA.89 The court said “[t]he
RLUIPA asks only whether efficacious less restrictive measures actually
exist, not whether the defendant considered alternatives to its policy,”
despite the fact that it is “relatively less common” for corrections officers to
make “an appropriately tailored policy without first considering and
rejecting the efficacy of less restrictive measures.”90
In the case at hand, it was undisputed that “the ADOC never considered
any less restrictive alternatives to its short-hair policy before adopting it,”
and the ADOC witnesses “had never worked in—or reviewed the policies
of—prison systems that allow long hair.”91 Yet the court ignored this
evidence, and instead held that the ADOC had met its burden under the
RLUIPA because it refuted Knight’s proffered alternatives and had not
provided any evidence of the existence of alternatives itself.92 As shown by
the language of the statute, the RLUIPA requires the court to utilize strict
scrutiny when reviewing policies that significantly inhibit inmate’s
religious practices.93 The Eleventh Circuit simply failed to do this, and
instead engaged in an analysis that gave near absolute deference to the
government at the expense of Knight’s religious rights.
The Eleventh Circuit, in justifying its utilization of a lesser standard of
scrutiny, stated that it was obligated under Cutter to give due deference to
the extensive knowledge of the prison administrators, but that “[t]his
deference is not . . . unlimited, and policies grounded on mere speculation,
exaggerated fears, or post-hoc rationalizations will not suffice.”94 Yet, the
court found persuasive testimony that inmates with long hair pose a threat
to health and hygiene based on the recollection of a prison administrator
describing “an incident in which a black widow spider wove a nest in an
inmate’s dreadlocks.”95 Several of the ADOC’s witnesses also cited
concerns that long hair posed a safety risk because “non-exempt inmates
might attack exempted inmates out of jealousy” and “inmates can grab each
other by the hair during fights”; however, “none of the ADOC’s witnesses
could point to any instances where an inmate had attacked an exempted
long-hair inmate out of jealousy or grabbed long hair during a fight.”96 The
court here seems to be utilizing unlimited deference, and justifying policies
based solely on “speculation and exaggerated fears.”97
90. Id. at 1286.
91. Id. at 1279, 1285.
92. Id. at 1280.
93. Id. at 1286.
94. Id. at 1283, 1285.
95. Id. at 1279.
96. Id. at 1278-80.
97. Rich v. Sec’y, Fla. Dep't of Corr., 716 F.3d 525, 533 (11th Cir. 2013) (quoting
Lawson v. Singletary, 85 F.3d 502, 509 (11th Cir. 1996)).
The Eleventh Circuit also ignored Congress’ purpose in enacting the
RLUIPA—to provide “a broad protection of religious exercise” for
prisoners.98 Prisoners are a vulnerable class as they are under the care and
control of the correctional facilities that house them. Prisoners must
conform their behavior to follow whatever policies these correctional
facilities impose upon them, or face consequences. Further, prisoners lack
the capacity to opt-out of the rules set by correctional facilities. A prisoner
cannot simply move to a facility with a more lenient grooming policy or
decide not to conform to the policy by the very nature of their status as
incarcerated people. In enacting the RLUIPA, Congress acknowledged the
broad control prison officials have over inmates’ lives, and provided a
means to curb abuses of power that infringe upon inmates’ rights to engage
in religious practices.
B. The Eleventh Circuit’s Burden Shifting: How the Court Should Have
The Eleventh Circuit made a crucial error in interpreting the
requirements of the RLUIPA. It shifted the ADOC’s burden of proving that
the grooming policy was the least restrictive means of furthering its interest
to Knight, and in doing so failed to utilize strict scrutiny in analyzing
governmental policies infringing on prisoners religious rights as mandated
under the RLUIPA. Instead, the Eleventh Circuit should have interpreted
the RLUIPA as Congress intended, and applied strict scrutiny to the
ADOC’s practices. By shifting the burden of proving least restrictive means
from the ADOC to Knight, the Eleventh Circuit failed to interpret the
RLUIPA in accordance with congressional intent in passing the law.
Congress intended the RLUIPA to impose a high burden upon the
policies of correctional facilities that restrict a prisoner’s rights to religious
exercise. Because the purpose of correctional facilities should be
rehabilitation, and because frustration of religious exercise frustrates the
rehabilitation of inmates, Congress enacted this law in order to remove
barriers impeding prisoner’s rehabilitation caused by the near absolute
control over inmates exercised by corrections officers. For that reason, the
RLUIPA is supposed to be interpreted broadly, and courts may only allow
those policies that are necessary to be upheld under the expansive
protections for religious exercise under this statute.
The Eleventh Circuit should have taken this opportunity to adopt the
standards set forth by the Ninth Circuit in Warsoldier as other jurisdictions
98. 42 U.S.C. § 2000cc-3(g) (2012).
have done. If the court had done so, it would have found that the ADOC
failed to meet its burden of least restrictive means. Under the proper
standards for determining least restrictive means, the ADOC would have to
show that it actually considered and rejected alternatives before adopting its
restrictive grooming policy. Because the ADOC admitted it did not
consider any alternatives to its policy before adopting it, the Eleventh
Circuit should have overturned the policy as an impermissible restriction on
Knight’s religious exercise. Further, the Eleventh Circuit should have
considered the permissive grooming policies of other jurisdictions as
persuasive evidence that corrections facilities can and do maintain order
and control within their facilities, even with less restrictive policies.
C. Implications of the Eleventh Circuit’s Decision
The decision handed down in this case has immediate negative
implications for Knight. The court here justified the ADOC’s imposition of
its will to the detriment of Knight’s religious tenants. For Knight, the
Eleventh Circuit’s ruling forces him to cut his hair. At first glance, a hair
cut in and of itself does not seem to implicate dire consequences. However,
for Knight—and many other Native Americans—hair length is intimately
tied with spirituality, and one’s hair may only be shorn when in grieving.99
By forcing Knight to cut his hair, the Eleventh Circuit is effectively
endorsing “an assault on [his] sacredness” that impermissibly restricts
Knight’s religious rights.
This case and the restrictive grooming policies permitted in the Eleventh
Circuit cause widespread harm throughout prison systems within its
jurisdictional bounds. This case further reaffirms the Eleventh Circuit’s
unilaterally permissive policies allowing prison officials to infringe upon
the rights of inmates solely on the basis that they are inmates. Prisoners
within these facilities are prohibited from engaging in all aspects of their
religion. A person’s religious beliefs often correlate to their moralistic
beliefs. The ultimate goal of correctional facilities should be the
rehabilitation of inmates—if an inmate is prevented from fully practicing
their religious beliefs, how is he to rehabilitate himself? In fact, in some
instances the Eleventh Circuit has further hampered the rehabilitation of
inmates by permitting the forced restraint and hair cutting of inmates in
direct contradiction with their religious beliefs, as seen in Harris.100
99. Diaz v. Collins, 114 F.3d 69, 72-73 n.18 (5th Cir. 1997).
100. Harris v. Chapman, 97 F.3d 499, 502 (11th Cir. 1996).
By permitting the ADOC unfettered deference in setting restrictive
grooming policies, the Eleventh Circuit continues to perpetuate two
historical practices to the detriment of its citizenry: further inhibition of
inmate rehabilitation and perpetuation of historical practices of
colonization. The Eleventh Circuit approvingly consented to a policy that
causes both direct and indirect social harm by permitting this seemingly
innocuous grooming policy to go unchecked. This decision: (1)
immediately hurts inmates by preventing them from engaging fully in their
religion; (2) furthers continual practices of violations of prisoners’ rights;
(3) harms the larger society by impeding inmate rehabilitation, thus
potentially leading to higher incarceration rates as unrehabilitated prisoners
engage in further offenses once released; (4) fails to fully uphold the
RLUIPA in accordance with congressional intent; and (
continued practices of colonization and suppression of religious exercise
against Native Americans.
D. The Eleventh Circuit’s Ruling in a Broader Context: Native Americans and the Continued Judicial Approval of Colonization
The Eleventh Circuit’s decision imposes additional harm upon Native
American prisoners in particular by perpetuating historical colonization
practices against Native American prisoners. Many Native Americans
associate the keeping of long hair with their spiritual beliefs.101 Further,
history shows that Native Americans in particular have faced undue
pressure from outsiders to conform their religious beliefs to more closely
match those of mainstream society. The United States has utilized
missionaries to convert and assimilate Native Americans throughout
history.102 They aimed to eradicate Native American religious beliefs and
instead impose Christianity upon Native Americans through colonization.103
The United States has imposed several restrictive laws banning the practice
of certain Native American religious activities, including outlawing
ceremonies such as the Ghost Dance and Sun Dance seen throughout Plains
tribal cultures.104 Further, the United States has historically used boarding
schools as a means of “civilizing” Native Americans by forcibly removing
Native American children from their homes, refusing to allow them to
speak any language except English, and compelling them to engage in
Christianity.105 These boarding schools stripped Native American children
of their families, their language, their culture, and their religion.106 A major
tenant of this practice was the required cutting of Native American
children’s long hair.107 The boarding school staff ceremoniously sheared the
hair of each child to provide for uniformity, order, and civility.108 Much like
the restrictive policies the United States has repeatedly enforced throughout
history, the policy of the ADOC further compels this legacy of religious
intolerance, backed by the force of the Eleventh Circuit judiciary.
Outside of the context of the RLUIPA, Congress has enacted laws
particularly addressing Native American religious rights and the special
considerations the government must afford to Native American religious
beliefs due to its prior history of suppression and assimilation. In 1978,
Congress passed the American Indian Religious Freedom Act (AIRFA).109
The AIRFA intended to address the historical practices of the United States
government that repeatedly infringed upon the rights of Native Americans
to engage in their religious practices. It states, “it shall be the policy of the
United States to protect and preserve for American Indians their inherent
right of freedom to believe, express, and exercise the[ir] traditional
religions.”110 On its face, the AIRFA appears to provide for the
accommodation of Native American religious practices, such as the wearing
of long hair. It recognizes that the American government has not always
provided due protections to Native Americans’ religious practices, and that
particular attention must be afforded to ensure that prior practices do not
continue to infringe upon the rights of Native Americans to engage in their
traditional religious practices. In theory, it should compel governmental
actors into promoting the accommodation of these religious beliefs.
The AIRFA should work alongside laws like the RLUIPA to ensure that
the government does not impose undue burdens upon Native American
religious practices. However, “[t]he suppression of [Native American
religious] practices has been pervasive to such a degree that AIRFA has
105. Andrea Smith, Boarding School Abuses, Human Rights, and Reparations, SOC.
JUST., vol. 31, no. 4, 2004, at 89, 91; Talbot, supra note 102, at 15.
106. Smith, supra note 105, at 89, 91; Talbot, supra note 102, at 15.
107. Julie Davis, American Indian Boarding School Experiences: Recent Studies from
Native Perspectives, OAH MAG. HIST., Winter 2001, at 20.
109. 42 U.S.C. § 1996 (2012).
proven to be insufficient to grant the freedom that many Native Americans
feel is necessary for the complete affirmation of their respective religious
identities.”111 Cases interpreting the AIRFA have systematically
extinguished any chance of utilizing this law to afford protection to Native
American religious rights, and have reduced the AIRFA to a mere policy
statement, affording no additional protections than that conferred to Native
Americans by the First Amendment.112 It provides for no cause of action or
redressability of infringement upon these rights.113 In the context of
prisoners, the AIRFA has been held to not create any additional obligations
upon prison officials to accommodate Native American religious beliefs.114
In interpreting the AIRFA, the judiciary has systematically annihilated any
additional protections for Native American religious practices that do not
already exist under the First Amendment, and has effectively nullified this
act of Congress. The AIRFA exists now as mere lip service to the
protection of Native American religions, and provides no statutory
protections to the continued abuses Native Americans face in practicing
their religious beliefs.
The decision handed down in Knight is troubling in that it (1) ignores
federal policy upholding religious liberties for all citizens, (2) contradicts
precedent set by other circuits correctly applying the strict scrutiny test
found in the RLUIPA, (3) places a vulnerable (if not well-liked) class of
citizens—prisoners—at risk for violations of their religious beliefs, (4)
inhibits the rehabilitation of prisoners, and (
) continues the legacy of
suppression of Native American religious exercise. Prisoners are especially
vulnerable to oppressive policies inhibiting their right to exercise their
religious beliefs. The purpose of the American penal system is punishment
for violations of law and rehabilitation to prevent future infractions.
Restricting religious practice is directly contradictory to this important
In ruling in favor of the ADOC, the Eleventh Circuit further perpetuates
a cycle of harm to freedom for Native American religious exercise. Native
Americans have been especially targeted throughout the history of this
country for violations of their religious rights. Here, the Eleventh Circuit
upheld colonizing policies that cause further harm to Native American
inmates, and further inhibits the ability of inmates (like Ricky Knight) to
rehabilitate themselves and heal themselves from the damages imposed by a
colonizing government. In doing so, the Eleventh Circuit continues
historical practices preventing religious freedom in direct contradiction with
one of the founding principles of this nation.
5. Sherbert v. Verner , 374 U.S. 398 , 413 ( 1963 ) (Stewart , J., concurring).
6. U.S. CONST. amend. I.
7. Sherbert , 374 U.S. at 402 (citations omitted).
36. Fegans v. Norris , 537 F.3d 897 , 908 - 09 ( 8th Cir . 2008 ).
37. See Sidhu, supra note 4 , at 927, 964 - 70 ( noting the following jurisdictions without grooming restrictions or allowing religious exemptions to grooming policies: The Federal Bureau of Prisons, District of Columbia, Alaska , Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Utah, Vermont, Washington, West Virginia, Wisconsin, and Wyoming).
38. Id .
39. Id . at 926.
40. JACE WEAVER , OTHER WORDS : AMERICAN INDIAN LITERATURE, LAW, AND CULTURE 179- 80 ( 2001 ).
58. Id . at 1000 (quoting May v. Baldwin , 109 F.3d 557 , 564 - 65 ( 9th Cir . 1997 )).
59. Couch v. Jabe , 679 F.3d 197 , 203 ( 4th Cir . 2012 ); Jova v . Smith , 582 F.3d 410 , 416 ( 2d Cir . 2009 ); Spratt v . R.I. Dep't of Corr., 482 F.3d 33 , 41 ( 1st Cir . 2007 ); Washington v. Klem , 497 F.3d 272 , 284 ( 3d Cir . 2007 ).
60. Mr . Knight is the named plaintiff, although other inmates were also plaintiffs in the case .
61. Knight v. Thompson , 723 F.3d 1275 , 1277 ( 11th Cir . 2013 ).
84. Id . § 2000cc - 3 (g).
85. See Richard H. Fallon , Jr., Strict Judicial Scrutiny , 54 UCLA L. REV. 1267 , 1292 ( 2007 ) (“[T]he strict scrutiny formula-forbidding infringements of fundamental rights unless those infringements were necessary to promote a compelling governmental interest .”).
86. Warsoldier v. Woodford , 418 F.3d 989 , 999 ( 9th Cir . 2005 ) (emphasis added).
87. See Knight, 723 F. 3d at 1285 (quoting Spratt v . R.I. Dep't of Corr., 482 F.3d 33 , 41 ( 1st Cir . 2007 ) (finding for heightened scrutiny )); see also Washington v. Klem , 497 F.3d 272 , 284 ( 3d Cir . 2007 ) (finding for heightened scrutiny); see also Warsoldier, 418 F.3d at 999 (finding for heightened scrutiny ).
88. Couch v. Jabe , 679 F.3d 197 , 203 ( 4th Cir . 2012 ); Jova v . Smith , 582 F.3d 410 , 416 ( 2d Cir . 2009 ).
89. Knight , 723 F.3d at 1285 -86.
101. See Diaz, 114 F.3d at 72 -73 n.18 (recognizing that some Native Americans keep long hair for spiritual reasons ).
102. Steve Talbot , Spiritual Genocide: The Denial of American Indian Religious Freedom, from Conquest to 1934, WICAZO SA REV ., Autumn 2006 , at 7, 19 .
103. Id . at 33.
104. Monique Fordham , Within the Iron Houses: The Struggle for Native American Religious Freedom In American Prisons, SOC . JUST., Spring-Summer 1993 , at 165.
111. Lee Irwin , Freedom, Law, and Prophecy: A Brief History of Native American Religious Resistance, in NATIVE AMERICAN SPIRITUALITY: A CRITICAL READER 295, 295 (Lee Irwin ed ., 2000 ).
112. Lyng v. Nw. Indian Cemetery Protective Ass'n , 485 U.S. 439 , 455 ( 1988 ) ; United States v . Mitchell, 502 F.3d 931 , 949 ( 9th Cir . 2007 ).
113. Mitchell, 502 F. 3d at 949 (quoting Henderson v . Terhune , 379 F.3d 709 , 711 ( 9th Cir . 2004 )).
114. Standing Deer v. Carlson , 831 F.2d 1525 , 1530 ( 9th Cir . 1987 ).