By Jacob David Glenn
Bobby Brown, an inmate in the state of Texas, took issue with a Texas Department of Criminal Justice policy that adversely affected Muslim inmates. Policy in Texas state prisons dictates that religious services be supervised by prison staff or volunteers. A lack of Muslim volunteers led to fewer opportunities for Muslim worship when compared with more mainstream faiths. In Brown v. Collier (Fifth Circuit, July 2, 2019), the U.S. Court of Appeals for the Fifth Circuit determined that a relative dearth of worship opportunity caused, not by the state directly but by a lack of volunteers, was not a constitutional violation.
The Religious Land Use and Institutionalized Persons Act (RLUIPA) states, in part, that a government may not impose a substantial burden upon an institutionalized person’s federal right to freedom of religion “even if the burden results from a rule of general applicability.” A burden resulting from a rule of general applicability will only be permitted when the government demonstrates that such a rule “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”
In the ’70s, the Texas Department of Criminal Justice (TDCJ) adhered to a policy requiring a chaplain or other prison-approved outside volunteer(s) be present for religious gatherings of groups larger than four inmates. This practice is called “direct” supervision. Bobby Brown — a Muslim inmate — commenced action in the ’70s against the TDCJ to make an exception for Islamic religious assemblies in Texas prisons because a scarcity of Muslim chaplains and volunteers translated to a scarcity of gatherings. In response, the TDCJ issued a 1977 decree that made an exception allowing Muslim gatherings to be monitored under “indirect” supervision; under indirect supervision, a nearby staff member “observes the religious gathering intermittently, through windows or by the use of audio or video equipment, but does not remain present in the room or area where the activity is occurring.”
The Scott Plan
In the decades since, members of smaller religions bemoaned the apparent favoritism given to more mainstream faiths. An example of this came in 2009 when William Scott, a Jehovah’s Witness, brought suit against the TDCJ in federal court insisting that smaller faiths also be allowed to benefit from the indirect supervision exception. The TDCJ explained that it did not have sufficient staff to accommodate each of the 217 faith preferences held by Texas inmates.  Nonetheless, a Texas district court ruled in favor of Scott. The court held that the “Establishment Clause requires ‘denominational neutrality,’” its “prohibition against preferential treatment is ‘absolute,’” and “that Muslim inmates [were being] preferred to Jehovah’s Witness with respect to the volunteer policy.” Accordingly, the district court ruled that if a more neutral alternative existed, then the Establishment Clause “demands” its implementation.
In formulating a less restrictive approach, the TDCJ developed an administrative directive known as the “Scott Plan.” The Scott Plan dictated that “all religious gatherings of more than four inmates require direct supervision, including worship and study by more than four Muslim inmates.” Under the Prison Litigation Reform Act, the Scott Plan automatically overrode the 1977 decree, doing away with the exception for Muslim gatherings and reintroducing the problem posed by a scarcity of chaplains and outside volunteers.
Again, Brown brought action in 2019 in Brown v. Collier with the same grievances that led to the 1977 decree. After the U.S. District Court for the Southern District of Texas ruled in favor of Brown, the U.S. Court of Appeals for the Fifth Circuit faced the question of whether or not the Scott Plan substantially burdened inmates’ religious freedom by overriding the 1977 decree.
At the Court of Appeals
In making its determination, the Fifth Circuit placed great focus on the implications of the lack of volunteers — must the government accommodate religions disserved by a lack of volunteers? A chorus of testimonies in the case indicated that during religious gatherings “security is needed, and having a person in the room observing them is the ‘best form’ of security.” In recognition of this difficulty, the Fifth Circuit considered the need for maintaining security in prisons to be a compelling governmental interest. Finding such an interest, the Fifth Circuit then needed to consider whether or not the interest was furthered by the least restrictive means.
Where the district court ruled the 1977 decree “necessary to remedy ongoing violations” of the First Amendment, the Fifth Circuit disagreed. Instead, it reasoned that it was not policy that burdened religion, but “the lack of volunteers who adhere to the faith of Islam” that caused the lesser opportunity for worship. Consequently, the Scott Plan was upheld — nullifying the 1977 decree — and Muslim inmates who were previously allowed to participate in group worship under indirect supervision must now await volunteers to facilitate directly supervised religious gatherings.
 Brown v. Collier, No. 14-20249, 2019 U.S. App. LEXIS 19824, at *14 (5th Cir. July 2, 2019) (citing 42 USCS § 2000cc(a) (2000)).
 Id. at *4.
 Id. at *5.
 Id. at *6.
 Id. at *6-7.
 Id. at *7 (citing Scott v. Pierce, No. H-09-3991, 2012 U.S. Dist. LEXIS 190126, at *8 (S.D. Tex., May 7, 2012)).
 Id. (referencing Scott, 2012 U.S. Dist. LEXIS 190126, at *8).
 Id. at *9.
 Id. at *9-10.
 Id. at *11-12.
 Id. at *18-20.
 Id. at *25-26.
 Id. at *20.