David K. v. Michael Lane, Director, Illinois Department of Corrections

FLAUM, Before EASTERBROOK KANNE, Judges. Circuit KANNE, Judge. Circuit Plaintiffs-appellants (“plaintiffs”), four Illinois’ Pontiac Correc- white inmates at (“Pontiac”),1 instituted this tional Center and all class action on behalf of themselves present other and future white security housed in the maximum units of 16, 1985, plaintiffs Pontiac. On March preliminary injunction filed a motion for a defendants-appellees, compel Illinois De- Pontiac Cor- partment of Corrections and administrators, (collective- rectional Center “administration”), ly to and en- to adhere Department force Illinois of Corrections (“IDOC”) regulations prohibiting ac- alleged that tivities at Pontiac. Plaintiffs enforce failure to excep- judicata estoppel with the The claims of Joliet Correctional Center in- and collateral by one individual. mates were all dismissed on the basis of res tion of certain claims general m popula- an inmate their 14th regulations violated those IDOC although pro- tion is entitled an inmate in right equal protection and Amendment custody usually confined more tective imple- regulations. After federal cеrtain per day, opportunity hours has less to ob- protective order for the menting limited prison jobs, privi- tain certain and receives scheduled inmates who were safety of the leges general at different times than the on the heard evidence testify, the court All population. these measures are neces- injunction. In a preliminary for a motion protection. sary for the inmate’s own denied thorough opinion, the district court injunc- preliminary for a plaintiffs’ motion may request An inmate a transfer to plaintiffs had failed to finding that tion protective custody usually but is somewhat likelihood of success show a reasonable stigma reluctant to do so of the because 14th Amendment claim merits of their request. example, attached to such a For regulatory Specifi- federal claim. and their seeking protective custody may an inmate plaintiffs cally, the court found “stoolie”, “wimp” often as a be branded or present to evidence that failed adminis- by general population. Al- homosexual intentionally policies discrim- tration’s were though request protective custody is inatory or that a nexus existed between immediately honored adminis- discriminatory allegedly administration’s tration, request subject is to an initial federally program. funded policies and the every days evaluation and reevaluation court’s agree with the district Because we thereafter. If an inmate is not to able appellants are not rea- assessment that the justify any subsequent request or his initial on the merits of sonably likely to succeed protective custody, he is returned to the find no error claims and because we general population. hearing, conduct of the we in the court’s Only population of the total inmate 12% affirm. white, yet forty percent at Pontiac is of the population protec- inmate is in total white I. custody tive while of the total 9% population hispanic and black intend to reiterate 13% Although we do not protective custody. in population are findings, lengthy court’s factual the district high in- inordinately2 of white number exposition necessary. the facts is brief protective custody directly in re- mates predominately gang-ac- lated to the black Background A. Factual tivity at Pontiac. Center, located in Pontiac Correctional Illinois, hearing pre- for a Pontiac, At the on the motion is one of four maximum liminary injunction, it was estimated that in Illinois. the aver- security facilities On of the total anywhere At the from to age, Pontiac houses 2000 inmates. 75% 99.5% gang findings, population inmate at Pontiac are court made its time the district Although in the district court approximately 1800 inmates members. there were probably closer general population in- found that the number was Pontiac’s and 260 Lane, 75%, defendant-appellee, Michael protective custody in mates the Pontiac Department of protective custody unit is de- the director of the Illinois unit. The Corrections, of all signed safety of inmates testified that about “to ensure the 90% gang or are and Pontiac inmates are members determined to be vulnerable to attack portion A protective gang-affiliated. of the inmates intimidation.” Inmates in the Pontiac, gang mem- galler- entering who are not custody separated unit are from the or, inmates, bers, housing ultimately “choose” to affiliate all other Pontiac col- ies vernacular, “ride” with or “aid and lectively “general popu- to as referred Inmates, ride with gang. who Generally, protective lation.” an inmate in assist” a gang gangs protection offered custody privileges is entitled to most of the are average specifically number of white inmates found that the rence. The district court custody triple high protective that of the number number of inmates in cus- white tody was not a random mathematical occur- of black inmates. by adopting hispanic gang members literally protection pay for that must but gang activity. least resistance any num- by performing figuratively Thus, say that the administration weap- carrying deeds, ranging from ber intentionally discrimi- gang purposefully mem- “hit” for performing ons inmates, generally who against white nated bers. members, in gang violation not hispanic.3 gangs are black Virtually all right equal 14th Amendment normally become do not White Additionаlly, plaintiffs claim protection. gangs hispanic of the black members discriminatory gangs. the non-white may only “ride” but 28 C.F.R. 42.101 et practices violated § members, inmates, not are who All any pro- seq., prohibiting discrimination and, than urged” more often “strongly receiving funds. gram federal affiliate with not, physically coerced hearing support the evidence of both black After Although a gang. number injunction, preliminary affiliate with motion for a inmates refused court, in general relying in on our decisions “very inmates district white gang, few gang Machinery not affiliated.” Co. v. Dresser were Roland Indus population inmates, Cir.1984) Inc., (7th who say, tries, the F.2d 380 to That is white Avnet, Inc., Products, to become accept an invitation decline to Lawson Inc. in may found normally (7th Cir.1986), initially be gang-affiliated, F.2d 1429 outlined custody unit. protective legal requirements Pontiac motion the the injunction subject. The preliminary for a is extortion, pos- including activity, Gang preliminary in that court found before contraband, intimidation, and of session issue, the movant must show junction will abuse, pro- expressly sexual physical and (1) adequate rеmedy that he has no at law Further, prison rules. by Pontiac hibited irreparable faces harm and that the movant administration, depart- of as a matter the granted; preliminary injunction is not if the officially recognize policy, does not mental (2) some likelihood of suc the movant has gangs. The existence of various the claims; (3) of his the cess on the merits however, is, that existence those fact the pre granting the to the movant benefit reality the adminis- gangs is a with which outweighs any liminary harm the injunction attempt In daily. confronted an tration public might suffer and non-movant gang-related prob- realistically deal with is interest will not be disserved lems, gang discipline “activ- prison officials injunction. of the district court suance discipline dis- ity” do not non-violent but show, by plaintiffs could then noted that if However, “membership.” plays gang evidence, deprived they had been some that gang mem- these non-violent exhibitions would, they right as a of a constitutional in bership create an environment which law, satisfy the matter of also burden consequence, gangs flourish and an as Thus, showing irreрarable key harm. gang prohibited in ac- environment which preliminary plaintiffs’ stone to motion for alarming place do can and take tivities plaintiffs might injunction was whether is not an over- intensity frequency. It to succeed on the reasonably expected be gang in Illi- that the “situation statement merits of the claim that the administration prisons” has reached “the crisis nois deprived their 14th them of Amendment stage.” right equal protection. Decision B. The District Court’s prevail 14th Amendment To on their claim, plaintiffs court ruled that preliminary filed a for a the district motion enjoin required to that the administra- administration’s were show injunction im- against gang only disparate had a to enforce the rules tion’s actions not failure class, argued pact but that in on them as a activities Pontiac. Plaintiffs purposefully predominantly favored black actions were undertaken. administration Lords, major gangs pies, El Vice Cobra Stones and the 3. The in are extensions of Pontiac Chicago gangs including street the Disci- Rukns. several gued they made decisions hear- at the evidencе adduced on the Based good in motion, court faith. the district ing on re- in both had failed plaintiffs found reviewing presented by evidence After make a First, failed to plaintiffs gards. witnesses, expert the court con- parties’ is an invid- showing that there “threshold egregious laps- cluded that there been they have claimed.” as ious classification security measures and es Pontiac’s finding on the fact this court based judgment. exercise of of the presented no evidence plaintiffs However, decision the court held that the in- or white received black treatment implement policy which curtailed members, con- who, though gang not mates gang gang “activity”, opposed “mem- population. Nor general to live tinued bership,” not made in intentional dis- was in- all show that white did regard impact that decision would custody there be- protective were mates in Although the dis- have on white inmates. gang mem- pressure to become cause of displays did not view non-violent trict court present plaintiffs failed to Finally, bers. membership Pontiac gang “with protective thаt black evidence Depart- of tolerance that the same measure cus- protective into custody not forced evinces,” the court ment of Corrections short, In while by gang members. tody that the administration’s chosen concluded inmates, they had testified that who limiting activity was policy of overt custody, were forced into been option to the probably the best available inmates, credible, by other no evidence Thus, plaintiffs’ equal pro- administration. white, the court offered and was black substantially without tection claim was group— one find that simply could not merit. in non-gang namely member white Then, on Administra- based Personnel protective in cus- custody protective —were Feeny, 442 U.S. Massachusetts v. tor of gang activity. tody because (1979), 2282, 60 L.Ed.2d 870 if de- Second, found that even the court policy’sdispro- district court held that a the in an invidious fendants’ actions resulted (as- suspect impact on a class portionate inmates, there was no evi- classification existed) suming coupled with evi- a class intent acted with the that defendants denсe foreseeability impact that dence of holding, In so the district discriminate. to discriminatory in- prove not sufficient to plaintiffs’ argument that a rejected court legit- policy selected is a where the tent claim equal protection 14th Amendment the district Relying Feeny, on imate one. something pur- less than can be based court said: argued Plaintiffs poseful discrimination. [Discriminatory purpose requires ... alterna- had several that the administration of action course that ... [defendants’ gang-related dealing means of tive part in of’ and undertaken ‘because was According plaintiffs, ad- to activities. effects merely spite ‘in of’ its adverse not in reck- chose an alternative ministration However, where on white inmates. impact that alterna- disregard less of the are inevitable those adverse effects non-gáng member have on white tive would foreseeable, is a compellingly there in- impact on white Because the inmates. they intend- strong inference that were foreseeable, clearly the adminis- mates was simply ‘the inference fails ed.... But impact and have intended the tration must impact an proof’ ripen into where discriminatorily must have been therefore legitimate consequence of a unavoidable administration, on the oth- motivated. policy. hand, argued an intent to discrimi- er court ruled that the administra- The district from the decision inferred nate cannot be activity at relating gang policy, tion’s policy despite the fact adopt certain Pontiac, legitimate one. The court was a impact resulting racially disparate that the expert although plaintiffs’ found that might foreseeable. Without con- have been poli- particular disregard appro- would not have selected is the ceding that reckless administra- standard, implemented by the Pontiac cy also ar- priate the administration policies, is adopting certain tanta- ing in agreed that the expert tion, plaintiffs’ even and, discriminatory legitimate as the intentional behav- policy mount chosen was to con- found, good in faith adopted they need not claim that court ior. Plaintiffs gang behavior. trol violent a nexus between show federal funds received actions and the matter, also the district court As a final legitimacy prevail of the de- on their federal in order given the Pontiac found appeal crisis state also regulatory claim. Plaintiffs fendants’ prison, the Illinois gang situation entered protective limited order from a claim lacked protection equal plaintiffs’ allegedly hampered court which the district compelling had a state merit because case. ability present their ensuring the implementing interest policies. present viability of its The Fourteenth Amendment Claim A. factors, the district on all these Based argue they presented evi- “remote only a was there court concluded policy of that the dence administration’s likelihood, that a reasonable possibility, not not only gang “violence” and suppressing equal pro- in their succeed plaintiffs [could] effect, “membership” created a tection claim.” non-gang members which class of white there ruled that court next The district custody. protective into This forced was possibility that only slight was class, they allege, was based on race and claim would succeed regulatory federal suspect class4 as a matter was therefore any evi- to submit plaintiffs failed since the district Plaintiffs maintain that of law. the administra- between of a nexus dence requiring them to show that court erred discriminatory actions and allegedly tion’s members, non-gang pro- in or out of black Pontiac received program under custody, excluded from the were tective funds. federal policy or that effect of the administration’s was likeli- Having there little found that protective non-gang cus- members prevail on merits hood could custody tody all in because very briefly ad- claims, court of their policies. administration’s Additional- issuing o/the equities in dressed the balance they proved contend that the ly, plaintiffs finding the preliminary injunction, that discriminatorily moti- administration was controlling in compelling interest state’s selecting policy accept- of tacit in a vated injunction if an gangs hindered would be ance, establishing it did not select by ruled that the court also issued. segregative policy from a the number injunction would least preliminary issuance of a words, policies. In other public. of disservice the alternative argue may be inferred plaintiffs intent II. consequences of disparate the where the to the policy were obvious administration plaintiffs contend the adminis- appeal, On disregard from start. of their well-be- the tration’s reckless Court, such High include a class disa- High v. Illinois School "saddled School In Griffin (7th bilities, Ass’n., Cir.1987), history pur- subjected ex- F.2d 671 we a of 822 or such treatment, plained: relegated poseful unequal or such powerlessness position political of review for a statute or as to The usual standard a com- equal regulation challenged protection majori- on extraordinary protection from the mand grounds this is basis test. the rational Under Indepen- political process." San Antonio tarian valid, test, legislation presumed to be is 1, 28, Rodriquez, U.S. 93 Dist. v. 411 dent School long as the will be as classification sustained 1294, (1973). 1278, For 36 16 S.Ct. L.Ed.2d rationally by to a is related drawn legitimate statute race, example, based classifications omitted.] interest. [Citations state 184, Florida, McLaughlin 85 S.Ct. v. U.S. 379 However, requires height- Constitution (1964) ancestry, Oyama 13 L.Ed.2d 222 or scrutiny] judicial scrutiny ... [strict ened California, U.S. L.Ed. so a sus- when a law classifies as burden subject inherently suspect are pect class.... scrutiny. strict of a F.2d at 674. The traditional indicia 822 "suspect class”, Supreme defined legal given acknowledge Feeny deci- conclusions de novo re- finding that the view. the district court’s sion and [Citations omitted.] dealing method of with the administration’s Products, Avnet, Lawson Inc. v. 782 F.2d legitimate. gang problem Pontiac was Still, although may at 1437. we be called However, argue although upon to review certain the district express policy may the administration’s findings legal court’s or factual determina- legitimate, policy actually been have appeal, tions on that does not “obfuscate legitimate and there- implemented was not the fact that the standard of review of the subject Feeny to the limita- fore was not grant preliminary injunction or denial way, plaintiffs another contend tions. Put the deferential ‍​‌​​​‌‌‌‌‌‌​​​​​​​‌‌‌​​​‌‌‌​​‌​​‌‌​‌‌‌‌​​‌​​‌​‌​‍is ‘abuse of discretion’ stan- proof obviously discriminatory dard.” Id. selecting specific policy consequences of instance, plaintiffs In this contend the prove discriminatory intent is sufficient district court abused its discretion incor- question legit- in is not where rectly applying substantive law to the imate. argue facts. Plaintiffs also the court erred addressing plaintiffs’ Before substantive by imposing an preliminary incorrect in- arguments, briefly examine our stan- we junction by requiring standard them to reviewing granting an dard for order or prove that all the allegedly members of the preliminary injunction. denying a We re- invidious in class were that class as a re- cently held that our review of a district policies sult of merely defendants’ and not grant deny prelimi- decision to court’s by happenstance. nary injunction subject abuse We need not decide whether the ad Products, discretion standard. Lawson policies actually ministration’s create a Avnet, Inc., (7th Inc. v. 782 F.2d 1429 “suspect (although clearly per class” Cir.1986). Acknowledging that the abuse centage of white inmates in cus of discretion standard of review cannot be tody disproportionately large compari in precisely preliminary defined injunc- son to the total number white inmates in context, tion we held that the ultimate bal- general population) since ancing equities by the district court equal protection claim fails for another rea great must be accorded deference. Never- son. if policies Even theless, judge making both factual find- class, disparate impact suspect have a on a ings drawing legal conclusions de- plaintiffs failed to show that the adminis termining grant deny whether to pre- discriminatory tration harboured a motive liminary injunction, may abuse his discre- implementing policies. ways: tion of three “Equal ... Protection Clause has [T]he (1) may apply he incorrect substantive long purpose been limited to instances of preliminary injunction law or an incorrect ful or invidious discrimination rather standard; (2) may he rest his decision to arbitrary than erroneous or even admin grant deny preliminary injunction or on powеrs_” istration of state Briscoe clearly finding erroneous of fact that is 1046, (7th Kusper, v. 435 F.2d 1052 Cir. grant material to deny the decision to 1970). plaintiff A “must demonstrate in injunction; the may apply he an purposeful tentional or discrimination” to acceptable preliminary injunction stan- equal protection show an violation. dard in a manner that results in an abuse Lavelle, 1139, Bloomenthal v. 614 F.2d of discretion. “ (7th Cir.1980) curiam). (per 1141 ‘Dis INS, Zepeda 719, (9th v. 753 F.2d 724 Cir. criminatory however, purpose’ implies 1983). more than intent as volition or intent as Thus, as we said Lawson: consequences.” of awareness Personnel

When a appeals court of pre- considers a Administrator Massachusetts v. Fee liminary injunction order, 256, 279, 2282, 2296, ny, the factual de- 442 U.S. 99 S.Ct. terminations (1979). implies reviewed under a clear- 60 L.Ed.2d 870 It that ly erroneous necessary standard singled particu- and the the decisionmaker out a 1272 large majority of those inmates because a disparate treatment for group

lar gang members. Given at least in are not of action inmates his course selected causing its ad- the explanation purрose is a neutral part for the that there group. an identifiable impact administration’s disparate verse effects the to show that plaintiffs have failed policies, 1091, (7th Jurich, F.2d 1104 681 Shango v. policies pretext are a Cir.1982). hispanic inmates preferring black that de no evidence presented Supreme Court As the inmates. over white limiting gang policy of selected a fendants stated: membership permitting activity and have on the effect it would impact because cases in which as there are Just o/the class, in case the suspect this allegedly classification, can invidious alone unmask protec forced into who were 356, 6 Hopkins, 118 U.S. Yick v.Wo cf. Therefore, though cer even custody. tive 1064, (1886), L.Ed. 220 there are 30 S.Ct. though regulations policies, tain IDOC others, notwithstanding the in which— neutral, groups may certain facially effect pur- legitimate noninvidious impact—the not effect will unevenly, such an uneven cannot be missed. poses of a law concern unless to constitutional give rise 276, at 442 U.S. 99 S.Ct. 2294. Id. at at pretext for discrim policy the is an obvious Therеfore, Feeny, dispositive “the as in Yick against suspect class. ination Cf. instance is whether the question” this 356, 1064, Hopkins, 118 6 S.Ct. v. U.S. Wo racially-based that a plaintiffs have shown (1886). 30 L.Ed. 220 “discriminatory purpose has at least Washing- clear in ... was made [A]s part shaped” Pontiac administra- some 2040, 229, Davis, 96 S.Ct. 426 ton v. U.S. gang activity policy. The fact tion’s Id. Arlington Heights v. 597 and 48 L.Ed.2d may have that the administration been Corp., 429 Metropolitan Housing Dev. greater policy its would have a aware that 450, 555, 252, L.Ed.2d 97 S.Ct. U.S. non-gang on white member inmates effect dispropor- a neutral has even law if enough. Arguably, the is not administra- upon a racial tionately adverse effect implement policy, tion’s decision to minority, under the it is unconstitutional membership, might prohibit gang does not im- Equal Protection Clause if expected gangs to the extent be benefit discriminatory pact can be traced to a gangs’ existence as- that the continued purpose. might expected that the sured. It also be v. Fee Personnel Adm’r. Massachusetts adversely administration’s decision would (em at at 2293 ny, U.S. non-gang largely who are affect members Nevertheless, added). disparate phasis hand, there no white. On other “impact signal that the real itself would administration evidence intend- by the law ... not classification made [is] members, non-gang to harm white ed explanation if for the neutral” no neutral “in- though might such have been an harm impact Person disparate can be offered. concomitant of chosen 442 evitable Feeny, Adm’r. nel Massachusetts Feeny, scheme.” U.S. at S.Ct. 99 S.Ct. at U.S. short, foreseeability at 2295. In Here, Feeny, much like in consequences of adverse the administra- explana- a neutral administration offered policy tion’s chosen is not sufficient disparate impact for the its tion prove intentionally administration inmates. Like state statute in on white sought non-gang to harm member drew distinctions Feeny, which between Nothing in inmates. Id. this record would but had a dis- veterans non-veterans any policy, having prefer- indicate that parate impact because so on women few gang ential effect on member inmates veterans, the administration’s women Pontiac, adopted was or devised with the gang-related policies, draw a distinc- which goal discriminating against gang membership gang collateral tion between activity, disparate impact on have white white inmates. policy, permitted argue stringent the administration certain unpun- the more Fee- ny proving discriminatory burden of intent activities to occur and to remain applied only Thus, policy put should be where the chal- ished. the "actual" into lenged policy legitimate legit- is a one. Plaintiffs effect the administration was not rely Feeny opinion imate and no direct evidence of discrimina- on footnote 25 in the which the Court said: tory intent, required by Feeny, as is neces- say inevitability sary. This is not to that the foreseeability consequences of a again however, Once the district court bearing upon neutral rule has no expressly found that the administration ad- discriminatory existence of intent. Cer- policy hered to its and enforced it more tainly, consequences when the adverse Recognizing times than not. there upon group a law an identifiable are as security were a number of serious breaches gender-based inevitable as the conse- "lapses" judg- in the administration's quences 31, 23, strong § of ch. ‍​‌​​​‌‌‌‌‌‌​​​​​​​‌‌‌​​​‌‌‌​​‌​​‌‌​‌‌‌‌​​‌​​‌​‌​‍infer- concerning recognition ment given the extent of ence that the adverse effects were de- gangs, to the the district court never- reasonably sired can be drawn. But in correctly theless found that even serious inquiry-made this as it is under the underlying policy violations of the did not working Constitution-an inference is a tool, policy illegitimate. render the itself synonym proof. When, not a as here, impact essentially legal an un- To the extent the district court's consequence legislative concerning applicability avoidable of a conclusions policy always Feeny depend evidentiary that has in itself been on its determina- legitimate, when, deemed to be policy tion that legitimate one, the administration's is a here, statutory history and all of the we must defer to the dis- affirmatively available evidence demon- ruling. Any trict court's debate about opposite, simply strate the the inference required whethеr to make ripen proof. fails to into showing pur- some that the administration position any prison poli- posefully against Plaintiffs' is that discriminated them was cy permits resolved when the district court found that the continued existence of gangs legitimate. very policy is not fact that the administration's chosen ing for deal- gangs permits gangs gang activity legit- exist to flourish at Pontiac was system. already said, and wreak havoc on the imate. As we have policy where a legitimate disparate impact its on court, hearing The district after tes group equal is not sufficient to sustain an

timony expert witnesses, from the conclud protection claim. The district court heard ed that a number of alternatives for han testimony expert the cluded that the administration had indeed witnesses and con- dling gang problem at Pontiac existed policy and that the chosen the adminis recognized chosen a viable and dealing means of tration was one of these alternatives. Al gang problem. with the As we though conflicting testimony there was Suter, policy said in SEC v. 782 F.2d whether the chоsen was the best one (7th Cir.1984) `[f]indings available, "on review of fact there was no evidence that the clearly policy legitimate. Thus, per shall not be set aside unless ous, errone- was not regard given Feeny and due shall be to the ceived distinction between and this opportunity judge case is non-existent. of the trial court to credibility [sic] the of witnesses.'" argue Plaintiffs also that even if the We hold therefore that the district court policy dealing chosen with the problem legitimate correctly applied Feeny at Pontiac was on its to the facts in this face, implemented. finding was not case. We affirm the court's may plaintiffs' equal protection Plaintiffs contend the administration claim will not adopted legitimate policy complete have implemented but then succeed on its merits in the ab- haphazard it in a fashion or sence of evidence that the administra- intentionally against not at all. In contravention to its own tion discriminated 1274 that the case law should assert Plaintiffs imple- it when at Pontiac

white prove a require them to reаd not be policies. activity its mented by funds received Ponti- between the nexus allegedly dis- administration’s and the ac Regulatory Claim B. Federal prevail on in order to criminatory actions regulations. on federal claim based the district Likewise, agree with we likely to suc- not plaintiffs are that court may maintain a plaintiffs is clear that It VI claim. of their Title merits on the regu- ceed to enforce the of action private cause the Title VI of promulgated under lations alleged plaintiffs complaint, In their University v. Rights Act. Civil Cannon of 42.104, 28 CFR violated administration the 1946, 60 Chicago, U.S. discrimina- prohibiting regulation federal Moreover, (1979). plaintiffs L.Ed.2d receiving federal any program tion discriminatory show intentional need not contended, the ad- funds. brought a claim under prevail conduct Pontiac dispute, that not did ministration regulations. Evidence administrative these from the National funds federal received discriminatory effect is sufficient. aof (“NIC”). Accord- of Corrections Institute Service Civil Association Guardians administration Pontiac plaintiffs, the ing to York, 463 City New Commission of Pontiac in a dis- funds run used those 77 L.Ed.2d U.S. S.Ct. allowing by black criminatory fashion However, 42.104(b)(vii)(2). (1983); 28 CFR inmates to victimize gang member hispanic of a dispute whether evidence there is some allege further inmates. Plaintiffs receiving program fed- nexus between inmates suffered of the named defendants’ actions that each eral funds and the although it is not clear damages, necessary. monetary al- plaintiffs complaint whether from reg- upon provision which are the direct re- damages lege that those is 28 CFR 42.104 ulatory claim is based regula- the federal of a violation sult which, part, states: in its relevant by responded administration tions.5 The (a) person in the United General No any present plaintiffs failed arguing that race, ground of be shall on ... States the federal a nexus between of, evidence otherwise the benefit or be denied allegedly and its by any Pontiac received under subjected funds to discrimination subpart applies. discriminatory program actions. to which this 42.102(d) “program” is 28 CFR A defined might it court indicated that The district as: the funds received assumed that be activity any program, project or for Pontiac, forecasting population used for or other provision of services ... bene- sys- classification developing a unified fits to individuals.... incoming would ulti- prisoners, tem plaintiffs’ purposes, importantly for More of the Pontiac mately inure to the benefit 42.104(d) states: 28 CFR received and used inmates because funds or disposition, services ... benefits impact on the forecasting could some have receiving Fed- provided program under a custody policies. administration’s financial shall be deemed eral assistance However, found that re- the district court any portion any program to include such in- gardless reasonableness activity di- or function or which ... ferences, present plaintiffs failed en- indirectly improved, rectly could base any evidence on the court hanced, enlarged such benefited words, the dis- inferences. In other assistance. Federal financial failed to plaintiffs court found trict added.) (Emphasis use establish connection between alleg- provisions defendants’ to this Applying of the fedеral funds and these case, plaintiffs the federal edly practices. contend funds discriminatory Indeed, relief, regulations question prayer actions violated in their did request monetary compensation not but enjoining further violations. an order sought a declaration administration’s NIC, though Compliance any requirement received from the intended for prison forecasting models, adopted pursuant 1681(a)(Ti- {20 benefit the en- USC prison system. Therefore, pro- IX) 2000(d)(Title VI) may tire grams all tle or 42 USC J benefited, including protective (1) by so be effected the termination of or custody rules, subject regula- grant to federal refusal to or to continue assistance prison's gang tion. Since some of the ac- program activity under such or purportedly tivities rules tory have a discrimina- recipient as to whom there has been an express finding on record ... but such inmates, plaintiffs effect on white ar- gue those rules violate 28 CFR 42.104 and termination or refusal shall be limited to enjoined. must be particular political entity part or correctly found, recipient As the district court thereof or other as to whom however, plaintiffs' assumption finding and, broad such a has been made shall prison system particular the entire Pontiac is benefit- be limited in effect to the by receipt funds, support- ed of NIC is not program, part thereof in which such proof able absent of such a benefit. In non-compliance found, has been City College Bell, Grove 465 U.S. by any by other means authorized law. (1984), 79 L.Ed.2d 516 (Emphasis added.) Plaintiffs contend that Supreme regulations Court found that City, plaintiffs sought in Grove termi- promulgated (which pat- under Title IX was funding subpara- nation of as described in VI) subject terned on Title program-specific to certain graph (1) present suit, above. The on the Thus, only limitations. hand, request other is based on a for in- program actually benefited from the junctive relief, brought which must be un- receipt of federal funds administered under subparagraph (2). only subpara- der graph (1) Since subject regula- Title IX was to the Title IX program-specific contains the prohibiting tions discrimination. In Grove limitations, plaintiffs argue they need not City, Supreme Court found that while show a nexus between the federal funds aid, federal student first received stu- policies paid Grove, and the administration's in order to dents and then benefited injunction. and, effect, obtain an Grove constituted federal aid Grove, only college's financial aid type remedy We now hold that the program-the program actually affected sought is not relevant to the issue of subject the student loans-was to feder- regulations promulgated whether the un- regulation. college al The entire did not applied pro- der Title VI should be in a subject regulations become to Title IX gram-specific plaintiffs' manner. We think merely program because one was benefited regulations, construction of the federal by federally funded student aid. In this remedies, which is based on a distinction in instance, court, relying (cid:127)the district If, example, makes no sense. an insti- City, Grove found that the entire Pontiac pro- tution receives federal funds for two prison system subject was not to Title VI grams only discriminatorily but one is ad- regulations merely because Pontiac re- plaintiff enjoin ministerеd and a seeks to specific ceived funds earmarked for one program-the discriminatory behavior, injunctive such re- population forecasting and applied pro- lief would have to be to both prisoner program-absent classification ev- grams plaintiffs' regula- under view of the idence that those funds somehow affected tions, injunctive program- since relief is not programs. or benefited other Pontiac specific. Supreme Court, in Grove appeal, plaintiffs City, On contend Grove has held that if an institution receives City inapplicable to this case because federal funds which affects certain of City, they unlike the in Grove programs, only its other non-funded only injunctive seek relief and do not seek programs non-funded so benefited or other- funding. termination of federal subject regulation. wise affected are paral- Thus, City applies Both Title IX and Title VI contain Grove whether the rem- limiting provisions edy requested lel which state: for a violation of a Title VI coverage, bal- of media prior restraint funding or in- regulatiоn termination First to courtrooms open access anced relief. junctive re- danger of the rights with Amendment funds the that federal possible it is While The witnesses. against inmate taliation the and earmarked by Pontiac received insuffi- was there apparently found court directly may benefit forecasting models media restric- compel either to reason cient regu- of implementation the relate to the to the courtroom of closure tions7 or procedures, custody protective and lations public. such a of no evidence presented plaintiffs judge district say such evi- the of that absence We cannot In the connection. place request to earmarked denying plaintiffs’ funds that dence, erred the conclusion coverage access population on media classification restrictions prisoner See, Press-Enter the entire indirectly benefit proceedings. forecasting the civil will to Cal., only by 478 Superior Court may reached v. be prise Co. system, Pontiac of lan- 1 2735, 2743, (Vi’s) program-specific 92 L.Ed.2d 1, “ignoring Title S.Ct. U.S. 106 dis- per that the proceedings hold (closure (1986) therefore of criminal guage.” We plaintiffs’ found that correctly is essential closure only trict where such court mitted of little likelihood has narrow “higher claim also and is regulatory preserve values” to merits. Continental the In the Matter tailored); on success ly Litigation, 732 F.2d Illinois Securities Claim Order The Protective C. Cir.1984) reasons for 1302, (7th (policy 1308 (and to crimi press) access public matter, granting that plaintiffs contend final As a to civil cases ability proceedings apply to hampered nal court district the against Further, “Although injunc- well). bar preliminary the the. present evidence absolute, Nebraska granted prior the court restraints not hearing because tion 590, Stuart, During the v. 427 U.S. Press Ass’n. order.6 protective a limited court, 2791, 2817, 683 hearing in L.Ed.2d district 49 the 96 S.Ct. course of be the concurring judgment), the requested (Brennan, that courtroom plaintiffs J. testimony that the emphasized and that no repeatedly closed completely Court has prior justi published without be censorship expression can prior released “be encоurage two govern in order to approval” compelling only by court the most fied Glines, incidents testify about 444 Brown inmates mental interest.” by gang members. rape 594, 611, 348, 364, 100 L.Ed.2d homosexual S.Ct. U.S. United Times Co. v. New York (1980). sought had earlier States, 403 U.S. guards in the limiting the number order (1971). L.Ed.2d 822 that those directive and a courtroom pro- personnel be guards and defendants’ di- Moreover, problems of constitutional testimony of the repeating from hibited or re- relating restraint prior mension addition, plaintiffs In inmate witnesses. could the courtroom on access to strictions sealed record be requested also that sacrificing the have without been avoided not be names and that witnesses’ For anonymity of the witnesses. desired appeal. the record not, used in have, did example, plaintiffs but could order request the court counsel recognizing that he judge, The district asking inmate witnesses refrain from regarding choices difficult faced with was open identify court.8 themselves in courtroom media public and access to avoid record conducting hearing to make their 8.In order prоblems in 6. witnesses, hearing identifying compounded publicly inmate substantially because necessity) (by provided Correc- at the Pontiac parties have been was held counsel could backgrounds tional Center. wit- those necessary names and writing, a side-bar or at nesses in chambers representative single in the court- media conference. (but required) to refrain not room was asked witnesses. names of publishing from inmate complied apparently representative The media request. with this granted regulatory ment claim and their federal Although district court future, In the claim. district courts should the number of request to limit plaintiffs’ dangers to the obvious be sensitive faced to or guards in the courtroom and testify witnesses called to cases such personnel guards and defendants’ der as this. discussing testimony, the from to refrain request denied judge

district D. Conclusion testimony. record of inmate Given seal the denying holding, today, access to In ‍​‌​​​‌‌‌‌‌‌​​​​​​​‌‌‌​​​‌‌‌​​‌​​‌‌​‌‌‌‌​​‌​​‌​‌​‍parameters as we do testimony preliminary injunction is a are not entitled to a transcript of a witness’ Equal in crimi under either the Protеction Clause or remains unclear both matter which regulations, way Title federal VI we no proceedings, compare, Gan nal and civil gang activity condone either or member- Co., DePasquale, 443 U.S. Inc. v. nett ship penal Pontiac other institu- 2898, 61 L.Ed.2d 608 with tion. We share the district court’s sense of Superior Press-Enterprise Co. v. Court of outrage necessity recognizing Cal., supra, and v. Mar Courier-Journal gang membership has led to a crisis situa- 361, (6th Cir.1987), shall, Bank 828 F.2d tion at Pontiac. We understand that the Rittenhouse, Trust v. Hotel America Nat. presently, prac- administration must out of (3d Cir.1986) with 800 F.2d 339 Wilson consideration, prisoners tical allow to affil- Corp., Motors F.2d 1568 American not, however, gangs. iate with We do be- (11th Cir.1985), the district court did not liqve by gangs, that the control exerted as denying error in this re commit reversible gang membership, a result of should be quest. enhanced the administration’s failure to plain The district court also denied prevent physical incidents harm or request tiffs’ to delete each inmates’ name the fact the administration feels designation to instead use a letter and enough threatenеd to discuss certain appeal.9 the record on It is in this area gang leadership. laps- decisions with Such provided that the district court could have security judgment es of both should protection testifying additional to some not be tolerated. Prisoners should never inmates, particularly regard with to the Pontiac, permitted freely be to roam admin- substitution of letters for inmate names in beatings prisoners, ister to other or “aid” hearing transcript. ferreting wrong- the administration out Moreover, we, doers. unlike the Pontiac balance, On under the circumstances of administration, displaying do not believe case, pro- this that the minimal we believe gang insignia letting on walls or provided tections the witnesses did not (to assignments, prison job control name prejudice plaintiffs’ presentation activities) just gang permit- a few need be severely implicating their case. Without apparently impossi- ted. At time it is this rights public’s First Amendment or the prohibit ble to affiliation —but we be- court, right to access to the the'district lieve that the. extreme manifestations of provided greater protec- court could have prohibited such affiliations should be plaintiffs’ tion to the witnesses. dis- prohibitions such enforced. compre- trict court’s failure to enter a more protective require hensive order does not present We are aware that under the considering proffered new trial. Even relating prisoner’s state of the to civil law witnesses, testimony of the two rights, im- ability appear who refused to because of the lack pose stringent disciplinary more measures protection, still to may hampered. failed be The administration demonstrate a likelihood of success on the unpleasant may faces two choices. It ei- merits on impose both Fourteenth Amend- ther severe restrictions and more but, point. denying pre- 9. There is some confusion on this in its order the motion for a proceedings record of the shows that the court liminary injunction, the court indicated that it granting plaintiffs’ declined enter an order granted requests. those initials; request to seal the record and to use Gangs affiliate for mutu- school. Bauhaus for civil uncertainty of lawsuits face contemplated kind or, not the violations; support, but it al rights and constitutional Relations Act. National Labor by the gang-related accept of the may tacitly some choosing when picking and problems, opinion, join, strong- I The court’s Although former impose restrictions. gangs. to crack down on ly urges Pontiac expose the administration option may prisons charge hope I results, option unfortu- the latter uncertain power all in their to this end. Illinois dowill seen, admin- causes the nately, we have than to be it is easier to be Polonius Yet thus, quickly en- control to lose istration gangs, prisons must cope To Laertes. safety of inmates. dangering lives punishments real be able to inflict —sanc- urge the administration strongly We presence in a going beyond mere tions to ultimate- and to seek firmer control take maximum-security prison, for inmates suf- by such rea- gang affiliation ly eliminate indignity they whether fer confinement develop. may as it methods sonable belong gangs or not. stated, the district reasons For аgo prisoner who wore Thirty years denying order and order court’s guard could insignia or sassed forbidden in- preliminary plaintiffs’ motion for a gang. No more. find himself on a chain junction are in the “hole” might He been thrown have put on and water for month. or bread Affirmed. the current more. That would violate No EASTERBROOK, Judge, Circuit understanding of the Cruel and Unusual concurring. might Punishments Clause. He have put doomsday, but the re- parole off until society prisons its No humane allows decisionmaking large- parole to a duction organized thugs. punish- The by be run impending ly process mechanical for crime does not include ment authorized —and extortion, parole under determinate sen- terror, beatings, rape, mur- demise and tencing this less of a in schemes—make Yet the evidence this case shows der. gangs. at Pontiac tolerate threat. that officials prisoners belong to or “ride Almost all stripped good might He have been get protection gang. Riders from

with” put punitive segregation. in time credits or “benefactors”) (and gangs from their rival still, open they are options These are but exchange cigarettes, drugs, and ser- in First, they for two reasons. less valuable inflicting mayhem. pris- The such as vices offenses; if must be reserved for serious gang insignia, display oners the better to alike, infractions prison officials treat all They frighten enemies and alert friends. If they grave deter ones. will be unable to paint gang in their cells colors and draw spitting guard maiming yield him at a sheets across the cell doors. One witness punishment, prisoner might the same guards testified that could not see inside maim. maximum sanction as well The half of the cells at Pontiac. practical as a matter for crimes available (even murder) long-term prison by prisoners told has The officials the court although they gang “membership” segregation depriva tolerate been reduced to gang privileges, they “activity”. do not tolerate Who tion of see United v. States Cir.1986); House, (7th they they fooling? do are ele- 808 F.2d 508 think What United Fountain, (7th “membership” opposed to 768 F.2d 790 Cir. ments of States v. —as 1985). “activity” place punishment realistically avail behind —take for, prison gangs screens? What ex- able for small offenses therefore trivial. Second, engage prisoners given in cept “activity”? forbidden have been a bundle Surely procedural the administrators of Pontiac do not entitlements enforced prison gangs every damages remedies. v. believe meet See McDon Wolff nell, Critique month to discuss The 94 41 L.Ed.2d Pure 418 U.S. S.Ct. (1974); Stanley Tiger- 834 F.2d Young, Reason and debate how 935 v. Culbert (7th Cir.1987); Lane, buildings 624, 629-31, man’s differ from those of the Davis v. (7th Cir.1987); prison takes a “laid approach 814 F.2d Caldwell back” (7th Miller, Cir.1986); F.2d 589 gangs despite v. toward the deadly conse- (7th Franzen, 777 F.2d Cir. Wells quences deadly prisoners, deadly even — 1985). discipline These entitlements make guards. discipline puts guards Lax is cost costly for administrators. It (who peril knife-wielding ‍​‌​​​‌‌‌‌‌‌​​​​​​​‌‌‌​​​‌‌‌​​‌​​‌‌​‌‌‌‌​​‌​​‌​‌​‍wants to face spent imposing hours disci ly time—the prisoner?). Less than two weeks before pline prisoner on a are hours unavailable argument case, prisoners the oral in this pressing money, for other tasks—and defendants, murdered one of the an assist- foul-up judg can lead to a for a substantial superintendent ant of Pontiac. It was a government give ment. The does not assassinаtion, carefully planned apparently well, if he does but it administrator bonus struggle among gangs.2 related to a De- paltry if he No reduces his wealth errs.1 spite prison regard officials’ for their own surprise responds if he a combination of lives, operate the forces that in the civil passivity protective custody. The ad system govern prisons. service now Just may constitutional ministrator even have a as it is hard to discipline fire rude clerks or housing obligation arrange on the basis inept bureaucrats, easy be, to let them membership gangs. See Walsh v. prisoners. so it is with Mellas, (7th Cir.1988), 837 F.2d 789 things Guards learn to let pass; small $7,500 against pris sustains an award of prisoners advantage. learn to take When neglected on official who to learn about the guards disciplinary write tickets for infrac- gang prisoner’s affiliation of a cellmate battery, tions less serious than superi- steps necessary keep and take the mem charges ors impose dismiss the minus- away bers of one from members of (or penalties. they cule bystanders). from innocent When cannot control others Pris respond prisoners stop on officials to such decisions must vitriol from their by ensuring that members of the same lips, guards’ esprit corps slips away. de gang share cells This and activities. both Dilulio, Jr., Discipline John J. Prison gangs legitimate in eyes makes of in Reform, Prison 89 Public Interest 71 complicates mates and the task of under (1987). prison ungovernable The becomes mining very step— them. To take the first through legitimate channels. Because preventing organiza the adherents of an vacuum, power abhors another institution fraternizing tion from monetary to risk place. Gangs organize prisons —is takes its penalties. of Illinois not because of sloth or racial discrimination, plaintiffs as the would have thing prison The last official wants it, larger forces, but because of these see is flashing leader the warden’s California, York, (former) which affect New attempt sup- bankroll after an expert pressing organization. other urban states.3 The witnesses It is easier to disagreed let the prison things wolves run the whether pen about are worse sheep up' California, than it рack. is to break wolf Illinois than but no one states, Illinois, is, including indemnify 1. Some spite “because of’ rather than "in of' damages arising many race, their officials for from Personnel Administrator Mas- of torts, constitutional assured. but indemnification is not 256, 278-80, Feeney, sachusetts v. 442 U.S. 2282, 2295-96, S.Ct. 60 L.Ed.2d 870 —is silly and did not call for such an investment of 1, 1, 4, Chicago p. (Sept. 2. Tribune sec. col. 5 time the court and the administrators. Sure- 1987). Pontiac, see, e.g., On other deaths at ly things anyone both had better to do. Could Rowe, (7th Cir.1986). Walker v. 791 F.2d 507 prisoners believe that if the races of the seven-day switched, 3. The district court held a trial and majority been with a white dominat- lengthy opinion. properly wrote a The court ing minority, black the staff of Pontiac would judge’s finding concludes that the of no discrim- minority favorably have treated the more than clearly ination is not erroneous. This is an plaintiffs? change it now treats Unless that complaint understatement. The was risible. treatment, improved minority’s would have white; so are most of the The idea that the however, there is no within the “discrimination’’ guards. administrators and meaning Equal of the Clause. Protection guards gang activity administrators and in order to tolerate get prisoners' goats the white —that squelched large has state thinks COMPANY, ZEIGLER COAL prison gangs. Petitioner, senti- humanitarian Everyone shares the prisoners giving the rules ments behind constraining hearings and entitlements Director, SIEBERG, of Office Morris prison administrators. the discretion Programs, Compensation Workers’ soci- inmates and corrupts, and both Power Labor, Department Re- States United prison if officials as well poorer ety are the spondents. only to the law gangs answer opportunity 86-1995. No. one wants the jungle. No part of the impulses to be slake sadistic Appeals, States Court United compensation, a substi- package guards’ Circuit. Seventh we are unwill- the decent salaries tute society’s outcasts. keepers of ing pay the 3, Argued 1987. Nov. same, a lion tamer you can't be All the Decided Feb. Prisoners see as whip and chair. without orderly proce- judges see as what weakness

dure. proce accept that as the fact must

We damages make rules and awards

dural guards, they ex safer from the

prisoners from their prisoners greater risk

pose Pickett, Chapman v. See

comrades. Cir.1986)(dissenting (7th

F.2d 922-23 — U.S. —, vacated, opinion), (1987). problem of L.Ed.2d 19 from governance is not far removed governance that political

the conundrum Paper in Federalist No.

Madison described you great difficulty lies in this:

51: “[T]he government to con

must first enable the place governed; and in the next

trol the prison In

oblige it control itself.” society, steps to curtail the

well as free government augment

powers of the “gov governed. The

dominion of the republi

erned” in are not virtuous milling yeomen. The around the

can crowd

mess hall at Pontiac has little common ‍​‌​​​‌‌‌‌‌‌​​​​​​​‌‌‌​​​‌‌‌​​‌​​‌‌​‌‌‌‌​​‌​​‌​‌​‍lobby Lyric in the crowd

Opera Chicago opening night; it good got people

wasn’t manners that invi maximum-security prison. A

tations to a requires prison offi

legal system that both gangs suppress

cials and informs them transfer their wealth to the

that we shall impos

gangs they firmly if act too asks the

sible.

Case Details

Case Name: David K. v. Michael Lane, Director, Illinois Department of Corrections

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Feb 19, 1988

Citation: 839 F.2d 1265

Docket Number: 86-3033

Court Abbreviation: 7th Cir.