Full opinion text
MEMORANDUM OPINION ON LIABILITY, INCLUDING FINDINGS OF FACT AND CONCLUSIONS OF LAW, AND RELATED ORDER KOPF, District Judge. After a month-long trial which produced countless exhibits, over 5,450 pages of transcript, and more than 350 pages of posttrial briefs, the primary issue boils down to this: Regarding programs and services, have female prisoners been given a fair shake by the State of Nebraska when compared to male prisoners? By and large, the answer to that question is no. Although women prisoners are generally well treated by a very competent and extremely dedicated superintendent and staff at the one Nebraska prison for women, I find and conclude that in important respects regarding programs and services, both presently and in the past, Nebraska has violated, and does now violate, the rights of women prisoners guaranteed by .the Equal Protection Clause of the Fourteenth Amendment to the Constitution. Accordingly, pursuant to Rule 52 of the Federal Rules of Civil Procedure, I now set forth the findings of fact and conclusions of law which have informed my decision. I. Introduction A. Background 1. If you are a woman, if you break the law in Nebraska, and if you are required to serve a prison sentence, you will be sent to the Nebraska Center for Women (NCW). NCW is located in York, Nebraska, a small town in east central Nebraska located about 100 miles from Omaha, Nebraska, and about 50 miles from Lincoln, Nebraska. NCW is the only prison for women in Nebraska. Thus, no matter what your crime, and regardless of whether you are classified as a minimum, medium or maximum custody inmate, you will do your time at NCW. Although this case is not about ambience, in many respects NCW looks like a college campus. The chief, administrator at NCW is called a “superintendent.” There are no gun towers. However, the “campus” is surrounded by a tall, barbed-wire fence. During the times pertinent to this lawsuit, the population at NCW ranged from about 90 inmates to about 130 inmates and included inmates with minimum, medium, and maximum custody designations. If you are a man and you break the law in Nebraska you could be sent to any one of a number of penal institutions to serve your sentence. Where you go generally depends on your custody classification. You could be sent to the Hastings Correctional Center (HCC) in Hastings, Nebraska. You could be sent to the Omaha Correctional Center (OCC) in Omaha, Nebraska. You could be sent to the Lincoln Correctional Center (LCC) in Lincoln, Nebraska. If you are a man, you could also be sent to the Nebraska State Penitentiary (NSP) which is located in Lincoln, Nebraska, near LCC. NSP normally houses medium and maximum custody inmates, but does not normally house minimum custody inmates. NSP looks like a traditional prison. Thick block walls or very tall fences with barbed wire surround the prison. A number of gun towers overlook NSP. During the times pertinent to this lawsuit, the NSP inmate population ranged from about 650 inmates to something less than 800 inmates. The chief administrator at NSP is called a “warden.” All prisons in Nebraska are run by a state agency known as the Department of Correctional Services (DCS). DCS is located in Lincoln, Nebraska. The chief administrator of DCS is called a “director.” The director of DCS has the power to set policy. The director assigns and reassigns superintendents and wardens. 2. By January, 1988, some of the women inmates at NCW were upset. They perceived an inequality in the treatment they received compared to the treatment male inmates received. Specifically, the women were concerned about programs — such as education— and services — such as the law library. The NCW inmates corresponded with an inmate who served as a legal aide at NSP, and that correspondence evidently did not alleviate the concerns of the NCW inmates. Believing they were being treated unfairly, the women prepared a written grievance and circulated it among the other inmates at NCW. The superintendent of NCW became aware of the grievance while it was being circulated. In late January, 1988, the superintendent had a meeting with certain DCS staff members and the heads — wardens and superintendents — of all the adult prisons in Nebraska. This was a regularly scheduled meeting. At the meeting, the NCW superintendent told those in attendance, among other things, that the inmates at NCW had corresponded with the legal aide at NSP, that the women were concerned about the perceived inequality of certain programs provided for the women when compared to what the men received, and that the superintendent expected a grievance to be filed. He also warned of the possibility of federal litigation. The director of DCS was not present at the meeting in late January, 1988. But, as was the normal practice, the director received what were in essence minutes of the meeting. The announcement of the NCW superintendent about the inmate grievance was described in the minutes. In early March, 1988, more than half the inmates at NCW signed a grievance and delivered it to the superintendent at NCW. The grievance was long and detailed, but essentially complained that the women were not receiving parity of treatment in programs and services as compared to male inmates. The NCW superintendent acknowledged receipt of the grievance, but refused to deal with it because, according to the superintendent, it required certain comparisons which the NCW staff could not make. The superintendent suggested to the NCW inmates that they submit the grievance to the director of DCS. The NCW inmates submitted the grievance to the director of DCS in early March, 1988. Legal counsel for DCS looked into the grievance and prepared a draft letter in response to the grievance for signature by the director. In the latter part of March, 1988, the director of DCS had a meeting with the heads of all the adult prisons and certain DCS staff members. The grievance was discussed. It was agreed that the letter drafted by counsel should be sent in response to the grievance. Soon thereafter, in March, 1988, the letter was sent to the inmates at NCW. The response of the director of DCS was long and detailed, like the grievance of the NCW inmates. In most important respects, the letter response denied any inequality. In three important respects — lack of equal pay, lack of visitation for orientation inmates, and lack of inmate training regarding legal research — the director promised some relief. Relief was granted in other minor respects, such as equalizing when the lights had to be turned off. The director also informed the inmates that a “task force” had been established to assure consistency. By mid-July, 1988, the promised equal pay had not come about. By mid-July, 1988, no NCW inmate had completed training in legal research. There is a dispute as to whether the orientation visitation policy had changed by mid-July, 1988. The NCW inmates had heard nothing from the “task force.” B. Procedural History 1. The initial complaint in this case was filed pro se by certain NCW inmates on July 20, 1988. (Filing 2.) The case was assigned to the Honorable Warren K. Urbom, who was then a United States District Judge in active service. In October, 1988, counsel was appointed to represent the pro se plaintiffs. (Filing 5.) In January, 1989, counsel filed an amended complaint, (Filing 12), and a motion for class-action certification. (Filing 13.) Judge Urbom granted the class-action motion, and certified the class this way: “The class shall consist of all female prisoners at [NCW] as of the filing of this action and all women who will be confined at NCW up until the conclusion of this lawsuit.” (Filing 19, ¶ 2 of the order.) The plaintiffs then moved to clarify the class certification because one of the plaintiffs had been released from NCW a few days prior to suit being filed. (Filing 21.) The class was redefined on April 19, 1989, to “include all female prisoners confined at [NCW] in York, Nebraska (NCW) as of January 1, 1988, and all female prisoners who will be confined at NCW until the conclusion of this lawsuit.” (Filing 26, ¶ 2, at 2.) The phrasing of the last order was that of United States Magistrate Judge Piester, based upon his understanding of what the parties had agreed to. (Id.) For practical purposes, the court certified the class as all women who were NCW inmates at any time on or after January 1, 1988, through the conclusion of this case. A second amended complaint (Filing 31) was filed June 15,1989, and a third amended complaint (Filing 333) was filed September 6, 1990. The normal pleading practice followed. A very extensive pretrial conference order (Filing 409) was entered October 23, 1990. In the pretrial conference order the parties agreed that the following may be accepted as established facts for purposes of this ease only: 1. The plaintiff Cheryl Klinger was an inmate assigned to the Nebraska Center for Women from October 26, 1987, to July 11, 1988. 2. The plaintiff Linda Lange was an inmate assigned to the Nebraska Center for Women from October 21, 1987, until October 12, 1989. 3. The plaintiff Stacy Finn was an inmate assigned to the Nebraska Center for Women from December 28, 1987, to December 14, 1989. 4. The plaintiff Gweniver Lay was an inmate assigned to the Nebraska Center for Women from February 9, 1988, through November 28, 1988, and from June 16, 1989, through August 28, 1989. 5. The defendant, Nebraska Department of Correctional Services, is and was, at all times relevant to the third amended complaint, the state agency in charge of matters involving the control and operation of Nebraska’s correctional facilities. 6. The defendant, Nebraska Department of Correctional Services, operates the Nebraska State Penitentiary in Lincoln, Nebraska, and the Nebraska Center for Women in York, Nebraska. 7. The Nebraska State Penitentiary houses only male inmates. 8. The Nebraska Center for Women houses only female inmates. 9. The defendant, Nebraska Department of Correctional Services, receives federal funds to operate some educational programs in the Nebraska correctional facilities. 10. The defendant, Frank Gunter., was the director of the Nebraska Department of Correctional Services until February 24, 1990, and was an employee of the State of Nebraska, in that capacity. 11. The defendant, Harold Clarke, has been the director of the Nebraska Department of Correctional Services since August 27,1990, and is an employee of the State of Nebraska. 12. The defendant, Larry Tewes, was the acting superintendent of the Nebraska Center for Women from August 4, 1988, to January 5, 1989, and was an employee of the State of Nebraska, in that capacity. 13. The defendant, Victor Lofgreen, was the superintendent of the Nebraska Center for Women until August 3, 1988, and was an employee of the State of Nebraska, in that capacity. 14. The defendant, Larry Wayne, has been the superintendent of the Nebraska Center for Women since January, 5, 1989, and is an employee of the State of Nebraska. 15. At all times relevant to the third amended complaint, the superintendent of the Nebraska Center for Women was and is responsible for the custody, control and correctional treatment of persons committed to that correctional facility and for the general administration of that correctional facility in accordance with the laws and the Constitution of the United States. 16. The defendant, Margrett Wehland, is and was at all times relevant to the third amended complaint, a medical nurse at the Nebraska Center for Women and an employee of the State of Nebraska. 17. The defendant, Judith Danielson, is and was at all times relevant to the third amended complaint, a psychologist at the Nebraska Center for Women and an employee of the State of Nebraska. 18. The defendants, Frank Gunter and Victor Lofgreen, are sued solely, in their individual capacities. 19. The defendant, Harold Clarke, is sued solely in his- official capacity. 20. The defendants, Larry Wayne, Margrett Wehland, and Judith' Danielson, are sued in both their official and individual capacities. ■ (Filing 409, at 2-4.) On November 6, 1990, Judge Urbom denied defendants’ motion to decertify the class, holding that the class was properly certified under Fed.R.Civ.P. 23(a) and 23(b)(2). (Filing 435.) On January 29, 1991, Judge Urbom granted in part and denied in part a motion for summary judgment filed by the defendants. (Filings 486 and 487.) In so doing, Judge Urbom noted that this suit essentially involved the claim that “defendants have illegally discriminated against [plaintiffs] on the basis of their gender by providing [programs and services] that are inferior to those offered to male inmates at [NSP].” (Filing 486, at 1.) Judge Urbom denied the motion for summary judgment in all' but the following respects: (1) he granted summary judgment for all defendants in their official capacities as to claims against them for damages to the extent barred by the Eleventh Amendment; (2) he granted summary judgment for defendant Lofgreen, who had been an NCW superintendent, as to claims for injunctive relief because Lofgreen was no longer the superintendent at NCW; (3) he granted summary judgment as to all individual defendants for Eighth Amendment claims of deliberate indifference to serious mental health needs; (4) he granted summary judgment regarding Judith Danielson for- any Eighth Amendment claims of deliberate indifference of any kind; and (5) he granted summary judgment as to the fifth cause of action dealing with institutional rules and regulations and the sixth cause of action dealing with conspiracy under 42 U.S.C. § 1985. (Filing 486, at 2-11; Filing 487.) 2. Due to the extensive (and sometimes bitter) discovery phase of this case, and the busy schedule of Judge Urbom, the case was not finally set for trial until July 27, 1992. As trial time approached, Judge Urbom was required by the Speedy Trial Act to try a number of criminal cases at the same time this case had been set for trial. Thus, upon a request for reassignment by Judge Urbom, this case was assigned to me by Chief Judge Strom on June 19, 1992. (Filing 584.) With the parties agreeing that the liability phase of trial would be bifurcated from the remedy and damage phase of trial, trial of this case commenced on July 27, 1992. The net impact of Judge Urbom’s ruling granting the defendants’ motion for summary judgment in part was that trial was limited to four liability issues. Broadly, and generally stated, those issues were: (1) Were the female inmates at NCW discriminated against because of their sex in violation of the Equal Protection Clause of the Fourteenth Amendment by a quantitative or qualitative lack of “parity” in programs and services as compared to the male inmates at NSP; (2) Were the female inmates at NCW discriminated against because of their sex in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688, by a quantitative or qualitative lack of “parity” in educational programs receiving federal financial assistance as compared to the male inmates at NSP; (3) Were the -female inmates at NCW denied them right of access to the courts under the Fourteenth Amendment because of the alleged inadequacy of the law library and the alleged lack of trained and independent inmate legal aides at NCW; (4) Were the female inmates at NCW denied their right to be free from cruel and unusual punishment under the Eighth Amendment because of the alleged deliberate indifference to their serious medical and dental needs. The liability phase ended after 19 trial days. A briefing and oral argument schedule was established. The matter was finally submitted to me in late October, 1992. I turn now to the four liability issues. II. Equal Protection The plaintiffs do not claim that the segregation of men and women in Nebraska prisons solely because of their gender is per se violative of the Equal Protection Clause of the Fourteenth Amendment.. In fact, plaintiffs describe a similar decision in Michigan as an “otherwise justifiable legislative decision to house the sexes separately.” (Pis.’ Post-Trial Br. at 17.) Rather, the plaintiffs claim that segregated women at NCW are not provided with substantially equivalent opportunities compared to the male inmates at NSP, and it is this failure to provide “parity” of treatment which is said to violate the Equal Protection Clause. The challenged programs deal with employmenVeconomic concerns, educational/vocational training concerns, concerns about the law library, concerns about medical and dental services, concerns about mental health services, recreation concerns, and concerns about visitation. A. The Proper Test Modern equal protection doctrine is based upon three types of judicial scrutiny: the rational basis test, the heightened scrutiny test, and the strict scrutiny test. Note, Women’s Prisons, 94 Yále L.J. at’ 1185-86. Both the plaintiffs and the defendants agree that the strict scrutiny test is not applicable here since it is employed in cases involving race, not sex. Id. at 1186-87 n: 22. Therefore, I must first .determine whether to apply the rational basis test or the heightened scrutiny test. 1. Rational Basis If the governmental purpose of treating males and females at NSP and NCW differently is -intended to address the “fact” that such persons are not “similarly situated” because attributes not solely associated with gender may legitimately permit (if not require) differences in treatment, then different treatment of men and.women at NSP and NCW is justified under the Equal Protection Clause, as a general principle, so long as the fact of “dissimilarity” is true. Parham v. Hughes, 441 U.S. 347, 354, 99 S.Ct. 1742, 1747, 60 L.Ed.2d 269 (1979) (“In cases where men and women are not similarly situated, however, and a statutory classification is realistically based upon the differences in their situations, this Court has upheld its validity.”). In Parham, the Court upheld a statute that required unmarried men, but not unmarried women, to legitimate their children in order to sue for the wrongful death of the children. The Court found: “The fact is that mothers and fathers of illegitimate children are not similarly situated.” Id. at 355, 99 S.Ct. at 1747. The Court believed this “fact” to be true because “[ujnlike the mother of an illegitimate child whose identity will rarely be in doubt, the identity of the father will frequently be unknown.” Id. The Court found that the purpose behind the statute— avoiding false claims by men for the wrongful death of children — was not based upon an invidious premise. Id. at 355 & n. 7, 99 S.Ct. at 1748 & n. 7. Assuming dissimilarity - in fact, the only remaining inquiry would be whether the means used to further the purposes behind the differences in treatment are , rationally related to the governmental objective. Parham, 441 U.S. at 357-, 99 S.Ct. at 1748 (“Having concluded that the Georgia statute does not invidiously discriminate against any class, we still must determine whether the statutory classification is rationally related to a permissible state objective.”). Having' concluded that the'purpose of the classification was not based upon factors exclusively related to gender, but rather was based upon the difficulty in proving paternity as ppposed to the difficulty in proving maternity, the Par-ham Court then inquired whether the means used were rationally related to the purposes of the classification. Since the means used— requiring men to acknowledge paternity-— were rationally related to the purposes behind the differences in treatment — avoiding false claims by men — the rational basis test was satisfied. The “rational basis” test tolerates seemingly unwise decisions by the political branches of government because of the Constitutional preference for democratic solutions as opposed to judicial ones. So long as there is no overarching constitutional reason to interfere- — such as discrimination based upon characteristics that the victim can do nothing about, like race or gender — democratic, rather than judicial, solutions are to be preferred. As the Court stated: “ ‘The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and the judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.’ ” Parham, 441 U.S. at 351, 99 S.Ct. at 1746 (quoting Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 942-43, 59 L.Ed.2d 171 (1979)). 2. Heightened Scrutiny The Supreme Court has also stated that if the classification is based upon gender alone, then an “ ‘exceedingly persuasive justification’ [is] needed to sustain the gender-based classification.” Miss. Univ. for Women v. Hogan, 458 U.S. 718, 731, 102 S.Ct. 3331, 3340, 73 L.Ed.2d 1090 (1982). Thus, if women at NCW are treated differently than men at NSP because they are women, a much more searching analysis is required. In Hogan, the Court was confronted with the admissions policy of a nursing school that prohibited men from attending. The justification for the single-sex admission policy was the assertion that the state should be allowed to compensate for discrimination against women. The Court first held that the party seeking to uphold the classification based upon gender must carry the burden of showing two things. Id. at 724-25, 102 S.Ct. at 3336-37. The classification must be shown to serve an important governmental objective. Id. at 724, 102 S.Ct. at 3336. If the classification is shown to serve an important governmental objective, the discriminatory means chosen must be substantially related to the achievement of the objective. Id. at 725, 102 S.Ct. at 3336. The Court held that the state can evoke a compensatory purpose to justify an otherwise discriminatory classification only if members of the gender benefitted by the classification actually suffer a disadvantage related to the classification. Id. at 728, 102 S.Ct. at 3338. The Court then concluded that the nursing-school failed to prove the first part of the test — the classification was not shown to be based upon an important governmental objective. The Court found this to be true because women had not in fact been disadvantaged by discrimination in the nursing field, and rather than compensating for discriminatory barriers faced by women, the policy of excluding males furthered the stereotypical view of nursing as women’s work. Id. at 729, 102 S.Ct. at 3338. The Court also found that the nursing school failed to satisfy the second part of the test; that is, the nursing school failed to establish that the policy of excluding men was substantially and directly related to the proposed compensatory purpose. Id. at 730, 102 S.Ct. at 3339. The Court reached this conclusion because of the inconsistent policy of allowing men to audit nursing classes. Id. at 731, 102 S.Ct. at 3339-40. The Court was thus persuaded that the “record in this case is flatly inconsistent with the claim that excluding men ... is necessary to reach any of [the nursing school’s] educational goals.” Id. at 731, 102 S.Ct. at 3340. 3. Heightened Scrutiny is the Proper Test (a) Most of the cases involving women’s prisons have used the “heightened scrutiny” test. See, e.g., Pitts v. Thornburgh, 866 F.2d 1450, 1455 (D.C.Cir.1989) (applying the heightened scrutiny test to prison policy of incarcerating female offenders outside of the District of Columbia, but finding that the test was’ satisfied, even though similarly situated males were incarcerated closer to the District of Columbia, because the difference in treatment was based upon the need to respond to severe overcrowding problems and was not based upon outmoded concepts of the role of women in contemporary society); Canterino v. Wilson (Canterino I), 546 F.Supp. 174, 209-12 (W.D.Ky.1982) (applying the heightened scrutiny test, and holding, among other things, that the state was required to show, but failed to show, that disparate treatment of female inmates, which resulted in inferior programs in areas of vocational education, training, and pay, was substantially related to important governmental objective); Glover v. Johnson, 478 F.Supp. 1075, 1079-83 (E.D.Mich.1979) (Glover I) (applying the heightened scrutiny test, and holding, among other things, that state prison authorities must provide women inmates with treatment and facilities that are substantially equivalent to those provided male inmates, but such authorities offered women inmates markedly poorer educational and vocational programs in violation of the Equal Protection Clause). The most thoughtful analysis of why heightened scrutiny is appropriate in cases such as this is found in Judge Starr’s opinion in Pitts, 866 F.2d at 1453-1456. In Pitts, the court applied the heightened scrutiny-test because: (a) women offenders, because they were women, were imprisoned considerably farther from the District of Columbia than similarly situated males, and were thus “substantially burdened”; (b) although courts should be loath to substitute them judgments for that of prison officials, see Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (“[w]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”), any case touching upon prisons necessarily implicates Turner's concerns; (c) Turner applies to cases involving prison security or the day-to-day operation of prisons and the challenged policy did not involve either security concerns or the day-to-day operation of prisons; (d) facial gender discrimination traditionally has summoned heightened scrutiny because such distinctions are often based upon inaccurate stereotypes which increase the danger that the state has chosen means which are not related to legitimate state interests; and (e) heightened scrutiny is properly employed where equal protection claims are at issue, as opposed to assertions of individual rights, because the right sought to be enforced is the right to be treated equally as opposed to challenges to limitations on personal rights which are often inherently limited by incarceration. The court was careful to point out, however, that heightened scrutiny does not allow courts to disregard the special difficulties facing prison administrators. Id. at 1455. In this regard, the court emphasized that the heightened scrutiny test did not eliminate an appreciation of the difficulties that prison administrators face or the considerable limits of judicial competency. Id. Applying Pitts to this case, I am satisfied that heightened scrutiny is appropriate in this case as there is no doubt that women are incarcerated at NCW because of their gender and not for some other reason. There is only one prison for women in the State of Nebraska. Whether a woman is convicted of writing bad checks or of murder, she will find herself at NCW when sentenced to prison. Men, on the other hand, could be sent to a variety of institutions depending upon a variety of penological goals — from security to programming. As a consequence, despite the fact that nongender-related reasons may exist to justify treating female prisoners differently from male prisoners, the .fact, remains that female prisoners, as a result of their gender alone, can receive only the programs available at NCW. Therefore, if the programming at NCW is comparatively inferior to programs at NSP, the female recipients may receive poor programming because of their gender and not for some nongenderrelated reason. (b) At my request, the parties have devoted a great deal of effort to addressing the question of whether the female inmates at NCW are “similarly situated” to their male counterparts at NSP. As noted in the foregoing discussion of Parham, the Supreme Court has stated that where factors other than gender alone distinguish one class from another, the proper test to employ is the so-called rational basis test. Parham, 441 U.S. at 354, 99 S.Ct. at 1747. I have concluded that the inmates at NCW are “similarly situated” with the inmates at NSP for equal protection purposes for the following reasons. First, while inmates at NCW span the security continuum — from minimum to medium to maximum — and inmates at NSP tend to be at higher security levels — medium and maximum — inmates at both institutions are nevertheless inmates. At the most basic level, the inmates at both facilities are in similar situations — confined as a result of a criminal conviction. Second, since NCW spans the security continuum and houses maximum custody inmates, and since NSP also houses maximum custody inmates, it is likely that the court will be comparing populations, aside from gender, which are classified as roughly comparable by the State of Nebraska. In this regard, since there is no segregation between minimum custody inmates and maximum custody inmates at NCW, minimum custody inmates receive the same type of treatment as maximum custody inmates. Thus, it is not inconsistent to treat both institutions as having roughly comparable populations. Stated another way, female minimum custody inmates are treated essentially the same as female maximum custody inmates. Therefore, if it is appropriate to compare institutions housing female maximum custody inmates with institutions housing male maximum custody inmates, then the existence of lower custody status inmates at NCW is irrelevant. Third, as the court found in Glover I, “I find no evidence on this record that the [State] views its general purpose in administering the [challenged] programs differently at [the female prison] than at male institutions.” Glover I, 478 F.Supp. at 1082 (emphasis in original) (footnote omitted). In other words, although the state may have segregated men from women, there is no evidence to suggest the state thought that as a general matter the purposes of incarceration were different for men than for women. As a consequence, other things being roughly equal, it is not inappropriate to consider NSP inmates and NCW inmates as “similarly situated” for equal protection purposes because the Nebraska legislature has not defined different general purposes for the incarceration of offenders on the basis of gender. Fourth, much of the defendants’ argument — that female inmates at NCW are not similarly situated to their male counterparts at NSP — is premised on a prior ease from this court involving security and privacy issues. In point of fact, the United States Court of Appeals has upheld a finding by this court that men and women incarcerated at NSP and NCW are not “similarly situated” and, therefore, the Equal Protection Clause was not violated when the State of Nebraska afforded lesser privacy protections to men as opposed to women. Timm v. Gunter, 917 F.2d 1093, 1103 (8th Cir.1990) (holding that differences in privacy protections afforded male and female inmates in Nebraska prisons did not violate the Equal Protection Clause because male and female inmates were not “similarly situated” due to differences in security concerns having to do with the kinds of crimes committed, length of sentence, and frequency of violence, escapes and contraband), cert. denied, — U.S.-, 111 S.Ct. 2807, 115 L.Ed.2d 979 (1991). While security issues are at the periphery of every prison case, the differences in treatment between men and women in this case cannot honestly be attributed to issues of security. Pitts, 866 F.2d at 1454 (opining that the challenged policy did not “directly implicate either prison security or control of inmate behavior, nor does it go to the prison environment or prison regime.”). By and large, the policies under challenge here have nothing to do with security. On the contrary, if anything, the relative lack of security concerns at NOW, compared with NSP, makes at least some of the differences in programs inexplicable if based upon security concerns. Fifth, a good deal of the defendants’ argument is nothing more or less than a restatement of the decision to segregate men from women in the first instance. I do not make light of this point. Indeed, the Pitts court recognized, as I must also, that the plaintiffs have not challenged the decision to segregate men from women. Nevertheless, as the Pitts court stated, “the existence of the facial classification raises sufficient concerns to trigger heightened scrutiny.” Pitts, 866 F.2d at 1459. If there really are relevant differences between the men at NSP and the women at NOW, the place to take account of those relevant differences is in that part of the “heightened scrutiny” analysis which tries to determine whether there is a sufficiently strong relationship between an important governmental objective and the means chosen to further that objective such that it can be said that the challenged policies are not “the product of traditional stereotyping or archaic notions of ‘appropriate’ gender roles.” Id. In so doing, the court will be forced to articulate, and therefore justify by the process of articulation, differences which are “constitutionally relevant”: Rather than avoiding the issue of differences, courts should confront it directly; if they determine that sex differences have a role in the equal protection analysis, they must articulate a standard of what constitutes a relevant difference. In so doing, the courts should be cautious in their identification of constitutionally relevant differences. In particular, they should be wary of differences resulting from past discrimination. At a minimum, the “similarly situated” analysis should hot encompass socially constructed differences or discrimination will be self-perpetuating. Note, Women’s Prisons, 94 Yale L.J. at 1186-87 n. 22. B. General Application of the Heightened Scrutiny Test 1. It is wise to restate what the heightened scrutiny test requires me to do. It must first be determined whether, as a matter of fact, programs (in quantity or quality) are provided male inmates at NSP which are not provided to female inmates at NCW such that it can be found that the women suffer a “substantial burden.” Pitts, 866 F.2d at 1453 & n. 4. If so, the test then requires that I determine what the defendants “specifically asserted [to be] the governmental interest that supports the contested policies.” Id. at 1456. Once having established what the stated objective is, the court is required to ascertain whether the objective is “important,” meaning that it is constitutionally legitimate. Id. Having determined the objective of the contested policy, and presuming that the governmental objective is “important,” the next step is to decide whether the means chosen to further the objective are “directly and substantially related.” Id. In summary, the framework may be stated this way: (a) determine whether there are programs (means) afforded (in quantity or quality) to male inmates at NSP but not female inmates at NCW which place a “substantial burden” on female inmates (disparity); (b) if so, ascertain whether there is an important governmental objective (objective) which underlies the “means”; (c) if so, finally decide whether the “means” chosen to further the governmental “objective” are directly and substantially related to the “objective” (relationship of means to objective) such that the “disparity” may be overlooked. 2. There are two questions which can and should be addressed as a threshold matter. The first question is whether the court should examine each program separately, or whether the court should examine the institutions as a whole, to determine whether in fact females suffer a substantial burden. In other words, a question is presented as to whether the court should compare NSP with NCW generally, or whether the court should compare NSP with NCW on a program-by-program basis. , As part of the first inquiry, if the court is to examine the programs separately, it must also determine what standards should be employed to judge whether women suffer a substantial burden. Secondly, if the court believes a program-by-program analysis is required, the next question is whether the asserted important governmental objective is the same for each program. I turn to those threshold questions now. (a) I think it appropriate to examine the contentions of the parties on a program-by-program basis. Although the parties have provided me with general overviews of NCW as compared to NSP, each party ultimately relies upon a programrby-program comparative analysis for the contention that women either do or do not suffer a substantial burden. Indeed, one of the pretrial conference orders in this case appears to require a program-by-program analysis. (Filing 409, compare plaintiffs’ controverted issues at page 63 and following with defendants’ controverted issues at page 4 and following.) The parties primarily rely on such a program-by-program analysis in their posttrial briefs. More basically, it would simply be impossible to judge the plaintiffs’ equal protection claim and the defendants’ response thereto in a coherent fashion by trying to evaluate NSP and NCW across the board. I shall therefore examine the equal protection claim on a program-by-program basis by separately comparing each challenged program at NCW with a .similar program at NSP to determine whether female inmates suffer a substantial burden as to a particular program. When making a program-by-program analysis to determine whether female inmates at NCW suffer a substantial burden, it is important to keep two things in mind. First, the Equal Protection Clause does not require that NSP and NCW have identical programs, but rather programs which are “substantially equivalent.” Glover I, 478 F.Supp. at 1079 (“equivalent in substance if not in form”); see also Canterino I, 546 F.Supp. at 210 (“[T]he equal, protection clause requires parity, not identity, of treatment.”); Bukhari v. Hutto, 487 F.Supp. 1162, 1171-72 (E.D.Va.1980) (quoting unreported decision of Barefield v. Leach, No. 10282 (D.N.M.1974), “ ‘what the Equal Protection Clause requires in a prison setting is parity of treatment, as contrasted with identity of treatment, betwéén male and female inmates ... ’ ” and ordering further hearing on female inmates’ claim of disparity of treatment between conditions of confinement in maximum security setting for women compared to men) (emphasis in original). On the other hand, programs are not “substantially equivalent” solely because each institution has similar programs if the “programs said to be available to the female prisoners are inferior in design, execution, or both.” Glover IV, 721 F.Supp. at 837. Second, expenditures of money, while of general relevance, do not substitute for reasoned analysis. Glover III, 855 F.2d at 288-89 (Engel, C.J., concurring and stating, “[t]he very difference between the sexes may mean in a given situation that the delivery of rehabilitative services may necessarily require the varied expenditure of monies because of natural differences in the sexes or in their conditions of confinement.”). Women’s prisons tend to have much smaller populations than male prisons, but size has little constitutional relevance. Indeed, the argument that women’s prisons are small and therefore expensive to run “is, frankly, not a justification but an excuse for the kind of treatment afforded women prisoners.” Glover I, 478 F.Supp. at 1078. Or, as stated in Canterino I, “[i]t is well established that economic considerations alone cannot serve as an excuse for failure to meet constitutional standards.” 546 F.Supp. at 207. Women are not more expensive to incarcerate than men just because they are women. Rather, since prisons for women are small, it is difficult to achieve economies of scale similar to those in the larger prisons housing men. In fact, Mr. Falconer, who prepared much of the defendants’ cost data, said that due to “the economies of scale” he was not surprised by the difference in costs between institutions which house men and women. (5223:25.) He attributed the difference in costs primarily to the difference in number of inmates, not some attribute of womanhood: Q. I was just looking for what factors that you’re aware of that make the per capita cost [for a] female inmate at NCW higher than a per capita cost at NSP for example? A. It’s numbers. Numbers of inmates. Q. That is primarily the difference is that right? A. Yes. (5226:1-7.) Indeed, the lack of economies of scale can be seen in administrative salaries measured by inmate-to-staff ratios. Mr. Falconer testified that “70 to 72 percent of our budget etc. in the Department of Correctional Services are staff related costs.” (5226:12-13.) If this is true, and staff-to-inmate ratios mean anything, NCW is spending much more, relatively speaking, per inmate on its administrative staff than NSP, but NCW spent, relatively speaking, about the same per inmate as NSP on support staff, security staff, and total staff. (Ex. 1378.) For example, in 1992 the inmate-to-staff ratio for administration at NCW was 16.00 to 1, whereas the same ratio for NSP was 49.44 to 1. (Ex. 1378.) The administration category included “the superintendent or warden’s staff, the assistant warden, the business manager, business [sic ], the accounting people.” (5170:8-10.) In effect, NCW had more administrative staff per inmate than NSP and, therefore, administrative costs per inmate must have been higher at NCW. On the other hand, in 1992 support staff ratios were similar (NCW = 9.93 and NSP = 10.14), and total staff ratios were similar (NCW = 2.03 and NSP = 2.22). (Ex. 1378.) This same trend was generally true for the preceding years as -well. At least in terms of staff salaries, the data would suggest that spending, as measured by inmate/staff ratios, was about the same for NCW and NSP except in the area of administration. Moreover, if it is true that it takes more money to obtain the same level of services for females as compared to males due to the smaller total size of the female population and the concomitant loss of economies of scale, this data may also suggest that Nebraska is not spending sufficient monies on the support staff and total staff who work in its female prison if women are to receive parity of treatment. Thus, spending is not a very good measure of equivalency. Accordingly, I have not 'concentrated on spending data. (b) Having determined that a program-by-program analysis is required, I pause to consider whether the defendants assert the same or different important governmental objectives for any differences that may exist between the programs at NCW and NSP. If the same governmental interest- is asserted for each program, I can make a threshold determination of whether, assuming that female inmates are substantially burdened, the governmental interest underlying the burden is “important.” If the governmental objectives change from program to program, then a separate determination of whether the objective is “important” would be required for each program. Probably because they do not agree that this case warrants “heightened scrutiny,” the defendants did not prior to -trial, during trial, or after trial clearly articulate what they believed the important governmental interests were. Therefore, it is not clear what governmental objective may undergird the differences, if there be differences, in the various programs. However, I have been able to ascertain from the evidence one important governmental objective that is an ever-present theme of the defendants even though not articulated in relationship to the “heightened scrutiny” test of any particular program. Defendants argue that male and female inmates are initially segregated for security reasons, and thereafter female inmates are treated differently because they have different needs than males. (Defs.’ Post-Trial Br. at 8 (“The testimony of all of the experts in this case confirmed that the profile and thus the needs of female inmates differ significantly from the needs of male inmates.”).) The defendants contend, and plaintiffs do not generally disagree, that the evidence shows that most women come to prison with fewer resources than most men. (Compare Defs.’ Post-Trial Br. at 8-11 with Pis.’ Post-Trial Br. at 19: “Indeed the plaintiffs presented evidence of a female offender ‘profile’ which pointed out some of the different correctional needs of women as opposed to incarcerated men.”) The following is a general description of the evidence as to the profile of female and male inmates. Many female inmates are passive to the point of dysfunction as they enter prison. Many female inmates come to prison after living at a low income level prior to incarceration. Female inmates tend to lack job training and job-related education. Female inmates have severe confidence problems and suffer from low self-esteem. Most of the female offenders are single parents responsible for supporting themselves who do not have contact with the significant males in their lives after incarceration; thus, the separation of mother and child is especially traumatic. Female inmates tend to have poor living skills and little exposure to employment opportunities, resulting in poor work skills and habits. Men, on the other hand, come to prison with greater resources than women. Male inmates tend to have been employed “on the outside” in higher-paying jobs compared to women. The problem of low self-esteem tends to plague men less than women. Men tend to be less actively dependent. Most male inmates do not have responsibility for child rearing. Most males tend to be comparatively more employable than women. Having noted these “differences,” and realizing, as the parties evidently do, that the “differences” are largely the product of societal gender bias, the question becomes whether these differences are relevant to a legitimate and important governmental objective regarding the treatment of women prisoners. I conclude that these differences are relevant and, in fact, provide a legitimate and important governmental objective. The differences establish that if the State of Nebraska had an important governmental objective in treating women differently, the important governmental objective was the remediation of effects of gender bias suffered by female inmates prior to their entry into prison in order that the Nebraska prison system might better address its statutory mission of preparing inmates for “lawful community living.” Neb.Rev.Stat. § 83-901 (Reissue 1987). This remedial need has been identified by others, including the American Correctional Association (ACA). In the ACA’s publication entitled Public Correctional Policy on Female Offender Services the following is forcefully noted: Because of their comparatively small numbers, female offenders — both adults and juveniles, accused and adjudicated— have been virtually ignored in the justice system. While data suggest that female offenders are very receptive to rehabilitation programs and supportive services, they seldom have access to such programs, and certainly not to the range of services available to male offenders. Some female facilities and programs are excellent. Many, however, have never received the resources they need to offer parity of programs and services and to provide the necessary training to their staff. As a result, many institutions have had to simply “hold” their female inmates, providing few opportunities to them for constructive change. Justice professionals and the public should be made aware of the profound need for parity of resources and services for females. More than half of the nation’s workforce is now female. Most women who are convicted of crimes held jobs before their conviction, yet most also were earning incomes below the poverty level. The majority of these women were also the sole support for themselves as well as their children. Adequate academic education programs and occupational assessment and training for female offenders is therefore a critical need. To successfully compete in a demanding job market, female offenders should receive the opportunity for suitable training, based on their interests and abilities, in both traditional and non-traditional vocations. Many female offenders also lack the relevant lifeskills necessary for successfully managing a household and being independent in a competitive and costly society. Whether in an institution or under community supervision, females should have an opportunity to acquire and practice these skills through instruction, counseling, and gradual release programs such as furloughs and pre-release. Work release programs should be available so that female offenders can apply their training .in a structured and supportive setting. (Ex. 292, at 29-30 (emphasis added).) Clearly, Hogan stands for the proposition that remediation of past discrimination against women is an important and legitimate governmental objective (if remediation is the real goal). As the Court stated in Hogan: “In limited circumstances, a gender-based classification favoring one sex can be justified if it intentionally and directly assists members of the sex that is disproportionately burdened.” 458 U.S. at 728, 102 S.Ct. at 3338. I therefore find and conclude that the State of Nebraska may justify differential treatment of females at NCW on a program-specific basis if the means chosen are directly and substantially related to the objective of providing women with remedial assistance so that they may be better able to engage in “lawful community living.” Neb.Rev.Stat. § 83-901. Although there may be other ostensibly important governmental objectives, I can find no other such objectives that span the entire range of programs at issue in this lawsuit. As I make the program-by-program analysis, if it is apparent to me that another governmental objective may exist as to a specific program, I shall endeavor to discuss the objective in relation to the specific program. I turn now to the challenged programs. C. Employment/Economic 1. Burden The plaintiffs argue that they have been denied an equal opportunity to make money while incarcerated and to acquire vocational skills on the job. The plaintiffs challenge (a) the pay policy, (b) the hobbycraft policy, (c) the private venture policy, (d) the Cornhusker State Industries (CSI) policy, and (e) the state-paid work assignment policy. At this point in the analysis, the sole question is whether inmates at NCW are “substantially burdened” by any of the policies. (a) As to the hobbycraft policy, the private venture policy, and the state-paid work assignment policy, I find that the female inmates at NCW have not suffered a substantial burden by virtue of disparity of treatment, in policy or practice, when compared to inmates at NSP. As to the hobbycraft policy, plaintiffs essentially contend that they have less of a market to sell their hobbycraft than the men at NSP. At NSP, inmates apparently can take orders to produce hobbycraft items, while at NCW, the crafts must be purchased from a display case. While the policies are different, as noted earlier, they need not be identical. At bottom, both male and female inmates may sell their hobbycraft, and the slight difference in policy does not warrant further analysis. Indeed, this is probably the type of day-to-day operational concern in which the court ought not to involve itself. Pitts, 866 F.2d at 1454. As to the private venture policy, (see generally Exs. 232, 274, and 1346B,- Interrog. 9), some elaboration is necessary. At various times, at both NSP and NCW, private companies have located their businesses at the institutions. The inmates at both institutions were then employed by the private ventures. For the inmates, the attractive thing about the private venture jobs was that they paid the inmates a higher wage compared to other jobs at the institutions. Since June, 1990, when a telemarketing firm left, there has been no private venture at NCW, while there has been a private venture, a sewing factory, at NSP. The present superintendent of NCW testified that NCW was in the process of negotiating with a new private venture firm in the hopes of attracting such a firm to NCW. There is simply no evidence to suggest that the defendants have adopted a policy or practice of pursuing or encouraging private venture employment for the men but not the women. The defendants are not responsible for a private business decision to cease business. Although the women are practically burdened, and perhaps substantially so, by the lack of a private venture job opportunity, the burden has not been caused by the action or inaction of the defendants. Therefore, the plaintiffs have not been burdened for purposes of the Equal Protection Clause. As to state-paid work assignments, (see generally Exs. 54, 220, 227, 228, 233, and 234, 412 and 1346A, Interrog. 9), the plaintiffs claim they are not given the same type and number of jobs. “State-paid work assignments” are jobs an inmate performs for the state and for which the state pays the inmate. I do not find that the female inmates are substantially burdened by any policy or practice regarding the stateLpaid work assignments. While there may have been more categories of assignments at NSP than at NCW from time to time, the general policy was to provide the same types of assignments to both sets of inmates, and differences in the categories of work available were largely inconsequential. While the state-paid work assignments at NCW appear to be menial, boring, and not relevant to the real world (see generally the testimony of inmates Blank and Anthony), there is no reason to believe that the inmates at NSP are substantially better off regarding the quality of the state-paid work assignments they receive. The same is true for quantity. For example, there was testimony from one female inmate (Anthony) that when she asked for additional state-paid work, she received it. The NCW inmates argue that some NSP inmates (trustees) were permitted to leave the security perimeter of NSP to perform their state-paid work assignments, but the NCW inmates (who had similar minimum custody status) were not. The extent of this disparity is not clear from the record, but it does not appear to be significant qualitatively or quantitatively. At least some of the NCW inmates were permitted to leave the security perimeter, if only to take out trash as part of their jobs. As to this issue, I find that the burden, if any, is so minimal on this record as to be inconsequential, and, in any event, this is an area where legitimate security and day-to-day operational concerns, clearly outside the competency of the court, are implicated. Pitts, 866 F.2d at 1454. (b) I believe discussion of the CSI policy should be deferred for consideration in the section of this memorandum on Edueation/Voeational Training. (0 As to the pay policy, I find that the female inmates have been substantially burdened by the pay policy. Before May, 1989, when the policy changed, inmates at NCW were paid on an hourly basis for -their state-paid work assignments. If they worked an hour, they were paid for an hour’s work. In contrast, male imriates at NSP were paid for a day’s work even if they worked only 15 minutes. The net impact was that females received substantially less pay than males for comparable- work. For example, Ms. Klinger testified that she would have made $41.30 more in February, 1989, had she been paid like a man. It is clear that the defendants knew of the disparity no later than March, 1988, when a grievance-was submitted, and perhaps as early as January, 1988, and yet 14 months elapsed before there was any change. 2. Important State Objective Having determined that females suffered a. substantial burden as a result of the pay policy which compensated women less than men for the same work, I must now determine whether there are important govérnmental objectives which are said to warrant the policy, beyond the legitimate and important remediation justification previously discussed. Once again, the defendants are not clear about what legitimate state objective under-girds the pay policy. The defendants claim that the policy of paying females on an hourly basis was consistent with a normal work environment and,. therefore, it was appropriate to pay females less than males on an hourly basis. It also appears that the defendants claim the only reason men were paid on a daily basis was because it would have been too costly to maintain any other accounting system for men, whereas for women it was easier, apparently because of their smaller numbers, to account for their work on an hourly basis. As to the'justification that women, as opposed to men, should be paid on an hourly basis because such a schedule is more like a normal work environment, I find the justification a pretext. -Even if it is not a pretext, the justification is not a legitimate governmental objective. NCW could then and can now pay women on an hourly basis and still pay the women an effective hourly rate that is equal to men. For example, if men at NSP working at a particular job were ostensibly paid $1.00 per hour, but worked only 4 hours and yet got paid $8.00 for their work, the effective hourly rate for the men would be $2.00 per hour. NCW could have compensated females at the same effective hourly rate as males without sacrificing the hourly rate concept. As the Court stated in Orr v. Orr, 440 U.S. 268, 283, 99 S.Ct. 1102, 1113-14, 59 L.Ed.2d 306 (1979), if the goal can be accomplished without gender classification, the gender-based goal itself is not legitimate: Where, as here, the State’s compensatory and ameliorative purposes are .as well served by a gender-neutral classification as one that gender classifies and therefore carries with it the baggage of sexual stereotypes, the State cannot be permitted to classify on the basis of sex. And this is doubly so where the choice made by the State appears to redound — if only indirectly — to the benefit of those without need for special solicitude. I do not accept the argument that it was too expensive (at least until the pay policy was changed) to account for the time actually spent by the men, but it was less costly to do so for the women, and therefore it was permissible to pay women less than men. Generally, cost, like other administrative excuses, Califano v. Goldfarb, 430 U.S. 199, 211 n. 9, 97 S.Ct. 1021, 1029 n. 9, 51 L.Ed.2d 270 (1977), is not a good enough reason to discriminate on the basis of gender. Canterino I, 546 F.Supp. at 211 (“A desire to preserve the state’s limited resources cannot be used to justify an allocation of those limited resources which unfairly denies women equal access to programs routinely available to men.”) (citation omitted) (emphasis in original); Bukhari, 487 F.Supp. at 1172. 3. Relationship Between Objective and Means Having previously determined that the defendants would have an important governmental objective in providing remedial services to women at NCW for past gender discrimination, the question becomes whether the means chosen — the pay policy — to further that objective are directly and substantially related. As the Pitts court recognized, where the challenged policy “directly responds to and entirely correlates with the more pervasive gender classification existing in both federal and state prison systems,” the challenged policy may be upheld, unless the record shows the challenged policy to be the product of traditional stereotyping or archaic notions of “appropriate” gender roles. 866 F.2d at 1459. The pay policy fails the Pitts test on both counts. First, paying women less than men does not “directl