Klinger v. Nebraska Department of Correctional Services (1993)

It concluded that heightened scrutiny was the proper test because "there is no doubt that women are incarcerated at NCW because of their gender alone and not for some other reason." Klinger v. Nebraska Dep't of Correctional Servs., 824 F.Supp. 1374, 1388 (D.Neb.1993). 14 The court then determined that the plaintiffs are similarly situated to male inmates at NSP for purposes of prison programs and services.

It concluded that heightened scrutiny was the proper test because “there is no doubt that women are incarcerated at NCW because of their gender alone and not for some other reason.” Klinger v. Nebraska Dep’t of Correctional Servs., 824 F.Supp. 1374, 1388 (D.Neb.1993).

Klinger v. Nebraska Dep’t of Correctional Servs., 824 F.Supp. 1374, 1434-1438, 1449-52, 1464-65, 1468 (D.Neb.1993) (Klinger I), rev’d on equal protection grounds, 31 F.3d 727 (8th Cir.1994), cert. denied, — U.S. —, 115 S.Ct. 1177 , 130 L.Ed.2d 1130 (1995) (Klinger II). 2 I now issue my findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a) on the issue of damages.

The motion seeks expansion of the non-final liability findings regarding Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688 (Title IX), set forth in my opinion in Klinger v. Nebraska Dep’t of Correctional Services, 824 F.Supp. 1374, 1431-34 (D.Neb.1993) {Klinger I), rev’d on equal protection grounds, 31 F.3d 727 (8th Cir.1994) {Klinger II), cert. denied, — U.S. -, 115 S.Ct. 1177 , 130 L.Ed.2d 1130 (1995).

After a month-long trial, I issued an opinion, Klinger v. Nebraska Dep’t of Correctional Services, 824 F.Supp. 1374 *1332 (D.Neb.1993) (Klinger I), which found: (1) when examined by reference to the “heightened scrutiny” standard, female inmates at NCW were discriminated against because of their sex in many (but not all) program and service offerings as compared to male inmates at NSP, in violation of the Equal Protection Clause of the Fourteenth Amendment, id. at 1390-1431 …

"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.” Id. at 1385 (r…

See Klinger I, 824 F.Supp. at 1432 (noting parties' stipulation). 26 It is beyond controversy that male and female prisoners may lawfully be segregated into separate institutions within a prison system.

See Klinger I, 824 F.Supp. at 1432 (noting parties’ stipulation).