                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 07-3780
                                 ________________

                                        *
Julie Roubideaux, individually and      *
on behalf of a class of similarly       *
situated persons; Shelly Grossman,      *     Appeal from the United States
individually and on behalf of a class   *     District Court for the
of similarly situated persons,          *     District of North Dakota.
                                        *
             Appellants,                *
                                        *
      v.                                *
                                        *           [PUBLISHED]
                                        *
North Dakota Department of              *
Corrections and Rehabilitation;         *
Elaine Little, individually; Timothy    *
Schuetzle, individually and in his      *
capacity as Prisons Director of the     *
Department of Corrections and           *
Rehabilitation; Don Redmann,            *
individually and in his capacity as     *
Warden of the James River               *
Correctional Center; Southwest          *
Multi-County Correctional Center;       *
Leann K. Bertsch, in her official       *
capacity as Director of the DOCR,       *
                                        *
             Appellees.                 *
                                ________________

                           Submitted: November 13, 2008
                               Filed: July 2, 2009
                               ________________

Before MURPHY, HANSEN, and RILEY, Circuit Judges.
                        ________________

HANSEN, Circuit Judge.

       Two North Dakota prison inmates, Julie Roubideaux and Shelly Grossman,
representing a certified class of female inmates (collectively "the Female Inmates"),
brought this sex discrimination suit pursuant to 42 U.S.C. § 1983 and Title IX of the
Education Amendments of 1972, see 20 U.S.C. § 1681(a), alleging, among other
things, that from 1997 to the present, the North Dakota prison system has provided
them with unequal programs and facilities as compared to the male inmates. The
district court granted summary judgment in favor of the defendants. See Roubideaux
v. N. D. Dep't of Corr. & Rehab., 523 F. Supp. 2d 952 (D.N.D. 2007). We affirm.

                                         I.

       The undisputed facts indicate that since 1997, female inmates in the custody of
the North Dakota Department of Corrections and Rehabilitation ("DOCR") have been
housed in four separate prison facilities: the North Dakota State Penitentiary
("NDSP"); the Missouri River Correctional Center ("Missouri River CC"), also known
as the farm; the James River Correctional Center ("James River CC"); and the Dakota
Women's Correction and Rehabilitation Center ("Dakota Women's CRC"), a facility
operated by the Southwest-Multi-County Correctional Center ("SWMCCC") under




                                         -2-
contract with the DOCR.1 Prior to June 1998, the Female Inmates were all housed
with the male inmates either at the NDSP, which has approximately 550 beds, 60 of
which were occupied by women, or at the smaller Missouri River CC, which has
approximately 150 beds and housed 14 women. These facilities are both located in
North Dakota's capital city of Bismarck. In June 1998, the James River CC opened
in Jamestown, North Dakota, and all of the female inmates who had been housed at
the NDSP were transferred there. The James River CC houses around 374 inmates.

        In 2003, the DOCR contracted with SWMCCC to house all of the female
inmates together. SWMCCC is a partnership of six counties created pursuant to a
joint powers agreement. SWMCCC established and operates two correctional
facilities. It renovated a Catholic boarding school in New England, North Dakota
(population 527), into the Dakota Women's CRC, a 110-bed women-only correctional
facility. SWMCCC also operates a separate facility, the Dickinson jail. The Dakota
Women's CRC operates pursuant to SWMCCC's contract with the DOCR. Transfer
of all women inmates to the Dakota Women's CRC began in 2003 and was completed
by August of 2004.

       The Female Inmates filed this lawsuit in 2003 against the DOCR, Elaine Little,
Prison Director Timothy Schuetzle, and James River CC Warden Don Redmann
(collectively "the State Defendants"), as well as SWMCCC, alleging discriminatory
conditions in the facilities and programs offered to women inmates in DOCR
institutions in violation of the Equal Protection Clause and Title IX. At that time, the
Female Inmates were still housed at the Missouri River CC and the James River CC
with the male inmates, but their transfer to the Dakota Women's CRC was imminent.

      1
       Some women inmates are also housed at the Tompkins Rehabilitation Center
in Jamestown and in transitional living centers in Fargo and Bismarck, but there are
no allegations of unequal conditions or programming at these facilities. See
Roubideaux, 523 F. Supp. 2d at 955 n.3.

                                          -3-
The complaint alleged that the Female Inmates suffered discrimination on the basis
of sex because the State Defendants provided unequal and inferior programs,
education, and services in comparison with those offered to the male inmates, and that,
"unless enjoined, defendants will transfer female inmates to county jails providing
unequal and inferior facilities and programs in comparison to male inmates." (J.A. at
24.) The complaint listed two gender-based North Dakota statutes that the Female
Inmates asserted authorized the DOCR to house female inmates in county facilities
for more than one year. See N.D.C.C. § 12-47-38 (Supp. 2007); N.D.C.C. § 12-44.1-
06.2 (2003) (expired).2 The district court certified the class pursuant to Rule 23(b)(2)
of the Federal Rules of Civil Procedure, finding that the plaintiffs requested primarily
injunctive and declaratory relief.

       After all of the women had been transferred to the Dakota Women's CRC, the
State Defendants and SWMCCC sought summary judgment on the ground that the
Female Inmates could no longer demonstrate that they were similarly situated to the
male inmates, a necessary element of the equal protection analysis. See Keevan v.
Smith, 100 F.3d 644, 648 (8th Cir. 1996) (concluding male and female inmates at
different institutions in Missouri were not similarly situated based upon a comparison
of a number of factors that made such a comparison unworkable); Klinger v. Dep't of
Corr., 31 F.3d 727, 733 & n.4 (8th Cir. 1994) (Klinger I) (same in Nebraska), cert.
denied, 513 U.S. 1185 (1995). They also argued that the Female Inmates were not
entitled to relief under Title IX because they failed to show discrimination in a
program or activity within the meaning of Title IX.




      2
       Section 12-44.1-06.2 was enacted in 2003 and expired on June 30, 2005; it was
replaced with an identical provision, which expired in 2007. See N.D.C.C. § 12-44.1-
06.3 (2005) (expired June 30, 2007). Currently, a gender-neutral version exists in
§ 12-44.1-06(3), but the gender-specific version of 2003 was in effect at the time the
Female Inmates were transferred to Dakota Women's CRC.

                                          -4-
       In response, the Female Inmates asserted that they were not attempting to
compare the programming decisions made at different institutions within the system,
as did the inmates in Klinger I and Keevan. Instead, they claimed to be challenging
the gender-based "policy, based on statute, of removing female inmates from the
custody of the [DOCR] . . . and sending them to the custody of local county jails
where they are unable to take advantage of the programs and services offered by the
[DOCR]." (J.A. at 203.) Thus, they transformed the issue into a facial statutory
challenge, alleging that the gender-based classification in the statute resulted in a
discriminatory decisionmaking process. They also continued to assert that inequalities
in the prison industries program and vocational education programs offered to them
violated Title IX.

       The district court permitted the Female Inmates to shift the focus of their equal
protection claim to the challenged statutes but granted summary judgment to the State
Defendants and SWMCCC. The district court concluded that the Female Inmates
lacked standing to challenge statutes that did not apply to them and that they had
expressly abandoned all equal protection claims aside from the statutory challenge.
Alternatively, the district court concluded that the Female Inmates had failed to
demonstrate an intent to discriminate on the basis of gender. As to the Title IX claims,
the district court concluded that the prison industries program is not an education
program within the meaning of Title IX and that the vocational training offered at the
Dakota Women's CRC was not shown to be inferior. The Female Inmates appeal.

                                          II.

       We review the grant of summary judgment de novo, "viewing all evidence and
reasonable inferences in the light most favorable to the nonmoving party." Habhab
v. Hon, 536 F.3d 963, 966 (8th Cir. 2008). Summary judgment is proper where there
is no genuine dispute of material fact, and the moving party is entitled to judgment as



                                          -5-
a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986).

                                  A. Equal Protection
                                     1. Standing

       Article III of the United States Constitution limits federal court jurisdiction to
justiciable cases and controversies. Lujan v. Defenders of Wildlife, 504 U.S. 555,
559-60 (1992); Mosby v. Ligon, 418 F.3d 927, 933 (8th Cir. 2005). When
challenging a statute, the plaintiff must show "an injury to [her]self that is likely to be
redressed by a favorable decision" and that is "fairly traceable to the challenged
statute." Women's Health Ctr. of W. County, Inc. v. Webster, 871 F.2d 1377, 1383-84
(8th Cir. 1989) (internal marks omitted). The district court concluded that the Female
Inmates lacked Article III standing to challenge the two statutes as gender based
because they were transferred to the Dakota Women's CRC, which the district court
concluded was not a "county jail" or "regional corrections center" within the meaning
of the statutes.

       "Statutory interpretation is a question of law." Minn. Supply Co. v. Raymond
Corp., 472 F.3d 524, 537 (8th Cir. 2006); Bolinske v. Jaeger, 756 N.W.2d 336, 339
(N.D. 2008). We are bound by North Dakota's rules of statutory interpretation in
reviewing a North Dakota statute. See, generally, Fargo Women's Health Org. v.
Schafer, 18 F.3d 526, 530-31 (1994) (applying North Dakota principles of statutory
interpretation in considering the constitutionality of a North Dakota law). Under
North Dakota's rules, our "primary objective in interpreting a statute is to ascertain
legislative intent." N.D. State Elec. Bd. v. Boren, 756 N.W.2d 784, 786 (N.D. 2008).
"To ascertain legislative intent, we initially look to the statute's language, giving the
statute's words their plain, ordinary, and commonly understood meaning." Id. We
construe statutes as a whole and, where possible, harmonize the language used to give
meaning to each word and phrase. Id. "[I]f the language is clear and unambiguous,


                                           -6-
we presume the legislative intent is clear from the face of the statute." Von Ruden v.
N.D. Workforce Safety & Ins. Fund, 755 N.W.2d 885, 890 (N.D. 2008).

       In support of their argument that they have standing to challenge the
constitutionality of the two gender-explicit statutes that allegedly facilitated their
transfer to the Dakota Women's CRC, the Female Inmates assert that the Dakota
Women's CRC is both a "county jail" and a "regional corrections center" within the
meaning of the statutes. Although some of the statutory definitions overlap (for
instance, a "jail" is defined as a "correctional facility" and a "correctional facility" is
defined, in part, as a "jail"), see N.D.C.C. § 12-44.1-01, we believe the statutory
language is clear and unambiguous. We consider each statute in turn.

       The first challenged statute articulates the DOCR's contracting authority with
regard to counties. It provides that, if there is no space in a qualified state facility, the
DOCR must contract to house female inmates in a county jail that has the available
space, the ability to segregate male and female inmates, and the ability to provide the
necessary services and programs stated in the statute. See N.D.C.C. § 12-47-38.3 The
term "county jail" is not specifically defined by the statute. Its plain language
indicates that it is a jail operated by a county. A jail is defined as "a correctional
facility, including a county or city jail or a regional corrections center." N.D.C.C.
§ 12-44.1-01(5). A "regional corrections center" is at once both a "correctional


       3
        Section 12-47-38 provides in full as follows:
       If there is no qualified state facility available, the director of the [DOCR]
       shall contract with a county for the housing of female inmates in the
       county jail, to the extent space is available in the county jail. The county
       jail must be designed in a manner that can adequately segregate the
       female inmates from the male inmates. Any county with which the
       department contracts must have available and must provide the female
       inmates access to educational and vocational programs, chemical
       dependency treatment programs, mental health programs, medical
       services, and adequate recreational facilities.

                                            -7-
facility" and a "jail" that is owned by several counties or cities. See N.D.C.C. § 12-
44.1-01(7) (defining a "regional corrections center" as "a correctional facility
established and maintained by more than one county or city . . . for the confinement
of inmates"). Because the term "county jail" is not used as a defined term of art, it
necessarily includes the whole definition of "jail" modified only by the term "county."
The fact that "county jail" is used in the singular is insignificant because words used
in the singular in the North Dakota Century Code are meant to include the plural,
except where a plainly contrary intention applies. See N.D.C.C. § 1-01-35.
Therefore, because the Dakota Women's CRC is a "correctional facility" that is owned
by several counties (SWMCCC), it is within the scope of a "county jail" under this
statute. And, while this statute sets forth particular restrictions on the DOCR's
contracting authority and lists services that must be available at the county facility, it
does not articulate any requirement that a county jail or regional corrections center
must have operated as such prior to entering a contract with the DOCR.4

         The second challenged statute works with the first by expanding the length of
time that a county correctional facility can house female inmates under a DOCR
contract. It authorized the DOCR to contract with SWMCCC to house female inmates
for more than one year with specified services. In North Dakota, correctional facilities
operated by a county are subject to inspection by the DOCR and a grading system.
A grade one classification is the highest classification permitted; it denotes that the
DOCR has determined, based upon the facility's "construction, size and usage," that
it is fit to confine inmates for not more than one year. N.D.C.C. § 12-44.1-06(1)(a).




      4
        The State Defendants and SWMCCC argue that the Dakota Women's CRC is
a "state contract facility," but because this phrase is not statutorily defined or
otherwise statutorily significant, it is merely descriptive. As such, a "state contract
facility" implies nothing more than that the facility now houses inmates pursuant to
the terms of a contract with the state.

                                           -8-
The challenged statute, § 12-44.1-06.2 (2003),5 permits the county correctional facility
to house female inmates for longer than one year by a contract with the DOCR, when
otherwise, a county correctional facility, even with the highest classification, would
have been limited to housing inmates for one year. Because of this statute, the DOCR
contract with SWMCCC validly authorized the Dakota Women's CRC to house the
Female Inmates for more than one year. Absent the challenged statute, the Dakota
Women's CRC would otherwise have been limited by statute to housing female
inmates for one year at most. Both of the challenged statutes, then, worked together
to permit the DOCR and SWMCCC to enter into the contract by which the Female
Inmates were transferred to, and are currently housed at, the Dakota Women's CRC
for more than one year. Accordingly, the Female Inmates have standing to challenge
the statutes.

                      2. Merits of the Equal Protection Claim

       "The Equal Protection Clause generally requires the government to treat
similarly situated people alike." Klinger I, 31 F.3d at 731 (citing City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). "The similarly situated inquiry
focuses on whether the plaintiffs are similarly situated to another group for purposes
of the challenged government action," and so it is necessary to "precisely define" the
claim in order to determine what government action is being challenged. Id. The
Female Inmates assert that the gender-based classification on the face of the
challenged statutes resulted in a discriminatory process, and we have noted that male
and female inmates are similarly situated at the beginning of the decisionmaking


      5
       Section 12-44.1-06.2 (2003), which has since expired, provided:
      Notwithstanding section 12-44.1-06, a grade one correctional facility that
      has a contract with the [DOCR] to confine female inmates who have
      been sentenced to the legal and physical custody of the [DOCR] may
      confine the female inmate for more than one year in accordance with the
      terms of the contract. . . .

                                          -9-
process regarding prison programming. Id. at 733 n.4 (noting that a comparison of the
process by which programming decisions are made is an example of a proper equal
protection comparison of a prison's treatment of male and female inmates).

       The challenged statutes apply to the DOCR's decisionmaking process of
determining where to house female inmates, and the statutes include a gender-based
classification on their face. See N.D.C.C. §§ 12-47-38, 12-44.1-06.2. When a statute
employs a gender-based classification, we apply a heightened review standard. See
United States v. Virginia, 518 U.S. 515, 532-33 (1996). "[T]he state must
persuasively show that certain gender-based classifications serve 'important
governmental objectives' and that the statute in question is 'substantially related to the
achievement of those objectives.'" Ways v. City of Lincoln, 331 F.3d 596, 600 (8th
Cir. 2003) (quoting Virginia, 518 U.S. at 533); see also Keevan, 100 F.3d at 650. This
heightened standard, however, does not completely proscribe gender-based
classifications because the physical differences between males and females are real.
Virginia, 518 U.S. at 533. While gender classifications may never be used "to create
or perpetuate [a] legal, social, and economic inferiority of women," id. at 534, we are
mindful that this claim arises in a prison housing context where the program
differences may result from the housing decision and that it is appropriate to segregate
male and female inmates on the basis of gender, see Klinger v. Dep't of Corr., 107
F.3d 609, 615 (8th Cir. 1997) ("Klinger II"). "[C]ourts are ill equipped to deal with
the increasingly urgent problems of prison administration and reform," and the
difficult job of running a prison system requires "expertise, planning, and the
commitment of resources, all of which are peculiarly within the province of the
legislative and executive branches of government." Turner v. Safley, 482 U.S. 78, 84,
85 (1987) (internal marks omitted). The Female Inmates do not challenge the DOCR's
general policy of segregating male and female inmates by gender. Instead, they assert
that the gender-based classification contained in the challenged statutes resulted in a
discriminatory decisionmaking process that worked to exclude them from any DOCR
programs.


                                          -10-
       After a careful review, we conclude that the undisputed evidence in the record
raises no inference of discrimination in the decisionmaking process because the
statutes substantially relate to the important governmental objective of providing
adequate segregated housing for women inmates. The undisputed evidence
demonstrates that the DOCR female population as a whole is much smaller than the
male population, that sufficient space to house the women in DOCR institutions was
becoming an issue as the entire prison population increased, and that, for the many
reasons set forth in the complaint and throughout the record, female inmates were in
need of a separate facility to better meet their needs. Transferring the same number
of male inmates instead of the women would not have resolved these issues for the
female inmates. The statutes are substantially related to this important objective in
that they expressly require the DOCR to contract with county facilities that have
adequate extra space for the female inmates, but only when there is no qualified state
facility available and only when the county facility is able to provide segregation from
male inmates and an appropriate level of services and programs for the female
inmates. If those conditions are met, the county facility is authorized to house the
female inmates for more than one year. The statutes substantially further the
government's legitimate and important objective of segregating women inmates from
male inmates while providing them with the same type of services that are available
within the DOCR system. There is no evidence to suggest that any resulting
differences in programming from this permissible segregation are caused by gender
discrimination.

      The Female Inmates argue that the decision to house them at the Dakota
Women's CRC was based on economic concerns born out of a desire to benefit
western North Dakota economically rather than out of a concern for what was in their
best interests. Even assuming this is true, it does not raise an inference of
discrimination on the basis of gender. The gender-based statutory scheme at issue is
not impermissibly discriminatory.



                                         -11-
       The Female Inmates also attempt to make an as-applied challenge to the
statutes, asserting that they are, in fact, being denied the opportunity to participate in
any programs operated in the DOCR system and that they are provided programs that
are inferior to those offered within the DOCR institutions, even though the contract
between the SWMCCC and the DOCR states an express intent to provide programs
and services to the female inmates "in parity" with those provided to the male inmates
housed in the DOCR institutions. (J.A. at 138.) We agree with the district court,
however, that the Female Inmates expressly abandoned this argument by their express
assertion that they were "not challenging the programming decisions made by the
DOCR as to what programs should be offered at which facilities." Roubideaux, 523
F. Supp. 2d at 964 (internal marks omitted). They voluntarily and consciously shifted
the focus of their argument to the decisionmaking process dictated by the gender-
explicit statutes. The type of equal protection argument they now couch as an as-
applied challenge to the statutes moves beyond the initial decisionmaking process,
where we found the male and female inmates to be similarly situated, and seeks to
return to the type of program comparisons between institutions that we have held to
be unworkable and that the Female Inmates expressly abandoned. See Keevan, 100
F.3d at 649-50 (holding that male and female inmates at different institutions in
Missouri were not similarly situated with regard to challenging the assignment of
prison industry programs among the various institutions); Klinger I, 31 F.3d at 731
(holding that female inmates at the Nebraska Center for Women and male inmates at
the Nebraska State Penitentiary "are not similarly situated for purposes of prison
programs and services"). Each particular institution's size, location, and character,
resulting from the different types or classifications of inmates housed there,
"necessarily will affect the number, type, and length of programs offered." Keevan,
100 F.3d at 649. Any attempt to compare programs between and among different
prisons where all of these varying factors are present "is like the proverbial
comparison of apples to oranges." Klinger I, 31 F.3d at 733.




                                          -12-
       The undisputed record here confirms the presence of these types of varying
factors. Dakota Women's CRC is smaller and is located in a smaller community than
the DOCR institutions. Male inmates in the custody of the DOCR greatly outnumber
the female inmates. The DOCR pays more per inmate to house the female inmates.
Two-thirds of the female population are classified as minimum custody inmates and
the remainder are medium custody inmates, whereas, with the exception of the
Missouri River CC (which holds only minimum custody males), the male institutions
house predominately medium and maximum custody inmates with comparably longer
sentences and longer periods of actual incarceration than the female inmates. As in
Klinger I and Keevan, these differences make program comparisons between the
prisons unworkable, and in any event, we will not permit the Female Inmates to now
revive the claim that they expressly abandoned.

       Concerning the Female Inmates' pretransfer equal protection claims that arose
out of their incarceration within the DOCR institutions, we agree with the district
court that those claims are moot. "In general, a pending claim for injunctive relief
becomes moot when the challenged conduct ceases and there is no reasonable
expectation that the wrong will be repeated." Mo. Pro. and Advocacy Servs., Inc. v.
Carnahan, 499 F.3d 803, 811 (8th Cir. 2007) (internal marks omitted). "A claim is
properly dismissed as moot if it has lost its character as a present, live controversy of
the kind that must exist if we are to avoid advisory opinions on abstract questions of
law." Keevan, 100 F.3d at 647 (internal marks ommited). We lack "jurisdiction over
cases in which[,] due to the passage of time or a change in circumstances, the issues
presented will no longer be live or the parties will no longer have a legally cognizable
interest in the outcome of the litigation." Van Bergen v. Minnesota, 59 F.3d 1541,
1546 (8th Cir. 1995) (internal marks omitted). All of the Female Inmates have been
transferred out of the NDSP, the James River CC, and the Missouri River CC, and
there is no suggestion that they might be returned. Their class certification is for
injunctive relief, and any equal protection claim arising out of their previous housing
in those other facilities is now moot.


                                          -13-
                                      B. Title IX

       "[T]he standard for finding a Title IX violation differs from the standard
applicable to a constitutional equal protection claim," and therefore, the "failure to
prove an equal protection violation does not preclude [a] Title IX claim as a matter of
law." Klinger II, 107 F.3d at 614. Title IX of the Education Amendments of 1972
provides that "[n]o person in the United States shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to discrimination under
any education program or activity receiving Federal financial assistance," aside from
certain listed exceptions, and, significantly, prisons are not among the exceptions. 20
U.S.C. §1681(a). A state's prison system as a whole qualifies as a program or activity
within the meaning of Title IX. See Klinger II, 107 F.3d at 615 (citing 20 U.S.C.
§ 1687(1)(A)). There is no dispute that the DOCR and the Dakota Women's CRC
receive federal funding.

      The Female Inmates claim that gender-based inequalities exist in the prison
industries program and in the vocational programs offered to inmates within the
DOCR system. The district court first concluded, on the undisputed record, that the
prison industries operation is not an educational program or activity within the
meaning of Title IX, and this conclusion is supported by the undisputed facts. But see
Jeldness v. Pearce, 30 F.3d 1220, 1225-26 (9th Cir. 1994) (holding the question of
whether a prison work camp, farm, or prison industries are "educational" programs
within the meaning of Title IX is a question of fact).

      The express language of Title IX prohibits discrimination in "any education
program" that receives federal funds. 20 U.S.C. § 1681(a) (emphasis added). The
term "education" is not defined by the statute or in the regulations governing Title IX,
see O'Connor v. Davis, 126 F.3d 112, 118 (2d Cir. 1997), cert. denied, 522 U.S. 1114
(1998), and so we consider its ordinary meaning. See Crawford v. Metro. Gov't of
Nashville and Davidson County, Tenn., 129 S. Ct. 846, 850 (2009) (noting that a term


                                          -14-
undefined by statute "carries its ordinary meaning"). The ordinary meaning of
education is very broad and could conceivably encompass every experience of life.
As relevant here, however, Title IX deals more specifically with "education
programs." 20 U.S.C. § 1681(a). See O'Connor 126 F.3d at 118 (indicating that while
the 1988 amendments expanded the reach of Title IX to include all departments or
branches of an educational institution or program that receives federal funding, the
amendment "did not purport to alter the preliminary requirement that the entity funded
operate an 'education program.'"). The federal regulations indicate that Title IX
prohibits discrimination on the basis of sex "under any academic, extracurricular,
research, occupational training, or any other education program or activity operated
by a recipient" of federal funds. 45 C.F.R. § 86.31(a) (emphasis added). We look to
the primary purpose of a program to determine its character.

      The "prison industries" program, as described by the undisputed facts on this
record, is primarily an inmate work or employment program. It provides inmates with
paying jobs, enabling them to make purchases, pay restitution orders, or support their
families. The contract between SWMCCC and the DOCR distinctly separates "Inmate
Employment," which requires SWMCCC to provide institutional jobs and prison
inmate work programs like prison industries (J.A. at 146), from "Education and
Vocational Services," which requires SWMCCC to provide basic educational
programs as well as vocational education programs (id. at 168-69). The prison
industries jobs at the Dakota Women's CRC (a cut and sew operation and a lock/key
industry) require higher-level skills than most of the institution jobs.

      The Female Inmates assert that there is a question of fact as to whether the
prison industries program is an educational program within the meaning of Title IX.
They assert that there is evidence from which a trier of fact could consider prison
industries to be educational because the DOCR considers the prison industries
program to provide an opportunity to learn skills and trades while on the job that will
be useful to their ability to obtain employment after incarceration. Accepting these


                                         -15-
facts as true and even though the prison industries provide a beneficial learning
opportunity, that benefit is incidental to and is not the primary focus of the prison
industries operation. We agree with the district court's conclusion that the type of on-
the-job training provided by the prison industries at the Dakota Women's CRC does
not transform it from principally a work program into an occupational training
program or an educational program. Educational programs that prepare an individual
to pursue a particular occupation or trade "typically provide instructors, evaluations,
and offer a particular course of training." O'Connor, 126 F.3d at 118. While on-the-
job industry training has an educational component in the broadest sense of the term,
the record demonstrates that the primary purpose of the prison industries operation as
a whole is to provide employment, not educational opportunities. See generally
Women Prisoners of D.C. Dep't of Corr. v. Dist. of Columbia, 93 F.3d 910, 927 (D.C.
Cir. 1996) ("But even though we do not address the scope of Title IX in the prison
context, we admit to grave problems with the proposition that work details, prison
industries, recreation, and religious services and counseling have anything in common
with the equality of educational opportunities with which Title IX is concerned."),
cert. denied, 520 U.S. 119 (1997).

      Vocational education, on the other hand, is expressly within the scope of Title
IX. See 20 U.S.C. § 1687(2)(B) (describing the term "program" to include a "system
of vocational education"). See also Klinger II, 107 F.3d at 612 (involving a claim by
women inmates that the educational and vocational training opportunities at one
prison were inferior to those of male inmates at another). Again, we begin with the
premise that "[i]t is beyond controversy that male and female prisoners may lawfully
be segregated into separate institutions within a prison system, and that "[g]ender-
based prisoner segregation and segregation based upon prisoners' security levels are
common and necessary practices." Id. at 615. With this understanding, Title IX
requires a comparison of the educational opportunities available to female and to male
prisoners within a state's entire system of federally funded correctional institutions,
"taking into account the objective differences between the male and female prison


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populations and such penological and security considerations as are necessary to
accommodate in this unique context." Klinger II, 107 F.3d at 616. Thus, where there
exist significant differences between prison populations in gender-segregated prisons,
such as unequal population sizes and lengths of stay, Title IX requires a comparison
of the educational opportunities to ensure that the female inmates are receiving equal
educational opportunities "consistent with those differences." Id. at 616. "'[P]rograms
need not be identical in number or content,'" but the female inmates must be provided
with "'reasonable opportunities for similar studies and . . . an equal opportunity to
participate in programs of comparable quality.'" Id. (quoting Jeldness, 30 F.3d at
1229).

       The district court carefully reviewed the vocational programs offered at each
institution and found that all inmates have access to computer classes, work force
training classes, and college classes. Female inmates at the Dakota Women's CRC
also have access to a welding class and classes in basic parenting, social skills, speech,
and healthy lifestyles. The other DOCR institutions do not offer the same vocational
programs. Male inmates at the James River CC have access to a food service
vocational program. The Missouri River CC offers an auto technical program,
welding courses, and carpentry courses. Male inmates at the NDSP, at various times,
have had access to a noncredit accounting course, a restaurant management class, and
a heating and air conditioning program. The district court concluded that, on this
record, the differences in the availability and access to certain vocational programs
result from the location of the inmates, and that no facts give rise to an inference of
inequalities based on gender.

      The Female Inmates assert that their evidence demonstrates a growing disparity
between the quality and quantity of vocational programming offered at the Dakota
Women's CRC and the programs offered at the male DOCR institutions, but their
analysis inappropriately combines all of the vocational programs offered at the
DOCR's male institutions and contrasts it with the programs offered to the female


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inmates at the Dakota Women's CRC, when in fact, male inmates at one DOCR
institution have no access to vocational programs that are offered at another DOCR
institution. We agree with the Ninth Circuit that, in the absence of discriminatory
residential assignment, a denial of participation in an educational class solely because
women do not reside at the prison offering that class does not amount to unequal
treatment on the basis of their sex but on the basis of their location. Jeldness, 30 F.3d
at 1229.

       There are vocational opportunities available to the Female Inmates at the
Dakota Women's CRC, though they vary from those offered in the all-male
institutions. The welding program does not offer college credit, but there is an
opportunity for certification in their welding class, and there is no evidence that the
male inmates are earning college credit for welding in another institution. The Female
Inmates also complain that the record does not show any female participation in either
the welding or computer classes from March 2004 through July 2006, but the
requirements for participation are no different than for the male inmates, and the
individual female inmate's choice of whether to participate in a particular, available
vocational course does not demonstrate unequal programming on the basis of sex.
Finally, the Female Inmates' assertion that the male inmates have more work
opportunities in which to gain vocational skills does not fall within the scope of Title
IX.

                                          III.

      For the reasons stated, we affirm the district court's grant of summary judgment.
We also grant the Appellants' request for judicial notice, and we have taken judicial
notice of the Policies and Procedures Manual of the North Dakota Department of
Corrections and Rehabilitation, Prison Division, attached to the request.
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