Plaintiffs-appellants appeal the post-trial dismissal of their class action civil rights challenge to various policies and procedures of defendant-appellee, the Alabama Department of Corrections ("DOC"). The appellants raise four issues involving the DOC's policy of uniformly segregating from the general prison population those prisoners who test positive for exposure to Human Immunodeficiency Virus ("HIV"), the virus commonly believed to be the cause of Acquired Immune Deficiency Syndrome ("AIDS").

For the following reasons, we AFFIRM the district court's conclusions as to appellants' eighth amendment claim of "deliberately indifferent" medical care by the DOC, as well as to the alleged violation by the DOC of appellants' fourteenth amendment privacy rights. We believe, however, that more complete findings of fact and conclusions of law are necessary for a proper resolution of appellants' Rehabilitation Act and access to courts claims. We therefore VACATE and REMAND those issues to the district court for further proceedings consistent with this opinion.FACTUAL AND PROCEDURAL BACKGROUND.

This case involves a range of difficult AIDS-related issues that confront all correctional officials, administrators, policymakers and inmates as they attempt to grapple with the problems engendered by the presence of HIV infection in our nation's prisons and jails.1

The genesis of the litigation underlying this appeal was the Alabama Legislature's passage in 1987 of a statute that provides, among other things, that all persons sentenced to confinement in an Alabama state correctional facility must be tested for various sexually transmitted diseases designated by the state board of health.2 Shortly thereafter, defendant-appellee DOC instituted a procedure for implementing this statute. Consequently, all inmates entering an Alabama state correctional facility are tested for sexually transmitted diseases at the time of their admission to the facility in question, and are tested again within thirty days of their release from the prison system.

One of the sexually transmitted diseases for which the DOC is required to test is HIV, virtually certain to be the causative agent of AIDS. The DOC initially administers to each prisoner an enzyme-linked immunosorbant assay ("ELISA"), a standard screening test designed to detect the presence of HIV antibodies. If an inmate exhibits a negative ELISA, and if other tests for sexually transmitted diseases prove negative as well, then the inmate is immediately released into the general prison population.

If, however, an inmate exhibits a positive ELISA, he or she is then administered a second ELISA to again test for the presence of the HIV antibody. If the second ELISA is also positive, the inmate is administered a third, confirmatory test known as the "Western Blot"; like the ELISA, this test is also aimed at detecting the presence of the HIV antibody.3

If a particular inmate tests positive for the separate ELISA tests and the confirmatory Western Blot test, the inmate is assigned to one of two segregated HIV wards established by the DOC. Male seropositive4 inmates are assigned to Dormitory 7 at the Limestone Correctional Facility ("Limestone") in Capshaw, Alabama.5 Female seropositive inmates are housed in a separate HIV unit at Julia Tutwiler Prison for Women ("Tutwiler") in Wetumpka, Alabama.

On November 17, 1987, Carmen Harris, an inmate at Tutwiler, filed a complaint challenging the DOC's actions in testing her for HIV antibodies, and in segregating her in a separate unit when her test results were reported as positive. On March 4, 1988, Ms. Harris and other prisoners filed a motion for class certification. Thereafter, inmates Stewart Hughey and Adam Robinson, two non-HIV general population inmates incarcerated at Limestone, filed a motion to intervene as defendants under Fed.R.Civ.P. 24. The trial court subsequently consolidated the case with a number of similar actions pending in various federal courts in Alabama requesting similar injunctive relief, and certified two classes: the plaintiff class, consisting of all inmates or future inmates of the DOC, except those inmates who had indicated an intention to intervene on behalf of the defendants; another class consisting of intervenor-inmates opposing the relief sought by the plaintiffs.

As the trial court observed, plaintiffs' suit essentially challenged the mandatory testing of all present or future Alabama state prisoners for HIV antibodies, as well as the policy of forced segregation and other practices associated with the Alabama system's care for and treatment of seropositive inmates.6 Plaintiffs claimed that such practices violated their rights guaranteed under the first, fourth, eighth, and fourteenth amendments to the United States Constitution, as well as section 504 of the Rehabilitation Act of 1973 (codified as amended at 29 U.S.C. § 701 (1988)).

The first phase of the case was tried from March 27 to March 30, 1989, in Decatur, Alabama.7 The second phase of the trial took place from June 12 to June 26, 1989, in Montgomery, Alabama. On January 8, 1990, the district court issued an opinion rejecting the claims of the plaintiff class. In denying injunctive relief, the court concluded:

CONCLUSION. This Court is of the opinion that the testing program does not amount to an unreasonable search and seizure or an invasion of a constitutionally protected privacy; that Plaintiffs have shown no credible evidence of failure to provide adequate care for serious medical, dental and mental health needs amounting to cruel and unusual punishment in violation of the Eighth Amendment; that the totality of other conditions to which seropositive prisoners are subjected does not inflict cruel and unusual punishment; that the submission of Defendant inmates to close contact with known AIDS carriers could well be considered as invasive of constitutional rights of the Defendant prisoners; that the differential treatment of seropositive prisoners does not violate equal protection of the laws in violation of the Fourteenth Amendment; that the segregation of such prisoners classified as shown by the evidence does not offend constitutional rights even when done without a hearing; that the public disclosure of positive tests is not a violation of [the] right of privacy of the positive inmates; that the recent policy with respect to library hours does not constitute a denial of meaningful access to prison legal materials nor does it deny them their right of access to courts in violation of the First or Fourteenth Amendment; and that conditions and practices to which seropositive prisoners are subjected does not constitute a discrimination against them as handicapped individuals in violation of § 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 701, et seq., because the preponderance of the evidence does not show them to have been otherwise qualified for the privileges claimed by them.

Harris v. Thigpen, 727 F. Supp. 1564, 1583 (M.D.Ala.1990).

On appeal, plaintiffs-appellants challenge the district court's factual findings and legal conclusions on four grounds: 1) whether the Alabama DOC, in violation of the eighth amendment, is deliberately indifferent to seropositive inmates' serious medical and psychiatric needs; 2) whether the involuntary disclosure of prisoners' HIV status violates their fourteenth amendment right to privacy; 3) whether the blanket exclusion of HIV-positive inmates from general prison population housing, educational, employment, community placement, and other programs violates section 504 of the Rehabilitation Act; 4) whether the DOC has violated seropositive inmates' constitutionally guaranteed right of access to courts. In addition, the DOC has cross-appealed the trial court's exclusion in limine of certain survey evidence that appellees had planned to introduce at trial, known as the "Ingram Study."

More specific factual material relating to each of appellants' claims of error is presented in the course of the Discussion below. Preliminarily, however, we frame our examination of the factual and legal issues with some very rudimentary background on AIDS and HIV infection. Such background is necessary to a meaningful review of the constitutional and statutory violations that appellants allege are present in the Alabama correctional system's attempts to treat and control the spread of the dread disease.

Epidemiology, Transmission, and Treatment of AIDS and HIV Infection.

AIDS is a devastating, communicable, fatal disease that attacks and destroys the body's immune system. It renders individuals "susceptible to a range of 'opportunistic' infections, malignancies, and other diseases which would not generally be life-threatening to persons with normally functioning immune systems. AIDS also directly causes dementia and other disorders of the central nervous system." Correctional Facilities, supra note 3, at 3. The term "AIDS," however, is considered obsolete in the sense that it describes only a later, end-stage of an epidemic8 disease more appropriately labeled "HIV infection." Update 1988, supra note 1, at 4.9 Scientists now conceptualize HIV infection generally as a continuum of disease ranging from asymptomatic infection to end-stage AIDS. Id. at 5.10 It is thought that virtually everyone infected with HIV will progress at some point11 to active disease; further, the prognosis for advanced stage HIV-infected patients is very poor. See id. Although periods of survival vary considerably, no one has ever recovered from the disease, and there is as yet no effective vaccine or cure. Correctional Facilities, supra note 3, at 3.

AIDS does not appear to be an air-borne disease. While it is not without question, the modes of transmission of HIV infection seem to be relatively clear and well-documented, and have been so since quite early in the HIV epidemic. Id. at 8. Epidemiologic evidence continues to indicate that the virus is transmitted in three ways: 1) through sexual intercourse12; 2) through blood-to-blood (or blood-to-mucous membrane) exposure13; and 3) through perinatal events.14 In a small percentage of cases, there is no explanation for how the disease is transmitted. However, despite common misapprehensions, virtually no evidence exists that HIV is spread through casual (even intimate) non-sexual contact; animals; blood donation; food; inanimate objects, e.g. toilet seats, drinking fountains or eating utensils; insects; skin; vaccines; or water. Casual Contact, supra note 10, at 4-7; see 1989 Update, supra note 10, at 5; Update 1988, supra note 1, at 12; Correctional Facilities, supra note 3, at 15-17; see also Lifson, Do Alternate Modes for Transmission of Human Immunodeficiency Virus Exist?: A Review, J.A.M.A., 259:1353 (Mar. 4, 1988).

Although there have been significant gains in understanding the structure and behavior of HIV, the goal of developing an effective AIDS vaccine available for widespread human use is perhaps a decade away.15 Further, as mentioned, there is as yet no cure for HIV infection. Progress has been made, however, in developing therapeutic drugs aimed at preventing or controlling diseases associated with HIV infection. Of these, the only anti-HIV drug that has been granted full Federal Drug Administration ("FDA") approval is AZT (also known as zidovudine, azidothymidine, and Retrovir), which was approved in March, 1987. AZT has been shown to be fairly effective in treating patients with advanced stages of HIV infection; FDA approval is limited to seriously symptomatic patients. 1989 Update, supra note 10, at 3.

DISCUSSION.

Medical Care.

Appellants first contend that the Alabama DOC is deliberately indifferent to the serious medical needs of seropositive inmates incarcerated at Limestone and Tutwiler. In considering this claim, the district court found "that the preponderance of the evidence shows no violation of any prisoner's rights to medical or psychological or psychiatric care and no deliberate indifference to any serious medical or psychological need." Harris, 727 F. Supp. at 1576 (footnote omitted). We agree.16

The Supreme Court has recognized that correctional inmates "must rely on prison authorities to treat [their] medical needs; if the authorities fail to do so, those needs will not be met." Estelle v. Gamble, 429 U.S. 97, 103, 97 S. Ct. 285, 290, 50 L. Ed. 2d 251 (1976). Federal and state governments therefore have a constitutional obligation to provide minimally adequate medical care to those whom they are punishing by incarceration. See id. at 104, 97 S.Ct. at 291; see also Wellman v. Faulkner, 715 F.2d 269, 271 (7th Cir.1983) ("When a state imposes imprisonment as a punishment for crime, it accepts the obligation to provide persons in its custody with a medical care system that meets minimal standards of adequacy."), cert. denied, 468 U.S. 1217, 104 S. Ct. 3587, 82 L. Ed. 2d 885 (1984). Prison personnel may not subject inmates to "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle, 429 U.S. at 106, 97 S.Ct. at 292; Mandel v. Doe, 888 F.2d 783, 787 (11th Cir.1989). The Supreme Court has declared that such "deliberate indifference" by a correctional system to the serious medical needs of its prisoners constitutes the kind of " 'unnecessary and wanton infliction of pain' "17 that is proscribed by the eighth amendment.18 Estelle, 429 U.S. at 104, 97 S. Ct. at 291 (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S. Ct. 2909, 2925, 49 L. Ed. 2d 859 (1976)). Further, this court has acknowledged that the deliberate indifference standard also applies to inmates' psychiatric or mental health needs. Greason v. Kemp, 891 F.2d 829, 834 (11th Cir.1990); Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir.1989) (citing Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir.1986)). It is thus clear that prisoners are guaranteed the right under the eighth amendment to be free from deliberate indifference by correctional institutions to their serious physical or psychological needs.19

In articulating the scope of inmates' right to be free from deliberate indifference, however, the Supreme Court has also emphasized that not "every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment." Estelle, 429 U.S. at 105, 97 S.Ct. at 291; Mandel, 888 F.2d at 787. Medical treatment violates the eighth amendment only when it is "so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness." Rogers, 792 F.2d at 1058 (citation omitted). Mere incidents of negligence or malpractice do not rise to the level of constitutional violations. See Estelle, 429 U.S. at 106, 97 S.Ct. at 292 ("Medical malpractice does not become a constitutional violation merely because the victim is a prisoner."); Mandel, 888 F.2d at 787-88 (mere negligence or medical malpractice "not sufficient" to constitute deliberate indifference); Waldrop, 871 F.2d at 1033 (mere medical malpractice does not constitute deliberate indifference). Nor does a simple difference in medical opinion between the prison's medical staff and the inmate as to the latter's diagnosis or course of treatment support a claim of cruel and unusual punishment. See Waldrop, 871 F.2d at 1033 (citing Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir.1977)).

In institutional level challenges to prison health care such as this one, systemic deficiencies can provide the basis for a finding of deliberate indifference. Rogers, 792 F.2d at 1058. Deliberate indifference to inmates' health needs may be shown, for example, by proving that there are "such systemic and gross deficiencies in staffing, facilities, equipment, or procedures that the inmate population is effectively denied access to adequate medical care." Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S. Ct. 1759, 68 L. Ed. 2d 239 (1981). Moreover, although incidents of malpractice standing alone will not support a claim of eighth amendment violation, "[a] series of incidents closely related in time may disclose a pattern of conduct amounting to deliberate indifference." Rogers, 792 F.2d at 1058-59 (citing Bishop v. Stoneman, 508 F.2d 1224 (2d Cir.1974)). "Repeated examples of delayed or denied medical care may indicate a deliberate indifference by prison authorities to the suffering that results." Id. at 1059 (citing Todaro v. Ward, 565 F.2d 48, 52 (2d Cir.1977)); see also Ramos, 639 F.2d at 575 ("In class actions challenging the entire system of health care, deliberate indifference to inmates' health needs may be shown by proving repeated examples of negligent acts which disclose a pattern of conduct by the prison medical staff.").

In the instant case, plaintiffs sought to establish the Alabama DOC's alleged "deliberate indifference" to prisoners' serious medical needs in a number of ways.

First, plaintiffs had medical experts testify regarding their review of case histories and medical records of the treatment received by various prisoners in the Alabama correctional system afflicted with active, advanced-stage HIV infection. These inmates were for the most part stricken with various opportunistic diseases and conditions that commonly attack patients whose immune systems have been ravaged by AIDS. Upon careful review of the testimony presented in the record regarding each case (some of which are summarized by the parties in their briefs), we believe that such evidence may or may not establish inadequate treatment by the DOC health care provider for some or all of the prisoners whose histories were considered. However, taken individually or together, the cases at most evidence isolated incidences of medical malpractice. We simply cannot agree with the plaintiffs that the treatment received by the inmates in question was so inadequate as to manifest the kind of "conscious or callous indifference" necessary to raise the DOC's perhaps negligent care of certain AIDS-infected prisoners to violations of a constitutional magnitude.

We mention the case of inmate C.D. by way of example. Plaintiff's expert, Dr. Robert Cohen, testified concerning C.D.'s medical condition. Dr. Cohen stated that on October 12, 1988, C.D. began complaining of severe pain in his ears, wanted to see a doctor, and after having seizures was transferred to Cooper-Green Hospital in Birmingham, Alabama. While still at Limestone, C.D. had been administered an anti-seizure medication, as well as separate medications to treat fungal infection, bacterial infection, and certain viral infections. At Cooper-Green Hospital, after receiving a CAT-scan, C.D. was diagnosed as having probable toxoplasmosis, a common infection in persons with HIV disease that usually involves the development of a brain abscess. He was then prescribed sulfadiazene and pyrimethamine, antibiotics particularly useful against the toxoplasmosis organism, as well as anti-seizure medication and additional drugs to treat thrush fungal infection of the mouth.

Dr. Cohen testified that when he saw C.D. at Limestone three or four days after the inmate's hospital visit, C.D. had not yet received sulfadiazene or pyrimethamine, two of the drugs prescribed for and administered to him earlier at Cooper-Green. Dr. Cohen conceded, however, that the nursing staff was aware of C.D.'s need, was attempting to acquire the medications, and that C.D. did eventually receive them. C.D. developed a skin rash in reaction to the sulfadiazine, and this medication was discontinued--a decision Dr. Cohen "had no disagreement with," although he felt that another drug should have been substituted for treatment of C.D.'s toxoplasmosis brain abscess. (R15-[trans. vol. 5]-26). Presumably because of the treatment that he had received, C.D. survived this episode of toxoplasmosis.

Dr. George Sutton, Medical Director for CHC, testified that he had been actively involved in the treatment of C.D. since the time that CHC had begun running the DOC's health care facilities in November, 1988. C.D. was hospitalized in late 1989 for what was presumed to be PCP, another serious infection common to advanced stage HIV victims. He was given the antibiotic pentamidine, which treatment was continued when C.D. was transferred from Cooper-Green back to CHC's care. C.D. apparently did very well clinically, except for severe skin loss due to his allergy to sulfa drugs. C.D. was administered AZT, and his T-4 blood cell count was periodically monitored. However, as a result of bone marrow suppression and dropping blood counts associated with the administration of AZT, CHC had to discontinue giving AZT to C.D.

In addition to AZT-related medical management problems with C.D., there were patient-compliance problems on the part of the inmate. For example, C.D. initially objected to weekly blood counts that were necessary to monitor his level of bone marrow suppression and blood count. Moreover, C.D. declined to take his AZT. Dr. Sutton testified that he "begged" C.D. to resume the blood counts and take the medication, emphasizing the importance of these measures. C.D. agreed, but three weeks later again refused AZT and the blood counts. Dr. Sutton made a special trip to Limestone, had the inmate brought to the medical facility, and after a long period of persuasion, convinced C.D. to come back to the medical unit to resume AZT treatment.

Even upon resumption of AZT, however, C.D.'s response was not favorable, and his condition progressively worsened. Four days before trial, CHC performed a CAT brain scan and a lumbar puncture on C.D. It was determined that C.D. had another brain abscess. Dr. Sutton, consulting with the primary care physician at Limestone, had C.D. transferred to the internal medicine service at Cooper-Green hospital. C.D. died on June 21, 1989.

Plaintiffs presented much additional testimony from Dr. Cohen and another expert, Dr. Frank Rundle, which criticized C.D.'s course of treatment. The testimony second-guessed at many points the decisions of the doctors entrusted with the care of C.D., and the experts cited numerous incidents of allegedly negligent or inadequate treatment of C.D.'s various opportunistic infections and conditions. Such criticism may or may not be justified. But again, whether C.D.'s treatment might have constituted malpractice is not the focus of our inquiry here. Measured against constitutional minima, the record regarding C.D. seems to evidence at least tolerable and responsive medical treatment--transfers to better, outside hospital facilities on several occasions; CAT-scans; the administration of a wide variety of antibiotics and medications, including AZT; blood monitoring; blood chemistry workups; active monitoring and treatment for diabetes. In short, whatever C.D.'s course of treatment indicates, it is not deliberate indifference. See Bass v. Sullivan, 550 F.2d 229, 232 (5th Cir.),20 cert. denied, 434 U.S. 864, 98 S. Ct. 195, 54 L. Ed. 2d 138 (1977); see also Waldrop, 871 F.2d at 1035 (observing that "when a prison inmate has received medical care, courts hesitate to find an Eighth Amendment violation"); Hamm v. DeKalb County, 774 F.2d 1567, 1575 (11th Cir.1985) (evidence showed that plaintiff received "significant" medical care while in jail, and although plaintiff may have desired different modes of treatment, care provided by jail did not constitute deliberate indifference), cert. denied, 475 U.S. 1096, 106 S. Ct. 1492, 89 L. Ed. 2d 894 (1986); Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir.1976) ("Where a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims which sound in state tort law.").

Plaintiffs-appellants further allege that the DOC has been deliberately indifferent to inmates' serious medical needs because physician staffing is numerically inadequate for the HIV units. Appellants also argue that the physicians assigned to Limestone and Tutwiler were "simply incompetent" to treat AIDS and other serious HIV diseases, based upon their lack of knowledge of diagnosis, prophylaxis, monitoring and treatment of the disease.

After reviewing the testimony in the record regarding staffing, particularly that of Dr. Sutton, we find that there is enough evidence to support the district court's conclusion of no deliberate indifference; we agree with the court that the units were not so understaffed as to manifest systemic deliberate indifference to the seropositive inmates' needs.21 With regard to the expertise of correctional system medical staff, the district court reasoned:

Here we have a new disease (the first case in the Alabama penal system was seen in 1987) for which treatments were largely unknown, untried and unapproved until recently. Evidence of early lack of treatment of those early AIDS patients in the penal system is not seriously inconsistent with what was done in the best of hospitals when treatments were unknown and fear of the disease was rampant. Obviously, specialists in the treatment of AIDS were until recently very difficult to find, and doctors who became experienced in that unknown and fear-controlled field were driven, either by an extreme devotion to duty, or by a necessity to practice their chosen profession when there was little room for them in more desirable and rewarding fields of medicine. It is reasonable to believe that the better doctors more often than not hoped to evade expertise in treating AIDS patients and that, even now, it is difficult in a poor State such as Alabama to obtain experts in treating AIDS and its opportunistic diseases who are willing to accept full-time employment in a penal institution. It is, therefore, understandable how and why the standards for treating AIDS patients in the Alabama penal institutions (where less than ten women and less than 150 men have been found to have been infected) are less stringent than those in such large States as New York and California where there are several thousand AIDS patients in penal institutions and experts in the disease may concentrate on their chosen field of medicine. The evidence of medical or dental neglect shown in this case by reputable evidence do[es] not amount to a "deliberate indifference to serious medical needs".

Harris, 727 F. Supp. at 1576-77. In considering the record on this point, we agree with appellants that the lack of knowledge of certain primary care physicians at Limestone and Tutwiler relating to some seemingly basic terminology about the diagnosis, prophylaxis, monitoring, and treatment of HIV infection is disturbing. And, although the district court's observations about the Alabama system above may very well be accurate, they would not serve to justify deliberate indifference to Alabama seropositive inmates' serious medical needs if such were the case. See Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir.1989) (observing that " 'access to medical staff is meaningless unless that staff is competent and can render competent care' " (citations omitted)). The record fully supports the trial court's conclusion that the DOC has not been "deliberately indifferent" to the seropositive prisoners' serious medical needs.22

We would also note here that in spite of our agreement with the district court's ultimate conclusion on this point, we are troubled by and reject any suggestion in the court's reasoning that a state's comparative wealth might affect an HIV-infected prisoner's right to constitutionally adequate medical care. We do not agree that "financial considerations must be considered in determining the reasonableness" of inmates' medical care to the extent that such a rationale could ever be used by so-called "poor states" to deny a prisoner the minimally adequate care to which he or she is entitled. See Harris, 727 F. Supp. at 1577-78. Minimally adequate care usually requires minimally competent physicians. It may also sometimes require access to expensive equipment, e.g. CAT scanners or dialysis machines, or the administration of expensive medicines. Once again, although we are reluctant to interfere in a state system's course of treatment of its inmates, we will not ignore the presence of an eighth amendment violation. Such a violation could well be present if the care received by the prisoners, when measured against general professional standards, rose to such a level of gross incompetence that it manifested deliberate indifference. See Waldrop, 871 F.2d at 1035; see also Rogers, 792 F.2d at 1058 (grossly incompetent medical care or choice of easier but less efficacious course of treatment can constitute deliberate indifference); Murrell v. Bennett, 615 F.2d 306, 310 n. 4 (5th Cir.1980) (treatment may violate eighth amendment if it involves "something more than a medical judgment call, an accident, or an inadvertent failure"). We are aware that systemic deficiencies in medical care may be related to a lack of funds allocated to prisons by the state legislature. Such a lack, however, will not excuse the failure of correctional systems to maintain a certain minimum level of medical service necessary to avoid the imposition of cruel and unusual punishment. See Wellman v. Faulkner, 715 F.2d at 274; see also Ancata v. Prison Health Servs. Inc., 769 F.2d 700, 705 (11th Cir.1985) (lack of funds for facilities cannot justify an unconstitutional lack of competent medical care and treatment for inmates); Newman v. Alabama, 559 F.2d 283, 286 (5th Cir.1977) ("It should not need repeating that compliance with constitutional standards may not be frustrated by legislative inaction or failure to provide necessary funds.") (citing Gates v. Collier, 501 F.2d 1291, 1319 (5th Cir.1974)), rev'd in part sub nom. Alabama v. Pugh 438 U.S. 781, 98 S. Ct. 3057, 57 L. Ed. 2d 1114, cert. denied, 438 U.S. 915, 98 S. Ct. 3144, 57 L. Ed. 2d 1160 (1978).

Finally, plaintiffs argue that the mental health care provided to prisoners in the HIV units at Limestone and Tutwiler was grossly inadequate in terms of staffing, as well as in its failure to include adequate AIDS education and counseling. As mentioned, this circuit has recognized that a failure of a correctional system to provide basic psychiatric and mental health care can constitute a claim of deliberate indifference to the serious medical needs of inmates. See Greason, 891 F.2d at 834; Rogers, 792 F.2d at 1058. "[A] trier of fact can conclude that one who provides grossly inadequate psychiatric care to a prison inmate is deliberately indifferent to the inmate's needs." Greason, 891 F.2d at 835 (citing Waldrop, 871 F.2d at 1033).

Nevertheless, we have once again considered carefully the record on this issue. In spite of the testimony offered by plaintiffs' medical experts critical of the amount and quality of psychiatric coverage offered to the general prison population, and particularly to the seropositive prisoners, we refuse to gainsay the district court's conclusion.

DOC psychologist23 Gina Hendricks-Ortiz testified that she was the psychologist responsible for the approximately three hundred inmates assigned to the HIV unit and other segregation units at Limestone. She apparently provided various types of counseling for the seropositive inmates, including grief counseling, crisis intervention counseling, counseling for depression and stress, and other appropriate counseling. She also conducted mental health and AIDS education workshops for the HIV-positive inmates, including group-type sessions in the HIV dormitories. Ms. Hendricks-Ortiz testified that she was able to provide counseling to all seropositive inmates who had requested it, although very few of the HIV-positive inmates had actually done so. In addition to her services, Ms. Hendricks-Ortiz testified that the Limestone facility was served by another full-time employee with her same job title ("Psychological Associate II"), two Ph.D. psychologists, and two psychiatrists (one newly hired).

Like the district court that considered this testimony, we are satisfied that the Alabama DOC has not responded with deliberate indifference to seropositive prisoners' psychological needs. In so concluding, we acknowledge the likelihood that Limestone, for example, is not ideally staffed and the quality of its mental health care perhaps is substandard. Plaintiffs' expert Dr. Frank Rundle testified during the following colloquy:

Q: Did you reach any overall conclusions about the quality of mental health services offered to the HIV prisoners at Limestone?

A: Yes, I have. I think it was ... is a poor quality. Not only because there is insufficient staff, but the staff that is available just isn't, I think, dealing with the special needs of that population. It is mostly a perfunctory kind of contact.

The psychiatrist, as far as I could tell, focused primarily upon the use of medication. The psychologist, I think, was doing mostly, again, routine workshops without much individual interchange with inmates.

Q: Were these special needs serious medical needs?

A: I think they were serious. Yes.

(R17-[trans. vol. 7]-131-32). Yet, even accepting the doctor's conclusions here does not mandate a legal conclusion that the mental health care provided to seropositive prisoners by the Alabama system is constitutionally inadequate--the limit of our inquiry on this point. Unfortunately, as with all medical care provided to prisoners, it is not constitutionally required that mental health care be "perfect, the best obtainable, or even very good." Brown v. Beck, 481 F. Supp. 723, 726 (S.D.Ga.1980).

Moreover, while the desirability and wisdom of providing AIDS education and counseling to seropositive prisoners, and indeed to the general prison population, is undeniable, we are frankly uncomfortable measuring with a constitutional yardstick the attempts of a correctional institution to achieve these ends. A correctional system's refusal to respond medically to specific psychiatric disorders and conditions that accompany the presence of HIV infection, such as AIDS-related dementia, could constitute grounds for alleging an eighth amendment violation. But much of the inadequacy in dealing with seropositive inmates' mental health needs alleged by appellants seems to be focused also on the DOC's deficient efforts to provide ongoing education and counseling to help HIV-positive inmates deal with issues of impending death, depression, despair, and stigmatization; that is, plaintiffs have also attacked as "cruel and unusual" the system's failure to provide the resources and preventive therapy necessary to retard the general psychological deterioration of inmates afflicted with a vicious, always fatal disease.

This is not a frivolous claim, nor is it an unsympathetic one. It does strike us, however, as more akin qualitatively to the types of systemic inadequacies that federal courts have been ill-suited and justifiably reluctant to entertain as evils of constitutional consequence. In Newman v. Alabama, 559 F.2d 283 (5th Cir.1977), for example, we specifically considered the issue of whether psychiatric deterioration brought on by conditions of indefinite, segregated confinement could constitute cruel and unusual treatment violative of the eighth amendment:

The mental, physical, and emotional status of individuals, whether in or out of custody, do deteriorate and there is no power on earth to prevent it.... We decline to enter this uncharted bog. If the State furnishes its prisoners with reasonably adequate food, clothing, shelter, sanitation, medical care, and personal safety, so as to avoid the imposition of cruel and unusual punishment, that ends its obligations under Amendment Eight. The Constitution does not require that prisoners, as individuals or as a group, be provided with any and every amenity which some person may think is needed to avoid mental, physical, and emotional deterioration.

Id. at 291. The instant case is distinguishable from Newman. The disease counseling and education measures that appellants want improved or implemented by the DOC are more than mere "amenities." Indeed, they are part of what appellants argue is "reasonably adequate" medical/psychiatric treatment for prisoners stricken with HIV disease. Nevertheless, helping a terminally sick prisoner "cope" psychologically with various aspects of a dread physical illness, while therapeutic, may be a more expansive view of mental health care than that contemplated by the eighth amendment.24 As the First Circuit opined in a case similar to Newman, "[s]uch a view, however civilized, would go measurably beyond what today would generally be deemed 'cruel and unusual.' " Jackson v. Meachum, 699 F.2d 578, 583 (1st Cir.1983). The record in this case demonstrates that the Alabama DOC has not been deliberately indifferent to HIV-infected prisoners' psychological needs, and has comported with constitutional minima. The district court did not err in making this conclusion.

In sum, although the eighth amendment guarantees the seropositive inmates' right to adequate medical or psychological care, we are not convinced that the Alabama DOC, with its shortcomings, has been "deliberately indifferent" to the HIV-afflicted prisoners' serious medical or psychiatric needs.

Right to Privacy.

Plaintiffs-appellants next charge that the DOC's policies of mandatory testing and segregation, as well as certain DOC disclosure practices, violate the seropositive prisoners' constitutional rights of privacy.

The core of appellant's privacy attack is devoted to the DOC's blanket policy of isolating from the general prison population those inmates who have tested positive for HIV. Appellants argue that the involuntary disclosure of inmates' seropositive status resulting from such segregation is unnecessary, gravely stigmatizing, and ultimately violative of constitutionally-guaranteed privacy rights. See Brief of Appellants-Cross Appellees at 35-41.25 After careful consideration of this claim, we disagree.

First, as a matter of general principle, the Supreme Court has "held that convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison." Bell v. Wolfish, 441 U.S. 520, 545, 99 S. Ct. 1861, 1877, 60 L. Ed. 2d 447 (1979). Prison walls do not separate inmates from their constitutional rights. Turner v. Safley, 482 U.S. 78, 84, 107 S. Ct. 2254, 2259, 96 L. Ed. 2d 64 (1987). Hence, when prison regulations or practices offend fundamental constitutional guarantees, "federal courts will discharge their duty to protect constitutional rights." Procunier v. Martinez, 416 U.S. 396, 405-06, 94 S. Ct. 1800, 1807-08, 40 L. Ed. 2d 224 (1974), modified, Thornburgh v. Abbott, 490 U.S. 401, 109 S. Ct. 1874, 104 L. Ed. 2d 459 (1989); see also Sheley v. Dugger, 833 F.2d 1420, 1423 (11th Cir.1987) (traditional deference to prison authorities does not mean "that courts must abstain from reviewing the constitutional claims of prisoners"). It is also axiomatic, however, that "[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Price v. Johnston, 334 U.S. 266, 285, 68 S. Ct. 1049, 1060, 92 L. Ed. 1356 (1948). A prisoner's constitutional "rights must be exercised with due regard for the 'inordinately difficult undertaking' that is modern prison administration," Thornburgh v. Abbott, 490 U.S. 401, 407, 109 S. Ct. 1874, 1878, 104 L. Ed. 2d 459 (1989) (quoting Turner, 482 U.S. at 85, 107 S.Ct. at 2259), and a prisoner retains only those rights that are "not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrective system." Pell v. Procunier, 417 U.S. 817, 822, 94 S. Ct. 2800, 2804, 41 L. Ed. 2d 495 (1974).

With regard to the right asserted on this appeal, it is clear that prison inmates, in spite of their incarceration, "retain certain fundamental rights of privacy." Houchins v. KQED, Inc., 438 U.S. 1, 5 n. 2, 98 S. Ct. 2588, 2592 n. 2, 57 L. Ed. 2d 553 (1978); see Torres v. Wisconsin Dep't of Health & Social Servs., 838 F.2d 944, 951 (7th Cir.1988) (observing that "inmates do retain some constitutional right to privacy"), cert. denied, 489 U.S. 1017, 109 S. Ct. 1133, 103 L. Ed. 2d 194 (1989). The precise nature and scope of the privacy right at issue in this case is rather ill-defined.26 We nevertheless believe and assume arguendo that seropositive prisoners enjoy some significant constitutionally-protected privacy interest in preventing the non-consensual disclosure of their HIV-positive diagnoses to other inmates, as well as to their families and other outside visitors to the facilities in question. As one district court has elaborated:

Each [seropositive prisoner] is fully aware that he is infected with a disease which at the present time has inevitably proven fatal. In the court's view there are few matters of a more personal nature, and there are few decisions over which a person could have a greater desire to exercise control, than the manner in which he reveals that diagnosis to others. An individual's decision to tell family members as well as the general community that he is suffering from an incurable disease, particularly one such as AIDS [or HIV], is clearly an emotional and sensitive one fraught with serious implications for that individual. Certain family members may abandon the [seropositive] victim while others may be emotionally unprepared to handle such news. Within the confines of the prison the infected prisoner is likely to suffer from harassment and psychological pressures. Beyond the prison's walls the person suffering from AIDS [or HIV] is often subject to discrimination.

... It may be even more essential for a prisoner than a person who enjoys the freedoms associated with life outside of prison, and the personal strength derived from those freedoms, that the prisoner be accorded the ability to protect and shape his identity to as great a degree as possible. There is little question but that the prisoner identified as having AIDS will be severely compromised in his ability to maintain whatever dignity and individuality a prison environment allows.

... The threat to family life and the "emotional enrichment [gained] from close ties with others" ... is quite real when an AIDS victim's diagnosis is revealed. Ignorance and prejudice concerning the disease are widespread; the decision of whether, or how, or when to risk familial and communal opprobrium and even ostracism is one of fundamental importance.

Doe v. Coughlin, 697 F. Supp. 1234, 1237-38 (N.D.N.Y.1988) (citations and footnote omitted).27

It is undisputed that the involuntary placement of seropositive prisoners into separate HIV dormitories necessarily involves a measure of non-consensual disclosure of an inmate's seropositive status.28 Once again, however, prisoners' constitutional rights are necessarily subject to substantial restrictions and limitations in order for correctional officials to achieve legitimate correctional goals and maintain institutional security. O'Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S. Ct. 2400, 2404, 96 L. Ed. 2d 282 (1987); see Wolfish, 441 U.S. at 547, 99 S.Ct. at 1878. Indeed, the Supreme Court has upheld various restrictions on prisoners' rights on the basis of this principle. See, e.g., Turner, 482 U.S. at 91-93, 107 S.Ct. at 2262-2264 (first amendment rights permissibly limited by bar on inmate-to-inmate correspondence, where record clearly demonstrated that the regulation was reasonably related to legitimate security interests); Block v. Rutherford, 468 U.S. 576, 586-89, 104 S. Ct. 3227, 3232-34, 82 L. Ed. 2d 438 (1984) (ban on contact visits upheld in deference to administrators' concerns that such visits would jeopardize the security of the facility, and regulation was "reasonably related" to such concerns); Wolfish, 441 U.S. at 556-57, 99 S.Ct. at 1883-84 (room-search rule upheld, since any expectation of privacy retained by pre-trial detainee in his cell under fourth amendment is necessarily diminished in scope in deference to the realities of institutional confinement); Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 132-33, 97 S. Ct. 2532, 2541-42, 53 L. Ed. 2d 629 (1977) (security concerns regarding prisoners' efforts to form unions justified limitations on various first amendment rights); Pell, 417 U.S. at 827-28, 94 S.Ct. at 2806-07 (first amendment rights permissibly limited by visitation restriction designed to encourage rehabilitation without compromising institutional security concerns). Further, in general, privacy rights are among those most obviously curtailed by the fact of a prisoner's confinement in a correctional institution. See Wolfish, 441 U.S. at 537, 99 S.Ct. at 1873 (noting that "[l]oss of freedom of choice and privacy are inherent incidents of confinement in" jails, prisons or custodial centers); United States v. Blake, 888 F.2d 795, 800 n. 11 (11th Cir.1989) (acknowledging that in prison settings, privacy rights are viewed as being on "a lesser scale").

In this case, we must balance the limited personal privacy interests (assuming such exist) of the seropositive inmates, with those legitimate interests that underlie the DOC's decision to segregate such inmates from the general prison population. In so doing, we are also obliged to consider the interests and concerns of the defendant-intervenors in this case.29

In Turner v. Safley, the Supreme Court formulated a test sensitive to both the need to protect inmates' constitutional rights and the policy of judicial restraint regarding prisoner complaints. See Turner, 482 U.S. at 85, 107 S.Ct. at 2259.30 The Court determined that the standard of review for evaluating prisoners' constitutional claims should be one of reasonableness: when a prison regulation or policy "impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Id. at 89, 107 S.Ct. at 2261.31

In articulating its test, the Court canvassed its earlier "prisoners' rights" cases, and identified several "factors that are relevant to, and that serve to channel, the reasonableness inquiry." Thornburgh v. Abbott, 490 U.S. at 414, 109 S.Ct. at 1882. These are: (a) whether there is a "valid, rational connection" between the regulation and a legitimate government interest put forward to justify it; (b) whether there are alternative means of exercising the asserted constitutional right that remain open to the inmates; (c) whether and the extent to which accommodation of the asserted right will have an impact on prison staff, inmates and the allocation of prison resources generally; and (d) whether the regulation represents an "exaggerated response" to prison concerns. See Turner, 482 U.S. at 89-91, 107 S.Ct. at 2261-2263. We consider these factors in more detail below.

1. Rational relationship to legitimate governmental objective

First, "there must be a 'valid, rational connection' between the prison regulation and the legitimate governmental interest put forward to justify it." Turner, 482 U.S. at 89, 107 S.Ct. at 2262 (quoting Block v. Rutherford, 468 U.S. 576, 586, 104 S. Ct. 3227, 3232, 82 L. Ed. 2d 438 (1984)). At trial, the DOC justified its segregation policy on the asserted goals of reducing the transmission of HIV infection and of reducing the level of violence within the Alabama prison system. The legitimacy of these purposes seems beyond dispute; rather, the issue is whether Alabama's blanket HIV segregation policy is rationally related to such purposes. Appellants contend that "there is no rational relationship between violating the privacy of prisoners who test positive for HIV [by separating them from the general prison population] and any legitimate penological purpose." Brief of Appellants-Cross-Appellees at 37. We disagree.

The logical connection between the stated goals of reducing HIV transmission and promoting internal prison security, and the DOC's policy of uniformly segregating seropositive prisoners, might be questioned. Indeed, it has been the crux of a massive, intense correctional policy debate surrounding the proper methods of testing for and preventing the transmission of HIV infection within prison systems. In April, 1988, the National Institute of Justice observed:

[T]here is serious controversy about the effectiveness of screening in reducing transmission of HIV. But without segregation or separation of seropositives, screening can have little or no effect on transmission. Therefore, correctional systems should probably think in terms of deciding between two basic constellations of policies:

1. mass screening, segregation of seropositives who pose behavioral risks, notification to correctional staff, and education on AIDS; or

2. focusing prevention efforts on mandatory AIDS education and intensive efforts to identify and control predatory inmates and those engaging in high-risk behavior (without mass HIV screening), together with strict confidentiality of medical information.

Expected seropositive rates and the availability of various types of housing (e.g., single- v. double-cells) will play an important role in these interrelated policy decisions. Ultimately, however, these large policy decisions must be grounded in careful consideration of the advantages and disadvantages of the major options.

Correctional Facilities, supra note 3, at 37-38. The DOC's correctional approach to handling the problem of HIV transmission obviously has been structured according to the first "constellation" of policies mentioned above.32 Appellants, on the other hand, have offered evidence roundly critical of such a penological approach, urging that the needs of seropositive prisoners are best served by a correctional policy developed along the lines of the second model, i.e., by integrating HIV-positive prisoners into the general prison population, and by implementing an "appropriate AIDS education and counseling program, along with appropriate security measures and classification of prisoners." Brief of Appellants-Cross-Appellees at 38.

We express no opinion on either side of this debate. One can argue, as appellants do, that the current trend in correctional thinking has moved increasingly away from blanket segregation policies and towards policies of "mainstreaming"--that is, maintaining all categories of HIV-infected prisoners in the general prison population. 1989 Update, supra note 10, at 53. After reviewing the record, however, it also seems clear to us that debate on this issue is far from settled, and undoubtedly will continue as the rapidly expanding corpus of information about HIV engenders new strategies for dealing with the disease in the difficult prison setting. Even if Alabama's approach in this case is now a minority position among state correctional systems, we simply are unable to say at this point that the DOC's use of combined mass screening and segregation is so remotely connected to the legitimate goals of reducing HIV transmission and violence within the state's penal system "as to render the policy arbitrary or irrational." Turner, 482 U.S. at 89-90, 107 S.Ct. at 2261-2262.

2. Availability of alternative means to exercise right

The second factor identified in Turner as relevant to the determination of a prison restriction's reasonableness is "whether there are alternative means of exercising the right that remain open to prison inmates." Turner, 482 U.S. at 90, 107 S.Ct. at 2262. If so, courts in gauging the validity of a regulation should be particularly conscious of the " 'measure of judicial deference owed to corrections officials.' " Id. (quoting Pell v. Procunier, 417 U.S. 817, 827, 94 S. Ct. 2800, 2806, 41 L. Ed. 2d 495 (1974)). In considering this factor, the right at issue must be viewed "sensibly and expansively." Thornburgh, 490 U.S. at 417, 109 S.Ct. at 1883. Thus, the Court in Turner did not require that prisoners be provided with alternative means of communicating with inmates at other institutions; the Court instead held it sufficient that "other means of expression (not necessarily other means of communicating with inmates in other prisons) remained available." Id. at 417-18, 109 S.Ct. at 1883-84.

Applying this second Turner factor to the facts of the instant case, however, is problematic because the limited right that appellants claim is being violated by the DOC does not lend itself to an "expansive" reading. Unlike the first amendment activity at issue in Turner, any privacy right claimed here by the seropositive inmates in their medical status is a "passive" one. It is difficult to talk of "alternative means" of protecting such a right, since, unlike the first amendment context, there is no range or continuum of other affirmative activity against which to measure the encroachment of a given prison restriction. Just as one cannot be "a little bit pregnant," disclosure of one's HIV status either occurs or it does not. Thus, in our case, this particular factor of the Turner calculus does little to channel our inquiry into the reasonableness of the segregation policy as a restriction on seropositive inmates' right to privacy in disclosing their medical diagnoses. Because of the "all or nothing" nature of the right at issue, the lack of alternative means to honor it merely reaffirms a fact upon which the parties have apparently already agreed, i.e., that involuntary disclosure of prisoners' HIV status is an inherent byproduct of Alabama's "identify and isolate" policy.

3. "Ripple effects" of accommodating the right

The third factor to be addressed under the Turner analysis is "the impact that accommodation of the asserted constitutional right will have on others (guards and inmates) in the prison." Thornburgh, 490 U.S. at 418, 109 S.Ct. at 1884. "When accommodation of an asserted right will have a significant 'ripple effect' on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of corrections officials." Turner, 482 U.S. at 90, 107 S.Ct. at 2262 (citation omitted).

Evidence at trial suggested that the consequences or "ripple effects" of integrating seropositive prisoners into the general prison population could be severe indeed for prisoners and prison staff. First, as observed by the district court, the presence of an intervening defendant class of inmates in this case who oppose the release of HIV-positive prisoners into the general prison population is an indicator of significant opposition that could likely degenerate into active violence within the Alabama system should reintegration occur. Although disputed by the appellants, appellees' assertion that such increased violence would in fact be a consequence of reintegration was supported by testimony of correctional officials, inmates, and appellees' expert witness, Dr. Nadim Koury.33 In addition, there was testimony that integration of HIV-positives into the general inmate population would also generate significant negative effects on prison guards--that some guards, not knowing who was seropositive, would end up resorting to physical force more quickly (R22-[trans. vol. 12(b) ]-34-35) (testimony of Warden White),34 while others would be hesitant to break up fights that involved blood being "thrown around and splattered." (R23-[trans. vol. 13]-111-12) (testimony of DOC official Thomas Allen).

Both of these effects clearly implicate the DOC's self evident interest in preserving the order and security of Alabama prisons, particularly since the potential "ripple effect" of seropositive inmates' attempt to preserve their privacy rights through interaction with the general prison population affects the inmates and staff at more than one institution. See Turner, 482 U.S. at 92, 107 S.Ct. at 2263. Where, as here, integrating seropositive prisoners poses a realistic threat of violence in the prisons, we think that the choice made by Alabama correctional officials--"which is, after all, a judgment 'peculiarly within [their] province and professional expertise,' Pell v. Procunier, 417 U.S., at 827 [94 S.Ct. at 2806]--should not lightly be set aside." Turner, 482 U.S. at 92-93, 107 S.Ct. at 2263-2264.

4. "Exaggerated response"

According to the final factor cited in Turner, courts may consider the absence of ready alternatives as evidence of the reasonableness of a prison regulation; correspondingly, the existence of "obvious, easy alternatives" may be considered as evidence that a prison restriction is not reasonable, but merely "an 'exaggerated response' to prison concerns." Id. at 90, 107 S. Ct. at 2262. Thus, "if an inmate claimant can point to an alternative that fully accommodates the prisoner's rights at de minimis cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard." Id. at 91, 107 S.Ct. at 2262.

Despite appellants' claim in this case, we can divine no simple alternatives to the mandatory segregation policy adopted by the DOC. To be sure, alternatives exist. As suggested earlier, the primary alternative urged by appellants is that of "mainstreaming" HIV-positive prisoners into the general inmate population, combined with counseling and thorough education about the disease and its transmission. As evidenced by the testimony of appellants' experts, variations of this latter correctional approach apparently have gained increasing support in recent years. Nevertheless, if the trend away from mandatory testing and segregation implies that it is perhaps a more extreme approach to the problem of managing HIV in prisons, we are not convinced that Alabama's response can yet be dismissed as an unreasonable, "exaggerated" one. The Supreme Court has emphasized that the consideration of other alternatives to assess a current prison policy or restriction's reasonableness is not a least restrictive means test: "prison officials do not have to set up and then shoot down every conceivable alternative method of accommodating the claimant's constitutional complaint." Turner, 482 U.S. at 90-91, 107 S. Ct. at 2262-2263. Further, the Court has stated that "when prison officials are able to demonstrate that they have rejected a less restrictive alternative because of reasonably founded fears that it will lead to greater harm, they succeed in demonstrating that the alternative they in fact selected was not an 'exaggerated response' under Turner." Thornburgh, 490 U.S. at 419, 109 S.Ct. at 1884.

In this case the DOC's belief that testing and separation will reduce transmission of HIV, as well as its security concerns attending a policy of "mainstreaming" seropositive prisoners, are at least reasonably founded. It is a fact that the stakes in dealing with HIV infection could not be higher; the disease is communicable, incurable, and certain at some point in the seropositive patient's life to result in a nightmarish death. It is also a fact that high risk behavior occurs disproportionately in prison systems. Alabama is no exception. Undisputed testimony established that high risk behavior such as homosexual relations, IV drug use, tattooing, and ear piercing occurs regularly within the Alabama system, as well as frequent fights and blood spills. The DOC, like all correctional systems confronting the already difficult task of prison administration, has been forced to formulate some response to these problems. That response must incorporate not only the prison's interest in reducing transmission of the disease, but also preserve the prison's "core" security concerns, which include maintaining internal security and minimizing violence within the system. With such objectives in mind, even appellants' experts conceded that two bodies of thought currently exist within correctional and public health communities regarding HIV and AIDS prevention in prisons: mandatory testing and separation versus voluntary testing and education. Although appellants have successfully identified numerous difficulties with the former approach, some quite serious, they have not demonstrated in a convincing manner that the costs to Alabama's legitimate penological goals of adopting the latter as an alternative would be de minimis.

The importance of AIDS education in both prisons and the population at large is immense, and, for that matter, not disputed. Both parties agree that education should have a significant role in the correctional response to HIV infection. Considered as a complete alternative to segregation, however, the record indicates that it is also at best an imperfect option. The parties agree that under any system of prison administration, the elimination of high risk behavior, such as homosexual activity or IV drug use, is impossible. Moreover, the extent and speed with which education alone is capable of changing such behavior, particularly among prison populations (who are in a sense recalcitrant to begin with), was disputed at trial. The record indicates that a significant amount of high risk behavior continued to occur in the HIV dorms after inmates had been diagnosed as seropositive35; there is simply no basis upon which to conclude that such behavior would not continue to occur if such inmates were mainstreamed. The anticipated violent reaction by some general population prisoners to integration is likely predicated on fear, some of it irrational and magnified by misinformation; such fear might or might not be allayed with more education about the disease than is already being provided.36 Given the distressingly high stakes, however, we do not think that the evidence in the record is so substantial as to indicate that the DOC's conservative approach is an "exaggerated response" to the presence of the disease. See Pell, 417 U.S. at 827, 94 S.Ct. at 2806.37

In short, mandatory testing and segregation still apparently lies within the perimeter of an important correctional policy debate. As such, it represents precisely the type of urgent problem of prison reform and prison administration with which we as a court are "ill equipped to deal." Martinez, 416 U.S. at 405, 94 S.Ct. at 1807.38 The district court concluded that "knowledge of the identity of AIDS carriers is a matter reasonably related to a legitimate state interest":

It is inescapable that correctional systems should attempt to (1) prevent high risk behavior among inmates, (2) make reasonable efforts to protect all inmates from victimization and (3) avoid any practices which could lead to unprotected blood exposure. The bounds of these duties as they relate to AIDS, and whether negligence or constitutional wrongs are involved, have not yet been clearly defined. At this early stage of the diagnosis and treatment of AIDS, these matters should best be left in the hands of prison officials with the help and advice of their medical staffs.

Harris, 727 F. Supp. at 1581.

Our application of the Turner "reasonable relationship" test to the DOC's policy of uniformly segregating those prisoners who test positive for HIV yields the same conclusion. The DOC's more conservative approach in separating all known seropositives is not in itself constitutionally violative. To the extent that the segregation policy encroaches upon the privacy rights of HIV-positive inmates, it is a reasonable infringement in light of the inmate interests at stake (both seropositive and general population), and the difficult decisions that the DOC must make in determining how best to treat and control within Alabama correctional facilities the spread of a communicable, incurable, always fatal disease.39

Rehabilitation Act.

In accordance with the DOC's segregation policy, it appears to be undisputed that prisoners who test positive for HIV have been categorically separated from virtually all aspects of general population institutional life, e.g. housing assignments, education, employment, recreation, dining, law library use, religious services, family visitation, transportation, sick call, and canteen. As a result, they have not been able to participate in most of the programs available to general population prisoners, while in other cases, the segregated programming provided to them is not comparable.40 Appellants claimed at trial that such categorical exclusion from prison programs was violative of section 504 of the Rehabilitation Act of 1973, 87 Stat. 394 (1973) (codified as amended at 29 U.S.C. § 794 (1988)). The trial court denied relief on this claim, determining that appellants were not "otherwise qualified" within the meaning of the Act.

Section 504 of the Rehabilitation Act prohibits a federally funded state program from discriminating against a handicapped individual solely on the basis of the individual's handicap. School Board of Nassau County v. Arline, 480 U.S. 273, 275, 107 S. Ct. 1123, 1125, 94 L. Ed. 2d 307 (1987). Specifically, the Act states:

No otherwise qualified handicapped individual ... shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.

29 U.S.C. § 794 (1982).

As the text of the statute suggests, in order to obtain relief under section 504 appellants must establish that: 1) they are "handicapped" within the meaning of the Act; 2) they are "otherwise qualified"; 3) they are excluded from programs or activities solely because of the handicap; and 4) the programs or activities from which they are excluded are operated by an agency that receives federal financial assistance.

The record indicates no dispute as to the latter two elements. It is clear that the DOC receives federal financial assistance. Moreover, the DOC concedes that section 504 applies to prisoners.41 In addition, to the extent that seropositive individuals are considered "handicapped," there is no dispute in this case that they are excluded from programs and activities solely because of their HIV-positive status. The first two elements merit a bit more attention.

1. "Handicapped Individual "

For the limited purposes of this appeal, we also believe that the prisoner-appellant class members have satisfied the threshold criterion of demonstrating a "handicap" within the meaning of the Rehabilitation Act. The district court confined its brief discussion of section 504 only to the question of whether appellants were "otherwise qualified," evidently assuming that appellants were in fact " 'handicapped with a contagious disease.' " Harris, 727 F. Supp. at 1582 (quoting Martinez By and Through Martinez v. School Board, 861 F.2d 1502, 1505 (11th Cir.1988)). We agree with this assumption, although the issue is not entirely free from debate.

As opposed to later-stage AIDS, the scope of section 504's application as it pertains solely to a plaintiff's HIV-positive status is not entirely settled. A "handicapped person" within the meaning of the Rehabilitation Act is "any person who (i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment." 29 U.S.C. § 706(7)(B) (1982) (renumbered as § 706(8)(B)); 45 C.F.R. § 84.3(j)(1) (1990). In considering whether persons with contagious diseases may be considered "handicapped" under the Act, the Supreme Court in School Board v. Arline affirmed our circuit's holding in Arline v. School Board, 772 F.2d 759, 764 (11th Cir.1985), that contagious diseases "fall neatly" within the statutory and regulatory framework of the Rehabilitation Act. Arline, 480 U.S. at 277, 107 S.Ct. at 1125. The Court, however, expressly left open the questions of whether asymptomatic carriers of a disease such as AIDS could be considered "physically impaired," or whether such persons could be considered "handicapped" solely on the basis of their contagiousness. Id. at 282 n. 7, 107 S. Ct. at 1128 n. 7.42 In the instant case, it is undisputed that the DOC categorically denies HIV-positive prisoners access to programs by virtue of their seropositive status alone (not physical impairment, behavior or any other classification factor) for the stated purpose of reducing transmission of the disease; the DOC, in other words, excludes seropositive prisoners from programs solely on the basis of contagiousness. Any application of the Rehabilitation Act here thus confronts the precise question left unanswered by the Supreme Court in Arline.43

Nevertheless, on the facts of this case, we are not inclined to disagree with the district court's assumption that the HIV-infected prisoners are "handicapped individuals" within the meaning of section 504 of the Rehabilitation Act. The definition of "handicapped individual" applies to persons who are "regarded as having" a physical or mental impairment. 29 U.S.C. § 706(7)(B)(iii) (1982) (now § 706(8)(B)(iii) (1988)). Implementing regulations provide that persons are "regarded as having an impairment" if they are treated by the recipient of federal funds as if they were handicapped--regardless of their actual condition. See Leckelt v. Board of Comm'rs of Hosp. Dist. No. 1, 909 F.2d 820, 825 (5th Cir.1990); Carter v. Orleans Parish Pub. Schools, 725 F.2d 261, 262-63 (5th Cir.1984). Specifically, 45 C.F.R. § 84.3(j)(2)(iv) provides:

(iv) "Is regarded as having an impairment" means (A) has a physical or mental impairment that does not substantially limit major life activities but that is treated by a [federal funds] recipient as constituting such a limitation; (B) has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others towards such impairment; or (C) has none of the impairments defined in paragraph (j)(2)(i) of this section but is treated by a recipient as having such an impairment.44

Alabama's blanket, differential treatment of seropositive inmates with regard to available activities and programs is based solely on the fact of the inmates' infection with HIV. Whether or not asymptomatic HIV infection alone is defined as an actual "physical impairment," it is clear that this correctional system treats the inmates such that they are unable, or perceived as unable, to engage in "major life activities" relative to the rest of the prison population.45 Regardless of whether such treatment is ultimately justifiable, based as it is on the DOC's fear of and desire to contain the widespread contagion of HIV in Alabama prisons, we believe that it is appropriate in this case to find seropositivity a "handicap" within the meaning of the Act.462. "Otherwise Qualified "

The final issue regarding the application of section 504 in this case is the only one that the trial court addressed, albeit in cursory fashion. In order to obtain relief under the Rehabilitation Act, even if they are considered "handicapped," appellants must also establish that they are "otherwise qualified" for the programs or activities from which they have been excluded. The analysis actually breaks down into two steps.

First, the trial judge must determine whether the handicapped individual is "otherwise qualified." Martinez By and Through Martinez v. School Bd., 861 F.2d 1502, 1505 (11th Cir.1988). "An 'otherwise qualified' person is one who is able to meet all of a program's requirements in spite of his handicap." Southeastern Community College v. Davis, 442 U.S. 397, 406, 99 S. Ct. 2361, 2367, 60 L. Ed. 2d 980 (1979). When the individual's handicap is in the nature of a contagious disease, this determination requires the trial judge to conduct an individualized inquiry, and to make appropriate findings of fact. Martinez, 861 F.2d at 1505; see Arline, 480 U.S. at 287, 107 S.Ct. at 1130. The court's factual inquiry should include findings, "based on reasonable medical judgments given the state of medical knowledge," concerning

"(a) the nature of the risk (how the disease is transmitted), (b) the duration of the risk (how long is the carrier infectious), (c) the severity of the risk (what is the potential harm to third parties) and (d) the probabilities the disease will be transmitted and will cause varying degrees of harm."

Arline, 480 U.S. at 288, 107 S.Ct. at 1131 (quoting Brief for American Medical Assoc. as Amicus Curiae 19). Secondly, if the individual does not appear initially to be otherwise qualified, the court must nevertheless evaluate, in light of the aforementioned medical findings, whether "reasonable accommodations would make the handicapped individual otherwise qualified." Martinez, 861 F.2d at 1505 (citing Arline, 480 U.S. at 288, 107 S.Ct. at 1131). If, after reasonable accommodations, a significant risk of transmission of the infectious disease still exists, a plaintiff will not be considered "otherwise qualified" within the meaning of the Rehabilitation Act. Id. at 1506; see Arline, 480 U.S. at 287 n. 16, 107 S. Ct. at 1131 n. 16.

In this case, applying the above factors to the seropositive prisoners, the trial judge found as follows:

(1) [HIV] is transmitted by contact of open wounds or body cavities with blood, semen or vaginal secretions. The primary ways the disease is transmitted in the prison environment is through homosexual activity, intravenous drug use and tattooing. Exchange of bodily fluids by homosexual rape or of blood resulting from fights is particularly hazardous in prison settings.

(2) The duration of the risk is perpetual.

(3) The severity of the risk is great with the potential harm to third parties' [SIC] ultimately being death.

(4) The probability of transmission, in the prison environment, is significant.

Harris, 727 F. Supp. at 1582. Accordingly, the district court found that "AIDS infected inmates are not otherwise qualified" within the meaning of section 504. Id. at 1583. The court next determined in a conclusory manner that even "after reasonable accommodations, a significant risk of transmission would still exist," offering no support for this proposition other than incorporating "its earlier finds with respect to the reasons that support segregation." Harris, 727 F. Supp. at 1583. Thus, the court found appellants not "otherwise qualified" under the Rehabilitation Act, and denied relief on this claim.

The district court's conclusions may prove ultimately correct. Its analysis, however, is devoid of the kind of individualized inquiry and findings of fact necessary to determine whether the members of the appellant class are "otherwise qualified" for any of the programs or activities offered to other prisoners by the DOC, or whether they can become so through reasonable accommodation.

First, we believe that the district court erred in its application of the fourth factor cited in Arline--the " 'probabilities the disease will be transmitted and will cause varying degrees of harm.' " Arline, 480 U.S. at 288, 107 S.Ct. at 1131. The district court found merely that "[t]he probability of transmission, in the prison environment, is significant." Harris, 727 F. Supp. at 1582. In this regard, we agree somewhat with appellants that the trial court asked and answered the wrong question. The Rehabilitation Act deals with the exclusion of "otherwise qualified" handicapped individuals from specific programs; an "otherwise qualified" person is "one who is able to meet all of a program's requirements in spite of his handicap." Davis, 442 U.S. at 406, 99 S.Ct. at 2367 (emphasis added). In this case, the district court should have determined the risk of transmission not merely with regard to prison in general, but with regard to each program from which appellants have been automatically excluded.

As suggested, it may turn out that the court's conclusion of the significance of the risk of HIV transmission with regard to each program will be unaltered.47 But even if the risk is significant, the court is then obligated to examine as to each program whether "reasonable accommodations" by the DOC could minimize such risk to an acceptable level. Moreover, it is not enough for the district court simply to rely on general findings and prison policy reasons that support segregation. In this context, like other contexts, the purpose of the Act is to provide a balance--to assure through particularized inquiry that appropriate weight is given to the legitimate concerns of the prison-grantee in avoiding exposure of others to significant health risks, while at the same time protecting the handicapped, contagious prisoners from sweeping deprivations based on prejudice, stereotypes or unfounded fear. See Arline, 480 U.S. at 287, 107 S.Ct. at 1130. We do not believe, as appellants suggest, that the application of the Rehabilitation Act in the unique, complex context of prison administration necessarily requires integration of seropositive prisoners into the general prison population, or integration into general population programs. We also do not believe, however, that the prison's choice of blanket segregation should alone insulate the DOC from its affirmative obligation under the Act to pursue and implement such alternative, reasonable accommodations as are possible48 for HIV-positive prisoners with respect to various programs and activities that are available to the prison populations at large.

Accordingly, we remand this issue to the district court for a particularized inquiry with full findings of fact and conclusions of law as to each program and activity from which HIV-positive prisoners are being excluded, and a proper weighing of the dangers of transmission in each context.

Appellants finally contend that the district court erred in failing to order relief on the claimed violation by the DOC of appellants' constitutional right of access to courts. Specifically, appellants alleged that the DOC had failed to provide sufficient and meaningful access for HIV-positive prisoners to the prison law library or, in the alternative, if access is denied, provide assistance of a person with legal training. Harris, 727 F. Supp. at 1578.

As the trial court recognized, inmates infected with HIV, like all other prisoners, possess a fundamental constitutional right of access to the courts. See Bounds v. Smith, 430 U.S. 817, 821, 97 S. Ct. 1491, 1494, 52 L. Ed. 2d 72 (1977); Barfield v. Brierton, 883 F.2d 923, 937 (11th Cir.1989). This right cannot be impaired by prison officials; it " 'requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.' " Barfield, 883 F.2d at 937 (quoting Bounds, 430 U.S. at 828); see Wolff v. McDonnell, 418 U.S. 539, 578-80, 94 S. Ct. 2963, 2985-87, 41 L. Ed. 2d 935 (1974).

The trial court found that "[b]ased upon the evidence before this Court, it appears that the AIDS infected inmates are entitled to more time in the library than has been allotted." Harris, 727 F. Supp. at 1578. The court also found that "[p]resently, there does not exist sufficient evidence to determine whether or not constitutionally adequate assistance is available." Id. at 1579. Citing the deference that is typically due prison officials in implementing policy, the court opined that the DOC should "formulate a plan that would allow for more time in the library or, in the alternative, assure effective assistance by one trained in the law." Id. The court nevertheless did not order such relief, instead concluding that "the recent policy with respect to library hours does not constitute a denial of meaningful access to prison legal materials nor does it deny them their right of access to courts in violation of the First or Fourteenth Amendment." Id. at 1583.

We agree with the plaintiffs that the court's conclusion seems inconsistent with its findings that HIV-infected prisoners were entitled to more library time, and that insufficient evidence existed to determine whether constitutionally adequate assistance was available. Further, because the issue and adequacy of separate access to legal materials and assistance for HIV-positive prisoners is much akin to the inquiries that we have asked the trial court to undertake on remand with regard to appellants' Rehabilitation Act claim, we are obliged to remand this claim as well for additional findings and clarification by the district court.

CONCLUSION.

For the foregoing reasons, the judgment of the district court regarding appellants' medical care and privacy claims is AFFIRMED. Appellants' Rehabilitation Act and access to courts claims are REMANDED for further proceedings consistent with this opinion.49