No. 03-636
IN THE MORRIS TYLER MOOT COURT OF APPEALS AT YALE
GARRISON S. JOHNSON,
Petitioner,
v.
CALIFORNIA, et al.,
Respondents.
On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit
BRIEF OF PETITIONER GARRISON S. JOHNSON
####
Yale Law School
127 Wall Street
New Haven, Connecticut 06511
(203) 555-1212
Counsel for Petitioner
Questions Presented1
1. Is a state’s practice of routine racial segregation of state prisoners for at least a sixty
day period subject to the same strict scrutiny generally applicable to all other challenges
to intentional racial segregation, as decided in Lee v. Washington, 390 U.S. 333 (1967),
or is it excused from such scrutiny and subject only to the more relaxed review afforded
under Turner v. Safley, 482 U.S. 78 (1987)?
2. Does California’s practice of routine racial segregation of state prisoners for at least a
sixty day period violate the Equal Protection Clause?
1
The petitioner in this action is Garrison S. Johnson. The respondents in this action include the State of
California and James H. Gomez and James Rowland, both former directors of the Department of Corrections.
i
Table of Contents
QUESTIONS PRESENTED ............................................................................................................ i
TABLE OF AUTHORITIES ......................................................................................................... iii
OPINIONS BELOW ....................................................................................................................... 1
STATEMENT OF JURISDICTION............................................................................................... 2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ..................................... 2
STATEMENT OF FACTS ............................................................................................................. 2
SUMMARY OF ARGUMENT ...................................................................................................... 5
ARGUMENT .................................................................................................................................. 7
I. A STATE’S PRACTICE OF ROUTINE RACIAL SEGREGATION OF STATE
PRISONERS IS SUBJECT TO STRICT SCRUTINY. ..................................................... 7
A.
Strict scrutiny is the appropriate standard of review for all race-based
classifications . ........................................................................................................... 8
B.
Strict scrutiny is applicable to race-based classifications in prisons. ......................... 9
C.
Turner v. Safley did not overturn Lee v. Washington’s requirement of strict
scrutiny review of racial segregation in prisons. ..................................................... 11
D.
Turner v. Safley’s deferential standard of review is improper for racial
segregation in prisons because the government has an affirmative duty to avoid
racial discrimination................................................................................................. 13
II. CALIFORNIA’S PRACTICE OF ROUTINE RACIAL SEGREGATION OF STATE
PRISONERS VIOLATES THE EQUAL PROTECTION CLAUSE. .............................. 16
A.
California’s segregation policy does not withstand strict scrutiny because its
interest in reducing racial violence is not compelling and the policy is not
narrowly tailored. ..................................................................................................... 16
B.
California’s segregation policy does not withstand the relaxed standard
articulated in Turner v. Safley because the policy is irrational, the policy provides
no alternatives means of being free from racial discrimination, eliminating the
policy would not have significant adverse effects, and an easy alternative exists. . 22
CONCLUSION ............................................................................................................................. 27
ii
Table of Authorities
CASES
Abbott v. Smaller, No. 88-2800, 1190 WL 13159 (E.D. Pa. Sept. 5, 1990) ................................. 23
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) ................................................... 7, 8, 13
Bell v. Wolfish, 441 U.S. 520 (1979) ............................................................................................ 11
Black v. Lane, 824 F.2d 561 (7th Cir. 1987)................................................................................. 12
Blevins v. Brew, 593 F. Supp. 545 (W.D. Wisc. 1984)................................................................. 18
Block v. Rutherford, 468 U.S. 576 (1984) .................................................................................... 11
Brown v. Board of Education, 347 U.S. 483 (1954) ....................................................................... 8
City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) ..................................... 23
City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) ............................................. 10, 12, 20
Cleavinger v. Saxner, 474 U.S. 193 (1985) .................................................................................. 24
Cruz v. Beto, 405 U.S. 319 (1972) (per curiam) ........................................................................... 10
Grutter v. Bollinger, 539 U.S. 308 (2003) ............................................................................. passim
Hill v. Texas, 316 U.S. 400 (1942) ................................................................................................. 7
Hirabayashi v. United States, 320 U.S. 81 (1943).......................................................................... 8
Hohn v. United States, 524 U.S. 236 (1998)................................................................................. 12
Hudson v. Palmer, 468 U.S. 517 (1984) ....................................................................................... 10
Johnson v. California, 207 F.3d 650 (9th Cir. 2000)...................................................................... 4
Johnson v. California, 321 F.3d 791 (9th Cir. 2003)............................................................. passim
Johnson v. California, 336 F.3d 1117 (9th Cir. 2003).................................................... 5, 9, 14, 15
Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119 (1977) ............................. 10
Korematsu v. United States, 323 U.S. 214 (1945) .................................................................... 8, 10
Lee v. Washington, 390 U.S. 333 (1968) (per curiam) .......................................................... passim
Metro Broadcasting, Inc. v. FCC, 497 U.S. 547(1990), overruled by Adarand Constructors,
Inc. v. Pena, 515 U.S. 200 (1995) ............................................................................................. 19
McClelland v. Sigler, 327 F. Supp. 829, 833-34 (D. Neb. 1971) ................................................. 18
Miller v. Johnson, 515 U.S. 900 (1995) .......................................................................................... 7
Nordlinger v. Hahn, 505 U.S. 1 (1992) .................................................................................. 13, 15
O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987) .................................................... 15, 16, 24, 25
Overton v. Bazzetta, 539 U.S. 126 (2003) .................................................................. 12, 15, 16, 24
Palmore v. Sidoti, 466 U.S. 429 (1984) ...................................................................................... 7, 9
Pell v. Procunier, 417 U.S. 817 (1974). ....................................................................................... 11
Personnel Administrator of Massachussetts v. Feeney, 442 U.S. 256 (1979) .............................. 13
Pitts v. Thornburgh, 866 F.2d 1450 (D.C. Cir. 1989)................................................................... 13
Podberesky v. Kirwan, 38 F.3d 147 (4th Cir. 1994) ................................................................... 8, 9
Price v. Johnston, 334 U.S. 266 (1948) .......................................................................................... 7
Procunier v. Martinez, 416 U.S. 396 (1974) .......................................................................... 10, 11
Regents of the University of California v. Bakke, 483 U.S. 265 (1978) ....................................... 19
Robinson v. Prunty, 249 F.3d 862, 864 (9th Cir. 2001) ................................................................ 21
Rodriquez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477 (1989) ......................... 12
Saucier v. Katz, 533 U.S. 194 (2001) ............................................................................................. 4
Shaw v. Hunt, 517 U.S. 899 (1996) ............................................................................................ 7, 8
Shaw v. Murphy, 532 U.S. 223 (2001) .......................................................................................... 12
Sockwell v. Phelps, 20 F.3d 187 (5th Cir. 1994)............................................................... 12, 18, 19
iii
Snow v. Lamarque, No. 01-0969, 2002 U.S. Dist. LEXIS 15876 (N.D. Cal. Aug. 13, 2002) ..... 21
Stewart v. Rhodes, 473 F. Supp. 1185 (S.D. Ohio 1979), aff’d, 785 F.2d 310 (6th Cir. 1986) .... 18
Thornburgh v. Abbott, 490 U.S. 401 (1989) ................................................................................. 13
Turner v. Safley, 482 U.S. 78 (1987) ..................................................................................... passim
United States v. Wyandotte County, 480 F.2d 969 (10th Cir. 1973) (per curiam) ........................ 18
United States v. Paradise, 480 U.S. 149, 185 (1987) ................................................................... 21
Washington v. Davis, 426 U.S. 229 (1976)............................................................................... 7, 24
Washington v. Harper, 494 U.S. 210 (1990) .................................................................... 15, 16, 24
Washington v. Lee, 263 F. Supp. 327 (M.D. Ala. 1966), aff’d, 390 U.S. 334 (1968) (per
curiam) ...................................................................................................................................... 10
Watson v. City of Memphis, 373 U.S. 526 (1963)......................................................................... 21
White v. Morris, 823 F. Supp. 1129 (S.D. Ohio 1993) ................................................................. 21
Wolf v. McDonnell, 418 U.S. 539 (774) ......................................................................................... 9
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. XIV, § 1 (2000). .............................................................................................. 7
STATUTES
28 U.S.C. § 1254(1) (2000) ............................................................................................................ 2
42 U.S.C. § 1983 (2000). ................................................................................................................ 2
REGULATIONS
28 C.F.R. § 522.21 (2003) ...................................................................................................... 26, 27
Ill. Adm. Code tit. 20, § 503.20 (1993)......................................................................................... 26
N.Y. Comp. Codes R. & Regs. tit. 9, § 7013.7 (1995) ........................................................... 26, 27
OTHER AUTHORITIES
Bureau of Justice Statistics, U.S. Dept. of Justice, Prison and Jail Inmates at Midyear 2002
(2003), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/pjim02.pdf ..................................... 2
Cal. Dep’t of Corrections, Inmate Incidents in Institutions, Calendar Year 2002, at 11 tbl. 5
(2003), available at http://www.corr.ca.gov-OffenderInfoServices-Reports-Annual-BEH1BEH1d2002.pdf ........................................................................................................................ 17
Cal. Dep’t of Corrections Website, Pelican Bay State Prison, http://www.corr.ca.gov/
InstitutionsDiv/INSTDIV/facilities/fac_prison_PBSP.asp (last visited Oct. 4, 2004) ............. 20
Chad Trulson & James W. Marquart, The Caged Melting Pot: Toward an Understanding of
the Consequences of Desegregation in Prisons, 36 Law & Soc’y Rev. 743, 764 (2002) .. 18, 26
Christopher G. Ellis & Daniel A. Powers, The Contact Hypothesis and Racial Attitudes
Among Black Americans, 75 Soc. Sci. Q. 385 (1994) .............................................................. 17
Donna M. Desforges et. al., Effects of Structured Cooperative Contacts on Changing Negative
Attitudes Toward Stigmatized Groups, 60 J. of Personality & Soc. Psych. 531 (1991) ........... 17
Kyle Johnson, Learning Prejudice in Prisons, Christian Sci. Monitor, July 7, 1998, at 1 ..... 17, 18
Martha L. Henderson et al., Race, Rights, and Order in Prison: A National Survey of
Wardens on the Racial Integration of Prison Cells, 80 Prison J. 295 ...................................... 18
Robert Johnson, Hard Time: Understanding and Reforming the Prison (2d ed. 1996) ............... 17
iv
No. 03-636
IN THE MORRIS TYLER MOOT COURT OF APPEALS AT YALE
GARRISON S. JOHNSON,
Petitioner,
v.
CALIFORNIA, et al.,
Respondents.
On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit
BRIEF OF PETITIONER GARRISON S. JOHNSON
Opinions Below
The opinion of the U. S. Court of Appeals for the Ninth Circuit below is reported at 321
F.3d 791 (9th Cir. 2003). The opinion of the U.S. District Court for the Central District of
California granting qualified immunity is unreported. The opinion of the Ninth Circuit reversing
the dismissal of the complaint is reported at 207 F.3d 650 (9th Cir. 2000), and the opinion of the
U.S. District Court for the Central District of California dismissing the complaint is unreported.
The Ninth Circuit’s opinion denying a petition for rehearing and a suggestion for rehearing en
banc is reported at 336 F.3d 1117 (9th Cir. 2003).
1
Statement of Jurisdiction
The judgment below was entered on February 25, 2003. Petition for certiorari was filed
with this Court on October 27, 2003. Certiorari was granted on March 1, 2004. Johnson v.
California, 124 S. Ct. 1505 (2004) (mem.). This Court’s jurisdiction is invoked under 28 U.S.C.
§ 1254(1) (2000).
Constitutional and Statutory Provisions Involved
The Fourteenth Amendment to the United States Constitution provides in relevant part:
No State shall make or enforce any law which shall . . . deny to any person
within its jurisdiction the equal protection of the laws.
U.S. Const. amend. XIV, § 1 (2000).
42 U.S.C. § 1983 provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress . . .
42 U.S.C. § 1983 (2000).
Statement of Facts
Garrison S. Johnson is an African-American prisoner in the California Department of
Corrections (“CDC”) – the largest state prison system.2 Since beginning his sentence on June 22,
1987, Johnson has been housed in the reception centers of four different California prisons – in
Chino, Folsom, Calipatria, and Lancaster, where he is currently incarcerated. Each time, he was
2
Bureau of Justice Statistics, U.S. Dept. of Justice, Prison and Jail Inmates at Midyear 2002 (2003), available
at http://www.ojp.usdoj.gov/bjs/pub/pdf/pjim02.pdf (noting that the CDC had a population of 160,315 inmates at
midyear 2002).
2
double-celled with another African-American inmate pursuant to an explicit California policy of
segregating reception center inmates by race for at least a sixty day period.
When a prisoner arrives at a CDC institution, either as a new inmate or as a transfer from
another facility, he is initially placed in a reception center. There, he goes through a classification
process in which race is the primary determinant of housing. New inmates are divided into four
categories: Black, White, Asian, and other. Some racial classifications are divided into further
subgroups. For instance, because of perceived animosity between them, Chinese and Japanese
prisoners are separated as are Latino prisoners from Northern and Southern California. See
Johnson v. California, 321 F.3d 791, 794 (9th Cir. 2003). Within these segregated groups or
subgroups, inmates are further classified according to prior criminal history, arrest record, and
other factors including “gender, age, classification score, case concerns, custody concerns,
mental and physical health, enemy situations, gang affiliation, background, history, [and]
custody designation.” Id. The Respondents admit that race is the “dominant” factor considered in
assigning cell mates and the chance of an inmate being assigned a cell mate of a different race is
“[p]retty close” to zero percent. Id.
The segregation policy has been in effect for more than twenty years in all of the state’s
reception centers. Prison officials emphasize race in making initial housing assignments based on
their view that race “plays a significant role in antisocial behavior” and that racial integration
would “place . . . inmate[s] into jeopardy” and would “result in violence and conflict” in the cells
and prison yard. Id. Prison officials state that they use the sixty day segregation period to
determine whether an inmate is likely to engage in race-based violence in the institution. See id.
The rest of the prison is fully integrated by race, but most prisoners self segregate into racial
groups. After the sixty day period of racial segregation, inmates are either assigned to a non-
3
violent dormitory with inmates of all races or they select their own cell mates and share double
cells. However, if inmates transfer prisons, as Johnson did, three times, they are again
automatically subjected to the sixty day segregation policy.
On February 24, 1995, Johnson filed a complaint in the Central District Court of
California, alleging, inter alia, that California’s policy of racially segregating prisoners in
reception centers violated his constitutional rights. In January 1998, the district court dismissed
Johnson’s complaint, and Johnson appealed. The Ninth Circuit reversed the dismissal in part on
March 21, 2000 and remanded the case to the district court, holding that Johnson’s allegations
were “sufficient to state a claim for racial discrimination in violation of the Equal Protection
Clause of the Fourteenth Amendment.” Johnson v. California, 207 F.3d 650, 655 (9th Cir. 2000).
On remand, Johnson filed an amended complaint, seeking monetary damages from
former CDC directors James Gomez and James Rowland, in their individual capacities, and
injunctive relief from the current CDC director, under 42 U.S.C. § 1983 (2000), for violating his
right to be free from discrimination. Both parties moved for summary judgment, and the district
court denied both motions. After the Supreme Court’s 2001 decision in Saucier v. Katz, 533 U.S.
194 (2001), Rowland and Gomez moved for reconsideration of the denial of summary judgment,
claiming they were entitled to qualified immunity. In Saucier, the Supreme Court held that a
government official is entitled to qualified immunity unless “it would be clear to a reasonable
official that his conduct was unlawful in the situation he confronted.” Id. at 202. The district
court granted the motion. The Ninth Circuit affirmed, but it held that the prisoner had failed to
show a violation of his constitutional rights, so it did not reach the qualified immunity issue.
Johnson, 321 F.3d at 807. On July 28, 2003, the Ninth Circuit denied the government’s petitions
for rehearing and rehearing en banc. See Johnson v. California, 336 F.3d 1117 (9th Cir. 2003).
4
Immediately thereafter, the government filed a petition for a writ of certiorari, which this Court
granted on March 1. See Johnson v. California, 124 S. Ct. 1505 (2004) (mem.)
Summary of Argument
Fifty years after this Court declared that separate is inherently unequal and thirty years
after it held that routine racial segregation in prisons is unconstitutional, this case tests the
staying power of these decisions. We request that this Court reiterate these longstanding
principles and reaffirm that government racial classifications are unacceptable absent a
compelling state interest and declare California’s policy of automatically segregating all
prisoners by race unconstitutional because it violates the guarantee of equal protection provided
by the Fourteenth Amendment to the U.S. Constitution.
This case sets the government’s affirmative duty not to discriminate by race against the
discretion afforded to prison officials to administer correctional facilities. The Ninth Circuit
ruled in favor of almost complete discretion to prison officials and upheld California’s policy of
routinely segregating prisoners by race, based on prison administrators’ blind faith in the need
for the policy. In doing so, the court disregarded the general presumption of invidiousness when
the state acts on racial classifications and the high standard of review called for in such cases by
this Court.
The Ninth Circuit selected the wrong standard of review in evaluating California’s racial
segregation policy. The court erroneously applied the deferential standard of review articulated
in Turner v. Safley, 482 U.S. 78 (1987), despite the repeated pronouncements of this Court that
all racial classifications should be reviewed under strict scrutiny. Because prisoners retain the
right to be treated without regards to their race when they are incarcerated, strict scrutiny is the
proper standard of review of racial segregation in prisons, as in other public facilities. This Court
5
confirmed the requirement of strict scrutiny of racial segregation in prisons in Lee v. Washington,
390 U.S. 333 (1968) (per curiam), which remains good law. The Turner standard is too
deferential to prison officials to ensure that the government fulfills its Fourteenth Amendment
duty to avoid racial discrimination. Further, applying Turner to racial segregation cases is
illogical because segregation results in the utter elimination of the right to be free from
discrimination, not just the limitation of this right, and because this right does not inevitably need
to be curtailed in the prison context.
The Ninth Circuit’s acceptance of amorphous and unsubstantiated fears of race-based
violence as a valid justification for California’s practice of routine racial segregation is erroneous
under either strict scrutiny review or the more deferential Turner standard. California’s
segregation policy does not withstand strict scrutiny because it is not necessitated by
“particularized circumstances” and prison officials are unable to show any connection between
the policy and their stated interest in reducing race-based violence. Additionally, the policy is not
narrowly tailored to particular persons, prisons, or times, and several less restrictive alternatives
to segregation exist.
The segregation policy also fails the Turner standard because it is based not on a
reasonable penological interest, but on irrational and unsupported fears that integration of the
cells would lead to race-based violence. Under the segregation policy, prisoners have no
alternative means of being free from racial discrimination, further indicating the policy is
unreasonable. Because there is no rational connection between racial violence and segregation,
eliminating the policy would not significantly affect prison officials, inmates, and facilities.
Conducting more comprehensive intake evaluations of new prison inmates, as is done in the
6
federal prison system and numerous state systems, would provide an easy alternative to
California’s racial segregation policy.
Argument
I.
A STATE’S PRACTICE OF ROUTINE RACIAL SEGREGATION OF STATE
PRISONERS IS SUBJECT TO STRICT SCRUTINY.
The Ninth Circuit erred in applying a deferential standard of review to California’s racial
segregation policy in prisons because all governmentally imposed racial classifications must
withstand strict scrutiny. See, e.g., Grutter v. Bollinger, 539 U.S. 308, 326 (2003); Adarand
Constrs., Inc. v. Pena, 515 U.S. 200, 227 (1995). A high standard of review is required because
the Fourteenth Amendment to the U.S. Constitution establishes an affirmative state duty to avoid
discriminating against anyone because of his race. See Shaw v. Hunt, 517 U.S. 899, 907 (1996).
This duty comes from the Equal Protection Clause of the Fourteenth Amendment, which
provides that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection
of the laws.” U.S. Const. amend. XIV, § 1. The Clause thus requires complete “racial neutrality
in governmental decision-making.” Miller v. Johnson, 515 U.S. 900, 904 (1995). Its “central
purpose . . . is the prevention of official conduct discriminating on the basis of race.” Washington
v. Davis, 426 U.S. 229, 238 (1976); see also Palmore v. Sidoti, 466 U.S. 429, 432 (1984).
Although this Court has recognized that prisoners cannot exercise their rights fully during
incarceration, see Price v. Johnston, 334 U.S. 266, 285 (1948), prisoners retain the Fourteenth
Amendment’s protections against racial discrimination, so the duty of the State to avoid racial
discrimination endures in correctional facilities. See Hill v. Texas, 316 U.S. 400, 406 (1942).
This Court firmly established the right to be free from racial segregation in prisons and jails in
7
Lee v. Washington, 390 U.S. 333 (1968) (per curiam), and this right remains unaltered after the
subsequent Court’s decision in Turner v. Safley, 482 U.S. 78 (1987).
A.
Strict scrutiny is the appropriate standard of review for all race-based
classifications.
Intentional state segregation by race was outlawed in this country more than half a
century ago in Brown v. Board of Education, 347 U.S. 483, 495 (1954). This Court has
repeatedly reaffirmed the principle in Brown that separate is “inherently unequal” and that racial
segregation is a “denial of equal protection of the laws.” Id. at 495. In doing so, the Court has
mandated that “all racial classifications imposed by government ‘must be analyzed by a
reviewing court under strict scrutiny,’” meaning “classifications are constitutional only if they
are narrowly tailored to further compelling government interests.” Grutter, 539 U.S. at 326
(quoting Adarand Constrs., Inc. v. Pena, 515 U.S. 200, 227 (1995)); see also Shaw v. Hunt, 517
U.S. 899, 908 (1996). Under strict scrutiny, the presumption is that a racial classification is
invidious:
Absent searching judicial inquiry into justification . . . there is simply no way of
determining . . . what classifications are in fact motivated by illegitimate notions
of racial inferiority or racial politics. Indeed, the purpose of strict scrutiny is to
“smoke out” illegitimate uses of race by assuring that [a governmental actor] is
pursuing a goal important enough to warrant use of a highly suspect tool.
Adarand, 515 U.S. at 226 (quoting City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493
(1989)). Because all racial classifications are automatically suspect, the burden is squarely on the
government to prove a classification is constitutional. See Korematsu v. United States, 323 U.S.
214, 216 (1945).
The requirement of strict scrutiny in race-based equal protection cases reflects the law’s
strong disapproval of race-based classifications. See, e.g., Hirabayashi v. United States, 320 U.S.
81, 100 (1943) (“Distinctions between citizens solely because of their ancestry are by their very
8
nature odious to a free people whose institutions are founded upon the doctrine of equality.”);
Podberesky v. Kirwan, 38 F.3d 147, 152 (4th Cir. 1994) (“Of all the criteria by which men and
women can be judged, the most pernicious is that of race.”). This Court has recognized that
racial classifications are unlikely to serve any just purpose: “Classifying persons according to
race is more likely to reflect racial prejudice than legitimate public concerns; the race, not the
person, dictates the category.” Palmore v. Sidoti, 466 U.S. 429, 432 (1984).
B.
Strict scrutiny is applicable to race-based classifications in prison.
Because racial discrimination is no less degrading, injurious, and odious in correctional
institutions than in other public facilities, see Hudson v. Palmer, 468 U.S. 517, 523 (1984)
(“[I]nvidious racial discrimination is as intolerable within a prison as outside.”), prisoners do not
lose the protections afforded by the Fourteenth Amendment by virtue of being incarcerated. As
the dissent to the denial of rehearing notes, applying a lower standard of review wrongly
“presumes that prison officials are so uniquely free of the taint of racism that an exception should
be created just for them.” Johnson, 336 F.3d at 1119 (Ferguson, J., dissenting). As in other
venues, in prisons, the government has a duty to treat all persons without regards to race. See
Wolf v. McDonnell, 418 U.S. 539, 555-56 (1974) (“There is no iron curtain drawn between the
Constitution and the prisons of this country.”). The government cannot neglect this duty unless
its actions satisfy strict scrutiny.
In the controlling case on this issue, Lee v. Washington, this Court held that routine racial
segregation in correctional facilities is unconstitutional. 390 U.S. 333, 333 (1968) (per curiam).
In his concurring opinion, Justice Black noted that that “prison officials have the right, acting in
good faith and in particularized circumstances to take into account racial tensions in maintaining
security, discipline, and good order in prisons and jails.” Lee, 390 U.S. at 334 (Black, J.,
9
concurring). The lower court specifically rejected the State’s claim that “racial segregation in
penal facilities is a matter of routine prison security and discipline” and found that a more
compelling interest is necessary for segregation. Washington v. Lee, 263 F. Supp. 327, 331 (M.D.
Ala. 1966), aff’d, 390 U.S. 334 (1968) (per curiam). By placing the burden on the state to prove
that racial segregation is necessary, the Lee decision established that the general prohibition of
governmentally imposed racial discrimination, absent a compelling interest, applies to prisons.
Post-Lee statements of this Court confirm that strict scrutiny is the applicable standard for
race-based classifications in prisons. In Hudson v. Palmer, this Court stated that racial
segregation is “intolerable” except where it is “essential to ‘prison security and discipline,’” 468
U.S. at 523 (citing Lee, 390 U.S. at 333) (emphasis added), and in Cruz v. Beto, 405 U.S. 319
(1972) (per curiam), the Court interpreted Lee to hold that racial segregation within prisons is
unconstitutional, except for “the necessities of prison security and discipline,” id. at 321. See also
City of Richmond v. J.A. Croson Co., 488 U.S. 469, 520-21 (1989) (Scalia, J. concurring) (stating
that Lee’s “necessities” exception applies “only [in] a social emergency rising to the level of
imminent danger to life and limb . . . [such as] a prison race riot”); Grutter, 539 U.S. at 353
(2003) (Thomas, J., concurring in part and dissenting in part) (citing Lee for the proposition that
racial discrimination can only be justified by “pressing public necessity”). This Court’s
statements recognize that security interests may justify segregation by race in prisons, but require
this interest to be compelling.
Applying strict scrutiny to race-based segregation claims in correctional facilities does
not interfere with prison officials’ ability to “deal with the increasingly urgent problems of prison
administration and reform,” Procunier v. Martinez, 416 U.S. 396, 405-06 (1974). The strict
scrutiny standard allows for some deference to the decisions of government actors. In Grutter,
10
539 U.S. at 328, this Court recognized the need for deference to a university’s academic
decisions, and in Korematsu, 323 U.S. at 217, it recognized the need for deference to the
military. The deference accorded under strict scrutiny is far from a rubber stamp, whereby
officials can engage in racial discrimination at will, but it is a proper means for analyzing the
needs of prison officials and the appropriateness of race-based classifications.
C.
Turner v. Safley did not overturn Lee v. Washington’s requirement of strict
scrutiny review of racial segregation in prisons.
The Ninth Circuit erred in holding that this Court’s decision in Lee v. Washington,
requiring strict scrutiny review of racial segregation in prisons, is not controlling in this case.
The court wrongly applied the deferential standard of review for prison regulations articulated in
Turner v. Safely, 483 U.S. 78 (1987), which states that “when a prison regulation impinges on
inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate
penological interests,” id. at 89, to California’s segregation policy, instead of applying strict
scrutiny. Johnson, 321 F.3d at 799. In holding that the general requirement of strict scrutiny
review of racial classifications was inapplicable to prisoners, the Ninth Circuit rejected the
holding of Lee and this Court’s directive that “all governmental uses of race” must be subject to
strict scrutiny review. Grutter, 539 U.S. at 326-27 (emphasis added).
Post-Turner, Lee v. Washington remains good law. The Turner decision cited Lee
favorably to indicate that prisoners are protected against racial discrimination by the Equal
Protection Clause of the Fourteenth Amendment. Turner itself is not an equal protection case,
and it did not purport to address the standard of review for equal protection challenges. Further,
none of the cases on which Turner relied concern racial discrimination. See Block v. Rutherford,
468 U.S. 576 (1984) (concerning contact visits and searches of cells); Bell v. Wolfish, 441 U.S.
520 (1979) (regarding pretrial detention conditions); Jones v. North Carolina Prisoners’ Labor
11
Union, Inc., 433 U.S. 119 (1977) (concerning solicitation to join a union); Pell v. Procunier, 417
U.S. 817 (1974) (regarding media access); Procunier v. Martinez, 416 U.S. 396 (1974)
(pertaining to mail censorship and restrictions on attorney-client interviews). Statements of
Justices on this Court confirm the continuous applicability of Lee. See Grutter, 539 U.S. at 353
(2003) (Thomas, J., concurring in part and dissenting in part) (stating that prisoners are protected
against invidious racial discrimination under Lee); Overton v. Bazzetta, 539 U.S. 126, 138 (2003)
(Stevens, J., concurring) (same); Shaw v. Murphy, 532 U.S. 223, 228-29 (2001) (citing Lee in
dicta that “inmates . . . retain the right to be free from racial discrimination”); Croson, 488 U.S.
at 520-21 (1989) (Scalia, J. concurring) (citing Lee as requiring strict scrutiny of race
classifications in prisons). Post-Turner, the only other federal appellate courts considering this
issue, the Fifth and the Seventh Circuits, have rejected a relaxed standard in reviewing racial
segregation in prisons. See Sockwell v. Phelps, 20 F.3d 187, 191-92 (5th Cir. 1994) (applying
Lee’s “particularized circumstances” inquiry to a race-based equal protection claim in prison);
Black v. Lane, 824 F.2d 561, 562 (7th Cir. 1987) (“[A]bsent a compelling state interest, racial
discrimination in administering prisons violates the Equal Protection Clause . . . .”); cf. Pitts v.
Thornburgh, 866 F.2d 1450, 1453-54 (D.C. Cir. 1989) (refusing to apply Turner to gender-based
equal protection claims in prisons).
By disregarding Lee, the Ninth Circuit ignored this Court’s holding that its decisions
“remain binding precedent” until the Court explicitly reconsiders them. Hohn v. United States,
524 U.S. 236, 252-53 (1998). Only this Court, not lower courts, has the prerogative to overrule
Supreme Court decisions. See Rodriquez de Quijas v. Shearson/American Express, Inc., 490 U.S.
477, 484 (1989) (noting that “[i]f a precedent of this Court has direct application in a case, yet
appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should
12
follow the case which directly controls”). Because Lee v. Washington remains good law, the
Ninth Circuit was bound to follow it in this case.
D.
Turner v. Safley’s deferential standard of review is improper for racial
segregation in prisons because the government has an affirmative duty to
avoid racial discrimination.
Turner v. Safley’s deferential standard of is inappropriate for racial segregation in prisons
because the Equal Protection Clause confers a right to be free from discrimination, which
persons cannot exercise without the protection and support of the government. As the D.C.
Circuit recognized in Pitts v. Thornburgh, an equal protection claim is not just a “personal right,”
but a “demand that government action . . . not be predicated upon constitutionally defective
reasoning.” 866 F.2d at1455; see also Adarand, 515 U.S. at 224. An inmate asserting a racebased equal protection claim does not ask for access to or excusal from something. Rather, he
asks to be treated without regards to his race. The government’s duty under the Fourteenth
Amendment to avoid racial discrimination requires strict scrutiny review of any impositions of
racial classifications in prisons or elsewhere. 3
A high standard of review for racial segregation in prisons is necessary to hold the
government to its express duty to avoid discriminating by race. It is impossible to demand equal
protection, while simultaneously deferring to the government to act as it sees best, but this is
exactly what applying Turner to prison segregation cases would require. Under the Turner
standard, this Court’s longstanding presumption that racial classifications are motivated by an
invidious purpose would have to give way completely to the presumption that prison officials
acted properly and within their broad discretion, see Thornburgh v. Abbott, 490 U.S. 401 (1989).
3
The Petitioner does not argue that the Fourteenth Amendment prohibits government from making racial
classifications (e.g., listing an inmate’s race on his record), see Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256,
271 (1979), but only that it prohibits government from acting on those classifications, see Nordlinger v. Hahn, 505
U.S. 1, 10 (1992).
13
The Ninth Circuit’s recognition that California’s segregation policy, like all race classifications,
is “suspect on its face,” Johnson, 321 F.3d at 796 n.4, calls for the application of strict scrutiny to
this case. This Court should not allow Turner to trump the government’s duty to treat people
without regard to race.
Because racial segregation in prisons results in the utter elimination of the right to be free
from discrimination and the removal of a state duty, a higher standard of review than that
accorded under Turner is necessary. Unlike other rights, which can be exercised wholly or in
part, the right to be free from racial segregation cannot be exercised partway. A prisoner still
maintains a right to free speech if prison officials restrict the exercise of that right to certain
times, places, or manners, but he is no longer free from race discrimination when he is assigned
housing on the basis of his race.
Racial segregation results in not just the restriction of a right, but the complete
elimination of it, making Turner’s deferential standard of review for when a “regulation
impinges on inmates’ constitutional rights,” 482 U.S. at 89 (emphasis added) inapplicable. Given
the state’s duty to avoid racial classifications, Turner’s instruction to courts to consider
“alternative means of exercising the right that remain open to prison inmates,” 482 U.S. at 89, is
nonsensical in segregation cases. Being subject to discrimination only part of the time is not a
“reasonable alternative” to not being discriminated against at all. See Johnson, 336 F.3d 117,
1121 (9th Cir. 2003) (Ferguson, J., dissenting). As Judge Ferguson noted in dissent, “[t]his closeenough argument is akin to asserting that if a school-child only has to go to a segregated school
one-third of the year, the requirements of Brown v. Board of Education are met.” Id.
Not applying Turner to race-based equal protection cases does not contradict this Court’s
holding that the Turner standard applies “even when the constitutional right claimed to have
14
been infringed is fundamental, and the State under other circumstances would have been required
to satisfy a more rigorous standard of review,” Washington v. Harper, 494 U.S. 210, 223 (1990)
(emphasis added), because race-based equal protection cases deal not with the infringement of a
right, but the utter removal of it. All of this Court’s applications of Turner have involved
instances where a right was limited, but not eliminated. See Overton v. Bazzetta, 539 U.S. 126,
135 (2003) (upholding limitations on visitation because alternative means of communicating
exist); Harper, 494 U.S. 210 (1990) (upholding policy authorizing drug treatment as a valid
restriction on the ability to avoid unwanted treatment); O’Lone v. Estate of Shabazz, 482 U.S.
342, 352 (1987) (noting that “respondents are not deprived of all forms of religious exercise”);
Turner, 482 U.S. 78 (upholding a regulation restricting correspondence rights and invalidating
one restricting the ability to marry). When a right is completely removed, as is the case under
California’s segregation policy, the deference called for in Turner is unwarranted.
Turner also should not apply to racial segregation in prisons because race-based equal
protection claims implicate a duty of the state, not just a liberty interest. As the dissent to the
denial of rehearing in Johnson recognizes, “the right to be free from state-sponsored
segregationist policies is qualitatively different from other rights to which Turner has been
applied.” 336 F.3d at 1122 (Ferguson, J., dissenting). The dissent argues that the right to be free
from racial discrimination is different from this Court’s applications of Turner because the “right
asserted is not inconsistent with legitimate penological objectives.” Id. at 1117. Indeed, the needs
of prison officials that motivate the deferential standard in Turner are not nearly as significant in
the equal protection context where the inmate asks not for a special allowance to exercise a right,
but only for protection from racial discrimination by the state. Unlike the right to equal
protection, the rights at issue in Turner and its progeny are rights that one needs liberty to
15
exercise and thus that necessarily must be curtailed in the prison context. See Overton v.
Bazzetta, 539 U.S. 126 (2003) (upholding limitations on visitation); Harper, 494 U.S. 210, 236
(1990) (holding that policy authorizing drug treatment did not “unconstitutionally restrict
prisoner’s “liberty interest” in avoiding unwanted treatment (emphasis added)); O’Lone v. Estate
of Shabazz, 482 U.S. 352 (1987) (upholding regulations that limited attendance at a religious
service); Turner, 482 U.S. 78 (upholding correspondence restriction and striking down marriage
regulation). Because prisons need not inevitably curtail the right to be free from racial
segregation, a higher standard of review is necessary.
II.
CALIFORNIA’S PRACTICE OF ROUTINE RACIAL SEGREGATION OF STATE
PRISONERS VIOLATES THE EQUAL PROTECTION CLAUSE.
California’s segregation policy is an irrational response to unsubstantiated fears of race-
based violence in prison reception centers. It is not necessitated by “particularized
circumstances” and is not a narrowly tailored means of protecting a compelling interest, as
required by Lee v. Washington, 390 U.S. 333 (1967), nor is it rationally related to a legitimate
penological interest, as required by Turner v. Safley, 482 U.S. 78 (1987). This Court should thus
reverse the Ninth Circuit’s decision and declare the segregation policy unconstitutional under
either strict scrutiny or the more deferential Turner standard.
A.
California’s segregation policy does not withstand strict scrutiny because its
interest in reducing racial violence is not compelling and the policy is not
narrowly tailored.
California’s policy of segregating prisoners by race does not pass the standard articulated
in Lee, which requires prison officials to show their practices are justified by “particularized
circumstances” and “the necessities of prison security and discipline.” 390 U.S. at 334.
California offers virtually no proof that it has a compelling interest in preventing race-based
16
violence – the stated justification for its policy. Certainly prison is a violent place,4 and the
prevention of prison violence is a compelling interest, but there has been no showing by the
Respondents that particularized circumstances necessitated the segregation of inmates by race.
Rather, the record indicates that prison officials routinely segregated all reception center inmates
by race based on wholly unproven fears that putting different races together in cells would lead
to racial violence.
Unless prison officials can show that violence is more common in integrated cells than
segregated ones, they cannot justify their interest in reducing race-based violence as compelling.
Prison officials based their fears of increased racial violence on their assertions that gang-based
racial violence is prominent in the state’s prisons and individual cells are difficult to monitor. But
even accepting these two propositions as true, it is uncertain how and why this necessitates racial
segregation. Prison officials use race as a proxy for gang membership without justification. They
are unable to show that the segregation policy bears any relationship to reducing race-based
violence. Instead of reducing violence, California’s segregation policy may actually be
increasing racial violence by reinforcing existing prejudices and increasing racism. See generally
Robert Johnson, Hard Time: Understanding and Reforming the Prison (2d ed. 1996) (linking
racial segregation to increased racial prejudice in prisons); Kyle Johnson, Learning Prejudice in
Prisons, Christian Sci. Monitor, July 7, 1998, at 1.5 Segregated cells provide ready breeding
grounds for influence and even coercion of inmates to join race-based prison gangs, thus perhaps
4
In 2002, there were 4,018 assaults and batteries on inmates by other inmates in the California prison system.
Cal. Dep’t of Corrections, Inmate Incidents in Institutions, Calendar Year 2002, at 11 tbl. 5 (2003), available at
http://www.corr.ca.gov-OffenderInfoServices-Reports-Annual-BEH1-BEH1d2002.pdf. The CDC does not compile
statistics on race-based violence. The fact that such statistics do not even exist sheds further doubt on whether
reducing race-based violence is a compelling interest.
5
A large body of psychological literature shows that interracial contact decreases racism. See, e.g., Donna M.
Desforges et. al., Effects of Structured Cooperative Contacts on Changing Negative Attitudes Toward Stigmatized
Groups, 60 J. of Personality & Soc. Psych. 531 (1991); Christopher G. Ellis & Daniel A. Powers, The Contact
Hypothesis and Racial Attitudes Among Black Americans, 75 Soc. Sci. Q. 385 (1994). Though inmates are
integrated outside their cells, integration of the cells would increase the quantity and quality of interracial contacts.
17
leading to a greater amount of racial violence then would occur with integrated cells. See id.
Additionally, a recent study conducted in the Texas prison system showed that rates of violence
between integrated inmates were lower than between segregated inmates. See Chad Trulson &
James W. Marquart, The Caged Melting Pot: Toward an Understanding of the Consequences of
Desegregation in Prisons, 36 Law & Soc’y Rev. 743, 764 (2002); see also Martha L. Henderson
et al., Race, Rights, and Order in Prison: A National Survey of Wardens on the Racial
Integration of Prison Cells, 80 Prison J. 295, 304 tbl. 5 (2000) (finding that a majority of prison
wardens thought racially integrated cells would not increase the level of violence). Unless
officials can show that segregation is effective in reducing racial violence, the policy should not
be upheld.
California’s policy is really motivated by the fear of violence, see Johnson, 321 F.3d at
794, 804-05 (citing prison officials’ fears that integrated housing assignments would lead to
racial violence), but fear itself cannot rise to the level of a compelling interest. See Sockwell v.
Phelps, 20 F.3d 187, 191 (5th Cir. 1994) (“A generalized or vague fear of racial violence is not a
sufficient justification for a broad policy of racial segregation.”); United States v. Wyandotte
County, 480 F.2d 969, 971 (10th Cir. 1973) (per curiam) (“[A] vague fear on the part of the
authorities that desegregation may result in violence . . . is not enough.”); Blevins v. Brew, 593 F.
Supp. 245, 250 (W.D. Wisc. 1984); Stewart v. Rhodes, 473 F. Supp. 1185, 1188 (S.D. Ohio
1979); McClelland v. Sigler, 327 F. Supp. 829, 833-34 (D. Neb. 1971). The Fifth Circuit rejected
almost identical arguments for racial segregation in prisons to those offered by the Respondents
in Sockwell v. Phelps. As in this case, in Sockwell, the defendants argued – with little
proof –
that integration would exacerbate prison race-based violence. 20 F.3d at 191. The interest in
Sockwell was actually more compelling than California’s interest in segregating cells because the
18
defendants cited two instances of interracial violence in cells, see id. Here, the Respondents have
no evidence their fears of race-based violence are real, making the interest non-compelling.
Even assuming in arguendo that prison officials have a compelling interest for the racial
segregation policy, the policy is nonetheless invalid because it is not narrowly tailored to meet
that interest. California’s segregation policy is not narrowly tailored in four respects: persons
affected, locations, times, and means.
First, the policy is not narrowly tailored to particular inmates, who have or likely have a
propensity to commit race-based violence. The policy is applied to all reception center inmates,
even those who are known to be non-violent or about whom no reason exists to anticipate
violence. Additionally, it applies repeatedly to inmates who transfer facilities, despite the fact
that any tendency to commit race-based violence should already be known to prison officials
from the inmates’ past experiences within the prison system. California’s policy treats race as an
indicator of gang membership, thus employing stereotypes, and it “directly equate[s] race with
belief and behavior” contrary to the aims of the Fourteenth Amendment. Metro Broad., Inc. v.
FCC, 497 U.S. 547, 618 (1990) (O’Connor, J., dissenting), overruled by Adarand Constrs., Inc.
v. Pena, 515 U.S. 200, 227 (1995). “The chosen means, resting as they do on stereotyping and so
indirectly furthering the asserted end, could not plausibly be deemed narrowly tailored.” Id. at
617.
Unlike the admissions plan upheld in Grutter, California’s segregation policy does not
establish “individualized consideration” that uses race “in a flexible nonmechanical way.” 539
U.S. at 334; see also Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 318 n.52 (1978)
(identifying lack of “individualized consideration” as “principal evil” of affirmative action
program). The Respondents repeatedly emphasize that race is one factor used in housing
19
classification, but it is unarguably the first cut in the classification system. California’s policy
impermissibly employs race as the “defining feature,” see Grutter, 539 U.S. at 336, of division
into housing assignments in the prison reception centers. Prison officials’ focus on race in
evaluating prisoners is short-sighted, oversimplistic, and unconstitutional.
Second, the policy is not narrowly tailored to particular prisons, where race-based
violence is a significant current problem, but is applied to every reception center. Though
segregation might be merited following race riots or where particularly high racial tensions
existed, similar circumstances are surely not always present in all of the state’s prison reception
centers. The Ninth Circuit’s opinion cites past racial violence at the Pelican Bay Facility as an
indication of a widespread racial violence problem in the California prison system, see Johnson,
321 F.3d at 800 n.9, without providing any indication of why this violence is generalizable to
other prisons. Pelican Bay is a maximum security facility and thus it does not even have a
reception center,6 so conditions there are not reflective of a need for segregation elsewhere. To
justify implementing segregation at every prison, the Respondents must show that a significant
amount of race-based violence, or at least racial tensions, exists at each facility.
Third, the policy is not narrowly tailored to particular times following incidents or
threats of race-based violence. The policy at issue in this case is very different from the
circumstances anticipated by Lee and subsequent cases for when racial segregation could be
upheld. Even if this Court accepts prison officials’ fears of increased racial violence as truth, the
violence at issue does not rise to the level of “particularized circumstances,” Lee, 390 U.S. at 334
(Black, J., concurring), “a social emergency,” City of Richmond v. J.A. Croson, 488 U.S. 469,
520-21 (1989) (Scalia, J., concurring), or a “pressing public necessity,” Grutter, 539 U.S. at 353
See Cal. Dep’t of Corrections Website, Pelican Bay State Prison, http://www.corr.ca.gov/InstitutionsDiv/
INSTDIV/facilities/fac_prison_PBSP.asp (last visited Oct. 4, 2004).
6
20
(2003) (Thomas J., concurring in part and dissenting in part). The policy has been in effect for
twenty years and there is no end in sight. Unlike the admissions policy at issue in Grutter, id. at
309, there is no reason to expect that twenty-five years from now, California will no longer claim
it is necessary to segregate inmates by race. See also, e.g., United States v. Paradise, 480 U.S.
149, 185 (1987) (upholding an affirmative action plan because the measure is “temporary”). To
be narrowly tailored, the policy must be linked to specific instances of high racial tensions.
Finally, and most importantly, the policy is not narrowly tailored to the least restrictive
means of reducing race-based violence. Under strict scrutiny, a policy cannot pass constitutional
muster because it is the easiest, the most convenient, or the least expensive way of achieving a
compelling interest. See, e.g., Watson v. City of Memphis, 373 U.S. 526, 538 (1963) (requiring
desegregation of the city’s parks and noting that the vindication of rights cannot hinge on
whether “it is less expensive to deny than to afford them”). Instead, it must have the least impact
on the exercise of constitutional rights. Numerous alternatives exist that are completely
consistent with the protections afforded in the Fourteenth Amendment: Prison officials could
house all inmates in single cells during the sixty day period, increase monitoring of cells by
hiring additional staff or installing video cameras, or conduct more in-depth intake evaluations of
inmates. The California prison system itself employs a less restrictive alternative to determine
whether prisoners may enter integrated yards – “prison officials review the inmate’s file to
determine whether the inmate has any specific enemies or previous confrontations,” see
Robinson v. Prunty, 249 F.3d 862, 864 (9th Cir. 2001) – that could be adapted to reception center
housing assignments. Because ample less restrictive alternatives exist, racial segregation cannot
satisfy the narrow tailoring requirement of strict scrutiny.
21
Granted, there will be instances where racial segregation is necessary, but Lee establishes
that segregation is a short-term solution to crisis situations (e.g., race riots). California’s twenty
year policy affecting thousands of inmates is neither short term, nor a crisis response. No
compelling security interest exists for the policy, and the policy is not narrowly tailored to meet
California’s stated interest of reducing race-based violence. This Court should not uphold
California’s segregation policy, under Grutter, Lee, and this Court’s long line of race-based
equal protection cases.
B.
California’s segregation policy does not withstand the relaxed standard
articulated in Turner v. Safley because the policy is irrational, the policy
provides no alternative means of being free from racial discrimination,
eliminating the policy would not have significant adverse effects, and an easy
alternative exists.
Even if this Court applies the more deferential standard articulated in Turner, the Ninth
Circuit’s decision should be reversed because the segregation policy is not rationally related to a
legitimate penological interest, the policy forecloses the right to be free from racial
discrimination, accommodating the right would not significantly affect prison officials, inmates,
or resources, and an easy alternative to the policy exists, namely strengthening intake procedures.
Turner v. Lee establishes a four-pronged test for evaluating restrictions on prisoners’
constitutional rights. 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
89-90 (citing Block v. Rutherford, 468 U.S. 576, 586 (1984)). This connection cannot be “so
remote as to render the policy arbitrary or irrational.” Id. Second, courts should consider whether
prisoners have alternative means of exercising the right. The third factor is to what extent
accommodating the prisoner’s rights will affect guards, inmates, and the allocation of prison
resources. See id. at 90. The fourth factor is whether an obvious easy alternative policy would
22
accommodate prisoners’ rights at a de minimis costs.
See id. Because California’s racial
segregation policy is not rationally connected to the state’s proffered legitimate and neutral
objective of reducing race-based violence, the policy should fail the Turner test. Applying the
other three prongs further confirms the invalidity of the policy.
The Respondents have failed to demonstrate that the policy is reasonably related to a
legitimate penological interest. See Abbott v. Smaller, No. 88-2800, 1190 WL 13159, at *3 (E.D.
Pa. Sept. 5, 1990) (“It is questionable whether purposeful racial segregation can ever be a
legitimate and neutral governmental objective.”). Instead, the policy is grounded in vague and
amorphous fears that integrated cells will breed violence. See Johnson, 321 F.3d at 794, 804-05
(citing prison officials’ statements – without evidence – that integrated housing assignments
would lead to racial violence). In upholding the policy, the Ninth Circuit wrongly allowed
irrational fears to constitute a rational basis under Turner for racial segregation. See City of
Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 449 (1985) (“[D]enying a permit based on
such vague, undifferentiated fears is . . . permitting some portion of the community to validate
what would otherwise be an equal protection violation.”).
This Court’s decision in City of Cleburne v. Cleburne Living Center, Inc. illustrates the
error in the Ninth Circuit’s reasoning. In that case, a city ordinance required a special use permit
for the operation of a group home for the mentally retarded. The Court ruled that the ordinance
was unconstitutional under rational basis scrutiny because it was based not on reason, but on
“irrational prejudice.” Id. at 450. Specifically, the Court held that “the city never justifies”
treating the mentally disabled differently from other persons. Id. at 449-50. The same is true
here. The Respondents never justified their view that White prisoners safely can live with White
Prisoners when Black prisoners cannot.
23
As this Court has noted, the need of prison officials to maintain order “does not support a
claim that every step taken to protect constitutional rights of prisoners will lead to a breakdown
in institutional discipline and security.” Cleavinger v. Saxner, 474 U.S. 193, 208 (1985). It is one
thing to defer to prison officials as required by Turner, but quite another to be held captive by
their reasoning. Unsubstantiated fears based on stereotypes cannot possibly give rise to a
legitimate government interest.
The Ninth Circuit misapplied Turner by giving complete deference to prison officials,
rather than requiring them to provide some evidence of the effectiveness of the policy. See
Johnson, 321 F.3d at 803. This case is easily distinguishable from other cases where this Court
applied Turner to uphold a restriction after finding evidence of a reasonable connection, not just
a prediction that one might exist. See Overton v. Bazzetta, 539 U.S. 126, 133 (2003) (citing trial
testimony that reducing the number of child visitors improved supervision of children);
Washington v. Harper, 494 U.S. 210, 227 (1990) (noting that there is scientific consensus that
drugs are effective for controlling mental illnesses likely to cause violence); O’Lone v. Estate of
Shabazz, 482 U.S. 342, 350 (1987) (finding that the policy reduced critical overcrowding); cf.
Washington v. Davis, 426 U.S. 229, 235-36 (1976) (applying rational basis analysis to uphold the
police department’s test for applicants despite its disproportionate impact because the evidence
indicated a positive relationship between the test and training school performance). The complete
lack of any evidence of a connection – or even likely connection – between segregation and a
reduction in racial violence renders California’s policy unconstitutional.
California’s segregation policy is based on routine and automatic fears of racial violence,
not legitimate security interests. It is distinguishable from lower court cases applying Turner to
uphold prison segregation where significant security concerns existed. In White v. Morris, 832 F.
24
Supp. 1129 (S.D. Ohio 1993), the court upheld segregation in cell assignments after an elevenday race riot in which ten people, nine inmates and one prison official, were killed and all of the
inmates’ records were destroyed. Id. at 1130. And in Snow v. Lamarque, No. 01-0969, 2002
U.S. Dist. LEXIS 15876 (N.D. Cal. Aug. 13, 2002), the court upheld a lockdown of white
inmates implemented as an “emergency response” to stabbing incidents. Id. at *3. While the
same level of violence would not have to occur for the CDC to justify prison segregation,
officials’ failure to show even some evidence of a need for the segregation policy renders it
unconstitutional.
The lack of alternative means of exercising the right to be free from racial discrimination
further indicates the invalidity, under Turner, of California’s segregation policy. Once a
California inmate is assigned to segregated housing, he can no longer be free from racial
discrimination. The fact that inmates can associate with inmates of other races in the dining hall,
work assignments, and prison yards does not provide them with alternative means to exercise
their rights. The Respondents’ argument to the contrary would make sense if the Equal
Protection Clause was about the right to associate with people of different races. But this Court
has never conceptualized the Fourteenth Amendment as a right of association; it has consistently
held that the Amendment provides a right to be free from racial discrimination. Some
discrimination, by definition, cannot be a meaningful alternative. Although this Court has upheld
a prison regulation that prohibits a “particular exercise of [a] constitutional right[],” see O’Lone
v. Estate of Shabazz, 482 U.S. 343, 350 n.2 (1987), it has never upheld a regulation resulting in
the utter elimination of a right.
Eliminating the segregation policy would not significantly affect guards, prisoners, and
prison resources. The right to be free from racial discrimination is not a right that is asserted at
25
the expense of something else, so there is no “tradeoff,” see Turner, 482 U.S. at 92, between
Johnson’s equal protection rights and the liberty and safety of others. Existing empirical data
shows that integrating cells might even have a positive impact on prison security. See Chad
Trulson & James W. Marquart, The Caged Melting Pot: Toward an Understanding of the
Consequences of Desegregation in Prisons, 36 Law & Soc’y Rev. 743, 764 (2002). Since the
Respondents are unable to show a link between integrated cells and race-based violence, they
cannot argue that eliminating the segregation policy would have a considerable negative effect
on prison officials, prisoners, or prison resources.
The final proof that California’s policy should not be upheld is the availability of an easy
alternative to segregation that accommodates prisoners’ equal protection rights at a de minimis
cost – strengthening the initial screening procedure of inmates. By using more comprehensive
initial evaluations that weighed all of the factors currently considered by the CDC, including
prisoner’s gang affiliations and their history of violence and racial animus, the CDC could
ascertain inmates’ security needs and propensity to commit race-based violence without
automatically segregating inmates by race. California does not have to rely on self-identification
of gang affiliation, but can ascertain an inmate’s racial attitudes through questioning of the
inmate and evaluation in a prison yard or common room upon entry to the prison. The “existence
of [this] obvious, easy alternative[]” should serve as “evidence that the regulation is not
reasonable, but is an ‘exaggerated response’ to prison concerns.” Turner, 482 U.S. at 90-91.
This easy alternative is already in use in the federal prison system, see 28 C.F.R. § 522.21
(2003), and other state prison systems, see, e.g., Ill. Adm. Code tit. 20, § 503.20 (1993)
(providing for an evaluation period of new prisoners to review history, health status, and other
relevant information); N.Y. Comp. Codes R. & Regs. tit. 9, § 7013.7 (1995) (providing for an
26
initial screening and risk assessment upon entry into prison system). Under the federal
regulation, new inmates are separated from the general population until they are “cleared by the
Medical Department and provided a social interview by staff.” 28 C.F.R. § 522.21(a). Staff
evaluate whether there are “reasons for housing the inmate away from the general population.”
Id. As in Turner, the Bureau of Prisons’ regulations provide an easy measure against which to
determine whether an easy alternative exists. See Turner, 482 U.S. at 90-91 (upholding the
correspondence regulation because a similar federal regulation existed and invalidating the
marriage regulation because the corresponding federal regulation provided an easy alternative).
The existence of a federal alternative shows that prison officials need not segregate prisoners by
race to accomplish their goals.
Conclusion
For the foregoing reasons, we respectfully request that this Court reverse the decision of
the Court of Appeals for the Ninth Circuit and hold California’s racial segregation policy in
prisons unconstitutional.
Respectfully submitted,
####
Counsel for Petitioner
October 8, 2004
27