[ OConnor ]
[ Ginsburg ]
[ Stevens ]
[ Thomas ]
GARRISON S. JOHNSON, PETITIONER v.
CALIFORNIA et al.
ON WRIT OF CERTIORARI TO THE UNITED STATES
APPEALS FOR THE NINTH CIRCUIT
[February 23, 2005]
Justice OConnor delivered the opinion of the Court.
The California Department of Corrections (CDC) has an unwritten policy of racially segregating prisoners in double cells in reception centers for up to 60 days each time they enter a new correctional facility. We consider whether strict scrutiny is the proper standard of review for an equal protection challenge to that policy.
CDC institutions house all new male
inmates and all male inmates transferred from other state
facilities in reception centers for up to 60 days upon their
arrival. During that time, prison officials evaluate the
inmates to determine their ultimate placement. Double-cell
assignments in the reception centers are based on a number of
factors, predominantly race. In fact, the CDC has admitted
that the chances of an inmate being assigned a cellmate of
another race are
The CDCs asserted rationale for this practice is that it is necessary to prevent violence caused by racial gangs. Brief for Respondents 16. It cites numerous incidents of racial violence in CDC facilities and identifies five major prison gangs in the State: Mexican Mafia, Nuestra Familia, Black Guerilla Family, Aryan Brotherhood, and Nazi Low Riders. Id., at 2. The CDC also notes that prison-gang culture is violent and murderous. Id., at 3. An associate warden testified that if race were not considered in making initial housing assignments, she is certain there would be racial conflict in the cells and in the yard. App. 215a. Other prison officials also expressed their belief that violence and conflict would result if prisoners were not segregated. See, e.g., id., at 305a306a. The CDC claims that it must therefore segregate all inmates while it determines whether they pose a danger to others. See Brief for Respondents 29.
With the exception of the double cells in reception areas, the rest of the state prison facilitiesdining areas, yards, and cellsare fully integrated. After the initial 60-day period, prisoners are allowed to choose their own cellmates. The CDC usually grants inmate requests to be housed together, unless there are security reasons for denying them.
Garrison Johnson is an African-American inmate in the custody of the CDC. He has been incarcerated since 1987 and, during that time, has been housed at a number of California prison facilities. Fourth Amended Complaint 3, Record, Doc. No. 78. Upon his arrival at Folsom prison in 1987, and each time he was transferred to a new facility thereafter, Johnson was double-celled with another African-American inmate. See ibid.
Johnson filed a complaint pro se in the United States District Court for the Central District of California on February 24, 1995, alleging that the CDCs reception-center housing policy violated his right to equal protection under the Fourteenth Amendment by assigning him cellmates on the basis of his race. He alleged that, from 1987 to 1991, former CDC Director James Rowland instituted and enforced an unconstitutional policy of housing inmates according to race. Second Amended Complaint 24, Record, Doc. No. 21. Johnson made the same allegations against former Director James Gomez for the period from 1991 until the filing of his complaint. Ibid. The District Court dismissed his complaint for failure to state a claim. The Court of Appeals for the Ninth Circuit reversed and remanded, holding that Johnson had stated a claim for racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. Johnson v. California, 207 F.3d 650, 655 (2000).
On remand, Johnson was appointed counsel and granted leave to amend his complaint. On July 5, 2000, he filed his Fourth Amended Complaint. Record, Doc. No. 81. Johnson claimed that the CDCs policy of racially segregating all inmates in reception-center cells violated his rights under the Equal Protection Clause. Johnson sought damages, alleging that former CDC Directors Rowland and Gomez, in their individual capacities, violated his constitutional rights by formulating and implementing the CDCs housing policy. He also sought injunctive relief against former CDC Director Stephen Cambra.
Johnson has consistently challenged, and the CDC has consistently defended, the policy as a wholeas it relates to both new inmates and inmates transferred from other facilities. Johnson was first segregated in 1987 as a new inmate when he entered the CDC facility at Folsom. Since 1987, he has been segregated each time he has been transferred to a new facility. Thus, he has been subject to the CDCs policy both as a new inmate and as an inmate transferred from one facility to another.
After discovery, the parties moved for summary judgment. The District Court granted summary judgment to the defendants on grounds that they were entitled to qualified immunity because their conduct was not clearly unconstitutional. The Court of Appeals for the Ninth Circuit affirmed. 321 F.3d 791 (2003). It held that the constitutionality of the CDCs policy should be reviewed under the deferential standard we articulated in Turner v. Safley, 482 U.S. 78 (1987)not strict scrutiny. 321 F.3d, at 798799. Applying Turner, it held that Johnson had the burden of refuting the common-sense connection between the policy and prison violence. 321 F.3d, at 802. Though it believed this was a close case, id., at 798, the Court of Appeals concluded that the policy survived Turners deferential standard, 321 F.3d, at 807.
The Court of Appeals denied Johnsons petition for rehearing en banc. Judge Ferguson, joined by three others, dissented on grounds that [t]he panels decision ignore[d] the Supreme Courts repeated and unequivocal command that all racial classifications imposed by the government must be analyzed by a reviewing court under strict scrutiny, and fail[ed] to recognize that [the] Turner analysis is inapplicable in cases, such as this one, in which the right asserted is not inconsistent with legitimate penological objectives. 336 F.3d 1117 (2003) (internal quotation marks and citations omitted). We granted certiorari to decide which standard of review applies. 540 U.S. 1217 (2004).
We have held that all racial classifications [imposed by government] must be analyzed by a reviewing court under strict scrutiny. Adarand Constructors, Inc. v. Peńa, 515 U.S. 200, 227 (1995) (emphasis added). Under strict scrutiny, the government has the burden of proving that racial classifications are narrowly tailored measures that further compelling governmental interests. Ibid. We have insisted on strict scrutiny in every context, even for so-called benign racial classifications, such as race-conscious university admissions policies, see Grutter v. Bollinger, 539 U.S. 306, 326 (2003), race-based preferences in government contracts, see Adarand, supra, at 226, and race-based districting intended to improve minority representation, see Shaw v. Reno, 509 U.S. 630, 650 (1993).
The reasons for strict scrutiny are
familiar. Racial classifications raise special fears that they
are motivated by an invidious purpose. Thus, we have
admonished time and again that, [a]bsent searching
judicial inquiry into the justification for such race-based
measures, there is simply no way of determining
classifications are in fact motivated by illegitimate notions
of racial inferiority or simple racial politics.
Richmond v. J. A. Croson Co., 488 U.S. 469, 493
(1989) (plurality opinion). We therefore apply strict scrutiny
to all racial classifications to
The CDC claims that its policy should be exempt from our categorical rule because it is neutralthat is, it neither benefits nor burdens one group or individual more than any other group or individual. Brief for Respondents 16. In other words, strict scrutiny should not apply because all prisoners are equally segregated. The CDCs argument ignores our repeated command that racial classifications receive close scrutiny even when they may be said to burden or benefit the races equally. Shaw, supra, at 651. Indeed, we rejected the notion that separate can ever be equalor neutral50 years ago in Brown v. Board of Education, 347 U.S. 483 (1954), and we refuse to resurrect it today. See also Powers v. Ohio, 499 U.S. 400, 410 (1991) (rejecting the argument that race-based peremptory challenges were permissible because they applied equally to white and black jurors and holding that [i]t is axiomatic that racial classifications do not become legitimate on the assumption that all persons suffer them in equal degree).
We have previously applied a heightened standard of review in evaluating racial segregation in prisons. In Lee v. Washington, 390 U.S. 333 (1968) (per curiam), we upheld a three-judge courts decision striking down Alabamas policy of segregation in its prisons. Id., at 333334. Alabama had argued that desegregation would undermine prison security and discipline, id., at 334, but we rejected that contention. Three Justices concurred to make explicit something that is left to be gathered only by implication from the Courts opinionthat prison authorities 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. Ibid. (emphasis added). The concurring Justices emphasized that they were unwilling to assume that state or local prison authorities might mistakenly regard such an explicit pronouncement as evincing any dilution of this Courts firm commitment to the Fourteenth Amendments prohibition of racial discrimination. Ibid.
The need for strict scrutiny is no less important here, where prison officials cite racial violence as the reason for their policy. As we have recognized in the past, racial classifications threaten to stigmatize individuals by reason of their membership in a racial group and to incite racial hostility. Shaw, supra, at 643 (citing J. A. Croson Co., supra, at 493 (plurality opinion) (emphasis added)). Indeed, by insisting that inmates be housed only with other inmates of the same race, it is possible that prison officials will breed further hostility among prisoners and reinforce racial and ethnic divisions. By perpetuating the notion that race matters most, racial segregation of inmates may exacerbate the very patterns of [violence that it is] said to counteract. Shaw, supra, at 648; see also Trulson & Marquart, The Caged Melting Pot: Toward an Understanding of the Consequences of Desegregation in Prisons, 36 Law & Soc. Rev. 743, 774 (2002) (in a study of prison desegregation, finding that over [10 years] the rate of violence between inmates segregated by race in double cells surpassed the rate among those racially integrated). See also Brief for Former State Corrections Officials as Amici Curiae 19 (opinion of former corrections officials from six States that racial integration of cells tends to diffuse racial tensions and thus diminish interracial violence and that a blanket policy of racial segregation of inmates is contrary to sound prison management).
The CDCs policy is unwritten. Although California claimed at oral argument that two other States follow a similar policy, see Tr. of Oral Arg. 3031, this assertion was unsubstantiated, and we are unable to confirm or deny its accuracy.2 Virtually all other States and the Federal Government manage their prison systems without reliance on racial segregation. See Brief for United States as Amicus Curiae 24. Federal regulations governing the Federal Bureau of Prisons (BOP) expressly prohibit racial segregation. 28 CFR § 551.90 (2004) ([BOP] staff shall not discriminate against inmates on the basis of race, religion, national origin, sex, disability, or political belief. This includes the making of administrative decisions and providing access to work, housing and programs). The United States contends that racial integration actually leads to less violence in BOPs institutions and better prepares inmates for re-entry into society. Brief for United States as Amicus Curiae 25. Indeed, the United States argues, based on its experience with the BOP, that it is possible to address concerns of prison security through individualized consideration without the use of racial segregation, unless warranted as a necessary and temporary response to a race riot or other serious threat of race-related violence. Id., at 24. As to transferees, in particular, whom the CDC has already evaluated at least once, it is not clear why more individualized determinations are not possible.
Because the CDCs policy is an express racial classification, it is immediately suspect. Shaw, 509 U.S., at 642; see also Washington v. Seattle School Dist. No. 1, 458 U.S. 457, 485 (1982). We therefore hold that the Court of Appeals erred when it failed to apply strict scrutiny to the CDCs policy and to require the CDC to demonstrate that its policy is narrowly tailored to serve a compelling state interest.
The CDC invites us to make an exception to the rule that strict scrutiny applies to all racial classifications, and instead to apply the deferential standard of review articulated in Turner v. Safley, 482 U.S. 78 (1987), because its segregation policy applies only in the prison context. We decline the invitation. In Turner, we considered a claim by Missouri prisoners that regulations restricting inmate marriages and inmate-to-inmate correspondence were unconstitutional. Id., at 81. We rejected the prisoners argument that the regulations should be subject to strict scrutiny, asking instead whether the regulation that burdened the prisoners fundamental rights was reasonably related to legitimate penological interests. Id., at 89.
We have never applied Turner to
racial classifications. Turner itself did not involve
any racial classification, and it cast no doubt on Lee.
We think this unsurprising, as we have applied
Turners reasonable-relationship test only
to rights that are inconsistent with proper
incarceration. Overton v. Bazzetta, 539 U.S. 126, 131
(2003); see also Pell v. Procunier, 417 U.S. 817, 822
(1974) ([A] prison inmate retains those First Amendment
rights that are not inconsistent with his status as a prisoner
or with the legitimate penological objectives of the
corrections system). This is because certain privileges
and rights must necessarily be limited in the prison context.
See OLone v. Estate of Shabazz, 482 U.S. 342, 348
The right not to be discriminated
against based on ones race is not susceptible to the
logic of Turner. It is not a right that need
necessarily be compromised for the sake of proper prison
administration. On the contrary, compliance with the Fourteenth
Amendments ban on racial discrimination is not only
consistent with proper prison administration, but also bolsters
the legitimacy of the entire criminal justice system. Race
discrimination is especially pernicious in the
administration of justice. Rose v.
U.S. 545, 555 (1979). And public respect for our system of
justice is undermined when the system discriminates based on
race. Cf. Batson v. Kentucky, 476 U.S. 79, 99 (1986)
([P]ublic respect for our criminal justice system and the
rule of law will be strengthened if we ensure that no citizen
is disqualified from jury service because of his race).
When government officials are permitted to use race as a proxy
for gang membership and violence without demonstrating a
compelling government interest and proving that their means are
narrowly tailored, society as a whole suffers. For similar
reasons, we have not used Turner to evaluate Eighth Amendment
claims of cruel and unusual punishment in prison. We judge
violations of that Amendment under the deliberate
indifference standard, rather than Turners
reasonably related standard. See Hope v.
U.S. 730, 738 (2002) (asking whether prison officials
In the prison context, when the governments power is at its apex, we think that searching judicial review of racial classifications is necessary to guard against invidious discrimination. Granting the CDC an exemption from the rule that strict scrutiny applies to all racial classifications would undermine our unceasing efforts to eradicate racial prejudice from our criminal justice system. McCleskey v. Kemp, 481 U.S. 279, 309 (1987) (internal quotation marks omitted).
The CDC argues that [d]eference to the particular expertise of prison officials in the difficult task of managing daily prison operations requires a more relaxed standard of review for its segregation policy. Brief for Respondents 18. But we have refused to defer to state officials judgments on race in other areas where those officials traditionally exercise substantial discretion. For example, we have held that, despite the broad discretion given to prosecutors when they use their peremptory challenges, using those challenges to strike jurors on the basis of their race is impermissible. See Batson, supra, at 8996. Similarly, in the redistricting context, despite the traditional deference given to States when they design their electoral districts, we have subjected redistricting plans to strict scrutiny when States draw district lines based predominantly on race. Compare generally Vieth v. Jubilier, 541 U.S. 267 (2004) (partisan gerrymandering), with Shaw v. Reno, 509 U.S. 630 (1993) (racial gerrymandering).
We did not relax the standard of
review for racial classifications in prison in Lee, and
we refuse to do so today. Rather, we explicitly reaffirm what
we implicitly held in Lee: The necessities of
prison security and discipline, 390 U.S., at 334,
are a compelling government interest justifying only those uses
of race that are narrowly tailored to address those
necessities. See Grutter, 539 U.S., at 353
(Thomas, J., concurring in part and dissenting in part)
(citing Lee for the principle that protecting
prisoners from violence might justify narrowly tailored racial
discrimination); J. A. Croson Co., 488 U.S.,
at 521 (Scalia, J., concurring) (citing Lee for the
proposition that only a social emergency rising to the
level of imminent danger to life or limbfor example, a
prison race riot, requiring temporary segregation of
inmatescan justify an exception to the principle embodied
in the Fourteenth
Amendment that [o]ur Constitution is color-blind, and
neither knows nor tolerates classes among citizens
Justice Thomas would subject
race-based policies in prisons to Turners
deferential standard of review because, in his view, judgments
about whether race-based policies are necessary are
better left in the first instance to the officials who run our
Nations prisons. Post, at 20. But
Turner is too lenient a standard to ferret out invidious
uses of race. Turner requires only that the policy be
reasonably related to legitimate penological
interests. 482 U.S., at 89. Turner would allow
prison officials to use race-based policies even when there are
race-neutral means to accomplish the same goal, and even when
the race-based policy does not in practice advance that goal.
See, e.g., 321 F.3d, at 803 (case below) (reasoning
that, under Turner, the Court of Appeals did not
have to agree that the policy actually advances the CDCs
legitimate interest, but only [that] defendants might
reasonably have thought that the policy would advance its
For example, in Justice Thomas world, prison officials could segregate visiting areas on the ground that racial mixing would cause unrest in the racially charged prison atmosphere. Under Turner, [t]he prisoner would have to prove that there would not be a riot. [But] [i]t is certainly plausible that such a riot could ensue: our society, as well as our prisons, contains enough racists that almost any interracial interaction could potentially lead to conflict. 336 F.3d, at 1120 (case below) (Ferguson, J., dissenting from denial of rehearing en banc). Indeed, under Justice Thomas view, there is no obvious limit to permissible segregation in prisons. It is not readily apparent why, if segregation in reception centers is justified, segregation in the dining halls, yards, and general housing areas is not also permissible. Any of these areas could be the potential site of racial violence. If Justice Thomas approach were to carry the day, even the blanket segregation policy struck down in Lee might stand a chance of survival if prison officials simply asserted that it was necessary to prison management. We therefore reject the Turner standard for racial classifications in prisons because it would make rank discrimination too easy to defend.
The CDC protests that strict scrutiny will handcuff prison administrators and render them unable to address legitimate problems of race-based violence in prisons. See also post, at 9, 2425 (Thomas, J., dissenting). Not so. Strict scrutiny is not strict in theory, but fatal in fact. Adarand, 515 U.S., at 237 (internal quotation marks omitted); Grutter, 539 U.S., at 326327 (Although all governmental uses of race are subject to strict scrutiny, not all are invalidated by it). Strict scrutiny does not preclude the ability of prison officials to address the compelling interest in prison safety. Prison administrators, however, will have to demonstrate that any race-based policies are narrowly tailored to that end. See id., at 327 (When race-based action is necessary to further a compelling governmental interest, such action does not violate the constitutional guarantee of equal protection so long as the narrow-tailoring requirement is also satisfied).3
The fact that strict scrutiny applies says nothing about the ultimate validity of any particular law; that determination is the job of the court applying strict scrutiny. Adarand, supra, at 229230. At this juncture, no such determination has been made. On remand, the CDC will have the burden of demonstrating that its policy is narrowly tailored with regard to new inmates as well as transferees. Prisons are dangerous places, and the special circumstances they present may justify racial classifications in some contexts. Such circumstances can be considered in applying strict scrutiny, which is designed to take relevant differences into account.
We do not decide whether the CDCs policy violates the Equal Protection Clause. We hold only that strict scrutiny is the proper standard of review and remand the case to allow the Court of Appeals for the Ninth Circuit, or the District Court, to apply it in the first instance. See Consolidated Rail Corporation v. Gottshal, 512 U.S. 532, 557558 (1994) (reversing and remanding for the lower court to apply the correct legal standard in the first instance); Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 10311032 (1992) (same). The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
The Chief Justice took no part in the decision of this case.
1. Justice Thomas takes a hands-off approach to racial classifications in prisons, suggesting that a compelling showing [is] needed to overcome the deference we owe to prison administrators. Post, at 21 (dissenting opinion). But such deference is fundamentally at odds with our equal protection jurisprudence. We put the burden on state actors to demonstrate that their race-based policies are justified.
2. Though, as Justice Thomas points out,
see post, at 2223, and n. 12, inmates in
reception centers in Oklahoma and Texas are not generally
assigned randomly to racially integrated cells, it is
also the case that these inmates are not precluded from
integrated cell assignments. Oklahoma Dept. of
Corrections, Policies and Procedures, Operations Memorandum No.
OP030102, Inmate Housing (Sept. 16, 2004), available at
http://www.doc.state.ok.us/docs/policies.htm (as visited Jan.
21, 2005, and available in the Clerk of Courts case
file); Texas Dept. of Criminal Justice, Security Memorandum No.
SM01.28, Assignment to General Population Two-Person
Cells (June 15, 2002). See also Brief for Former State
Corrections Officials as Amici Curiae 20, n. 10
(To the extent that race is considered in the assignment
calculus in Oklahoma, it appears to be one factor among many,
and as a result, individualized consideration is given to all
inmates). We therefore have no way of knowing whether,
in practice, inmates in Oklahoma and Texas, like those in
California, have close to no chance, App. to Pet. for Cert. 3a,
of being celled with a person of a different race. See also
Brief for Former State Corrections Officials as Amici Curiae
1920 ([W]e are aware of no state other than
California that assumes that every incoming prisoner is
incapable of getting along with a cell mate of a different
race. And we are aware of no state other than California that
has acted on such an assumption by adopting an inflexible and
absolute policy of racial segregation of double cells in
3. Justice Thomas characterizes the CDCs policy as a limited one, see post, at 2, but the CDCs policy is in fact sweeping in its application. It applies to all prisoners housed in double cells in reception centers, whether newly admitted or transferred from one facility to another. Moreover, despite Justice Thomas suggestion that the CDC considers other nonracial factors in determining housing placements, the CDC itself has admitted that, in practice, there is a [p]retty close to zero percent chance that an inmate will be housed with a person of a different race. App. to Pet. for Cert. 3a. See also generally post, at 12, and n. 1 (Stevens, J., dissenting). Thus, despite an inmates age, physical size, mental health, medical needs, [and] criminal history, post, at 13 (Thomas, J., dissenting), the fact that he is black categorically precludes him from being celled with a white inmate. As we explain, see infra, at 15, we do not decide whether the threat of violence in California prisons is sufficient to justify such a broad policy.