Amicus Curiae Brief — Johnson v. California

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No O8-6 th waa,.% = > HE CLE SK

In the Suvreme Court of the Cuted States

BRIEF FOR THE UNITEDSTATES

AS AMICUS CURIAE SUPPORTING PETITIONER

QUESTION PRESENTED

1. Whether state-imposed racial classifications in

prisons are subject to strict scrutiny under the Equal

Protection Clause.

2. Whether California’s policy of segregating prison-

s for a minimum of 60 days

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eac! Ime a prisonel enters a new Institution vioiates

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the Equal Protection Clause

(1)

TABLE OF CONTENTS

I. Strict scrutiny, rather than Turner's “reason-

ably related” standard, applies to the CDC's race-

based housing policy

A. All race-based state actions must satisfy

strict scrutiny

B. Turner's “reasonably related” standard does

not apply to the Fourteenth Amendment's

C. Application of strict scrutiny would preserve

any legitimate need for flexibility by prison

officials ‘

II. The CDC's race-based housing policy violates

the Equal Protection Clause because it is not

narrowly tailored to achieve a compelling state

BD cercitrenseetecenserscenstnnnesneeenesneneenseninennesseesessenemnenesese

A. The CDC has a compelling interest in the

security, discipline, and good order of its

prisons

B. The CDC’s segregation policy is not narrowly

tailored to achieve its compelling interest in

prison security

Conclusion ......

(IID)

10

13

19

21

21

IV

TABLE OF AUTHORITIES

Cases: Page

Adarand Constructors, Inc. v. Pena, 515 U.S. 200

OED <ccciemmunmmeienniaiiil 10, 21

Batson v. Kentucky, 476 U.S. 79 (1986) .. 15, 18

Black v. Lane, 824 F.2d 561 (7th Cir, 1987) ...........eecenenees 16

Blevins v. Brew, 593 F. Supp. 245 (W.D. Wis. 1984) ....... 26

Cruz v. Beto, 405 U.S. 319 (1972) «2.0... a ae

Grutter v. Bollinger, 123 S. Ct. 2325 (2008) ......0 passim

Hope v. Pelzer, 536 U.S. T30 (2002) .......seeseeneesneenreeneeneenees 15

Jones v. North Carolina Prisoners Labor Union,

Inc... 483 U.S. 119 (19TT) .........00..c00ceereeereeserene 22

Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993) ........... 16

Lee v. Washington, 390 U.S. 333 (1968) 4, 7, 11,

12, 19, 20, 21, 22

Miller-El v. Cockrell, 587 U.S. 322 (2008) .... 20-21

Morrison v. Garraghty, 239 F.3d 648 (4th Cir.

| we _ 16

O’Lone v. Shabazz, 482 U.S. 342 (1987) 14, 15

Overton v. Bazzetta, 539 U.S. 126 (2008) ..........cceeeees 14,15

Pargo v. Elliot, 49 F.3d 1355 (8th Cir. 1995) 16

Pell v. Procunier, 417 U.S. 817 (1974) 22

Pitts v. Thornburgh, 866 F 2d 1450 (D.C. Cir. .

1999) 16, 17, 18, 20

Richmond vy. J.A. Croson Co., 488 U.S. 469

(1989) 12, 19

Rose v. Mitchell, 443 U.S. 545 (1979) 15, 17

Rostker v. Goldberg, 453 U.S. 57 (1981) 19

Shaw v. Murphy, 532 U.S. 223 (2001) 15

Shaw v. Reno, 509 U.S. 630 (1993) 14, 18

Sockwell v. Phelps, 20 F.3d 187 (Sth Cir. 1994) .......... 12, 16,

27, 28

Stewart v. Rhodes, 473 F. Supp. 1185 (S.D. Ohio

1979), appeal dismissed, 661 F.2d 934 (6th Cir. 1981) ..... 28

Thornburgh v. Abbott, 490 U.S. 401 (1989) 15

— em ce OI ALE IE GE ——"

Cases—Continued: Page

Turner v. Safley, 482 U.S. 78 (1987) ............ 4, 5, 7, 10, 13,14

United States v. Wyandotte County, 480 F.2d 969

(10th Cir.), cert. denied, 414 U.S. 1068 (1973) 00... 29

Vieth v. Jubelirer, 124 8. Ct. 1769 (2004) 18

Washington v. Harper, 494 U.S. 210 (1990) 15

Washington v. Lee, 263 F. Supp. 327 (D. Ala. 1966) ........ 30

Constitution, statutes and regulations:

U.S. Const.:

Amend. I (Free Exercise Clause) 15

Amend. V

Amend. VIII

Amend. XIV, § 1 (Equal Protection Clause) ............

Civil Rights Act of 1964, Tit. VI, 42 U.S.C. 2000d

O08) cee

Civil Rights of Institutionalized Persons Act,

42 U.S.C. 1997 et seq.

Omnibus Crime Control and Safe Streets Act of 1968,

42 U.S.C. 3789d(c)

28 C.F.R. 551.90 2,

1

1

1

, 24-25

Ariz. Corr. Reg. § 908.02(1.5) (Sept. 1, 1996) 26

26

26

26

Colo. Corr. Reg. § 850-15 (Oct. 15, 2003)

Conn. Corr. Reg. § 9.2(1) (Mar. 5, 2003)

Tenn. Corr. Reg. 506.14(VI)(A)(4) (Aug. 15, 2003) .............

Miscellaneous:

American Corr. Ass'n, Standards for Adult Correctional

Institutions (4th ed. 2003)

Federal Bureau of Prisons, Dep't of Justice, Program

Statement 1040.04 (Jan. 29, 1999)

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

(2000) 26

VI

In the Supreme Court of the United States

Miscellaneous—C ontinued: Page

Chad Trulson & James W. Marquart, The Caged Melting No. 03-636

Pot: Toward on Understanding of the Consequences ‘

of Desegregation in Prisons, 36 L. & Soc’y Rev. GARRISON S. JOHNSON, PETITIONER

| 27

v.

STATE OF CALIFORNIA, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS~ | =

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

The United States has an interest in what constitu-

tional standard applies to claims alleging racial dis-

crimination in violation of the Equal Protection Clause

in prisons. This Court has held that Title VI of the

Civil Rights Act of 1964, 42 U.S.C. 2000d et seq., pro-

scribes only those racial classifications that would

violate the Equal Protection Clause. See, e.g., Grutter

v. Bollinger, 123 S. Ct. 2325, 2347 (2003). The Attorney

General has enforcement responsibility for Title VI and

the Omnibus Crime Control and Safe Streets Act of

1968, 42 U.S.C. 3789d(c), which is modeled after Title

VI, with respect to prisons that receive federal financial

assistance. In addition, the Civil Rights of Institu-

tionalized Persons Act, 42 U.S.C. 1997 et seq., author-

izes the Attorney General to investigate conditions of

confinement in correctional facilities when it is alleged

(1) —

2

that prisoners are being deprived of constitutional

rights pursuant to a pattern or practice of resistance to

the full enjoyment of those rights. Finally, the United

States, through the Bureau of Prisons (BOP), is

responsible for ensuring compliance with the equal

protection component of the Fifth Amendment-in the

104 institutions it administers. Regulations governing

BOP likewise prohibit racial discrimination in the

making of administrative decisions and in the provision

of access to work, housing, and programs. 28 C.F.R.

551.90.

STATEMENT

1. Petitioner, Garrison Johnson, is an African-

American prisoner in the California Department of

Corrections (CDC). He was initially incarcerated in

1987, and, since then, has been housed at a number of

different CDC facilities. At each facility, he was

double-celled with another African-American inmate.

Pet. App. 2a.

All male inmates within the CDC,’ upon arrival at a

CDC institution either as a new inmate or as a transfer

from another facility, are initially housed at a reception

center for at least 60 days. During that period, inmates

undergo a number of evaluations to determine where

they should ultimately be placed. To determine in-

mates’ initial double-cell housing placements at the

reception center, the CDC looks at a number of factors,

including race. Although race is not the sole factor, “it

is a dominant factor.” Pet. App. 3a. The CDC itself

indicated that “the chances of an inmate being assigned

' Because petitioner is male, this case addresses only male

housing policies. The court of appeals opinion does not indicate

whether female inmates are similarly segregated by race. See Pet.

App. 2a n.1.

3

a cell mate of another race [are] ‘[p]retty close’ to zero

percent.” Jbid. Reception center officials further di-

vide inmates within each racial category (black, white,

Asian, and “other”) by national origin or geography.

For example, Asians of Japanese and Chinese descent

are generally not housed together, nor are Hispanics

from Northern California and Hispanics from Southern

California. The CDC claims that race is considered

because, in its experience, race is important to inmates

and plays a significant role in antisocial behavior. /d. at

2a-4a.

Although race is used to determine initial double-cell

placements, the rest of the prison is fully integrated.

After 60 days at the reception center, the inmate either

is assigned a cell within the current institution where

he will be permanently housed or is transferred to

another institution where his classification indicates

that he would be better suited. If the inmate is trans-

ferred, he again goes through the initial race-based

screening process. If the inmate stays at the institution

and has the appropriate security classification, he may

be transferred to a dormitory or a single cell or remain

in a double ceil. Race is not used as a factor in any of

those placements, and inmates who remain in double

cells are allowed to choose their own cell mate. Within

each dormitory, however, the CDC attempts to

maintain a racial balance so as to reduce the likelihood

of racial violence. Pet. App. 4a-5a.

2. On February 24, 1995, petitioner filed his original

complaint pro se in the Central District of California,

alleging that the CDC’s reception center housing policy

violated his constitutional rights by assigning inmates’

cell mates on the basis of race. In January 1998, the

district court dismissed his third amended complaint

without leave and petitioner appealed. The Ninth Cir-

d

cuit reversed, holding that petitioner’s allegations were

“sufficient to state a claim for racial discrimination in

violation of the Equal Protection Clause of the Four-

teenth Amendment.” Pet. App. 5a-6a.

On remand, petitioner was appointed counsel and

granted leave to amend his complaint. The district

court granted summary judgment on behalf of the re-

spondents on the ground that they were entitled to

qualified immunity because their actions were not

clearly unconstitutional. Pet. App. 6a-7a.

3. a. The court of appeals affirmed.- The court held

that the constitutionality of the CDC’s race-based.

housing policy should be evaluated under the relaxed,

deferential standard of review this Court articulated in

Turner v. Safley, 482 U.S. 78, 89 (1987), rather than the

strict scrutiny standard normally applied to govern-

ment-imposed racial classifications. Pet. App. 8a-13a.

The court acknowledged this Court’s decision in Lee v.

Washington, 390 U.S. 333 (1968), which held that racial

segregation in prisons violates the Equal Protection

Clause of the Fourteenth Amendment. It also noted

that a three-Justice concurrence in that case recognized

that “prison authorities have the right, acting in good

faith and in particularized circumstances, tc take into

account racial tensions in maintaining security, disci-

pline, and good order in prisons and jails.” Pet. App. 9a.

The court of appeals, however, refused to apply Lee’s

presumption of unconstitutionality to the racial classi-

fication at issue in this case, explaining that “(ijn 1987,

in recognition of the unique circumstances that prisons _

present, the Supreme Court promulgated a new

deferential test for examining the constitutional rights

of prisoners [in] Turner v. Safley.” Id. at lla. Under

that deferential standard, the court explained, “when a

prison regulation impinges on inmates’ constitutional

5

rights, the regulation is valid if it is reasonably related

to legitimate penological interests.” Jd. at 12a (quoting

Turner, 482 U.S. at 89).

The court further explained that it read Turner as at

least partially overturning this Court’s prior decision in

Lee. According to the court, “Turner was not merely a

cosmetic change in the Court’s language”; instead, it

“ostensibly expanded the definition of ‘particularized

circumstances’ and ‘necessary for security and dis-

cipline’”—i.e., the limited circumstances that the

concurring Justices in Lee suggested would be suffi-

cient to justify a race-based prison housing policy—

and, more generally, it “lowered the prison administra-

tors’ burden to justify race-based policies.” Pet. App.

13a. Under Turner, therefore, the plaintiff, rather than

the prison administrators, bears the “heavy burden” of

proving that a race-based prison policy is unconstitu-

tional. Jbid. Thus, the court held that “[t]o prevail,

[Johnson] must overcome the presumption that the

prison officials acted within their ‘broad discretion” in

adopting their racial segregation policy. Ibid. (citation

omitted). The court further held that to the extent that

Turner and Lee “point to divergent paths, we are bound

to follow Turner.” Ibid.

In applying Turner’s test to the facts of this case, the

court of appeals held that the CDC’s race-based hous-

ing policy was reasonably related to prison administra-

tors’ concern about increased violence. Pet. App. 13a-

3la. The court emphasized, however, that this was a

“close case,” in which “the standard of review is para-

mount.” Jd. at lla. It acknowledged that there “may

be many ways in which to achieve the state’s objective

in reducing racial violence in the CDC” and that “{iJf

this policy were implemented beyond the prison walls,

undoubtedly, we would strike it down as unconstitu-

6

tional.” Jd. at 3la. Nevertheless, it held that “(t]he

prison system * * * is inherently different and we

must defer our judgment to that of the prison adminis-

trators until presented evidence demonstrating the un-

reasonableness of the administrators’ policy.” bid.

Here, the court concluded, petitioner “presented little

to no evidence and could not rebut the presumption of

constitutionality that the [prison] administrators are

afforded” under the Turner standard. Jbid. Because

the court held that petitioner did not prove that the

CDC policy was unconstitutional, it did not reach “the

ultimate question of whether the CDC administrators

are entitled to qualified immunity.” /bid.

b. On July 28, 2003, the court of appeals denied peti-

tioner’s petition for rehearing, and a majority of the

court voted to deny petitioner’s suggestion for rehear-

ing en banc. Judge Ferguson, joined by three other

judges, dissented on the ground that the panel’s opinion

“impermissibly construes the Court’s decision in

Turner v. Safley * * * to overrule Lee.” Pet. App.

38a. The dissenters explained that “[t]he panel’s deci-

sion ignores the Supreme Court’s repeated and unequi-

vocal command that all racial classifications imposed by

the government must be analyzed by a reviewing court

under strict scrutiny and fails 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 interest.” bid. (internal quota-

tion marks and citations omitted). They noted that

“(}jike the Eighth Amendment prohibition of cruel and

unusual punishment, the Fourteenth Amendment’s ban

on invidious state discrimination specifically contem-

plates a limitation on state power that is ‘complemen-

tary’ to the goals of effective imprisonment.” /d. at 48a-

49a (citation omitted). They therefore distinguished

s — 7 - ——

.

7

this case from all other cases to which Turner has been

applied, noting that the rights asserted in those cases,

unlike “the right to be free from state-sponsored

segregation,” are not “central to the legitimacy of our

— of justice, including the penal system.” Jd. at

The dissenting judges also rejected the panel’s

suggestion “that strict scrutiny of race-based policies

would unnecessarily limit prison officials’ ability to

effectively manage prisons or open the floodgates to

frivolous litigation.” Pet. App. 46a. They pointed out

that this Court has explicitly recognized “unique cir-

cumstances under which a race-based classification may

be permissible,” ibid., and stated that “it is possible,

even likely, that prison officials could show that the

current policy meets the test,” id. at 47a.

SUMMARY OF ARGUMENT

1. The court of appeals erred in applying the def-

erential “reasonably related” standard articulated in

Turner v. Safley, 482 U.S. 78 (1987), to determine

whether the CDC’s race-based housing policy violates

the Equal Protection Clause of the Fourteenth Amend-

ment. This Court has repeatedly held that all racial

classifications imposed by government are subject to

strict scrutiny review. This Court’s decision in Turner

did not change the longstanding principle that such

racial classifications, which are suspect on their face,

must be narrowly tailored to achieve a compelling

government interest. In Lee v. Washington, 390 U.S.

333 (1968), this Court affirmed a district court’s invali-

dation of a law requiring racial segregation in prisons

on the ground that it was not narrowly tailored to the

State’s interest in maintaining prison security and

discipline. The Ninth Circuit’s decision in this case

erroneously construes Turner to overrule Lee. Nothing

in the Turner opinion purports to overrule Lee. To the

contrary, Lee remains viable and continues to be cited

for the proposition that racial segregation in prisons is

unconstitutional.

Moreover, Turner itself makes clear that its

deferential standard applies only to rights that are

inconsistent with prope incarceration. Turner thus

applies to cases involving rights, such as associational,

privacy, and First Amendment rights, that are incon-

sistent with the status of a prisoner or with legitimate

penological objectives. But other rights, like the rights

to be free from racial discrimination or cruel and

unusual punishment, are not inconsistent with proper

prison administration, and indeed bolster the legitimacy

of our criminal justice system, including the penal

system. For this reason, this Court has never applied

Turner in the Eighth Amendment context, and a

number of lower courts have refused to apply Turner to

suspect-classification equal protection claims. Indeed,

application of Turner’s highly deferential standard of

review to evaluate the constitutionality of racial clas-

sifications would undermine the purpose of the Four-

teenth Amendment, which is to limit States’ discretion

in matters of race. Applying Turner to suspect classifi-

cations would undermine a basic premise of this Court’s

equal protection jurisprudence by effectively subjecting

all classifications, including those along expressly racial

lines, to rational basis review.

Continuing to apply strict scrutiny to racial classifi-

cations in the prison context would not preclude prison

administrators from using race in certain, limited cir-

cumstances, or courts from applying appropriate de-

ference to such judgments. To the contrary, Lee ex-

plicitly recognizes that there may exist some par-

ticularized circumstances in which race may be used for

the necessities of prison security and discipline. In-

deed, this Court has repeatedly disclaimed the view

that strict scrutiny is strict in theory, but fatal in fact.

Strict scrutiny clearly permits courts to distinguish

between efforts to restore order in the immediate wake

of a prison disturbance with racial overtones, and the

kind of permanent, institutionalized use of race to

segregate inmates at issue here and in Lee.

2. The CDC’s race-based housing policy cannot sur-

vive strict scrutiny. The State has identified a com-

pelling interest in maintaining prison security and

minimizing racial violence, but it has failed to demon-

strate that its segregation policy is narrowly tailored to

advance that interest. The record is devoid of specific,

widespread instances of such violence in the reception-

center cells. Yet, the plan applies to all inmates housed

in reception centers at all CDC facilities, including

transferred inmates who have established records of

nonviolence. This fact contradicts the CDC’s conten-

tion that race-based housing assignments are justified

in the reception centers because officials need at least

60 days to determine whether inmates pose a danger to

others. Moreover, at the same time respondents argue

that segregation is necessary to minimize racial vio-

lence, they assert that racial integration is used to

minimize that same violence in prison dormitories.

Accordingly, the CDC’s race-based housing policy is not

narrowly tailored, but arbitrary. Indeed, the policy

would even fail the relatively undemanding Turner

standard, if that standard were applicable.

10

ARGUMENT

I. STRICT SCRUTINY, RATHER THAN TURNER'S

“REASONABLY RELATED” STANDARD, APPLIES

TO THE CDC’S RACE-BASED HOUSING POLICY

A. All Race-Based State Actions Must Satisfy Strict

Scrutiny

The court of appeals erred in applying the deferential

“reasonably related” standard articulated in Turner v.

Safley, 482 U.S. 78 (1987), to determine whether the

CDC’s race-based housing policy violates the Equal

Protection Clause of the Fourteenth Amendment. The

Equal Protection Clause provides that no State shall

“deny to any persons within its jurisdiction the equal

protection of the laws.” U.S. Const. Amend. XIV, § 1.

“Because the Fourteenth Amendment ‘protect[s] per-

sons, not groups,’ all ‘governmental action based on

race—a group classification long recognized as in most

circumstances irrelevant and therefore prohibited—

should be subjected to detailed judicial inquiry to

ensure that the personal right to equal protection of the

laws has not been infringed.’” Grutter v. Bollinger, 123

S. Ct. 2325, 2337 (2003) (emphasis added) (quoting

Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227

(1995)).

Thus, it is well-settled that “all racial classifications

imposed by government ‘must be analyzed by a re-

viewing court under strict scrutiny.’ This means that

such classifications are constitutional only if they are

narrowly tailored to further compelling governmental

interests.” Grutter, 123 S. Ct. at 2337, 2338 (emphasis

added) (quoting Adarand, 515 U.S. at 227). This Court

has repeatedly explained that:

1]

“[a]bsent searching judicial inquiry into the justifi-

cation for such race-based measures,” we have no

_ way to determine what “classifications are ‘benign’

or ‘remedial’ and what classifications are in fact mo-

tivated 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

apply strict scrutiny to all racial classifications to

“smoke out’ illegitimate uses of race by assuring

that [government] is pursuing a goal important

7 to warrant use of a highly suspect tool.”

Grutter, 123 S. Ct. at 2338.

Indeed, without any indication that it was apply-

ing anything other than the traditionally searching

review of racial classifications under the Fourteenth

Amendment, this Court, in Lee v. Washington, 390 U.S.

333 (1968), “smoked out” one such illegitimate use of

race by prison officials more than 35 years ago. In Lee,

this Court rejected the State’s contention that requir-

ing desegregation of prisons would fail to “make * * *

allowance for the necessities of prison security and dis-

cipline.” 390 U.S. at 334. Three Justices concurred “to

make explicit something that is left to be gathered only

by implication from the Court’s opinion{],” namely “that

prison authorities have the right, acting in good faith

and in particularized circumstances, to take into

account racial tensions in maintaining security, disci-

pline, and good order in prisons and jails.” Ibid. The

concurring Justices were quick to add, however, that

they were “unwilling to assume that state or local pri-

son authorities might mistakenly regard such an ex-

plicit pronouncement as evincing any dilution of this

12

Court’s firm commitment to the Fourteenth Amend-

ment’s prohibition of racial discrimination.” Ibid.

As the Lee concurrence makes clear, the majority did

not relax the standard of review for race-based equal

protection claims in the prison context. To the con-

trary, Lee suggests only that “necessities of prison

security and discipline” might provide a compelling

government interest sufficient “in particularized cir-

cumstances” to justify the use of a narrowly tailored

racial classification, not that the use of race to address

such necessities is presumptively constitutional. See,

e.g., Cruz v. Beto, 405 U.S. 319, 321 (1972) (“{R Jacial

segregation, which is unconstitutional outside prisons,

is unconstitutional within prisons, save for ‘the necessi-

ties of prison security and discipline.’”) (quoting Lee,

390 U.S. at 334); Grutter, 123 S. Ct. at 2352 (Thomas, J.,

concurring in part and dissenting in part) (citing Lee for

the proposition that “protecting prisoners from violence

might justify narrowly tailored racial discrimination”),

Richmond v. J.A. Croson Co., 488 U.S. 469, 521 (1989)

(Scalia, J., concurring) (citing Lee for the proposition

that “{a]t least where state or local action is at issue,

only a social emergency rising to the level of imminent

danger to life and limb—for example, a prison race riot,

requiring temporary segregation of inmates—can

justify an exception to the principle embodied in the

Fourteenth Amendment that ‘{oJur Constitution is

color-blind, and neither knows nor tolerates classes

among citizens’” (citations omitted)); ef. Sockwell v.

Phelps, 20 F.3d 187, 191 (5th Cir. 1994) (relying on Lee

to hold that*prison authorities’ “generalized or vague

fear of racial violence is not a sufficient justification for

a broad policy of racial segregation”).

13

B. Turner's “Reasonably Related” Standard Does Not

Apply To The Fourteenth Amendment's Prohibition

Of Racial! Discrimination

By applying Turner’s “reasonably related” standard

to a suspect-classification equal protection claim, the

Ninth Circuit effectively construed Turner to overrule

Lee and this Court’s repeated command that “all”

governmental racial classifications be subject to strict

scrutiny analysis. See Pet. App. 13a (“Thus, to the

extent, if any, that Turner's ‘reasonably related’ stan-

dard and Lee’s ‘particularized circumstances’ inquiry

point to divergent paths, we are bound to follow Tur-

ner.”). But Turner did no such thing. Rather, Turner

considered the constitutionality of prison regulations

related to correspondence between inmates and

inmates’ right to marry. 482 U.S. at 81-82. This Court

began its analysis by reaffirming the longstanding

principle that “[pJrison walls do not form a barrier

separating prison inmates from the protections of the

Constitution,” and that prisoners retain a number of

constitutional rights, including, under Lee, the right to

be “protected against invidious racial discrimination by

the Equal Protection Clause of the Fourteenth Amend-

ment.” Jd. at 84. This Court also explained that “(p]ri-

son administration is * * * a task that has been

committed to the responsibility of [the legislative and

executive} branches, and separation of powers concerns

counsel a policy of judicial restraint.” Jd. at 85.

Accordingly, the Turner Court held 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. The Court

explained that “such a standard is necessary if ‘prison

administrators . . ., and not the courts, [are] to make

the difficult judgments concerning institutional opera-

14

tions.’” Jbid. (citation omitted). However, this Court

has never applied this standard, or otherwise exercised

“judicial restraint,” in evaluating claims of invidious

racial discrimination under the Equal Protection

Clause.

Indeed, this Court has suggested that Turner's def-

erential standard applies only to rights that are

“inconsistent with proper incarceration.” Overton v.

Bazzetta, 539 U.S. 126, 131 (2003). In Shaw v. Murphy,

532 U.S. 223 (2001), for example, the Court explained:

[T}he constitutional rights that prisoners possess

are more limited in scope than the constitutional

rights held by individuals in society at large. In the

First Amendment context, for instance, some rights

are simply inconsistent with the status of a prisoner

or “with the legitimate penological objectives of the

corrections system.” We have thus sustained pro-

scriptions of media interviews with individual

inmates, prohibitions on the activities of a prisoners’

labor union, and restrictions on inmate-to-inmate

written correspondence. Moreover, because the

“problems of prisons in America are complex and

intractable,” and because courts are particularly “ill

equipped” to deal with these problems, we generally

have deferred to the judgments of prison officials in

upholding these regulations against constitutional

challenge.

Id. at 229 (citations omitted); see O’Lone v. Shabazz,

482 U.S. 342, 348 (1987) (“{L]Jawful incarceration brings

about the necessary withdrawal or limitation of many

privileges and rights, a retraction justified by the

considerations underlying our penal system.” (citation

omitted)). The cases to which this Court has applied

the Turner standard are markedly different than this

erent eae

15

-

one, in that they involved restrictions on the exercise of

rights which, by their very nature, may be incompatible

with legitimate penological interests. See, e.g., Overton,

539 U.S. at 131 (freedom of association claims relating

to family visitation); Shaw v. Murphy, 532 U.S. 223, 228

(2001) (First Amendment challenge to prison regulation

restricting inmate correspondence); Washington v.

Harper, 494 U.S. 210, 221-223 (1990) (due process chal-

lenge to involuntary medication of mentally ill pri-

soner); Thornburgh v. Abbott, 490 U.S. 401, 407 (1989)

(First Amendment challenge to prison regulations

governing receipt of subscription publications); O’Lone,

482 U.S. at 349-350 (Free Exercise Clause challenge to

prison work rules that had the effect of limiting

prisoners’ attendance at particular religious services).

In contrast, the right to be free from invidious racial

discrimination under the Equal Protection Clause of the

Fourteenth Amendment is not only fully consistent

with proper prison administration, but it bolsters the

legitimacy of the criminal justice system, including the

penal system. See, e.g., Rose v. Mitchell, 443 U.S. 545,

555 (1979) (“Discrimination on the basis of race, odious

in all aspects, is especially pernicious in the administra-

tion of justice.”); Batson v. Kentucky, 476 U.S. 79, 99

(1986) (“In view of the heterogeneous population of our

Nation, public 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.”). In this respect, petitioner’s asserted right

is akin to the right to be free from cruel and unusual

— nt peed oe Eighth Amendment, violations of

which, even r Turner, are judged according to the

Eighth Amendment “deliberate indifference” standard,

rather than a “reasonably related” standard. See, e.g.,

Hope v. Pelzer, 536 U.S. 730, 738 (2002). Accordingly,

16

the Ninth Circuit itself previously refused to apply

Turner to a prisoner’s Eighth Amendment claim, ex-

plaining that “Turner has been applied only where the

constitutional right is one which is enjoyed by all per-

sons, but the exercise of which may necessarily be

limited due to the unique circumstances of imprison-

ment.” Jordan v. Gardner, 986 F.2d 1521, 1530 (9th Cir.

1993). Similarly, other circuit courts have refused to

apply Turner to suspect-classification equal protection

claims. See Pitts v. Thornburgh, 866 F.2d 1450, 1454

(D.C. Cir. 1989) (refusing to apply Turner to a gender-

based equal protection claim); Sockwell, 20 F.3d at 191

(post-Turner decision applying Lee to hold unconstitu-

tional racial segregation of prisoners in two-person

cells, despite prison authorities’ asserted interest in

prison security); Black v. Lane, 824 F.2d 561, 562 (7th

Cir. 1987) (post-Turner decision holding that “absent a

compelling state interest, racial discrimination in

administering prisons violates the Equal Protection

Clause of the Fourteenth Amendment”); see also Pargo

v. Elliott, 49 F.3d 1355, 1357 (8th Cir. 1995) (noting that

“Turner does not foreclose all heightened judicial

review”). But cf. Morrison v. Garraghty, 239 F.3d 648,

652, 655 (4th Cir. 2001) (applying Turner to equal pro-

tection challenge to prison policy that “requests for

acquiring or maintaining existing articles of Native

American faith will only be considered for those in-

mates who are bona fide Native Americans”) (emphasis

omitted).

In Pitts, for example, the D.C. Circuit held that Tur-

ner’s “reasonably related” standard was inappropriate

for a case arising under the Equal Protection Clause

because such a case “touches upon important concerns

that the Supreme Court has clearly held call for

stepped-up scrutiny.” 866 F.2d at 1454. The court

17

further explained that suspect-classification equal pro-

tection claims “differ in kind from challenges to limita-

tions upon personal rights” that are subject to Turner’s

“reasonably related” standard. Id. at 1455. As the

court explained:

While an equal protection claim, too, is in one sense

a personal right—.e., the right not to be discrimi-

nated against—the claim is also a demand that

governmental action that affects an individual not

be predicated upon constitutionally defective rea-

soning. The claim charges invidiousness, rather

than an unwarranted interference with constitu-

tionally secured liberties. This difference is illus-

trated by the many cases finding that even [when]

the government favors a traditionally protected

class * * *, its acts are still subject to heightened

scrutiny.

Ibid.

Indeed, application of Turner to state imposed

classifications based on race in prisons would require

courts to presume the constitutionality of inherently

suspect uses of race based on the “common-sense” of

state officials. Pet. App. 19a-22a. But the “sensibility”

of States in matters of race was the primary concern

behind the Fourteenth Amendment’s Equal Protection

Clause, see, e.g., Rose, 443 U.S. at 554-555. Moreover,

application of Turner to race-based prison policies

would allow the government to use race when there are

race-neutral means to accomplish the same goal and

when the policy does not even advance that goal, but

prison administrators might reasonably believe that it

does. Cf. Pet. App. 22a. A policy of judicial deference

that presumes that a State’s use of race is appropriate

unless the inmate overcomes a “high burden” of proving

18

to the contrary would therefore undermine the very

purpose of the Fourteenth Amendment. See, e.g., Pitts,

866 F.2d at 1455 (“The court may not slight the task

more directly committed to it in a live case or

controversy and which is peculiarly within its com-

petence and historic mission: rooting out invidious

discrimination condemned by the Constitution.”).

Allowing Turner’s deferential standard of review to

trump strict scrutiny of racial classifications would

undermine a fundamental premise of this Co irt’s Equal

’ Protection Clause jurisprudence. Under the analysis

adopted by the court below, all government classifi-

cations in the prison context would effectively be

subject to rational basis review without regard to

whether the classification is drawn along racial lines.

But this Court’s decisions make clear that racial clas-

sifications are uniquely invidious and particularly likely

to lead to abuse. For that reason, in many contexts

where government action generally is reviewed defer-

entially or not at all, government action based on race is

subject to strict scrutiny. For example, despite the

deference generally given to prosecutors in employing

peremptory challenges, see Batson, 476 U.S. at 89

(noting that “a prosecutor ordinarily is entitled to

exercise permitted peremptory challenges ‘for any

reason at all, as long as that reason is related to his

view concerning the outcome’ of the case to be tried”

(citation omitted)), the use of peremptory challenges to

strike jurors on the basis of race is forbidden, id. at 89-

96. Similarly, despite this Court’s recognition of the

difficulties of imposing judicially manageable standards

for reviewing redistricting decisions, see generally

Vieth v. Jubelirer, 124 S. Ct. 1769 (2004), racial

gerrymandering is forbidden, see Shaw v. Reno, 509

U.S. 630, 650 (1993) (“[N]othing in our case law compels

19

the conclusion that racial and political gerrymanders

are subject to precisely the same constitutional

scrutiny. In fact, our country’s long and persistent

history of racial discrimination in voting—as well as our

Fourteenth Amendment jurisprudence, which always

has reserved the strictest scrutiny for discrimination on

the basis of race—would seem to compel the opposite

conclusion.” (citation omitted)). And as the dissenting

judges below noted, notwithstanding the high degree of

deference generally owed to the political branches in

the conduct of military affairs, see, e.g., Rostker v.

Goldberg, 453 U.S. 57, 64-65 (1981), even “military

officials acting during wartime are subject to strict

scrutiny” when they take expressly race-based actions.

Pet. App. 42a. It necessarily follows that “prison

officials engaging in the routine performance of their

= should be subject to [strict scrutiny] as well.”

C. Application Of Strict Scrutiny Would Preserve Any

Legitimate Need For Flexibility By Prison Officials

Application of strict scrutiny to racial classifications

in the prison context would not foreclose the use of such

classifications in certain “particularized circumstances.”

Lee, 390 U.S. at 334. Indeed, Lee explicitly recognized

that “necessities of prison security and discipline” could

provide a compelling justification for a narrowly tai-

lored use of race. Ibid.; accord Grutter, 123 S. Ct. at

2352 (Thomas, J., concurring in part and dissenting in

part); Croson, 488 U.S. at 521 (Scalia, J., concurring).

This Court has repeatedly stated that “[s]trict scrutiny

is not ‘strict in theory, but fatal in fact.’” Grutter, 123 S.

Ct. at 2338 (citation omitted). Rather, as the Court —

explained in Grutter, “[c]ontext matters when re-

viewing race-based governmental action under the

20

Equal Prote :tion Clause.” Ibid. “Not every decision

influenced by race is equally objectionable and strict

scrutiny is designed to provide a framework for

carefully examining the importance and the sincerity of

the reasons advanced by the governmental decision-

maker for the use of race in that particular context.”

Ibid.

Applying heightened scrutiny to a gender-based

equal protection claim in the prison context, for

example, the D.C. Circuit explained that the “inquiry

must still acknowledge the importance of the state’s

interest in the prison context. * * * This acknowledg-

ment of the difficulties inherent in the prison context

does not reduce or eviscerate heightened scrutiny, but

it does recognize that those difficulties do not disappear

once a party raises a discrimination claim.” Pitts, 866

F.2d at 1455.

Moreover, even under strict scrutiny, the expertise

of prison officials must be taken into account, and some

flexibility must be accorded prison officials who, “acting

in good faith and in particularized circumstances,”

adopt race-based policies for the purpose of “main-

taining security, discipline, and good order in [their]

prisons and jails.” Lee, 390 U.S. at 334 (concurring

opinion). Such deference, properly constrained, is not

inconsistent with the application of strict-scrutiny in

this type of highly specialized context. Cf. Grutter, 123

S. Ct. at 2339 (affording “a degree of deference” to

judgments by law school officials about importance and

benefits of diversity in achieving their educational

goals); id. at 2349 (Scalia, J., concurring in part and dis-

senting in part) (noting that affording university

officials “a degree of deference” in using race to achieve

their goal of diversity “does not imply abandonment or

abdication of judicial review”) (citing Miller-El v. Cock-

21

rell, 537 U.S. 322, 340 (2003)). In sum, strict scrutiny

allows courts to distinguish between the use of race “in

particularized circumstances,” such as the restoration

of order in the immediate aftermath of a prison dis-

turbance with racial overtones and the kind of syste-

matic, institutionalized racial discrimination condemned

in Lee and at issue here.

Il. THE CDC’S RACE-BASED HOUSING POLICY

VIOLATES THE EQUAL PROTECTION CLAUSE

BECAUSE IT IS NOT NARROWLY TAILORED TO

ACHIEVE A COMPELLING STATE INTEREST |

To withstand strict scrutiny, the State must establish

that it has a compelling interest in using race to deter-

mine housing placements at CDC reception centers and

that its race-based housing policy is narrowly tailored

to achieve that goal. Adarand, 515 U.S. at 227. The

record is more than adequate for this Court to conclude

that, even though the State has a compelling interest in

the security and safety of its prisons, its race-based

housing policy is not narrowly tailored to achieve that

goal. Indeed, both the court of appeals and the district

court concluded that the CDC policy passes muster only

under the highly deferential “reasonably related”

standard articulated in Turner, and that it would likely

fail under any heightened standard of review. See Pet.

App. 31a, 33a-35a.

A. The CDC Has A Compelling Interest In The Secur-

ity, Discipline, And Good Order Of Its Prisons

As suggested by this Court’s decision in Lee, the

State has a compelling interest in “the security, disci-

pline, and good order” of its prisons. 390 U.S. at 334

(concurring opinion). Indeed, this Court has repeatedly

acknowledged the vital need of prison officials to

maintain the security and safety of their institutions.

22

See, e.g., Pell v. Procunier, 417 U.S. 817, 823 (1974)

(“[C]entral to all other corrections goals is the insti-

tutional consideration of internal security within the

corrections facilities themselves.”); Jones v. North

Carolina Prisoners’ Labor Union, Inc., 4833 U.S. 119,

132 (1977) (Burger, C.J., concurring) (noting that

“(p]risons, by definition, are closed societies populated

by individuals who have demonstrated their inability,

or refusal, to conform their conduct to the norms de-

manded by a civilized society”); see also Pell, 417 U.S.

at 826-827 (“The ‘normal activity’ to which a prison is

committed—the involuntary confinement and isolation

of large numbers of people, some of whom have demon-

strated a capacity for violence—necessarily requires

that considerable attention be devoted to the main-

tenance of security.”).

B. The CDC’s Segregation Policy Is Not Narrowly

Tailored To Achieve Its Compelling Interest In

Prison Security

As Lee’s concurring opinion makes clear, a State’s

compelling interest in the security, discipline, and good

order of its prisons does not relieve state prison officials

of their constitutional obligation to ensure that any

consideration of race as a means of achieving those

goals is narrowly tailored. 390 U.S. at 334. “The pur-

pose of the narrow tailoring requirement is to ensure

that the means chosen fit . . . the compelling goal so

closely that there is little or no possibility that the

motive for the classification was illegitimate racial

prejudice or stereotype.” Grutter, 123 S. Ct. at 2341

(internal quotation marks and citations omitted). Thus,

narrow tailoring “require[s] serious, good faith consi-

deration of workable race-neutral alternatives that will

achieve the [compelling government interest].” Jd. at

23

2345. Race-based policies, therefore, that use race in

lieu of any individualized consideration generally do not

satisfy strict scrutiny. See, e.g., id. at 2343 (distinguish-

ing constitutional race-conscious law school admissions

program that “engages in a highly individualized, holis-

tic review of each applicant’s file” from undergraduate

admissions program that awards automatic “bonuses”

to applicants on the basis of race).

Even taking the expertise of prison officials into ac-

count and affording them an appropriate level of flexi-

bility in determining the best way to address their con-

cerns for prison security, the record, as summarized by

the court of appeals, fails to establish that the CDC’s

race-based housing policy is narrowly tailored to

achieve a compelling government interest. The CDC

policy, which does not even seem to exist in written

form, applies to all CDC institutions and to all inmates,

including transfers from other CDC facilities, no matter

how long inmates have been institutionalized without

incident and regardless of their propensity to engage in

racial violence. The fact that the policy applies to

transfers as well as new arrivals substantially detracts

from the prison administrators’ argument that segre-

gation is justified in the reception centers because

“they need 60 days to analyze each inmate on an

individual basis to determine whether the inmate poses

a danger to others.” Pet. App. 4a. Petitioner, for

example, has been an inmate in the CDC for almost

twenty years and, during that period, has been

transferred a number of times. By now the CDC has

undcubtedly gauged his propensity to engage in racial

violence, yet it continues to subject him, and all other

inmates, to the race-based housing policy every time he

is transferred to a new institution.

24

At a minimum, there is no reason to believe that the

CDC could not address its security concerns through a

system that was “flexible enough to ensure that each

[inmate] is evaluated as an individual and not in a way

that makes [his] race or ethnicity the defining feature of

his [placement].” Grutter, 123 S. Ct. at 2343. This

Court has repeatedly characterized the importance of

such individualized consideration in the context of race-

based state action as “paramount,” see, e.g., id. at 2343,

and it has never upheld a State’s use of a racial clas-

sification without at least ensuring that the State has

afforded each person subject to the racial classification

individualized consideration.

Moreover, the CDC’s view that segregation is

necessary to minimize “racially based conflict in the

cells and in the yard,” Pet. App. 4a, is inconsistent with

its position that maintaining racial integration within

the dormitories it uses to house prisoners after the

initial segregated period “reduce[s] the likelihood of

racial violence,” id. at 5a. In petitioner’s case, for

example, he has been repeatedly transferred from an

institution’s general population where racial integration

is the preferred means of promoting security to a new

institution’s reception center where racial segregation

is applied to the same end.

The CDC’s racial segregation policy is also incon-

sistent with the expert determinations of the Federal

Bureau of Prisons (BOP) and virtually all other States,

which address concerns of prison security through in-

dividualized consideration without the use of racial seg-

regation, unless warranted as a necessary and tempo-

rary response to a race riot or other serious threat of

race-related violence. Federal regulations and BOP

policy expressly forbid racial segregation in the federal

prison system. The governing regulation, 28 C.F.R.

25

551.90, entitled “Non-Discrimination Toward Inmates,”

provides:

Bureau staff shall not discriminate against inmates

on the basis of race, religion, national origin, sex,

disability, or political belief. This includes the mak-

ing of administrative decisions and providing access

to work, housing and programs.

Ibid. In furtherance of that regulation, BOP Program

Statement 1040.04 (Jan. 29, 1999), directs each Warden

to “review and, as necessary, establish local procedures

to ensure that inmates are provided essential equality

of opportunity in being considered for various program

options, work assignments, and decisions concerning

classification status.” While rejecting the kind of segre-

gation reflected in the policy at issue here, BOP does

consider race as one of many demographic factors, such

as age, nationality, religion, and gang affiliation, to

promote integrated and diverse institutions and hous-

ing units. Thus, although generally not a factor in

making housing determinations, BOP monitors the

racial composition of its institutions and may consider

race in overseeing the population of an institution as

necessary to ensure that the institution does not be-

come de facto segregated.

Thus, while BOP recognizes the serious problem of

racial violence in the prison context, it does not accept

generalized assumptions that persons of different races

cannot safely be housed together. Rather, federal

prisons are committed to a policy of non-discrimination

in housing, as well as in all other prison programs. In

BOP’s judgment and experience, this policy leads to

less violence in BOP’s institutions and better prepares

inmates for re-entry into society. For these same

26

reasons, BOP does not allow inmates to choose their

cellmates.

Moreover, in addressing more particularized con-

cerns about racial violence, BOP focuses on inmate

behavior, not race. If an inmate is disruptive to par-

ticular inmates, he is removed and placed in a higher

security environment to remove the threat to others.

Any such judgment, however, is based on an indivi-

dualized assessment of a prisoner’s behavior and back-

ground, not on assumptions based on race.

Like BOP, most States follow a non-discrimination

policy in making inmate housing determinations.’

Moreover, BOP is not aware of any State that follows

2 See generally 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, 301-307 (2000); see

also, e.g., Ariz. Corr. Reg. § 908.02(1.5) (Sept. 1, 1996) (prison ad-

ministrators shall “[bjase inmate housing assignments on sound

correctional classification practices and not discriminate against

any individual or group of inmates when assigning inmate hous-

ing”; “{iJnmates shall be assigned to a cell on a random basis”);

Colo. Corr. Reg. § 850-15 (Oct. 15, 2003) (“ensur[ing] that offender

program access, work assignments, and administrative decisions

are made without regard to offenders’ race”); Conn. Corr. Reg.

§ 9.2(1) (Mar. 5, 2003) (“The [inmate] classification system shall not

foster discrimination in status, including housing, programming,

job assignment, or on the basis of race, creed, color, or national

origin.”); Tenn. Corr. Reg. § 506.14(V1)(A)(4) (Aug. 15, 2003) (hous-

ing assignments “shall not be made on the basis of race, color,

national origin, religion, or political views unless it is justified by

legitimate and documented security concerns (i.e., opposing or

rival security threat group affiliation)”); accord American Corr.

Ass'n, Standards for Adult Correctional Institutions 76 (4th ed.

2003) (Standard 4-4277: requiring “[w)ritten policy, procedure, and

practice prohibit{ing) discrimination based on an inmate’s race

* * * in making administrative decisions and in providing access

to programs”).

27

California’s practice of racially segregating all new

inmates in a facility, even those that have been trans-

ferred from another institution and that have no gang

affiliation or history of race-related violence. That BOP

and other States address identical concerns of prison

security through race-neutral or more narrowly

tailored practices demonstrates that the CDC’s segre-

gation policy is substantially overbroad and unneces-

sary to achieve the compelling interest of prison

security. It also places this case in stark contrast to the

Grutter case, in which the majority of States viewed the

consideration of race as necessary to acheive a com-

pelling interest. See Grutter, 123 S. Ct. at 2339-2341

(affording deference to law schools’ assessments of the

educational benefits of racial diversity where those

assessments were supported by social science studies

and numerous amici in the fields of education, business,

and the military).

The Fifth Circuit’s decision in Sockwell v. Phelps,

supra, is instructive. There, the court struck down a

3 Indeed, the CDC’s policy is particularly inappropriate in light

of recent evidence that integration of two-person cells does not

lead to increased violence and that it actually may decrease vio-

lence. See, e.g., Chad Trulson & James W. Marquart, The Caged

Melting Pot: Toward an Understanding of the Consequences of

Desegregation in Prisons, 36 L. & Soc’y Rev. 743, 774 (2002) (After

integration of two-person cells in Texas, “the rate of assaults

among desegregated inmates was less than or at least equal to the

rate of assaults among inmates who were not desegregated. Inte-

gration did not result in disproportionate violence; rather, over the

long term, the rate of violence between inmates segregated by

race in double cells surpassed the rate among those racially inte-

grated.”); see also, e.g., Henderson et al., supra, at 304, 307 (noting

that the majority of prison wardens surveyed stated that

integrating cells would decrease or have no effect on the level of

violence in an institution).

28

Louisiana prison policy that, like the CDC’s policy in

this case, required segregation of all prisoners housed

in two-person cells, although the rest of the prison was

fully integrated. 20 F.3d at 190. A deputy warden

testified that the policy was motivated by security

concerns and past incidents of violence between black

and white prisoners. /d. at 191. The court, relying on

Lee, held that the prison administrators’ asserted gen-

eralized security interest did not justify a systematic,

institutionalized policy of racial segregation in two-

person cells. Rather, the court explained that “[iJf

violent disruptions did occur, we would expect the

prison officials to take appropriate action against the

offending prisoners, black or white.” Ibid. The court

further held that although “racial segregation of

offending individual prisoners would be acceptable if,

based on an individualized analysis, the prison officials

determined such action would be needed to stifle

particular instances of racial violence,” the administra-

tors’ broad contention “that integrated two-man cells

may lead to more violence between black and white

prisoners is not tenable.” [bid.*

* Similarly, on the few occasions in which courts have con-

fronted prison polices, like the CDC’s, of temporary racial segrega-

tion for newly received inmates, they have not hesitated to strike

down the policies. See Blevins v. Brew, 593 F. Supp. 245, 248-249

(W.D. Wis. 1984) (assigning new inmates to double cells in tempo-

rary reception centers based on race in a federal correctional

facility “violated clearly established constitutional rights” because

“racial segregation is an appropriate response [to racial conflict]

only if no other means are available for maintaining prison security

or discipline”); Stewart v. Rhodes, 473 F. Supp. 1185, 1187-1190

(S.D. Ohio 1979) (assigning inmates to double cells based on race in

a receiving and processing center was unconstitutional because

there was no evidence that integration would lead to increased

violence), appeal dismissed, 661 F.2d 934 (6th Cir. 1981).

‘

° en TE ee

29

Likewise here, the CDC’s housing policy is not based

on individualized analys* but rather, on general fears

of racial violence. As in Sockwell, there is no evidence

of widespread instances of serious racial violence in

CDC reception-center cells across the State. The only

evidence offered by the State in support of the

policy—testimony conveying prison officials’ general

fears of racial violence, as well as some anecdotal

testimony and newspaper articles relating to race riots

that occurred at a single CDC institution, Pelican Bay,

several years ago—is simply insufficient to justify a

statewide, general policy of segregation. See Pet. App.

4a, 16a-17a n.9. See also United States v. Wyandotte

County, 480 F.2d 969, 971 (10th Cir.) (holding that a

vague fear of racial violence on the part of prison

authorities is insufficient to justify a broad policy of

segregation), cert. denied, 414 U.S. 1068 (1973).

In short, the policy is not narrowly tailored, but

arbitrary.” As the three-judge district court in Lee

explained:

We recognize that there is merit in the contention

that in some isolated instances prison security and

discipline necessitates segregation of the races for a

limited period. However, recognition of such in-

stances does nothing to bolster * * * the general

practice that requires or permits prison or jail offi-

cials to separate the races arbitrarily. Such * * *

practices must be declared unconstitutional in light

of the clear principles controlling.

5 Indeed, the CDC’s race-based housing policy, which would

subject even inmates with an established record of nonviolence to

racial segregation every time they are transferred to a new institu-

tion, would not satisfy a proper application of Turner's “reasonably

related” standard, much less strict scrutiny.

30

Washington v. Lee, 263 F. Supp. 327, 331-332 (D. Ala.

1966). The CDC’s race-based housing policy for its

reception-center cells is therefore unconstitutional

under the Equal Protection Clause of the Fourteenth

Amendment. ;

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

: THEODORE B. OLSON

Solicitor General

R. ALEXANDER ACOSTA

Assistant Attorney

General

PAUL D. CLEMENT

Deputy Solicitor General

DAVID B. SALMONS

Assistant to the Solicitor

General

DAVID K. FLYNN

TOVAH R. CALDERON

Attorneys

JUNE 2004