Slip Opinion — Johnson v. California

(Shp Opimon) OCTOBER TERM, 2004 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

pede Soy dys, SAF, fi td Ld

ay A A, Decisions for the convenience of the reader.

United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

JOHNSON v. CALIFORNIA ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 03-636. Argued November 2, 2004—Decided February 23, 2005

The California Department of Corrections’ (CDC) unwritten policy of

racially segregating prisoners in double cells for up to 60 days each

time they enter a new correctional facility is based on the asserted

rationale that it prevents violence caused by racial gangs. Petitioner

Johnson, an African-American inmate who has been intermittently

double-celled under the policy's terms ever since his 1987 incarcera-

tion, filed this suit alleging that the policy violates his Fourteenth

Amendment right to equal protection. The District Court ultimately

granted defendant former CDC officials summary judgment on

grounds that they were entitled to qualified immunity. The Ninth

Circuit affirmed, holding that the policy's constitutionality should be

reviewed under the deferential standard articulated in Turner v. Saf-

ley, 482 U.S. 78, not under strict scrutiny, and that the policy sur-

vived Turner scrutiny.

Held: Strict scrutiny is the proper standard of review for an equal pro-

tection challenge to the CDC’s policy. Pp. 4—15.

(a) Because the CDC's policy is “immediately suspect” as an ex-

press racial classification, Shaw v. Reno, 509 U.S. 630, 642, the

Ninth Circuit erred in failing to apply strict scrutiny and thereby to

require the CDC to demonstrate that the policy is narrowly tailored

to serve a compelling state interest, see Adarand Constructors, Inc. v.

Petia, 515 U.S. 200, 227. “fA/jll racial classifications [imposed by

government] .. . must be analyzed . . . under strict scrutiny,” ibid., in

order to “ ‘smoke out’ illegitimate uses of race by assuring that [gov-

ernment] is pursuing a goal important enough to warrant [such] a

highly suspect tool,” Richmond vy. J. A. Croson Co., 488 U.S. 469,

493. The CDC’s claim that its policy should be exempt from this

categorical rule because it is “neutral”—1i.e., because all prisoners are

JOHNSON v. CALIFORNIA

Syllabus

“equally” segregated—ignores this Court's 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. In-

deed, the Court rejected the notion that separate can ever be equal—

or “neutral”"—50 years ago in Brown v. Board of Education, 347 U. S.

483, and refuses to resurrect it today. The Court has previously ap-

phed a heightened standard of review in evaluating racial segrega-

tion in prisons. Lee v. Washington, 390 U.S. 333. The need for strict

scrutiny is no less important here. 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. Virtually all other States and the Federal Government manage

their prison systems without reliance on racial segregation. In fact, the

United States argues that it is possible to address prison security con-

cerns through individualized consideration without using racial segrega-

tion, unless it is warranted as a necessary and temporary response to a

serious threat of race-related violence. 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. Pp. 4—9.

(b) The Court declines the CDC’s invitation to make an exception to

the categorical strict scrutiny rule and instead to apply Turner's def-

erential review standard on the ground that the CDC's policy applies

only in the prison context. The Court has never applied the Turner

standard—which asks whether a regulation that burdens prisoners’

fundamental rights is “reasonably related” to “legitimate penological

interests,” 482 U. S., at 89—to racial classifications. Turner itself did

not involve such a classification, and it cast no doubt on Lee. That is

unsurprising, as the Court has applied the Turner test only to rights

that are “inconsistent with proper incarceration.” Overton v.

Bazzetta, 539 U.S. 126, 131. The right not to be discriminated

against based on one’s race is not susceptible to Turner's logic be-

cause it is not a right that need necessarily be compromised for the

sake of proper prison administration. On the ccairary, compliance

with the Fourteenth Amendment's ban on racial discrimination is not

only consistent with proper prison administration, bui also bolsters

the legitimacy of the entire criminal justice system. Cf. Batson v.

Kentucky, 476 U.S. 79, 99. Deference to the particular expertise of

officials managing daily prison operations does not require a more re-

laxed standard here. The Court did not relax the standard of review

for racial] classifications in prison in Lee, and it refuses to do so today.

Rather, it explicitly reaffirms that the “necessities of prison security

and discipline,” Lee, supra, at 334, are a compelling government in-

terest justifying only those uses of race that are narrowly tailored to

address those necessities, see, e.g., Grutter v. Bollinger, 539 U.S. 306,

Cite as: 543 U.S. ___ (2005) 3

Syllabus

353. Because Turner's standard would allow prison officials to use

race-based policies even when there are race-neutral means to ac-

complish the same goal, and even when the race-based policy does

not in practice advance that goal, it is too lenient a standard to ferret

out invidious uses of race. Contrary to the CDC's protest, strict scru-

tiny will not render prison administrators unable to address legiti-

mate problems of race-based violence in prisons. On remand, the

CDC will have the burden of demonstrating that its policy is nar-

rowly tailored with regard to new inmates as well as transferees.

Pp. 9-15.

(c) The Court does not decide whether the CDC’s policy violates

equal protection, but leaves it to the Ninth Circuit, or the District

Court, to apply strict scrutiny in the first instance. See, e.g., Con-

solidated Rail Corporation v. Gottshall, 512 U.S. 532, 557-558.

P. 15.

321 F. 3d 791, reversed and remanded.

O'Connor, J., delivered the opinion of the Court, in which KENNEDY,

SOUTER, GINSBURG, and BREYER, JJ., joined. GINSBURG, J., filed a con-

curring opinion, in which SOUTER and BREYER, JJ., joined. STEVENS, J.,

filed a dissenting opinion. THOMAS, J., filed a dissenting opinion, in

which SCALIA, J., joined. REHNQUIST, C. J., took no part in the decision

of the case.

Cite as: 543 U.S. (2005) 1

Opinion of the Court

NOTICE. This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions. Supreme Court of the United States, Wash-

ington, D.C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press

SUPREME COURT OF THE UNITED STATES

No. 03-636

GARRISON S. JOHNSON, PETITIONER v.

CALIFORNIA ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[February 23, 2005]

JUSTICE O'CONNOR delivered the opinion of the Court.

The California Department of Corrections (CDC) has an

unwritten policy of racially segregating prisoners in dou-

ble 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.

I

A

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 assign-

ments in the reception centers are based on a number of

factors, predominantly race. In fact, the CDC has admit-

ted that the chances of an inmate being assigned a cell-

mate of another race are “‘[p]retty close’” to zero percent.

App. to Pet. for Cert. 3a. The CDC further subdivides

prisoners within each racial group. Thus, Japanese-

Americans are housed separately from Chinese-

2 JOHNSON v. CALIFORNIA

Opinion of the Court

Americans, and Northern California Hispanics are sepa-

rated from Southern California Hispanics.

The CDC’s asserted rationale for this practice is that it

is necessary to prevent violence caused by racial gangs.

Brief for Respondents 1—6. It cites numerous incidents of

racial violence in CDC facilities and identifies five major

prison gangs in the State: Mexican Mafia, Nuestra Fa-

milia, Black Guerilla Family, Aryan Brotherhood, and

Nazi Low Riders. Id, at 2. The CDC also notes that

prison-gang culture is violent and murderous. Z7d., at 3.

An associate ward: no testified that if race were not consid-

ered in making .nitial 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 305a—306a. 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 facilities—dining areas, yards,

and cells—are fully integrated. After the initial 60-day

period, prisoners are allowed to choose their own cell-

mates. The CDC usually grants inmate requests to be

housed together, unless there are security reasons for

denying them.

B

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 Afri-

can-American inmate. See ibid.

Cite as: 543 U.S. __ (2005) 3

Opinion of the Court

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 CDC's reception-

center housing policy violated his right to equal protection

under the Fourteenth Amendment by assigning him cell-

mates 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 in-

mates according to race. Second Amended Complaint 2-4,

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. Jbid. 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. Cali-

fornia, 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 CDC's policy of racially segre-

gating 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

CDC's 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 whole—as 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 trans-

ferred to a new facility. Thus, he has been subject to the

4 JOHNSON v. CALIFORNIA

Opinion of the Court

CDC's policy both as a new inmate and as an inmate

transferred from one facility to another.

After discovery, the parties moved for summary judg-

ment. 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 CDC’s 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 798-799. 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

Turner's deferential standard, 321 F. 3d, at 807.

The Court of Appeals denied Johnson's petition for

rehearing en banc. Judge Ferguson, joined by three oth-

ers, dissented on grounds that “[t]he panel's decision

ignore{d] the Supreme Court’s repeated and unequivocal

command that all racial classifications imposed by the

government must be analyzed by a reviewing court under

strict scrutiny, and failfed] 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).

II

A

We have held that “all racial classifications [imposed by

government] ... must be analyzed by a reviewing court

under strict scrutiny.” Adarand Constructors, Inc. v.

Cite as: 543 U.S. __ (2005) 5

Opinion of the Court

Pefia, 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 prefer-

ences in government contracts, see Adarand, supra, at

226, and race-based districting intended to improve minor-

ity 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 ... what classifications are

in fact motivated by illegitimate notions of racial inferior-

ity 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 “‘smoke out’ illegitimate uses of race by assuring that

[government] is pursuing a goal important enough to

warrant use of a highly suspect tool.” Jbid.'

The CDC claims that its policy should be exempt from

our categorical rule because it is “neutral”—that is, it

“neither benefits nor burdens one group or individual

more than any other group or individual.” Brief for Re-

spondents 16. In other words, strict scrutiny should not

' JUSTICE THOMAS takes a hands-off approach to racial classifications

in prisons, suggesting that a “compelling showing [is] needed to over-

come 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.

6 JOHNSON v. CALIFORNIA

Opinion of the Court

apply because all prisoners are “equally” segregated. The

CDC’s 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 equal—or “neutral”—50 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 “[ijt 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 court’s decision striking down Ala-

bama’s policy of segregation in its prisons. I/d., at 333-

334. Alabama had argued that desegregation would un-

dermine 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 Court’s opinion”—‘“that prison au-

thorities have the right, acting in good faith and in par-

ticularized circumstances, to take into account racial

tensions in maintaining security, discipline, and good

order in prisons and jails.” Jbid. (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 Court’s firm commitment to

the Fourteenth Amendment’s prohibition of racial dis-

crimination.” Ibid.

The need for strict scrutiny is no less important here,

where prison officials cite racial violence as the reason for

Cite as: 543 U.S. ___ (2005) 7

Opinion of the Court

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 in-

mates “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 CDC’s policy is unwritten. Although California claimed

at oral argument that two other States follow a similar

policy, see Tr. of Oral Arg. 30-31, this assertion was unsub-

stantiated, and we are unable to confirm or deny its accu-

racy.2 Virtually all other States and the Federal Govern-

? Though, as JUSTICE THOMAS points out, see post, at 22-23, 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. OP-030102, Inmate Housing (Sept. 16, 2004), available

at http://www.doc.state.ok.us/docs/policies.htm (as visited Jan. 21, 2005,

8 JOHNSON v. CALIFORNIA

Opinion of the Court

ment 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, hous-

ing and programs”). The United States contends that racial

integration actually “leads to less violence in BOP’s institu-

tions 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.” Jd., at 24. As to transferees, in par-

ticular, whom the CDC has already evaluated at least once,

it is not clear why more individualized determinations are

not possible.

Because the CDC’s policy is an express racial classifica-

and available in the Clerk of Court's case file); Texas Dept. of Criminal!

Justice, Security Memorandum No. SM-01.28, Assignment tm General

Population Two-Person Cells (June 15, 2002). See also Brief for Former

State Corrections Officials as Amici Curiae 20, a. 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 19-20 (“[W]e are aware of no state other than California that

assumes that every incoming prisoner is incapable of gettang along with a

cell mate of a different race. And we are aware of no state other than

Califorma that has acted on such an assumption by adopting an inflexible

and absolute policy of racial segregation of double cells in reception

centers”).

Cite as: 543 U.S. ___ (2005) )

Opinion of the Court

tion, 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 Ap-

peals erred when it failed to apply strict scrutiny to the

CDC's policy and to require the CDC to demonstrate that

its policy is narrowly tailored to serve a compelling state

interest.

B

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 articu-

lated 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. Jd., 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 “reasona-

bly related” to “legitimate penological interests.” J/d., at

89.

We have never applied Jurner 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 Turner's 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 sys-

tem”). This is because certain privileges and rights must

necessarily be limited in the prison context. See O’Lone v.

Estate of Shabazz, 482 U.S. 342, 348 (1987) (“‘{Ljawful

10 JOHNSON v. CALIFORNIA

Opinion of the Court

\incarceration brings about the necessary withdrawal or

limitation of many privileges and rights, a retraction

justified by the considerations underlying our penal sys-

tem’” (quoting Price v. Johnston, 334 U.S 266, 285

(1948))). Thus, for example, we have relied on Turner in

addressing First Amendment challenges to prison regula-

tions, including restrictions on freedom of association,

Overton, supra; limits on inmate correspondence, Shaw v.

Murphy, 532 U.S. 223 (2001); restrictions on inmates’

access to courts, Lewis v. Casey, 518 U.S. 343 (1996);

restrictions on receipt of subscription publications, Thorn-

burgh v. Abbott, 490 U.S. 401 (1989); and work rules

limiting prisoners’ attendance at religious services, Sha-

bazz, supra. We have also applied Turner to some due

process claims, such as involuntary medication of mentally

ill prisoners, Washington v. Harper, 494 U.S. 210 (1990);

and restrictions on the right to marry, Turner, supra.

The right not to be discriminated against based on one’s

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, compli-

ance with the Fourteenth Amendment’s 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. Mitchell, 443 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. Ken-

tucky, 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 com-

pelling government interest and proving that their means

Cite as: 543 U.S. ____ (2005) 11

Opinion of the Court

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 punish-

ment in prison. We judge violations of that Amendment

under the “deliberate indifference” standard, rather than

Turner's “reasonably related” standard. See Hope v. Pel-

zer, 536 U.S. 730, 738 (2002) (asking whether prison

officials displayed “‘deliberate indifference’ to the inmate’s

health or safety” where an inmate claimed that they vio-

lated his rights under the Eighth Amendment (quoting

Hudson v. McMillian, 503 U.S. 1, 8 (1992))). This is

because the integrity of the criminal justice system de-

pends on full compliance with the Eighth Amendment.

See Spain v. Procunier, 600 F.2d 189, 193-194 (CA9

1979) (Kennedy, J.) (“[T]he full protections of the eighth

amendment most certainly remain in force [in prison].

The whole point of the amendment is to protect persons

convicted of crimes. ... Mechanical deference to the find-

ings of state prison officials in the context of the eighth

amendment would reduce that provision to a nullity in

precisely the context where it is most necessary” (internal

quotation marks omitted)).

In the prison context, when the government’s power is

at its apex, we think that searching judicial review of

racial classifications is necessary to guard against invidi-

ous discrimination. Granting the CDC an exemption from

the rule that strict scrutiny applies to all racial classifica-

tions would undermine our “unceasing efforts to eradicate

racial) prejudice irom our criminal justice system.”

McCleskey v. Kemp, 481 U.S. 279, 309 (1987) (internal

quotation marks omitted).

The CDC argues that “[djeference to the particular

expertise of prison officials in the difficult task of manag-

ing daily prison operations” requires a more relaxed stan-

dard of review for its segregation policy. Brief for Respon-

dents 18. But we have refused to defer to state officials’

12 JOHNSON v. CALIFORNIA

Opinion of the Court

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 89-96. Simi-

larly, 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 predomi-

nantly 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 classi-

fications 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 justify-

ing 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 discrimina-

tion”); 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 limb—for example, a prison race riot, requiring

temporary segregation of inmates—can justify an excep-

tion to the principle embodied in the Fourteenth Amend-

ment that ‘[o]ur Constitution is color-blind, and neither

knows nor tolerates classes among citizens” (quoting

Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J.,

dissenting))); see also Pell, 417 U.S., at 823 (“[C]entral to

all other corrections goals is the institutional considera-

tion of internal security within the correctional facilities

themselves”).

Cite as: 543 U.S.___ (2005) 13

Opinion of the Court

JUSTICE THOMAS would subject race-based policies in

prisons to Turner's 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 Nation’s 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 “rea-

sonably 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 CDC’s legitimate

interest, but only [that] ‘defendants might reasonably

have thought that the policy would advance its inter-

ests”). See also Turner, supra, at 90 (warning that

Turner is not a “least restrictive alternative test” (internal

quotation marks omitted)).

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

a

&

14 JOHNSON v. CALIFORNIA

Opinion of the Court

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 stan-

dard 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, 24-25 (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 326-327 (“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 com-

pelling 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 compel-

ling governmental interest, such action does not violate

the constitutional guarantee of equal protection so long as

the narrow-tailoring requirement is also satisfied”).*

3 JUSTICE THOMAS characterizes the CDC’s policy as a “limited” one,

see post, at 2, but the CDC’s 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 differ-

ent race. App. to Pet. for Cert. 3a. See also generally post, at 1-2, and

n. 1 (STEVENS, J., dissenting). Thus, despite an inmate's “age, physical

size, mental health, medical needs, [and] criminal history,” post, at 13

(THOMAS, J., dissenting), the fact that he is black categorically pre-

cludes 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 Califor-

Cite as: 543 U.S. __ (2005) 15

Opinion of the Court

The fact that strict scrutiny applies “says nothing about

the ultimate validity of any particular law; that determi-

nation is the job of the court applying strict scrutiny.”

Adarand, supra, at 229-230. At this juncture, no such

determination has been made. On remand, the CDC will

have the burden of demonstrating that its policy is nar- ©

rowly tailored with regard to new inmates as well as

transferees. Prisons are dangerous places, and the special

circumstances they present may justify racial classifica-

tions in some contexts. Such circumstances can be consid-

ered in applying strict scrutiny, which is designed to take

relevant differences into account.

Ill

We do not decide whether the CDC’s 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 Con-

solidated Rail Corporation v. Gottshal, 512 U.S. 532, 557-

558 (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,

1031-1032 (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.

nia prisons is sufficient to justify such a broad policy.

Cite as: 543 U.S. ____ (2005) 1

GINSBURG, J., concurring

SUPREME COURT OF THE UNITED STATES

No. 03-636

GARRISON S. JOHNSON, PETITIONER v.

CALIFORNIA ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[February 23, 2005]

JUSTICE GINSBURG, with whom JUSTICE SOUTER and

JUSTICE BREYER join, concurring.

I join the Court’s opinion, subject to the reservation

expressed in Grutter v. Bollinger, 539 U.S. 306, 344-346

(2003) (GINSBURG, J., concurring).

The Court today resoundingly reaffirms the principle

that state-imposed racial segregation is highly suspect and

cannot be justified on the ground that “‘all persons suffer

[the separation] in equal degree."” Ante, at 6 (quoting

Powers v. Ohio, 499 U.S. 400, 410 (1991)). While I join

that declaration without reservation, I write separately to

express again my conviction that the same standard of

review ought not control judicial inspection of every offi-

cial race classification. As I stated most recently in Gratz

v. Bollinger, 539 U. S. 244, 301 (2003) (dissenting opinion):

“Actions designed to burden groups long denied full citi-

zenship stature are not sensibly ranked with measures

taken to hasten the day when entrenched discrimination

and its aftereffects have been extirpated.” See also Grut-

ter, 539 U.S., at 344-346 (GINSBURG, J., concurring);

Adarand Constructors, Inc. v. Petia, 515 U.S. 200, 271-276

(1995) (GINSBURG, J., dissenting).

There is no pretense here, however, that the California

Department of Corrections (CDC) installed its segregation

policy to “correct inequalities.” See Wechsler, The Nation-

2 JOHNSON v. CALIFORNIA

GINSBURG, J., concurring

alization of Civil Liberties and Civil Rights, Supp. to 12

Tex. Q. 10, 23 (1968). Experience in other States and in

federal prisons, see ante, at 7-8; post, at 3-4 (STEVENS, J.,

dissenting), strongly suggests that CDC’s race-based

assignment of new inmates and transferees, administra-

tively convenient as it may be, is not necessary to the safe

management of a penal institution.

Disagreeing with the Court that “strict scrutiny” prop-

erly applies to any and all racial classifications, see ante,

at 4-9, 11-12, 14, but agreeing that the stereotypical

classification at hand warrants rigorous scrutiny, I join

the Court's opinion.

Cite as: 543 U.S. __ (2005) 1

STEVENS, J., dissenting

SUPREME COURT OF THE UNITED STATES

No. 03-636

GARRISON S. JOHNSON, PETITIONER v.

CALIFORNIA ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

(February 23, 2005}

JUSTICE STEVENS, dissenting.

In my judgment a state policy of segregating prisoners

by race during the first 60 days of their incarceration, as

well as the first 60 days after their transfer from one

facility to another, violates the Equal Protection Clause of

the Fourteenth Amendment. The California Department

of Corrections (CDC) has had an ample opportunity to

justify its policy during the course of this litigation, but

has utterly failed to do so whether judged under strict

scrutiny or the more deferential standard set out in

Turner v. Safley, 482 U.S. 78 (1987). The CDC had no

incentive in the proceedings below to withhold evidence

supporting its policy; nor has the CDC made any offer of

proof to suggest that a remand for further factual develop-

ment would serve any purpose other than to postpone the

inevitable. I therefore agree with the submission of the

United States as amicus curiae that the Court should hold

the policy unconstitutional on the current record.

The CDC’s segregation policy' is based on a conclusive

'The CDC operates 32 prisons, 7 of which house reception centers.

All new inmates and al] inmates transferring between prisons are

funneled through one of these reception centers before they are perma-

nently placed. At the centers, inmates are housed either in dormitories,

double cells, or single cells (of which there are few). Under the CDC's

segregation policy, race is a determinative factor in placing inmates in

2 JOHNSON v. CALIFORNIA

STEVENS, J., dissenting

presumption that housing inmates of different races to-

gether creates an unacceptable risk of racial violence.

Under the policy's logic, an inmate's race is a proxy for

gang membership, and gang membership is a proxy for

violence. The CDC, however, has offered scant empirical

evidence or expert opinion to justify this use of race under

even a minimal level of constitutional scrutiny. The pre-

sumption underlying the policy is undoubtedly overbroad.

The CDC has made no effort to prove what fraction of new

or transferred inmates are members of race-based gangs,

nor has it shown more generally that interracial violence

is disproportionately greater than intraracial violence in

its prisons. Proclivity toward racial violence unquestiona-

bly varies from inm..e to inmate, yet the CDC applies its

blunderbuss policy to ail new and transferred inmates

housed in double cells regardless of their criminal] histo-

ries or records of previous incarceration. Under the CDC's

policy, for example, two car thieves of different races—

neither of whom has any history of gang involvement, or of

violence, for that matter—would be barred from being

housed together during their first two months of prison.

This result derives from the CDC’s inflexible judgment

that such integrated living conditions are simply too dan-

gerous. This Court has never countenanced such racial

prophylaxis.

To establish a link between integrated cells and vio-

lence, the CDC relies on the views of two state corrections

officials. They attested to their belief that double-celling

double cells. regardless of the other factors considered in such deci-

sions. While a corrections official with 24 years of experience testified

that an exception to this policy was once granted to a Hispanic inmate

who had been “raised with Crips.” App. 184a, the CDC's suggestion

that its policy is therefore flexible. see Brnef for Respondents 9, strains

credulity. There is no evidence that the CDC routinely allows inmates

to opt-out of segregation, much less evidence that the CDC informs

inmates of their supposed right to do so.

—————eo eT tt—~—“‘“SC;*C*s”S”:CCttee

Cite as: 543 U.S. __ (2005) 3

STEVENS, J., dissenting

members of different races would lead to violence and that

this violence would spill out into the prison yards. One of

these officials, an associate warden, testified as follows:

“[W]ith the Asian population, the control sergeants

have to be more careful than they do with Blacks,

Whites, and Hispanics because, for example, you can-

not house a Japanese inmate with a Chinese inmate.

You cannot. They will kill each other. They won't

even tell you about it. They will just do it. The same

with Laotians, Vietnamese, Cambodians, Filipinos.

You have to be very careful about housing other

Asians with other Asians. J’'» very culturally heavy.”

App. 189a.

Such musings inspire little confidence. Indeed, this com-

ment supports the suspicion that the policy is based on

racial stereotypes and outmoded fears about the dangers

of racial integration. This Court should give no credence

to such cynical, reflexive conclusions about race. See, e.g.,

Palmore v. Sidoti, 466 U.S. 429, 432 (1984) (“Classifying

persons according to their race is more likely to reflect

racial prejudice than legitimate public concerns; the race,

not the person, dictates the category”); Watson v. Mem-

phis, 373 U. S. 526, 536 (1963) (rejecting the city’s plea for

delay in desegregating public facilities when “neither the

asserted fears of violence and tumult nor the asserted

inability to preserve the peace was demonstrated at trial

to be anything more than personal speculations or vague

disquietudes of city officials”).

The very real risk that prejudice (whether conscious or

not) partly underlies the CDC’s policy counsels in favor of

relaxing the usual deference we pay to corrections officials

in these matters. We should instead insist on hard evi-

dence, especially given that California’s policy is an outlier

when compared to nationwide practice. The Federal

4 JOHNSON v. CALIFORNIA

STEVENS, J., dissenting

Bureau of Prisons administers 104 institutions; no similar

policy is applied in any of them. Countless state penal

institutions are operated without such a policy. An amici

brief filed by six former state corrections officials with an

aggregate of over 120 years of experience managing prison

systems in Wisconsin, Georgia, Oklahoma, Kansas,

Alaska, and Washington makes clear that a blanket policy

of even temporary segregation runs counter to the great

weight of professional opinion on sound prison manage-

ment. See Brief for Former State Corrections Officials as

Amici Curiae 19. Tellingly, the CDC can only point to two

other States, Texas and Oklahoma, that use racial status.

in assigning inmates in prison reception areas. It is

doubtful from the record that these States’ policies have

the same broad and inflexible sweep as California's, and

this is ultimately beside the point. What is important is

that the Federal Government and the vast majority of

States address the threat of interracial violence in prisons

without resorting to the expedient of segregation.

In support of its policy, the CDC offers poignant evidence

that its prisons are infested with violent race-based gangs.

The most striking of this evidence involves a series of riots

that took place between 1998 and 2001 at Pelican Bay

State Prison. That prison houses some of the State’s most

violent criminal offenders, including “validated” gang

members who have been transferred from other prisons.

The riots involved both interracial and intraracial vio-

lence. In the most serious incident, involving 250-300

inmates, “Southern Hispanic” gang members, joined by

some white inmates, attacked a number of black ..mates.

Our judicial role, however, requires that we scratch below

the surface of this evidence, lest the sheer gravity of a threat

be allowed to authorize any policy justified in its name.

Upon inspection, the CDC's post hoc, generalized evidence of

gang violence is only tenuously related to its segregation

policy. Significantly, the CDC has not cited a single spe-

Cite as: 543 U.S. ___ (2005) 5

STEVENS, J., dissenting

cific incident of interracial violence between cellmates—

much less a pattern of such violence—that prompted the

adoption of its unique policy years ago. Nor is there any

indication that antagonism between cellmates played any

role in the more recent riots the CDC mentions. And

despite the CDC’s focus on prison gangs and its suggestion

that such gangs will recruit new inmates into committing

racial violence during their 60-day stays in the reception

centers, the CDC has cited no evidence of such recruit-

ment, nor has it identified any instances in which new

inmates committed racial violence against other new

inmates in the common areas, such as the yard or the

cafeteria. Perhaps the CDC’s evidence might provide a

basis for arguing that at Pelican Bay and other facilities

that have experienced similar riots, some race-conscious

measures are justified if properly tailored. See Lee v.

Washington, 390 U.S. 333, 334 (1968) (Black, J., concur-

ring). But even if the incidents cited by the CDC, which

occurred in the general prison population, were relevant to

the conditions in the reception centers, they provide no

support for the CDC’s decision to apply its segregation

policy to all of its reception centers, without regard for

each center’s security level or history of racial violence.

Nor do the incidents provide any support for a policy

applicable only to cellmates, while the common areas of

the prison in which the disturbances occurred remain fully

integrated.

Given the inherent indignity of segregation and its

shameful historical connotations, one might assume that

the CDC came to its policy only as a last resort. Distress-

ingly, this is not so: There is no evidence that the CDC has

ever experimented with, or even carefully considered,

race-neutral methods of achieving its goals. That the

policy is unwritten reflects, I think, the evident lack of

deliberation that preceded its creation.

Specifically, the CDC has failed to explain why it could

6 JOHNSON v. CALIFORNIA

STEVENS, J., dissenting

not, as an alternative to automatic segregation, rely on an

individualized assessment of each inmate’s risk of violence

when assigning him to a cell in a reception center. The

Federal Bureau of Prisons and other state systems do so

without any apparent difficulty. For inmates who are

being transferred from one facility to another—who repre-

sent approximately 85% of those subject to the segregation

policy—the CDC can simply examine their prison records

to determine if they have any known gang affiliations or if

they have ever engaged in or threatened racial violence.

For example, the CDC has had an opportunity to observe

the petitioner for almost 20 years; surely the CDC could

have determined his placement without subjecting him to

a period of segregation.2, For new inmates, assignments

can be based on their presentence reports, which contain

information about offense conduct, criminal record, and

personal history—including any available information

about gang affiliations. In fact, state law requires the

county probation officer to transmit a presentence report

to the CDC along with an inmate’s commitment papers.

See Cal. Penal Code Ann. §1203c (West 2004); Cal. Rule of

Court 4.411(d) (Criminal Cases) (West Supp. 2004).

Despite the rich information available in these records,

the CDC considers these records only rarely in assigning

inmates to cells in the reception centers. The CDC’s pri-

mary explanation for this is administrative inefficiency—

the records, it says, simply do not arrive in time. The

2In explaining why it cannot prescreen new inmates, the CDC’s brief

all but concedes that segregating transferred inmates is unnecessary.

See Brief for Respondents 42 (“If the officia!s had all of the necessary

information to assess the inmates’ violence potential when the inmates

arrived, perhaps a different practice could be used. But unlike the

federal system, where the inmates are generally in federal custody from

the moment they are arrested, state inmates are in county custody

until they are convicted and later transferred .o the custody of the

CDC").

Cite as: 543 U.S. ____ (2005) 7

STEVENS, J., dissenting

CDC’s counsel conceded at oral argument that presentence

reports “have a fair amount of information,” but she stated

that, “in California, the presentence report does not al-

ways accompany the inmate an? frequently does not. It

follows some period of time later from the county.” Tr. of

Oral Arg. 33. Despite the state-law requirement to the

contrary, counsel informed the Court that the counties are

not preparing the presentence reports “in a timely fash-

ion.” Ibid. Similarly, with regard to transferees, counsel

stated that their prison records do not arrive at the recep-

tion centers in time to make cell assignments. Zd., at 28.

Even if such inefficiencies might explain a temporary

expedient in some cases, they surely do not justify a sys-

tem-wide policy. When the State’s interest in administra-

tive convenience is pitted against the Fourteenth Amend-

ment’s ban on racial segregation, the latter must prevail.

When there has been no “serious, good faith consideration

of workable race-neutral alternatives that will achieve the

[desired goal],” Grutter v. Bollinger, 539 U.S. 306, 339

(2003), and when “obvious, easy alternatives” are avail-

able, Turner, 482 U.S., at 90, the conclusion that CDC’s

policy is unconstitutional is inescapable regardless of the

standard of review that the Court chooses to apply.*

In fact, the CDC’s failure to demand timely presentence

reports and prison records undercuts the sincerity of its

3 Because the Turner factors boil down to a tailoring test, and I conclude

that the CDC’s policy is, at best, an “exaggerated response” to its asserted

security concerns, see Turner v. Safley, 482 U.S. 78, 90 (1987), I find it

unnecessary to address specifically the other factors, such as whether new

and transferred inmates have “alternative means” of exercising their nght

to equal protection during their period of housing segregation, id., at 89.

Indeed, this case demonstrates once again that “[hjow a court describes its

standard of review when a prison regulation infringes fundamental

constitutional rights often has far less consequences for the inmates than

the actual showing that the court demands of the State in order to uphold

the regulation.” /Jd., at 100 (STEVENS, J., concurring in part and dissenting

in part)

8 JOHNSON v. CALIFORNIA

STEVENS, J., dissenting

concern for inmate security during the reception process.

Race is an unreliable and necessarily underinclusive predic-

tor of violence. Without the inmate-specific information

found in the records, there is a risk that corrections officials

will, for example, house together inmates of the same race

who are nevertheless members of rival gangs, such as the

Bloods and Crips.*

Accordingly, while I agree that a remand is appropriate

for a resolution of the issue of qualified immunity, I re-

spectfully dissent from the Court’s refusal to decide, on the

basis of the record before us, that the CDC’s policy is

unconstitutional.

*The CDC's policy may be counterproductive in other ways. For exam-

ple, an official policy of segregation may initiate new arrivals into a

corrosive culture of prison racial segregation, lending credence to the view

that members of other races are to be feared and that racial alliances are

necessary. While integrated cells encourage inmates to gain valuable

cross-racial experiences, segregated cells may well facilitate the formation

of race-based gangs. See Brief for Former State Corrections Officials as

Amici Curiae 19 (citing evidence and experience suggesting that the racial

integration of cells on balance decreases interracial violence).

Cite as: 543 U.S.__ (2005) 1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES

No. 03-636

GARRISON S. JOHNSON, PETITIONER v.

CALIFORNIA ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[February 23, 2005]

JUSTICE THOMAS, with whom JUSTICE SCALIA joins,

dissenting.

The questions presented in this case require us to re-

solve two conflicting lines of precedent. On the one hand,

as the Court stresses, this Court has said that “‘all racial

classifications reviewable under the Equal Protection

Clause must be strictly scrutinized.” Gratz v. Bollinger,

539 U.S. 244, 270 (2003) (emphasis added) (quoting Ada-

rand Constructors, Inc. v. Peria, 515 U.S. 200, 224 (1995)).

On the other, this Court has no less categorically said that

“the [relaxed] standard of review we adopted in Turner [v.

Safley, 482 U.S. 78 (1987),] applies to all circumstances in

which the needs of prison administration implicate consti-

tutional rights.” Washington v. Harper, 494 U.S. 210, 224

(1990) (emphasis added).

Emphasizing the former line of cases, the majority

resolves the conflict in favor of strict scrutiny. I disagree.

The Constitution has always demanded less within the

prison walls. Time and again, even when faced with

constitutional rights no less “fundamental” than the right

to be free from state-sponsored racial discrimination, we

have deferred to the reasonable judgments of officials

experienced in running this Nation’s prisons. There is

good reason for such deference in this case. California

oversees roughly 160,000 inmates, in prisons that have

2 JOHNSON v. CALIFORNIA

THOMAS, J., dissenting

been a breeding ground for some of the most violent prison

gangs in America—all of them organized along racial

lines. In that atmosphere, California racially segregates a

portion of its inmates, in a part of its prisons, for brief

periods of up to 60 days, until the State can arrange per-

manent housing. The majority is concerned with sparing

inmates the indignity and stigma of racial discrimination.

Ante, at 6-7. California is concerned with their safety and

saving their lives. I respectfully dissent.

I

To understand this case, one must understand just how

limited the policy at issue is. That requires more factual

background than the Court’s opinion provides. Petitioner

Garrison Johnson is a black inmate in the California

Department of Corrections (CDC), currently serving his

sentence for murder, robbery, and assault with a deadly

weapon. App. 255a—256a, 259a. Johnson began serving

his sentence in June 1987 at the California Institution for

Men in Chino, California. Jd., at 79a, 264a. Since that

time he has been transferred to a number of other facili-

ties within the CDC. Id., at 79a—82a.

When an inmate like Johnson is admitted into the Cali-

fornia prison system or transferred between the CDC’s

institutions, he is housed initially for a brief period—usually

no more than 60 days—in one of California’s prison recep-

tion centers for men. Id., at 303a—305a. CDC, Department

Operations Manual §61010.3 (2004) (hereinafter CDC Op-

erations Manual), available at http://www.corr.ca.gov/

RegulationsPolicies/PDF/DOM/00_dept_ops_manual.pdf (all

Internet materials as visited Feb. 18, 2005, and available in

the Clerk of Court’s case file). In 2003, the centers proc-

essed more than 40,000 newly admitted inmates, almost

72,000 inmates returned from parole, over 14,000 inmates

admitted for other reasons, and some portion of the 254,000

inmates who were transferred from one prison to another.

California Dept. of Corrections, Movement of Prison Popula-

tion 3 (2003) (hereinafter Movement of Prison Population).

ee a

Cite as: 543 U.S.___ (2005) 3

THOMAS, J., dissenting

At the reception center, prison officials have limited

information about an inmate, “particularly if he has never

been housed in any CDC facility.” App. 303a. The inmate

therefore is classified so that prison officials can place the

inmate in appropriate permanent housing. During this

process, the CDC evaluates the inmate’s “physical, mental

and emotional health.” Ibid. The CDC also reviews the

inmate’s criminal history and record in jail to assess his

security needs and classification level. Jd., at 304a. Fi-

nally, the CDC investigates whether the inmate has any

enemies in pris.n. Jbid. This process determines the

inmate’s ultimate housing placement and has nothing to

do with race.

While the process is underway, the CDC houses the

inmate in a one-person cell, a two-person cell, or a dormi-

tory. Id., at 305a. The few single cells available at recep-

tion centers are reserved for inmates who present special

security problems, including those convicted of especially

heinous crimes or those in need of protective custody. See,

e.g., CDC Operations Manual §61010.11.3. At the other

end of the spectrum, lower risk inmates are assigned to

dormitories. App. 189a—-190a. Placement in either a

single cell or a dormitory has nothing to do with race,

except that prison officials attempt to maintain a racial

balance within each dormitory. JId., at 250a. Inmates

placed in single cells or dormitories lead fully integrated

lives: The CDC does not distinguish based on race at any

of its facilities when it comes to jobs, meals, yard and

recreation time, or vocational and educational assign-

ments. Ibid.

Yet some prisoners, like Johnson, neither require con-

finement in a single cell nor may be safely housed in a

dormitory. The CDC houses these prisoners in double

cells during the 60-day period. In pairing cellmates, race

is indisputably the predominant factor. Id., at 305a, 309a.

California’s reason is simple: Its prisons are dominated by

4 JOHNSON v. CALIFORNIA

THOMAS, J., dissenting

violent gangs. Brief for Respondents 1-5. And as the

largest gangs’ names indicate—the Aryan Brotherhood,

the Black Guerrilla Family, the Mexican Mafia, the Nazi

Low Riders, and La Nuestra Familia—they are organized

along racial lines. See Part II-B, infra.

According to the State, housing inmates in double cells

without regard to race threatens not only prison disci-

pline, but also the physical safety of inmates and staff.

App. 505a—306a, 310a—3lla. That is because double cells

are especially dangerous. The risk of racial violence in

public areas of prisons is high, and the tightly confined,

private conditions of cells hazard even more violence.

Prison staff cannot see into the cells without going up to

them, and inmates can cover the windows to prevent the

staff from seeing inside the cells. Jd., at 306a. The risk of

violence caused by this privacy is grave, for inmates are

confined to their cells for much of the day. IJbid.; id., at

187a—188a.

Nevertheless, while race is the predominant factor in

pairing cellmates, it is hardly the only one. After dividing

this subset of inmates based on race, the CDC further

divides them based on geographic or national origin. As

an example, Hispanics from Northern and Southern Cali-

fornia are not housed together in reception centers, be-

cause they often belong to rival gangs—La Nuestra Fa-

milia and the Mexican Mafia, respectively. Id., at 185a.

Likewise, Chinese and Japanese inmates are not housed

together, nor are Cambodians, Filipinos, Laotians, or

Vietnamese. Jd., at 189a. In addition to geographic and

national origin, prison officials consider a host of other

factors, including inmates’ age, mental health, medical

needs, criminal history, and gang affiliation. Id., at 304a,

309a. For instance, when Johnson was admitted in 1987,

he was a member of the Crips, a black street gang. /d., at

93a. He was therefore ineligible to be housed with

nonblack inmates. Jd., at 183a; Brief for Respondents 12,

Cite as: 543 U.S. __ (2005) 5

THOMAS, J., dissenting

n. 9.

Moreover, while prison officials consider race in assign-

ing inmates to double cells, the record shows that inmates

are not necessarily housed with other inmates of the same

race during that 60-day period. When a Hispanic inmate

affiliated with the Crips asked to be housed at the recep-

tion center with a black inmate, for example, prison ad-

ministrators granted his request. App. at 183a—184a,

199a. Such requests are routinely granted after the 60-

day period, when prison officials complete the classifica-

tion process and transfer an inmate from the reception

center to a permanent placement at that prison or another

one.' Id., at 31la—312a.

II

Traditionally, federal courts rarely involved themselves

in the administration of state prisons, “adopt{ing] a broad

hands-off attitude toward problems of prison administra-

tion.”? Procunier v. Martinez, 416 U.S. 396, 404 (1974).

‘Johnson has never requested—not during his initial admittance,

nor his subsequent transfers, nor his present incarceration—that he be

housed with a person of a different race. App. 106a, 112a—113a, 175a.

According to Johnson, he considered the policy a barrier to any such

request; however, Johnson has also testified that he never filed a

112a—113a, 124a-125a. Neither the parties nor the majority discusses

whether Johnson has exhausted his action under Rev. Stat. §1979, 42

U.S. C. §1983, as required by the Prison Litigation Reform Act (PLRA),

110 Stat. 1321, as amended, 42 U.S.C. §1997e(a). See Booth v.

Churner, 532 U.S. 731, 734 (2001). The majority thus assumes that

statutorily mandated exhaustion is not jurisdictional, and that Califor-

nia has waived the issue by failing to raise it. See, e.g, Richardson v.

Goord, 347 F. 3d 431, 433-434 (CA2 2003); Perez v. Wisconsin Dept. of

Corrections, 182 F. 3d 532, 536 (CA7 1999).

2The majority refers to my approach as a “hands-off” one, because |

would accord deference to the judgments of the State's prison officials.

See ante, at 5, n. 1. Its label is historically inaccurate. The “hands-off”

approach was that taken prior to the 1960's by federal courts, which

generally declined to consider the merits of prisoners’ claims. See, e.g.,

6 JOHNSON v. CALIFORNIA

THOMAS, J., dissenting

For most of this Nation's history, only law-abiding citizens

could claim the cover of the Constitution (p< n conviction

and incarceration, defendants forfeited the: constitutional

rights and possessed instead only those rights that the

State chose to extend them. See, e.g., Shaw v. Murphy,

532 U.S. 223, 228 (2001); Ruffin v. Commonwealth, 62 Va.

790, 796 (1871). In recent decades, however, this Court

has decided that incarceration does not divest prisoners of

all constitutional protections. See, e.g., Wolff v. McDon-

nell, 418 U.S. 539, 555-556 (1974) (the right to due proc-

ess); Cruz v. Beto, 405 U.S. 319, 322 (1972) (per curiam)

(the mght to free exercise of religion).*

At the same time, this Court quickly recognized that the

extension of the Constitution’s demands behind prison

walls had to accommodate the needs of prison administra-

tion. This Court reached that accommodation in Turner v.

Safley, 482 U. S. 78 (1987), which “adopted a unitary, defer-

ential standard for reviewing prisoners’ constitutional

claims.” Shaw, supra, at 229. That standard should govern

Johnson's claims, as it has governed a host of other claims

challenging conditions of confinement, even when restrict-

ing the nghts at issue would otherwise have occasioned

J. Fliter, Prisoners’ Rights: The Supreme Court and Evolving Stan-

dards of Decency 64—65 (2001); M. Feeley & E. Rubin. Judicial Policy

Making and the Modern State 30-34 (2000); S. Krantz & L. Branham,

Cases and Materials on the Law of Sentencing, Corrections and Prison-

ers Rights 264-265 (4th ed. 1991).

‘A prisoner may not entirely surrender his constitutional mghts at

the prison gates, Bell v. Wolfish, 441 U.S. 520, 545 (1979); Jones v.

North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 129 (1977),

aD EE Se NS Ee Se ee When a

140 (2003) (THOMAS, J., concurring in judgment); Coffin v. Reichard,

143 F. 2d 443, 445 (CA6 1944).

Cite as: 543 U.S. __ (2005) 7

THOMAS, J., dissenting

strict scrutiny. Under the Turner standard, the CDC's

policy passes constitutional muster, because it is reasonably

related to legitimate penological interests.

A

Well before Turner, this Court recognized that experi-

enced prison administrators, and not judges, are in the

best position to supervise the daily operations of prisons

across this country. See, e.g., Jones v. North Carolina

Prisoners’ Labor Union, Inc., 433 U.S. 119, 125 (1977)

(courts must give “appropriate deference to the decisions of

prison administrators”); Procunier, supra, at 405 (“[Cjourts

are ill equipped to deal with the increasingly urgent prob-

lems of prison administration and reform”). Turner made

clear that a deferential standard of review would apply

across-the-board to inmates’ constitutional challenges to

prison policies.

At issue in Turner was the constitutionality of a pair of

Missouri prison regulations limiting inmate-to-inmate

correspondence and inmate marriages. The Court’s analy-

sis proceeded in two steps. First, the Court recognized

that prisoners are not entirely without constitutional nghts.

As proof, it listed certain constitutional rights retained by

prisoners, including the right to be “protected against in-

aitcus Gate diekaiediin . , Lee v. Washington, 390

U.S. 333 (1968).” Turner, 482 U.S., at 84. Second, the

Court concluded that for prison administrators rather than

courts to “‘make the difficult judgments concerning institu-

tional operations,” id., at 89 (quoting Jones, supra, at 128),

courts should uphold prison regulations that impinge on

those constitutional rights if they reasonably relate to le-

gitimate penological interests, 482 U.S., at 89. Nowhere

did the Court suggest that Lee’s right to be free from racial

discrimination was immune from Turner’s deferential stan-

dard of review. To the contrary, “[w]e made quite clear that

the standard of review we adopted in Turner applies to all

8 JOHNSON v. CALIFORNIA

THOMAS, J., dissenting

circumstances in which the needs of prison administration

implicate constitutional rights.” Harper, 494 U.S., at 224

(emphasis added).

Consistent with that understanding, this Ceurt has

applied Turner's standard to a host of constitutional

claims by prisoners, regardless of the standard of review

that would apply outside prison walls.‘ And this Court

has adhered to Turner despite being urged to adopt differ-

ent standards of review based on the constitutional provi-

sion at issue. See Harper, supra, at 224 (Turner's stan-

dard of review “appl[ies] in all cases in which a prisoner

asserts that a prison regulation violates the Constitution,

not just those in which the prisoner invokes the First

Amendment” (emphasis added)); O’'Lone v. Estate of Sha-

bazz, 482 U. S. 342, 353 (1987) (“We take this opportunity

to reaffirm our refusal, even where claims are made under

the First Amendment, to substitute our judgment on .. .

difficult and sensitive matters of institutional administra-

tion for the determinations of those charged with the

formidable task of running a prison” (internal quotation

marks and citation omitted; emphasis added)). Our stead-

fast adherence makes sense: If Turner is our accommoda-

tion of the Constitution’s demands to those of prison ad-

ministration, see supra, at 7, we should apply it uniformly

to prisoners’ challenges to their conditions of confinement.

After all, Johnson’s claims, even more than other claims

*See. e.g. Overton, supra, at 132 (the mght to association under the

First and Fourteenth Amendments); Shaw v. Murphy, 532 U. S. 223, 228—

229 (2001) (the mght to communicate with fellow inmates under the First

Amendment). Lewis v. Casey, 518 U. S. 343, 361 (1996) (the right of access

to the courts under the Due Process and Equal Protection Clauses);

Washington v. Harper, 494 U.S. 210, 223-225 (1990) (the right to refuse

forced medication under the Due Process Clause); Thornburgh v. Abbott,

490 U_S. 401. 413-414 (1989) (the nght to receive correspondence under

the First Amendment); O'Lone v. Estate of Shabazz, 482 U.S. 342,

349-350 (1987) (the mght to free exercise of religion under the First

Amendment).

a EN EE

Cite as: 543 U.S. __ (2005) 9

THOMAS, J., dissenting

to which we have applied Turner’s test, implicate Turner's

rationale. In fact, in a passage that bears repeating, the

Turner Court explained precisely why deference to the

judgments of California’s prison officials is necessary:

“Subjecting the day-to-day judgments of prison offi-

cials to an inflexible strict scrutiny analysis would se-

riously hamper their ability to anticipate security

problems and to adopt innovative solutions to the in-

tractable problems of prison administration. The rule

would also distort the decisionmaking process, for

every administrative judgment would be subject to the

possibility that some court somewhere would conclude

that it had a less restrictive way of solving the prob-

lem at hand. Courts inevitably would become the

primary arbiters of what constitutes the best solution

to every administrative problem, thereby unnecessar-

ily perpetuating the involvement of the federal courts

in affairs of prison administration.” 482 U.S., at 89

(internal quotation marks and alteration omitted).

The majority’s failure to heed that advice is inexplicable,

especially since Turner itself recognized the “growing

problem with prison gangs.” IJd., at 91. In fact, there is no

more “intractable problem” inside America’s prisons than

racial violence, which is driven by race-based prison

gangs. See, e.g., Dawson v. Delaware, 503 U. S. 159, 172-

173, and n. 1 (1992) (THOMAS, J., dissenting); Stefanow v.

McFadden, 103 F.3d 1466, 1472 (CA9 1996) (“Anyone

familiar with prisons understands the seriousness of the

problems caused by prison gangs that are fueled by ac-

tively virulent racism and religious bigotry”).

B

The majority decides this case without addressing the

problems that racial violence poses for wardens, guards,

10 JOHNSON v. CALIFORNIA

THOMAS, J., dissenting

and inmates throughout the federal and state prison

systems. But that is the core of California's justification

for its policy: It maintains that, if it does not racially

separate new cellmates thrown together in close confines

during their initial admission or transfer, violence will

erupt.

The dangers California seeks to prevent are real. See

Brief for National Association of Black Law Enforcement

Officers, Inc. as Amicus Curiae 12. Controlling prison

gangs is the central challenge facing correctional offi-

cers and administrators. Carlson, Prison Interventions:

Evolving Strategies to Control Security Threat Groups, 5

Corrections Mgmt. Q. 10 (Winter 2001) (hereinafter Carl-

son). The worst gangs are highly regimented and

sophisticated organizations that commit crimes rang-

ing from drug trafficking to theft and murder. /d.,

at 12; California Dept. of Justice, Division of Law En-

forcement, Organized Crime in California Annual Report

to the California Legislature 2003, p. 15, available at

http://caag.state.ca.us/publications/org_crime.pdf. In fact,

street gangs are often just an extension of prison gangs,

their “foot soldiers” on the outside. Jbid.; Willens, Struc-

ture, Content and the Exigencies of War: American Prison

Law After Twenty-Five Years 1962-1987, 37 Am. U.

L. Rev. 41, 55-56 (*987). And with gang membership on

the rise, the percentage of prisoners affiliated with prison

gangs more than doubled in the 1990’s.°

The problem of prison gangs is not unique to California,®

®See National Gang Crime Research Center, A National Assessment

of Gangs and Security Threat Groups (STGs) in Adult Correctional

Institutions: Results of the 1999 Adult Corrections Survey, p. 5,

http://www .ngcrc.com/ngcrc/page7.htm.

*See, eg.. Fraise v. Terhune, 283 F. 3d 506, 512-513 (CA3 2002)

(describing violence caused by a single black prison gang, the Five

Percent Nation, in various New Jersey correctional facilities); Conroy v.

Dingle, No. Civ. 01-1626 (RHK/RLE), 2002 WL 31357055, *1-*2 (D.

Minn., Oct. 11, 2002) (describing rival racial gangs at Minnesota's

Cite as: 543 U.S. __ (2005) 11

THOMAS, J., dissenting

but California has a history like no other. There are at

least five major gangs in this country—the Aryan Broth-

erhood, the Black Guerrilla Family, the Mexican Mafia, La

Nuestra Familia, and the Texas Syndicate—all of which

originated in California’s prisons.’ Unsurprisingly, then,

California has the largest number of gang-related inmates

of any correctional system in the country, including the

Federal Government. Carlson 16.

As their very names suggest, prison gangs like the

Aryan Brotherhood and the Black Guerrilla Family organ-

ize themselves along racial lines, and these gangs per-

petuate hate and violence. Irwin 182, 184. Interracial

murders and assaults among inmates perpetrated by

these gangs are common.’ And, again, that brutality is

particularly severe in California’s prisons. See, e.g.,

Walker v. Gomez, 370 F. 3d 969, 971 (CA9 2004) (describ-

ing “history of significant racial tension and violence” at

Calipatria State Prison); id., at 979-980 (Rymer, J., dis-

senting) (same); App. 297a—299a (describing 2-year span

at Pelican Bay Prison, during which there were no fewer

Moose Lake facility, a medium security prison).

7See D. Orlando-Morningstar, Prison Gangs, Special Needs Offender

Bulletin, Federal Judicial Center 4 (Oct. 1997); see also J. Irwin,

Prisons in Turmoil 189 (1980) (hereinafter Irwin) (describing the

establishment and rise of gangs inside the California prison system,

first the Mexican Mafia, followed by La Nuestra Familia, the Aryan

Brotherhood, and the Black Guerrilla Family); United States v.

Shryock, 342 F. 3d 948, 961 (CA9 2003) (detailing rise of Mexican Mafia

inside the California prison system).

*See, eg., id., at 962-969 (describing a host of murders and at-

tempted murders by a handful of Mexican Mafia members); United

States v. Silverstein, 732 F. 2d 1338, 1341-1342 (CA7 1984) (describing

murder of a black inmate by members of the Aryan Brotherhood); State

v. Kell, 61 P. 3d 1019, 1024-1025 (Utah 2002) (describing fatal stabbing

of a black inmate by two white supremacists); State v. Farmer, 126

Ariz. 569, 570-571, 617 P. 2d 521, 522-523 (1980) (en banc) (describ-

ing murder of a biack inmate by members and recruits of the Aryan

Brotherhood).

12 JOHNSON v. CALIFORNIA

THOMAS, J., dissenting

than nine major riots that left at least one inmate dead

and many more wounded).

C

It is against this backdrop of pervasive racial violence

that California racially segregates inmates in the recep-

tion centers’ double cells, for brief periods of up to 60 days,

until such time as the State can assign permanent hous-

ing. Viewed in that context and in light of the four factors

enunciated in Turner, California's policy is constitutional:

The CDC’s policy is reasonably related to a legitimate

penological interest; alternative means of exercising the

restricted right remain open to inmates; racially integrat-

ing double cells might negatively impact prison inmates,

staff, and administrators; and there are no obvious, easy

alternatives to the CDC’s policy.

1

First, the policy is reasonably related to a legitimate

penological interest. Turner, 482 U.S., at 89. The protec-

tion of inmates and staff is undeniably a legitimate pe-

nological interest. See Bell v. Wolfish, 441 U.S. 520, 546—

547 (1979). The evidence shows, and Johnson has never

contested, that the objective of California’s policy is reduc-

ing violence among the inmates and against the staff. No

cells are designated for, nor are special privileges afforded

to, any racial group. App. 188a, 305a. Because prison

administrators use race as a factor in making initial hous-

ing assignments “solely on the basis of [its] potential

implications for prison security,” the CDC’s cell assign-

ment practice is neutral. Thornburgh v. Abbott, 490 U.S.

401, 415 (1989); Turner, supra, at 90.

California’s policy bears a valid, rational connection to

this interest. The racial component to prison violence is

impossible for prison administrators to ignore. Johnson

himself testified that he is afraid of violence—based solely

Cite as: 543 U.S. ____ (2005) 13

THOMAS, J., dissenting

on the color of his skin.? In combating that violence, an

inmate’s arrival or transfer into a new prison setting is a

critical time for inmate and staff alike. The policy protects

an inmate frora other prisoners, and they from him, while

prison officials gather more information, including his

gang affiliation, about his compatibility with other in-

mates. App. 249a. This connection between racial vio-

lence and the policy makes it far from “arbitrary or irra-

tional.” Turner, supra, at 89-90.

Indeed, Johnson concedes that it would be perfectly

constitutional for California to take account of race “as

part of an overall analysis of proclivity to violence based

upon a series of facts existing in that prison.” Tr. of Oral

Arg. 15. But that is precisely what California does. It

takes into account a host of factors in addition to race:

geographic or national origin, age, physical size, mental

health, medical needs, criminal history, and, of course,

gang affiliation. Supra, at 4. California does not simply

assign inmates to double cells in the reception centers

based on race—it also separates intraracially (for example,

northern from southern Hispanics or violent from nonvio-

lent offenders).

©"

Second, alternative means of exercising the restricted

right remain open to inmates like Johnson. Turner, supra,

at 90. The CDC submits, and Johnson does not contest,

that all other facets of prison life are fully integrated:

work, vocational, and educational assignments; dining

® Specifically, Johnson testified:

“I was incarcerated at Calipatria before the major riot broke out

there with Mexican and black inmates. . . . If | would have stayed there,

I would have been involved in that because you have four facilities

there and each facility went on a major riot and a lot of people got hurt

and injured just based on your skin color. I'm black, and if | was there I

would have been hurt.” App. 102a (emphasis added).

14 JOHNSON v. CALIFORNIA

THOMAS, J., dissenting

halls; and exercise yards and recreational facilities. App.

250a. And after a brief detention period at the reception

center, inmates may select their own cellmates regardless

of race in the absence of overriding security concerns. /d.,

at 3lla—312a. Simply put, Johnson has spent, and will

continue to spend, the vast bulk of his sentence free from

any limitation on the race of his cellmate.

3

Third, Johnson fails to establish that the accommoda-

tion he seeks—i.e., assigning inmates to double cells with-

out regard to race—would not significantly impact prison

personnel, other inmates, and the allocation of prison

resources. Harper, 494 U.S., at 226-227; Turner, supra,

at 90. Prison staff cannot see into the double cells without

going up to them, and inmates can cover the windows so

that staff cannot see inside the cells at all. App. 306a.

Because of the limited number of staff to oversee the many

cells, it “would be very difficult to assist inmates if the

staff were needed in several places at one time.” Ibid.

Coordinated gang attacks against nongang cellmates could

leave prison officials unable to respond effectively. In any

event, diverting prison resources to monitor cells disrupts

services elsewhere.

Then, too, fights in the cells are likely to spill over to the

exercise yards and common areas. Ibid.; see also id., at

187a. As Turner made clear: “When accommodation of an

asserted right will have a significant ‘ripple effect’ on

fellow inmates or on prison staff, courts should be particu-

larly deferential to the informed discretion of corrections

officials.” 482 U.S., at 90; see also White v. Morris, 832

F. Supp. 1129, 1130 (SD Ohio 1993) (racially integrated

double celling contributed to a race riot in which 10 people

were murdered). California prison officials are united in

the view that racially integrating double cells in the recep-

Cite as: 543 U.S. ___ (2005) 15

THOMAS, J., dissenting

tion centers would lead to serious violence.'® This is pre-

cisely the sort of testimony that the Court found persua-

sive in Turner itself. Turner, supra, at 92.

4

Finally, Johnson has not shown that there are “obvious,

easy alternatives” to the CDC’s policy. Turner, supra, at

90. Johnson contends that, for newly admitted inmates,

prison officials need only look to the information available

in the presentence report that must accompany a convict

to prison. See Cal. Penal Code Ann. §1203(c) (West 2004);

Cal. Rules of Court, Criminal Cases, Rule 4.411(d) (West

2004). But prison officials already do this to the extent

that they can. Indeed, gang affiliation, not race, is the

first factor in determining initial housing assignments.

App. 315a. Race becomes the predominant factor only

because gang affiliation is often not known, especially with

regard to newly admitted inmates. As the Court of Ap-

peals pointed out: “There is little chance that inmates will

be forthcoming about their past violent episodes or crimi-

nal gang activity so as to provide an accurate and depend-

able picture of the inmate.” 321 F.3d 791, 806 (CA9

2003); see also App. 185a, 189a. Even if the CDC had the

manpower and resources to prescreen the more than

40,000 new inmates it receives yearly, leafing through

presentence reports would not tell prison officials

what they need to know. See ante, at 6-7 (STEVENS, J.,

dissenting).

Johnson presents a closer case with regard to the segre-

See id., at 245a-246a (Cambra declaration) (“If race were to be

disregarded entirely, however, I am certain, based upon my experience

with CDC prisoners, that ... there will be fights in the cells and the

problems will emanate onto the prison yards”); id., at 250a—25la

(Schulteis declaration) (“At CSP-Lancaster, if we were to disregard the

initial housing placement [according to race], then I am certain there

would be serious violence amung inmates. | have worked in five differ-

ent CDC institutions and this would be true for all of them”).

16 JOHNSON v. CALIFORNIA

THOMAS, J., dissenting

gation of prisoners whom the CDC transfers between

facilities. As I understand it, California has less need to

segregate prisoners about whom it already knows a great

deal (since they have undergone the initial classification

process and been housed for some period of time). How-

ever, this does not inevitably mean that racially integrat-

ing transferred inmates, while obvious and easy, is a true

alternative. For instance, an inmate may have affiliated

with a gang since the CDC’s last official assessment, or his

past lack of racial violence may have been due to the

absence of close confinement with members of other races.

The CDC’s policy does not appear to arise from laziness or

neglect; California is a leader in institutional intelligence-

gathering. See Carlson 16 (“The CDC devotes 75 intelli-

gence staff to gathering and verifying inmate-related

information,” both in prisons and on the streets). In

short, applying the policy to transfers is not “arbitrary or

irrational,” requiring that we set aside the considered

contrary judgment of prison administrators. Turner,

supra, at 89-90.

III

The majority claims that strict scrutiny is the applicable

standard of review based on this Court’s precedents and

its general skepticism of racial classifications. It is wrong

on both scores.

A

Only once before, in Lee v. Washington, 390 U.S. 333

(1968) (per curiam), has this Court considered the consti-

tutionality of racial classifications in prisons. The major-

ity claims that Lee applied “a heightened standard of

review.” Ante, at 6. But Lee did not address the applica-

ble standard of review. And even if it bore on the stan-

dard of review, Lee would support the State here.

In Lee, a three-judge District Court ordered Alabama to

WN ir ee

Cite as: 543 U.S. ___ (2005) 17

THOMAS, J., dissenting

desegregate its prisons under Brown v. Board of Educa-

tion, 347 U.S. 483 (1954). Washington v. Lee, 263

F. Supp. 327, 331-332 (MD Ala. 1966). In so doing, the

District Court rejected any notion that “consideration[s] of

prison security or discipline” justified the “complete and

permanent segregation of the races in all the Alabama

penal facilities.” Jd., at 331. However, the District Court

noted “that in some isolated instances prison security and

discipline necessitates segregation of the races for a lim-

ited period.” Ibid. (footnote omitted). It provided only one

example—“the ‘tank’ used in ... large municipal jails

where intoxicated persons are placed upon their initial

incarceration and kept until they become sober,” id., at

331, n. 6—and the court left unmentioned why it would

have been necessary to separate drunk whites from blacks

on a Birmingham Saturday night.

This Court, in a per curiam, one-paragraph opinion,

affirmed the District Court’s order. It found “unexcep-

tionable” not only the District Court’s general rule that

wholesale segregation of penal facilities was unconstitu-

tional, but also the District Court’s “allowance for the

necessities of prison security and discipline.” Lee, 390

U. S., at 334. Indeed, Justices Black, Harlan, and Stewart

concurred

“to make explicit something that is left to be gathered

only by implication from the Court’s opinion. This is

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. (em-

phasis added).

Those Justices were “unwilling to assume” that such an

“explicit pronouncement [would] evinc[fe) any dilution of

this Court’s firm commitment to the Fourteenth Amend-

18 JOHNSON v. CALIFORNIA

THOMAS, J., dissenting

ment’s prohibition of racial discrimination.” Ibid.

Lee said nothing about the applicable standard of re-

view, for there was no need. Surely Alabama’s wholesale

segregation of its prisons was unconstitutional even under

the more deferential standard of review that applies

within prisons. This Court’s brief, per curiam opinion in

Lee simply cannot bear the weight or interpretation the

majority places on it. See U.S. Bancorp Mortgage Co. v.

Bonner Mall Partnership, 513 U.S. 18, 24 (1994) (noting

“our customary skepticism toward per curiam dispositions

that lack the reasoned consideration of a full opinion”);

Edelman v. Jordan, 415 U. S. 651, 670-671 (1974).

Yet even if Lee had announced a heightened standard of

review for prison policies that pertain to race, Lee also

carved out an exception to the standard that California’s

policy would certainly satisfy. As the Lee concurrence

explained without objection, the Court’s exception for “the

necessities of prison security and discipline” meant that

“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.” Lee, supra, at 334 (opinion of

Black, Harlan, and Stewart, JJ., concurring) (emphasis

added).

California’s policy—which is a far cry from the whole-

sale segregation at issue in Lee—would fall squarely

within Lee’s exception. Johnson has never argued that

California’s policy is motivated by anything other than a

desire to protect inmates and staff. And the “particular-

ized” nature of the policy is evident: It applies only to new

inmates and transfers, only in a handful of prisons, only to

double cells, and only then for a period of no more than

two months. In the name of following a test that Lee

did not create, the majority opts for a more demanding

standard of review than Lee’s language even arguably

supports.

Cite as: 543 U.S. __ (2005) 19

THOMAS, J., dissenting

The majority heavily relies on this Court’s statement that

“‘all racial classifications [imposed by government] . .. must

be analyzed by a reviewing court under strict scrutiny.”

Ante, at 4 (quoting Adarand Constructors, Inc., 515 U.S., at

227). Adarand has nothing to do with this case. Adarand’s

statement that “all racial classifications” are subject to strict

scrutiny addressed the contention that classifications favor-

ing rather than disfavoring blacks are exempt. IJd., at 226—

227; accord, Grutter v. Bollinger, 539 U.S. 306, 353 (2003)

(THOMAS, J., concurring in part and dissenting in part).

None of these statements overruled, sub silentio, Turner and

its progeny, especially since the Court has repeatedly held

that constitutional demands are diminished in the unique

context of prisons. See, e.g., Harper, 494 U.S., at 224; Ab-

bott, 490 U.S., at 407; Turner, 482 U.S., at 85; see also

Webster v. Fall, 266 U.S. 507, 511 (1925) (“Questions

which merely lurk in the record, neither brought to the

attention of the court nor ruled upon, are not to be consid-

ered as having been so decided as to constitute precedents’).

B

The majority offers various other reasons for applying

strict scrutiny. None is persuasive. The majority's main

reason is that “Turner's reasonable-relationship test [ap-

plies] only to rights that are ‘inconsistent with proper incar-

ceration.”” Ante, at 8-9 (quoting Overton v. Bazzetta, 539

U. S. 126, 131 (2003)). According to the majority, the ques-

tion is thus whether a right “need necessarily be compro-

mised for the sake of proper prison administration.” Ante,

at 9. This inconsistency-with-proper-prison-administration

test begs the question at the heart of this case. For a court

to know whether any particular right is inconsistent with

proper prison administration, it must have some implicit

notion of what a proper prison ought to look like and how it

ought to be administered. Overton, supra, at 139 (THOMAS,

J., concurring in judgment). But the very issue in this case

20 JOHNSON v. CALIFORNIA

THOMAS, J., dissenting

is whether such second-guessing is permissible.

The majority’s test eviscerates Turner. Inquiring

whether a given right is consistent with “proper prison

administration” calls for precisely the sort of judgments

that Turner said courts were ill equipped to make. In

none of the cases in which the Court deferred to the judg-

ments of prison officials under Turner did it examine

whether “proper” prison security and discipline permitted

greater speech or associational rights (Abbott, supra;

Shaw, 532 U.S. 223; and Overton, supra); expanded ac-

cess to the courts (Lewis v. Casey, 518 U.S. 343 (1996));

broader freedom from bodily restraint (Harper, supra); or

additional free exercise rights (O’Lone, 482 U.S. 342).

The Court has steadfastly refused to undertake the

threshold standard-of-review inquiry that Turner settled,

and that the majority today resurrects. And with good

reason: As Turner pointed out, these judgments are better

left in the first instance to the officials who run our Na-

tion’s prisons, not to the judges who run its courts.

In place of the Court’s usual deference, the majority

gives conclusive force to its own guesswork about “proper”

prison administration. It hypothesizes that California’s

policy might incite, rather than diminish, racial hostility."

'!'The majority's sole empirical support for its speculation is a study

of Texas prison desegregation that found the rate of violence higher in

racially segregated double cells. Ante, at 7 (citing Trulson & Marquart,

The Caged Melting Pot: Toward an Understanding of the Consequences

of Desegregation in Prisons, 36 Law & Soc. Rev. 743, 774 (2002)).

However, the study's authors specifically note that Texas—like Califor-

nia—does not integrate its “initial diagnostic facilities” or its “transfer

facilities.” See id., at 753, n. 13. Thus the study says nothing about the

violence likely to result from integrating cells when inmates are thrown

together for brief periods during admittance or transfer. What the

study does say is that, once Texas has had the time to gather inmate-

related information and make more permanent housing assignments,

racially integrated cells may be the preferred option. But California

leaves open that door: Inmates are generally free to room with whom-

Cite as: 543 U.S. __ (2005) 21

THOMAS, J., dissenting

Ante, at 6-7; see also ante, at 5-6, and n. 2 (STEVENS, J.,

dissenting). The majority's speculations are implausible.

New arrivals have a strong interest in promptly convinc-

ing other inmates of their willingness to use violent force.

See Brief for National Association of Black Law Enforce-

ment Officers, Inc., as Amicus Curiae 13-14 (citing com-

mentary and congressional findings); cf. United States v.

Santiago, 46 F. 3d 885, 888 (CA9 1995) (describing one

Hispanic inmate’s murder of another in order to join the

Mexican Mafia); United States v. Silverstein, 732 F.2d

1338, 1341 (CA7 1984) (prospective members of the Aryan

Brotherhood must “make bones,” or commit a murder, to

be eligible for membership). In any event, the majority’s

guesswork falls far short of the compelling showing

needed to overcome the deference we owe to prison

administrators.

The majority contends that the Court “[has}] put the

burden on state actors to demonstrate that their race-

based policies are justified,” ante, at 5, n.1, and “{has]

refused to defer to state officials’ judgments on race in other

areas where those officials traditionally exercise substan-

tial discretion,” ante, at 11-12. Yet two Terms ago, in

upholding the University of Michigan Law School's af-

firmative-action program, this Court deferred to the judg-

ment by the law school’s faculty and administrators on

their need for diversity in the student body. See Grutter,

supra, at 328 (“The Law School's educational judgment that

. diversity is essential to its educational mission is one to

which we defer’). Deference would seem all the more war-

ranted in the prison context, for whatever the Court knows

of administering educational institutions, it knows much

less about administering penal ones. The potential conse-

quences of second-guessing the judgments of prison admin-

istrators are also much more severe. See White v. Morris,

ever they like on a permanent basis.

22 JOHNSON v. CALIFORNIA

THOMAS, J., dissenting

832 F.Supp. 1129, 1130 (SD Ohio 1993) (racially inte-

grated double celling that resulted from federal consent

decree was a factor in the worst prison riot in Ohio his-

tory). More important, as I have explained, the Court has

recognized that the typically exacting review it applies to

restrictions on fundamental rights must be relaxed in the

unique context of prisons. See, e.g., Harper, supra, at 224;

Abbott, 490 U.S., at 407; Turner, 482 U.S., at 85. The

majority cannot fall back on the Constitution’s usual de-

mands, because those demands have always been lessened

inside the prison walls. See supra, at 6—7.

The majority also mentions that California’s policy may

be the only one of its kind, as virtually all other States and

the Federal Government manage their prison systems

without racially segregating inmates. Ante, at 7. This is

both irrelevant and doubtful. It is irrelevant because the

number of States that have followed California’s lead

matters not to the applicable standard of review (the only

issue the Court today decides), but to whether California

satisfies whatever standard applies, a question the major-

ity leaves to be addressed on remand. In other words, the

uniqueness of California’s policy might show whether the

policy is reasonable or narrowly tailored—but deciding

whether to apply Turner or strict scrutiny in the first

instance must depend on something else, like the major-

ity’s inconsistency-with-proper-prison-administration test.

The commonness of California’s housing policy is further

irrelevant because strict scrutiny now applies to all claims

of racial discrimination in prisons, regardless of whether

the policies being challenged are unusual.

The majority's assertion is doubtful, because at least

two other States apply similar policies to newly admitted

inmates. Both Oklahoma and Texas, like California,

assign newly admitted inmates to racially segregated cells

Cite as: 543 U.S. __ (2005) 23

THOMAS, J., dissenting

in their prison reception centers.'2 The similarity is not

surprising: States like California and Texas have histori-

cally had the most severe problems with prison gangs.

However, even States with less severe problems maintain

that policies like California’s are necessary to deal with

race-related prison violence. See Brief of the States of

Utah, Alabama, Alaska, Delaware, Idaho, Nevada, New

Hampshire and North Dakota as Amici Curiae 16. Relat-

edly, 10.3% of all wardens at maximum security facilities

in the United States report that their inmates are as-

signed to racially segregated cells—apparently on a per-

manent basis. M. Henderson, F. Cullen, L. Carroll, & W.

Fe nberg, Race, Rights, and Order in Prison: A National

Survey of Wardens on the Racial Integration of Prison

Cells, 80 Prison J. 295, 304 (Sept. 2000). In the same

survey, 4.3% of the wardens report that their States have

an official policy against racially integrating male inmates

in cells. Jd., at 302. Presumably, for the remainder of

prisons in which inmates are assigned to racially segre-

gated cells, that policy is the result of discretionary

decisions by wardens rather than of official state direc-

tives. Ibid. In any event, the ongoing debate about the

best way to reduce racial violence in prisons should not

be resolved by judicial decree: It is the job “of prison

'2See Oklahoma Dept. of Corrections, Policies and Procedures, Op-

erations Memorandum No. OP-030102, Inmate Housing (Sept. 16,

2004) (“Upon arrival at the assessment and reception center ... [flor

reasons of safety and security, newly received inmates are not generally

assigned randomly to racially integrated cells”) (available at

http://www.doc.state.ok.us/docs/policies.htm); Texas Dept. of Criminal

Justice, Security Memorandum No. SM-01.28, Assignment to General

Population Two-Person Cells (June 15, 2002) (“Upon arrival at a

reception and diagnostic center .. . [flor reasons of safety and security,

newly-received offenders are not generally assigned randomly to

racially integrated cells due to the fact that the specific information

needed to assess an offender's criminal and victimization history is not

available until after diagnostic processing has been completed”).

24 JOHNSON v. CALIFORNIA

THOMAS, J., dissenting

administrators . . . and not the courts, to make the difficult

judgments concerning institutional operations.” Jones,

433 U. S., at 128.

The majority also observes that we have already carved

out an exception to Turner for Eighth Amendment claims

of cruel and unusual punishment in prison. See Hope v.

Pelzer, 536 U. S. 730, 738 (2002). In that context, we have

held that “[a] prison official's ‘deliberate indifference’ to a

substantial risk of serious harm to an inmate violates the

Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825,

828 (1994). Setting aside whether claims challenging in-

mates’ conditions of confinement should be cognizable under

the Eighth Amendment at all, see Hudson v. McMillian, 503

U. S. 1, 18-19 (1992) (THOMAS, J., dissenting), the “deliber-

ate indifference” standard does not bolster the majority's

argument. If anything, that standard is more deferential to

the judgments of prison administrators than Turner’s rea-

sonable-relationship test: It subjects prison officials to liabil-

ity only when they are subjectively aware of the risk to the

inmate, and they fail to take reasonable measures to abate

the risk. Farmer, supra, at 847. It certainly does not dem-

onstrate the wisdom of an exception that imposes a height-

ened standard of review on the actions of prison officials.

Moreover, the majority’s decision subjects prison officials

to competing and perhaps conflicting demands. In this case,

California prison officials have uniformly averred that

random double-celling poses a substantial risk of serious

harm to the celled inmates. App. 245a—246a, 25la. If

California assigned inmates to double cells without regard

to race, knowing full well that violence might result, that

would seem the very definition of deliberate indifference.

See Robinson v. Prunty, 249 F.3d 862, 864-865 (CA9

2001) (prisoner alleged an Eighth Amendment violation

because administrators had failed to consider race when

releasing inmates into the yards); Jensen v. Clarke, 94

F. 3d 1191, 1201, 1204 (CA8 1996) (court held that random

Cite as: 543 U.S. ___ (2005) 25

THOMAS, J., dissenting

double celling by prison officials constituted deliberate

indifference, and affirmed an injunction and attorney's

fees awarded against the officials). Nor would a victim-

ized inmate need to prove that prison officials had antici-

pated any particular attack; it would be sufficient that

prison officials had ignored a dangerous condition that

was chronic and ongoing—like interracial housing in

closely confined quarters within prisons dominated by

racial gangs. Farmer, supra, at 843-844. Under Farmer,

prison officials could have been ordered to take account of

the very thing to which they may now have to turn a blind

eye: inmates’ race.

Finally, the majority presents a parade of horribles

designed to show that applying the Turner standard would

grant prison officials unbounded discretion to segregate

inmates throughout prisons. See ante, at 13. But we have

never treated Turner as a blank check to prison officials.

Quite to the contrary, this Court has long had “confidence

that . . . a reasonableness standard is not toothless.”

Abbott, 490 U. S., at 414 (internal quotation marks omit-

ted). California prison officials segregate only double cells,

because only those cells are particularly difficult to moni-

tor—unlike “dining halls, yards, and general housing

areas.” Ante, at 13. Were California’s policy not so nar-

row, the State might well have race-neutral means at its

disposal capable of accommodating prisoners’ rights with-

out sacrificing their safety. See Turner, 482 U.S., at 90—

91. The majority does not say why Turner’s standard ably

polices all other constitutional infirmities, just not racial

discrimination. In any event, it is not the refusal to ap-

ply—for the first time ever—a strict standard of review in

the prison context that is “fundamentally at odds” with

our constitutional jurisprudence. Ante, at 5, n. 1. Instead,

it is the majority’s refusal—for the first time ever—to

defer to the expert judgment of prison officials.

26 JOHNSON v. CALIFORNIA

THOMAS, J., dissenting —

IV

Even under strict scrutiny analysis, “it is possible, even

likely, that prison officials could show that the current

policy meets the test.” 336 F. 3d 1117, 1121 (CA9 2003)

(Ferguson, J., joined by Pregerson, Nelson, and Reinhardt,

JJ., dissenting from denial of rehearing en banc). As

Johnson concedes, al] States have a compelling interest in

maintaining order and internal security within their

prisons. See Reply Brief for Petitioner 18; see also Procu-

nier, 416 U.S., at 404. Thus the question on remand will

be whether the CDC's policy is narrowly tailored to serve

California's compelling interest.'* The other dissent notes

the absence of evidence on that question, see ante, at 3—4

(opinion of STEVENS, J.), but that is hardly California’s

fault.

From the outset, Johnson himself has alleged, in terms

taken from Turner, that the CDC’s policy is “not related to

a legitimate penological interest.” Johnson v. California,

207 F. 3d 650, 655 (CA9 2000) (discussing Johnson's Third

Amended Complaint). In reinstating Johnson’s equal

protection claim following the District Gourt’s dismissal,

the Court of Appeals repeated Johnson's allegation, with-

out indicating that strict scrutiny should apply on remand

before the District Court.'* Jbid. And on remand, again

'°On the majority's account, deference to the judgments of prison

officials in the application of strict scrutiny is presumably warranted to

account for “the special circumstances [that prisons} present,” ante, at

12. See Grutter v. Bollinger, 539 U.S. 306, 328 (2003). Although I

disagree that deference is normally appropriate when scrutinizing racial

classifications, there is same logic to the majority's qualification in this

case, because the Constitution's demands have always been diminished in

the prison context. See, e.g.. Harper, 494 U.S., at 224; Abbott, 490 U.S.,

at 407: Turner v. Safley, 482 U.S. 78, 85 (1987).

'*The Court of Appeals cited both Turner and Lee v. Washington, 390

U.S. 339 (1968) (per curiam). For the proposition that certain constitu-

tuona] protections, among them the protection against state-sponsored

racia] discrimination, extend to the prison setting. However, the Court of

Cite as: 543 U.S. __ (2005) 27

THOMAS, J., dissenting

Johnson alleged only that the CDC’s policy “is not rea-

sonably related to the legitimate penological interests of

the CDC.” App. 51a (Fourth Amended Complaint 423).

After the District Court granted qualified immunity to

some of the defendants, Johnson once again appealed. In

his brief before the Court of Appeals, Johnson assumed

that both Lee and Turner applied, without arguing that

there was any tension between them; indeed, nowhere in

his brief did Johnson even mention the words “strict scru-

tiny.” Brief for Appellant in No. 01-—56436 (CAQ), pp. 20,

26; 2001 WL 34091249. Perhaps as a result, the Court of

Appeals did not discuss strict scrutiny in its second deci-

sion, the one currently before this Court. The Court of

Appeals did find tension between Lee and Turner; how-

ever, it resolved this tension in Turner’s favor. 321 F. 3d,

at 799. Yet the Court of Appeals accepted Lee’s test at

face value: Prison officials may only make racial classifica-

tions “‘in good faith and in particularized circumstances.””

321 F. 3d, at 797. The Court of Appeals, like Johnson, did

noi equate Lee’s test with strict scrutiny, and in fact it

mentioned strict scrutiny only when it quoted the portion

of Turner that rejects strict scrutiny as the proper stan-

dard of review in the prison context. 321 F. 3d, at 798.

Even Johnson did not make the leap equating Lee with

strict scrutiny when he requested that the Court of Ap-

peals rehear his case. Appellant’s Petition for Panel Re-

hearing with Suggestion for Rehearing En Banc in No. 01-

56436 (CA9), pp. 4-5. That leap was first made by the

judges who dissented from the Court of Appeals’ denial of

rehearing en banc. 336 F. 3d, at 1118 (Ferguson, J., joined

by Pregerson, Nelson, and Reinhardt, JJ., dissenting from

denial of rehearing en banc).

Thus, California is now, after the close of discovery,

Appeals did not discuss the applicable standard of review, nor did it

attempt to resolve the tension between Turner and Lee that the majority

finds.

28 JOHNSON v. CALIFORNIA

THOMAS, J., dissenting

subject to a more stringent standard than it had any

reason to anticipate from Johnson's pleadings, the Court

of Appeals’ initial decision, or even the Court of Appeals’

decision below. In such circumstances, California should

be allowed to present evidence of narrow tailoring, evi-

dence it was never obligated to present in either appear-

ance before the District Court. See Lucas v. South Caro-

lina Coastal Council, 505 U.S. 1003, 1031-1032 (1992)

(remanding for consideration under the correct legal stan-

dard); id., at 1033 (KENNEDY, J., concurring in judgment)

(“Although we establish a framework for remand, ... we

do not decide the ultimate [constitutional] question [be-

cause] [t]he facts necessary to the determination have not

been developed in the record”).

* * *

Petitioner Garrison Johnson challenges not permanent,

but temporary, segregation of only a portion of California’s

prisons. Of the 17 years Johnson has been incarcerated,

California has assigned him a cellmate of the same race

for no more than a year (and probably more like four

months’ Johnson has had black cellmates during the

other 16 years, but by his own choice. Nothing in the

record demonstrates that if Johnson (or any other pris-

oner) requested to be housed with a person of a different

race, it would be denied (though Johnson’s gang affiliation

with the Crips might stand in his way). Moreover, John-

son concedes that California’s prisons are racially violent

places, and that he lives in fear of being attacked because

of his race. Perhaps on remand the CDC’s policy will

survive strict scrutiny, but in the event that it does not,

Johnson may well have won a Pyrrhic victory.