JOHNSON v. CALIFORNIA et al.

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499 OCTOBER TERM, 2004
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 ra-
cially 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 incarceration, filed this suit
alleging that the policy violates his Fourteenth Amendment right to
equal protection. The District Court ultimately granted defendant for-
mer CDC officials summary judgment on grounds that they were enti-
tled to qualified immunity. The Ninth Circuit affirmed, holding that
the policy’s constitutionality should be reviewed under the deferential
standard articulated in Turner v. Safley, 482 U. S. 78, not under strict
scrutiny, and that the policy survived Turner scrutiny.
Held: Strict scrutiny is the proper standard of review for an equal protec-
tion challenge to the CDC’s policy. Pp. 505–515.
(a) Because the CDC’s policy is “immediately suspect” as an express
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. Pen˜ a, 515 U. S. 200,
227. “[A]ll racial classifications [imposed by government] . . . must be
analyzed . . . under strict scrutiny,” ibid., in order to “ ‘smoke out’ illegit-
imate uses of race by assuring that [government] is pursuing a goal
important enough to warrant [such] a highly suspect tool,” Richmond v.
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”—
i. e., because all prisoners are “equally” segregated—ignores this
Court’s repeated command that “racial classifications receive close scru-
tiny even when they may be said to burden or benefit the races equally,”
Shaw, supra, at 651. Indeed, the Court rejected the notion that sepa-
rate 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 applied a heightened standard of review in evalu-
ating racial segregation in prisons. Lee v. Washington, 390 U. S. 333.
The need for strict scrutiny is no less important here. By perpetuating

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500 JOHNSON v. CALIFORNIA
Syllabus
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 Govern-
ment manage their prison systems without reliance on racial segrega-
tion. In fact, the United States argues that it is possible to address
prison security concerns through individualized consideration without
using racial segregation, unless it is warranted as a necessary and tem-
porary 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. 505–509.
(b) The Court declines the CDC’s invitation to make an exception to
the categorical strict scrutiny rule and instead to apply Turner’s defer-
ential review standard on the ground that the CDC’s policy applies only
in the prison context. The Court has never applied the Turner stand-
ard—which asks whether a regulation that burdens prisoners’ funda-
mental rights is “reasonably related” to “legitimate penological inter-
ests,” 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 unsur-
prising, 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 because it is not a right that
need necessarily be compromised for the sake of proper prison adminis-
tration. On the contrary, compliance with the Fourteenth Amend-
ment’s ban on racial discrimination is not only consistent with proper
prison administration, but also bolsters the legitimacy of the entire
criminal justice system. Cf. Batson v. Kentucky, 476 U. S. 79, 99. Def-
erence to the particular expertise of officials managing daily prison op-
erations does not require a more relaxed 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 interest justifying only those uses of race
that are narrowly tailored to address those necessities, see, e. g., Grutter
v. Bollinger, 539 U. S. 306, 353. Because Turner’s standard 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, it is too lenient a
standard to ferret out invidious uses of race. Contrary to the CDC’s
protest, strict scrutiny will not render prison administrators unable to
address legitimate problems of race-based violence in prisons. On re-
mand, the CDC will have the burden of demonstrating that its policy is

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Syllabus
narrowly tailored with regard to new inmates as well as transferees.
Pp. 509–515.
(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., Consolidated Rail
Corporation v. Gottshall, 512 U. S. 532, 557–558. P. 515.
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, post, p. 516.
Stevens, J., filed a dissenting opinion, post, p. 517. Thomas, J., filed a
dissenting opinion, in which Scalia, J., joined, post, p. 524. Rehnquist,
C. J., took no part in the decision of the case.
Bert H. Deixler argued the cause for petitioner. With
him on the briefs were Charles S. Sims, Lois D. Thompson,
and Tanya L. Forsheit.
Acting Solicitor General Clement argued the cause for
the United States as amicus curiae urging reversal. With
him on the brief were former Solicitor General Olson, As-
sistant Attorney General Acosta, David B. Salmons, David
K. Flynn, and Tovah R. Calderon.
Frances T. Grunder, Senior Assistant Attorney General of
California, argued the cause for respondents. With her on
the brief were Bill Lockyer, Attorney General, Manuel M.
Medeiros, Solicitor General, Robert R. Anderson, Chief As-
sistant Attorney General, and Sara Turner, Supervising
Deputy Attorney General.*
*Briefs of amici curiae urging reversal were filed for the American
Civil Liberties Union et al. by Elizabeth Alexander, David C. Fathi, Ste-
ven R. Shapiro, Jordan C. Budd, Alan Schlosser, and Mark D. Rosen-
baum; and for Former State Corrections Officials by Michael C. Small.
Briefs of amici curiae urging affirmance were filed for the State of Utah
et al. by Mark L. Shurtleff, Attorney General of Utah, and Gene C.
Schaerr, and by the Attorneys General for their respective States as fol-
lows: Troy King of Alabama, Gregg D. Renkes of Alaska, M. Jane Brady
of Delaware, Lawrence G. Wasden of Idaho, Brian Sandoval of Nevada,
Kelly A. Ayotte of New Hampshire, and Wayne Stenehjem of North Da-

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502 JOHNSON v. CALIFORNIA
Opinion of the Court
Justice O’Connor delivered the opinion of the Court.
The California Department of Corrections (CDC) has an
unwritten policy of racially segregating prisoners in double
cells in reception centers for up to 60 days each time they
enter a new correctional facility. We consider whether
strict scrutiny is the proper standard of review for an equal
protection challenge to that policy.
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 assignments in the recep-
tion centers are based on a number of factors, predominantly
race. In fact, the CDC has admitted that the chances of
an inmate being assigned a cellmate of another race are
“ ‘[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-Americans, and northern California Hispanics
are separated 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 Familia, Black
Guerilla Family, Aryan Brotherhood, and Nazi Low Riders.
Id., at 2. The CDC also notes that prison-gang culture is
violent and murderous. Id., at 3. An associate warden tes-
kota; and for the National Association of Black Law Enforcement Officers,
Inc., by David T. Goldberg.
John H. Findley filed a brief for the Pacific Legal Foundation as ami-
cus curiae.

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Opinion of the Court
tified that if race were not considered in making initial hous-
ing assignments, she is certain there would be racial conflict
in the cells and in the yard. App. 215a. Other prison offi-
cials 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 segre-
gate 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 pe-
riod, prisoners are allowed to choose their own cellmates.
The CDC usually grants inmate requests to be housed to-
gether, 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 Cali-
fornia prison facilities. Fourth Amended Complaint 3, Rec-
ord, Doc. No. 78. Upon his arrival at Folsom prison in 1987,
and each time he was transferred to a new facility thereafter,
Johnson was double-celled with another African-American
inmate. See ibid.
Johnson filed a complaint pro se in the United States Dis-
trict 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 Four-
teenth Amendment by assigning him cellmates on the basis
of his race. He alleged that, from 1987 to 1991, former CDC
Director James Rowland instituted and enforced an unconsti-
tutional policy of housing inmates 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 com-
plaint. Ibid. The District Court dismissed his complaint

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Opinion of the Court
for failure to state a claim. The Court of Appeals for the
Ninth Circuit reversed and remanded, holding that Johnson
had stated a claim for racial discrimination in violation of
the Equal Protection Clause of the Fourteenth Amendment.
Johnson v. California, 207 F. 3d 650, 655 (2000).
On remand, Johnson was appointed counsel and granted
leave to amend his complaint. On July 5, 2000, he filed his
Fourth Amended Complaint. Record, Doc. No. 81. John-
son claimed that the CDC’s policy of racially segregating all
inmates in reception-center cells violated his rights under
the Equal Protection Clause. Johnson sought damages, al-
leging 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 Direc-
tor Stephen Cambra.
Johnson has consistently challenged, and the CDC has con-
sistently defended, the policy as a whole—as it relates to
both new inmates and inmates transferred from other facili-
ties. Johnson was first segregated in 1987 as a new inmate
when he entered the CDC facility at Folsom. Since 1987, he
has been segregated each time he has been transferred to a
new facility. Thus, he has been subject to the 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 judgment.
The District Court granted summary judgment to the de-
fendants on grounds that they were entitled to qualified im-
munity because their conduct was not clearly unconstitu-
tional. 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. Apply-
ing Turner, it held that Johnson had the burden of refut-
ing the “common-sense connection” between the policy and

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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 rehear-
ing en banc. Judge Ferguson, joined by three others, dis-
sented 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 an-
alyzed by a reviewing court under strict scrutiny, and fail[ed]
to recognize that [the] Turner analysis is inapplicable in
cases, such as this one, in which the right asserted is not
inconsistent with legitimate penological objectives.” 336
F. 3d 1117 (2003) (internal quotation marks and citations
omitted). We granted certiorari to decide which standard
of review applies. 540 U. S. 1217 (2004).
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. Pen˜ a,
515 U. S. 200, 227 (1995) (emphasis added). Under strict
scrutiny, the government has the burden of proving that ra-
cial classifications “are narrowly tailored measures that fur-
ther compelling governmental interests.” Ibid. We have
insisted on strict scrutiny in every context, even for so-called
“benign” racial classifications, such as race-conscious univer-
sity admissions policies, see Grutter v. Bollinger, 539 U. S.
306, 326 (2003), race-based preferences in government con-
tracts, see Adarand, supra, at 226, and race-based districting
intended to improve minority representation, see Shaw v.
Reno, 509 U. S. 630, 650 (1993).
The reasons for strict scrutiny are familiar. Racial classi-
fications raise special fears that they are motivated by an
invidious purpose. Thus, we have admonished time and

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again that, “[a]bsent searching judicial inquiry into the justi-
fication for such race-based measures, there is simply no way
of determining . . . what classifications are in fact motivated
by illegitimate notions of racial inferiority or simple racial
politics.” Richmond v. J. A. Croson Co., 488 U. S. 469, 493
(1989) (plurality opinion). We therefore apply strict scru-
tiny 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.”
Ibid.1
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 Respondents 16. In
other words, strict scrutiny should not apply because all
prisoners are “equally” segregated. The CDC’s argument
ignores our repeated command that “racial classifications re-
ceive 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 per-
missible because they applied equally to white and black ju-
rors and holding that “[i]t is axiomatic that racial classifica-
tions do not become legitimate on the assumption that all
persons suffer them in equal degree”).
We have previously applied a heightened standard of re-
view in evaluating racial segregation in prisons. In Lee v.
1 Justice Thomas takes a hands-off approach to racial classifications in
prisons, suggesting that a “compelling showing [is] needed to overcome
the deference we owe to prison administrators.” Post, at 543 (dissenting
opinion). But such deference is fundamentally at odds with our equal
protection jurisprudence. We put the burden on state actors to demon-
strate that their race-based policies are justified.

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Washington, 390 U. S. 333 (1968) (per curiam), we upheld a
three-judge court’s decision striking down Alabama’s policy
of segregation in its prisons. Id., at 333–334. Alabama had
argued that desegregation would undermine prison security
and discipline, id., at 334, but we rejected that contention.
Three Justices concurred “to make explicit something that
is left to be gathered only by implication from the Court’s
opinion”—“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. ” Ib id. (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 discrimina-
tion.” Ibid.
The need for strict scrutiny is no less important here,
where prison officials cite racial violence as the reason for
their policy. As we have recognized in the past, racial clas-
sifications “threaten to stigmatize individuals by reason of
their membership in a racial group and to incite racial hos-
tility.” Shaw, supra, at 643 (citing J. A. Croson Co., supra,
at 493 (plurality opinion); emphasis added). Indeed, by in-
sisting 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 mat-
ters most, racial segregation of inmates “may exacerbate the
very patterns of [violence that it is] said to counteract.”
Shaw, supra, at 648; see also Trulson & Marquart, The
Caged Melting Pot: Toward an Understanding of the Conse-
quences 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 segre-
gated by race in double cells surpassed the rate among those

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racially integrated”). See also Brief for Former State Cor-
rections Officials as Amici Curiae 19 (opinion of former cor-
rections officials from six States that “racial integration of
cells tends to diffuse racial tensions and thus diminish inter-
racial violence” and that “a blanket policy of racial segrega-
tion 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 sim-
ilar policy, see Tr. of Oral Arg. 30–31, this assertion was
unsubstantiated, and we are unable to confirm or deny
its accuracy.2 Virtually all other States and the Federal
Government manage their prison systems without reliance
on racial segregation. See Brief for United States as Ami-
cus Curiae 24. Federal regulations governing the Federal
Bureau of Prisons (BOP) expressly prohibit racial segrega-
tion. 28 CFR § 551.90 (2004) (“[BOP] staff shall not discrim-
2 Though, as Justice Thomas points out, see post, at 544–545, 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 Mem-
orandum No. OP–030102, Inmate Housing (Sept. 16, 2004), available at
http://www.doc.state.ok.us/docs/policies.htm (as visited Jan. 21, 2005, and
available in Clerk of Court’s case file); Texas Dept. of Criminal Justice,
Security Memorandum No. SM–01.28, Assignment to General Population
Two-Person Cells (June 15, 2002). See also Brief for Former State Cor-
rections Officials as Amici Curiae 20, n. 10 (“To the extent that race is
considered in the assignment calculus in Oklahoma, it appears to be one
factor among many, and as a result, individualized consideration is given to
all inmates”). We therefore have no way of knowing whether, in practice,
inmates in Oklahoma and Texas, like those in California, have close to no
chance, App. to Pet. for Cert. 3a, of being celled with a person of a differ-
ent 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 as-
sumes that every incoming prisoner is incapable of getting along with a
cell mate of a different race. And we are aware of no state other than
California that has acted on such an assumption by adopting an inflexible
and absolute policy of racial segregation of double cells in reception
centers”).

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Opinion of the Court
inate against inmates on the basis of race, religion, national
origin, sex, disability, or political belief. This includes the
making of administrative decisions and providing access to
work, housing and programs”). The United States contends
that racial integration actually “leads to less violence in
BOP’s institutions and better prepares inmates for re-entry
into society.” Brief for United States as Amicus Curiae 25.
Indeed, the United States argues, based on its experience
with the BOP, that it is possible to address “concerns of
prison security through individualized consideration without
the use of racial segregation, unless warranted as a neces-
sary and temporary response to a race riot or other serious
threat of race-related violence.” Id., at 24. As to transfer-
ees, in particular, whom the CDC has already evaluated at
least once, it is not clear why more individualized determina-
tions are not possible.
Because the CDC’s policy is an express racial classification,
it is “immediately suspect.” Shaw, 509 U. S., at 642; see also
Washington v. Seattle School Dist. No. 1, 458 U. S. 457, 485
(1982). We therefore hold that the Court of Appeals erred
when it failed to apply strict scrutiny to the 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 articulated in
Turner v. Safley, 482 U. S. 78 (1987), because its segregation
policy applies only in the prison context. We decline the
invitation. In Turner, we considered a claim by Missouri
prisoners that regulations restricting inmate marriages and
inmate-to-inmate correspondence were unconstitutional.
Id., at 81. We rejected the prisoners’ argument that the
regulations should be subject to strict scrutiny, asking in-
stead whether the regulation that burdened the prisoners’

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fundamental rights was “reasonably related” to “legitimate
penological interests.” Id., at 89.
We have never applied Turner to racial classifications.
Turner itself did not involve any racial classification, and it
cast no doubt on Lee. We think this unsurprising, as we
have applied 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 incon-
sistent with his status as a prisoner or with the legitimate
penological objectives of the corrections system”). This is
because certain privileges and rights must necessarily be
limited in the prison context. See O’Lone v. Estate of Sha-
bazz, 482 U. S. 342, 348 (1987) (“ ‘[L]awful incarceration
brings about the necessary withdrawal or limitation of many
privileges and rights, a retraction justified by the considera-
tions underlying our penal system’ ” (quoting Price v. John-
ston, 334 U. S. 266, 285 (1948))). Thus, for example, we have
relied on Turner in addressing First Amendment challenges
to prison regulations, including restrictions on freedom of
association, Overton, supra; limits on inmate correspond-
ence, 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,
Thornburgh v. Abbott, 490 U. S. 401 (1989); and work rules
limiting prisoners’ attendance at religious services, Shabazz,
supra. We have also applied Turner to some due process
claims, such as involuntary medication of mentally ill prison-
ers, Washington v. Harper, 494 U. S. 210 (1990); and restric-
tions 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, compliance
with the Fourteenth Amendment’s ban on racial discrimina-

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511 Cite as: 543 U. S. 499 (2005)
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tion 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. Kentucky, 476 U. S. 79, 99 (1986) (“[P]ublic re-
spect 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 mem-
bership and violence without demonstrating a compelling
government interest and proving that their means are nar-
rowly tailored, society as a whole suffers. For similar rea-
sons, we have not used Turner to evaluate Eighth Amend-
ment claims of cruel and unusual punishment in prison. We
judge violations of that Amendment under the “deliberate
indifference” standard, rather than Turner’s “reasonably re-
lated” standard. See Hope v. Pelzer, 536 U. S. 730, 738
(2002) (asking whether prison officials displayed “ ‘deliberate
indifference’ to the inmates’ health or safety” where an in-
mate claimed that they violated 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 depends on full compliance with the Eighth Amend-
ment. 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 findings 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”).
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 invidious dis-

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512 JOHNSON v. CALIFORNIA
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crimination. Granting the CDC an exemption from the rule
that strict scrutiny applies to all racial classifications would
undermine our “unceasing efforts to eradicate racial preju-
dice from our criminal justice system.” McCleskey v. Kemp,
481 U. S. 279, 309 (1987) (internal quotation marks omitted).
The CDC argues that “[d]eference to the particular exper-
tise of prison officials in the difficult task of managing daily
prison operations” requires a more relaxed standard of re-
view for its segregation policy. Brief for Respondents 18.
But we have refused to defer to state officials’ judgments on
race in other areas where those officials traditionally exer-
cise 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. Similarly, in the redistricting con-
text, despite the traditional deference given to States when
they design their electoral districts, we have subjected redis-
tricting plans to strict scrutiny when States draw district
lines based predominantly on race. Compare generally
Vieth v. Jubelirer, 541 U. S. 267 (2004) (partisan gerryman-
dering), with Shaw v. Reno, 509 U. S. 630 (1993) (racial
gerrymandering).
We did not relax the standard of review for racial classifi-
cations in prison in Lee, and we refuse to do so today.
Rather, we explicitly reaffirm what we implicitly held in Lee:
The “necessities of prison security and discipline,” 390 U. S.,
at 334, are a compelling government interest justifying only
those uses of race that are narrowly tailored to address those
necessities. See Grutter, 539 U. S., at 353 (Thomas, J., con-
curring in part and dissenting in part) (citing Lee for the
principle that “protecting prisoners from violence might jus-
tify narrowly tailored racial discrimination”); J. A. Croson
Co., 488 U. S., at 521 (Scalia, J., concurring in judgment)
(citing Lee for the proposition that “only a social emergency
rising to the level of imminent danger to life and limb—for

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513 Cite as: 543 U. S. 499 (2005)
Opinion of the Court
example, a prison race riot, requiring temporary segregation
of inmates—can justify an exception to the principle embod-
ied in the Fourteenth Amendment 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
consideration of internal security within the corrections fa-
cilities themselves”).
Justice Thomas would subject race-based policies in pris-
ons 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 542. But Turner
is too lenient a standard to ferret out invidious uses of race.
Turner requires only that the policy be “reasonably related”
to “legitimate penological interests.” 482 U. S., at 89.
Turner would allow prison officials to use race-based policies
even when there are race-neutral means to accomplish the
same goal, and even when the race-based policy does not in
practice advance that goal. See, e. g., 321 F. 3d, at 803 (case
below) (reasoning that, under Turner, the Court of Appeals
did “not have to agree that the policy actually advances the
CDC’s legitimate interest, but only [that] ‘defendants might
reasonably have thought that the policy would advance its
interests’ ”). 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 mix-
ing would cause unrest in the racially charged prison atmos-
phere. Under Turner, “[t]he prisoner would have to prove
that there would not be a riot[.] [But] [i]t is certainly ‘plau-
sible’ 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

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514 JOHNSON v. CALIFORNIA
Opinion of the Court
1120 (case below) (Ferguson, J., dissenting from denial of re-
hearing en banc). Indeed, under Justice Thomas’ view,
there is no obvious limit to permissible segregation in pris-
ons. It is not readily apparent why, if segregation in recep-
tion 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 vio-
lence. If Justice Thomas’ approach were to carry the day,
even the blanket segregation policy struck down in Lee
might stand a chance of survival if prison officials simply
asserted that it was necessary to prison management. We
therefore reject the Turner standard for racial classifications
in prisons because it would make rank discrimination too
easy to defend.
The CDC protests that strict scrutiny will handcuff prison
administrators and render them unable to address legitimate
problems of race-based violence in prisons. See also post, at
531–532, 546–547 (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 compelling interest in prison safety.
Prison administrators, however, will have to demonstrate
that any race-based policies are narrowly tailored to that
end. See id., at 327 (“When race-based action is necessary
to further a compelling governmental interest, such action
does not violate the constitutional guarantee of equal pro-
tection so long as the narrow-tailoring requirement is also
satisfied”).3
3 Justice Thomas characterizes the CDC’s policy as a “limited” one, see
post, at 525, 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

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515 Cite as: 543 U. S. 499 (2005)
Opinion of the Court
The fact that strict scrutiny applies “says nothing about
the ultimate validity of any particular law; that determina-
tion is the job of the court applying strict scrutiny.” Ada-
rand, supra, at 229–230. At this juncture, no such determi-
nation has been made. On remand, the CDC will have the
burden of demonstrating that its policy is narrowly tailored
with regard to new inmates as well as transferees. Prisons
are dangerous places, and the special circumstances they
present may justify racial classifications in some contexts.
Such circumstances can be considered in applying strict scru-
tiny, which is designed to take relevant differences into
account.
III
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 Dis-
trict Court, to apply it in the first instance. See Consoli-
dated Rail Corporation v. Gottshall, 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 re-
versed, 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.
has admitted that, in practice, there is a “ ‘[p]retty close’ ” to zero percent
chance that an inmate will be housed with a person of a different race.
App. to Pet. for Cert. 3a. See also generally post, at 517–518, and n. 1
(Stevens, J., dissenting). Thus, despite an inmate’s “age, physical size,
mental health, medical needs, [and] criminal history,” post, at 536
(Thomas, J., dissenting), the fact that he is black categorically precludes
him from being celled with a white inmate. As we explain, see infra this
page, we do not decide whether the threat of violence in California prisons
is sufficient to justify such a broad policy.

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516 JOHNSON v. CALIFORNIA
Ginsburg, J., concurring
Justice Ginsburg, with whom Justice Souter and Jus-
tice Breyer join, concurring.
I join the Court’s opinion, subject to the reservation ex-
pressed 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 sepa-
ration] in equal degree.’ ” Ante, at 506 (quoting Powers v.
Ohio, 499 U. S. 400, 410 (1991)). While I join that declara-
tion without reservation, I write separately to express again
my conviction that the same standard of review ought not
control judicial inspection of every official 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 citizenship stature are not sensibly
ranked with measures taken to hasten the day when en-
trenched discrimination and its aftereffects have been extir-
pated.” See also Grutter, 539 U. S., at 344–346 (Ginsburg,
J., concurring); Adarand Constructors, Inc. v. Pen˜ a, 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-
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 508–509; post, at 519–520 (Stevens, J.,
dissenting), strongly suggests that CDC’s race-based assign-
ment of new inmates and transferees, administratively con-
venient as it may be, is not necessary to the safe manage-
ment of a penal institution.
Disagreeing with the Court that “strict scrutiny” properly
applies to any and all racial classifications, see ante, at 505–
509, 511–513, 514, but agreeing that the stereotypical clas-
sification at hand warrants rigorous scrutiny, I join the
Court’s opinion.

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517 Cite as: 543 U. S. 499 (2005)
Stevens, J., dissenting
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 Four-
teenth Amendment. The California Department of Correc-
tions (CDC) has had an ample opportunity to justify its pol-
icy 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 fur-
ther factual development 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 1 is based on a conclusive
presumption that housing inmates of different races together
creates an unacceptable risk of racial violence. Under the
policy’s logic, an inmate’s race is a proxy for gang member-
ship, and gang membership is a proxy for violence. The
1 The CDC operates 32 prisons, 7 of which house reception centers. All
new inmates and all inmates transferring between prisons are funneled
through one of these reception centers before they are permanently
placed. At the centers, inmates are housed either in dormitories, double
cells, or single cells (of which there are few). Under the CDC’s segrega-
tion policy, race is a determinative factor in placing inmates in double
cells, regardless of the other factors considered in such decisions. 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 Brief for Respondents 9, strains credulity. There is no evi-
dence 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.

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518 JOHNSON v. CALIFORNIA
Stevens, J., dissenting
CDC, however, has offered scant empirical evidence or ex-
pert opinion to justify this use of race under even a minimal
level of constitutional scrutiny. The presumption underly-
ing 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 unquestionably varies from inmate to
inmate, yet the CDC applies its blunderbuss policy to all new
and transferred inmates housed in double cells regardless of
their criminal histories 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 in-
flexible judgment that such integrated living conditions are
simply too dangerous. This Court has never countenanced
such racial prophylaxis.
To establish a link between integrated cells and violence,
the CDC relies on the views of two state corrections officials.
They attested to their belief that double-celling 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 cannot 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. It’s very culturally heavy.” App. 189a.

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519 Cite as: 543 U. S. 499 (2005)
Stevens, J., dissenting
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 ac-
cording to their race is more likely to reflect racial prejudice
than legitimate public concerns; the race, not the person, dic-
tates the category”); Watson v. Memphis, 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 evidence,
especially given that California’s policy is an outlier when
compared to nationwide practice. The Federal Bureau of
Prisons administers 104 institutions; no similar policy is ap-
plied 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 Wiscon-
sin, Georgia, Oklahoma, Kansas, Alaska, and Washington
makes clear that a blanket policy of even temporary segrega-
tion runs counter to the great weight of professional opinion
on sound prison management. See Brief for Former State
Corrections Officials as Amici Curiae 19. Tellingly, the
CDC can only point to two other States, Texas and Okla-
homa, 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

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520 JOHNSON v. CALIFORNIA
Stevens, J., dissenting
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 in-
volved both interracial and intraracial violence. In the most
serious incident, involving 250–300 inmates, “Southern His-
panic” gang members, joined by some white inmates, at-
tacked a number of black inmates.
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 specific
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 recruitment, nor has it identified
any instances in which new inmates committed racial vio-
lence 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.,
concurring). But even if the incidents cited by the CDC,

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521 Cite as: 543 U. S. 499 (2005)
Stevens, J., dissenting
which occurred in the general prison population, were rele-
vant 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 shame-
ful historical connotations, one might assume that the CDC
came to its policy only as a last resort. Distressingly, this
is not so: There is no evidence that the CDC has ever ex-
perimented 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 pre-
ceded its creation.
Specifically, the CDC has failed to explain why it could
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 Fed-
eral Bureau of Prisons and other state systems do so without
any apparent difficulty. For inmates who are being trans-
ferred from one facility to another—who represent approxi-
mately 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 petitioner for al-
most 20 years; surely the CDC could have determined his
placement without subjecting him to a period of segrega-
tion.2 For new inmates, assignments can be based on their
2 In 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 officials had all of the necessary informa-
tion to assess the inmates’ violence potential when the inmates arrived,
perhaps a different practice could be used. But unlike the federal system,

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522 JOHNSON v. CALIFORNIA
Stevens, J., dissenting
presentence reports, which contain information about of-
fense conduct, criminal record, and personal history—includ-
ing any available information about gang affiliations. In
fact, state law requires the county probation officer to trans-
mit 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 in-
mates to cells in the reception centers. The CDC’s primary
explanation for this is administrative inefficiency—the rec-
ords, it says, simply do not arrive in time. The CDC’s coun-
sel conceded at oral argument that presentence reports
“have a fair amount of information,” but she stated that, “in
California, the presentence report does not always accom-
pany the inmate and 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 fashion.” Ibid. Similarly,
with regard to transferees, counsel stated that their prison
records do not arrive at the reception centers in time to
make cell assignments. Id., at 28. Even if such inefficien-
cies might explain a temporary expedient in some cases, they
surely do not justify a systemwide policy. When the State’s
interest in administrative convenience is pitted against the
Fourteenth Amendment’s ban on racial segregation, the lat-
ter 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
where the inmates generally are in federal custody from the moment they
are arrested, state inmates are in county custody until they are convicted
and later transferred to the custody of the CDC”).

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523 Cite as: 543 U. S. 499 (2005)
Stevens, J., dissenting
U. S. 306, 339 (2003), and when “obvious, easy alternatives”
are available, 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.3
In fact, the CDC’s failure to demand timely presentence
reports and prison records undercuts the sincerity of its con-
cern for inmate security during the reception process. Race
is an unreliable and necessarily underinclusive predictor 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.4
Accordingly, while I agree that a remand is appropriate for
a resolution of the issue of qualified immunity, I respectfully
dissent from the Court’s refusal to decide, on the basis of the
record before us, that the CDC’s policy is unconstitutional.
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 as-
serted 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
right to equal protection during their period of housing segregation, id.,
at 89. Indeed, this case demonstrates once again that “[h]ow a court de-
scribes its standard of review when a prison regulation infringes funda-
mental constitutional rights often has far less consequence[s] for the in-
mates than the actual showing that the court demands of the State in
order to uphold the regulation.” Id., at 100 (Stevens, J., concurring in
part and dissenting in part).
4 The CDC’s policy may be counterproductive in other ways. For exam-
ple, an official policy of segregation may initiate new arrivals into a corro-
sive culture of prison racial segregation, lending credence to the view that
members of other races are to be feared and that racial alliances are neces-
sary. 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).

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524 JOHNSON v. CALIFORNIA
Thomas, J., dissenting
Justice Thomas, with whom Justice Scalia joins,
dissenting.
The questions presented in this case require us to resolve
two conflicting lines of precedent. On the one hand, as the
Court stresses, this Court has said that “ ‘all racial classifi-
cations reviewable under the Equal Protection Clause must
be strictly scrutinized.’ ” Gratz v. Bollinger, 539 U. S. 244,
270 (2003) (quoting Adarand Constructors, Inc. v. Pen˜ a, 515
U. S. 200, 224 (1995); emphasis added). On the other, this
Court has no less categorically said that “the [relaxed] stand-
ard 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 constitutional rights.”
Washington v. Harper, 494 U. S. 210, 224 (1990) (emphasis
added).
Emphasizing the former line of cases, the majority re-
solves 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 consti-
tutional rights no less “fundamental” than the right to be
free from state-sponsored racial discrimination, we have de-
ferred 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 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 permanent housing. The majority is
concerned with sparing inmates the indignity and stigma of
racial discrimination. Ante, at 507–508. California is con-
cerned with their safety and saving their lives. I respect-
fully dissent.

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525 Cite as: 543 U. S. 499 (2005)
Thomas, J., dissenting
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 Depart-
ment 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. Id., at 79a, 264a. Since that time he has been
transferred to a number of other facilities 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 re-
ception centers for men. Id., at 303a–305a. CDC, Depart-
ment Operations Manual § 61010.3 (2004) (hereinafter CDC
Operations Manual), available at http://www.corr.ca.gov/
RegulationsPolicies/PDF/DOM/00_dept_ops_maunal.pdf (all
Internet materials as visited Feb. 18, 2005, and available in
Clerk of Court’s case file). In 2003, the centers processed
more than 40,000 newly admitted inmates, almost 72,000 in-
mates 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. CDC,
Movement of Prison Population 3 (2003).
At the reception center, prison officials have limited infor-
mation about an inmate, “particularly if he has never been
housed in any CDC facility.” App. 303a. The inmate there-
fore 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

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526 JOHNSON v. CALIFORNIA
Thomas, J., dissenting
history and record in jail to assess his security needs and
classification level. Id., at 304a. Finally, the CDC investi-
gates whether the inmate has any enemies in prison. Ibid.
This process determines the inmate’s ultimate housing place-
ment and has nothing to do with race.
While the process is underway, the CDC houses the in-
mate in a one-person cell, a two-person cell, or a dormitory.
Id., at 305a. The few single cells available at reception cen-
ters 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 dormitor-
ies. 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 dor-
mitory. Id., at 250a. Inmates placed in single cells or dor-
mitories lead fully integrated lives: The CDC does not distin-
guish based on race at any of its facilities when it comes
to jobs, meals, yard and recreation time, or vocational and
educational assignments. Ibid.
Yet some prisoners, like Johnson, neither require con-
finement in a single cell nor may be safely housed in a dor-
mitory. The CDC houses these prisoners in double cells
during the 60-day period. In pairing cellmates, race is in-
disputably the predominant factor. Id., at 305a, 309a. Cali-
fornia’s reason is simple: Its prisons are dominated by 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 discipline,
but also the physical safety of inmates and staff. App.
305a–306a, 310a–311a. That is because double cells are es-

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527 Cite as: 543 U. S. 499 (2005)
Thomas, J., dissenting
pecially dangerous. The risk of racial violence in public
areas of prisons is high, and the tightly confined, private con-
ditions of cells hazard even more violence. Prison staff can-
not see into the cells without going up to them, and inmates
can cover the windows to prevent the staff from seeing in-
side the cells. Id., at 306a. The risk of violence caused by
this privacy is grave, for inmates are confined to their cells
for much of the day. Ibid.; id., at 187a–188a.
Nevertheless, while race is the predominant factor in pair-
ing 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 exam-
ple, Hispanics from northern and southern California are not
housed together in reception centers because they often be-
long to rival gangs—La Nuestra Familia and the Mexican
Mafia, respectively. Id., at 185a. Likewise, Chinese and
Japanese inmates are not housed together, nor are Cambodi-
ans, Filipinos, Laotians, or Vietnamese. Id., at 189a. In
addition to geographic and national origin, prison officials
consider a host of other factors, including inmates’ age, men-
tal health, medical needs, criminal history, and gang affilia-
tion. Id., at 304a, 309a. For instance, when Johnson was
admitted in 1987, he was a member of the Crips, a black
street gang. Id., at 93a. He was therefore ineligible to be
housed with nonblack inmates. Id., at 183a; Brief for Re-
spondents 12, n. 9.
Moreover, while prison officials consider race in assigning
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 affili-
ated with the Crips asked to be housed at the reception cen-
ter with a black inmate, for example, prison administrators
granted his request. App. 183a–184a, 199a. Such requests
are routinely granted after the 60-day period, when prison
officials complete the classification process and transfer an

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528 JOHNSON v. CALIFORNIA
Thomas, J., dissenting
inmate from the reception center to a permanent placement
at that prison or another one.1 Id., at 311a–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.” 2 Procunier v. Martinez, 416 U. S. 396, 404 (1974).
For most of this Nation’s history, only law-abiding citizens
could claim the cover of the Constitution: Upon conviction
and incarceration, defendants forfeited their 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
1 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; how-
ever, Johnson has also testified that he never filed a grievance with prison
officials about the segregation policy. Id., at 112a–113a, 124a–125a. Nei-
ther 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 of 1995, 110 Stat. 1321–66, 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 juris-
dictional, and that California 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).
2 The majority refers to my approach as a “hands-off ” one because I
would accord deference to the judgments of the State’s prison officials.
See ante, at 506, 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.,
J. Fliter, Prisoners’ Rights: The Supreme Court and Evolving Standards
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 Prisoners’ Rights
264–265 (4th ed. 1991).

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529 Cite as: 543 U. S. 499 (2005)
Thomas, J., dissenting
that incarceration does not divest prisoners of all constitu-
tional protections. See, e. g., Wolff v. McDonnell, 418 U. S.
539, 555–556 (1974) (the right to due process); Cruz v. Beto,
405 U. S. 319, 322 (1972) (per curiam) (the right to free exer-
cise of religion).3
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 administration.
This Court reached that accommodation in Turner v. Safley,
482 U. S. 78 (1987), which “adopted a unitary, deferential
standard for reviewing prisoners’ constitutional claims,”
Shaw, supra, at 229. That standard should govern John-
son’s claims, as it has governed a host of other claims chal-
lenging conditions of confinement, even when restricting the
rights at issue would otherwise have occasioned strict scru-
tiny. Under the Turner standard, the CDC’s policy passes
constitutional muster because it is reasonably related to le-
gitimate 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 administra-
tors”); Procunier, supra, at 405 (“[C]ourts are ill equipped
to deal with the increasingly urgent problems of prison ad-
3 A prisoner may not entirely surrender his constitutional rights 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), but cer-
tainly he leaves some of his liberties behind him. When a prisoner makes
a constitutional claim, the initial question should be whether the prisoner
possesses the right at issue at all, or whether instead the prisoner has
been divested of the right as a condition of his conviction and confinement.
See Overton v. Bazzetta, 539 U. S. 126, 140 (2003) (Thomas, J., concurring
in judgment); Coffin v. Reichard, 143 F. 2d 443, 445 (CA6 1944).

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530 JOHNSON v. CALIFORNIA
Thomas, J., dissenting
ministration and reform”). Turner made clear that a defer-
ential 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 corre-
spondence and inmate marriages. The Court’s analysis pro-
ceeded in two steps. First, the Court recognized that pris-
oners are not entirely without constitutional rights. As
proof, it listed certain constitutional rights retained by pris-
oners, including the right to be “protected against invidious
racial discrimination . . . , Lee v. Washington, 390 U. S. 333
(1968).” Turner, 482 U. S., at 84. Second, the Court con-
cluded that for prison administrators rather than courts to
“ ‘make the difficult judgments concerning institutional oper-
ations,’ ” id., at 89 (quoting Jones, supra, at 128), courts
should uphold prison regulations that impinge on those con-
stitutional rights if they reasonably relate to legitimate pe-
nological 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 standard of review.
To the contrary, “[w]e made quite clear that the standard of
review we adopted in Turner applies to all circumstances in
which the needs of prison administration implicate constitu-
tional rights.” Harper, 494 U. S., at 224 (emphasis added).
Consistent with that understanding, this Court has applied
Turner’s standard to a host of constitutional claims by pris-
oners, regardless of the standard of review that would apply
outside prison walls. 4 And this Court has adhered to
4 See, e. g., Overton, supra, at 132 (the right to association under the
First and Fourteenth Amendments); Shaw v. Murphy, 532 U. S. 223, 228–
229 (2001) (the right 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); Wash-
ington 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 right to receive correspondence under the

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531 Cite as: 543 U. S. 499 (2005)
Thomas, J., dissenting
Turner despite being urged to adopt different standards of
review based on the constitutional provision at issue. See
Harper, supra, at 224 (Turner’s standard of review “appl[ies]
in all cases in which a prisoner asserts that a prison regula-
tion violates the Constitution, not just those in which the
prisoner invokes the First Amendment” (emphasis added));
O’Lone v. Estate of Shabazz, 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 institu-
tional administration for the determinations of those charged
with the formidable task of running a prison” (internal quo-
tation marks and citation omitted; emphasis added)). Our
steadfast adherence makes sense: If Turner is our accommo-
dation of the Constitution’s demands to those of prison ad-
ministration, see supra, at 530, we should apply it uniformly
to prisoners’ challenges to their conditions of confinement.
After all, Johnson’s claims, even more than other claims
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 judg-
ments of California’s prison officials is necessary:
“Subjecting the day-to-day judgments of prison officials
to an inflexible strict scrutiny analysis would seriously
hamper their ability to anticipate security problems and
to adopt innovative solutions to the intractable 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 re-
strictive way of solving the problem at hand. Courts
inevitably would become the primary arbiters of what
constitutes the best solution to every administrative
First Amendment); O’Lone v. Estate of Shabazz, 482 U. S. 342, 349–350
(1987) (the right to free exercise of religion under the First Amendment).

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532 JOHNSON v. CALIFORNIA
Thomas, J., dissenting
problem, thereby unnecessarily perpetuating the in-
volvement 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, es-
pecially since Turner itself recognized the “growing problem
with prison gangs.” Id., at 91. In fact, there is no more
“intractable problem” inside America’s prisons than racial vi-
olence, 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 pris-
ons understands the seriousness of the problems caused by
prison gangs that are fueled by actively virulent racism and
religious bigotry”).
B
The majority decides this case without addressing the
problems that racial violence poses for wardens, guards, 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 cell-
mates 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 officers and
administrators. Carlson, Prison Interventions: Evolving
Strategies to Control Security Threat Groups, 5 Corrections
Mgmt. Q. 10 (Winter 2001) (hereinafter Carlson). The
worst gangs are highly regimented and sophisticated organi-
zations that commit crimes ranging from drug trafficking to
theft and murder. Id., at 12; Cal. Dept. of Justice, Division
of Law Enforcement, Organized Crime in California Annual
Report to the California Legislature 2003, p. 15, available

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533 Cite as: 543 U. S. 499 (2005)
Thomas, J., dissenting
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. Ibid.; 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 (1987). And with gang membership on the rise,
the percentage of prisoners affiliated with prison gangs more
than doubled in the 1990’s.5
The problem of prison gangs is not unique to California,6
but California has a history like no other. There are at least
five major gangs in this country—the Aryan Brotherhood,
the Black Guerrilla Family, the Mexican Mafia, La Nuestra
Familia, and the Texas Syndicate—all of which originated in
California’s prisons.7 Unsurprisingly, then, California has
the largest number of gang-related inmates of any correc-
tional system in the country, including the Federal Govern-
ment. Carlson 16.
As their very names suggest, prison gangs like the Aryan
Brotherhood and the Black Guerrilla Family organize them-
selves along racial lines, and these gangs perpetuate hate
and violence. Irwin 182, 184. Interracial murders and as-
5 See National Gang Crime Research Center, A National Assessment of
Gangs and Security Threat Groups (STGs) in Adult Correctional Institu-
tions: Results of the 1999 Adult Corrections Survey, p. 5, http://www.
ngcrc.com/ngcrc/page7.htm.
6 See, e. g., Fraise v. Terhune, 283 F. 3d 506, 512–513 (CA3 2002) (describ-
ing 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 Moose Lake facility, a medium
security prison).
7 See D. Orlando-Morningstar, Prison Gangs, Special Needs Offenders
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).

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534 JOHNSON v. CALIFORNIA
Thomas, J., dissenting
saults among inmates perpetrated by these gangs are com-
mon.8 And, again, that brutality is particularly severe in
California’s prisons. See, e. g., Walker v. Gomez, 370 F. 3d
969, 971 (CA9 2004) (describing “history of significant racial
tension and violence” at Calipatria State Prison); id., at 979–
980 (Rymer, J., dissenting) (same); App. 297a–299a (describ-
ing 2-year span at Pelican Bay Prison, during which there
were no fewer 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 reception cen-
ters’ double cells, for brief periods of up to 60 days, until such
time as the State can assign permanent housing. Viewed in
that context and in light of the four factors enunciated in
Turner, California’s policy is constitutional: The CDC’s pol-
icy is reasonably related to a legitimate penological interest;
alternative means of exercising the restricted right remain
open to inmates; racially integrating double cells might nega-
tively 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 peno-
logical interest. Turner, supra, at 89. The protection of
inmates and staff is undeniably a legitimate penological in-
terest. See Bell v. Wolfish, 441 U. S. 520, 546–547 (1979).
8 See, e. g., id., at 962–969 (describing a host of murders and attempted
murders by a handful of Mexican Mafia members); United States v. Silver-
stein, 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) (describing murder of a black inmate
by members and recruits of the Aryan Brotherhood).

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535 Cite as: 543 U. S. 499 (2005)
Thomas, J., dissenting
The evidence shows, and Johnson has never contested, that
the objective of California’s policy is reducing violence
among the inmates and against the staff. No cells are desig-
nated for, nor are special privileges afforded to, any racial
group. App. 188a, 305a. Because prison administrators use
race as a factor in making initial housing assignments “solely
on the basis of [its] potential implications for prison secu-
rity,” the CDC’s cell assignment practice is neutral. Thorn-
burgh v. Abbott, 490 U. S. 401, 415 (1989); Turner, 482 U. S.,
at 90.
California’s policy bears a valid, rational connection to this
interest. The racial component to prison violence is impos-
sible for prison administrators to ignore. Johnson himself
testified that he is afraid of violence—based solely on the
color of his skin.9 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
from other prisoners, and they from him, while prison offi-
cials gather more information, including his gang affiliation,
about his compatibility with other inmates. App. 249a.
This connection between racial violence and the policy makes
it far from “arbitrary or irrational.” Turner, supra, at
89–90.
Indeed, Johnson concedes that it would be perfectly consti-
tutional 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
9 Specifically, Johnson testified:
“I was incarcerated at Calipatria before the major riot broke out there
with Mexican and black inmates. . . . If I 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 I was there I would have
been hurt.” App. 102a (emphasis added).

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536 JOHNSON v. CALIFORNIA
Thomas, J., dissenting
origin, age, physical size, mental health, medical needs, crim-
inal history, and, of course, gang affiliation. Supra, at 527.
California does not simply assign inmates to double cells in
the reception centers based on race—it also separates intra-
racially (for example, northern from southern Hispanics or
violent from nonviolent offenders).
2
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, voca-
tional, and educational assignments; dining halls; and exer-
cise 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. Id., at 311a–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 accommodation
he seeks—i. e., assigning inmates to double cells without re-
gard to race—would not significantly impact prison person-
nel, 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 lim-
ited 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 at-
tacks against nongang cellmates could leave prison officials
unable to respond effectively. In any event, diverting
prison resources to monitor cells disrupts services elsewhere.

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537 Cite as: 543 U. S. 499 (2005)
Thomas, J., dissenting
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 particularly def-
erential 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 con-
tributed 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 reception centers would lead
to serious violence.10 This is precisely the sort of testimony
that the Court found persuasive in Turner itself. 482 U. S.,
at 92.
4
Finally, Johnson has not shown that there are “obvious,
easy alternatives” to the CDC’s policy. Id., at 90. Johnson
contends that, for newly admitted inmates, prison officials
need only look to the information available in the presen-
tence report that must accompany a convict to prison. See
Cal. Penal Code Ann. § 1203(c) (West 2004); Cal. Rules of Ct.,
Crim., Rule 4.411(d) (West Supp. 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 pre-
dominant factor only because gang affiliation is often not
known, especially with regard to newly admitted inmates.
As the Court of Appeals pointed out: “There is little chance
10 See id., at 245a–246a (Cambra declaration) (“If race were to be disre-
garded 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–251a (Schulteis declara-
tion) (“At CSP-Lancaster, if we were to disregard the initial housing place-
ment [according to race], then I am certain there would be serious violence
among inmates. I have worked in five different CDC institutions and this
would be true for all of them”).

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538 JOHNSON v. CALIFORNIA
Thomas, J., dissenting
that inmates will be forthcoming about their past violent epi-
sodes or criminal gang activity so as to provide an accurate
and dependable 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 pre-
sentence reports would not tell prison officials what they
need to know. See ante, at 521–523 (Stevens, J., dissenting).
Johnson presents a closer case with regard to the segrega-
tion 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). However, this does
not inevitably mean that racially integrating transferred in-
mates, 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 vio-
lence 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 intelligence staff to gathering and verify-
ing 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 constitu-

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539 Cite as: 543 U. S. 499 (2005)
Thomas, J., dissenting
tionality of racial classifications in prisons. The majority
claims that Lee applied “a heightened standard of review.”
Ante, at 506. But Lee did not address the applicable stand-
ard of review. And even if it bore on the standard of review,
Lee would support the State here.
In Lee, a three-judge District Court ordered Alabama to
desegregate its prisons under Brown v. Board of Education,
347 U. S. 483 (1954). Washington v. Lee, 263 F. Supp. 327,
331–332 (MD Ala. 1966). In so doing, the District Court re-
jected any notion that “consideration[s] of prison security or
discipline” justified the “complete and permanent segrega-
tion of the races in all the Alabama penal facilities.” Id., at
331. However, the District Court noted “that in some iso-
lated instances prison security and discipline necessitates
segregation of the races for a limited period.” Ibid. (foot-
note 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 unmen-
tioned 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, af-
firmed the District Court’s order. It found “unexception-
able” not only the District Court’s general rule that whole-
sale segregation of penal facilities was unconstitutional, but
also the District Court’s “allowance for the necessities of
prison security and discipline.” Lee, 390 U. S., at 334. In-
deed, 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.

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540 JOHNSON v. CALIFORNIA
Thomas, J., dissenting
Those Justices were “unwilling to assume” that such an “ex-
plicit pronouncement [would] evinc[e] any dilution of this
Court’s firm commitment to the Fourteenth Amendment’s
prohibition of racial discrimination.” Ibid.
Lee said nothing about the applicable standard of review,
for there was no need. Surely Alabama’s wholesale segre-
gation of its prisons was unconstitutional even under the
more deferential standard of review that applies within pris-
ons. 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 Part-
nership, 513 U. S. 18, 24 (1994) (noting “our customary skep-
ticism 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 pol-
icy would certainly satisfy. As the Lee concurrence ex-
plained without objection, the Court’s exception for “the ne-
cessities of prison security and discipline” meant that “prison
authorities have the right, acting in good faith and in partic-
ularized circumstances, to take into account racial tensions
in maintaining security, discipline, and good order in prisons
and jails.” 390 U. S., at 334 (opinion of Black, Harlan, and
Stewart, JJ., concurring) (emphasis added).
California’s policy—which is a far cry from the wholesale
segregation at issue in Lee—would fall squarely within Lee’s
exception. Johnson has never argued that California’s pol-
icy is motivated by anything other than a desire to protect
inmates and staff. And the “particularized” nature of the
policy is evident: It applies only to new inmates and trans-
fers, 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

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541 Cite as: 543 U. S. 499 (2005)
Thomas, J., dissenting
opts for a more demanding standard of review than Lee’s
language even arguably supports.
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 505 (emphasis deleted) (quoting Adarand Construc-
tors, Inc., 515 U. S., at 227). Adarand has nothing to do
with this case. Adarand’s statement that “all racial classi-
fications” are subject to strict scrutiny addressed the conten-
tion that classifications favoring rather than disfavoring
blacks are exempt. Id., at 226–227; accord, Grutter v. Bol-
linger, 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 de-
mands are diminished in the unique context of prisons. See,
e. g., Harper, 494 U. S., at 224; Abbott, 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 considered 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 [applies]
only to rights that are ‘inconsistent with proper incarcera-
tion.’ ” Ante, at 510 (quoting Overton v. Bazzetta, 539 U. S.
126, 131 (2003)). According to the majority, the question is
thus whether a right “need necessarily be compromised for
the sake of proper prison administration.” Ante, at 510.
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 no-
tion of what a proper prison ought to look like and how it

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542 JOHNSON v. CALIFORNIA
Thomas, J., dissenting
ought to be administered. Overton, supra, at 139 (Thomas,
J., concurring in judgment). But the very issue in this case
is whether such second-guessing is permissible.
The majority’s test eviscerates Turner. Inquiring
whether a given right is consistent with “proper prison ad-
ministration” 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 judgments
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 access 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 in-
quiry that Turner settled, and that the majority today resur-
rects. And with good reason: As Turner pointed out, these
judgments are better left in the first instance to the officials
who run our Nation’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.11 Ante,
11 The majority’s sole empirical support for its speculation is a study of
Texas prison desegregation that found the rate of violence higher in ra-
cially segregated double cells. Ante, at 507–508 (citing Trulson & Mar-
quart, The Caged Melting Pot: Toward an Understanding of the Conse-
quences 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 inte-

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543 Cite as: 543 U. S. 499 (2005)
Thomas, J., dissenting
at 506–508. The majority’s speculations are implausible.
New arrivals have a strong interest in promptly convincing
other inmates of their willingness to use violent force. See
Brief for National Association of Black Law Enforcement Of-
ficers, Inc., as Amicus Curiae 13–14 (citing commentary 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 bur-
den on state actors to demonstrate that their race-based poli-
cies are justified,” ante, at 506, n. 1, and “[has] refused to
defer to state officials’ judgments on race in other areas
where those officials traditionally exercise substantial discre-
tion,” ante, at 512. Yet two Terms ago, in upholding the
University of Michigan Law School’s affirmative-action pro-
gram, this Court deferred to the judgment 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”). Defer-
ence would seem all the more warranted in the prison con-
text, for whatever the Court knows of administering educa-
tional institutions, it knows much less about administering
penal ones. The potential consequences of second-guessing
the judgments of prison administrators are also much more
severe. See White v. Morris, 832 F. Supp. 1129, 1130 (SD
Ohio 1993) (racially integrated double-celling that resulted
grated cells may be the preferred option. But California leaves open that
door: Inmates are generally free to room with whomever they like on a
permanent basis.

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544 JOHNSON v. CALIFORNIA
Thomas, J., dissenting
from federal consent decree was a factor in the worst prison
riot in Ohio history). More importantly, as I have ex-
plained, 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,
494 U. S., at 224; Abbott, 490 U. S., at 407; Turner, 482 U. S.,
at 85. The majority cannot fall back on the Constitution’s
usual demands, because those demands have always been
lessened inside the prison walls. See supra, at 529.
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 508–509. This is
both irrelevant and doubtful. It is irrelevant because the
number of States that have followed California’s lead mat-
ters 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 majority leaves to
be addressed on remand. In other words, the uniqueness of
California’s policy might show whether the policy is reason-
able or narrowly tailored—but deciding whether to apply
Turner or strict scrutiny in the first instance must depend
on something else, like the majority’s inconsistency-with-
proper-prison-administration test. The commonness of Cal-
ifornia’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 in-
mates. Both Oklahoma and Texas, like California, assign
newly admitted inmates to racially segregated cells in their
prison reception centers.12 The similarity is not surprising:
12 See Oklahoma Dept. of Corrections, Policies and Procedures, Oper-
ations Memorandum No. OP–030102, Inmate Housing (Sept. 16, 2004)
(“Upon arrival at the assessment and reception center . . . [f]or reasons of

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545 Cite as: 543 U. S. 499 (2005)
Thomas, J., dissenting
States like California and Texas have historically 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 for States of Utah, Alabama, Alaska,
Delaware, Idaho, Nevada, New Hampshire and North Dakota
as Amici Curiae 16. Relatedly, 10.3% of all wardens at
maximum security facilities in the United States report that
their inmates are assigned to racially segregated cells—ap-
parently on a permanent basis. Henderson, Cullen, Car-
roll, & Feinberg, Race, Rights, and Order in Prison: A Na-
tional 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. Id.,
at 302. Presumably, for the remainder of prisons in which
inmates are assigned to racially segregated cells, that policy
is the result of discretionary decisions by wardens rather
than of official state directives. Ibid. In any event, the on-
going debate about the best way to reduce racial violence in
prisons should not be resolved by judicial decree: It is the
job “of prison 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,
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 Memo-
randum No. SM–01.28, Assignment to General Population Two-Person
Cells (June 15, 2002) (“Upon arrival at a reception and diagnostic
center . . . [f]or 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”).

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546 JOHNSON v. CALIFORNIA
Thomas, J., dissenting
536 U. S. 730, 738 (2002). In that context, we have held that
“[a] prison official’s ‘deliberate indifference’ to a substan-
tial 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 inmates’
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 “deliberate
indifference” standard does not bolster the majority’s ar-
gument. If anything, that standard is more deferential to
the judgments of prison administrators than Turner’s
reasonable-relationship test: It subjects prison officials to lia-
bility 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 demonstrate the wisdom of an exception that imposes
a heightened 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 ran-
dom double-celling poses a substantial risk of serious harm
to the celled inmates. App. 245a–246a, 251a. 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 al-
leged an Eighth Amendment violation because administra-
tors 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 double-celling by prison offi-
cials constituted deliberate indifference, and affirmed an in-
junction and attorney’s fees awarded against the officials).
Nor would a victimized inmate need to prove that prison
officials had anticipated any particular attack; it would be
sufficient that prison officials had ignored a dangerous condi-

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547 Cite as: 543 U. S. 499 (2005)
Thomas, J., dissenting
tion that was chronic and ongoing—like interracial housing
in closely confined quarters within prisons dominated by ra-
cial 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 de-
signed to show that applying the Turner standard would
grant prison officials unbounded discretion to segregate in-
mates throughout prisons. See ante, at 513–514. But we
have never treated Turner as a blank check to prison offi-
cials. Quite to the contrary, this Court has long had “confi-
dence that . . . a reasonableness standard is not toothless.”
Abbott, 490 U. S., at 414 (internal quotation marks omitted).
California prison officials segregate only double cells, be-
cause only those cells are particularly difficult to monitor—
unlike “dining halls, yards, and general housing areas.”
Ante, at 514. Were California’s policy not so narrow, the
State might well have race-neutral means at its disposal ca-
pable of accommodating prisoners’ rights without 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 apply—for the first time
ever—a strict standard of review in the prison context that
is “fundamentally at odds” with our constitutional jurispru-
dence. Ante, at 506, n. 1. Instead, it is the majority’s re-
fusal—for the first time ever—to defer to the expert judg-
ment of prison officials.
IV
Even under strict scrutiny analysis, “it is possible, even
likely, that prison officials could show that the current pol-
icy meets the test.” 336 F. 3d 1117, 1121 (CA9 2003) (Fer-
guson, J., joined by Pregerson, Nelson, and Reinhardt,
JJ., dissenting from denial of rehearing en banc). As
Johnson concedes, all States have a compelling interest in

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548 JOHNSON v. CALIFORNIA
Thomas, J., dissenting
maintaining order and internal security within their prisons.
See Reply Brief for Petitioner 18; see also Procunier, 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.13 The other dissent notes the absence
of evidence on that question, see ante, at 518–521 (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) (per curiam) (discussing John-
son’s Third Amended Complaint). In reinstating Johnson’s
equal protection claim following the District Court’s dis-
missal, the Court of Appeals repeated Johnson’s allegation,
without indicating that strict scrutiny should apply on re-
mand before the District Court.14 Ibid. And on remand,
again 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 ¶ 23).
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
13 On the majority’s account, deference to the judgments of prison offi-
cials in the application of strict scrutiny is presumably warranted to ac-
count for “the special circumstances [that prisons] present,” ante, at 515.
See Grutter v. Bollinger, 539 U. S. 306, 328 (2003). Although I disagree
that deference is normally appropriate when scrutinizing racial classifica-
tions, there is some 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).
14 The Court of Appeals cited both Turner and Lee v. Washington, 390
U. S. 333 (1968) (per curiam), for the proposition that certain constitu-
tional protections, among them the protection against state-sponsored ra-
cial discrimination, extend to the prison setting. However, the Court of
Appeals did not discuss the applicable standard of review, nor did it at-
tempt to resolve the tension between Turner and Lee that the majority
finds.

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549 Cite as: 543 U. S. 499 (2005)
Thomas, J., dissenting
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 scrutiny.” Brief for
Appellant in No. 01–56436 (CA9), pp. 20, 26, 2001 WL
34091249. Perhaps as a result, the Court of Appeals did not
discuss strict scrutiny in its second decision, the one cur-
rently before this Court. The Court of Appeals did find ten-
sion between Lee and Turner; however, it resolved this ten-
sion 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 classifications “ ‘in good faith and in particu-
larized circumstances.’ ” 321 F. 3d, at 797. The Court of
Appeals, like Johnson, did not 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 standard 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 Appeals rehear his case. Appellant’s Petition for Panel
Rehearing 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, sub-
ject 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 pre-
sent evidence of narrow tailoring, evidence it was never obli-
gated to present in either appearance before the District
Court. See Lucas v. South Carolina Coastal Council, 505
U. S. 1003, 1031–1032 (1992) (remanding for consideration
under the correct legal standard); id., at 1033 (Kennedy, J.,
concurring in judgment) (“Although we establish a frame-

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550 JOHNSON v. CALIFORNIA
Thomas, J., dissenting
work for remand, . . . we do not decide the ultimate [constitu-
tional] question [because] [t]he facts necessary to the deter-
mination have not been developed in the record”).
* * *
Petitioner Garrison Johnson challenges not permanent, but
temporary, segregation of only a portion of California’s pris-
ons. Of the 17 years Johnson has been incarcerated, Califor-
nia 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 prisoner) requested to be housed with
a person of a different race, it would be denied (though John-
son’s gang affiliation with the Crips might stand in his way).
Moreover, Johnson concedes that California’s prisons are ra-
cially violent places, and that he lives in fear of being at-
tacked 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.