Washington The Supreme Court on Tuesday considered whether a California policy of segregating inmates by race for the first 60 days they're in prison violates the Constitution.
For California, the argument is a safety issue: The state is "ground zero" for race-based gangs such as the Aryan Brotherhood and the Crips and Bloods, state Assistant Atty. Gen. Frances Grunder told the justices. Mixing white and black inmates in their early prison time could lead to riots and other disturbances.
But an attorney for Garrison Johnson, who's been in the California prison system since 1987, said the policy was dehumanizing and racist.
"This policy is not directed at gangs, but at individuals," lawyer Bert Deixler said. "This court's history has been to march the country away from segregation. There should be no turning back."
The case returns the justices to the touchy subject of race -- something they confronted squarely in the 2003 college affirmative-action cases -- and is complicated by twists that could produce an unusual ruling.
To reach a decision, the justices will have to resolve a conflict between rulings limiting government consideration of race and their long-standing practice of allowing prisons wide latitude to infringe on constitutional rights to keep order.
Deixler, backed by acting U.S. Solicitor General Paul Clement, urged the court once again to frown on race-based determinations.
They asked the justices to apply a standard called strict scrutiny, which would require California to prove that its policy was based on a compelling purpose, that it was narrowly tailored to serve only that purpose and that there wasn't an alternative, race-neutral policy that could be just as effective.
Deixler said the policy broadly assumed that any black or white inmate would be trouble if housed with someone of a different race, thus stereotyping all of them.
Justice Antonin Scalia, who generally opposes race-conscious policies, took issue with Deixler's assertions.
"What is so sacrosanct about the right not to be stereotyped?" Scalia asked. "Prisons force prisoners to give up other constitutional rights," such as their First Amendment rights to have news conferences, he said. "Why can't this right yield to a useful means of controlling prisons?"
Race is different, by definition, Deixler said, and more important for the government to avoid in making policy. The court's decision is expected by early summer.