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Note: Johnson v. California: A Grayer Shade of Brown
Duke Law Journal (2006)
  • Brandon N. Robinson
For decades, the famous school desegregation case of Brown v. Board of Education and its progeny have supported the notion that a State may not constitutionally require [racial] segregation of public facilities. Indeed, with regard to state-mandated racial segregation, the doctrine of separate but equal has long been considered dead and buried. In February 2005, however, the Supreme Court of the United States in Johnson v. California curiously reopened the segregation question by replacing the post-Brown ban on racial segregation with the strict scrutiny standard of review afforded to all other racial classifications, thereby muddying the once clear doctrinal waters. In deciding this case, the Johnson Court established strict scrutiny as the proper standard of review for a policy of temporary racial segregation in prisons, stating that all racial classifications are subject to strict scrutiny. This decision contrasts, however, with a long line of precedents beginning with Brown v. Board of Education, standing for the principle that racial segregation is inherently unequal and thus violative of the Fourteenth Amendment, therefore any racial segregation in public facilities is prohibited. Moreover, Johnson does not limit its decision to the prison context, but rather broadly asserts that racial segregation is now to be treated like any other racial classification. This Note first attempts to present the apparent inconsistencies between the unique historical treatment of racial segregation in Brown and progeny and the strict scrutiny standard imposed by Johnson. It next examines Johnson more closely and presents four interrelated responses that can be used to reconcile these inconsistencies and account for the decision: (1) the court simply failed to consider the issue; (2) the holdings in Brown and progeny are more limited than a complete ban on racial segregation in all public facilities; (3) an evolution in the social context and meaning attached to racial segregation over fifty-one years has produced a shift in the application of anticlassification and antisubordination principles, allowing Johnson to change the standard of review; and (4) in balancing these principles, the imposition of strict scrutiny can be seen as a middle ground or compromise among three sets of precedents - per se prohibition in Brown, strict scrutiny in all other racial discrimination jurisprudence such as Adarand Constructors, Inc. v. Pena and Richmond v. J.A. Croson Company, and the deferential reasonable-relationship test with respect to other fundamental rights in the prison context in Turner v. Safley. Rather than mutually exclusive or competing theories, these reconciliations should be seen as building blocks, each of which contributes to the others' validity.
  • racial segregation,
  • Johnson,
  • civil rights,
  • Brown,
  • education,
  • prisons,
  • strict scrutiny,
  • Turner v. Safley,
  • reasonable penological interest,
  • standard of review,
  • Reva Siegel
Publication Date
October, 2006
Publisher Statement
First published in 56 Duke L.J. 343 (2006).
Citation Information
Brandon N. Robinson. "Note: Johnson v. California: A Grayer Shade of Brown" Duke Law Journal Vol. 56 Iss. 1 (2006)
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