WASHINGTON – Race policies in the Texas prison system were invoked by both sides in U.S. Supreme Court arguments Tuesday concerning the routine practice of racial segregation in the California penal system.

The California case, involving one of the country’s most gang-ridden prison systems, focuses on a black inmate’s complaint that the routine segregation, which occurs during the first 60 days of incarceration, violates his constitutional rights.

The Bush administration agrees with him. Assistant Solicitor General Paul Clement said, “There is almost a uniquely pernicious history of race in this country.” The California policy sends “the wrong constitutional message,” suggesting that some race-based policies are tolerable, Clement said.

Origins of the unwritten California policy are not known, acknowledged California Assistant Attorney General Frances Grunder. But the purpose of the policy is well-founded, she said.

“California is ground zero for race-based criminal organizations,” she said. Prison officials have to be mindful of the potential for violence between groups such as the Black Guerilla Family, the Aryan Brotherhood and the Mexican Mafia, she said.

The high court traditionally has deferred to prison officials in their handling of prisoners. However, many states – including Texas – have been forced by court order over the past several decades to integrate their prison activities and facilities in ways that don’t involve safety and security.

In nearly all other walks of American life, however, race-based restrictions are considered not just closely, but very closely. And opponents of the California system argue that this same “strict scrutiny” should apply.

Bert Deixler, who represents California prisoner Garrison Johnson, said that California officials have been way too vague about their justifications for the system. He said the segregated screening process may be a solution to a problem that some say has been exaggerated.

Justice Antonin Scalia asked why the constitutional right to integrated facilities should be “sacrosanct” in prison, while other constitutional rights – such as free speech or freedom of assembly – are routinely denied.

“In prison, lots of constitutional rights are given up – some as basic as the right to walk around and not be seized. Why can’t this one right be given up?” Justice Scalia said.

Deixler said Johnson is part of a vulnerable minority inside the system: he is black and not a gang member. Not allowing Johnson to be housed with white or Hispanic non-gang-affiliated prisoners makes him more likely to have to interact with black prison gangs, he said.

Although several states filed briefs in support of California’s right to administer state prisons as needed, Clement argued that other states – including Texas – have found such segregation unnecessary.

Deixler cited a 10-year study of Texas prisons that concludes that inmate violence has actually diminished with court-ordered integration and that interracial violence among inmates has diminished more than inmate violence overall.

“There’s no reasonable relationship between government policy (and fears of racial violence),” Deixler said.

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AP-NY-11-02-04 1923EST

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