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Johnson v. California and racial tension at the Superdome

British and Australian news sources are reporting that white foreign tourists have been evacuated from the Superdome to other staging sites and shelters because they were being threatened on account of their race: BBC account (via Kaus); Australian Herald Sun account; Australian Age/Reuters account.

According to Bearing Blog, officials seem to be planning to racially segregate the emergency shelters to avoid racial tension; the blogger comments on the linguistic somersaults needed in an NPR interview to avoid the word "segregation."

Ann Althouse reminds us that February's 5-3 decision, Johnson v. California, authored by Sandra Day O'Connor, held that the safety concern of warring racially-based gangs in prisons did not create an exception to strict scrutiny of racial segregation. (The majority for this position, as Althouse notes, is actually 6-2; Justice Stevens' dissent protested that the Court should have gone ahead and found the practice unconstitutional rather than remanding to the courts below.)

Because there is typically more deference given to administrative decisions in the prison setting than in other government settings, Washington v. Harper, 494 U. S. 210 (1990), there could be lawsuits over the government's safety plans, and current law seems favorably disposed to find the practice unconstitutional. And do not be surprised if lawyers later seek to claim civil rights violations over evacuation triage decisions.



Rafael Mangual
Project Manager,
Legal Policy

Katherine Lazarski
Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.