You Can't Judge a Crook by his Color

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So, if racial profiling isn't bigoted, and if the empirical claim upon which the practice rests is sound, why is it wrong?

Racial distinctions are and should be different from other lines of social stratification. That is why, since the civil rights revolution of the 1960s, courts have typically ruled--based on the 14th Amendment's equal protection clause--that mere reasonableness is an insufficient justification for officials to discriminate on racial grounds. In such cases, courts have generally insisted on applying "strict scrutiny"--the most intense level of judicial review--to government actions. Under this tough standard, the use of race in governmental decision making may be upheld only if it serves a compelling government objective and only if it is "narrowly tailored" to advance that objective.

A disturbing feature of this debate is that many people, including judges, are suggesting that decisions based on racial distinctions do not constitute unlawful racial discrimination--as long as race is not the only reason a person was treated objectionably. The court that upheld the DEA agent's action at the Kansas City airport, for instance, declined to describe it as racially discriminatory and thus evaded strict scrutiny.

But racially discriminatory decisions typically stem from mixed motives. For example, an employer who prefers white candidates to black candidates--except for those black candidates with superior experience and test scores--is engaging in racial discrimination, even though race is not the only factor he considers (since he selects black superstars). In some cases, race is a marginal factor; in others it is the only factor. The distinction may have a bearing on the moral or logical justification, but taking race into account at all means engaging in discrimination.

Because both law and morality discourage racial discrimination, proponents should persuade the public that racial profiling is justifiable. Instead, they frequently neglect its costs and minimize the extent to which it adds to the resentment blacks feel toward the law enforcement establishment. When O.J. Simpson was acquitted, many recognized the danger of a large sector of Americans feeling cynical and angry toward the system. Such alienation creates witnesses who fail to cooperate with police, citizens who view prosecutors as the enemy, lawyers who disdain the rules they have sworn to uphold, and jurors who yearn to get even with a system that has, in their eyes, consistently mistreated them. Racial profiling helps keep this pool of accumulated rage filled to the brim.

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