You Can't Judge a Crook by his Color

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The courts have not been sufficiently mindful of this risk. In rejecting a 1976 constitutional challenge that accused U.S. Border Patrol officers in California of selecting cars for inspection partly on the basis of drivers' apparent Mexican ancestry, the Supreme Court noted in part that, of the motorists passing the checkpoint, fewer than 1 percent were stopped. It also noted that, of the 820 vehicles inspected during the period in question, roughly 20 percent contained illegal aliens.

Justice William J. Brennan dissented, however, saying the Court did not indicate the ancestral makeup of all the persons the Border Patrol stopped. It is likely that many of the innocent people who were questioned were of apparent Mexican ancestry who then had to prove their obedience to the law just because others of the same ethnic background have broken laws in the past.

The practice of racial profiling undercuts a good idea that needs more support from both society and the law: Individuals should be judged by public authorities on the basis of their own conduct and not on the basis of racial generalization. Race-dependent policing retards the development of bias-free thinking; indeed, it encourages the opposite.

What about the fact that in some communities people associated with a given racial group commit a disproportionately large number of crimes? Our commitment to a just social order should prompt us to end racial profiling even if the generalizations on which the technique is based are supported by empirical evidence. This is not as risky as it may sound. There are actually many contexts in which the law properly enjoins us to forswear playing racial odds even when doing so would advance legitimate goals.

For example, public opinion surveys have established that blacks distrust law enforcement more than whites. Thus, it would be rational--and not necessarily racist--for a prosecutor to use ethnic origin as a factor in excluding black potential jurors. Fortunately, the Supreme Court has outlawed racial discrimination of this sort. And because demographics show that in the United States, whites tend to live longer than blacks, it would be perfectly rational for insurers to charge blacks higher life-insurance premiums. Fortunately, the law forbids that, too.

The point here is that racial equality, like all good things in life, costs something. Politicians suggest that all Americans need to do in order to attain racial justice is forswear bigotry. But they must also demand equal treatment before the law even when unequal treatment is defensible in the name of nonracist goals--and even when their effort will be costly.

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