Critical race theory in three acts: racial profiling, affirmative action, and the diversity visa lottery.

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Critical race theory in three acts: racial profiling, affirmative action, and the diversity visa lottery.

Abstract

The usual debates surrounding multiculturalism pit individual rights against group grievances in a variety of contexts including racial profiling, affirmative action, and the diversity visa lottery--often with seemingly contradictory results. Liberals typically favor affirmative action but decry both racial profiling and the diversity visa lottery, while many conservatives hold the opposite view. Critical race theory provides a unique alternative to stock liberal and conservative arguments, allowing one to draw meaningful and persuasive distinctions among these seminal issues surrounding law enforcement, education, and immigration policy.

I. INTRODUCTION: RACIAL PROFILING--LAW ENFORCEMENT, EDUCATION, AND IMMIGRATION

A. Racial Profiling Pre and Post-9/11

In March of 2000, I wrote a short essay entitled Racial Profiling: "Driving While Mexican" and Affirmative Action for a talk I gave at the University of Michigan School of Law. The piece decried the lack of nuance in the arguments raised by both the right and left concerning the issue of racial profiling. (1) Little did I know that just a year and a half after that talk, the terrorist attacks of September 11, 2001 would breathe new life into the debate, only this time scrutinizing those of Arab and Muslim descent--especially non-U.S. citizens. (2) In the year since 9-11, I have thought quite a bit about two of the three panel topics for this year's symposium, racial profiling and immigration policy, (3) but I have paid little mind to the third, affirmative action.

B. Critiquing Three Types of Racial Profiling Through the Lens of Critical Race Theory

And so, today, I would like to discuss all three--the use of race in law enforcement, affirmative action in higher education, and the diversity lottery in immigration law--as a...

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