The conservative case against racial profiling in the war on terrorism.

• Author: Lund, Nelson

1. INTRODUCTION

   Although it now seems like something from the distant past, racial profiling was a hot political issue in 2001. The crime known as DWB, or driving while black, had emerged from the shadows of casual conversation and had become the subject of fairly intense public controversy. That controversy, however, was almost entirely concerned with questions about facts and remedies, not about principles. We had what appeared to be a clear national consensus that it was completely improper for the police to use racial stereotypes when selecting individuals for stops or searches--even if it might be true that members of certain racial groups are more likely than other groups to be guilty of specific criminal behavior. (1)

   The controversy was mostly focused on whether the police were in fact commonly using such stereotypes, especially when choosing which motorists to pull over for traffic violations that are so common that the police necessarily ignore them most of the time. Generally speaking, conservatives were probably more skeptical about claims that racial profiling was actually very common, (2) while liberals were more willing to believe that it was a serious problem. (3) But almost nobody argued that the police should be allowed to engage in this practice. (4)

   Then came 9/11. All of the hijackers who carried out the attacks that day were Arab men, (5) and commentators began saying that racial profiling is an appropriate tool for the war on terrorism. And the public seems to agree. Polls have shown strong majorities in favor of subjecting those of Arab descent to extra scrutiny at airports. (6) Interestingly, blacks and Arab-Americans were even more likely than whites to favor such policies. (7)

   By now, most of us have had the opportunity to see little old ladies stopped for humiliating random searches at the boarding gates in the airports, while far more dangerous looking men have walked down the jetways without so much as a second look from the security screeners. Conservatives, in particular, have skewered the government for persisting with these apparently silly, and quite possibly very dangerous, policies. (8) This is consistent with the general tendencies of conservatives to be more supportive than liberals of aggressive law enforcement techniques and to be less likely to believe that police officers are prone to racist behavior. (9) Political correctness, obsessive pandering to racial sensitivities, bureaucratic mindlessness--whatever the diagnosis, the cure is taken to be obvious: Stop the silliness, we're told, and get serious about protecting us from another attack, which we can be quite sure will not be carried out by septuagenarian Norwegian-American women.

   In my opinion, this new enthusiasm for racial profiling is misguided. My argument has three main points.

   First, racial profiling or racial stereotyping is something that all of us do all the time. There are good reasons why we do it, and there are also good reasons why we need to make an effort not to do too much of it.

   Second, free societies--and especially free markets--foster profound forces that tend to curb irrational racial stereotyping. These mechanisms certainly do not work perfectly, but they do work.

   Third, governments are highly prone to excessive racial stereotyping and are largely immune from the forces that keep this practice in check in the private sector. For that reason, government policies that entail racial profiling should be treated with the greatest skepticism. Not only do they threaten the legitimate interests of various racial groups, but they tend to distract government agencies from alternative policies that are likely to work at least as well.

   Certainly, we should not pander to left-wing racial mau-mauing if doing so will leave us vulnerable to another catastrophe like 9/11. But by the same token, let's also avoid pandering to dysfunctional bureaucratic imperatives that have their own potential for disaster. In short, I agree with the conservative commentators who think that the war on terrorism is a serious business that we should all be treating in a serious way. But I disagree with the conclusion that racial profiling is likely to make an important contribution to that effort.

   The most important reason for being skeptical about racial profiling is one that ought to be shared by the left and right alike: it threatens to undermine the important national goal of making all races equal under the law. I will focus here on an additional reason that should be especially appealing to conservatives: the danger of government abuses.

2. RACIAL PROFILING IS AN INERADICABLE PART OF HUMAN LIFE

   The term racial profiling was apparently coined to describe the behavior of some police officers who stopped black motorists for minor traffic violations in hopes of discovering illegal drugs or other contraband in the car. (10) If the practice can be justified, it must be on the assumption that blacks are statistically more likely to be carrying contraband.

   This practice is just a particular example of the more general phenomenon of racial or ethnic stereotyping. (11) We all see, or believe we see, that certain characteristics are not randomly distributed throughout the population. Some of these patterns indubitably reflect reality. Other patterns that many people believe that they see might not in fact exist. But there are enough statistically large differences among racial groups that stereotyping is not always or merely the result of prejudice or thoughtlessness.

   In fact, I think, we cannot help noticing some of these patterns, and we cannot help being influenced by them. I'll just offer one piece of evidence for this proposition. A few years ago, Jesse Jackson made the following statement: "There is nothing more painful for me at this stage in my life than to walk down the street and hear footsteps and start to think about robbery and then look around and see it's somebody white and feel relieved. How humiliating." (12)

   Jesse Jackson was obviously not motivated by prejudice against black people. He was simply admitting that he had noticed what official statistics confirm; namely, that blacks commit robbery at much higher rates than whites do. (13) The stereotype that Jackson was employing is accurate in a statistical or probabalistic sense--even though it's also true that most blacks are not robbers and that almost half of all robbers are white. (14)

   Obviously, that leaves lots of questions about what actions people should or should not take on the basis of such statistically accurate stereotypes. My only point here is that people inevitably become aware that there are differences among racial and ethnic groups and that people inevitably take account of these differences--even if they try not to do so. Of course, it is also true that our natural habit of noticing different patterns or tendencies among groups sometimes leads us to employ stereotypes that are not statistically accurate. Furthermore, both accurate and inaccurate stereotypes may operate at a subconscious level. (15)

3. PRIVATE SECTOR RACIAL PROFILING IS CONSTRAINED BY MARKET FORCES

   American citizens are permitted to employ stereotypes in many of their private dealings with one another, regardless of whether the stereotypes that they use are accurate or not. If somebody decides to avoid a predominantly black neighborhood because he believes that it is safer to take an alternative route through a mostly white area, he has not violated any law. Similarly, if a black person avoids going through a white neighborhood for fear of encountering a racist gang, that is his privilege. Similarly, if somebody decides to make a charitable contribution to a soup kitchen in a Hispanic neighborhood because he believes that Hispanics are more likely to suffer from poverty than whites, or if he makes a contribution to Tay-Sachs research because he believes that Jews are more likely to suffer from that disease, he has not violated any law.

   Not only are such actions perfectly legal, but you will rarely hear anybody advocate that they be made illegal. And this does not depend on whether the stereotypes are accurate or not. In some areas of private life, however, the law has intervened to prohibit private actions based on racial stereotypes. As a practical matter, the most important of these areas is employment. Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees or applicants for employment because of their race. (16) This statute not only forbids an employer from discriminating against an individual because he dislikes people of that race, but it also forbids...