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

• Author: Romero, Victor C.

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.

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

   1. 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.

   2. 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 aspects of a single, broader concept called racial profiling. This concept encompasses the issue of when race should be used as a factor in determining public policy. While we typically associate racial profiling with the narrow circumstance of motoring stops, racial profiling is behind public policy discourse on affirmative action and immigration policy as well. After examining the contours of racial profiling in each of these three areas, I assert that critical race theory provides a principled alternative to stock liberal and conservative perspectives on the issues, which often lead to conflicting results in similar cases.

   3. Laying the Foundation for the Critique: Defining Liberal and Conservative

      At the outset, setting forth working definitions of liberal and conservative (though admittedly simplistic) might be useful. By liberal, I refer to those who believe that individuals should be free to pursue their own happiness as long as they do no harm to others. Therefore, if one's activity adversely affects another, a liberal would permit government intervention to correct that harm. (4) While a conservative might agree with the goal of maximizing individual freedom, she would be loathe to assign that task to the government. Instead, her faith rests in laissez-faire approaches to wealth maximization and the pursuit of happiness, seeking government enforcement only to protect against clear attacks on that pursuit by criminal elements in society in turn. (5)

      With that, we are ready to examine profiling in law enforcement, university admissions, and immigration policy. (6)

2. ACT ONE: RACIAL AND ETHNIC PROFILING IN LAW ENFORCEMENT

   Whether one favors the pejorative Driving While Black (or Brown) or Flying While Arab (or Muslim), the stock liberal argument against racial and ethnic profiling in the law enforcement context is that stereotypical assumptions--that people of color are more apt to commit crime--violate the liberal tenet that each person should be treated as an individual, not as a member of a group. (7) Every innocent individual of color that is stopped on the highway or frisked at the airport is stigmatized by society's suspicion attending a police search.(8)

   Professor David Harris shares the story of Larry Sykes, the head of the Board of Education in Toledo, Ohio, bank vice-president, and respected civic leader, who was pulled over for no articulated reason on his drive home from an economic development conference in Cleveland. (9) Despite his having been dressed in a crisp business suit and having presented his license, registration, and insurance papers, all of which were in order, Mr. Sykes was told to get out of his car and the officer began frisking him. (10) When Mr. Sykes asked him for an explanation, the officer said, "'[y]ou can't be too careful. You might have a gun.'" (11) When Mr. Sykes asked why he would have a gun, the officer replied, "'Look, I'm just trying to get home tonight,'" (12) implying that Mr. Sykes might pull a gun out and shoot him. Embarrassment turned to humiliation when, realizing that the over six-foot tall Mr. Sykes would not fit in the patrol car, the officer ordered Mr. Sykes to stand next to the car with his legs spread and arms on the roof, palms down. (13) Just then, Mr. Sykes's conference colleagues drove by in a chartered bus and recognized him, leading some to comment that Mr. Sykes must have done something wrong for the police to have detained him. (14)

   Targeting individuals of color perpetuates the stereotype that minorities are more likely than whites to commit crime. Liberals would argue that even if this were true--a dubious proposition itself given enforcement biases (15)--it would not excuse applying the stereotype to a particular individual, who may very well be innocent, as Mr. Sykes's story illustrates all too vividly.

   A conservative critique, on the other hand, would emphasize the correlation between race and crime, making it the professional responsibility of law enforcement to use this along with many other factors to determine one's propensity for crime. (16) Writer Dinesh D'Souza might call such a calculus "rational discrimination" (17) because, while individual profiling is based on generalized statistics, there is a sufficient enough nexus between race and criminal behavior that to ignore the issue would be foolhardy. (18)

   Applied to Mr. Sykes's situation, the argument might suggest that Mr. Sykes and his ilk should not be offended, since the officer was doing his job based on a reasonable assumption that race (and perhaps in Mr. Sykes's case, his imposing height and formal dress) suggested that he might fit a drug kingpin profile. As Border Patrol Agent Juan Lopez commented when asked about whether he was offended by co-workers mistaking him for an undocumented immigrant or drug courier: "Do I get offended? ... No, I don't. Th[ese] guys are doing their job." (19) Conservative ideology supports this statistics-based approach to government intervention when an identifiable group poses a threat to law-abiding citizens.

   In sum, racial profiling in law enforcement pits the liberal's concern for preserving human individuality and dignity against the conservative's belief that statistics provide rational bases for targeted law enforcement to serve the good of society as a whole. (20)

3. ACT TWO: AFFIRMATIVE ACTION AS RACIAL PROFILING

   Interestingly, our hypothetical liberal and conservative switch positions on the use of racial profiling in the context of university admissions programs. Affirmative action, in the context of university admissions programs, is the system of using racial minority status as a positive factor in determining which applicant to accept. (21) The act of giving extra points to minority applicants in order to remedy widespread societal discrimination is the crux of the liberal argument favoring this policy. For instance, because standardized tests are skewed in favor of...