No to Racial Profiling
Rational but wrong.

Mr. Clegg is general counsel of the Center for Equal Opportunity
February 8, 2001 10:10 a.m.

ohn Derbyshire has an article in the current (Feb. 19) issue of National Review entitled, "The Case for Racial Profiling: Where Is Our Common Sense?" I am a great fan of Mr. Derbyshire's, and even in this article there is much with which I agree. But his conclusion — that racial profiling is an acceptable policy — is wrong.

Mr. Derbyshire is correct in his major premise, that racial profiling is perfectly rational. A disproportionate amount of street crime is committed by people who are young, and male, and black, and if you are all three then it makes perfect sense for the police to keep an especially keen eye on you, and pull you over more often, question you more carefully, and press you more aggressively to allow a search of your car. That is, it makes perfect sense if all the police are trying to do is maximize in the short term the number of their successful searches and arrests.

But that is not the police's overarching mission. They have to think of the long-term, too, and successful policing requires the cooperation of the rest of the community. If racially biased policing is an established policy, then that cooperation will be jeopardized. Moreover, the order which the police are charged with maintaining includes not just the prevention of crime but the racially unbiased treatment of law-abiding citizens.

Let's put the shoe on the other foot. The Left frequently supports the use of racial and ethnic preferences in university admissions, arguing that this discrimination is justified because it increases classroom racial and ethnic diversity, and racial and ethnic diversity results in greater viewpoint diversity. The conservative response is that, even if it is true that you might increase "diversity" this way, and even if it is true that such diversity has educational advantages, it's just not worth it. That is, it's not that discrimination is irrational in terms of a particular narrow goal, but that the countervailing costs — the unfairness, sacrifice of principle, resentment, stigmatization, and so forth — are too great.

Maybe the odds favor a black student's being disadvantaged or having an activist view, but there will be exceptions, just as most blacks are law-abiding. Finally, conservatives in the college-admissions context quickly and correctly reject the leftist defense that race is "just one factor" because, whenever it is the deciding factor, then in those cases discrimination on the basis of race has occurred. The same, pace Mr. Derbyshire, is true for profiling.

Here's another example. Suppose that a city agency is interested in hiring only people with a high-school diploma, and in that city the overwhelming majority of whites have a diploma and the overwhelming majority of Hispanics don't. Rather than have to go to the trouble of checking out the records of each applicant, it may be much more cost-efficient simply to hire all whites and no Hispanics. But I think that most of us would insist that each applicant be assessed individually. (Clearly, that is what the law requires.)

Let me now hasten to add some points on which Mr. Derbyshire and I agree. I am not condemning decisionmaking that relies on neutral criteria that happen to have a disproportionate effect on some racial or ethnic group. For instance, if Mayor Giuliani decides to adopt aggressive but race-neutral policing tactics — like sending more beat patrolmen into high-crime areas — that's perfectly fine, even if it results in arrests that are disproportionately African American. Or, in my earlier examples, there is nothing wrong with a college insisting on high SATs or a city agency on high-school diplomas, even if that has a disproportionate effect on some racial or ethnic groups.

Nor, of course, do I have any problem with the police including race or ethnicity in the description of a particular suspect. To be sure, the lines can blur between this and racial profiling. In upstate New York recently, for example, the police decided to question every black in a small town because they were looking for a black robbery suspect and there weren't very many blacks there. The court, correctly in my view, upheld the police. But over the line, again in my opinion, would be a decision to stop all Hispanic youths in a neighborhood and search them for drugs because the police knew there was a drug-dealing Hispanic gang there. The difference between the two cases is that a specific crime being investigated in the first example, but not in the second.

I also agree with Mr. Derbyshire that requiring individual policemen to record the race of each person they stop is a bad idea, because it will pressure them to stop some people they might not really need to stop, while passing up some other people that they do. I was told that the District of Columbia's police chief — who happens to be black — made exactly this point in a recent interview. He didn't like the record-keeping proposal. If I've already stopped two black men on a particular evening, he said, I may be reluctant to stop a third, even if would make sense to.

Mr. Derbyshire deserves credit for presenting Professor Randall Kennedy's arguments against racial profiling — and indeed he fails to refute them. Being stopped or searched because of your race is a big deal. It's a much bigger deal than being stopped because one is male or young in light of our sad history of racism. And one can reject racial profiling without requiring racial quotas for arrests. Indeed, both should be rejected for the same reason: The state should be colorblind.

Mr. Derbyshire concludes with a stirring warning that "Americans are drifting away from the concept of belonging to a single nation." I agree. I also agree that listening to people like Al Sharpton is a recipe for social disaster. But where I think Mr. Derbyshire is wrong is in his apparent belief that a police policy of stopping individuals because of their race — even if it is just one of the factors considered — is consistent with "the concept of belonging to a single nation." It isn't.