Defensible Discrimination?
My father, like me, has spent his life on the “color line” — appearing to be black, Hispanic, white or some undecipherable combination of the three. Also, like me, he never knows what race or ethnicity people will perceive him to be. He has long since ceased to care. These days, he drives a white SUV — not a flashy one but not an inexpensive one either. Recently, he and his SUV became the “darlings” of the local police in his Queens, NY neighborhood. In the course of a single week, he was pulled over four times by police. In one instance, he had not even had time to put his registration away before he heard the sirens wailing behind him again. In none of these instances did he receive a ticket or even a warning from the police. They simply asked to see his license and registration, inspected the vehicle, and sent him on his way.
Finally, one officer, as an afterthought when he handed my father back his license, mentioned that drug dealers favored SUVs. Now my dad is a very laid back kind of guy (he could not have stay married to my mother for over thirty years if he wasn’t) and when he relayed this strange tale to me several months ago, he seemed almost disinterested. Then I asked him if he thought it was some kind of racial profiling. He gave me a knowing look, shrugged, and replied, “It was some kind of profiling.” Did I mention my dad is himself a former cop?
Before September 11, racial profiling was the hot term that few (particularly politicians) wanted to stand too close to. President Bush called it “wrong” and promised to “end it in America.” The ACLU designed a national campaign to stamp out what they termed law-enforcement harassment of people who were doing nothing more than “Driving While Black (or Brown)”. Throughout the media, there were tales of law-abiding citizens being harassed on highways and interstates: pulled over without cause, subjected to intense searches, and delayed for hours on end by police looking for drugs (or, in some cases, stolen goods.) Allegations that racial profiling was a commonly used police tool caused a scandal in at least one state (New Jersey) and led to hearings and referendums in several others. Defenders of racial profiling, at least outside law enforcement, were few and far between.
Then, on September 11, 2001, men of Arab descent boarded four U.S. commercial airliners and changed history. Since then, even people who were the first to cry foul about police stopping blacks and Hispanics to curb drug trafficking, were silent at the idea of Arab-American air passengers being targeted for searches and even kicked off airplanes. Is it the same thing? Sure it is. For those who might not agree, let’s back up for a second and define racial profiling.
It’s not quite as easy as it sounds. Very few people can agree on a definition without using an anecdote and anecdotes are often subjective. The most basic definition is “using race to determine a the likelihood that a person will commit a crime or has committed a crime.” Heather MacDonald, of New York’s City Journal, a proponent of racial profiling, attempts to distinguish between “hard” and “soft” profiling. She writes in the Spring 2001 issue:
What we may call ‘hard’ profiling uses race as the only factor in assessing criminal suspiciousness: an officer sees a black person and, without more to go on, pulls him over for a pat-down on the chance that he may be carrying drugs or weapons. “Soft” racial profiling is using race as one factor among others in gauging criminal suspiciousness: the highway police, for example, have intelligence that Jamaican drug posses with a fondness for Nissan Pathfinders are transporting marijuana along the northeast corridor. A . . . trooper sees a black motorist speeding in a Pathfinder and pulls him over in the hope of finding drugs.
If we accept that distinction, the next questions are obvious: Is one more acceptable than the other and, if so, why? Slate‘s Michael Kinsley made an interesting comparison in the post-September 11 media frenzy that may help us answer those questions:
Racial profiling and affirmative action are analytically the same thing. When the cops stop black drivers or companies make extra efforts to hire black employees, they are both giving certain individuals special treatment based on racial generalizations. . . .The truth is that racial profiling and affirmative action are both dangerous medicines that are sometimes appropriate.
I find it hard to disagree with his logic. Given what we know about the nature of law enforcement work, it is possible to defend racial profiling — within certain guidelines. To explain, let me return to my own opening anecdote. As a minority, my father could have been outraged at his treatment by the NYPD. He had committed no infraction and three out of the four cops made no attempt to justify stopping him. He certainly had a right to feel harassed by the fourth time he heard the sirens. However, as a former police officer, he gave the police (particularly the fourth cop) the benefit of the doubt. He assumed, but without knowing MacDonald’s precise terminology, that they were using “soft” profiling — judging him not only on his perceived race but on the type of vehicle, as well.
Is that enough? I’ve never been a cop but I certainly feel a whole lot more comfortable when someone uses some kind of verifiable fact or statistic in conjunction with their very subjective instincts. A cop with many years of experience has plenty of time to hone his or her instincts but also plenty of time to develop biases and prejudices that will seem like fact given what they see every day. That said, I agree that people in all levels of law enforcement do much of their work on instinct and that profiling of some kind is inevitable. As one officer pointed out, vice cops “profile” based on a woman’s attire everyday. But simply what she is wearing does not get her arrested. She has to be caught in the act of solicitation.
By that same token, “hard” profiling is virtually inexcusable. Cops stopping motorists should not do so based solely on race — no matter what the (highly unreliable) statistics about minority participation in the drug trade say on a given day. Racial profiling should not be used as a short-cut to making drug arrests. For example, according to guidelines distributed through the eighties and nineties, troopers in Florida were given traffic-stop instructions which simply directed them to “ethnic groups associated with the drug trade” or drivers who do not “fit the vehicle” they are driving. That kind of profiling is lazy and unpardonable. However, if police have reliable data about vehicle makes and models (or specific aftermarket enhancements — as many Pennsylvania troopers look for), known trafficking routes, driver behavior, in addition to reliable information about race, the possibility that racism is influencing their “instincts” is greatly reduced.
Now, there are certainly racist cops “out there” (just as there are racist CPAs, racist network administrators and racist cafeteria workers). Using racial profiling prudently does not automatically make a cop racist, in my opinion. But take away the vehicle, take away the highway, take away almost all other secondary data, and you have the situation we’ve had at U.S. airports since last September. Arab-Americans, or even people who simply look like they might be of Arab descent have been more extensively searched, questioned, detained, and in extreme cases, removed from aircraft, based solely on their appearance. Immediately after the attacks, for example, three Arab-Americans were removed from an airplane in Minneapolis because the other passengers felt uncomfortable in their presence — they had all cleared several airport checkpoints prior to boarding.
Granted, the urgency in preventing more acts of terrorism at our airports certainly supercedes the urgency of the “war on drugs”. There is certainly a smaller window of opportunity to keep bombs and weaponry off a commercial airplane. However, even though the statistics are undoubtedly on the side of examining Arab-Americans more closely in this case, there are several reasons why some of what has happened in our airports is extreme even in the wake of the tragedies.
First, if we are going to argue that focusing more on Arab Americans in airports makes us safer, we had better be damn sure that we’ve addressed all the other possible security loopholes that were found in the post-September 11 checks. What’s the good of searching passengers (no matter what their race) no one is checking who has access to the baggage areas, loading ramps, crew areas, etc. Secondly, training airport security personnel, providing them with reliable equipment and giving them specific details on what they should be looking for in possible terrorist suspects (in addition to skin color) is key. Focusing solely on skin color at the expense of other suspicious signs makes us more vulnerable to terrorists in the long run. Isreali airport personnel are trained to look at factors such as body language, clothing, baggage, and yes, race, and they have certainly lived under the shadow of terrorism much longer than we have. If terrorists know that U.S. airport personnel know only to look for dark-skinned men, beards or turbans, what’s to stop them from recruiting more John Walker Lindhs?
We should be screening all carry-on luggage carefully, we should be checking all tickets, we should be sending all passengers thorough metal detectors, and if we’re not, why aren’t we? If random searches are necessary, are we taking the above possibility into account when we choose “randomly”? If, after an Arab American passenger has been though all that, they are still not allowed to fly, it is racial profiling. It is discrimination and it is darn near impossible to defend, even in these times. (I should note here that as the fervor following the attacks has died down in recent months, it appears more airport personnel are focusing less on Arab-Americans solely based on their race. Most Arab-Americans stopped at checkpoints have actually had inconsistencies in their paper work, banned objects, or other infractions.)
In a free society, the right balance between the rights of the citizens and the need to protect those citizens from harm can seem impossible to achieve. Yet it’s not as if the need for that balance ever goes away. The racial profiling scandals and the events of September 11 might have made us more aware of the difficulty in finding it, but that need was there all along. It was there during World War II when the nation justified interning Japanese Americans and it will be there tomorrow when our children judge us for how we have reacted to today’s wars.
