Racial profiling, which has always been a thorny issue, is about to get a lot more complicated. In a private meeting with Mayor de Blasio, Attorney General Eric Holder this week promised that the Justice Department soon will issue long-anticipated new rules expanding the definition of what constitutes racial profiling.
De Blasio made his opposition to the city’s tough “stop and frisk” policies a central theme in his successful campaign, alleging that the practice constitutes harassment of racial minorities. And Holder apparently agrees. Now, Holder plans to prohibit federal investigators from considering not only race, but also sex, religion, national origin and sexual orientation. What’s more, Holder is expected to broaden federal prohibitions on profiling beyond criminal justice to include counterterrorism investigations, surveillance and immigration enforcement.
I have always opposed racial profiling. In my view, government shouldn’t be choosing winners or losers on the basis of skin color. I think it’s wrong to use race to determine whom to hire or admit to college — and also wrong to single out minorities for sobriety, drug or weapons checks. It seems quite consistent to oppose both racial preferences that advantage minorities and racial profiling that disadvantages them. But it is important to be clear on what we mean by racial profiling and how we go about proving it.
There are several problems with the new rules. First, the Holder Justice Department in general views discrimination so broadly that policies that have an adverse impact on minorities are often deemed discriminatory even if there is no intent to discriminate and the policies themselves are neutral. By definition, racial profiling would seem to imply intent. But given its history, the Holder Justice Department might decide that any policing policy that results in a disproportionate impact on minorities will be seen as profiling.
An important study of racial profiling completed in 2002, for example, noted that minority neighborhoods often have a higher police presence because they also experience higher crime rates, which will lead to more stops of minority individuals. “Studies that do not consider these and other police operational procedures, along with additional specific city characteristics, will fail to accurately assess the existence or extent of racial profiling or bias-based policing,” the study said. Yet one can imagine the Holder Justice Department using exactly such flawed statistics to show widespread racial profiling.
In addition, expanding the prohibited categories to include not only race and color, but also national origin, religion and even sex will complicate both counterterrorism and immigration enforcement. President George W. Bush banned racial profiling in federal law enforcement in 2003, but he applied the ban only to racial and ethnic profiling and carved out exemptions for terrorism and national security. The new regulations are expected to reverse those exemptions, which will make the fight against terrorism more difficult.
One of the reasons that the Bush administration allowed investigators to profile based on national origin and religion was that both factors were relevant in counterterrorism. The administration made the exceptions less than two years after 19 terrorists attacked the United States, all of them foreign-born Islamists. It would have been irresponsible for the Bush administration not to take religion and national origin into account in looking for those likely to commit new acts of terrorism.
In fact, the chief criticism of security measures at airports and other places in the wake of 9/11 is that there hasn’t been enough profiling. Does it really make sense to subject a 75-year-old woman from Kansas to the same level of scrutiny as a 25-year-old male from Yemen? It makes sense to pay closer attention to some people than others if you have limited resources. Some would call that discernment, not discrimination.
Holder’s proposals have garnered praise from those in the civil-rights and civil-liberties community and in some Arab and Muslim organizations. But they are likely to weaken national security, make policing more difficult and making all Americans — including minorities — less safe in their own communities.