Racial ProfilingPresent both sides of the argument to the question “Is racial profiling defensible public policy?” In addition to summarizing the essays from the Taking Sides text, use at least 2 current, peer-reviewed journal articles to support your post.Is Racial Profiling Defensible Public Policy?
YES: Scott Johnson, from “Better Unsafe Than (Occasionally) Sorry?” The American
Enterprise (2003)
NO: Wade J. Henderson and Karen McGill Lawson, from “Restoring a National Consensus:
The Need to End Racial Profiling in America,” The Leadership Conference (2011)
Learning Outcomes
After reading this issue, you will be able to:







Develop a proper understanding of racial profiling as a law enforcement practice.
Develop a clear understanding of the widespread utilization of racial profiling by law
enforcement throughout the United States.
Identify and explain who are the potential targets of this practice within a nation of
diverse populations.
Develop a clear and comprehensive understanding of the arguments in favor of racial
profiling.
Develop a clear and comprehensive understanding of the arguments in opposition to
racial profiling.
Identify and explain the potential impacts of racial profiling upon African Americans and
other minority communities.
Identify and explain the potential impacts of racial profiling upon police–community
relations.
ISSUE SUMMARY
YES: Scott Johnson, conservative journalist and an attorney and fellow at the Clermont Institute,
argues in favor of racial profiling. He claims that racial profiling does not exist “on the nation’s
highways and streets.”
NO: In the report, “Restoring a National Consensus,” Wade Henderson and Karen McGill
Lawson argue that racial profiling is an unjust and ineffective method of law enforcement that
makes us less, not more, safe and secure. However, profiling is pervasive and used by law
enforcement at the federal, state, and local levels.
Throughout the history of the United States, the nation has struggled to live up to its claim as
“the land of the free.” Many Americans, especially people of color, have been subjected to
differential and unequal treatment within this country from the colonial era to the present. The
first Americans to experience discrimination and other forms of mistreatment were the aboriginal
people who settled on these lands.
Native Americans experienced ethnic cleansing, and are still fighting for treaty rights, mineral
and water rights, and recognition as internal nations within the United States. Immigrants,
including Latino Americans, are routinely subjected to nativism, color-based prejudice, and
discrimination. Others, including Roman Catholics and people from Eastern and Southern
Europe, have also experienced such bigotry.
African Americans have experienced enslavement, followed by racial segregation, and the
current reality of mass incarceration. Vestiges of Jim Crow are readily visible throughout this
country, especially within the sweltering ghettos and barrios of our cities. This is an important
historical context for understanding racial profiling and its employment within society.
The issue of racial profiling has raised many questions concerning the society’s commitment to
the rule of Page 118law and the protection of individual rights as provided within the
Constitution of the United States. This issue has gained greater salience in America in the wake
of the events of September 11, 2001 that gave impetus to an overwhelming focus on national
security both within and outside of government.
Scott Johnson suggests that racial profiling is a reasonable and appropriate response to the
challenges that confront the nation in its attempts to prevent crime and to maintain social order
effectively. In developing his argument in favor of profiling, Johnson contends that the data
available on crime rates and arrests by race do not support the claim of racially biased policing as
claimed by David Harris in “Profiles in Injustice: American Life Under the Regime of Racial
Profiling,” in Profiles in Injustice: Why Racial Profiling Cannot Work, and others. Johnson
views the opponents of racial profiling as undermining the effectiveness of law enforcement by
denying them such a tool. He claims that the restrictions upon profiling will impact
disproportionately upon the security of minority victims of crime. Thus, Johnson believes that
the profiling of members of certain groups as potential perpetrators of crime is reasonable and
effective. From his perspective, “better safe than sorry.”
Henderson and Lawson state that racial profiling, as a practice of law enforcement, is widespread
within local, state, and federal levels of policing throughout the United States. According to
them, prior to 9/11 “a national consensus had developed” to end the practice. This development
and consensus on the matter was interrupted by the events of 9/11 and the emerging “war on
terrorism,” which led to a spike in racial profiling. The emphasis on national security, counterterrorism, and efforts to control immigration in the wake of 9/11 contributed significantly to the
increase in the utilization of this practice.
The authors examined what they claim are harmful impacts of racial profiling, and present a
significant rebuttal to the assumptions that underlie support for this practice. They claim that
racial profiling does not contribute to effective law enforcement. They are also concerned that
racial profiling violates civil rights that are protected by the U.S. Constitution. Further, they are
concerned that racial profiling generates polarization between the police and minority
communities which they serve, thus leading to suspicion, distrust, and noncooperation. They
believe that a national consensus to ban racial profiling can be rebuilt at this time in history and
are determined to achieve that goal.
To place this issue in perspective, readers must confront the topics of race, crime, national
security, and criminal justice. How does our concern with effective law enforcement contribute
to racial profiling? Does the culture of police contribute to racial profiling? Is racial profiling
unequal treatment? Is the addition of minority police officers a solution to this problem? On the
other hand, is there an anti-police culture within the African American culture? In a case of
domestic terrorism, the actions of the Oklahoma City bomber in 1995, Timothy McVeigh, a
white American, did not result in racial profiling. What does this tell us about racial profiling?
Are members of antigovernment militias who congregate in remote areas of the country and
sharpen their military skills with live arms being targeted in accordance with a “white” profile?
How can America balance its egalitarian commitment with the profiling of Muslims?
Page 119
YES
Scott Johnson
Better Unsafe Than (Occasionally) Sorry?
David Harris is the University of Toledo law professor who provided much of the intellectual
heft behind the war on racial profiling. His 1999 report for the American Civil Liberties Union,
which has filed most of the anti-profiling law suits, was entitled “Driving While Black: Racial
Profiling on the Nation’s Highways.” In 2002 he expanded his argument into a book.
The national ruckus Harris helped stir up has, among other results, made it hard for security
personnel to use intelligent profiles to uncover potential terrorists in airports, at our national
borders, and at visa offices abroad. That is a mistake that has already come to haunt the U.S.
horribly…. And so long as anti-profiling crusaders prevent law enforcement officials from
carefully applying profiling tools, Americans will continue to be needlessly exposed to potential
re-runs of September 11.
Harris and his compatriots are clever enough to present themselves as friends of law
enforcement, who are just trying to help the police do a better job. Harris himself purports to
object to racial profiling mostly because it’s “ineffective.” But the reality is that he has launched
a broad and misguided attack on America’s law enforcement and criminal justice systems. Like
most of the activists who have turned the campaign against racial profiling into a crusade, Harris
practices a shoddy form of racial politics with which we have become all too familiar.
The thesis at the heart of the anti-profiling complaint—that racial disparities in crime rates and
arrests reflect racially biased policing—is torn to shreds by basic criminological data. David
Harris argues that crime rates are equal among racial groups, and arrests, convictions, and
incarcerations are unequal simply because police, prosecutors, and courts systematically pick on
minorities because of the color of their skin. The logic of his argument ends in a demand for
justice by racial quota.
The contention that crime is committed at equal rates by members of various ethnic groups is the
central premise of the ACLU’s anti-profiling argument. If that premise is false, their argument
fails. And the stakes are high. The issue of alleged ethnic discrimination by police has taken on a
heightened importance amidst the war on terrorism. Many of the profiling issues that began as
farce over traffic enforcement stops are now replaying themselves in the war on terror as
potential tragedies.
Contrary to the view of the world propounded by David Harris and the ACLU, racial disparities
in law enforcement generally reflect racial disparities in crime rates. It is true that racial
disparities exist at many stages of our criminal justice system. Blacks have been arrested,
convicted, and incarcerated at rates far exceeding those of whites for as long as official data on
the subject have been compiled. Middle Eastern Arabs have been disproportionately associated
with air terrorism for more than a generation.
These disparities have been studied for evidence of systematic discrimination, and it is now
widely accepted among serious scholars, such as Professor Michael Tonry of the University of
Minnesota Law School, that higher levels of arrests and incarceration in the U.S. by ethnicity
result substantially from higher levels of crime, not racial bias. Sometimes the magnitude of the
racial disparities in crime rates is huge. The black murder rate is seven to ten times the white
murder rate.
Harris claims that disparities in arrest and incarceration rates are a function of systemic law
enforcement bias. Finding that the best national data do not agree, he arbitrarily declares the data
wrong: Citing statistics from the National Crime Victimization Survey, he correctly states that
more than 50 percent of violent crimes are unreported. Harris then absurdly implies that it is
among these unreported crimes that the otherwise undetected white criminals are hiding.
Harris’s argument on this basic point does not reflect well on his methods. He makes such claims
not only against cops, but against all parts of our justice system. According to him, “Just as with
arrest statistics, incarceration rates measure not crime but the activity of people and institutions
responsible for determining criminal sentences.” In other words: Judges are racists too, just trust
me.
Page 120Harris implies that if law enforcers just weren’t so darn fixated on Arabs, blacks, and
other minority groups, officials would discover that comparable levels of crime and terrorism are
committed by whites, and just left unpunished. But we have statistics on the race of perpetrators
as identified by the victims of unreported crimes. And guess what? They closely track the racial
identity of perpetrators in reported crimes. Harris omits this inconvenient fact brought to light by
the National Crime Victimization Survey, even though he relies on that same survey to build
other parts of his argument.
The anti-profilers’ campaign against law enforcement is particularly bizarre and perverse given
that minorities are vastly more likely to be victims of crimes. What kind of “civil rights
campaign” prevents the police from incapacitating criminals who prey on minority groups? If
police flinch from law enforcement for fear of generating bad arrest data that will label them
racist, the great harm that follows will fall disproportionately on law-abiding residents of lowerincome neighborhoods.
The controversy over “racial profiling” originated in data regarding traffic stops and airport
searches that disproportionately affect blacks and ethnic minorities. In his book, Harris traces
profiling back to Operation Pipeline, the 1986 Drug Enforcement Administration effort to enlist
highway police in interdicting illegal drugs as they are transported by distributors on the nation’s
highways. Harris’s argument that Operation Pipeline resulted in unfair racial profiling by
highway patrollers in New Jersey, Maryland, and elsewhere is predicated on studies that falsely
assume there are no ethnic differences in driving behavior, and that all ethnicities violate traffic
laws at the same high rate. It is also based on the assertion that drug violations are roughly equal
across groups.
But a definitive study commissioned by the New Jersey attorney general and designed by the
Public Service Research Institute of Maryland found that on the New Jersey Turnpike blacks
speed twice as much as white drivers—and are actually stopped less than their speeding behavior
would predict. (The study was released after Harris’s book had been published.) Elsewhere,
Harris conflates statistics on drug use among racial groups (roughly equal) with statistics on drug
distribution (as far as we can tell, not close to equal). It is drug distributors that highway patrol
officers are seeking out, not drug users.
Several of the studies used by profiling opponents to indict police show nearly equal “hit” rates
between whites and blacks despite the fact that blacks were searched at higher rates. (Hit rates
are the rates at which searches result in the discovery of contraband.) In Maryland, “73 percent
of those stopped and searched on a section of Interstate 95 were black, yet state police reported
that equal percentages of the whites and blacks who were searched had drugs or other
contraband,” groused the New York Times. “Studies have shown that being black substantially
raises the odds of a person being stopped and searched by the police—even though blacks who
are stopped are no more likely than whites to be carrying drugs,” complained the New Republic
last year. What these statistically misleading statements overlook is that if the hit rates are about
equal, there is no discrimination. It appears the police are focusing on legitimately suspicious
behavior, and not simply picking on people by ethnicity.
The war on racial profiling has obscured two important facts: Racial profiling does not exist
where the ACLU has persuaded everyone it does, such as on the nation’s highways and streets.
And it does not exist where it should, in the nation’s airports and airlines.
Unfortunately, the facts have yet to catch up with the myths promoted by opponents of criminal
profiling. Many Americans—including many of our leaders in politics and law enforcement—
continue to treat profiling as illegitimate, as if it were disproved and discredited. That is the
product of a political campaign, not of scholarly research. And it is a policy which leaves
innocent Americans far more exposed to danger than they ought to be.
SCOTT JOHNSON is a conservative journalist and an attorney and fellow at the Clermont
Institute.
Johnson, Scott. “Better Unsafe Than (Occasionally) Sorry?” The American Enterprise, February
2003. Copyright © 2003 by American Enterprise Institute. Used with permission.
Page 121
Wade J. Henderson and Karen McGill Lawson
NO
Restoring a National Consensus: The Need to End Racial
Profiling in America
Executive Summary
Racial profiling—which occurs when law enforcement authorities target particular individuals
based not on their behavior, but rather on the basis of personal characteristics, such as their race,
ethnicity, national origin, or religion—is an unjust and ineffective method of law enforcement
that makes us less, not more, safe and secure. The practice is nonetheless pervasive and used by
law enforcement authorities at the federal, state, and local levels.
By way of example, a U.S. Congressman tells the Department of Homeland Security that
Muslims should be profiled at airports. A county sheriff conducts a sweep of an Arizona
Hispanic community that involves more than 100 deputies, a volunteer posse, and a helicopter. A
prominent African-American professor charges he was a victim of racial profiling after he was
arrested in his Massachusetts home.
In the months preceding September 11, 2001, a national consensus had developed on the need to
end “racial profiling.” The enactment of a comprehensive federal statute banning the practice
seemed imminent. However, on 9/11, everything changed. In the aftermath of the terrorist
attacks, the federal government focused massive investigatory resources on Arabs and Muslims,
singling them out for questioning, detention, and other law enforcement activities. Many of these
counterterrorism initiatives involved racial profiling.
In the 10 years since the terrorist attacks, the antiracial profiling consensus that had developed
prior to 9/11 evaporated and the use of racial profiling has expanded, not only in the
counterterrorism context, but also in the context in which it originally arose—the fight against
drug trafficking and other “street-level” crimes—as well as in the effort to enforce immigration
laws.
Now is the time to re-establish a national antiracial profiling consensus and take the steps
necessary to end the practice in all contexts at the federal, state, and local levels. The purpose of
this report is to assist in that effort.
In this report, we present quantitative and qualitative evidence to demonstrate the widespread use
of racial profiling in each of the three contexts referenced above—i.e., street-level crime,
counterterrorism, and immigration law enforcement. We also present evidence to show how
racial profiling in the counterterrorism and immigration contexts is encouraged by misguided
federal programs that incentivize law enforcement authorities to engage in the practice.
In the counterterrorism context, these problematic federal programs include the National Security
Entry-Exit Registration System (which requires certain individuals from Muslim countries to
register with the federal government, as well as to be fingerprinted, photographed, and
interrogated) and Operation Front Line (which allows federal law enforcement authorities to
target immigrants and foreign nationals for investigation in order to “detect, deter, and disrupt
terrorist operations”). The federal government claims that these programs do not involve racial
profiling, but the actions taken—from the singling out of Arabs and Muslims in the United States
for questioning and detention to the selective application of immigration laws to nationals of
Arab and Muslim countries—belie this claim.
In the immigration law enforcement context, the federal government has shifted significant
responsibility for the enforcement of civil immigration laws to state and local law enforcement
authorities through Agreements of Cooperation in Communities to Enhance Safety and Security
(known as ICE ACCESS programs). The most notable of these programs is the 287(g) program,
the stated purpose of which is to enable state and local law enforcement authorities to identify
suspected undocumented immigrants “who pose a threat to public safety.” Page 122In point of
fact, the 287(g) program has been widely misused by state and local law enforcement authorities
to stop, detain, question, and otherwise treat as suspected undocumented immigrants vast
numbers of persons—primarily Hispanics—most of whom are U.S. citizens or legal residents.
Although perhaps the most well-known, the 287(g) program is not the only ICE ACCESS
program that raises concerns about racial profiling. Other such programs include the Criminal
Alien Program (which involves an immigration screening process within federal, state, and local
correctional facilities to identify undocumented immigrants “who pose a threat to public safety”)
and the Secure Communities program (which allows local law enforcement authorities to run
fingerprint checks against Department of Homeland Security databases, not just FBI databases).
Federal inaction on comprehensive immigration reform has prompted a flurry of activity by state
lawmakers seeking to fill the void left by Congress. The most sweeping and controversial of
these state laws is Arizona’s S.B. 1070, which is widely seen as encouraging racial profiling.
This report makes the case against racial profiling by showing that the assumptions underlying
racial profiling—i.e., that certain crimes are more likely to be committed by members of a
particular racial, ethnic, national origin, or religious group, and that members of that group are
more likely than non-members to be involved in that type of criminal activity—are false. We
also demonstrate the devastating impact that racial profiling has on individuals, families, and
communities that are subject to the practice; and explain why racial profiling is in all contexts a
flawed law enforcement method that diverts and misuses precious law enforcement resources
and destroys the relationship between local law enforcement authorities and the people that they
must rely on in carrying out their law enforcement activities.
The End Racial Profiling Act of 2010 (ERPA 2010) was introduced into the House of
Representatives during the 111th Congress. The 111th Congress took no action on ERPA 2010,
and it died with the adjournment of that Congress on December 22, 2010. However, ERPA 2010
warrants continued attention because it provides an appropriate model for an anti-racial profiling
statute in the 112th Congress, addressed the major concerns about racial profiling expressed in
this report, and would have gone a long way toward ending the practice.
Finally, we offer recommendations that are designed to end racial profiling. The key point of
each of these recommendations—which are addressed to Congress, the president, Executive
Branch agencies, and civil and human rights organizations—is summarized below:
Congress

The 112th Congress should enact an anti-racial profiling statute modeled on ERPA 2010.
The President


The president should urge the 112th Congress to enact an anti-racial profiling statute
modeled on ERPA 2010, and make enactment of such a statute one of his administration’s
highest legislative priorities.
Pending enactment by Congress of an anti-racial profiling statute, the president should
issue an executive order that prohibits federal law enforcement authorities from engaging
in racial profiling or sanctioning the use of the practice by state and local law
enforcement authorities in connection with any federal program.
Executive Branch Agencies







The U.S. Department of Justice (DOJ) should revise its June 2003 guidance on racial
profiling to clarify ambiguities, close loopholes, and eliminate provisions that allow for
any form of racial profiling.
The DOJ Office of Legal Counsel should issue an opinion stating that the federal
government has exclusive jurisdiction to enforce federal immigration laws, and should
rescind its 2002 “inherent authority” opinion, which takes a contrary position.
The DOJ Civil Rights Division should make the remediation of racial profiling a priority.
The U.S. Department of Homeland Security (DHS) should terminate the 287(g) program.
DHS should suspend operation of the Criminal Alien Program, the Secure Communities
Program, and other federal programs pursuant to which authority to engage in the
enforcement of federal immigration laws has been delegated to state and local law
enforcement authorities, until a panel of independent experts has reviewed the programs
to ensure that they do not involve racial profiling.
DHS should terminate the National Security Entry-Exit Registration System.
Other federal counterterrorism programs, including Operation Front Line, should be
reviewed by a panel of independent experts to ensure that they do not involve racial
profiling.
Civil and Human Rights Organizations

Civil and human rights organizations should urge the 112th Congress to enact an antiracial profiling Page 123statute modeled on ERPA 2010, and provide the American
public with accurate information about racial profiling.
Introduction and Background
During a February 2011 hearing of the U.S. House of Representatives Homeland Security
Committee, Rep. Paul Broun, R. Ga., told U.S. Department of Homeland Security (DHS)
Secretary Janet Napolitano that he recently went through screening at an airport in front of a man
that was of “Arabian, or Middle Eastern descent.” According to Broun, neither the man nor
Broun was patted down; but behind the man was an elderly woman with a small child, both of
whom were patted down. “This administration and your department seems to be very adverse to
focusing on those entities that want to do us harm,” Broun stated. “And the people who want to
harm us are not grandmas and it’s not little children. It’s the Islamic extremists … I encourage
you to maybe take a step back and see how we can focus on those people who want to harm us.
And we’ve got to profile these fellas.”
Sheriff Joe Arpaio of Maricopa County, Arizona, has received widespread attention for his stops
of Hispanic drivers and sweeps of Hispanic communities in an attempt to identify undocumented
immigrants. In April 2008, in the most notorious of his neighborhood sweeps, more than 100
deputies, a volunteer posse, and a helicopter descended upon and terrorized a community of
approximately 6,000 Yaqui Indians and Hispanics, in an attempt to identify undocumented
immigrants. By the end of the two-day operation, only nine undocumented immigrants were
arrested. In addition to his profiling of drivers and neighborhoods, Arpaio has also led raids on
area businesses that employ Hispanics.
On July 16, 2009, James Crowley, an 11-year police department veteran responded to a 911 call
reporting a possible break-in at a home on Ware Street in Cambridge, Massachusetts. The
address, Crowley would later learn, was the home of Harvard professor Henry Louis Gates, Jr.,
one of the most prominent African-American scholars in the United States. Within a few minutes
of Crowley and Gates’ encounter, Crowley had arrested Gates for disorderly conduct and placed
him in handcuffs at his own home. Gates charged that he was a victim of “racial profiling,”
claiming that the actions of the police were dictated by the fact that he was African American,
and that they would have behaved differently if he were White. The Cambridge Police
Department denied the charge, asserting that its actions were prompted by Gates’ confrontational
behavior.
Because of Gates’ prominence, this particular incident captured the attention of the media and
sparked a much-needed national dialogue about racial profiling in America. Though the national
dialogue may not have resolved the narrow question of whether Gates was or was not a victim of
racial profiling, it provided ample support for the broader proposition that racial profiling is
pervasive and used by law enforcement authorities at the federal, state, and local levels. As
President Obama put it during a nationally televised press conference on July 24, 2009, “What I
think we know—separate and apart from [the Gates] incident—is that there is a long history in
this country of African Americans and Latinos being stopped by law enforcement
disproportionately, and that’s just a fact.” Lt. Charles Wilson, chairman of the National
Association of Black Law Enforcement Officers and a 38-year veteran of law enforcement,
stated that “[t]his is an issue that occurs in every single place in this country.” The factors that
account for this troubling reality provide a framework for the analysis in this report and are
summarized below.
For years, African Americans, Hispanics, and other minorities complained that they received
unwarranted police scrutiny in their cars and on the streets, yet their complaints were routinely
ignored. By early 2001, this had changed. Rigorous empirical evidence developed in civil rights
lawsuits and studies of law enforcement practices revealed that the so-called “Driving While
Black or Brown” phenomenon was more than anecdotal. Minority drivers were in fact stopped
and searched more than similarly situated White drivers. The data also showed that minority
pedestrians were stopped and frisked at a disproportionate rate, and that, in general, federal, state
and local law enforcement authorities frequently used race, ethnicity, and national origin as a
basis for determining who to investigate for drug trafficking, gang involvement, and other
“street-level” crimes.
Polls showed that Americans of all races, ethnicities, and national origins considered racial
profiling widespread and unacceptable. Government actions and words mirrored the public’s
concern about the practice. In the mid-1990s, the Civil Rights Division of the U.S. Department
of Justice entered into far-reaching settlement agreements in response to racial profiling by
certain state and local law enforcement agencies, including the New Jersey State Police and the
Los Angeles Police Department. Many states and localities instituted data collection and other
requirements to address disparities in law enforcement based upon race and other personal
characteristics. And, in 1996, the U.S. Supreme Court held that the Equal Protection Clause of
the Constitution “prohibits selective enforcement of the law based on considerations such as
race.”
Page 124By early 2001, concerns about racial profiling were voiced at the highest levels of the
federal government. Then-Attorney General John Ashcroft publicly condemned racial profiling,
and on February 27, 2001, President Bush told a joint session of Congress that the practice was
“wrong and we will end it in America.”
Backed by a strong national consensus to end racial profiling, on June 6, 2001, Sen. Russell
Feingold, D. Wisc., and Rep. John Conyers, D. Mich. introduced the bipartisan End Racial
Profiling Act of 2001, and the enactment of a comprehensive federal anti-racial profiling statute
seemed imminent.
However, on September 11, 2001, everything changed. The 19 men who hijacked airplanes to
carry out the attacks on the World Trade Center and the Pentagon were Arabs from Muslim
countries. The federal government immediately focused massive investigative resources and law
enforcement attention on Arabs and Muslims—and in some cases on individuals who were
perceived to be, but in fact were not, Arabs or Muslims, such as Sikhs and other South Asians. In
the years that followed, the federal government undertook various initiatives in an effort to
protect the nation against terrorism. The federal government claimed that these counterterrorism
initiatives did not constitute racial profiling, but the actions taken—from the singling out of
Arabs and Muslims in the United States for questioning and detention to the selective application
of immigration laws to nationals of Arab and Muslim countries—belie this claim.
More recent initiatives by federal, state, and local law enforcement authorities to enforce
immigration laws have further encouraged racial profiling. Immigration and Customs
Enforcement (ICE) within DHS has shifted significant responsibility for the enforcement of civil
immigration laws to state and local law enforcement authorities. And many state and local law
enforcement authorities misuse these programs—particularly the Delegation of Immigration
Authority, known as the 287(g) program—to stop, detain, question, and otherwise target
Hispanics and other minorities as suspected undocumented immigrants, although most of them
are U.S. citizens or legal residents. Federal inaction on comprehensive immigration reform has
prompted some states to undertake initiatives of their own—including most notably Arizona’s
S.B. 1070, which is widely seen as encouraging racial profiling.
The short of the matter is this: The anti-racial profiling consensus that had developed prior to
9/11 evaporated in the aftermath of the terrorist attacks, and the use of racial profiling—in the
street-level context in which it originally arose, and in the new contexts of counterterrorism and
immigration law enforcement—has expanded in the intervening years.
During the 2008 presidential campaign, candidate Barack Obama promised that, if elected,
“Obama and [vice presidential running mate Joe] Biden will ban racial profiling by federal law
enforcement agencies and provide federal incentives to state and local police departments to
prohibit the practice.” During his 2009 confirmation hearing, Attorney General Eric Holder
similarly declared that racial profiling was “simply not good law enforcement,” and that ending
the practice was a “priority” for the Obama administration. Now is the time for the Obama
administration to make good on these promises and take the steps necessary to end racial
profiling in all contexts at the federal, state, and local levels.
The purpose of this report is to assist in the effort to end racial profiling. In the chapters that
follow, we explain what does and does not constitute racial profiling (Chapter II); examine
quantitative and qualitative evidence regarding the use of racial profiling in the street-level
crime, counterterrorism, and immigration law enforcement contexts (Chapter III); debunk the
assumptions that are advanced in an effort to justify racial profiling, and discuss the devastating
consequences of racial profiling for persons and communities that are subject to the practice and
its adverse impact on effective law enforcement (Chapter IV); review the End Racial Profiling
Act of 2010, which was introduced in the House of Representatives during the 111th Congress
and died with the adjournment of that Congress on December 22, 2010, but which provides an
appropriate model for an anti-racial profiling statute in the 112th Congress (Chapter V); and
conclude with recommendations designed to end racial profiling in America (Chapter VI).
WADE J. HENDERSON is an attorney and president of the Leadership Conference on Civil and
Human Rights. KAREN MCGILL LAWSON is executive vice-president and chief executive
officer of the Leadership Conference on Civil and Human Rights.
Henderson, Wade J.; McGill Lawson, Karen. “Restoring a National Consensus: The Need to End
Racial Profiling in America,” The Leadership Conference, March 2011. Copyright © 2011 by
The Leadership Conference. Used with permission.
Page 125
EXPLORING THE ISSUE
Is Racial Profiling Defensible Public Policy?
Critical Thinking and Reflection
1. Explain the significance of referring to the U.S. Constitution for discussing and analyzing
this issue.
2. What do you think is meant by the term “shopping while black”?
3. What do you think is meant by the term “driving while black”? Connect these terms with
racial profiling.
4. How can profiling exist in a post-racial America?
Is There Common Ground?
The debate over racial profiling serves to illuminate a major division in American politics
between the advocates of human rights and individual liberties and others who are willing to
relinquish the protection of certain rights in the interests of law and order and national security.
Racial minorities tend to view such policies as unwarranted assaults on their human dignity, and
counterproductive to achieving the goals of the war on drugs, crime, and terrorism. Others are
concerned that instead of promoting national security, this policy has alienated minorities and
immigrant groups, and has raised serious concerns around the world. There is a growing
perception within the international community that racial profiling is compromising the U.S.
government’s commitments to the role of law and to equal rights and social justice.
It is difficult to find common ground in the examination of this issue presented by Scott Johnson
and Henderson and Lawson. Both sides agree that racial profiling is a practice that is engaged in
by law enforcement. Also, they recognize that racial profiling is a controversial methodology
employed by police that has attracted increasing scrutiny and criticism within our society.
However, they tend to disagree on significant aspects of the treatment of this issue presented in
their articles.
There is a significant divergence in the views presented by Johnson and these critics in their
assessment of racial profiling. They disagree on the scope of this practice within law
enforcement across the nation. There is also disagreement over the effectiveness of racial
profiling as a method of policing. Additionally, there is no convergence of the views expressed
by these analysts concerning the impact of racial profiling upon African Americans and other
minority communities, and the American society as a whole.
Currently, the American nation is facing the development of a major social protest movement led
by Black Lives Matter that is illuminating police killings of unarmed black citizens and other
injustices faced by people of color within the nation’s criminal justice system. The pressure to
effect meaningful criminal justice reform is growing in intensity across the nation. Time will tell
whether racial profiling can withstand this increasing scrutiny and demands for reform in law
enforcement practices and policy within the United States.
Additional Resources
Edwards, Sue Bradford, and Duchess Harris. 2016. Black Lives Matter (Essential Library, an
imprint of ABDO Publishing).
Epp, Charles R., Steven Maynard-Moody, and Donald P. Haider-Markel. 2014. Pulled Over:
How Police Stops Define Race and Citizenship (University of Chicago Press).
Glover, Karen S. 2009. Racial Profiling: Research, Racism, and Resistance (Rowman &
Littlefield).
Hanson-Harding, Alexandra. 2016. Are You Being Racially Profiled? (Enlsow Publishing).
Harris, David A. 2002. Profiles in Injustice: Why Racial Profiling Cannot Work (New Press).
Heumann, Milton, and Lance Cassak. 2003. Good Cop, Bad Cop: Racial Profiling and
Competing Views of Justice (P. Lang).
Kimora. 2015. Ethnic Profiling: A Modern Framework (International Debate Education
Association).
Merino, Noel, ed. 2015. Racial Profiling (Greenhaven Press, a part of Gale, Cengage Learning).
Page 126Nelson, David Erik, ed. 2009. Racial Profiling: Opposing Viewpoints (Greenhaven
Press).
Shelden, Randall. 2007. Controlling the Dangerous Classes: A Critical Introduction to the
History of Criminal Justice, 2nd ed. (Pearson).
Thompson-Miller, Ruth, Joe R. Feagin, and Leslie Houts Picca. 2015. Jim Crow’s Legacy: The
Lasting Impact of Segregation (Rowman & Littlefield).
Zack, Naomi. 2015. White Privilege and Black Rights: The Injustice of U.S. Police Racial
Profiling and Homicide (Rowman & Littlefield).
Internet References …
This is the website for the National Institute for Justice. The NIJ is dedicated to improve
knowledge and understanding of crime and justice issues through science. It offers an
excellent statement about “Race, Trust, and Political Legitimacy.”
http://www.nij.gov/topics/law-enforcement/legitimacy/pages/welcome.aspx
This is the website for the American Civil Liberties Union. The ACLU works to defend
individual rights and liberties guaranteed by the U.S. Constitution.
https://www.aclu.org/
This is the website for the Leadership Conference (“The Nation’s Premier Civil and
Human Rights Coalition”). It offers a link to “The Guidance Regarding the Use of Race By
Federal Law Enforcement Agencies” that was issued by the U.S. Department of Justice in
2003.

Home

Race Still Matters
T
he people of modern societies are conditioned to believe in the existence of different races.
It is routine within American society and throughout the world to hear references to “the white
race, the black race, and other color-coded races.” It is an article of faith within prevailing
systems of belief that these distinct races exist. However, a critical examination of the evolution
of the concept of race and its application within society reveals that “race” evolved as a
biological concept. Members of society who are interested in developing a more advanced
understanding of “race” concluded that humans are members of a number of different,
separate, and distinct races. The evidence upon which they base their claim was physical in
nature and included characteristics such as hair texture, skin color, prognathism, and cranial
configuration. These were the criteria that were employed to place human beings within
separate, distinct racial categories. Today, we continue to accept the existence of these colorcoded races without question. The vocabulary remains unchanged.
At a time when an African American is the president of the United States, one may find it
difficult to accept that race still matters in this country. Issues of race have challenged the
nation from the colonial era to the present. Traditionally, race developed as a biological
concept. The criteria that were established to place human beings within distinct racial
categories were biological in nature and included such features as skin color, prognathism, and
cranial configuration, among others. As a result of research and scientific discovery, including
the Human Genome Project that is currently under way, the biological basis of racial categories
has been refuted. Despite the scientific evidence to the contrary, it is unlikely that we will be
able to wean Americans and others from their belief that separate but distinct races do exist.
Yet, the idea of race has been retained as a social construction that provides a basis for
distinguishing and treating human groups other than one’s own differently and most often
unequally. Clearly, race still matters. How does it matter? Race affects where one lives, goes to
school, and worships. Race is a significant factor in the distribution of income and wealth. Race
is a factor in terms of crime and punishment. Race influences one’s life chances. There are so
many recent developments that indicate how salient race still is in influencing intergroup
relations. Some conservatives and libertarians have questioned the sanctity of the Fourteenth
Amendment, which serves as the basis for African American citizenship. Similarly, some have
challenged the public accommodations clause of the Civil Rights Act of 1964 and asserted that
proprietors should have the right to deny service to whomever they please. How will such
thinking and proposals impact race relations? It should also be noted that civil rights advocates
are concerned with certain legislative initiatives that they believe have the potential to reverse
some of the racial progress that has been achieved. With all of these developments and
concerns in mind, one can conclude that race still does matter.
Readers should be reminded that placing groups in the category of the “other” can have
destructive impacts upon societies, especially in the areas of inter-group relations. The
potential outcomes of this tendency to categorize out-groups in negative terms can lead to
stereotyping, prejudice, and discrimination. These phenomena are significant sources of the
racial, ethnic, and class-related inequalities that currently confront the nation. The issues in
this unit explore the persistence of the tendency to engage in racial categorization and racism
within American society.
Is Racism a Permanent Feature of
American Society?
YES: Linda Greenhouse, from “The End of Racism, and Other Fables,” New York
Times (2000)
NO: Russell Niele, from “‘Postracialism’: Do We Want It?” Princeton Alumni Weekly
(vol. 110, no. 7, January 13, 2010)
Learning Outcomes
After reading this issue, you will be able to:


Develop a sophisticated understanding of the influence of racism in the
development of American society.
Develop a conceptual distinction between discrimination and racism.




Comprehend different forms of racism, including individual and institutional
racism.
Understand the reification of racism.
Explain Niele’s idea of a post-racist society.
Understand why Niele promotes meritocracy as a goal.
ISSUE SUMMARY
YES: Linda Greenhouse writes on the Supreme Court for the New York Times. A
Pulitzer Prize winner in 1998, she also teaches at Yale Law School. Greenhouse is
author of The U.S. Supreme Court: A Very Short Introduction and Becoming Justice
Blackmun. In her review of Derrick Bell’s Faces at the Bottom of the Well: The
Permanence of Racism, Greenhouse points out that Bell believes that the prospects
for achieving racial equality in the United States are “illusory” for blacks.
NO: Russell Niele, a lecturer in politics at Princeton, works for the Executive
Precept Program sponsored by Princeton’s James Madison Program. He has
written on affirmative action and the origins of an urban black underclass. Niele
argues that American society is moving toward a meritocracy, which is post-racist
(not post-racial). For him, race, ethnicity, and religious identity are less
determinant than they were in earlier American history.
T
he persistence of ideological and institutional racism within the United States has given
rise to a debate over the prospects for ridding American society of this glaring contradiction.
On one side of this debate are those who believe that a proper examination of the American
experience and the treatment of African Americans and other peoples of color throughout
history lead to the conclusion that racism is unlikely to be eroded in this country and will
continue to challenge the American creed. The other side comprises those who advance the
more optimistic view concerning race relations within the United States. Members of this
camp claim that the destructive impact of racism is declining in this country, and that any
lagging progress of African Americans is due to factors other than racial discrimination.
Page 130 Racist
ideology has been employed throughout the nation’s history in
attempts to justify institutional policies and practices such as slavery and segregation.
Despite the substantial efforts of supporters of a racially egalitarian society, the reification
of racism is a continuing reality of this nation.
In her article concerning this issue, Linda Greenhouse discusses and assesses the
contributions of the late Derrick Bell to the scholarship and discourse on race and racism on
America. She states that “both in his writing and by his actions, Mr. Bell, one of the country’s
most prominent scholars of race and the law, has spent years trying to bring this message
both to other blacks and to the white-majority institutions in which he has worked.”
Bell believes that race consciousness is so embedded in whites that it is virtually
impossible to rise above it. He argues that “few whites are able to identify with blacks as a
group” and tend to view them through “comforting racial stereotypes.” Bell cites a number
of examples of the destructive impact of racial bonding among whites upon blacks’ efforts
to progress within society. He points out that even poor whites have tended to support
institutions such as slavery and segregation rather than coalescing with blacks to fight
against common class-based social disadvantages such as unemployment and poverty.
Given this record of race relations, it is impossible for Bell to accept the claim that racism
has been largely overcome in the United States. To the contrary, he feels strongly that a
critical and proper examination of the history of black–white relations supports the
conclusion that racism is a permanent feature of American society.
In the YES selection, Greenhouse points out that Bell is not alone among black scholars
and social justice advocates who believe that blacks will never gain equal standing with
whites in this country. For him the legacy of institutional discrimination that was reflected
in slavery continues through the exclusionary policies of racial segregation that has left
blacks “at the bottom of the well.” Additionally, Bell views certain roles that blacks play in
the society, such as the scapegoat, as contributing to the permanence of racism. Who will
play these roles? He also views the color-coded perceptions and behaviors that dominate
social interaction between the “races” as so culturally imbedded as to be virtually impossible
to overcome.
In the NO selection, Russell Niele does not agree with Bell that racism is a permanent
strain of the fabric of American society. Niele believes that America is moving toward a
meritocracy based on talent and hard work, which neutralizes racism. Thus, he opposes
Bell’s position that racism is a permanent feature of American society. Niele views American
society as post-racist. Traditional forms of identity, in his view, are less determinant of
opportunity for social advancement today than they were in earlier American history. He
cites progress within the institutions of society that have been achieved by blacks and other
minorities as strong evidence of a post-racist America.
The reader would benefit from expanding his or her perspective for dealing with the
issue to include ideas and concepts dealing with social and cultural values. This is a debate
in itself. That is, do structural conditions such as racism, discrimination, and lack of
opportunity lead to inequality and poverty? Or, is poverty attributed to individual factors
including socialization and value formation? Bell makes a structural argument to explain the
permanence of racism. Niele cites Harvard sociologist, William Julius Wilson’s thesis of the
declining significance of race, which is reflected in more opportunities for formal education,
including higher education leading to significant social and economic advantages. Niele
places more emphasis on the individual, hence his argument for meritocracy.
Racism has played a major role in the formation and ongoing development of the
American society. Given this existential reality, it is not difficult to understand that some
observers and analysts of American race relations, when confronted with the inequality that
persists between blacks and whites in society, would blame this phenomenon on racial
discrimination. Those who support this argument view racism as a continuing and
permanent reality of American society.
In reconsidering their views on this issue, it is important that students analyze the
revelations of persistent racism that have received expansive media coverage recently. They
have observed the persistent racism that impacts some law enforcement officers in their
treatment of blacks and other minorities, and the pervasive racial inequality within the
criminal justice system. The disturbing images of unarmed black men and others being shot
by police officers have raised serious questions concerning the quest for racial equality in
America.
American presidents who have addressed the state of race relations in the United States
have tended to state some variant of the following assessment: we have made significant
progress but that we have a long way to go. Even President Obama, the nation’s first African
American president, acknowledges that substantial racial progress has been made in the
United States. His election is a Page 131 testament to this fact. However, he does not
embrace the claim that the United States has become a post-racial society, that is, a society
where racial egalitarianism is the organizing principle of race relations. Considering this
point, students are reminded that the idea of meritocracy has been more of an ideal than a
reality for the African American experience. Prior to the civil rights era, the nation was
challenged to apply the meritocratic ideal. Americans continue to struggle to achieve the
vision of an egalitarian society.

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