- The Washington Times - Sunday, August 14, 2005

Profiling is constitutional

The New York Civil Liberties Union has sued to stop police from randomly searching some New York City subway riders, charging that it might lead to racial profiling (“Timid on terrorism,” Commentary, Aug. 4). But racial profiling — considering race or ethnicity in determining whom to search — is itself constitutional if done in accordance with guidelines the U.S. Supreme Court has laid down.

The court has frequently held that the government may consider race if it is reasonably necessary to further a “compelling state interest.” Recently, it found that race could be considered in college admissions. Obviously, the government’s interest in protecting the lives of thousands of citizens from a major terrorist attack is at least as “compelling” as a better college education. In other words, because preventing another major terrorist attack is obviously a very “compelling state interest,” some reasonable use of ethnicity is permitted.

The court also has held that ethnicity cannot be the controlling factor, but must be considered along with other criteria. These other criteria might include dress (e.g., wearing heavy clothing in warm weather, carrying a backpack with visible wires, etc.), behavior (e.g., nervousness or inappropriate sweating, absence of eye contact, pacing, etc.) or age.

Most Arabs — even most young Arab males — aren’t terrorists, but neither are all people who appear nervous, wear heavy clothing or pace. Using ethnicity — along with gender and age — as one of several factors is arguably much more likely to find and stop a terrorist than searches that include as many elderly black men and middle-aged Chinese and Caucasian women as young Arab males.

Most women over 40 don’t have breast cancer, but we concentrate our scarce resources searching for breast cancer among that group — rather than among younger women or even men — because the likelihood of finding it among them is much greater.

Police seeking to prevent organized extortion by Chinese triad gangs would logically tend to question young Asian men, and few would argue that they must evenhandedly seek out blacks or Hispanics in their investigations.

Similarly, in conducting searches designed to stop terrorist attacks by Muslim extremists, its hard to see how using ethnicity as only one of many factors would be unconstitutional.


Professor of public interest law

George Washington University Law School


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