When Racial Profiling Is Appropriate

When my older brother, who like me is a native-born American citizen of Indian ancestry, told me last week that he was mistaken for an Arab and hassled by some construction workers, my first reaction was small-minded. I didn’t express regret that innocent Arabs in America face suspicion and hostility because of the terrorist attacks in New York and Washington. Instead, I thought how stupid it was that the workers couldn’t tell an Indian from an Arab. Racial discrimination can be quite indiscriminate. Ironically, it would be a good thing if more of us--Indians, Pakistanis, Asians, Europeans, etc.--could put ourselves (or be placed) in the shoes of Arab Americans.

Racial profiling is such a vexing issue because its use of race is not totally irrational. As Professor R. Richard Banks has pointed out, nobody objects to police taking into account a suspect’s race when it is provided by a witness to a crime. While this use of race seems harmless enough, even it singles out certain persons, including the innocent, for special investigation and suspicion. When abused, this sort of profiling can serve as a pretext for old-fashioned racism.

Racial profiling is a much-talked about subject in the wake of the attacks because a person’s Middle Eastern ethnicity to some extent may correlate with his citizenship status or his affiliation with certain terrorists or terrorist organizations, either of which can lead to a federal investigation. The key question, both legally and morally, is whether the same race-based measures being considered to enhance security would be on the table if the terrorist attacks had been linked, not to brown-skinned Arabs, but to some racially identifiable and numerically manageable white group. If the hijackers had been 19 young neo-Nazis based in Sweden, would we be treating tall, blue-eyed, extremely light-skinned and fair-haired young men with public and private suspicion? Would we be listening for their foreign accents? Peering over their shoulders to see what they are reading?

If yes, people’s attitudes today would, at some important level, be race neutral, since we would be willing to treat all races equally, or should I say equally suspect. Yet, how do we know how we would react if a different and less dark ethnic or racial group were tied to a terrorist act?

First, we should focus on the kind of burden that members of the targeted racial group might suffer. Consider the various proposals discussed in a recent CNN/USA Today/Gallup poll. Fifty-eight percent of Americans favored “more intensive security checks” for persons (including American citizens) of Arab descent; 49% favored “special ID” cards for such people; and 33% backed special surveillance.

Checking someone’s driver’s license or knapsack extra carefully and asking him a few more questions at an airport-security checkpoint is very different from a prolonged custodial interrogation or denying him a seat on a plane. Forcing only one racial group to carry special ID cards would impose a huge psychological burden on its members; history provides many examples of that. And what is meant by special surveillance? Observation in public places is one thing; phone and e-mail taps are another matter entirely. In general, the larger the burden we would impose, the less likely we would impose it on ourselves if racial roles were reversed.

We should also determine if race is simply a factor among many or is the primary one. Using race as a tie-breaker to winnow suspects is very different from using race to subject great numbers of people to aspersion and indignity. For example, police use of a witness statement declaring a perpetrator “Latino” is very different--and more dangerous--than using one that describes the criminal as “Latino, 5 feet, 8 inches, 160 pounds, wearing blue jeans and a red polo shirt, and bearing a tattoo on his left wrist.”

If there are time and space limits on the use of racial profiles, they may seem more reasonable and less gratuitously burdensome. For example, if there were a specific and credible threat that members of Al Qaeda, Osama bin Laden’s terrorist organization, were planning to hijack more commercial airliners on a particular day, then more extensive use of racial profiling on that day in U.S. airports would be in order. But since America’s “new war” against terrorism is one of indefinite duration and scope, we must ask whether we would all be willing to impose on ourselves an indefinite race-based burden of inconvenience and stigmatization.

We should also ask whether there are things we could do to minimize the insult of the burden we would impose on an ethnic or racial minority by profiling them. Sometimes, that means extending the inconvenience to greater numbers. For example, asking all airport passengers a few more questions will waste some time, but it will also blunt the feelings of unequal treatment suffered by racial minorities. Similarly, a national ID card for everyone would surely be a better, and more constitutionally just, solution than “special” ID cards for selected groups.

And when we single out a racial group as threatening, there are still things we can do to show respect. For example, if airport officials apologized to all dark-skinned persons for aggressive questions, that would help. Even a token compensation, like free movie headsets, might remove some of the sting. So, too, would involvement of leaders of the affected minority communities in crafting solutions--even racial-profile solutions--to these vexing problems.

All these factors help us discern the social meaning of a racial profile and the intent and sensitivity behind it. In that way, they better enable us to answer the question: “Would we do this to whites?”

Finally, because government is answerable to the people in a way corporate America is not, we might trust government to use the dangerously blunt weapon of race more than, say, Delta Airlines or Wal-Mart. So, if decisions are to be made about removing people from planes or department stores, those decisions should be made by public officials, not private employees. But we must also remember that some private organizations, or individuals, may have a constitutional right to discriminate on the basis of race as a means of expressing themselves. Racial profiling in dating, for example, is common and somewhat accepted.

The important point is that racial profiling is very complicated stuff, and we must be nuanced, careful and, most of all, even-handed in how we approach it. Sometimes, this may mean that Middle Easterners--and those of us who are sometimes mistaken for them--will bear some race-based burden. But before we go down that road, we must ask: What if it were I?