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Context Is Everything with Racial Profiling

No one would think it wrong to use profiling to screen for Bin Laden.

January 27, 2002|PETER H. SCHUCK | Peter H. Schuck is the Simeon E. Baldwin professor at Yale Law School and the author of "The Limits of Law: Essays on Democratic Governance."

NEW HAVEN, Conn. — Every day brings new headlines about racial or ethnic profiling. A Secret Service agent who guards the president is not permitted to board an airplane because he is Arab American and cannot satisfy the screeners about his identity. Two white New Jersey state troopers plead guilty to shooting into a van containing four men--three blacks and one Latino--after being instructed to single out such people as drug suspects. These shameful incidents shock our sense of justice. Can anything be said for profiling in a democratic society of equal citizens?

Let's begin with our values as a society. We should be wary of claims that we must sacrifice our ideals in the name of national security. The ideal most threatened by profiling is the equality of all individuals before the law. Differential treatment must meet a burden of justification--in the case of racial classifications, a very high one. Government may not treat individuals arbitrarily, but must base its actions on information reliable enough to justify its exercise of power over them.

How good must the information be? The law's answer is that it depends. Criminal punishment requires proof beyond a reasonable doubt, while a tort judgment demands only the preponderance of the evidence. Health agencies must often act with little more than a rational suspicion that a substance might be dangerous. Information good enough for one kind of decision, then, is not nearly good enough for others. The same police officer needs better information for an arrest than for a traffic stop. Context is everything.

So, what should the airport screener do? What would we do in his or her place? Each day, we all face choices that are similar in structure, albeit far less consequential. We must make decisions rapidly about things that matter to us. We know our information is inadequate to the choice, but we also know that we cannot, in the time available, get information that is significantly better. We might make errors of different kinds and know that some would be worse than others. Because we must momentarily integrate all this uncertainty into a concrete choice, we resort to shortcuts. The most important and universal of them is the stereotype, which, by economizing on information, enables us to decide quickly to inadequate information. This problem of limited information is so ubiquitous that we scarcely notice how often we use stereotypes to solve it.

We could not live without stereotypes. They help us predict how others will behave (we assume blacks will vote Democratic, though many do not) and to anticipate what others want (we offer help to disabled people, though some of them find this intrusive). They alert us to possible danger, as when a large, unkempt, angry-looking man approaches us on a dark street (though he may simply be asking directions). Such assumptions are especially important in a mass society where people know less and less about one another.

Stereotypes have an obvious downside: They are sometimes wrong, as my examples show. After all, if they were wrong all the time, no rational person would use them, and if they were never wrong, they would be indisputable facts, not stereotypes. Stereotypes fall somewhere in between these extremes, but it is hard to know precisely where, because we seldom know precisely how accurate they are. Most are probably correct much more often than not; that is why they are useful. But when a stereotype is wrong, those who are exceptions to it naturally feel they have not been treated equally as individuals. They are right, and we share their sense of injustice. When their indignation is compounded by official discourtesy, animus or violence (as in New Jersey), the wound is deeper still.

This is where the law comes in. When we view stereotype-based injustices as sufficiently grave, we prohibit them. Even then, however, we do so only in a qualified way that expresses our ambivalence. Civil rights law, for example, proscribes racial, gender, disability and age stereotypes. Yet it allows some public-interest or business reasons to justify them. Religious groups can hire only co-religionists. Officials drawing legislative districts can, to some extent, treat all members of a minority group as if they all had the same political interests. The military can bar women from certain combat roles. Employers can assume that women are usually less suitable for jobs requiring heavy lifting. Such stereotypes are thought to be reasonable in general, though false as to particular individuals.

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