Racial Profiling: Civil Liberties v. Civil Rights
By Allie Ruiz ’28
In 2013, Amnesty International, a global human rights organization, found that 1 in every 3 Americans were vulnerable to racial profiling by law enforcement (1). In addition to the 41% of Black Americans who report being stopped by police due to their race (2), Latino, Indigenous, and Middle Eastern individuals also experience more police encounters than their white counterparts (3). In fact, empirical evidence from the Leadership Conference on Civil Rights Education Fund (LCCREF) reveals that race is “often the decisive factor in law enforcement decisions regarding whom should be searched and questioned (4).”
Following the 9/11 terrorist attacks, the PATRIOT Act of 2001 intensified racial profiling of Middle Eastern individuals with the objective of protecting national security. The PATRIOT Act “enhance[d] law enforcement[‘s] investigatory tools” under the supposed purpose of “deter[ing] and punish[ing] terrorist acts (5).” Yet, attorney Yevgenia Kleiner wrote for the Boston College Law Review that the PATRIOT Act placed civil liberties “on the proverbial ‘back burner’ (6).” For instance, the legislation enabled federal agents to “investigate American citizens for criminal matters without probable cause of crime” by characterizing such investigation as for “intelligence purposes (7). In fact, in less than two years after its enactment, the Office of the Inspector General had received 1073 complaints of civil rights or civil liberties violations under the PATRIOT Act (8).
These complaints were not unfounded. In 2003, Attorney General John Ashcroft admitted that law enforcement committed civil liberty violations when enforcing the PATRIOT Act (9). Although the Supreme Court established probable cause as a necessary condition for a warrantless search in Aguilar v. Texas (1964), Ashcroft confirmed that, when carrying out the PATRIOT Act, law enforcement were held to a standard “lower than probable cause (10).”
Lowering the threshold for sanctioned search and seizure enabled racial bias to infiltrate anti-terrorism efforts. For instance, LCCREF found that over eight thousand Arab men were questioned for anti-terrorism efforts in the aftermath of 9/11 (11). However, “the only link drawn by the federal government between terrorism and the interviewees was that the men were all Middle Eastern (12).”
The repercussions of the PATRIOT Act persist today. In 2022, the Arab American Action Network found that 76.8% of the Chicago Police Department’s Suspicious Action Reports were made for people of color with 53.6% of the total reports having been made regarding individuals who were described as “Arab,” “Muslim,” “Middle Eastern,” or “olive-skinned (13).”
Law enforcement’s search for undocumented migrants similarly results in rampant racial profiling. In 2012, the Supreme Court upheld a provision under Arizona’s Senate Bill 1070—“Support Our Law Enforcement and Safe Neighborhoods Act”— that allowed police officers to check individuals’ immigration status given “reasonable suspicion” that they were residing in the United States without proper documentation (14). Similar laws then emerged in Utah, South Carolina, Alabama, Indiana, and Georgia (15). However, given that one’s immigration status has no universal “look,” granting police officers the liberty to determine “reasonable suspicion” of undocumented status enables racial and ethnic stereotypes to infiltrate police searches.
Does the arbitrariness of racially profiled searches violate civil liberties?
Answering this question hinges on the distinction between civil liberties and civil rights. According to the Legal Information Institute, civil liberties are “freedoms guaranteed by the U.S. Constitution (16),” and thus act as “restraints” on government action. On the other hand, civil rights are positive rights guaranteed by the government and bestowed onto citizens (17). Racial profiling challenges both: it brings into question Fourth Amendment’s protection against unreasonable search and seizure —an essential civil liberty — while also raising concerns about the civil rights protections granted by the Fourteenth Amendment.
Although many legal scholars have ethical and constitutional qualms about racial profiling, proving its incongruence with civil liberties comes with its challenges. Namely, Supreme Court precedent undermines the Fourth Amendment’s power to inhibit racial profiling. In Whren v United States (1996), the Court held that the Fourth Amendment “does not concern itself with the subjective intentions of police officers, including their possible reliance on race” if the police otherwise “had reasonable suspicion or probable cause to justify the seizure (18).” The Court posited that racial discrimination due to racial profiling concerns the 14th Amendment’s Equal Protection clause instead (19).
Whren thus opened the door for racial bias to influence what law enforcement can interpret as “reasonable suspicion” or “probable cause” without judicial recourse for infringing on civil liberties. Bernard Harcourt, a professor of Law at Columbia Law School, warns that law enforcement will “tuck the race issue under the rug” by refusing to admit to conducting a stop “based on race alone (20).” Law enforcement could hide their racially charged behavior under the guise of perceiving “reasonably suspicious activity.” However, police suspicion of criminal activity grounded in racial bias, rather than in genuine suspicious behavior, is decidedly unreasonable, rendering racial profiling a Fourth Amendment violation.
Does racial profiling violate civil rights?
Legal precedent also presents an obstacle in combating racial profiling on the basis of violating the civil rights guaranteed by the Equal Protection Clause in the Fourteenth Amendment. For instance, Harcourt explains that in the case of McCleskey v. Kemp (1987), “requirement of proof of actual intent” of discrimination was needed to successfully present an equal protection challenge (21). The McClesky v Kemp holding essentially dismissed the claim that “the police are intentionally using race if they knowingly dedicate sixty percent of their searches to African-American motorists” due to the fact that no proof of “actual intent” was obtained (22).
The strict scrutiny test first established in United States v. Carolene Products Co. creates yet another challenge to proving that racial profiling infringes on equal protection. The Supreme Court has established that equal protection restrictions can be constitutionally justified when such action “is narrowly tailored” to “a compelling government interest (23).” For example, Grutter v. Bollinger (2003) held that the “narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body” does not violate the Equal Protection Clause (24).
In accordance with strict scrutiny, Harcourt claims that the true determinant of racial profiling’s compliance with the Fourteenth Amendment lies in whether “race is a statistically significant predictor of crime (25).” If no empirical connection between crime and race could be established, Harcourt would characterize disproportionate searches of communities of color “intentionally discriminatory” and in violation of the Equal Protection Clause (26). However, if such evidence was found, Harcourt contends that racial profiling would “represent a means to satisfy the government's [compelling] interest in combating crime (27).”
However, Harcourt’s analysis overlooks the historical context of racial profiling. Potential statistical correlation between race and crime rates would be misleading since the history of disproportionate policing of communities of color compared to white communities renders racial minorities more likely to face arrests, irrespective of whether these communities are genuinely predisposed to criminal activity (28). Harcourt’s approach would create a feedback loop in which instances of racial profiling would contribute to racially-disproportionate incarceration rates, which would enable future racial profiling. Ultimately, racial profiling fails to serve the compelling government interest of fighting crime since presumptions that racial minorities commit crime at higher rates would depend on, at best, faulty data and, at worst, racist stereotypes rather than genuine threat.
Fortunately, considerations of Harcourt’s argument in light of higher crime rates within communities of color are unnecessary: there is no empirical evidence to suggest that race is a predictor of criminality (29). Therefore, law enforcement’s targeting of racial minorities empirically lacks the “narrowly tailored compelling government interest” of reducing crime and, consequently, should constitute a violation of the Fourteenth Amendment.
Moreover, regardless of racial minorities’ presumed criminality, racial profiling still fails the strict scrutiny test on account of hindering efforts to combat crime. Amnesty International finds that racial profiling “undermine[s]... law enforcement agencies’ ability to detect actual domestic security threats” by shifting law enforcement’s focus and resources away from genuine threats onto individuals whose assumption of guilt stems from unfounded racial stereotypes (30). While Amnesty concentrates on the effect of racial profiling on anti-terrorism, their analysis that racial profiling wastes limited police resources, including manpower, on non-threatening individuals applies to crime-fighting in general.
Despite the presence of perspectives like Harcourt’s, many legal scholars, including Supreme Court Justices William Brennan and Thurgood Marshall, view racial profiling as unconstitutional under any circumstance (31). Racial profiling subjects innocent individuals to police targeting and arrests based solely on how they look—a factor which cannot be controlled and, thus, cannot reflect one’s deliberate participation in criminal activity.
Still, even if a victim of racial profiling can prove a constitutional violation, criminal defense and civil rights attorney Kellen Davis informs the Journal that this process would merely render the findings of the search inadmissible in court. Obtaining compensation for victims necessitates a civil suit, thereby presenting another stumbling block: proving that the targeted individual suffered damages. Davis explains that the police “can get away with” racial profiling—including subjecting individuals to psychological violence, like spewing racial slurs—since they “are trained” to curb their discriminatory behavior “right before” physical or monetary damages can be proven. Consequently, justice cannot be served for many victims.
Racial profiling remains a prevalent issue in the United States as many fear that the discriminatory rhetoric often employed in the president elect’s, Donald Trump,campaign may serve to further increase instances of racial profiling. The legal barriers to challenging the Fourth and Fourteenth Amendments render this future all the more dangerous.
Endnotes
(1)Amnesty International, rep., Threat and Humiliation: Racial Profiling, Domestic Security, and Human Rights in the United States, July 18, 2013, https://www.amnestyusa.org/reports/threat-and-humiliation-racial-profiling-domestic-security-and-human-rights-in-the-united-states/, 2.
(2) “Racial Profiling,” American Civil Liberties Union, September 18, 2024, https://www.aclu.org/issues/racial-justice/race-and-criminal-justice/racial-profiling#:~:text=41%20percent%20of%20Black%20Americans,police%20because%20of%20their%20race.&text=21%20percent%20of%20Black%20adults,being%20victims%20of%20police%20violence.
(3) Amnesty International, Threat and Humiliation, vi.
(4) Yevgenia Kleiner, “Racial Profiling in the Name of National Security,” November 1, 2010, 112.
(5) Bill, Congress.Gov § (n.d.), https://www.congress.gov/bill/107th-congress/house-bill/3162.
(6) Kleiner, “Racial Profiling in the Name of National Security”,110.
(7) Dalia Hashad, “Dalia Hashad Advocates Against Racial Profiling,” Asia Society, accessed November 27, 2024, https://asiasociety.org/dalia-hashad-advocates-against-racial-profiling.
(8) Office of the Inspector General, Report to Congress on Implementation of Section 1001 of the USA PATRIOT Act § (2003), https://oig.justice.gov/sites/default/files/archive/special/0307/index.htm.
(9) Kleiner, “Racial Profiling in the Name of National Security”, 118.
(10) Kleiner, “Racial Profiling in the Name of National Security”, 118.
(11) Arab American Action Network, rep., Suspicious Activity Reports and The Surveillance State, May 2022, https://www.scribd.com/document/580535404/Suspicious-Activity-Reports-and-the-Surveillance-State, 24.
(12) Arab American Action Network, Suspicious Activity Reports, 24.
(13) Arab American Action Network, Suspicious Activity Reports, 2.
(14) Rebecca Fowler, “U.S. Biopolitical Geographies of Migrant Containment,” Academia.edu, February 19, 2017,https://www.academia.edu/31521396/U_S_Biopolitical_Geographies_of_Migrant_Containment, 7.
(15) Fowler, “U.S. Biopolitical Geographies”, 7.
(16) “Civil Liberties,” Legal Information Institute, https://www.law.cornell.edu/wex/civil_liberties.
(17) “Civil Liberties,” Legal Information Institute, https://www.law.cornell.edu/wex/civil_liberties.
(18) Bernard E. Harcourt, “Rethinking Racial Profiling: A Critique of the Economics, Civil Liberties, and Constitutional Literature, and of Criminal Profiling More Generally,” The University of Chicago Law Review 71, no. 4 (Autumn 2004): 1275–1381, https://scholarship.law.columbia.edu/faculty_scholarship/642/, 1336.
(19) Harcourt, “Rethinking Racial Profiling,” 1336.
(20) Harcourt, “Rethinking Racial Profiling,” 1338.
(21) Harcourt, “Rethinking Racial Profiling,” 1348.
(22) Harcourt, “Rethinking Racial Profiling,” 1348.
(23) “Equal Protection Supreme Court Cases,” Justia, n.d., https://supreme.justia.com/cases-by-topic/equal-protection/.
(24) “Equal Protection Supreme Court Cases,” Justia.
(25) Harcourt, “Rethinking Racial Profiling,” 1347.
(26) Harcourt, “Rethinking Racial Profiling,” 1348.
(27) Harcourt, “Rethinking Racial Profiling,” 1336.
(28) Gee Gill, rep., Police Patrol Black Areas More Frequently than Others with Similar Homicide Rates and Income Levels, October 25, 2023, https://anderson-review.ucla.edu/smartphone-records-reveal-racial-disparities-in-neighborhood-policing/.
(29) Jesper Ryberg, “Racial Profiling and Criminal Justice,” The Journal of Ethics 15, no. 1–2 (December 9, 2010): 79–88, https://doi.org/10.1007/s10892-010-9098-3, 80.
(30) Kleiner, “Racial Profiling in the Name of National Security”, 112.
(31) Harcourt, “Rethinking Racial Profiling,” 1351, 1373-4.
