Beware Claims of “Racial Profiling” | Center for Equal Opportunity

In light of this week’s dubious court decision on New York City’s police department and racial profiling, it’s worth noting that some members of Congress are reintroducing that hardy (but never passed) perennial, the “End Racial Profiling Act,” which purportedly aims to end racial profiling by law-enforcement officers. This time around, the sponsors are trying to tie it in with, naturally, Trayvon Martin — even though the bill has nothing to do with the George Zimmerman case, since whatever you think of George Zimmerman and whatever he did, he is not a law-enforcement officer.

In my statement before the Senate Judiciary Committee about the bill last year, I summarized my testimony this way:

“(1) care must be taken in defining the term ‘racial profiling’;

“(2) the amount of racial profiling that occurs is frequently exaggerated, and care must be taken in analyzing the data in this area;

“(3) with those caveats, racial profiling as I will define it is a bad policy and I oppose it, with

“(4) a possible exception in some antiterrorism contexts; but

“(5) there are problems with trying to legislate in this area in general, and the End Racial Profiling Act in particular is problematic.”

“Problematic” is an understatement, and among the problems with the bill are its encouragement of litigation and, in particular, its use of a “disparate impact” approach — which will actually encourage race-based decisionmaking by the police and which, even more ironically, creates equal-protection constitutional problems for the bill.

In my oral testimony before the committee, I also noted that the reason for the racial profiling that does exist is the disproportionate amount of street crime committed by African Americans, and that this is largely a result of the 72 percent out-of-wedlock birthrate among them. Finally, I pointed out that, if the police are hamstrung, the victims will of course be law-abiding folks in high-crime areas — who are themselves disproportionately black and poor.

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I wrote a couple of months ago about the U.S. Equal Employment Opportunity Commission’s objection to criminal background checks. That’s for employers, mind you, not gun owners. At that time, the EEOC’s objection to companies using criminal-background checks had drawn some attention, including a front-page, above-the-fold story by the Washington Post.

The EEOC and its defenders would like the debate to hinge on whether the particular checks by a particular company are all that the good and wise would want them to be. “It is a fairness issue,” said David Lopez, the Commission’s general counsel. But there are a couple of more fundamental questions. First, who should get to make these decisions, absent a showing of actual discriminatory intent (not alleged here): The person who owns the company or a bunch of federal bureaucrats? And, second, remember that the EEOC is not objecting to criminal-background checks per se, no matter how high-handed and unfair they are, so long as they do not have a politically incorrect racial effect. Now, what bearing does that have on a practice’s “fairness”?

Well, late last week we got some good news as a federal judge ruled against the EEOC in a challenge it had brought against a particular company. Here’s hoping for more such rulings!

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A recent study by two researchers at Georgetown University argues that higher education is widening, not narrowing, the racial divide, since black and Latino students are disproportionately likely to go to schools with lower prestige schools with lower graduation rates and that white students are more likely to go to higher prestige schools with higher graduation rates.

Now, I’m all for improving the educational quality of less selective schools, and for encouraging the more selective schools to provide opportunities to students who are the best qualified applicants but lack the money to attend. But I am also very much against making any admissions or financial aid decisions with an eye on race.

What’s more, this report could have said what it had to say without using the incendiary, divisive, and misleading term “white privilege.” There are many, many whites who are not privileged at all; and there are many nonwhites — and they include not only African Americans and Latinos, by the way, but also Asian, Arab, and Native Americans — who are more privileged than many or most whites.

I would also note that the report argues that the “polarization” of which it complains is getting worse. Now, it is not really plausible that discrimination is increasing over time, so the reason for the increased polarization — assuming the report is right about the increase — must be something other than discrimination (like, say, culture — a belief that studying hard is “acting white,” the implosion of the black family and 72 percent out-of-wedlock birthrate among African Americans, etc.). And if the reason is something other than discrimination, then the reference to “white privilege” makes even less sense.

Let me also make an obvious, legal point here. The only justification available for schools that want to use racial preferences in admissions is that there are, supposedly, “educational benefits” in student-body “diversity.” I don’t buy this rationale, but in any event this report is irrelevant to it. That is, the report suggests that racial preferences are a good idea because they help to remedy racial inequality in society broadly — a justification that the Justices of the Supreme Court have not only not accepted but have in fact explicitly rejected, starting with Justice Powell’s opinion in Bakke.

Finally, let me say that my favorite sentence is the report is this one: “But ultimately there is no better way to guarantee a certain level of racial diversity than by employing race per se at some juncture in the selection process.” Can’t argue with that!

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