In light of Harvard professor Henry Louis Gates Jr.'s arrest last Thursday, we have dredged up a TNR cover story from September 1999 by Gates' colleague, Randall Kennedy. Kennedy argues that racial profiling is effective and not necessarily racist, but should be abolished anyway.
Consider the following case study in the complex interaction of race and law enforcement. An officer from the Drug Enforcement Administration stops and questions a young man who has just stepped off a flight to Kansas City from Los Angeles. The officer has focused on this man for several reasons. Intelligence reports indicate that black gangs in Los Angeles are flooding the Kansas City area with illegal drugs, and the man in question was on a flight originating in Los Angeles. Young, toughly dressed, and appearing very nervous, he paid for his ticket in cash, checked no luggage, brought two carry-on bags, and made a beeline for a taxi upon deplaning. Oh, and one other thing: the officer also took into account the fact that the young man was black. When asked to explain himself, the officer declares that he considered the individual's race, along with other factors, because doing so helps him efficiently allocate the limited time and other resources at his disposal.
How should we evaluate the officer's conduct? Should we applaud it? Permit it? Prohibit it? As you think through this example, be aware that it is not a hypothetical one. Encounters like this take place every day, all over the country, as police attempt to battle street crime, drug trafficking, and illegal immigration. And this particular case study happens to be the fact pattern presented in a federal lawsuit of the early '90s, United States v. Weaver, in which the U.S. Court of Appeals for the Eighth Circuit upheld the constitutionality of the officer's action.
"Large groups of our citizens," the court declared, "should not be regarded by law enforcement officers as presumptively criminal based upon their race." The court went on to say, however, that "facts are not to be ignored simply because they may be unpleasant." According to the court, the circumstances were such that it made sense for the officer to regard blackness, when considered in conjunction with the other factors, as a signal that could be legitimately relied upon in the decision to approach and ultimately detain the suspect. "We wish it were otherwise," the court maintained, "but we take the facts as they are presented to us, not as we would like them to be." Other courts have agreed with the Eighth Circuit that the Constitution does not prohibit police from routinely taking race into account when they decide whom to stop and question, as long as they do so for purposes of bona fide law enforcement (not racial harassment) and as long as race is one of several factors that they consider.