Racial Profiling Vs. Racial Profiling

Eric Muller is a thoughtful law professor at the University of North Carolina and a “progressive” blogger (so says a blog ad; and no, “thoughtful” and “progressive” are not mutually exclusive, at least not always).

A good while ago we had a polite exchange on, on one level, the propriety of racial school assignments (this did not deal with the issue currently before the Supreme Court), but on a deeper level the propriety of “fealty to a proposition about the categorical illegitimacy of using race for any purpose,” as he put it in one post. (See my posts here, here, here, and here.)

Muller himself, as you might imagine, certainly does not let fealty to that proposition interfere with his lack of opposition to racially balancing juries, with his support for racial preferences in admissions, or his belief that courts should generally defer to political branches that grant racial preferences (“I think strict scrutiny for affirmative action is the clearest example of [illegitimate judicial behavior] — I just don’t see why the political process can’t be trusted”).

There is nothing unique about these positions, except perhaps that Muller argues them with more intelligence and good grace than is usually the case. Thus I was a bit surprised to read his rather categorical rejection or racial profiling in his comment (one among many interesting comments) to this interesting post on Volokh. That post dealt with whether the reasons given for opposing racial profiling in an article that purported to offer conservative reasons really were conservative. I don’t want to get into that here (read the post and the comments), but note Muller’s point in his comment:

Just about every legal academic who writes about racial profiling believes, and argues, that governments cannot be trusted to do racial profiling because they tend to do it with gross excess….

There’s ample evidence to persuade anyone, it seems to me, that governments spin out of control when they try “a little” racial profiling, and there’s plenty of reason to believe that just about everyone, regardless of ideology, shares a commitment to “the important national goal of making all races equal under the law.”

I’m aware that Muller’s views are no doubt more nuanced than this comment suggests. (Indeed, I discussed a marginally more forgiving argument of his on racial profiling here.) Still, I think there is, at the very least, a certain tension between Muller’s support for government officials taking race into account in a variety of areas and his rather strict rejection of it regarding racial profiling in one arena. Moreover, “the important national goal of making all races equal under the law” sounds pretty much like the “proposition” that official racial classifications — and benefits and burdens flowing from those classifications — are presumptively wrong. (The question, of course, is how easily that presumption can be overcome by this or that good, such as “diversity,” that requires the proposition to be set aside.)

One thing I’m not clear on (well, one of many): if Muller rejects “fealty to a proposition about the categorical illegitimacy of using race for any purpose,” and in fact is willing to allow the government to use race for a variety of purposes, what is the basis for his strong objection to racial profiling by police or national security operatives? Are they so much less skilled than school bureaucrats?

That is, if the colorblind “without regard” principle is taken more as a recommendation than a command, what principle (for lack of a better term) should guide officials when they must decided whether to accept the recommendation or not? Certainly, on the face of the matter, inconveniencing an air traveler is not an obviously greater travesty than telling Cheryl Hopwood or Jennifer Gratz that because of their race they have no worthwhile “diversity” to contribute and can thus be denied admission to the University of Texas law school or the University of Michigan.

Muller, of course, is not the only distinguished law professor whose views on racial profiling here vs. racial profiling there I find confusing. For another example, see my discussion of Harvard professor Randall Kennedy here.

Say What? (2)

  1. Agog September 14, 2006 at 7:55 am | | Reply

    Great post.

    It just shows that the pro-preferencers derive their position entirely from the the outcomes they desire, not from any coherent or consistent beliefs. Thus it is okay to practice racial profiling (i.e., making assumptions about an individual’s actions or beliefs based solely on race) in university admissions but it is wrong to do it in community policing.

  2. Cobra September 23, 2006 at 12:44 pm | | Reply

    Agog writes:

    >>>”It just shows that the pro-preferencers derive their position entirely from the the outcomes they desire, not from any coherent or consistent beliefs. Thus it is okay to practice racial profiling (i.e., making assumptions about an individual’s actions or beliefs based solely on race) in university admissions but it is wrong to do it in community policing.”

    And the reverse can be said of the anti-affirmative action types, who seem to have no problem with minority stop and frisks, DNA sweeps, DWB stops, if not outright RENDITION of certain ethnic and religious groups, yet maintain some whimsical, “color-blind” society fable for 2 to 5% of white applicants to elite public institutions.

    –Cobra

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