Blog of Rights

Racial Profiling Redux

By Chandra Bhatnagar, Senior Staff Attorney, ACLU Human Rights Program at 5:43pm

In the 1993 film Groundhog Day, Bill Murray's character finds himself repeating the same miserable day over and over again. For Indian film star Shahrukh Khan, last week was Groundhog Day for racial and religious profiling. In 2009, Khan — a huge global celebrity whose likeness is immortalized in wax at Madame Tussaud's — was traveling to the United States to celebrate Indian independence day and to promote a movie about a Muslim man who is the victim of profiling called My Name is Khan. In a case of life imitating art, Khan who is also Muslim, was detained and questioned at Newark airport.

Last week, Khan was again visiting the U.S., this time to speak at Yale, and he was again inexplicably detained at the airport. After this most recent incident, Khan made light of the situation, saying, "Whenever I start feeling too arrogant about myself, I always take a trip to America — the immigration guys kick the 'star' out of 'stardom.'"

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The continued profiling of Khan and of other prominent Indian travelers to America (including former Indian President Abdul Kalam, who is Muslim, and former Indian Ambassador Meera Shankar, who is Hindu) is no laughing matter, however. It is part and parcel of the broader epidemic of law enforcement agents treating racial and ethnic minorities unfairly based upon perceived race or religion, rather than based on evidence of wrongdoing. Indeed, all over this country, racial profiling remains a widespread and pervasive problem impacting the lives of millions of people in black, Asian, Latino, South Asian, Arab and Muslim communities.

We have seen the tragic impact of preconceived notions of criminality in the senseless death of African-American teenager Trayvon Martin, who was thought by his killer George Zimmerman to look "like he is up to no good." We have also seen the devastating impact of laws like Arizona's notorious S.B. 1070 and Alabama's H.B. 56, which require police to engage in racial profiling based upon perceived immigration status. A recent report also indicates widespread racial profiling along the Canadian border.

Earlier this week, a Senate panel took up the issue of racial profiling and an essential piece of legislation called the End Racial Profiling Act (ERPA). The bill would prohibit racial profiling by police and train officers to respond to situations based on specific evidence, as opposed to stereotyped notions about the identity of a suspected wrongdoer. The hearing saw testimony from police representatives and civil rights advocates, including ACLU Executive Director Anthony Romero.

Passing ERPA would send the strong message that our law requires that people be judged by what they do, not by what they look like or what God they pray to. From a moral standpoint, the case is clear: racial profiling is unfair and unjust.

From a legal standpoint, racial profiling violates the Constitution by denying equal protection under the law, as well as freedom from unreasonable searches and seizures. The Constitution also requires treaties to be treated as the "supreme law of the land," and racial profiling runs afoul of America's human rights treaty obligations.

Several international human rights bodies have raised concerns about the persistence of racial and ethnic profiling by U.S. law enforcement. In 2008, the U.N. Committee on the Elimination of Racial Discrimination "note[d] with concern that despite the measures adopted at the federal and state levels to combat racial profiling…such practice continues to be widespread." It repeated reiterated its recommendation for the U.S. to "make all efforts to pass the End Racial Profiling Act."

Last year, during a broad U.N. evaluation of America's domestic human rights performance, the U.S. government formally committed to take a number of concrete steps to improve human rights performance at home, including committing to "prohibit and punish the use of racial profiling in all programs that enable local authorities with the enforcement of immigration legislation."

By passing ERPA, strengthening the Department of Justice Guidance Regarding the Use of Race by Federal Law Enforcement Agencies, and taking significant steps to implement its human rights commitments at the national, state, and local levels, Congress and the Obama administration can improve the our global reputation, restore fundamental Constitutional protections, and take a public stand in support of equality — irrespective of race or religion.

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