This piece originally appeared on The Hill's Congress Blog.

The Obama administration this week announced new guidance on how federal law enforcement agents may use race and other characteristics, such as religion and national origin, in their work. This was a historic opportunity, at a critical moment, for the president to take a dramatic step forward on civil rights by completely banning racial, religious and other forms of profiling by law enforcement at all levels. Instead, the new guidance offers only modest improvements.

Our Constitution guarantees the law's protection in equal measure to everyone. Yet for too many people this promise is still a fantasy. True, the new rules will prohibit profiling based on national origin, religion, gender, sexual orientation, and gender identity, in addition to race and ethnicity. That's a signal of progress and should be celebrated. However, the new rules remain riddled with exceptions and loopholes that leave many vulnerable to continued biased profiling. As a Latino at a border checkpoint or a Muslim trying to catch a flight, you will be no more protected from the continued insult of unjustified questioning and searches or the routine violation of your constitutional rights today than you were yesterday.

It is deeply unfortunate that the president stopped short of a full ban. The costs of such a move are high and without any real benefits. For, although we live in a world in which law enforcement agencies constantly identify security concerns, we must not forget the lesson that recent history teaches us all too clearly: racial profiling won't save us.

In fact, instead of helping, racial profiling hurts. It harms the relationships between law enforcement and the communities they are sworn to protect, sowing suspicion where trust is urgently needed. And the impacts on targeted communities can be catastrophic.

Take the war on drugs. ACLU ran the numbers on marijuana arrests between 2001 and 2010. We found that, despite roughly equal usage rates, blacks were almost four times more likely than whites to be arrested for marijuana. People of color were disproportionately arrested and imprisoned, and those arrests doubtless shaped their lives long after, making it harder to find work, to vote, to participate fully in society.

Yet we never did win the war on drugs. We haven't even come close. Racial profiling failed, but we kept right on doing it, heedless of the very real costs. Perhaps because those costs were largely borne by people of color and by disempowered communities, they were easier to ignore. But spoken or unspoken, the effects remained.

It's an ugly thing, knowing your country finds you suspicious not because of what you've done but because of crude stereotypes about who you are. As Obama himself noted, "there are very few African-American men in this country who haven't had the experience of being followed when they were shopping in a department store. That includes me."

We have long known that racial profiling is ineffective. That's why Attorney General John Ashcroft banned it back in 2003, albeit with enormous carve outs. He said that, "using race… as a proxy for potential criminal behavior is unconstitutional, and it undermines law enforcement by undermining the confidence that people can have in law enforcement." This left the government, then and now, in the contradictory position of asserting that racial profiling is abhorrent and unacceptable — except in special cases, where it is suddenly fine.

Racial profiling is wrong. It's wrong whether it's based on race or on other characteristics like sexual orientation, religion or national origin. Racial profiling didn't help us win the war on drugs, and other forms of profiling won't help us address national security concerns.

A national security loophole in the 2003 Ashcroft Guidance allowed federal law enforcement officers to discriminate against America's minorities. And discriminate they did. The FBI, for example, has mapped minority communities around the country based on biased stereotypes, as the ACLU has documented. The FBI has also targeted American Muslim communities based not on evidence of wrongdoing, but because of their ethnicity, national origin, and religion. Law abiding citizens are selected for "voluntary" interviews, pressured by the FBI into becoming informants, or placed on Kafka-esque watchlists without meaningful recourse. The FBI has used informants at community centers, mosques, and other public gathering places and against people exercising their First Amendment right to worship or to engage in political advocacy.

The "border integrity" exception has likewise encouraged Customs and Border Protection to profile all along our borders. CBP refuses to release data that would measure profiling, so local residents in Arivaca, Arizona, decided to monitor a checkpoint themselves. After more than 100 hours of observation over two months, they found that a Latino-occupied vehicle is more than 26 times more likely to be required to show identification than a White-occupied vehicle. And Latino-occupied vehicles were nearly 20 times more likely to be ordered to secondary inspection. A local business owner in Olympia, Washington, said he's "never seen anything like" Border Patrol's racial profiling: "Why don't they do it to the white people, to see if they're from Canada or something?"

The Constitution demands that all citizens, regardless of race, religion or national origin, receive the same legal protections. That is a key part of who we are as Americans. That's why the ACLU and other rights-focused organizations objected so strenuously back in 2003 when the government, while declaring boldly that "racial profiling is wrong and will not be tolerated," insisted on national security and border integrity exceptions to the ban. We continue to object to such carveouts in the context of profiling based on religion, national origin, gender and sexual orientation.

There are no loopholes in the Constitution, and there shouldn't be any in the federal government's rules about racial profiling, either. That's what makes the Justice Department's new guidance so badly incomplete. With this announcement, the Obama administration passed up a chance to finally and fully close the oft-abused loopholes by which the abhorrent practice of biased profiling is allowed to continue so long as national security or border integrity can be invoked in some way. That's a real loss, both for civil rights and for public safety.

The truth is, racial profiling isn't an effective tool. It's a bad, lazy, and an offensive habit. It leaves certain communities feeling constantly victimized, demoralized, and alienated. And it won't protect us. We'll be a better and a safer nation once we fully acknowledge that simple fact.

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Anonymous

White children learn early on the policeman is your friend. He keeps us safe It is their truth but the truth is often skewed as simplistic as the vintage schoolbook illustrations I grew up with. The all American white schoolbooks of my own 1960s childhood serve as nothing less than a primer on white privilege. If racial identity shapes the way people are treated by police it also shapes the way we are likely to view them. Take a look
http://wp.me/p2qifI-2yI

Anonymous

Brown and Garner Killers: Cases of Police Physical Dis-Qualification?

Lilliput Island of Jonathan Swift’s Gulliver’s Travels: That was what the two diminutive policemen out of the four involved in subduing Garner reminded me. The least “physically” qualified copita could only contribute by going after the most vulnerable and safe part of his Gulliver’s anatomy – the windpipe. It was the only part he could contribute, while the “men” handled manhandled him. Incidentally, policing is the only contact profession where size matters the most. Nonetheless, the Lilliputian has every right to be in the force that does not exclude anyone irrespective of race, gender, sexual orientation, ethnicity and, in his case, height and physical qualification.
The Vatican City Swiss Guards have to be at least 5’ 9’’ tall, aged between 19 and 30; thus, the emphasis is physical strength to effectively perform their duties. Police academies in America usually require an applicant to be 5’ 7’’ tall, and 140 to 180 pounds in weight. However, it is one thing to qualify for the academy, and different story when it comes to apprehending a suspect in “tough” parts of a city. The problem is complicated by the multiracial and multiethnic society like America, with a gentle giant from Birmingham, AL, and a pint size lad of Vietnamese descent in downtown St. Paul, MN.
Although the minimum height requirement to join the military is lower, about 4’10’’ for females and males, the nature of their mission is somewhat different: A military fellow goes after an obviously armed nameless foreigner located at a distance; a cop goes after unarmed, or covertly armed, namable and identifiable fellow citizen. Whereas the ultimate goal of a soldier is to kill, the manifest mission of a policeman is to prevent death. Preserving life of one’s own is physically and emotionally more taxing than taking out the life of the indifferent “other.”
Unfortunately, some of the members of the police forces are not physically qualified to face suspects of Brown’s and Garner’s size of any race or ethnicity. And like a cornered black mamba, a scared diminutive cop with a badge and a gun (snake’s poison) is the most dangerous organism in that particular space and time frames. I don’t know about you, but if I face a short cop with probable Napoleonic Complex, I will hit the ground first, and ask questions later. I can risk arguing with a cop of my size and expect to come to some understanding. Not with a Lilliputian!
Although equal employment opportunity policy ought to be applied in virtually every profession, it appears it is not applicable when it comes to policing. It is the most contact of “sports.” As such, I would rather deploy Women to the Badlands of Kandahar (Afghanistan), and Men to the streets of Harlem.
NYC Mayor suggested retraining could solve the problem. He is partly right. What he didn’t say is that training an all-rounded policeperson could take even longer than training a doctor, probably nine years, instead of a doctor's seven -- or thereabout. A doctor deals with a person’s body. A cop deals with the world around a person’s body – from internal organs to interpersonal or person-property interactions.
Standard course in police academies, as listed in the “Regular Basic Course (RBC), range from 01: Leadership, professionalism and ethics, via criminal justice, economic crimes, arrest and control, to 43: Emergency Management. Many more courses are needed in addition to the current ones; they include:
i). Human anatomy and physiology (body parts, organs and vulnerabilities)
ii) Physical Anthropology (race-specific characteristics – from Irish to Laotian)
ii) Sociology (formal and informal groups, behaviors, dynamics and deviant types)
iii.) Cultural Anthropology (Cultural and sub-cultural/gang behavior)
iv) Linguistic Anthropology (verbal and nonverbal communication, bad gestures)
iv) Psychology (thought patterns of various individuals and groups
v) Logic (logical and illogical reasoning, explanations, and behaviors)
vi) Gender studies (male and female mind-sets, perception of reality)
vii) And on, and on.
Then again, whom am I kidding! What we have witnessed in Ferguson and New York are symptoms of a larger societal problem – lack of true democracy from bottom to the top. Neither practical physical qualifications, nor enhanced police training, would solve the problem on long-term basis. As suggested in my book, “An African Student in Russia,” all political organizations from the community level to Congress and executive branch need to replicate the gender composition of a family unit – male and female equal participation. In essence, there ought to be a balanced contribution of both the “fathers” and “mothers” to prevent crime against any individual regardless of gender, race, ethnicity, religion and other bases of social divisions -- victimizers and victims of police brutality included. Progesterone is needed at all levels of decision making and action to create a needed balance between masculine rational real politicking and feminine sensitivity.
Hopefully, a female president (which seems unlikely in the current definition and consciousness of democracy) would set the democratization process in motion – from top to bottom. Prevailing social and related problems would henceforth wither away slowly, but surely. Not only at home, but also abroad.
Onesphor Kyara

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