Affirmative Action and Racial Profiling Revisited

Back in 2006, I pointed out that most liberals and conservatives take internally contradictory stances on affirmative action and racial profiling:

I have long been fascinated by the fact that most conservatives support racial and ethnic profiling for national security and law enforcement purposes, yet are categorically opposed to the use of racial or ethnic classifications for affirmative action. Most liberals, by contrast, take exactly the opposite view. Both ideologies oppose racial and ethnic classifications as a matter of principle in one area, yet defend them on pragmatic grounds in another….

[Conservatives] say… that ethnic profiling of airline passengers is justified because, on average, a young Middle Eastern Muslim male is more likely to be a terrorist than members of other groups. This, despite the fact that not all (or even most) Middle Eastern Muslims are terrorists, and there are of course some terrorists (Richard Reid, Tim McVeigh, etc.) who belong to other groups…..

Defenders of affirmative action, of course, make a very similar argument. On average, an African-American or Hispanic applicant to college is more likely to be a victim of racism and to suffer from the historical legacy of Jim Crow and slavery than a white applicant is. Thus, it makes sense to give preference to applicants from these groups, despite the fact that some of the beneficiaries will be people who haven’t suffered much from racism, and some of the members of the non-preferred group may themselves be disadvantaged. Defenders of AA also claim that the average black or Hispanic applicant contributes more to campus diversity than the average white one, although there are of course many individual exceptions to this rule.

What I wrote about conservative defenses of ethnic profiling of suspected terrorists applies equally to arguments for its use in ordinary law enforcement.

The recent Arizona law on illegal immigration has rekindled debate over these questions. Things seem to have improved a bit since 2006, as conservatives are at least starting to realize that there is a tension between their positions on the two issues. At the National Review website, Roger Clegg and Linda Chavez have argued that consistency requires conservatives to oppose racial profiling as a tool for ferreting out illegal immigrants, and to reject those parts of the Arizona law that promote profiling (as it is likely to do despite the law’s facial ban on the practice). Chavez correctly recognizes that conservatives can’t defend racial profiling by arguing that it is just one of many factors taken into account by law enforcement, since they reject the very same argument in the case of AA:

[T]he whole defense of racial preferences in college admissions and employment rests on the notion that race is simply one of many factors taken into account. But as the Center for Equal Opportunity’s studies on racial preferences in college admissions have definitively shown, whenever race is taken into account — even as one of many factors — it always becomes the deciding factor. And it will here as well. We conservatives can’t have it both ways: either we’re for race-neutral justice or we’re not. We can’t be against using race when it helps minorities but for it when it harms them — at least not without legitimate criticism as to our motives.

Where race is a factor in admissions or law enforcement decisions at all, it will inevitably be decisive in at least some cases. Otherwise, there would be no point in considering it at all.

Jonah Goldberg takes the opposite view, but at least acknowledges that there is a potential contradiction here. Still, he argues that racial profiling in law enforcement is more defensible than affirmative action because it causes less harm to its victims:

Many have pointed out the inconsistency of conservatives who support law-enforcement profiling while opposing admissions quotas, and of liberals who support quotas but loathe profiling.

The problem is that the two positions aren’t that analogous. In… president [Obama's] (flawed) scenario, that hypothetical Hispanic citizen will be “harassed.” What does that mean? It means he will be asked to prove his citizenship, which he will obviously be able to do. He won’t be tried, convicted, and deported; he will be inconvenienced. Indeed, under the more realistic scenario, he will be pulled over for a traffic violation and asked to offer his driver’s license (his “papers”). And that will be it.

Meanwhile, imagine you’re an American kid of Chinese ancestry. Given your SAT scores and GPA, you should be able to get into, say, the University of Michigan. But because of Michigan’s race-based policies, you’re turned down because you’re not black or Hispanic. That’s not just inconvenient, that’s a lifetime loss.

I don’t think that Goldberg’s attempt at distinguishing the two works. Whether affirmative action causes more harm to its victims than racial profiling varies from case to case. In some situations, getting stopped by the police will be a “lifetime loss” too, especially if nervousness or overreaction by either side causes a misunderstanding that escalates into violence. In other cases, it could result in your being detained for hours even if you are never charged with any crime (especially if the officer thinks you haven’t demonstrated the proper “respect” for his authority). The fear that racial profiling engenders among lower-class blacks and Hispanics (including those who never actually get profiled themselves) is also a significant cost.

White and Asian victims of affirmative action sometimes do suffer great losses, just as Goldberg suggests. In many cases, however, they simply end up attending universities comparable to or only slightly less prestigious than those that rejected them. As with racial profiling, the magnitude of the loss varies widely from case to case.

Moreover, I doubt that Goldberg or most other conservatives would favor affirmative action in admissions even if it were limited to cases where the victims suffer only minor “inconvenience.” When some liberals argue that affirmative action can be confined to close cases or instituted only for a limited time, conservative critics rightly respond that institutionalized racial preferences aren’t easily controlled. Once established, they have a strong tendency to expand, a point that conservative scholar Thomas Sowell nicely demonstrated in two of his books surveying such policies around the world (see here and here).

The same point applies to conservative claims that racial profiling in law enforcement can be confined to really important objectives such as combatting terrorism (which Clegg, for example, advocates). Once institutionalized, racial profiling is likely to expand just like affirmative action did. And, in fact, that is exactly what has happened in Europe.

In sum, conservatives deserve credit for beginning to recognize the ways in which their critique of affirmative action also applies to racial profiling. But many of them should go farther in recognizing the parallels between the two. The same point applies to those on the left who continue to ignore the relevance of their critique of racial profiling to affirmative action.

NOTE: For those who may be interested, I later expanded my 2006 post into a short essay in this Opposing Viewpoints volume on racial profiling.

UPDATE: My conservative George Mason colleague Nelson Lund deserves special credit for his 2002 article, “The Conservative Case Against Racial Profiling in the War on Terrorism,” one of the first post 9/11 conservative critiques of racial profiling.