by Roger Clegg, Center for Equal Opportunity and Keith Noreika, Covington & Burling

Summary

In this paper, we hope to familiarize policymakers with how courts are likely to analyze government law-enforcement officials' use of racial and ethnic classifications in terrorism investigations. We conclude that whether a court will find equal protection concerns to be implicated at all is likely to depend on whether law-enforcement agents have an identified suspect or ring of suspects, for which race is an identifying characteristic, who are linked to a specific action that has been threatened or has occurred. As we move further away from a specific suspect committing a specific act, it is more likely that a court will find that law-enforcement officials have engaged in "racial profiling," i.e., attributing thoughts or actions to individuals based on their membership in a particular racial group, which they then may have to justify to under equal protection "strict scrutiny" analysis. In the terrorism context, the government will generally have little problem with the first, "compelling interest," prong of strict scrutiny; the issue will be whether the classification is "narrowly tailored."

En route to these conclusions, we briefly provide an overview of the relevant equal protection legal doctrine. Thereafter, we list other legal issues that may arise from law-enforcement officers' use of racial and ethnic classifications, which are not analyzed in this paper but about which the reader should be aware. Then, we note the inherent dilemma of the use of race and ethnic classifications in law enforcement: that precisely because race is an immutable characteristic, it serves as an important law-enforcement investigative tool because a suspect cannot easily change it. At the heart of this paper, we offer and then analyze several factual scenarios in the context of two opposing legal views, one for and one against application of equal protection analysis for the factual scenarios outlined.

Equal Protection Analysis in a Nutshell.

The Fourteenth Amendment to the Constitution provides that "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV § 1. Because the "rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual," Shelley v. Kraemer, 334 U.S. 1, 22 (1948), "a [state's] racial classification causes 'fundamental injury' to the 'individual rights of a person,'" Shaw v. Hunt, 517 U.S. 899, 908 (1996) (internal citation omitted).

Accordingly, the Supreme Court's precedents set a high hurdle for any state actor that wishes to apply a race-based classification: The state actor must demonstrate that its racial classification advances a "compelling governmental interest[ ]" and that its use of race is "narrowly tailored" to meet that interest. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995); see also City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493-94 (1989) (plurality opinion) (same).

The burden of proving that the racial classification is narrowly tailored to meet a compelling governmental interest lies with the governmental actor. Mere recital of a compelling governmental interest is not enough to satisfy the government's burden under the strict scrutiny standard. Instead, the government must provide a "strong basis in evidence for its conclusion" that its use of race is compelling. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 277 (1986) (plurality opinion); Croson, 488 U.S. at 500.

The Supreme Court has adopted these high hurdles to government's use of race because "[a]bsent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining what classifications are 'benign' or 'remedial' and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics. Indeed, the purpose of strict scrutiny is to 'smoke out' illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool. The test also ensures that the means chosen 'fit' this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype." Croson, 488 U.S. at 493 (plurality opinion).

The most common example of a "compelling governmental interest" is, as mentioned above, for remedial purposes - that is, to remedy past racial discrimination. See, e.g., Croson, 488 U.S. at 493. But the Supreme Court has also found that the government may use racial classifications in times of national emergency and to protect national security and further the nation's war effort. See Korematsu v. United States, 323 U.S. 214, 218 (1944); Hirabayashi v. United States, 320 U.S. 81, 100-01 (1943) (upholding West Coast exclusion and curfew for Japanese Americans in World War II). See also Lee v. Washington, 390 U.S. 333, 334 (1968) (concurring opinion of Black, Harlan, and Stewart, JJ.). We hasten to add that, although the holdings in Korematsu and Hirabayashi are today almost universally condemned, the problem with these cases was not the Supreme Court's view that national security or a wartime emergency is a "compelling" interest. If saving America lives and winning a war are not compelling governmental interests, then nothing is. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963) ("[T]he Constitution . . . is not a suicide pact."); Haig v. Agee, 453 U.S. 280, 309-10 (1981) (same). Rather, Korematsu and Hirabayashi were wrongly decided because the government's use of race there was not "narrowly tailored" to meet the government's goals. In our view, the government in Korematsu and Hirabayashi used race more broadly than it needed to and wrongly rejected race-neutral methods that could have served just as well the government's purposes in those cases of preventing espionage and enemy attacks by the Japanese.

In the issue at hand, likewise, we presume that the government would have a compelling governmental interest in identifying terrorists in order to protect lives, as well as to support the war effort. The remaining questions are (1) in what circumstances are courts likely to conclude that the actions of governmental law-enforcement officers can properly be said to involve racial classifications that implicate equal protection analysis; and (2) when, in our war against terrorism, can law-enforcement officers demonstrate that their use of race is "narrowly tailored" to their goals?

Limitations To Our Analysis. We should note that we do not attempt to address all of the issues that may arise every time law-enforcement officers use race to identify suspects. Rather, we focus on equal protection issues. In this regard, we merely note, but do not address, the many other issues that may arise from such uses of race. These include Fourth Amendment issues arising from the reasonableness of stops, searches, and seizures that are predicated on racial and ethnic characteristics. Here we note that if the use of race does not violate equal protection guarantees, it is unlikely to violate the Fourth Amendment's reasonableness requirement. Likewise, border searches receive lessened Fourth Amendment scrutiny than otherwise might be accorded to federal law-enforcement officials' racial or ethnic classifications. Sex classifications will also implicate slightly lessened court scrutiny. While racial classifications are subject to strict scrutiny, decisions by federal officials to distinguish between citizens and non-citizens are unlikely to be. Finally, provisions of the federal civil rights laws may circumscribe private actors' uses of race and/or racial profiling, although perhaps not when they are cooperating with federal law-enforcement authorities. (We also note specifically that, by its terms, Title II of the 1964 Civil Rights Act, 42 U.S.C. § 2000a, does not apply to airlines.)

The Double-Edged Nature Of Race. Part of the dilemma for those trying to fit law-enforcement officers' use of race into equal protection analysis is that the immutable nature of race and ethnicity is often a double-edged sword. On the one hand, it is the immutable nature of race that helps make it a suspect classification for equal protection purposes. As the equal protection doctrine outlined above reflects, the individual is to be judged as an individual, and should not have views and motives imputed to him because of his identity as a member of a certain racial or ethnic group. On the other hand, it is usually this immutable nature of race and ethnicity that makes that characteristic so important for law enforcement. A suspect attempting to avoid apprehension can change many of his attributes (e.g., clothes, facial hair), but not his race and ethnicity. These immutable characteristics, therefore, provide a practically solid basis for law enforcement to use in deciding how to spend its resources in apprehending and thwarting suspected terrorists and other criminals.

Factual Scenarios. In analyzing racial profiling issues that may arise in our nation's war against terrorism, it is helpful to organize our discussion by using several different factual scenarios in which law-enforcement officials may be called upon to classify individuals on the basis of their race and ethnicity in order to stop terrorists from committing violent acts, and to bring to justice those who commit, or attempt to commit, such acts. Three hypothetical scenarios are set forth below for purposes of discussion and analysis.

Scenario 1: Specific Act, Specific Suspect. A prominent news anchor receives a threatening letter laced with the anthrax bacteria. The letter was mailed from a mailbox in Trenton, New Jersey, postmarked September 25. In the course of the investigation, law-enforcement officials locate a witness who says that she saw an Arab man in his twenties, wearing sunglasses and talking on his cell phone, drive up and deposit several letters in a suburban Trenton mailbox on the morning of September 25. She remembers overhearing him say into his phone, "We will mail letters tomorrow to CBS and CNN. Allah is great!" In attempting to locate the man, police limit their search to individuals who fit the witness's description - i.e., young Arab men.

Scenario 2: Specific Threat, Profiled Suspects. The FBI receives a credible threat that a well-known Arab terrorist network plans to highjack a commercial airliner and crash it into the U.S. Capitol. In light of the events of September 11, the FBI orders all airport national guard, security, and airline personnel to be on the lookout for, and to investigate thoroughly, all airline passengers of Middle Eastern descent, as well as anyone else whom airport officials think suspicious.

Scenario 3: General Threat, Profiled Suspects. Due to a recent wave of terrorist suicide highjackings by young Arab men, federal and local law-enforcement officials station officers along Pennsylvania Avenue in Washington, D.C., and detain for pretextual stops, such as traffic violations, only automobiles containing individuals who look like they are of Middle Eastern descent.

Legal Analysis. Although there has been much commentary about racial profiling in the media and in academic literature prior, and subsequent, to the September 11 terrorist attacks, courts have not yet systematically defined what racial profiling is. In the analysis that follows, we analyze the three factual scenarios listed above in the context of two different views of the applicability of equal protection analysis - for and against - arising from the law-enforcement officials' use of racial classifications to interdict suspected terrorists and thwart terrorist acts.

View 1: No Profiling At All. Many people do not view law-enforcement officers' use of race to apprehend suspects as necessarily raising any equal protection problems. Ultimately their view is likely to be informed by the point on the spectrum that they are analyzing between Scenario 1 and Scenario 3.

In Scenario 1, adherents to View 1 would say that law-enforcement officers are not employing a racial "classification" at all. Although law-enforcement officials have limited their search to young Arab men, they themselves did not choose the category. They are not engaging in the use of any stereotypes about individuals based on their ethnicity. Rather, they are trying to locate a specific suspect who was seen depositing letters in a Trenton mailbox on September 25, and who was overheard to comment about sending future letters to CBS and CNN. He was identified by a witness as being an Arab man in his twenties, wearing sunglasses, and talking on a cell phone. Law-enforcement agents want to find this particular individual. Some of his identifying characteristics will prove more helpful to law enforcement than others. The suspect, for instance, can easily remove his sunglasses, and throw away his cell phone, but cannot easily pretend to be Scandinavian or Japanese. As such, government officials are not using the suspect's membership in a racial group to impute to him malevolent motives and actions. Rather, law-enforcement officers are treating the suspect as an individual, and are using his race only as an identifying characteristic to try to locate him. Thus, adherents to View 1 conclude, law-enforcement officers have not used a racial classification in a way that gives rise to equal protection scrutiny.

Addressing Scenario 2, adherents to View 1 analogize this case to Scenario 1. Although there is not an individual, identified suspect, law-enforcement officials have received credible information than a terrorist attack is imminent, and know that the threat involves a specific terrorist network, whose members are Arab. Law enforcement, given its experience with the terrorists involved in the September 11 attacks, believes there is an overwhelming probability that young Arab men will be used to highjack planes from U.S. airports and crash them into U.S. government buildings. Using the information they received about the current threat, as well as their past experience, law-enforcement officials put together a "profile" of individuals whom airport national guard and other security personnel are instructed they must closely scrutinize; the profile includes the suspects' racial and ethnic characteristics. Again, it can be argued that law enforcement itself is not employing a racial "classification" at all; it is merely responding to a specific threat posed, using information it has obtained. Law enforcement's judgment rests on the overwhelming probability that it can identify the suspects based on the suspects' immutable racial and ethnic characteristics. That said, in Scenario 2, the probability of an individual suspect's identity, or even his existence, is less than the near certain probability of the suspect's identity in Scenario 1.

For Scenario 3, law-enforcement officials know that there are Arab terrorists threatening "high value" targets in the U.S. They also know that Washington, D.C. was targeted in the September 11 attacks, and are on the lookout for any suspicious activity in the capital. Under View 1, the threat of further terrorist attacks is high, and it is more likely than not that such attacks will again be perpetrated by young Arab men. Therefore, adherents to View 1 would argue that law-enforcement officers should be able to use all methods at their disposal freely, including pretextual traffic stops based on the racial characteristics of a vehicle's occupants, to identify potential terrorists who might be planning an attack on the capital. (That said, however, it is hard to distinguish this case from a classic instance of racial profiling that targets African Americans for stops because of their higher crime rates. Instead, it is more plausible to argue that strict scrutiny is invoked in both cases, but met only in the former and not the latter.)

View 2: Equal Protection Implicated. For the adherents to View 2, the government's use of race is not like its classification of individuals by any other characteristic. Federal and state tax codes, for instance, would never survive scrutiny if they singled out individuals for higher marginal rates based on an individual's ethnicity, rather than his yearly income level. Rather, this country fought a Civil War over the issue of race, and the fight to overcome racial stereotypes has been pervasive, and largely successful, because of the constitutional command that all individuals are to be accorded equal treatment under the law. For this reason, any time federal or state officials classify an individual on the basis of his race or ethnic background, red flags should arise, and close judicial scrutiny should follow.
Adherents to View 2 have the easiest time in asserting that Scenario 3 raises equal protection problems. Under Scenario 3, government officials are acting both on a generalized threat as well as with a general profile of potential suspects. In other words, the argument that government officials are improperly imputing stereotyped motives and thoughts to individuals based on their racial and ethnic characteristics - i.e., treating individuals as the members of a group, rather than as individuals - is strong, if not conclusive.

Scenario 2 poses a harder case for adherents to View 2. In Scenario 2, there is a specific threat, and the terror suspects' characteristics - i.e., their ethnicity - is known with an overwhelming probability. In this case, government officials have, however, singled out individuals of Middle Eastern descent for required investigation. While they may also investigate others whom they find suspicious, the FBI has commanded airport national guard and other security personnel to investigate all Middle Eastern airline passengers, whether they otherwise might be viewed as suspicious or not. In such a case, an adherent to View 2 would argue that government officials are imputing suspicion to individuals based on their immutable ethnic characteristics, which should give rise to judicial supervision under the Equal Protection Clause.

Scenario 1 determines the purity of the views of adherents to View 2. If every government racial classification raises equal protection issues, then the government's use of race to find a suspect identified by his race also must implicate equal protection. As such, these uses of race must be justified by the government to a court as being used for a "compelling interest" and "narrowly tailored," i.e., used no more than necessary to serve that interest.

Some Policy Considerations. Sympathizers with adherents to View 2 might question, "If there is any question that constitutional equal protection rights might be implicated, then why not apply the equal protection framework?" After all, courts are likely to conclude that protecting human life, and individuals from bodily harm, should qualify as "compelling" governmental interests. So why not use the equal protection framework in all cases, even when individually identified suspects are at issue?
Several responses have been, and can be, advanced to counter the "better safe than sorry" view for construing the applicability of equal protection broadly under the circumstances discussed in this paper. First, it sets a bad precedent if courts get into the habit of allowing racial and ethnic classifications to survive strict scrutiny. As Chief Judge Walker recently noted in a case in which racial profiling was alleged, to subject government officials' actions in searching for a specific suspect based on that suspect's race may "cheapen" strict scrutiny analysis in order to justify the exigencies of the fluid situations which law-enforcement officials face. Brown v. City of Oreonta, 235 F.3d 769, 771-72 (2d Cir. 2000) (Walker, C.J., concurring from denial of rehearing en banc). Such a result might make it easier for government officials to use racial classifications in other areas of society in contravention of the colorblind norms embodied in the Equal Protection Clause. See id. at 773. In other words, the very use of equal protection analysis in instances in which courts are likely to find it automatically met, may, ironically, result in lesser equal protection for areas of the law outside the law-enforcement context.
Second, requiring all law enforcement uses of race to be subject to strict scrutiny "would require a police officer, before acting on a physical description that contains a racial element, to balance myriad competing considerations, one of which would be the risk of being subject to strict scrutiny in an equal protection lawsuit." Id. at 771. This may deter officers from apprehending criminals, and from acting aggressively in life-and-death situations (for themselves and the general public).

Third, using equal protection analysis for all government officials' uses of race in law-enforcement operations would likely engender a larger role for judicial supervision of police work than has been the case. It is easy to imagine the federal courts writing a second code of criminal procedure, this one not dealing with Miranda rights and the like, but rather with which uses of race are justified by compelling governmental interests, and then which compelling uses of race are narrowly tailored. Obviously, such a process of case-by-case development takes years, and is hardly appealing at this time of national exigency.

Conclusion. In our opinion, View 1 has the better arguments in Scenario 1 and most likely in Scenario 2, but not in Scenario 3 (although we hasten to add that, even when strict scrutiny is invoked, it will often be passed in the terrorism context). Whether courts will find equal protection analysis to be implicated by law-enforcement officers' use of race to apprehend terrorist suspects, and thwart future terrorist actions, is likely to rest on how immediate and specific the terrorist threat is and whether law-enforcement officials have specific suspected terrorists such that their actions in looking for individuals of a certain race or ethnicity are the result of an individual suspect's identifying characteristics, rather than the imputing of stereotyped motives to the individual because of his race or ethnicity.

We have sought here merely to outline a framework to help policymakers understand the point at which judges are likely to start to view equal protection norms as being implicated in law-enforcement officers' use of race and ethnicity classifications in our war against terrorism. We have not discussed what practices are likely to be narrowly tailored, but would note that in general it will be easier to satisfy this requirement when time is crucial and there is no way to search or investigate everyone. Thus, for example, while it might be possible to send everyone through a metal detector, choices have to be made about which investigative leads to follow. We also make the obvious point that it is not unreasonable to expect politeness by law-enforcement agents and patience by those being questioned. We do hope that our discussion is of some use for policymakers who must decide how best to allocate scarce law-enforcement resources in a way that not only comports with constitutional equality norms, but also achieves maximum effectiveness in protecting the public from terrorists.