The Law

RACIAL PROFILING MAY GET WIDER APPROVAL BY COURTS

Although racial profiling has been harshly criticized in states like New
Jersey, courts in this country have never declared it legally dead. Now,
with law enforcement officials focusing on Arabs in the hunt for
terrorists, legal experts say profiling may be authorized by judges more
definitively than ever before.

An emerging battle over racial profiling, like disputes over detainments of
immigrants and proposals for increased wiretapping, is becoming a volatile
part of the civil liberties debate over the country's response to the
attacks at the World Trade Center and the Pentagon.

Some opponents of racial profiling say their efforts may have been set back
decades by indications that people who fit a single description, men of
Arab descent, were responsible for the devastation. The terrorist attacks
may muddy the issue even for judges who have opposed profiling, said
Randall L. Kennedy, a Harvard law professor who is a specialist on race and
the law.

"The events of Sept. 11 are going to make it more difficult to get rid of
racial profiling, both at the street level -- what police actually do --
and at the formal level of the courts," Mr. Kennedy said. "Judges are going
to say, 'I thought something before, but what do you do in the face of the
current circumstance?' "

Civil liberties lawyers say there are signs of profiling in the patterns of
arrests so far, and security experts say profiling is inevitable in the
drive for increased air safety.

Opponents of profiling argue that allowing law enforcement officials to
focus on Arabs or Arab-Americans is no more justified now than focusing on
minority Americans was before the attacks.

"I don't think anything has changed at all," said Richard D. Emery, a New
York civil rights lawyer. "Racial profiling is anathema in our system."

But critics of the civil liberties lawyers say no reasonable interpretation
of the Constitution would prevent officials from investigating Arabs after
vast attacks that may have involved a terrorist network led by Arab Muslims.

"Investigating means following hunches," said Charles Fried, a Harvard law
professor who was solicitor general in the Reagan administration. "The
notion of having rules about that is truly insane."

Opponents of profiling have long argued that it is a violation of the
Constitution for law enforcement officers to focus on a particular group
when a small number of its members may be associated with criminal
activity. They say profiling runs counter to the idea of equal protection
and the right to be free of unreasonable searches and arrests.

Some opponents argue that, in making decisions about investigations or
prosecutions, law enforcement officials should not be able to take account
of race at all, even if other details make them suspicious, like a person's
ties to other suspects.

Kim Forde-Mazrui, a professor at the University of Virginia Law School,
said courts had permitted law enforcement officials, for example, to use
race to identify suspects when there was some compelling reason to do so,
like when statistical evidence suggested that high proportions of a
particular racial group committed certain types of crimes.

The Supreme Court last addressed racial profiling directly in a 1976 case
involving a Mexican who was living legally in the United States and was
charged with smuggling immigrants.

The defendant contended he had been stopped near the border by immigration
agents because he is Hispanic. Even assuming that people apparently of
Mexican ancestry were stopped more than others, said the opinion written by
Associate Justice Lewis F. Powell Jr., "we perceive no constitutional
violation."

Since then, lower courts have analyzed accusations of profiling in
conflicting ways.

In 1999, in another case involving claims that border agents used racial
profiles of Hispanics, the federal appeals court in San Francisco held that
the use of race alone as a basis for stopping people was unconstitutional.

But in 1992, the federal appeals court in St. Louis reached a different
conclusion. In a drug case, a detective at the Kansas City Airport said his
attention was drawn to a passenger from Los Angeles because he was a
"roughly dressed young black male." The detective said he knew that Los
Angeles gang members were often drug traffickers who brought cocaine to
Kansas City.

The man was arrested and convicted. He appealed. The appeals court
acknowledged that an arrest based solely on race would be improper. But it
said the detective had information beyond the fact of the suspect's race,
namely that young members of black gangs were bringing cocaine to the area.
That court affirmed the conviction and, in essence, racial profiling itself.

"Facts are not to be ignored," the ruling said, "simply because they may be
unpleasant."