CONTEXT IS EVERYTHING WITH RACIAL PROFILING

EVERY DAY brings new headlines about racial or ethnic profiling. A Secret
Service agent who guards the president is not permitted to board an
airplane because he is Arab American and cannot satisfy the screeners about
his identity. Two white New Jersey state troopers plead guilty to shooting
into a van containing four men - three blacks and one Latino - after being
instructed to single out such people as drug suspects. These shameful
incidents shock our sense of justice.

Can anything be said for profiling in a democratic society of equal
citizens? Let's begin with our values as a society. We should be wary of
claims that we must sacrifice our ideals in the name of national security.
The ideal most threatened by profiling is the equality of all individuals
before the law. Differential treatment must meet a burden of justification
- - in the case of racial classifications, a very high one. Government may
not treat individuals arbitrarily, but must base its actions on information
reliable enough to justify its exercise of power over them.

How good must the information be? The law's answer is that it depends.
Criminal punishment requires proof beyond a reasonable doubt, while a tort
judgment demands only the preponderance of the evidence.

The same police officer needs better information for an arrest than for a
traffic stop. Context is everything.

When we view stereotype-based injustices as sufficiently grave, we prohibit
them. Even then, however, we do so only in a qualified way that expresses
our ambivalence. Civil-rights law, for example, proscribes racial, gender,
disability and age stereotypes. Yet, it allows some public-interest or
business reasons to justify them. Religious groups can hire only
co-religionists. Officials drawing legislative districts can, to some
extent, treat all members of a minority group as if they all had the same
political interests. The military can bar women from certain combat roles.

Can the same be said of racial or ethnic profiling? Again, context is
everything. No one presumably would think it unjust for the FBI to screen
for Osama bin Laden, who is a very tall man with a beard and turban, by
stopping all men meeting that general description. The stakes in
apprehending him are immense, and gender, size, physiognomy and dress are
valuable clues in making instantaneous decisions about whom to stop. Yet,
each person stopped is statistically likely to be a false positive and to
feel unjustly treated for having been singled out.

Racial profiling in more typical law-enforcement settings can raise
difficult moral questions. Suppose that society views drug dealing as a
serious vice and that drug dealers are disproportionately black, although
many dealers are white. Would this stereotype justify stopping blacks
simply because of their color? Clearly not. The law properly requires more
particularized evidence of wrongdoing.

A wise policy will insist that the justice of profiling depends on a number
of variables. How serious is the crime risk? How do we assess the relative
costs of false positives and false negatives? How accurate is the
stereotype? How practicable is it to pursue the facts through an
individualized inquiry, rather than through stereotypes?

If we must use stereotypes, do some rely on less incendiary and
objectionable factors? Stereotypes that seem reasonable when deciding whom
to screen for questioning may be unacceptable at the arrest and prosecution
stages when more individualized information and procedural safeguards
become available. Screeners can recognize the many exceptions to even
serviceable stereotypes and can behave accordingly - so that those being
screened understand the reason and do not to take it personally.

Profiling is bound to be part of the post-Sept. 11 dispensation. Clearer
thinking and more sensitivity to its potential uses and abuses can help
produce both a safer and a more just America.