I've just read an interesting diary by Julie Gulden asking whether the Supreme Court perhaps does permit (pending any further ruling) racial profiling in certain circumstances. I don't know the answer, but one thought did occur: is it possible that, whilst repudiating racial profiling entirely, the Supreme Court could allow SB1070 to stand?
See below for the issue I want to raise - I Am Not A Lawyer (maybe in a couple of years, but not in the US), simply seeking some expert opinion on this issue.
In case it needs saying, the Arizona law disgusts me, and nothing written here should be interpreted as a defence of either its letter or spirit. I simply want to know how the legal battle might play out.
I was, until a few weeks ago, living in New York, and so even as a legal resident alien, I had to fill out my US Census Form and get a Social Security card. Very exciting.
I was interested by the ethnicity question - obviously very different to the UK Census I'll fill in next year, and alien compared to a system like France where the race/ethnicity question would not even be asked on an official document for any reason whatsoever.
Essentially, from the perspective of the US government (and thus, I assume though am happy to be corrected, state and local government as well) 'Hispanic' is categorically NOT classified as being a 'race': the adjective 'Hispanic' can apply to both people describing themselves as 'White' or as 'African American' (or other terms denoted). 'Hispanic' is an ethnicity, independent of race.
http://en.wikipedia.org/...
Now there's an interesting semantic argument to be had, which will inevitably be won by the first person to point out that all these terms are merely socially constructed ideals without empirical basis etc etc, but that's not what I want to discuss.
I'm interested in the legal consequences. Does 'Hispanic' being an ethnicity, rather than a race, mean that to single out Hispanics from the general popuation cannot strictly be described as 'racial' profiling?
Profiling on the basis of ethnicity strikes me as equally unethical and fallible, but might it not be legally as troublesome?
I don't think it any more acceptable to profile on the basis of ethnicity than it is on race (I oppose searching all Muslims - again, not a race - at airports because it is both wrong and stupid). Both are innate and not-chosen, and therefore to discriminate on basis of them seems to me to be wrong. But it might be different to profile on the basis of ethnicity rather than race, for the following reason:
I remember arguing with an African American friend, and drew a comparison between the Civil Rights movement and the movement towards LGBTQ equality was made. He rejected the comparison, and the comparison of the oppression it sought to remedy, on the grounds that whilst gay people were discriminated against, it was possible for them to avoid adverse reactions by concealing their identity. Concealment of identity, he said, was not as possible for the black man as it was for the gay man. It didn't excuse one or the other, or make one worse than the other, but it made the nature of the discrimination and the fight to end it different. He claimed that discrimination against gays, whilst reprehensible, relied on the oppressor picking up on behavioural signals. Gay people chose to come out - black people had no such choice. (I'm not making or supporting this argument, just using it by way of explanation).
Racial profiling is inescapable, because you cannot hide your race. It is inevitably a judgement on who you are - an innate characteristic which you cannot hide.
Profiling on the basis of ethnicity cannot be done merely on physical appearance - an ethnicity (including Hispanic) is definitionally cross-racial. It must rely, to a greater or lesser degree, on behaviour - language spoken, clothes worn, food eaten, sports watched etc. Profiling on the basis of behaviour being a permitted principle, might this distinction afford Arizona protection against charges of racial profiling?
Imagine all of the illegal immigrants to the US were French. Illegal white French immigrants might be indistinguishable from much of the general white population if you saw just headshots. However, if those same persons were dressed in berets, eating Roquefort, and speaking French, they would betray their ethnicity.
Similarly, Francophone African illegal immigrants might be distinguishable from the African American community at large - perhaps identified by speaking French, watching soccer etc.
If the police picked up everyone heard speaking French, it would be profiling on the basis of ethnicity, but not on race (if both White Parisians and Black Senegalese were arrested).
So to Arizona - if fair-skinned Hispanics were picked up for speaking Spanish, but darker-skinned Caucasions speaking Italian were not, could we call that 'racial profiling' or would it be 'ethnicity profiling'? And would it make a legal difference (because the 'reasonable suspicion' would be a behavioural indicator, rather than an appearance indicator?)
Questions for the Community:
- Is there a philosophical difference, as I've claimed, between 'racial profiling' and 'ethnicity profiling' based on the necessity of a behavioural component in the latter versus 'appearance-only' in the fomer?
- Without condoning either, might the legal prohibitions (if they exist) against racial profiling fail to properly prevent ethnicity profiling, because of the permissibility of behaviour as a reason to stop and search?
I'm interested in your thoughts.