The Leadership Conference on Civil and Human Rights

The CIVIL RIGHTS MONITOR is a quarterly publication that reports on civil rights issues pending before the three branches of government. The Monitor also provides a historical context within which to assess current civil rights issues. Back issues of the Monitor are available through this site. Browse or search the archives

Summer 2003

Racial Profiling

A new report issued by the Leadership Conference on Civil Rights Education Fund (LCCREF) renders a serious indictment of the flawed and widespread practice of racial profiling, which has been given a new dimension in the aftermath of the events of September 11.  

“Wrong Then, Wrong Now, Racial Profiling Before & After September 11, 2001,” was released on the second anniversary of a speech by President Bush to a joint session of Congress. "Racial profiling is wrong and we will end it, " the President stated on February 27, 2001.  

Racial profiling occurs when law enforcement agents impermissibly consider race, religion, ethnicity, or national origin in deciding whom to investigate.  For years, African Americans, Latinos, and other minorities complained that they received unwarranted police scrutiny in their cars and on the streets, but their complaints were routinely ignored.

By early 2001, this had changed.  Rigorous empirical evidence developed in civil rights lawsuits and other studies of police practices revealed that that the so-called "driving while Black or Brown" phenomenon was more than anecdotal. Minority drivers were, in fact, stopped and searched more than similarly situated Whites.  The data also showed that minority pedestrians were stopped and frisked at a disproportionate rate, and that, in general, federal, state, and local law enforcement officials frequently used race as a basis for determining who to investigate for such activity as drug trafficking, gang involvement, and immigration violations.  Polls showed that Americans of all races and ethnicities believed racial profiling to be a widespread practice.

Government actions and words mirrored the public's increased concern about profiling.  In the mid-1990s, the Civil Rights Division of the United States Department of Justice entered into far-reaching settlement agreements to address profiling by certain state and local law enforcement agencies, including the Los Angeles Police Department and the New Jersey State Police.  Many states and localities imposed data collection and other requirements to address racial disparities in police practices.  

By early 2001, concerns about profiling were voiced at the highest levels of the federal government, with both President Bush and Attorney General Ashcroft publicly condemning the practice.

On June 6, 2001, Representative John Conyers, D-Mich., and Senator Russell Feingold, D-Wis., took the President at his word and introduced the End Racial Profiling Act of 2001 ("ERPA").  With seven Republicans among its original cosponsors, the bill went beyond past congressional profiling proposals, which sought only to determine the scope of the profiling problem by requiring the collection of traffic stop data.  Already armed with empirical evidence proving that racial profiling was widespread, the sponsors of ERPA sought to ban the practice of profiling; authorizing judicial enforcement of the ban by the victims of profiling (as well as by the federal government); and requiring state and local law enforcement agencies to collect traffic stop and other law enforcement data and to establish institutional safeguards against profiling as a condition of federal funding.  The bill would establish a federal grant program to provide state and local governments with needed resources to implement these racial profiling initiatives.  Support for the bill was widespread; enactment of a comprehensive anti-profiling law seemed imminent.

On September 11, the national consensus against racial profiling evaporated.  The 19 men who hijacked airplanes to carry out the horrific terror attacks on the World Trade Center and the Pentagon were Arabs from predominantly Muslim countries.  The federal government immediately focused massive investigative resources and law enforcement attention on Arabs, Muslims, South Asians and Sikhs.  That focus continues to this day.  

The events of September 11 also halted congressional efforts to address the use of racial profiling to address street-level crime and immigration violations, despite abundant evidence that such profiling continues.  Despite the President's pledge to Congress, neither the House nor the Senate took up ERPA after September 11. Efforts to end racial profiling in general have been hampered by the administration's efforts to legitimwize the practice within the context of its counter-terrorism campaign.

Against this backdrop, LCCREF released its report, “Wrong Then, Wrong Now, Racial Profiling Before & After September 11, 2001,” with the goal of reestablishing the national consensus against racial profiling, in three ways:  (1) to highlight the persistence of "traditional", street-level racial profiling and review why such profiling is ineffective, harmful, and unacceptable; (2) to identify the different forms of anti-terrorism profiling post-September 11, highlight the parallels between these practices and traditional profiling, and explain why profiling is a flawed law enforcement tactic in the terrorism context no less than in its traditional form; and (3) to explain the need to ban racial profiling at all levels of government and in all its manifestations.

In June of this year, the Department of Justice issued a policy guidance that discourages racial profiling by federal law enforcement agencies. While a welcome first step, civil rights and other groups believe that the DOJ guidance is insufficient for several reasons: (1) it addresses profiling on the basis of race and ethnicity but not on the basis of national origin or religion; (2) it does not contain a meaningful enforcement mechanism; (3) it does not reach profiling by state and local police; (4) it does not require data collection; and (5) it contains an overbroad exception for national security and immigration enforcement. For these reasons, it has been argued that federal legislation is necessary to strengthen and codify the DOJ guidance.        

Representative Conyers and Senator Feingold are expected to reintroduce the End Racial Profiling Act in the 108th Congress to take into account recent developments. The Leadership Conference will continue to engage in efforts to educate and inform both the public and members of Congress on the need to ban all forms of racial profiling.