Critical Race Theory in Three Acts: Racial Profiling, Affirmative Action, and the Diversity Visa Lottery

Abstract The usual debates surrounding multiculturalism pit individual rights against group grievances in a variety of contexts including racial profiling, affirmative action, and the diversity visa lottery--often with seemingly contradictory results. Liberals typically favor affirmative action but decry both racial profiling and the diversity visa lottery, while many conservatives hold the opposite view. Critical race theory provides a unique alternative to stock liberal and conservative arguments, allowing one to draw meaningful and persuasive distinctions among these seminal issues surrounding law enforcement, education, and immigration policy. I. INTRODUCTION: RACIAL PROFILING--LAW ENFORCEMENT, EDUCATION, AND IMMIGRATION A. Racial Profiling Pre and Post-9/11 In March of 2000, I wrote a short essay entitled Racial Profiling: "Driving While Mexican" and Affirmative Action for a talk I gave at the University of Michigan School of Law. The piece decried the lack of nuance in the arguments raised by both the right and left concerning the issue of racial profiling. (1) Little did I know that just a year and a half after that talk, the terrorist attacks of September 11, 2001 would breathe new life into the debate, only this time scrutinizing those of Arab and Muslim descent--especially non-U.S. citizens. (2) In the year since 9-11, I have thought quite a bit about two of the three panel topics for this year's symposium, racial profiling and immigration policy, (3) but I have paid little mind to the third, affirmative action. B. Critiquing Three Types of Racial Profiling Through the Lens of Critical Race Theory And so, today, I would like to discuss all three--the use of race in law enforcement, affirmative action in higher education, and the diversity lottery in immigration law--as aspects of a single, broader concept called racial profiling. This concept encompasses the issue of when race should be used as a factor in determining public policy. While we typically associate racial profiling with the narrow circumstance of motoring stops, racial profiling is behind public policy discourse on affirmative action and immigration policy as well. After examining the contours of racial profiling in each of these three areas, I assert that critical race theory provides a principled alternative to stock liberal and conservative perspectives on the issues, which often lead to conflicting results in similar cases. C. Laying the Foundation for the Critique: Defining Liberal and Conservative At the outset, setting forth working definitions of liberal and conservative (though admittedly simplistic) might be useful. By liberal, I refer to those who believe that individuals should be free to pursue their own happiness as long as they do no harm to others. Therefore, if one's activity adversely affects another, a liberal would permit government intervention to correct that harm. (4) While a conservative might agree with the goal of maximizing individual freedom, she would be loathe to assign that task to the government. Instead, her faith rests in laissez-faire approaches to wealth maximization and the pursuit of happiness, seeking government enforcement only to protect against clear attacks on that pursuit by criminal elements in society in turn. (5) With that, we are ready to examine profiling in law enforcement, university admissions, and immigration policy. (6) II. ACT ONE: RACIAL AND ETHNIC PROFILING IN LAW ENFORCEMENT Whether one favors the pejorative Driving While Black (or Brown) or Flying While Arab (or Muslim), the stock liberal argument against racial and ethnic profiling in the law enforcement context is that stereotypical assumptions--that people of color are more apt to commit crime--violate the liberal tenet that each person should be treated as an individual, not as a member of a group. (7) Every innocent individual of color that is stopped on the highway or frisked at the airport is stigmatized by society's suspicion attending a police search. …