Linda Chavez

Racial profiling, which has always been a thorny issue, is about to get a lot more complicated. In a private meeting with New York City Mayor Bill de Blasio, Attorney General Eric Holder this week promised that the Department of Justice soon will issue long-anticipated new rules expanding the definition of what constitutes racial profiling.

De Blasio made his opposition to the city's tough "stop and frisk" policies a central theme in his successful campaign, alleging that the practice constitutes harassment of racial minorities. And Holder apparently agrees. Now, Holder plans to prohibit federal investigators from considering not only race, but also sex, religion, national origin and sexual orientation. What's more, Holder is expected to broaden federal prohibitions on profiling beyond criminal justice to include counterterrorism investigations, surveillance and immigration enforcement.

I have always opposed racial profiling. In my view, government shouldn't be choosing winners or losers on the basis of skin color. I think it's wrong to use race to determine whom to hire or admit to college -- and also wrong to single out minorities for sobriety, drug or weapons checks. It seems quite consistent to oppose both racial preferences that advantage minorities and racial profiling that disadvantages them. But it is important to be clear on what we mean by racial profiling and how we go about proving it.

There are several problems with the new rules. First, the Holder Justice Department in general views discrimination so broadly that policies that have an adverse impact on minorities are often deemed discriminatory even if there is no intent to discriminate and the policies themselves are neutral. By definition, racial profiling would seem to imply intent. But given its history, the Holder Justice Department might decide that any policing policy that results in a disproportionate impact on minorities will be seen as profiling.

An important study of racial profiling completed in 2002, for example, noted that minority neighborhoods often have a higher police presence because they also experience higher crime rates, which will lead to more stops of minority individuals. "Studies that do not consider these and other police operational procedures, along with additional specific city characteristics, will fail to accurately assess the existence or extent of racial profiling or bias-based policing," the study said. Yet one can imagine the Holder DOJ using exactly such flawed statistics to show widespread racial profiling.

Linda Chavez

Linda Chavez is chairman of the Center for Equal Opportunity and author of Betrayal: How Union Bosses Shake Down Their Members and Corrupt American Politics .

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