About a week after 9/11, the U.S. Supreme Court declined to hear a case that began in a sleepy, college town in upstate New York. That case, Brown v. City of Oneonta, involved one of the most egregious cases of racial profiling in decades. An elderly woman in the upstate New York college town reported that an intruder had entered her home, broken a window and assaulted her, before running quickly away when she fought back. The woman identified the assailant as black, based on having seen his forearm, which she also reported had been cut by the knife he carried. That he was young, the victim surmised, by how quickly he ran from her home.
The police department in Oneonta responded by stopping and questioning every black man (and a few black women) on the streets of the town. They went one step further and approached officials at the local college, the Oneonta branch of the State University of New York, and requested the names of all of the black male students on campus. The university complied—allowing the police to racially profile and question black male college students based on an elderly victim's view of a black forearm in her off-campus home.
The case seemed like the perfect context in which to strike down racial profiling by police. But the federal court in New York did not invalidate either the police or the university's actions. Instead, the Second Circuit Court of Appeals upheld as rational the police decision to stop and question blacks on the streets of the town, and upheld the university's decision to provide the police with a list of its black students.
The court conceded the action was a form of racial profiling that would most likely never be imposed on the white population of the town or college. But the court explained fewer than 300 blacks resided in the town of 10,000, and black students constituted only 2 percent of the college's population, so it was possible to actually stop and question all the blacks in town. Given the overwhelming number of whites in Oneonta, it would simply be impractical or impossible to question them all, the court continued. Thus, the targeting of blacks in the town was not illegal profiling, according to the court, but a practical and manageable means of acting on the victim's statement. In other words, the manageability of profiling racial minorities removes the taint of illegality. Efficiency defeats bias.
Brown was part of a high-profile debate about racial profiling. The Justice Department of George W. Bush, led by John Ashcroft had taken a public stand against racial profiling, and it seemed likely that a bill would pass Congress outlawing the practice.
Then, 9/11 happened. The Justice Department authorized law enforcement agencies to conduct widespread arrests of Arabs and Arab-Americans. Young black men in New York reported a sense of relief that profiling was not being directed at them for a change, but against other groups. And the Supreme Court quietly declined the opportunity to review and reverse the Second Circuit court's decision in Brown.
Almost a decade later, the state of Arizona has enacted a law designed to target undocumented Mexican Americans, giving police broad discretion to require those stopped to provide proof of their legal status in the country or risk arrest and detention. Arizona authorities and high-profile Republicans contend that the law is not racially targeted, but merely an attempt to protect the state against the threat of uncontrolled illegal immigration. But discretion in the hands of the police often results in racial profiling. The figures recently released in New York showed that black and Latino New Yorkers are nine times more likely to be stopped and questioned by police under the city's stop-and-frisk policy, but once stopped, no more likely to be arrested. This is a testament to how police discretion plays out on the streets, even in the absence of a law like Arizona's.
The New York City Police Department cited ''furtive movements'' as a key trigger for their officers' decision to stop and question racial minorities. Furtive movements? Have we descended to the point that in the most dynamic, diverse city in the world, people of color should be careful to control their movements to avoid attracting police attention? The fact that so few arrests result from ''furtive-movement stops'' suggests that the police are wasting an awful lot of time stopping and questioning innocent black and brown people—time that would be better deployed solving and preventing actual crime.
In fact, widespread acceptance of bias is precisely the context in which the Supreme Court should feel most compelled to act to protect the ''discrete and insular minorities,'' as set out by Justice Harlan F. Stone in his famous ''footnote 4'' in United States v. Carolene Products, in 1938. Public support of bias should compel the Supreme Court's ''searching scrutiny'' of legislation that infringes on individual freedom. It's likely that if a poll had been conducted in 1953, most Americans would have supported the maintenance of racially segregated education a year before Brown v. Board of Education, that most would have supported the legality of racially restrictive housing covenants in 1947, a year before the Supreme Court's decision to strike them down in Shelley v. Kraemer, or that they would have been against the Montgomery bus boycott in 1955, or would have advocated striking down affirmative action in higher education in 2002, a year before the court's decision in Grutter v. Bollinger.
The court's special role is to counter the ''tyranny of the majority.'' The insistence of the framers that Supreme Court justices receive lifetime tenure and a salary that cannot be diminished by Congress was constitutionally designed to ensure that the court would have the independence to withstand the strong winds of public opinion that often blow in the direction of injustice.
Challenges to the Arizona law have already been filed and are likely to make their way up to the Supreme Court in the next year or two. Given the precarious balance of conservatives and centrists on the court—a balance unlikely to be changed in the short run by the addition of Supreme Court nominee Elena Kagan—it's anybody's guess what will happen. The Arizona legislature's hasty adoption of modified language designed to blunt public reaction to the most egregious aspects of the bill, may also make it harder to make the case that the law is on its face unconstitutional. But the unfinished business of Brown v. City of Oneonta will continue to come before the Supreme Court until the justices once and for all address the unconstitutionality of racial profiling, and uphold the right of people of color to walk boldly down the streets of New York, Oneonta and Phoenix.
Sherrilyn Ifill writes about the law for The Root. She teaches at the University of Maryland School of Law.