Classification and Fair Treatment: An Essay on the Moral and Legal Permissibility of Profiling
Document Type Article
From the Working Paper Series.
Prior to the events of September 11, 2001, there appeared to be a consensus that profiling was both legally prohibited and morally wrong. Since 9/11, that consensus has eroded. In order to determine whether the fear and uncertainty occasioned by current events have simply clouded our judgment or whether, instead, the earlier rejection of profiling was too facile, we need to better understand precisely what we mean by "profiling." More importantly, we must develop a theory that explains when profiling, so defined, violates constitutional norms.
This paper takes up that task. The paper uses the term "profiling" to mean any practice or policy in which a trait or traits is used in order to identify a group of people with a different but correlated trait. Understood in this way, profiling is ubiquitous and often morally innocuous. A theory of profiling therefore must explain why the use of some group-based generalizations is problematic while reliance on others is not.
This article argues that the theory embedded in current doctrine, drawn from both the requirements of the 4th amendment and the Equal Protection Clause, is mistaken in two important respects. First, current doctrine draws a distinction between individualized inquiry and group-based generalization that is illusory. Second, the doctrine puts great emphasis on the accuracy of the profile. But fit, as it is called, is far less important, both morally and logically, than the doctrine implies. Instead the article proposes that courts ought to weigh the burden imposed on the proxy class (the group defined by the profile) against the benefit to be gained by society as a whole.