Race-Based Suspect Selection and Colorblind Equal Protection Doctrine and Discourse

Abstract:     
Racial profiling by law enforcement officers has been the subject of sustained criticism by scholars, activists, politicians and other commentators. The emerging consensus is that racial profiling is illegitimate because it constitutes the intentional use of race by state actors in a manner that disparately impacts innocent members of certain racial minority groups. A related and pervasive use of race by law enforcement officers has been the subject of virtually no scholarly criticism or political debate: reliance on race as a component of a physical description of a suspect. While racial profiling is widely condemned, law enforcement reliance on race-based suspect descriptions is accepted as so obviously legitimate as to scarcely require justification.

This Article challenges the orthodox view of race-based suspect descriptions by demonstrating that law enforcement use of race-based suspect descriptions is as much of a racial classification as is racial profiling. Both practices are intentional uses of race by state actors in a manner that disparately impacts innocent members of certain racial minority groups.

The broader purposes of this Article are to critique the colorblindness principle of equal protection doctrine and to highlight the depth of racial inequality and the inability of equal protection doctrine, however formulated, to overcome that inequality. Treating race-based suspect description reliance as a racial classification would undermine the primacy and force of the colorblindness principle, whatever the outcome of the strict scrutiny analysis. Conversely, the maintenance of colorblindness, as a constitutional and moral mandate, requires suppression of the race-based nature of the state practices that courts permit. Recognition that equal protection doctrine, as it actually operates, does not implement a norm of strict colorblindness would render race more defensible. Further, analysis of suspect description reliance suggests the limits of equal protection doctrine in eradicating state reinforced racial inequality in a society structured along lines of race.

Accepted Paper Series