Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Profiles, Probabilities, and Stereotypes by Frederick Schauer (Belknap Press, 384 pages, $29.95) We mean well, We the People. Racism and sexism still persist in our society, along with -isms based on economic background, ethnicity, religion, sexual orientation, and even traits of personal appearance and style. We get profiled all the time — consciously and unconsciously, lawfully and unlawfully — but we don’t like to recognize in ourselves a tendency to profile others. Our laws and customs are designed to be egalitarian, our founding rhetoric has always set loftier standards than our actual conduct, and we mean well. So a scholarly, results-oriented look at the pros and cons of profiling — any kind of profiling, from the stuff of airport security gates to town ordinances targeting pit bulls — is gutsy and delicate work. We’re predisposed to cringe at it. Nobody wants to think profiling might have some redeeming merit. And any argument in defense of profiling must be cautious in its tone, compassionate in its motives, and airtight in its logic. Profiles, Probabilities, and Stereotypes, by Frederick Schauer of Harvard’s John F. Kennedy School of Government, meets two out of three criteria. Schauer carefully draws distinctions between profiling based on spurious generalizations and profiling based squarely on probabilities, and his goal is to maximize the rate of fair outcomes of any given policy, not to take procedural shortcuts. But too often his arguments unravel as he stretches them too far, and the book doesn’t quite hold his heavy thesis. For example, Schauer devotes nearly 40 pages to a close analysis of a hypothetical case designed to suggest that justice can reside in probabilities and statistical inference — and that the legal philosophy that demands “particularism” can sometimes impede justice. It’s the “Blue Bus” problem: a plaintiff seeks to recover from the owner of a blue bus that struck her car, but she didn’t catch the name of the bus line or the license number. There are only two bus companies in town and only one of them runs blue buses. A jury might well find the preponderance of evidence against the owner of the blue buses, but in a real case along similar lines, in 1941, the Massachusetts Supreme Judicial Court held that mathematical probability alone — without direct evidence of ownership — could not result in a judgment against the bus company. It would be logically sound, whether or not factually plausible, to suppose that the wayward bus was an out-of-town charter. It would be logically sound to impeach the testimony of eyewitnesses. But Schauer argues that the state supreme court’s demand for “direct evidence” — i.e., eyewitness testimony — is itself a generalization and assumes that testimony is more reliable than probabilities. And that’s not the point, of course; the point is that testimony is more germane than probabilities. (It’s a more obvious point in context of more insidious kinds of profiling, such as traffic stops or job discrimination.) Sometimes a job legitimately demands a certain profile; as Schauer notes, it’s legal and acceptable for an employer to refuse to hire a female actor to play Macbeth. At the other extreme, some forms of job discrimination are clearly spurious, such as physical characteristics of candidates for a desk job. Schauer, appropriately, is more interested in cases in between — such as a mandatory retirement age for airline pilots. It is undisputed that certain traits reasonably demanded of airline pilots — vision, reflexes, and an acceptably low risk of heart attack or stroke — generally decline after age 60. It is also undisputed that some pilots meet the job’s physical requirements well past age 60 and that some fail to meet those requirements before age 60. But it is true that more pilots over 60 than under 60 would fail a job-related physical. Why 60? Schauer recites a litany of bright lines we draw in civil society to delineate phases of a continuum: We assume that a person is more likely to reflect the traits of a careful driver after turning 16 than before; that a citizen is more likely to be a responsible voter after turning 18 than before; and that a motorist is more likely to cause an accident at 66 miles per hour than at 64. Ya gotta draw the line somewhere, he concludes, and “[i]n all such instances of line-drawing, important consequences turn on being just on the right or wrong side of a line that could have been located elsewhere.” If a person turns 18 the day after an election, well, too bad. But Schauer offers these examples to support his contention that a mandatory (and judicially reviewed) retirement age for airline pilots, regardless of actual individual fitness, is “no more arbitrary, in the sense of irrational or unreasoned, than are any of the other boundaries or cutoff points or deadlines that pervade our daily lives.” Again, it’s a fair point, but it’s not the point. Never mind that it’s no more arbitrary than some other generally accepted limit — it’s clearly more arbitrary than case-by-case judgment, i.e., periodic physical exams for airline pilots. Schauer points out that physicals don’t perfectly predict emerging deficiencies and may thus be less accurate, in the big picture, than a statistically founded generalization. Also, assuming it would be prohibitively burdensome to screen all pilots on a suitably frequent basis and that periodic screening would start at a certain age, the question of arbitrary distinctions is merely displaced, not addressed. True. But that point serves only to raise the question of individual justice versus mass justice, arguably the core question in any discussion of empirical profiling (as opposed to mere bigotry), and Schauer doesn’t make a satisfying case for mass justice at the expense of individual justice. Indeed, he opens the door to a contrary argument — again using examples from the profile-heavy world of air travel, after a detour through the Virginia Military Institute. VMI, in 1996, defended before the Supreme Court its exclusion of women on the grounds that gender is, as Schauer puts it, a “proxy” for other traits desired in VMI cadets — namely, the psychological tolerance for the military school’s aggressive tone and discipline. The majority opinion, written by Justice Ruth Bader Ginsburg, did not actually question the school’s assumption, but deemed the policy unlawful even if statistically sound — because any statistical correlation between gender and temperament, Schauer explains, is more likely an artifact of historical discrimination than an intrinsic trait (which, like aging in airline pilots, could be entertained as a basis for discrimination). In other words, some empirical profiles — or even profiles supposed arguendo to be empirically sound — are socially and legally unacceptable because they rest on the effects of discrimination rather than the causes. Schauer revisits this point in the context of passenger screening at airports, where Middle Eastern ancestry is one of many traits that attract special attention from security forces. (Passengers also attract attention by purchasing one-way tickets, by paying cash, by wearing sunglasses, by not checking luggage, by acting too obsequious or too irritable, and by traveling to or from certain cities. Of course, most passengers who display some combination of these traits are perfectly innocent, but security policies supposedly reflect empirical evidence that a terrorist or a drug courier is more likely to display some of these traits than not.) Bigotry is sometimes hard to measure, especially when it’s more or less parallel to sound actuarial generalizations — all of the hijackers on Sept. 11 were Middle Eastern, as are practically all members of al Qaeda, and all members of al Qaeda belong to an organization that explicitly condones mass murder of the U.S. population (American and otherwise). Bigotry is sometimes hard to measure, and screeners are human, and Schauer applies Justice Ginsburg’s majority opinion from the VMI case: arguably, profiling of this kind — using Middle Eastern ancestry as a proxy for traits undesirable in air travelers — should be prohibited not because it’s empirically dubious (that’s a separate question), but because it’s simply unfair to innocent people with the proxy trait and not to innocent people without the proxy trait. “At times we may wish to impose a compensatory underuse of a relevant factor,” Schauer writes, “in order to account for an expected overuse.” If we have reason to believe that people will be hassled simply for being Middle Eastern, absent any other indications for special scrutiny, then we might have reason to ban Middle Eastern ancestry altogether from the profile of the suspicious passenger. There are plenty of other criteria to go by, Schauer suggests. The trade-off, which Schauer calls “a price worth paying,” is that we’d have to screen more people overall and increase delays at the airport for everyone. If the goal is national security, then there is no margin for error — we should feel queasy about false positives (innocent passengers flagged as security risks), but we can’t have any false negatives (terrorists allowed to board planes). Schauer’s solution: “[T]he question of racial or ethnic profiling in air travel is not a question of whether racial and ethnic sensitivity must be bought at the price of thousands of lives. Rather, it is most often the question of whether racial and ethnic sensitivity should be bought at the price of arriving thirty minutes earlier at the airport.” So we’re back to the question of good profiling versus bad profiling, and bad profiling includes not only that which is statistically unfounded but also that which is statistically defensible and still wrong — wrong as in unconscionable, wrong as in mistaking social artifacts for inherent traits, or wrong as in mistreating too many exceptions. Of these, the most inflammatory is the phenomenon of “driving while black” — the disproportionate rate at which African-American motorists are stopped by the police for minor violations. Schauer dispenses fairly quickly with this kind of profiling: citing the detailed and rigid matrices used by the Internal Revenue Service to trigger an audit or by customs agents to trigger an inspection, he says, “Indeed, the . . . [police] procedure ought not to be glorified by referring to it as a ‘profile,’ for it would be more accurate to call it a ‘guess.’ ” A cop acting on a hunch, or even based on personal experience, in response to one factor allegedly related to criminal behavior is not the same thing as an agency applying consistently a policy based on aggregate measurements of numerous factors. If that argument isn’t satisfying, it’s because it leaves the door open for law enforcement agencies to produce empirical evidence in favor of racial profiling. Apart from demanding multiple criteria, Schauer doesn’t make it clear how sophisticated a profile must be in order to be considered fair. He’s unequivocally opposed to the kinds of profiling only Mark Fuhrman and Rush Limbaugh could support, and he’s comfortable with the kinds of profiling most of us take for granted (if you’re a drywall contractor and you claim a huge tax deduction for a home office, you won’t really be surprised if the IRS has a few questions), but it’s not as easy as it should be to explain why. The book, and the vexing questions it tries admirably to resolve, is perhaps best summarized in a comment from Schauer’s look at mandatory retirement ages: “How do we distinguish the arm from the wrist, or frogs from tadpoles?” And yet there must be a way. These questions are hard, but they aren’t unanswerable. Schauer goes a long way, but doesn’t reach as far as did Edmund Burke, as Schauer quotes him: “Though no man can draw a stroke between the confines of night and day, still light and darkness are on the whole tolerably distinguishable.” And if we kick the tires hard enough, so are integrity and shortcuts; compelling probabilities and lazy assumptions; truthful generalizations and malicious stereotypes; and even, in the twilight, justice and injustice. Mike Livingston is a free-lance writer based in Takoma Park, Md. He is the lead author of The Newcomer’s Handbook for Washington, D.C., 3rd edition, published by First Books in 2002. His next book, The Newcomer’s Handbook for the USA, is due later this year from First Books.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.