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48 UCLA L. Rev. 1075 (2000-2001)
Race-Based Suspect Selection and Colorblind Equal Protection Doctrine and Discourse

handle is hein.journals/uclalr48 and id is 1091 raw text is: RACE-BASED SUSPECT SELECTION AND COLORBLIND EQUAL PROTECTION DOCTRINE AND DISCOURSE R. Richard Banks Racial profiling by law enforcement officers has been the subject of sustained criticism by scholars, activists, politicians and other commentators. The emerg- ing 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 enforce- ment 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 inten- tional 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 * Assistant Professor, Stanford Law School. Many wonderful colleagues at Stanford Law School contributed to this Article in many ways, especially Disk Craswell, Rich Ford, Tom Grey, Mark Kelman, Mike Klausner, and Peggy Radin. I am also grateful for the helpful comments of Akhil Amar, Ian Ayres, Devon Carbado, Sam Gross, Angela Harris, Cheryl Harris, Duncan Kennedy, Mie Lewis, Ian Haney Lopez, Kim Forde-Mazrui, Dorothy Roberts, Jed Rubenfeld, Reva Siegel, Gerald Torres, and Leti Volpp, as well as for the insights of several members of the Stanford Department of Psychology. Workshop discussions at the Bay Area Junior Faculty Forum, Boalt Law School, UCLA School of Law, Stanford Law School, Stanford's Center for the Com- parative Study of Race and Ethnicity, University of Virginia Law School, and the Western Law Professors of Color Conference helped to refine the argument. Mie Lewis, Mary Westphal, and Grace Wang provided superb research and editorial assistance. My wife, Jennifer Eberhardt, has inspired this Article and her work has informed much of the analysis. 1075

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