TSA Can and Should Take Action to Address Concerns of Racial Profiling

February 15, 2012
Guest Post

By Amardeep Singh, a Co-Founder and Director of Programs at the Sikh Coalition

Much has been made of the fact that African Americans and Latinos endure disturbingly high rates of stop and frisk policing in New York City, and rightfully so. While blacks and Latinos comprise just over half of the city’s population, they endure 85 percent of police stops. Even more troubling, as young people in these communities bear the brunt of police stops, it is in fact stops of whites that more often yield illegal contraband.

So advocates are appropriately making noise and filing lawsuits alleging profiling by the New York City Police Department. Meticulously collected, publically released, government data provides them a rational basis for doing so.

But what happens when you have no such data? That's the situation of Sikhs at U.S. airports.

For years, Sikh Americans and advocacy groups have complained of unfair, extra scrutiny by Transportation Security Administration (TSA) screeners. The complaints run the gamut from concerns about mandatory pat downs of Sikh turbans, to removal of turbans without discernible cause, and 100 percent rates of secondary screening at some airports.

These accounts from Sikhs alleging profiling are admittedly anecdotal. They are routinely proffered by Sikh advocacy groups with limited resources and even more limited access to security checkpoints. “Smoking gun” evidence of intentional profiling occasionally emerges -- like the TSA “Mexecutioners” scandal in Honolulu -- but otherwise advocates and the TSA are perpetually engaged in a “yes you are, no we are not” ping pong match of profiling accusations and denials.

Yet if the TSA is to be believed, there is a way to settle once and for all whether it is profiling. The Sikh Coalition recently released an internal TSA memorandum, which discusses eight “strategic options” the agency could implement to “address racial profiling concerns” and “improve internal business controls as they relate to secondary screening procedures.”

The memorandum, obtained through a Freedom of Information Act request, draws upon interviews and proposals from consultants at the Rand Corporation, Vera Institute for Justice, and two professors at the University of California at Berkeley. Though it is heavily redacted, its conclusion is clear: There is a way forward. The TSA can implement better systems to measure and guard against profiling.

If beleaguered Sikh travelers have any say, the TSA would do well to take its now two-year-old memorandum off a dusty shelf and start implementing its solutions. While the TSA’s memorandum predicts that someday “advanced screening technologies” will equalize screening for all, that day cannot come soon enough for those whose turbans  are checked and re-checked by TSA screeners in full public view, thereby reinforcing the noxious notion that they and their faith are to be existentially feared.

But even if we have an NYPD-like system of data collection and publication at the TSA, let’s keep in mind that the law governing whether the government may racially or religiously profile seems to fall on the side of those who support profiling. In United States v. Brignoni-Ponce, the U.S. Supreme Court held that “Mexican appearance” combined with other factors was enough to allow the United States Border Patrol to lawfully stop a vehicle. Similarly in 1996, the Court effectively held in Whren v. United States that defendants not may offer evidence that a stop was pre-textual if there is an objectively neutral reason for the stop, like a traffic violation. 

The analogy here to the Sikh experience at the airport is particularly troubling. Sikhs are often told that their turbans require extra screening because they are “bulky” and that objective, facially neutral TSA rules require that they be searched. Of course what’s bulky and what’s not is by definition subjective, particularly in an era when incendiary devices have been carried in underwear. Still, the government enjoys legal cover from the Supreme Court in both denying it is profiling and in arguing that considering race or religion is permissible at the airport security checkpoint.

These challenges do not bode well for anti-profiling advocates, who have never been able to sustain momentum for the passage of the End Racial Profiling Act after the terrorist attacks of 9/11. The release of the TSA internal memorandum however indicates that where there is an administrative will, there is a way to end profiling.