Where is Equal Protection? Applying Strict Scrutiny to Use of Race by Law Enforcement.ExpressO (2012)
AbstractThis article seeks to move the debate over the use of race by law enforcement beyond the current focus on racial profiling, arguing that the courts must apply strict scrutiny to all use of race by law enforcement, including the stopping and questioning of persons based on suspect descriptions that include race. The current debate implicitly (and sometimes explicitly) assumes that law enforcement’s use of race can be divided into unconstitutional racial profiling and all other uses of races, which are presumptively legitimate. However, when other institutions rely upon race, such as public universities implementing affirmative action programs, courts automatically apply strict scrutiny regardless of institutional good faith, the importance of the institutional goals, or the relevance of racial criteria to the achievement of those goals. This article asks why strict scrutiny is not similarly applied to all use of race by law enforcement and concludes that it should be applied. The argument is not that law enforcement should never be allowed to take race into account, but rather that all use of race should be subjected to strict scrutiny.
- equal protection,
- racial profiling,
- 14th Amendment
Publication DateAugust 28, 2012
Citation InformationEvan Gerstmann. "Where is Equal Protection? Applying Strict Scrutiny to Use of Race by Law Enforcement." ExpressO (2012)
Available at: http://works.bepress.com/evan_gerstmann/5/