On July 28, the ACLU of Texas filed a complaint with the Department of Justice alleging that the Texas Department of Public Safety was “engaged in racial profiling” and “discriminating against Latinx drivers and passengers” in traffic stops as part of Governor Greg Abbott’s Operation Lone Star. A 2022 study found that DPS searched Latinx drivers more frequently than white drivers, suggesting that there is “a reasonable probability that racial profiling is a significant contributor to” these differences. The Department of Justice is investigating whether Operation Lone Star violates Title VI of the Civil Rights Act of 1964, which prohibits “discrimination on the basis of race, color, or national origin in any program or activity that receives Federal funds.”
This is only the latest example of state and federal officials using racial profiling to conduct immigration policing. Despite a broad public consensus that law enforcement officers should not use racial profiling, efforts in Congress to ban the practice have failed for decades. The situation is even worse in the border zone, where racial profiling is explicitly allowed for the Border Patrol and other federal immigration police based on Supreme Court decisions and the Obama administration’s 2014 guidelines on race and policing, which are still in effect. The Biden administration should revise those guidelines to ban racial profiling for all federal police, including the Border Patrol, and should state explicitly that racial profiling is a violation of the Civil Rights Act.
In the 1970s, the Supreme Court heard two cases about whether the Border Patrol could use racial profiling. In United States v. Brignoni-Ponce in 1975, the court listed a series of factors agents could consider when making a roving patrol stop, including “the characteristic appearance of persons who live in Mexico, relying on such factors as the mode of dress and haircut.” In United States v. Martinez-Fuerte in 1976, the court said agents working at interior checkpoints could use the race of the driver as the only factor to refer a vehicle to a more thorough secondary inspection. “Even if it be assumed that such referrals are made largely on the basis of apparent Mexican ancestry, we perceive no constitutional violation,” the justices wrote.
