When Discrimination Makes Sense

Saturday, October 30, 1999

Two Los Angeles police officers were cruising the city’s highways when they saw a black man who looked as if he might be a drug dealer. So they pulled over his car, only to discover that their suspect was Christopher Darden, coprosecutor in the O. J. Simpson trial.

The cops cheerfully waved Darden on, but he was not amused. Speaking at a recent forum in San Francisco, Darden said he found such incidents “demeaning” and “humiliating,” and he accused the police of routinely stopping black men in the belief that they are potential criminals. “Just about everyone I know has been stopped—ministers, doctors, lawyers, professional athletes,” he said.

Law enforcement officers call “profiling” likely criminals a necessary part of police work, but African Americans call the practice of being pulled over simply because of the color of their skin “driving while black.” Cops aren’t the only offending group. Many blacks accuse big-city cabdrivers of refusing to pick up young black males, especially at night. African American men also complain that storekeepers follow them around, as if to prevent stealing, and that women who pass them on the street clutch their purses.


All forms of racial discrimination, including rational discrimination, should be illegal in the public sector. But in the private sector, we should be more flexible in dealing with racial discrimination.


The American Civil Liberties Union recently released a report that cited mounting evidence of racially motivated police stops. Some members of Congress and state legislators are demanding that the practice be outlawed. Cabdrivers are being fined and even losing their licenses for passing up young black males. Civil rights leaders are calling for much tougher measures to stop what one terms “a shameful resurgence of racism.” Yet in these cases, it is not clear that racism is involved. In Washington, D.C., for example, few of the cabdrivers accused of bigotry for passing up young black males are white. Many are immigrants from El Salvador, Nigeria, Pakistan, and the West Indies, and African American cabdrivers apparently act similarly.

At this point, sociologists are prone to launch into tortuous speculations about how historically victimized groups “internalize” their white oppressors’ bigotry. But the explanation for the actions of the nonwhite cabdriver can far more simply and plausibly be attributed to two key facts. First, black males are six to ten times more likely to be convicted of violent crimes than white males. Second, more than 25 percent of black males between the ages of fifteen and thirty-five are, at any given time, in prison, on probation, or on parole. (For whites, the comparable figure is about 5 percent.) Far from being a myth, the reality is that young black males are, by far, the most violent group in U.S. society.

These are uncomfortable social facts, but they are facts. Consequently, the treatment accorded young African American males by police officers, cabdrivers, storekeepers, and others cannot be attributed to irrational prejudice. It is more likely the product of rational discrimination. In a situation in which we have limited information about individuals (cabdrivers, for instance, are not in a position to know their clients personally), we must make group judgments based on probability.

The concept of rational discrimination is easier to grasp if we look outside the racial context. Insurance companies, for example, charge teenage boys higher car insurance rates than teenage girls (or older drivers, for that matter). The reason isn’t sexism or antimale prejudice; the statistical reality is that, on average, teenage boys are far more likely than teenage girls to bash their cars. So the insurance company is treating groups differently because they behave differently.

Although rational discrimination against African Americans is a social problem, its magnitude should not be exaggerated. Strictly speaking, it makes no sense for a bank manager to refuse to hire a black teller because blacks as a group have a high crime rate; the manager can easily investigate whether this particular African American job seeker has a criminal record. So also mortgage lenders cannot rationally refuse loans to blacks on the grounds that blacks pose a higher repayment risk; again, the lender can look at each applicant’s income and credit history.


Government-sponsored discrimination has the cataclysmic social effect of polarizing African Americans who play by the rules and still cannot avoid being discriminated against.


Still, rational discrimination is a fact of everyday life, and what to do about it poses a genuine public policy problem. Just because discrimination can be rational does not mean it is always moral. Indeed, the rational discrimination of cops, cabdrivers, and storekeepers is very unfair to the law-abiding African American who has done nothing wrong but is treated as a potential criminal. Yet before we approve harsh punishments against those who practice rational discrimination, we should recall that their only offense is using common sense. Shouldn’t African Americans who are legitimately outraged at being victimized by discrimination direct their anger not at cabdrivers or police officers but at the black thieves, muggers, and crack dealers who are giving the entire group a bad name?

My solution is that all forms of racial discrimination, including rational discrimination, should be illegal in the public sector. This means that police officers, who are agents of the state, should not be permitted to use race in deciding whether to question potential muggers or stop suspected drug dealers. The reason: We have a constitutional right to be treated equally under the law, meaning the government has no right to discriminate on the basis of race or color.

This point of principle will seem naive to those who ask about its cost in terms of police efficiency. The prudent answer is that there are other (in my view, more important) costs to be weighed. Government-sponsored rational discrimination has the cataclysmic social effect of polarizing African Americans who play by the rules and still cannot avoid being discriminated against. Even law-abiding blacks become enemies of the system because they find themselves treated that way.

In the private sector, we should be more flexible in dealing with rational discrimination. I think the campaign to go after cabdrivers for alleged bigotry is especially foolish. Of course, as a “person of color” myself, I’d be annoyed and indignant if I could not get a taxi. Yet my right to get a cab, which is the right not to be inconvenienced, seems less important than the cabdriver’s right to protect his life and property. In cases such as this, it is better for the government to do nothing.