8. DISCRIMINATORY SEARCHES

0.    Samuel R. Gross and Debra Livingston, “Racial Profiling Under Attack,” Colum. L. Rev. 102 (2002): 1415 (“[R]acial profiling occurs whenever a law enforcement officer … investigates a person because the officer believes that members of that person’s racial or ethnic group are more likely than the population at large to commit the sort of crime the officer is investigating.”).

0.    Interview by Barry Friedman with Linda Sarsour, Nov. 3, 2014 (hereinafter Sarsour Interview); Champions of Change, The White House, www.whitehouse.gov/champions/giving-back-to-community/linda-sarsour (last visited Feb. 22, 2016).

0.    Sarsour Interview, supra note 2.

0.    See, e.g., Matt Apuzzo and Adam Goldman, “Inside the Spy Unit that NYPD Says Doesn’t Exist,” AP, Aug. 31, 2011, www.ap.org/Content/AP-In-The-News/2011/Inside-the-spy-unit-that-NYPD-says-doesnt-exist (“mapping”); Adam Goldman and Matt Apuzzo, “With Cameras, Informants, NYPD Eyed Mosques,” AP, Feb. 23, 2012, www.ap.org/Content/AP-In-The-News/2012/Newark-mayor-seeks-probe-of-NYPD-Muslim-spying; Matt Apuzzo and Adam Goldman, “Documents Show NY Police Watched Devout Muslims,” AP, Sept. 6, 2011, www.ap.org/Content/AP-In-The-News/2011/Documents-show-NY-police-watched-devout-Muslims; NYPD Intelligence Division, Intelligence Collection Coordinator, “Deputy Commissioner’s Briefing,” Apr. 25, 2008, http://hosted.ap.org/specials/interactives/documents/nypd/dci-briefing-04252008.pdf (describing informants’ activities and reports); Muslim American Civil Liberties Coalition et al., Mapping Muslims: NYPD Spying and Its Impact on American Muslims (2013), 12–15, 39–40, http://aaldef.org/Mapping%20Muslims%20NYPD%20Spying%20and%20its%20Impacts%20on%20American%20Muslims.pdf (describing the impact on mosque activities and student groups) (hereinafter Mapping Muslims).

0.    Sarsour Interview, supra note 2; NYPD Intelligence Division, Debriefing Initiative: CI Profiles (2009), 2, http://hosted.ap.org/specials/interactives/documents/nypd/Informant_Profiles.pdf (noting the desirability of getting a confidential informant “on the board of … the Arab American Association of New York [AAANY]”).

0.    Sarsour Interview, supra note 2; Mitchell D. Silber and Arvin Bhatt, NYPD Intelligence Division, Radicalization in the West: The Homegrown Threat (2007), www.brennancenter.org/sites/default/files/legacy/Justice/20070816.NYPD.Radicalization.in.the.West.pdf. Pursuant to the settlement in Raza v. City of New York, the materials have been removed from the NYPD’s website. Settlement Stipulation and Order at Ex. A, Raza v. City of New York, No.13-3448 (S.D.N.Y. 2016), available at www.aclu.org/legal-document/raza-v-city-new-york-exhibit-settlement-stipulation-and-order-proposed-modified.

0.    For a discussion of FBI and CIA spying in the 1960s and 1970s, see infra Chapter 12.

0.    Al Baker and Kate Taylor, “Bloomberg Defends Police’s Monitoring of Muslim Students on Web,” N.Y. Times, Feb. 21, 2012, www.nytimes.com/2012/02/22/nyregion/bloomberg-defends-polices-monitoring-of-muslim-student-web-sites.html; Hina Shamsi, “Landmark Settlement in Challenge to NYPD Surveillance of New York Muslims: What You Need to Know,” ACLU: Speak Freely, Jan 7. 2016, www.aclu.org/blog/speak-freely/landmark-settlement-challenge-nypd-surveillance-new-york-muslims-what-you-need (describing the settlement agreement in Raza, which includes—subject to court approval—the appointment of an independent civilian monitor and a limitation on the use of undercover officers); Settlement Stipulation and Order at Ex. A, Raza v. City of New York, No.13-3448 (S.D.N.Y. 2016), available at www.aclu.org/legal-document/raza-v-city-new-york-exhibit-settlement-stipulation-and-order-proposed-modified; Paul J. Browne, “NYPD’s ‘Muslim Mapping’ Saved Lives,” N.Y. Post, Apr. 20, 2014, http://nypost.com/2014/04/20/nypds-muslim-mapping-saved-lives/ (arguing that the Demographics Unit was instrumental in thwarting some of “terrorists’ relentless post-9/11 efforts to again target New York”); Charles Krauthammer, “The Case for Profiling,” Time, Mar. 10, 2002, http://content.time.com/time/magazine/article/0,9171,216319,00.html; Michael Kinsley, “When Is Racial Profiling Okay?,” Wash. Post, Sept. 30, 2001, www.washingtonpost.com/archive/opinions/2001/09/30/when-is-racial-profiling-okay/4fdb1630-d0b1-4810-aa11-8237c5bbbafc/.

0.    Krauthammer, “The Case for Profiling,” supra note 8.

0.  National Institute of Justice, DNA Sample Collection from Arrestees (last visited Apr. 8, 2016), www.nij.gov/topics/forensics/evidence/dna/pages/collection-from-arrestees.aspx.

0.  Drug Testing for Welfare Recipients and Public Assistance, National Conference of State Legislatures, www.ncsl.org/research/human-services/drug-testing-and-public-assistance.aspx (noting that more than a dozen states have approved some form of welfare drug testing since 2010); Marc Lacey, “U.S. Finds Pervasive Bias Against Latinos by Arizona Sheriff,” N.Y. Times, Dec. 15, 2011, www.nytimes.com/2011/12/16/us/arizona-sheriffs-office-unfairly-targeted-latinos-justice-department-says.html; Matt Apuzzo and Michael S. Schmidt, “U.S. to Continue Racial, Ethnic Profiling in Border Policy,” N.Y. Times, Dec. 5, 2014, www.nytimes.com/2014/12/06/us/politics/obama-to-impose-racial-profiling-curbs-with-exceptions.html; National Institute of Justice, DNA Sample Collection from Arrestees, www.nij.gov/topics/forensics/evidence/dna/pages/collection-from-arrestees.aspx.

0.  United States v. Brignoni-Ponce, 422 U.S. 873 (1973); Maryland v. King, 133 S. Ct. 1958, 1967 (2013) (upholding Maryland’s collection of DNA from those arrested only for serious crimes and categorizing the testing as an identification procedure); Bd. of Educ. of Independent School District No. 92 v. Earls, 536 U.S. 822, 826 (2002) (approving a drug-testing program for students involved in extracurricular activities, despite no evidence of a drug problem unique to that population, and categorizing the testing as a special need).

0.  For a discussion of how the Fourth Amendment’s purpose is to prevent arbitrary policing, see supra Chapter 6.

0.  Chisun Lee, “In Search of a Right,” Village Voice, July 26, 2005, www.villagevoice.com/news/in-search-of-a-right-6399394.

0.  Brown v. City of Oneonta, 221 F.3d 329, 334 (2d Cir. 1999); Diana Jean Schemo, “College Town in Uproar Over ‘Black List’ Search,” N.Y. Times, Sept. 27, 1992; Lee, “In Search of a Right,” supra note 13 (dorm rooms, admissions officer). Other sources vary on the exact numbers involved. See, e.g., Bob Herbert, In America; Breathing While Black, Nov. 4, 1999 (14,000 residents, fewer than 500 black residents, and around 150 black students); Lee, “In Search of a Right,” supra note 13 (400 black students and several hundred black residents).

0.  Lee, “In Search of a Right,” supra note 13.

0.  City of Oneonta, 221 F.3d at 337, 339.

0.  See, e.g., id. at 337–39. Compare United States v. Avery, 137 F.3d 343, 354 (6th Cir. 1997) (holding that the equal protection clause prohibits “investigative surveillance” based solely on race), with United States v. Travis, 62 F.3d 170, 176 (6th Cir. 1995) (Batchelder, J., concurring in judgment) (deeming the equal protection analysis “simply not germane” to consensual encounters).

0.  See Erwin Chemerinsky, Constitutional Law: Principles and Policies, 5th ed. (2015), 697.

0.  See, e.g., NYC Transit Auth. v. Beazer, 440 U.S. 568, 592–93 (1979) (upholding a New York City Transit Authority hiring policy that distinguished between people who regularly use narcotics, including methadone primarily used as treatment, and those who don’t); Ry. Express Agency v. New York, 336 U.S. 106, 109–110 (1949) (upholding a New York law distinguishing between advertisements on delivery trucks and on all other vehicles).

0.  See, e.g., Beazer, 440 U.S. at 594 (“No matter how unwise it may be for TA to refuse employment to individual car cleaners, track repairmen, or bus drivers simply because they are receiving methadone treatment, the Constitution does not authorize a federal court to interfere in that policy decision.”); Ry. Express Agency, 336 U.S. at 110 (deferring to the government’s conclusion that advertisements on delivery vehicles present less of a traffic problem because “[i]t would take a degree of omniscience which we lack to say that such is not the case”).

0.  Korematsu v. United States, 323 U.S. 214, 216 (1944) (noting that racial classifications are “immediately suspect” and subject to “the most rigid scrutiny”); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (“[T]he purpose of strict scrutiny is to ‘smoke’ out illegitimate uses of race.… The test also ensures that the means chosen ‘fit’ this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.”).

0.  See, e.g., Craig v. Boren, 429 U.S. 190, 201–202 (1976) (applying intermediate scrutiny and explaining that using “maleness … as a proxy for drinking and driving” by eighteen- to twenty-year-olds was an “unduly tenuous fit” where just 2 percent of males in that age group were arrested for that offense). See generally Chemerinsky, Constitutional Law: Principles and Policies, supra note 19, at 699; Joseph Tussman and Jacobus tenBroek, “The Equal Protection of the Laws,” Calif. L. Rev. 37 (1949): 348–53.

0.  See, e.g., City of Oneonta, 221 F.3d at 337 (“In acting on a description provided by the victim of the assault … defendants did not engage in a suspect racial classification that would draw strict scrutiny”); Monroe v. City of Charlottesville, 579 F.3d 380, 388 (4th Cir. 2009) (upholding a DNA dragnet because although the Equal Protection Clause comes into play when “the government distinguishes among the citizenry on the basis of race,” in that case “any descriptive categorization came from the rape victims who described their assailant”).

0.  Brothers of the Blacklist (Whatnot Productions 2014) (“[T]he only list I ever wanted to be on was the Dean’s List.”); Lee, “In Search of a Right,” supra note 13 (quoting Eliot Spitzer).

0.  Peter Verniero and Paul H. Zoubek, Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling (1999), 4, 24–25, www.state.nj.us/lps/intm_419.pdf.

0.  State v. Soto, 734 A.2d 350, 353, 355, 360 (N.J. Super. Ct. Law Div. 1996).