1.  Report of the New Jersey Senate Judiciary Committee’s Investigation of Racial Profiling and the New Jersey State Police (2001), 17–18 (“[T]he minority arrest rates for troopers involved in the Soto appeal were: 63%, 80%, 79%, 84%, 100%, 90%, 84% and 92%.”); Imani Perry, More Beautiful and More Terrible: The Embrace and Transcendence of Racial Inequality in the United States (2011), 102 (quoting Colonel Carl Williams); Robert D. McFadden, “Whitman Dismisses State Police Chief for Race Remarks,” N.Y. Times, Mar. 1, 1999, www.nytimes.com/1999/03/01/nyregion/whitman-dismisses-state-police-chief-for-race-remarks.html. For a discussion of the DOJ investigation and the hiding of data by state officials, see Report of the New Jersey Senate Judiciary Committee’s Investigation, supra, at 19–32. Also note that “[t]he fact that the arrest rates for whites [were] comparatively low does not mean that white motorists are less likely to be transporting drugs, but rather that they were less likely to be suspected of being drug traffickers in the first place and, thus, less likely to be subjected to probing investigative tactics designed to confirm suspicions of criminal activity.” Verniero and Zoubek, Interim Report, supra note 26, at 36.

  2.  Verniero and Zoubek, Interim Report, supra note 26, at 33–34.

  3.  Report of John Lamberth, Ph.D. at 5, Wilkins v. Md. State Police, No. CCB-93-483 (D. Md. 1993); Albert J. Meehan and Michael C. Ponder, “Race and Place: The Ecology of Racial Profiling African American Motorists,” Just. Q. 19 (2002): 422 (Michigan); David A. Harris, Profiles in Injustice: Why Racial Profiling Cannot Work (2002), 70, 81 (Michigan and North Carolina); David A. Harris, ACLU, Driving While Black: Racial Profiling on Our Nation’s Highways (1999), www.aclu.org/report/driving-while-black-racial-profiling-our-nations-highways (Colorado).

  4.  Ian Ayres and Jonathan Borowsky, A Study of Racially Disparate Outcomes in the Los Angeles Police Department (2008), 5, 8, http://islandia.law.yale.edu/ayres/Ayres%20LAPD%20Report.pdf; Floyd v. City of New York, 959 F. Supp. 2d 540, 573, 584 (S.D.N.Y. 2013); Jeffrey Fagan et al., Final Report: An Analysis of Race and Ethnicity in Boston Police Department Field Interrogation, Observation, Frisk, and/or Search Reports (2015), 2; Travis Anderson, “Boston Police Release New Data on FIO stops,” Bos. Globe, Jan. 9, 2016, www.bostonglobe.com/metro/2016/01/08/boston-police-release-new-data-fio-stops/6iPbS7E0QEYjLJIut5KnxL/story.html.

  5.  L. Song Richardson, “Arrest Efficiency and the Fourth Amendment,” Minn. L. Rev. 95 (2011): 2037–38 (hit rates); Harris, “Profiles in Injustice,” supra note 30, at 79–84 (discussing the disparity in hit rates across various contexts and states, including North Carolina); Illinois Dep’t of Transp., Illinois Traffic Stop Study: 2014 Annual Report (2015), 11–12, https://idot.illinois.gov/Assets/uploads/files/Transportation-System/Reports/Safety/Traffic-Stop-Studies/2014/2014%20ITSS%20Executive%20Summary.pdf; Ayres and Borowsky, “A Study of Racially Disparate Outcomes in the Los Angeles Police Department,” supra note 31, at i; Verniero and Zoubek, Interim Report, supra note 26, at 66.

  6.  See Harris, Profiles in Injustice, supra note 30, at 76–78; Richardson, “Arrest Efficiency and the Fourth Amendment,” supra note 32, at 2039 (“[I]mplicit stereotypes can cause an officer who harbors no conscious racial animosity and who rejects using race as a proxy for criminality to unintentionally treat individuals differently based solely upon their physical appearance.”).

  7.  Verniero and Zoubek, “Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling,” supra note 26, at 68.

  8.  Albert W. Alschuler, “Racial Profiling and the Constitution,” U. Chi. Legal F. 2002: 163 (noting widespread condemnation of racial profiling prior to the terrorist attacks of September 11, 2001); Gross and Livingston, “Racial Profiling Under Attack,” supra note 1, at 1413–14 (same); End Racial Profiling Act of 2001, S. 989, 107th Cong. (2001); Frank Newport, “Racial Profiling Is Seen as Widespread, Particularly Among Young Black Men,” Gallup, Dec. 9, 1999, www.gallup.com/poll/3421/racial-profiling-seen-widespread-particularly-among-young-black-men.aspx.

  9.  Kathy Barrett Carter, “Some See New Need for Racial Profiling—Threats to Security Alter State National Debate,” Star-Ledger, Sept. 20, 2001, at 21 (describing Farmer’s experience on September 11, 2001 and the initial impact of 9/11 on racial profiling); John Farmer, Jr., “Rethinking Racial Profiling,” Star-Ledger, Sept. 23, 2001 (Perspective), at 1.

  10.  See, e.g., Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66 (1977).

  11.  Weaver v. United States, 966 F.2d 391, 392–93 (8th Cir. 1992).

  12.  Weaver, 966 F.2d at 394 n.2; see also, e.g., Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012), 128–30 (describing how the “solely” test effectively endorses racial profiling).

  13.  Tussman and tenBroek, “The Equal Protection of the Laws,” supra note 23, at 348–53.

  14.  Weaver, 966 F.2d at 397 (Arnold, J., dissenting).

  15.  See, e.g., United States v. Jennings, No. 91-5942, 1993 WL 5927, at *4 (6th Cir. Jan. 13, 1993) (describing a DEA officer who “admit[ted] that half the people he stops at the Cincinnati airport are either Hispanic or Black,” even though “Blacks and Hispanics comprise far less than fifty percent of the airline passengers using the Cincinnati airport”). Jennings also notes other Sixth Circuit cases, two of which implicated the same officers, “involving airport narcotics agents stopping an allegedly disproportionate number of persons of color while purporting to act in accordance with drug courier profiles.” Id. at *14n3.

  16.  J.A. Croson Co., 488 U.S. at 493 (“[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.”). The figure for Muslims is from Besheer Mohamed, “A New Estimate of the U.S. Muslim Population,” Pew Research Ctr., Jan. 6, 2016, www.pewresearch.org/fact-tank/2016/01/06/a-new-estimate-of-the-u-s-muslim-population/. The number of Arab Americans is subject to debate: The U.S. Census estimates there are 1.8 million, while the Arab American Institute Foundation estimates almost 3.7 million Arab Americans in the United States. Jens Manuel Krogstad, “Census Bureau Explores New Middle East/North Africa Ethnic Category,” Pew Research Ctr., Mar. 24, 2014, www.pewresearch.org/fact-tank/2014/03/24/census-bureau-explores-new-middle-eastnorth-africa-ethnic-category/.

  17.  Vernonia School District 47J v. Acton, 515 U.S. 646 (1995) (drug testing); Michelle Hibbert, “DNA Databanks: Law Enforcement’s Greatest Surveillance Tool?,” Wake Forest L. Rev. 34 (1999): 771 n.12 (DNA testing).

  18.  See, e.g., Griffin v. Wisconsin, 483 U.S. 868, 876 (1987) (permitting the search of a probationer’s home, balancing invasion of defendant’s reduced expectation of privacy and government’s need in an effective probation system); New Jersey v. T.L.O., 469 U.S. 325, 337–42 (1985) (permitting a search of student’s property by school officials, balancing slight invasion of children’s expectation of privacy and school administrators’ interest in maintaining discipline); Bell v. Wolfish, 441 U.S. 520, 558–60 (1979) (permitting body cavity searches of pretrial detainees, balancing high intrusion of pretrial detainees’ diminished expectation of privacy and government’s significant security interests).

  19.  Von Raab, 489 U.S. at 660.

  20.  Id. at 660, 673; id. at 682–84 (Scalia, J., dissenting).

  21.  Id. at 671 (majority opinion).

  22.  Id.

  23.  Id. at 686 (Scalia, J., dissenting).

  24.  Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 610–11 (1989).

  25.  Id. at 607, 628–29. Though the government met the burden imposed by the equal protection clause, the Court did not engage in a Fourteenth Amendment analysis. It instead relied on a Fourth Amendment balancing analysis. Id. at 624. Justice Stevens’s concurrence argued that there was no evidence testing for impairment would deter employees when the worry about an accident did not. Id. at 634 (Stevens, J., concurring in part and concurring in judgment). But it seems evident that the possibility one is going to be dismissed or prosecuted immediately upon an accident—and indeed to have blame fixed squarely on one’s shoulders—adds to the consequences of one’s actions and, therefore, increases deterrence.

  26.  One might argue that the analysis here is circular: the very question is whether Fourth Amendment rights are being violated, so one can’t rely on the fact of violation to set the level of scrutiny. The Fourth Amendment only prohibits “unreasonable” searches and seizures, and until scrutiny is applied, there is no conclusion as to what is unreasonable. This argument proves too much, for the level of scrutiny typically is set as a function of the underlying interests or rights that potentially are infringed. When the government chooses among people on the basis of race, it has not necessarily violated the equal protection clause. That is the question we are trying to answer—just as in the Fourth Amendment context. But because we are concerned about racial discrimination we set the level of scrutiny high. So, too, when the worry is government arbitrariness in policing.

  27.  District of Columbia v. Heller, 554 U.S. 570, 628n27 (2008); Plyler v. Doe, 457 U.S. 202, 223 (1982). For an argument that education is a fundamental right and effectively has been recognized as such, see Barry Friedman and Sara Solow, “The Federal Right to an Adequate Education,” Geo. Wash. L. Rev. 81 (2013): 92.

  28.  Wolf v. Colorado, 338 U.S. 25, 27 (1949), overruled on other grounds by Mapp v. Ohio, 367 U.S. 643 (1961); see also Nadine Strossen, “The Fourth Amendment in the Balance: Accurately Setting the Scales Through the Least Intrusive Alternative Analysis,” N.Y.U. L. Rev. 63 (1988): 1187–91 (arguing that infringements upon Fourth Amendment liberties deserve more intense scrutiny because such liberties are fundamental, such infringements typically harm communities unpopular with police, and law enforcement agencies are nondemocratic bodies); Wayne D. Holly, “The Fourth Amendment Hangs in the Balance: Resurrecting the Warrant Requirement Through Strict Scrutiny,” N.Y.L. Sch. J. Hum. Rts. 13 (1997): 562–66 (arguing for strict scrutiny review of warrantless searches as the Fourth Amendment right is “unquestionably fundamental”); Cynthia Lee, “Package Bombs, Footlockers, and Laptops: What the Disappearing Container Doctrine Can Tell Us About the Fourth Amendment,” J. Crim. L. & Criminology 100 (2010): 1482–83 (arguing for a “non-deferential inquiry” into the reasonableness of warrantless searches of containers because such searches disproportionately hurt poor communities of color).

  29.  Matt Apuzzo and Joseph Goldstein, “New York Drops Unit That Spied on Muslims,” N.Y. Times, Apr. 15, 2014, www.nytimes.com/2014/04/16/nyregion/police-unit-that-spied-on-muslims-is-disbanded.html; Mapping Muslims, supra note 4, at 9, 12, 20 (“helped thwart”); Galati Dep. at 128–29, June 28, 2012, Handschu v. Special Servs. Div., 727 F. Supp. 2d 239 (S.D.N.Y. 2010) 71 Civ. 2203, www.nyclu.org/files/releases/Galati_EBT_6.28.12.pdf (“I have never made a lead from the rhetoric that came from a Demographics Unit report and I’m here since 2006.”).