By Cynthia Gonzalez
Cynthia Gonzalez is a 2017 graduate of Boston College Law School.
In the past, our courts have decided that African-Americans have no rights the white man is bound to respect,1 separate but equal is appropriate under the federal Constitution,2 it is criminal to speak against our military’s involvement in a war,3 and interning Japanese-Americans is a legitimate national security measure.4 While these historical decisions are now universally condemned, it appears that the core ideology animating them remains strong among large swaths of the citizenry. Rather than learning from history, we are beginning to repeat it.
“It’s not the worst thing to do,” says President Donald Trump, referring to racially profiling the Muslim population in furtherance of law enforcement policies.5 Decades after minorities fought to overcome hatred and inequality during the civil rights movement, open racism has in fact been resurgent. The discriminatory rhetoric of leaders in this country, in addition to arbitrary policing policies, seems to have turned much of public opinion back to the days of Jim Crow—although now it is also directed at Muslims and Latinos.6 There is an increasing public disregard for the Constitution and its guarantees of freedom of expression, religion, and equal protection to all citizens, regardless of race, ethnicity, and religion.
Can any discussion about constitutional rights realistically prevent negative public sentiment from targeting the Muslim population? Khairuldeen Makhzoomi does not think so. Mr. Makhzoomi, a senior at the University of California, Berkeley, was granted asylum in the United States after his father was killed by Saddam Hussein’s secret police in 2002.7 On April 6, 2016, Mr. Makhzoomi boarded a plane in Los Angeles headed to Oakland, California. Before boarding his flight, he called his uncle to discuss an event he had been excited to attend the day before: a dinner with United Nations Secretary-General Ban Ki-moon.8 He noticed a woman staring at him as he spoke to his uncle in Arabic. Within minutes of boarding, police officers removed Mr. Makhzoomi from the plane. The officers inquired into his motive for speaking Arabic. Three FBI agents, who accused him of trying to leave a “bag on the plane,” interrogated him and he was searched in front of other passengers.9 This was not an isolated incident. In August 2016, two Muslim-American women were removed from an American Airlines flight “after a flight attendant said that overhearing them talking with other passengers about the lack of food and water on the flight made him uncomfortable.”10 Based on these incidents, one Muslim-American remarked that when arriving at the airport, she now “need[s] to know if I should ask my ride to stick around just to make sure I can get on the plane.”11
Muslim does not mean Arab. But in this new world, panic is erasing important nuances and differentiations regarding race and religion. Islam is treated as a visible racial marker, Arab as a religious marker.12 Ignoring the distinctions between these categories allows the lines between religious intolerance and racism to be blurred and perpetuates the stereotype that both are dangerous to public safety. Long beards and headscarves become telltale signs to watch out for.13 People have become afraid to speak in languages commonly associated with Islam while out in public.14
History of profiling
Racial profiling is an old story in the United States. When speaking to politically conservative audiences willing to fight terrorism at the expense of civil liberties, government officials often use euphemisms such as counterterrorism, counterradicalization, countering Islamic extremism, and fighting homegrown terrorism, rather than “racial pro ling.”15 Public support for racial pro ling as a method for preventing acts of espionage or terrorism is reminiscent of sentiment expressed in this country prior to the internment of Japanese-Americans during World War II.16 Then, the United States government forced the relocation and incarceration of over 110,000 Japanese-Americans.17 The government singled out a particular population based on ethnicity and national origin using national security to justify such discrimination. The federal government has since acknowledged that the internment was reprehensible by paying reparations to the victims and their descendants. Yet, at the time, the Supreme Court found this government policy to be permissible as a means of public necessity.18
The practice described above is to be distinguished from criminal profiling. Criminal profiling is a type of pro ling that is a legitimately established law enforcement practice that incorporates social science theory and statistical methodology into crime-solving strategies.19 Criminal profiling is the “police practice of viewing certain characteristics as indicators of criminal behavior.”20 It describes the likely idiosyncrasies of one who committed a particular crime, based on evidence and information found at a crime scene along with specific characteristics of the crime itself.21 Various aspects of the criminal’s personality are determined from his or her choices before, during and after the crime.22 This information is combined with other relevant details and physical evidence and then compared with the characteristics of known personality types and mental abnormalities to develop a practical working description of the offender.23
By contrast, racial profiling does not involve social science or statistical methodology, but resorts to singling out individuals simply because of their race.24 Racial profiling thus refers to the targeting of particular individuals by law enforcement authorities based not on their behavior, but rather on their personal, often immutable, characteristics,25 including sometimes singling out an entire population based solely on national origin. It also generally encompasses ethnicity and religion—which are together (impermissibly) used by law enforcement to determine which individuals to stop, detain, and/or question.26 The practice has been included within law enforcement activities that are premised on the erroneous assumption that individuals of a particular race, ethnicity, national origin, or religion are more likely to engage in certain types of unlawful conduct than are individuals of another race, ethnicity, national origin, or religion.27
During the 2008 presidential campaign, candidate Barack Obama promised that, if elected, he would ban the practice of racial profiling by federal law enforcement agencies and provide federal incentives to state and local police departments to prohibit the practice.28 During a 2009 congressional hearing, Attorney General Eric Holder similarly declared that racial profiling was “simply not good law enforcement,” and that ending the practice was a “priority” for the Obama administration.29 Notwithstanding the fact that racial pro ling is unconstitutional, and despite the emphatic declaration from the federal government that the practice is “invidious,” “wrong,” “ineffective,” and “harmful to rich and diverse democracy,” various community policing programs at the federal and state levels confirm that racial profiling still very much exists.30
Community policing operates on the premise that, in a democratic society, police need the assistance and resources of residents to address crime effectively.31 Community policing is based on trust. It requires a two-way communication between the police and the public, encouraging police to work with social service agencies to prevent crime before it occurs, and creating new channels for the police to learn more about neighborhood problems.32 However, the “community policing” that has taken place in Muslim-American communities has not been a two-sided policy inspired by methods of trust. Rather, it has come to involve choosing a select few from Muslim communities to infiltrate their own mosques and surveil their own communities.
Community policing in practice: Origins of Hassan v. City of New York
Once it became evident that the terrorist attacks on 9/11 were carried out by Arabs from Muslim-majority countries, the federal government immediately engaged in a sweeping “counterterrorism” campaign focused on Arabs, Muslims, and anyone perceived to be a member of the these groups. In 2001, the New York Police Department (NYPD) established an informant- based, “secret spying program” to infiltrate and monitor Muslim life in and around New York City.33 The goal was to create a human mapping system that monitored Muslims along the Eastern Seaboard and beyond.34
Part of the NYPD’s surveillance was led by informants, also known as “mosque crawlers.”35 Informants were selected from a pool of arrestees, prisoners, and recent immigrants or suspects, who were pressured into co- operating with law enforcement.36 The NYPD recruited these informants to act as inside observers in mosques.37 The informants reported on sermons, provided names of attendees, and took pictures.38 Employing a method called “create and capture,” the NYPD instructed these informants to “create” conversations about jihad or terrorism with congregants, then “capture” and report responses to the police.39
The surveillance program was founded on a false and unconstitutional premise: that Islamic religious belief and practices are a sufficient basis for law enforcement scrutiny.40 The NYPD monitored or infiltrated almost every aspect of Muslim life, from mosques and student associations to private associations to Muslim-owned business establishments including halal butcher shops and restaurants.41 The program continued undiscovered for more than a decade until it was exposed by the Associated Press in 2011.42
In June 2012, a group of Muslims and organizations who had been targeted for NYPD surveillance led suit against the city in federal court, alleging violations of their rights under the First and Fourteenth Amendments of the Constitution. The plaintiffs claimed that, in addition to singling out organizations and businesses for surveillance that in some way were visibly or openly affiliated with Islam (such as mosques or businesses with prayer mats or other Islamic identifications), “the Program also intentionally targeted Muslims by using ethnicity as a proxy for faith.”43
The district court dismissed the plaintiffs’ Fourteenth Amendment claim in February 2014, concluding, among other things, that the NYPD could constitutionally target the Muslim community as a proxy for “Muslim terrorist activities.”44 The court reasoned, in a manner chillingly reminiscent of the Japanese-American internment cases, that the plaintiffs failed to state a viable equal protection claim because “[t]he more likely explanation for the surveillance was a desire to locate budding terrorist conspiracies” than a desire to discriminate.45 The plaintiffs appealed the decision in Hassan v. City of New York to the Court of Appeals for the Third Circuit.
Judicial reasoning in Hassan v. City of New York
The Fourteenth Amendment states: “[No] State [shall] deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”46 These provisions are universal in their application. They protect all persons within the territorial jurisdiction of the United States—without regard to race, color, nationality, or citizenship status.47 The plaintiffs in Hassan claimed that the City of New York was breaking that mandate and violating their rights by surveilling them pursuant to a program that investigates persons not because of any reasonable suspicion of wrongdoing, but solely because of their Muslim religious affiliation.48 Accordingly, a “claim of selective investigation” by the police draws on “ordinary equal protection standards.”49 Taking this into account, the Third Circuit first examined whether the city intention- ally discriminated against a reasonably identifiable group and whether that intentional discrimination was legally justified.50
To successfully allege a viable equal protection claim, the court explained that a plaintiff must demonstrate the government’s “intentional discrimination.”51 It further stated that, when determining whether there existed an equal protection claim, a plaintiff needs to assert more than simple surveillance by law enforcement.52 Rather, the claim needs to demonstrate that religious affiliation was a substantial factor for why the group was targeted for such surveillance.53
In defense of its action the City of New York first argued that its program had the “legitimate purpose” of “analy[zing]…potential [security] threats and vulnerabilities” and that its motive was not to discriminate against the Muslim population. Rather, its purpose was counterterrorism. The court disagreed with this analysis, explaining that discriminatory motive is not a necessary element of discriminatory intent. The court explained that it is sufficient that the “state actor meant to single out a plaintiff because of the protected characteristic itself.”54 The court took the plaintiffs’ action as an opportunity to distinguish between “intent” and “motive,” clarifying that a defendant acts intentionally when he or she desires a particular result, without reference to the impetus for such a desire.55 Thus, motive explains the reasoning behind the defendant’s desired result.56 In declaring that a viable equal protection claim does not require intentional discrimination motivated by “ill will, enmity, or hostility,” the Third Circuit set an important precedent.57 Going forward, a plaintiff could allege intentional discrimination without demonstrating a defendant’s malign motive.58 Ultimately, the court ruled that, even if NYPD officers were motivated by legitimate reasons of national security, they engaged in intentional discrimination if they would not have surveilled the plaintiffs but for their being Muslims.59 This in itself demonstrated that religious affiliation was a substantial factor for the surveillance and sufficient to demonstrate intentional discrimination. In short, the court held that if the surveillance would not have occurred but for the subjects’ religion, the plaintiffs presented a legitimate claim of intentional discrimination under the Fourteenth Amendment.
The City of New York additionally defended its actions by arguing that the plaintiffs had not provided information about “when, by whom, and how the policy was enacted and where it was written down.”60 However, the court again concluded that the plaintiffs had sufficiently alleged a facially discriminatory policy even without identifying a piece of paper on which the practice was memorialized.61 Indeed, the court noted that “direct evidence of intent is ‘supplied by the policy itself.’”62 The court focused on the ultimate practice of the program, not the existence of its bureaucratic manifestation. Further, although the motivation may have theoretically been reasonable, the court reasoned that the ultimate intent of the city was, in practice, to treat two groups—Muslims and non-Muslims—differently. To the court, such differentiation was sufficient to assert a legitimate claim of intentional discrimination.
In addition to their equal protection claim, the plaintiffs in Hassan alleged violations of the First Amendment’s Free Exercise and Establishment Clauses (also known collectively as the Religion Clauses). The Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”63 The rights to freely exercise one’s religion and to be free from government-established religious mandates, clearly forbid the government from intruding on one’s personal religious beliefs.
Though the City of New York argued that such claims were unfounded because of the plaintiffs’ failure to show a discriminatory purpose, the court reiterated that neither clause is “confined to actions based on animus.”64 In other words, because the city’s program could not be applied generally to all people, because in practice it singles out a particular group, it therefore created a First Amendment violation. In this regard, the city’s motivation was irrelevant. And, due to the fact that the government’s program in Has- san was not “generally applicable,” the court found that the plaintiffs had properly asserted and demonstrated claims under the First Amendment’s Religion Clauses and, accordingly, reversed the district court’s dismissal of the action.657
The program: Countering Violent Extremism
Even so, on July 6, 2016, the Department of Homeland Security (DHS) announced its commencement of a new version of “community policing”: The Countering Violent Extremism (CVE) Grant Program.66 The purpose of the program was to develop and expand efforts at the community level to combat violent extremist recruitment and radicalization to violence.67 The program offers funding for activities that enhance the resilience of communities being targeted by violent extremists, provides alternatives to individuals who have started down a road to violent extremism, and creates or amplifies alternative messages to terrorist/violent extremist recruitment and radicalization efforts.68 It also seeks to develop and support efforts that counter violent extremists’ online recruitment efforts.69
The grant was authorized in December 2015, through the Department of Homeland Security Appropriations Act.70 Specifically, the grant appropriated $10 million for a “countering violent extremism (CVE) initiative to help states and local communities prepare for, prevent, and respond to emergent threats from violent extremism.”71 It sought to bring together state and local communities with religious groups, mental health and social service providers, educators, and other non-governmental organizations in order to create prevention programs that addressed the root causes of violent extremism and deterred individuals who may already be radicalized toward violence.72 But, as already noted, CVE-type programs have existed for some time in various forms and, more often than not, resulted in dubious outcomes.73 And while the stated purpose of the current program is to target all violent extremism, and was the alleged focus in the New York City’s program, its primary focus is to police Muslims.74
Although descriptions of the 2015 CVE program do not necessarily identify the particular community being targeted,75 in reality—as is clear from the White House CVE strategy and planning documents, and the February 2015 White House CVE summit—Muslim communities are currently the principal, if not sole, target of CVE programs.76 The White House CVE strategy and planning documents suggest a focus on combating foreign fighter recruitment, particularly those from Syria and Iraq.77 The three pilot CVE programs currently implemented in Boston, Los Angeles, and Minneapolis have directed policing toward Muslim communities and have not made any effort to address other types of domestic terrorism.78 President Obama specifically mentioned in a January 2016 speech that the administration’s intent is to defeat the Islamic State of Iraq and the Levant (ISIL).79 “We have to prevent it from radicalizing, recruiting and inspiring others to violence in the first place.”80 He continued:
At home, the Department of Homeland Security is leading a new Countering Violent Extremism Task Force. Experts from the Department of Justice, Federal Bureau of Investigation, the National Counterterrorism Center, and other agencies will work hand-in-hand in one office to ensure that we are doing everything we can in communities to prevent radicalization.81
Even though Barack Obama began his presidency with a strong stance against racial pro ling, over the final two years of his presidency, both his administration and Congress promoted Countering Violent Extremism (CVE) as a “soft” counterterrorism methodology designed to empower communities and build resilience to extremism.82 But the defective foundation on which CVE-type programs are built ensures they will have negative consequences, including stigmatizing Muslims and reinforcing Islamophobic stereotypes, facilitating covert intelligence-gathering, suppressing dissent against government policies, and sowing discord in targeted communities.83 These programs have only promoted awed theories of terrorist radicalization which, in turn, lead to unnecessary fear, discrimination, and unjustifed reporting to law enforcement against Muslims.84 While ISIL may be the largest terrorist threat that America presently faces, it is also obvious that the focus of CVE programs inevitably portrays Muslim-Americans as inherently suspect, thus feeding into the anti-Islam narrative that is becoming increasingly dominant in our national public discourse.85
Countering Violent Extremism: An unconstitutional program
In Hassan the court noted that a discriminatory intent need not be memorialized for a party to bring a viable equal protection claim. Similarly, any Muslim-American policed or surveilled under a CVE-sponsored program could allege that the program is facially discriminatory even if discriminatory intent is nowhere written down. Still, in alleging an equal protection claim, a plaintiff needs to assert more than mere surveillance by law enforcement. The claim needs to assert that religious affiliation is a substantial factor behind the reason the plaintiff has been targeted for surveillance. As noted above, while the CVE grant does not expressly target a particular community, the court in Hassan made clear that a state actor’s discriminatory intent rests on whether it would have policed the subject community in the same way if that community’s members were not of a particular nationality, race, or religion. As noted during the White House CVE summit, and as the current implementation of the program has made clear, the purpose of CVE is to combat radicalization and recruitment into ISIL, and other forms of “Islamic extremism.” In his speeches, Obama specified, “this means defeating their ideology.”86 He specifically called for the involvement of religious leaders as a method of “amplifying authentic voices from at-risk communities.”87 But the proof of discrimination is in the policy—“[d]irect evidence of intent is ‘supplied by the policy itself.’”88 All that is required in order to assert a viable equal protection claim is that the government agent(s) meant to single out an individual because of his or her protected characteristic.89 In this sense, CVE, in practice, is a discriminatory program unlikely to pass muster under the Equal Protection Clause because the program has been specifically designed to target Muslim-American communities, making religious affiliation a substantial factor for why the group has been targeted. Thus, even if government officers are subjectively motivated by a legitimate law-enforcement purpose (no matter how sincere), they are engaging in intentional discrimination if they would not have surveilled certain individuals but for their Muslim faith.
Accordingly, in situations where, for example, a Muslim-American is policed at his school or members of a mosque are surveilled, the CVE program would be equivalent to the discrimination experienced faced by the plaintiffs in Hassan. Therefore, following the framework set in Hassan, members of a policed community under CVE will likely be able to establish that they were targeted solely on the basis of their religious affiliation.
In addition to asserting a viable equal protection claim, members of a Muslim-American community being surveilled under a CVE program would have a viable claim under the First Amendment’s Religion Clauses. The plaintiffs in Hassan had raised similar claims and the Third Circuit concluded that the plaintiffs did not need to demonstrate the government’s discriminatory purpose in order to prove that the government violated the First Amendment, since it was sufficient that it had passed a law intended to single out a particular religious group.90
Specifically, under the Establishment Clause, the prohibition against governmental endorsement of religion precludes the government from conveying or attempting to convey a message that a religion or a particular religious belief is favored or preferred, or is disfavored or deemed undesirable.91 “When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment Clause value of official religious neutrality, there being no neutrality when the government’s ostensible object is to take sides.”92 Furthermore, the Establishment Clause has a broader application than does the Free Exercise Clause, in that an individual may claim a violation of the Establishment Clause without having suffered any impairment of their religious beliefs. A claim under the Free Exercise Clause requires a narrower allegation of direct governmental infringement on one’s religious beliefs or practices.93
After the exposure of the New York City program, religious leaders felt forced to censor what they said to their congregants, fearing something could be taken out of context by police officers or informants.94 The American Civil Liberties Union reported that some religious leaders began to feel the need to regularly record their sermons in order to defend themselves against potential government mischaracterizations.95 Further, in the midst of the program’s discovery, Muslims reported feeling pressure to avoid appearing overtly religious, some even changed their dress or the length of their beards.96 Muslim-Americans hesitated before speaking Arabic or Urdu in public97 and they hesitated before attending religious services or joining faith-based groups.98 News of the City’s program even led college students to remain silent while in school, choosing to avoid anything that would profile them on campus or in the classroom.99 The current CVE program will continue to feed such fears. For example, recently, in November 2016, reports surfaced that Muslim women feared wearing faith-based articles of clothing in public100 and mothers all over the United States pleaded with their daughters to avoid wearing their hijabs in public.101
Although public sentiment and continued stigmatization against Muslims is not itself a violation of the First Amendment, CVE programs, in practice, amount to a government preference of one religion over another, which is a violation of the Establishment Clause. Likewise, a law or state-sponsored program that produces a change in how individuals practice their religion can be an infringement on an individual’s constitutional right to freely exercise his or her religious beliefs under the Free Exercise Clause.
The rights to freedom of religious exercise and political expression are being denied to brown-skinned people suspected of being Muslim today. Under government-sanctioned racial oppression and segregation in the United States,102 Muslim-Americans have abandoned discussions about religion and politics and have avoided mosque and community spaces altogether simply to escape being branded as “at risk” or potential “terrorists” by any CVE programs.103 Indeed, insofar as CVE trainings promote guidance for understanding “radicalization” and observing malleable “indicators” and/ or “predictors” of violence, in practice, CVE initiatives are likely to result in law enforcement targeting individuals based on their political opinion and religious exercise.104 But, again, these are First Amendment-protected activities—no government-sponsored programs should be allowed to chill them and law enforcement cannot use them as a basis for action.105
CVE’s focus on Muslim-Americans and purportedly Muslim com- munities stigmatizes this population as inherently suspect.106 It alienates them from their neighbors and singles them out for monitoring based on faith, race, and ethnicity.107 Ultimately, the Constitution requires that law enforcement programs must distinguish among individuals and segments of communities solely by their acts and not by personal characteristics, such as race or religion.108 The abandonment of a law enforcement approach that counts a person’s religious identity as a reason for suspicion will certainly result in not only a substantially reduced risk of violations of constitutional rights, but is also a more effective approach to law enforcement.109 This is so because the time and resources currently wasted on the investigation of innocent individuals who happen to t a racial or religious pro le will be better spent on a targeted focus on those individuals who have demonstrated their criminal propensity or culpability by their actions.110
National security cannot perpetually trump constitutional rights
Religious discrimination, “by [its] very nature,” has long been thought “odious to a free people whose institutions are founded upon the doctrine of equality.”111 Since our country’s inception, the Founding Fathers made clear that “religious minorities as well as religious majorities were to be equal in the eyes of the political state.”112 President James Madison asserted:
A just Government…will be best supported by protecting every citizen in the enjoyment of his Religion with the same equal hand which protects his person and his property; by neither invading the equal rights of any Sect, nor suffering any sect to invade those of another.113
The court in Hassan was similarly clear in its condemnation of the use of any CVE-type program that would lead to adverse treatment against religious minorities. Yet, as history has continuously shown, different racial and religious groups have:
borne the brunt of majority oppression during different times.114 When racial or religious lines are drawn by the State, the multiracial, multireligious communities that our Constitution seeks to weld together as one[,] become separatist; antagonisms that relate to race or to religion…are generated.115
As evidenced by recent events in the United States, “centuries of experience testify that laws aimed at one…religious group…generate hatreds and prejudices which rapidly spread beyond control.”116 And while national security appears to provide compelling reasons for the implementation of such programs, “history teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure.”117 At the same time, we should realize that history does in fact repeat itself—and is repeating itself. While panic after the attack on Pearl Harbor resulted in internment camps and the aggrandizement of national security over constitutional rights,118 “the past should not preface yet again bending our constitutional principles merely because an interest in national security is invoked.”119 CVE is not a groundbreaking program. It is not a brand new constitutionally-based initiative. As stated by Judge Ambro in Hassan and Justice Douglas in one of the Japanese-American Internment cases:
We have been down similar roads before. Jewish-Americans during the Red Scare, African-Americans during the Civil Rights Movement, and Japanese- Americans during World War II are examples that readily spring to mind. We are left to wonder why we cannot see with foresight what we see so clearly with hindsight120 —that ‘[l]oyalty is a matter of the heart and mind[,] not race, creed, or color.’121
Courts “can apply only law, and must abide by the Constitution, or [they will] cease to be civil courts and become instruments of [police] policy.”122 Such beliefs only seem to last, when they exist at all, until the next time there is a fear of minorities who cannot be easily sorted out from the many.123
Racial profiling is the current generation’s favored form of racial discrimination. It has found its way into law enforcement and government-sponsored counterterrorism programs and has expanded its bounds to include ethnicity as a proxy for faith. Yet, as explained above, regardless of motivation, the discriminatory intent of the CVE program gives rise to viable First and Fourteenth Amendment claims. Though the court in Hassan did not rule that the program was unconstitutional, it paved the way for other victims of such surveillance to state constitutional claims against other CVE programs.
The rationale behind community policing is to develop trust between the community and law enforcement, so that eventually the community will feel comfortable maintaining constant two-way communication with law enforcement, reporting suspicious activity and potential radicalization. However, as evidenced by the failure of the New York City’s pro ling program, policing was based on bias and irrational suspicion. Thus, instead of developing a trusting relationship with law enforcement, the community came to fear law enforcement. Accordingly, CVE will follow in the same path as its New York predecessor. Further, policing agencies are unlikely to be successful in creating partnerships to address violent extremism until they establish unbiased and trusting relationships with the communities they serve.124 It must be manifestly clear to everyone that religious belief does not amount to terrorism.
U.S. courts have long held that laws which prohibit the free exercise of religion, show favor or disfavor to a particular religion, or violate equal protection based on race, gender, nationality, or religion are unconstitutional and thus void. We now have a President who routinely insults and derogates Muslims, and inspires clear violations of the Constitution. The comments broadcast by Trump before and during his presidency have encouraged hate crimes throughout the country against the Muslim-American population. Anti-Muslim statements have been written on the walls of Muslim prayer rooms,125 for example.. Muslim students have been threatened with being set on re unless they removed their hijabs,126 and men have choked Muslim women and attempted to remove their hijabs.127 The result of the 2016 election has given rise to an increased stigma on the Muslim population, one that, regardless of any CVE program, will continue to exist. Though the law prohibits an endorsement of religion, and prohibits any limitation on free expression and the freedom to exercise of religion, with his rhetoric Trump encourages both.
Prior cases involving discrimination against racial minority groups should remind us that when we allow “fundamental freedoms to be sacrificed in the name of real or perceived exigency, we invariably come to regret it.”128 Sending in infiltrators and recruiting members of the Muslim community to spy on their co-religionists, as the government has consistently done, harms both the Constitution and public safety. Removing American citizens from airplanes because they choose to speak in their native tongue or because of their physical characteristics, does not prevent crime or terror. These are the acts of bigots, not crime-fighters.
Until this kind of policing stops and our counterterrorism policy is made to align with the lofty ideals of our Constitution, there will be neither liberty, safety, nor unity.
- See Scott v. Sandford, 60 U.S. 393 (1857).
- See Plessy v. Ferguson, 163 U.S. 537 (1896).
- See Debs v. United States, 249 U.S. 211 (1919).
- See Korematsu v. United States, 323 U.S. 214 (1944).
- Emily Schultheis, Donald Trump: U.S. Must “Start Thinking About” Racial Profiling, CBSNEWS.COM (Jun. 19, 2016, 10:14 AM), http://www.cbsnews.com/news/donald-trump-after-orlando-racial-profiling-not-the-worst-thing-to-do/.
- For one explanation on the intentional use of “Latinx,” see Raquel Reichard, Why We Say Latinx: Trans & Gender Non-Conforming People Explain, Latina (Aug. 29, 2015), http://www.latina.com/lifestyle/our-issues/why-we-say-latinx-trans-gender-non-conforming-people-explain.
- Robert Mackey, Iraqi Refugee Kicked Off Plane for Speaking Arabic in L.A. Says Islamophobia Boosts ISIS, THE INTERCEPT (Apr. 18, 2016, 1:34 PM), https://theintercept. com/2016/04/18/hysteria-watch-iraqi-refugee-kicked-off-plane-speaking-arabic-l/.
- Carma Hassan & Catherine E. Shoichet, Arabic-Speaking Student Kicked Off Southwest Flight, CNN (Apr. 18, 2016, 9:12 PM), http://www.cnn.com/2016/04/17/us/southwest-muslim-passenger-removed/.
- Mackey, supra note 7.
- Christine Hauser, 2 Muslim American Women Ordered Off American Airlines Flight, N.Y. TIMES, (Aug. 5, 2016), http://www.nytimes.com/2016/08/06/us/2-muslim-american-women-ordered-off-american-airlines-flight.html?_r=0.
- Haroon Moghul, The Unapologetic Racial Profiling of Muslims Has Become America’s New Normal, QUARTZ (Apr. 20, 2016), http://qz.com/665317/the-unapologetic-racial-profiling-of-muslims-has-become-americas-new-normal/.
- Sahar F. Aziz, Policing Terrorists in the Community, 5 HARV. NAT’L SEC. J. 147, 156 (2014).
- Deborah A. Ramirez et al., Defining Racial Profiling in A Post-September 11 World, 40 AM. CRIM. L. REV. 1195, 1201 (2003).
- Japanese Relocation During World War II, NATIONAL ARCHIVES, http://www.archives.gov/education/lessons/japanese-relocation (last modified Apr. 10, 2017).
- See Hirabayashi v. United States, 320 U.S. 81 (1943); see also Korematsu v. United States, 323 U.S. 214 (1944) (where the Supreme Court, in perhaps its most reviled decision since Dred Scott, held that placing people of Japanese descent into concentrations camps was lawful).
- Ramirez et al., supra note 18, at 1202.
- See John E. Douglas et al., Criminal Profiling from Scene Analysis, 4 BEHAVIORAL SCIENCES AND THE LAW 401 (1986), available at http://ravenndragon.net/montgomery/ crimprofiling.pdf.
- BRENT TURVEY, CRIMINAL PROFILING: AN INTRODUCTION TO BEHAVIORAL EVIDENCE ANALYSIS 72-73 (Academic Press, 4th ed. 2011).
- TURVEY, supra note 24.
- Aaron Blake, Donald Trump Doesn’t Call His Position Racial Profiling. It Is., WASH. POST (Sept. 20, 2016), https://www.washingtonpost.com/news/the-fix/wp/2016/09/20/donald-trump-doesnt-call-his-position-racial-profiling-it-is/.
- THE LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIGHTS, RESTORING A NATIONAL CONSENSUS: THE NEED TO END RACIAL PROFILING IN AMERICA 7 (2011), available at http://www.civilrights.org/publications/reports/racial-profiling2011/racial_profil- ing2011.pdf.
- at 2.
- BARACK OBAMA & JOE BIDEN, BLUEPRINT FOR CHANGE: OBAMA AND BIDEN’S PLAN FOR AMERICA 63-65 (2008), available at https://assets.documentcloud.org/documents/550007/barack-obama-2008-blueprint-for-change.pdf.
- Commerce, Justice, Science, and Related Agencies Appropriations for Fiscal Year 2010: Hearing on H.R. 2847 Before the S. Subcomm. of the Comm. on Appropriations, 111th Cong. 70 (2009) (statement of Eric H. Holder, Jr., Att’y Gen. of the United States).
- CIV. RIGHTS DIV., DEPT. OF JUSTICE, GUIDANCE REGARDING THE USE OF RACE BY FEDERAL LAW ENFORCEMENT AGENCIES 1 (2003), https://www.justice.gov/sites/default/files/crt/legacy/2010/12/15/guidance_on_race.pdf.
- Aziz, supra note 17, at 155.
- at 156.
- Hassan v. City of New York, 804 F.3d 277, 285 (3d Cir. 2015).
- Hassan v. City of New York, CENTER FOR CONSTITUTIONAL RIGHTS, https://ccrjustice. org/home/what-we-do/our-cases/hassan-v-city-new-york (last modified Feb. 3, 2017) [hereinafter CENTER FOR CONSTITUTIONAL RIGHTS].
- Hassan v. City of New York, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, https://www.au.org/our-work/legal/lawsuits/hassan-v-city-of-new-york (last updated Feb. 26, 2016) [hereinafter AMERICANS UNITED].
- Factsheet: The NYPD Muslim Surveillance Program, ACLU, https://www.aclu.org/ other/factsheet-nypd-muslim-surveillance-program (last visited June 13, 2017).
- CENTER FOR CONSTITUTIONAL RIGHTS, supra note 36.
- ; see also Matt Apuzzo & Adam Goldman, Documents Show NY Police Watched Devout Muslims, ASSOCIATED PRESS (Sept. 6, 2011), http://www.ap.org/Content/ AP-In-The-News/2011/Documents-show-NY-police-watched-devout-Muslims.
- Hassan, 804 F.3d at 286.
- AMERICANS UNITED, supra note 37.
- Hassan, 804 F.3d at 289.
- S. CONST. amend. XIV, §1.
- Rashad Hussain, Preventing the New Internment: A Security-Sensitive Standard for Equal Protection Claims in the Post-9/11 Era, 13 Tex. J. C.l. & C.r. 117, 143-44 (2007).
- Hassan, 804 F.3d at 294.
- (quoting Flowers v. City of Minneapolis, 558 F.3d 794, 798 (8th Cir. 2009)).
- at 296.
- Hassan, 804 F.3d at 296
- at 297-98.
- at 297.
- Hassan, 804 F.3d at 298.
- (quoting Garza v. County of Los Angeles, 918 F.2d 763, 778 (9th Cir. 1990) (Kozinski, J., concurring in part and dissenting in part) (“[T]here can be intentional discrimination without an invidious motive.”)).
- Faiza Patel, What the Third Circuit Said in Hassan v. City of New York, JUST SECURITY BLOG (Oct. 14, 2015, 1:50 PM), https://www.justsecurity.org/26827/circuit-hassan-v-city-york/.
- Hassan, 804 F.3d at 295; see also Massarsky v. Gen. Motors Corp., 706 F.2d 111, 128 (3d Cir. 1983) (Sloviter, J., dissenting).
- S. CONST. amend. I.
- Hassan, 804 F.3d at 309.
- Fact Sheet: FY 2016 Countering Violent Extremism (CVE) Grants, DEPT. OF HOMELAND SECURITY (July 6, 2016), https://www.dhs.gov/news/2016/07/06/ fy-2016-countering-violent-extremism-cve-grants.
- Department of Homeland Security Appropriations Act, (DHSAA) Pub. L. No. 114-113 (2015).
- Countering Violent Extremism (CVE): A Resource Page, BRENNAN CENTER FOR JUSTICE (Feb. 12, 2015), https://www.brennancenter.org/analysis/cve-programs-resource-page [hereinafter CVE].
- BRENNAN CENTER FOR JUSTICE, COUNTERING VIOLENT EXTREMISM: MYTHS AND FACT 1 (Nov. 2015), available at https://www.brennancenter.org/sites/default/files/analysis/102915%20Final%20CVE%20Fact%20Sheet.pdf.
- Press Release, The White House Office of the Press Secretary, Fact Sheet: The White House Summit on Countering Violent Extremism (Feb. 18, 2015), available at https://www.whitehouse.gov/the-press-office/2015/02/18/fact-sheet-white-house-summit- countering-violent-extremism [hereinafter White House Summit].
- See BRENNAN CENTER FOR JUSTICE, supra note 75.
- Press Release, The White House Office of the Press Secretary, How We’re Countering Violent Extremism at Home and Abroad (Jan. 8, 2016), available at https://www.whitehouse. gov/blog/2016/01/08/how-were-countering-violent-extremism-home-and-abroad.
- BRENNAN CENTER FOR JUSTICE, supra note 75.
- Cve, supra note 73.
- BRENNAN CENTER FOR JUSTICE, supra note 75.
- White House Summit, supra note 77.
- Hassan, 804 F.3d at 295; see also Massarsky v. Gen. Motors Corp., 706 F.2d 111, 128 (3d Cir. 1983) (Sloviter, J., dissenting).
- Hassan, 804 F.3d at 297.
- Hassan, 804 F.3d at 295.
- See, e.g., Freedom from Religion Found. v. Concord Cmty. Sch., 207 F. Supp. 3d 862, 868 (N.D. Ind. Sept. 14, 2016) (claim under Establishment Clause seeking to ban school from performing a nativity scene).
- McCreary County v. ACLU, 545 U.S. 844, 860 (2005).
- Malnak v. Yogi, 440 F. Supp. 1284, 1317 (D. N.J. 1977).
- Factsheet: The NYPD Muslim Surveillance Program, ACLU, https://www.aclu.org/ other/factsheet-nypd-muslim-surveillance-program (last visited June 13, 2017).
- Arjun Sethi, Spying on Muslims is Legal?, CNN (Feb. 26, 2014, 7:54 AM), http://www.cnn.com/2014/02/26/opinion/sethi-spying-on-muslims-legal/.
- Rachel Thompson, Muslim Women Are Scared to Wear the Hijab in Public After Trump Win, MASHABLE (Nov. 9, 2016), http://mashable.com/2016/11/09/muslim-women-scared-hijab/#mHeC4M88aiqm.
- Referencing the N.Y. State sponsored community policing program against the Muslim population and the DHS sponsored CVE Program specifically directed against Muslim American communities. See also Executive Order: Protecting the Nation From Foreign Terrorist Entry Into The United States, Office of the Press Secretary (Jan. 2017), available at https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting- nation-foreign-terrorist-entry-united-states (discussing the Executive Order issued on Friday, January 27, 2017, which banned entry into the U.S. from seven majority-Muslim countries – Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen – for 90 days as well as indefinitely banned Syrian refugees from the U.S. Refugee Admissions Program).
- Letter from various Human Rights organizations to The Honorable Lisa O. Monaco, Ass’t to the President for Homeland Security and Deputy National Security Adviser (Dec. 18, 2014) (on file with Amnesty International USA), available at http://www.amnestyusa.org/pdfs/AIUSA_CVECoalitionLetter_December2014.pdf.
- Mark P. Fancher, Wanted: FBI Transparency About Racial Profiling in Arab and Muslim Communities, 15 J. l. SOC’Y 1, 12 (2013).
- Hassan, 804 F.3d at 302 (quoting Hirabayashi v. United States, 320 U.S. 81 (1943)); see also Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 653 (1943).
- Va. State Bd. of Educ., 319 U.S. at 653.
- Hassan, 804 F.3d at 302 (quoting President James Madison, Religious Freedom: A Memorial and Remonstrance Against the General Assessment, in “A Bill Establishing Provision for the Teachers of the Christian Religion,” Presented to the General Assembly of Virginia, at the Session of 1785 (1819)).
- Hassan, 804 F.3d at 303.
- Wright v. Rockefeller, 376 U.S. 52, 67 (1964) (Douglas, J., dissenting).
- Commc’ns Ass’n v. Douds, 339 U.S. 382, 448 (1950) (Black, J., dissenting).
- Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 635 (1989) (Marshall, J., dissenting).
- See generally Grutter v. Bollinger, 539 U.S. 306, 351 (2003) (Scalia, J., concurring in part and dissenting in part) (“The lesson of Korematsu is that national security constitutes a ‘pressing public necessity,’ though the government’s use of [a suspect classification] to advance that objective must be [appropriately] tailored.”).
- Hassan, 804 F.3d at 307.
- at 309.
- Ex parte Mitsuye Endo, 323 U.S. 283, 302 (1944) (emphasis added).
- Korematsu, 323 U.S. at 247 (Jackson, J., dissenting).
- at 240 (Murphy, J., dissenting).
- DAVID SCHANZER ET AL., THE CHALLENGE AND PROMISE OF USING COMMUNITY POLICING STRATEGIES TO PREVENT VIOLENT EXTREMISM: A CALL FOR COMMUNITY PARTNERSHIP WITH LAW ENFORCEMENT TO ENHANCE PUBLIC SAFETY (Jan. 2016), available at https://www.ncjrs.gov/pdffiles1/nij/grants/249674.pdf.
- Holly Yan, Kristina Sgueglia & Kylie Walker, ‘Make America White Again’: Hate Speech and Crimes Post-election, CNN (Dec. 22, 2016, 4:24 PM), http://www.cnn.com/2016/11/10/us/post-election-hate-crimes-and-fears-trnd/index.html.
- Amanda Sakuma, Muslim Women Wearing Hijabs Assaulted Just Hours After Trump Win, NBC NewS (Nov. 10, 2016, 6:39 PM), http://www.nbcnews.com/politics/2016-election/ muslim-women-wearing-hijabs-assaulted-just-hours-after-trump-win-n681936.
- Skinner, 489 U.S. at 635 (Marshall, J. dissenting).