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Supreme Court's Fisher Ruling Supports Muslim Profiling
Supreme Court Reaffirms in Fisher Ruling That Even Suspect Factors Like Race (and Presumably Religion) May Constitutionally Be Considered
Indeed, because this decision - unlike others in the past which upheld using race as a factor in governmental decision making, but only when used in combination of other factors - did not stress the prior requirement that the suspect factor (here race) could not be considered in isolation from other factors, it makes it somewhat more likely that governmental decisions and policies based solely on race or religion would be constitutional, explains Banzhaf.
Thus, although Banzhaf has stressed that the TSA could constitutionally select Muslims with greater frequency for secondary screening at airports, he generally noted that it should be done only if other factor like age, gender, etc. were also considered.
This may no longer be necessary, or at least this requirement may be somewhat relaxed, in view of today's decision, he suggests.
Also, since Texas' admissions policy already guaranteed the admission of a substantial number of black students - because it automatically admitted all who graduated in the top 10% of their classes, including from largely black schools - the need for additional consideration of race was substantially reduced.
Thus the Supreme Court's ruling that the plan was still constitutional suggests, if the same criteria are applied regarding Muslims, that a weaker standard of proof to show that a compelling governmental interest is being served may be applicable.
Finally, although the Court did say that the use of a suspect factor such as race must be narrowly tailored to achieve its stated goal, it paid virtually no attention to the many alternatives which had been suggested which did not involve the direct consideration of race.
This suggests that the "narrowly tailored" requirement, in situations where the government considers suspect factors such as race or religion, may likewise be more easily satisfied.
In short, says Banzhaf, since the governmental need in preventing terrorist bombing and other killings is far more compelling than adding more black students on top of those already admitted by the top 10% program, and because under terrorist profiling religion is considered only in combination with other factors, today's ruling bolsters the argument that considering religion in programs aimed at protecting us from terrorists would be constitutional.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418
GW Law School