The author proposes that in an ongoing debate on questions concerning the possibility of racial or other types of invidious discrimination by public institutions, we should apply a prima facie standard to these claims in the public arena. In other words, if African Americans or Latinos say that they have been the victims of racial profiling, we should not ask for conclusive proof in the strictest statistical sense; rather, if they can present some credible evidence beyond anecdotes, some statistics that indicate that we may, indeed, have a problem, the burden should then shift to the public institution-here, law enforcement agencies-to collect the information necessary to either confirm or dispel the perception that a problem exists. This seems an important ingredient to the proper understanding and resolution of societal policy arguments and disagreements, especially when the governmental action alleged has such dire consequences for the individuals affected and for the integrity and legitimacy of the institutions themselves. When public confidence in our most vital institutions of government is undermined, as is clearly already happening with racial profiling, we ought not be satisfied with the declaration that conclusive proof is not available, especially when access to that proof is in every way controlled by the institutions accused of wrong doing. Instead, when victims present a prima facie case, the burden should shift to the government to show that its conduct is above reproach. Only that type of standard for our public debate on such crucial issues can ensure the legitimacy of our public institutions.
David A. Harris,
When Success Breeds Attack: The Coming Backlash Against Racial Profiling Studies,
Mich. J. Race & L.
Available at: https://repository.law.umich.edu/mjrl/vol6/iss2/2