Guilty of Flying While Brown By Kareem Shora, JD, LL.M.
Since September 11, 2001, terrorist attacks on our country, “Flying While Brown” seems to have joined the similar concerns of those “Driving While Black.”
The American-Arab Anti-Discrimination Committee (ADC) Legal Department has addressed over 60 incidents of discrimination on the part of airline crew members across the country. Unfortunately, it is now a common expectation in our country for, primarily, men of Middle-Eastern or South Asian origins, to encounter a nervous flight attendant or airline pilot who requests that the man follow them out of the plane after boarding. Once the man is in the jet-way or gate area, he is informed that he is not welcome on the flight because “the crew does not feel comfortable with on board,” or “a passenger does not feel safe with on board.”
The only articulated reason for removing people from planes is a “feeling” of discomfort on the part of another passenger or an airline crew member that can only be attributed to the deplaned passenger‘s ethnic name or appearance.
In most cases, the deplaned passenger usually has a common Arabic name similar to a name on an FBI list that airline crew members or employees use to compare to each flight‘s passenger list. So far, all passengers who were removed had, before boarding the aircraft, successfully passed at least three levels of security including the Computer Assisted Passenger Prescreening System (CAPPS), routine airport security, and screening through the FBI watch list.
Most of these cases demonstrate that even after a passenger is cleared by agents of the FBI, he is not permitted to reboard the flight again based on a “feeling” of discomfort on the part of airline crew members. Interestingly, many of the removed passengers‘ luggage remained on board the plane and reached the final destination before its owner.
Feeling nervous while flying is both expected and respected under the circumstances; however, acting on such feelings by illegally and immorally removing a passenger is pure bigotry. In response to these many incidents, ADC has repeatedly asked the Department of Transportation to set up a mechanism whereby the DOT, the airlines, the pilots‘ union and civil rights organizations could work together to establish guidelines and safeguards that would help pilots and crews avoid acting in an illegally discriminatory manner and that would provide passengers with a recourse in such situations. Unfortunately, the airlines did not take ADC‘s requests seriously. Thus, on Tuesday, June 4th, 2002, ADC joined three individuals as a coplaintiff in three lawsuits filed by the American Civil Liberties Union (ACLU) against American Airlines, Continental Airlines, and United Airlines. The three lawsuits were filed at the same time as two other lawsuits in different jurisdictions around the country.
While the details in the ADC lawsuits vary, the cases share certain key elements: the men are all of Middle-Eastern or Asian appearance; they were all ejected after passengers or flight crews said they “felt uncomfortable” with them on board; they were all immediately offered seats on subsequent flights without any further security checks; and the incidents all occurred more than a month after the terrorist attacks of September 11, some as late as New Year‘s Eve. ADC is also aware of cases or potential cases now being prepared against airlines in several other jurisdictions.
Acts of discrimination on the part of airline crew members have continued unabated despite the clearly and repeatedly articulated positions of the US Department of Transportation (DOT) and the Federal Aviation Administration (FAA) that basing a decision to remove passengers from a flight solely on their ethnicity, national origin, gender, or religion is “not only illegal but immoral.” Some airline presidents and chief executive officers also have informed their employees of this matter, yet the problem continues to this date without resolution.
While it is correct that airline captains have broad discretion to remove passengers from a flight, the law is clear on forbidding any airline official, including a flight captain, from removing any passengers based solely upon their ethnicity, national origin, gender, or religion.
Despite this, we cannot and should no blame the pilots. There is a severe lack of guidance and specific instruction on the part of the airlines to their pilots. While pilots are told not to illegally discriminate, they are not given the proper guidance on how to deal with security-related matters, nor are passengers provided with recourse in such situations. We cannot expect professional airline pilots to act as law enforcement officers, psychologists, and attorneys at the same time. We should respect those pilots as professionals trained in flying an aircraft and not burden them with such matters as determining how to deal with security and the law. It is the airlines‘ duty to properly address this crisis.
Recently, the Aviation and Transport Security Act (ATSA), Public Law No. 107-71, was passed in order to improve air transportation security. However, there are multiple problems with the ATSA. First, ATSA includes guidance as to proper self-defense training of airline crew members. Self-defense training without sensitivity training would exacerbate the antagonism between Arab-American passengers and flight crews. Furthermore, the broad definition of what constitutes a threat under ATSA leaves much room for illegal discrimination by crew members and the lack of consequences for assessing a threat incorrectly encourages illegal discriminatory behaviour. Therefore, crew training should include sensitivity training, cultural awareness, language training, and clear guidelines on what constitutes a threat.
The Transportation Security Administration (TSA) should work in conjunction with civil rights organizations and the US Department of Justice (DOJ) Civil Rights Division to establish what role race, ethnicity, national origin, and religion play in determining a threat. The TSA along with airlines should establish a step-by-step procedure once airline employees determine that there is a security threat. There should be a log of all incidents on all airlines so as to monitor discrimination against Arab-American passengers and hold airline employees accountable.
Second, ATSA requires that passenger and crew manifests must contain the names of passengers, passport numbers and country of issuance if required for travel, and US visa number or resident alien number, Furthermore, airlines are required to make passenger name records available to the Customs Service and, upon request, informations provided may be shared with other federal agencies for national security reasons. This information may be shared with other agencies, such as the Immigrations and Naturalization Service (INS) for “national security reasons,” which are not defined or limited. This sharing of information with such agencies as the INS may result in the systematic prosecution of Arab immigrants based solely on their ethnicity or national origin.
Third, ATSA provides immunity from legal liability for airline employees who negligently report passengers as a threat. Airline employees are given an ill-defined and broad power to contact law enforcement concerning Arab-American passengers for any reason that an airline employee thinks may be relevant. The standard for an airline employee to lose immunity from legal liability is the extremely high standard of reckless disregard for the truth or actual knowledge. Thus, any employee can easily manufacture an excuse as to validate harassment and still receive immunity. An airline employee should lose immunity for reporting “suspicious” activity if it is found that no reasonable person would think that there was such a threat.
Finally, to improve ATSA we must ensure that training programs and security plans currently being developed under the ACT thoroughly address civil rights issues and provide airline crew members guidance on what factors other than race and ethnicity indicate a passenger might be a threat, the standards for hiring and retaining security personnel at airports must abide by federal civil rights laws, and those hired must be properly trained in defining and detecting security threats not based on race, national origin, religion, or ethnicity. Additionally, those hired must be provided with guidelines that all security employees must follow all laws and regulations that prohibit illegal discrimination and actions must be taken against those who violate civil rights laws. Moreover, cultural and linguistic sensitivity training programs must be included at all levels for both airport security personnel and airline employees, and attorneys with the US Equal Employment Opportunity Commission (EEOC) and the DOJ Civil Rights Division need to be consulted to assist in the hiring and training policies.
Some have argued and continue to argue it is a valid assumption that the pool of potential terrorists of the kind that undertook the attacks on September 11th are limited to men of Arab descent. However, during World War II, a strong case was made that the pool of potential spies for Japan who might cause horrific damage to our country were limited to people of Japanese descent. This “valid” assumption resulted in President Franklin Roosevelt‘s Executive Order No. 9066, which led to the incarceration of over 100,000 American citizens of Japanese descent. These citizens were forced from their homes, herded into concentration camps, and arrested if they did not comply. A similar suspicion caused Americans of German descent to face similar illegal discrimination during both World War I and World War II. Although no one is arguing that such a step will ever be repeated, making any assumptions under the current circumstances could lead to large historical mistakes. We must always remember that it took eighteen months after the attack on Pearl Harbor before Japanese Americans were placed in detention camps during World War II. It has only been nine months since the terrorist attacks of September 11th, 2001.
A couple of months after September 11, Supreme Court Justice O‘Connor suggested that Americans are “likely to experience more restrictions on our personal freedom than has ever been the case in our country.” Justice O‘Connor was correct; it is a foregone conclusion that we as a collective should experience more restrictions for our own safety and our nation‘s security. However, this does not translate to mean that certain members of our society should face more restrictions than others because those individuals might have darker skin or originate from a certain region of the world. The terrorists have proven that they can and will recruit members from any ethnicity and any country to carry out their evil deeds. We‘ve seen Jose Padilla, John Walker Lindh, and Richard Reid as examples of this evil capability. Thus, focusing on Arabs and Arab-Americans not only flies against our constitutional dedication to equality under the law, but it is also “dumb” law enforcement.
Our nation is now at war for the definition of what it means to be American. Our worst enemies are not the bombs and the terrorists. Rather, our worst enemies are the changes that might be caused in our way of life by the actions for those few individuals who act based on their “feelings.” The definition of freedom, liberty, and justice for all must never and will never be changed. Ironically, President Franklin Roosevelt said, “We must scrupulously guard the civil liberties of all citizens, whatever their background. We must remember that any oppression, any injustice, any hatred, is a wedge designed to attack our civilization.” Today more than ever we should both follow President Roosevelt‘s words and learn from his mistake in signing Executive Order No. 9066.