Flying while brown IS illegal.......

[David Farber <dave () farber net>]

Begin forwarded message:

From: "Paul Levy" <plevy () citizen org>
Date: January 11, 2008 3:02:19 PM EST
To: <dave () farber net>
Subject: Flying while brown IS illegal.......

Reversing a jury verdict obtained by my colleague Michael Kirkpatrick
for Portuguese-American John Cerqueira, who was kicked off an American
Airlines flight and refused future transport to his home in Florida
based on the fact that he happened to be sitting next to two Israelis
whom the flight attendants assumed were Arab terrorists, the United
States Court of Appeals for the First Circuit has held that a statute
allowing airlines to refuse to transport a passenger “the carrier
decides is, or might be, inimical to safety” overrides the federal
laws barring racial discrimination.  A jury heard the testimony of the
passenger, the flight attendants and the captain and decided that the
supposed safety reasons were a crock, and just a pretext for
discriminatory animus based on Cerqueira’s dark hair and olive
complexion.  But the court decided that, since the flight attendants did
not mention Cerqueira’s appearance when telling the captain that they
were worried that he might be a terrorist, and because only the
captain’s state of mind (and the state of mind of the systems
control officer who decided to extend the ban to future flights) is
relevant, the bias of the flight attendants was irrelevant.

As a practical matter, a flight attendant who decides to boot a
passenger for discriminatory reasons is never going to TELL the captain
that he or she is a bigot, so the result is that discrimination against
passengers who might look like a stereotype of a middle easterner has
become legal in the United States, assuming that this decision stands.
Just as judges upheld the use of the so-called “drug courier
profile,” which allowed the police to take race into account when
deciding which airline passengers to stop back in the 1980’s, we see
our court system failing to uphold our national ideals when confronting
a scary menace.

The decision can be found on our web site at
http://www.citizen.org/documents/cerqueiraappealsdecision.pdf.

(In reading the fact section of the opinion, note that the court
recited the supposed facts completely from the airline’s point of
view, ignoring the disputes in the evidence which, in normal
circumstances, a jury gets to resolve.  A fuller statement of the facts
in the record can be found in Mike’s brief at
http://www.citizen.org/documents/cerqueiraappeals.pdf).


Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation


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