High Court Refuses to Hear Racial Profiling Case

Warren Richey, Christian Science Monitor, October 7, 2008

The US Supreme Court has declined to hear the case of a man who was kicked off an American Airlines jetliner in Boston because a flight attendant thought he looked like a Middle Eastern terrorist.

John Cerqueira is an American citizen of Portuguese heritage who was trying to fly home to Fort Lauderdale on Dec. 28, 2003. Instead, he was escorted off the jetliner and questioned by police for two hours because American Airlines personnel thought his dark hair and olive complexion made him look Middle Eastern.

When police realized the mistake, they reported back that Mr. Cerqueira was cleared to travel. But American refused to issue him a ticket on any of its flights.

Cerqueira sued American Airlines for discrimination and won. An appeals court in Boston reversed that decision.

On Monday, the Supreme Court announced it would not examine the case. The justices offered no explanation for their decision. The action means the appeals court ruling throwing out Cerqueira’s case remains undisturbed.

At issue in the unusual case was a little-known law that authorizes air carriers to refuse to transport any passenger for safety reasons.

Cerqueira’s lawyers say the appeals court decision against their client is a judicial endorsement of discrimination and racial profiling.

{snip}

Cerqueira is not alone in his plight. Since 2001, the Department of Transportation has received 953 complaints of discrimination against US airlines, Mr. Kirkpatrick said.

Lawyers for American Airlines said the air carrier and its employees have a duty to protect the lives of all passengers and crew members on their flights. “If the pilot-in-command of an airliner concludes, based on information that comes to him, that there is or might be a safety hazard aboard his aircraft, [federal aviation law] authorizes him to act to protect the safety of the entire aircraft by removing a passenger from the aircraft before flight,” wrote Dallas lawyer Michael Powell in his brief on behalf of American Airlines.

The law does not provide carte blanche to the airlines, however. Airline officials are barred from exerting this statutory power in ways that are arbitrary or capricious.

{snip}

Cerqueira first attracted the attention of the flight attendant when he asked if he could change his seat assignment to an exit row. She told him he’d have to wait until the gate personnel arrived. The flight attendant later told the captain of Flight 2237 that Cerqueira had been “very hostile and extremely insistent that his seat be switched to an exit row seat,” according to the American Airlines brief.

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When Cerqueira tried to book a seat on the next flight for Fort Lauderdale, American refused to sell him a seat. His money was refunded and he flew home the next day on a different airline.

Cerqueira sued American for discrimination. A Boston jury awarded him $400,000 in compensatory and punitive damages. The appeals court reversed the decision and threw out the awards.

American Airlines argued that the courts must consider the propriety of a pilot’s decision not to transport a passenger in light of the cumulative information available to the pilot at the moment of decision—not with the benefit of hindsight and fact checking.

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