The Return of Legalized Profiling…

By Margaret Kwoka ZMagazine 6/02/08

Recently, the U.S. Court of Appeals for the First Circuit issued a series of decisions mimicking an odd dance. The end result? The first jury verdict in favor of the plaintiff in a post-9/11 airline racial profiling case against a company that was overturned. The outcome is devastating to all people who suffer discrimination and seek a remedy in court. However, the process by which this decision was reached may be even more disturbing than the outcome.

In a decision issued on January 10, 2008, the three-judge panel that heard the appeal stated: “Race or ethnic origin of a passenger may, depending on context, be relevant information in the total mix of information raising concerns that transport of a passenger ‘might be’ inimical to safety.” This statement indicates that these three judges find it acceptable to consider a passenger’s race in determining if he or she may travel on an airplane. This is a frightening legal ruling with enormous implications.

Claims of racial discrimination are notoriously tough cases to win. Whether in a workplace, restaurant, or jury selection, a person in power who discriminates based on race can usually concoct a non-race-based reason to justify an otherwise racially discriminatory action. As Justice Thurgood Marshall wrote in a concurring opinion to the Supreme Court’s most important decision concerning racial discrimination in jury selection: “Any prosecutor can easily assert facially [race] neutral reasons for striking a juror, and trial courts are ill equipped to second-guess those reasons.”

Plaintiffs bringing discrimination cases therefore face an uphill battle to convince a jury to look deep into the mind of the decision-maker and determine that the true reason, the motivating factor for the decision–be it firing, exclusion from a public place, or dismissing a juror–was race.

After 9/11, public frenzy, fueled by media and the government, gave rise to widespread suspicions of people of Arab descent. As early as one week after the attacks, a New York Times commentator wrote that prior to 9/11, the idea that racial profiling was wrong was “so universally accepted that it had become the received wisdom.” In the aftermath, the question became whether it was acceptable to “stereotype.” The answer appeared to be yes, at least from reported experiences. Since then, “flying while Muslim” has become one description for post- 9/11 racial profiling on airlines, a play on the “driving while Black” description of police targeting African Americans for traffic stops.

In this context post-9/11 racial discrimination claims, especially those pertaining to airlines, have seemed so daunting that few plaintiffs and plaintiffs’ attorneys have chosen to litigate these cases. Because of the high security risk associated with airlines, instances of racial profiling–even when blatant–have seemed sure losers and were, indeed, frequently lost even before trial.

Finally, lawyers at Public Citizen Litigation Group brought the case of Cerqueira v. American Airlines. The plaintiff, a man of Portuguese descent, suffered serious financial and emotional injury when, mistaken for “Middle Eastern,” he was removed by the pilot from an American Airlines flight. An American Airlines administrator subsequently refused to rebook Cerqueira on a later flight. After a Boston jury awarded Cer- queira a six-figure verdict, civil liberties lawyers and racial profiling activists were given hope that anti-discrimination laws still had teeth to rectify the injustices perpetrated in the name of national security.

Sadly, the victory did not last. In an appeal to the First Circuit, American Airlines attacked all aspects of the trial, including the jury’s decision. The airline must have understood that it had far more at stake than this one verdict against it as reports of similar incidents had emerged all over the country and any indication that profiled individuals could successfully sue might subject American and others to extensive liability for violating their passengers’ rights.

American Airline’s efforts were rewarded. As noted above, the First Circuit panel not only overturned the jury verdict, but took the unusual step of entering a final judgment in favor of American Airlines, rather than sending the case back for a new trial. It ruled that not only did the trial judge give an erroneous jury instruction that rendered the verdict invalid, but also that under the correct standard, no reasonable jury could find that either the pilot who kicked Cerqueira off the plane or the agent who denied him rebooking was motivated by race.

This decision was, in part, rooted in the court’s surprising conclusion that the customary test for determining if discrimination caused a plaintiff’s injury–known as the McDon- nell Douglas burden-shifting analysis –doesn’t apply in the airline context. Rather, a higher, even tougher standard for the plaintiff is at play, essentially requiring that plaintiffs present direct evidence of discriminatory animus; inferences and circumstantial evidence no longer have value. It is a rare case where direct evidence can be found.

As if that was not bad enough, the three-judge panel went on to suggest that even if race had been a factor in the pilot’s decision to remove Cerqueira, it could have been permissible. It was a gratuitous comment, unnecessary to support their decision. Indeed, Public Citizen, barred from retrying the case by the First Circuit’s decision, filed a petition for rehearing by the entire court. “The panel’s conclusion that racial profiling is a legitimate security measure is unprecedented,” Public Citizen argued in its petition. On February 29, the full court denied the petition to rehear the case.

The unusual nature of the case was exacerbated by two additional maneuvers. First, two of the five active judges on the court dissented from the decision to deny rehearing–a relatively rare occurrence. The dissenters were critical of the court’s failure to review the three-judge panel’s decision and of some particular aspects of the decision itself, but did not touch the single most objectionable comment–that using race as a factor to deny airline service to a passenger is permissible.

Second, and most likely related, the original panel issued an “errata” to its opinion. Rather than correct a simple typographical or citation error, the court’s “errata” eliminated the entire paragraph in which the panel included its offensive legalization of racial profiling. Though we can only speculate about the court’s reason for issuing the errata–for instance, would there have been one more vote for rehearing had the paragraph stayed in the opinion?–we do know that this stealth move has two practical consequences.

First, it puts this egregious throwback to legalized racism out of reach of legal challenges. Second, it effectively denies that the three-judge panel ever legalized racial profiling so explicitly. Because the change was issued in the form of an errata and not an amendment to the decision, no researcher looking for the case in its official published report will ever know that it was so altered.

Though the court’s errata was rescinded after for six weeks when it legalized racial profiling, the extremity of the three-judge panel’s original statement cannot be ignored. The panel’s remarks regarding the per- missibility of considering race as a factor in the airlines’ safety calculus is reminiscent of the Supreme Court’s statements upholding the constitutionality of Japanese internment during World War II. In the infamous 1944 decision, Korematsu v. United States, the Supreme Court explained that, “All legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.”

Though Korematsu has long been condemned by legal scholars and courts alike, it has never actually been overruled. Thus, even today, the Supreme Court’s decision to uphold the exclusion order that drove Korematsu from his home and to an “assembly center” remains the law, ruling that, “When under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.”

In their original decision last month, three judges of the First Circuit managed to align themselves, if only temporarily, with one of the most shameful moments in U.S. legal history. They made a bold and unnecessary statement ostensibly permitting race to be considered when determining if a passenger is “inimical” to airline safety. Although that statement was ultimately struck, there can be no doubt that it was not made accidentally. We can only conclude, therefore, that we find ourselves in a dangerous judicial climate, where such a ruling is only a vote or two away from becoming law.

And yet, the First Circuit comforts us with its assurance that “[t]his case does not involve any claim of constitutional right on the part of the plaintiff…[r]ather, the case involves only the intersection of various statutes, which articulate competing policy concerns.”

Apparently, as it is merely the issue of interpreting two statutes, we should not concern ourselves that we are losing legal protection against institutionalized racism.

Margaret Kwoka, an attorney, is currently a law clerk at the Massachusetts Appeals Court.