High court refuses to hear racial profiling case

Jose Cerqueira had sued American Airlines for discrimination after being removed from a flight in 2003.

By Warren Richey | Staff writer of The Christian Science Monitor

from the October 7, 2008 edition

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WASHINGTON - 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.

"The opinion below protects airline denial-of-service decisions that are based on stereotypes about the propensity of passengers with a Middle Eastern appearance to commit acts of terrorism," wrote Washington lawyer Michael Kirkpatrick in his brief urging the court to take up the case.

The case lies at the crossroads between the vigorous protection of air carriers in a time of terrorism and strict enforcement of civil rights in a country working to overcome racism. At issue was whether both can be pursued side-by-side in a jetliner, or whether antidiscrimination laws necessarily must yield to concerns about terrorism.

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.

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