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 , Staff writer of The Christian Science Monitor

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.

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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.

Nonetheless, Mr. Powell suggested safety is the paramount consideration. "The consequences of a timid or wrong decision can be catastrophic," Powell wrote.

Kirkpatrick disagreed with this approach. He said American Airlines acted in an arbitrary and capricious manner in its treatment of Cerqueira. The airline's actions were based solely on racial stereotypes, he said.

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.

She later reported (inaccurately, it turned out) that although Cerqueira was sitting in coach he had boarded with the first-class passengers. In addition, the flight attendant reported that upon entering the plane Cerqueira went to a lavatory, where he remained for an extended period. He then returned to his seat, worked on his computer for a while, and fell asleep.

In the meantime, the pilot sent his copilot back to the lavatory to check for bombs. No bombs were found.

Next, two other Middle Eastern-looking men, both conversing loudly in a foreign language, sat next to Cerqueira in the exit row. One of the two men wore a ponytail. The pilot remembered him. When the pilot arrived at the gate, the man with the ponytail approached him and asked if he was the captain for the Fort Lauderdale flight. When the pilot said yes, the passenger responded: "Good. I'm going with you. We're going to have a good day today."

The pilot, with 17 years of experience, said it was one of the oddest exchanges he's ever had with a passenger. "It concerned me greatly," he said later.

As the flight was preparing to depart, flight attendants reported that the two Middle Eastern-looking men were acting "bizarrely" and were laughing. One attendant reported to the pilot that the men did not take the emergency exit-row briefing seriously.

One of them asked during the briefing: "Where do you want me to put the door."

This was too much for the crew. The jetliner returned to the gate and all three men in the exit row were escorted off the jet by four uniformed Massachusetts State Police troopers.

During two hours of questioning, the troopers learned that Cerqueira did not know the two other men. They also discovered that the two men were Israeli. Police concluded that none of the three were terrorists.

The only connections between the men were their seat assignments and a perception among American Airlines personnel that all three looked Middle Eastern.

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.

Cerqueira's lawyers say such an approach to the law amounts to a license to engage in discrimination under the guise of airline safety.

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