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High court refuses to hear racial profiling case

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

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

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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.