Civil Rights
Jun. 18, 2002
Some Acts of Discrimination Can Ensure the Safety of All
Forum Column - By Ira L. Shafiroff - The American Civil Liberties Union recently has filed suit against four airlines, charging them with violating federal and state civil rights acts when they removed five Middle Eastern-looking passengers from flights following the Sept. 11 terrorist attacks.
By Ira L. Shafiroff
The American Civil Liberties Union recently has filed suit against four airlines, charging them with violating federal and state civil rights acts when they removed five Middle Eastern-looking passengers from flights following the Sept. 11 terrorist attacks. The lawsuits were filed in federal district courts in Los Angeles and San Francisco, as well as Maryland and New Jersey. Four of the plaintiffs are American citizens. While the suits may have some superficial emotional appeal, they are legally flawed. Further, if the plaintiffs prevail, all of us will be less safe in the skies.
The suits claim that the airlines violated 42 U.S.C. Section 1981, the Civil Rights Act, which prohibits racial discrimination, and California Civil Code Section 51, the Unruh Civil Rights Act, which prohibits businesses from discriminating on the basis of racial or ethnic characteristics. Some plaintiffs seek damages; all want the airlines enjoined from engaging in this conduct in the future.
While all Americans should decry the irrational and hate-filled discrimination that triggered this nation's civil rights movement in the 1950s and 1960s, we cannot condemn all discriminatory acts as irrational or wrong. Indeed, some discrimination is quite appropriate. For example, when African-American churches were fire-bombed in the 1960s, the FBI focused their attention on white suspects only. Irrational? Certainly not.
Similarly, the overwhelming majority of the people who support, fight and die for al-Qaida - allegations against Jose Padilla notwithstanding - are from the Middle East.
This does not mean that all Arabs are suspects. It does mean, however, that when a trained and experienced flight crew becomes suspicious of a particular passenger, in the absence of a showing that the crew has a history of malicious discrimination, we should defer to their hunches. Why? Because the flight crew is the last line of security and defense in the protection of passengers and people on the ground, as Sept. 11 tragically proved.
Some may take offense that a passenger could be removed on the basis of a hunch. Yet many believe that if FBI officials in Washington had listened to the hunches of field agents in Phoenix and Minneapolis, the attacks on Sept. 11 could have been prevented. Moreover, one passenger, actor James Woods, became suspicious of several Middle Eastern looking men on the plane that he was on several weeks before the attacks, going so far as to tell the pilot that the men were going to hijack the plane. They didn't because, as we now know, they were on a rehearsal flight for Sept. 11. Not animus but a good-faith belief in danger, coupled with a keen sixth sense, motivated the FBI agents and Woods to pursue their hunches.
Indeed, good faith may well be a valid defense to a cause of action based on 42 U.S.C. Section 1981. Moreover, Lazar v. Hertz, 69 Cal.App.4th 1494 (1999), has held that the Unruh Civil Rights Act is not violated when acts of discrimination are reasonable and not arbitrary. The conduct of the flight crews in the cases just filed by the ACLU cannot be said to be unreasonable and may even satisfy a rigorous strict scrutiny standard of review: The protection of life obviously is a compelling interest, while the good faith and polite removal of a questionable passenger by a trained crew is the least drastic means to ensure the safety of all.
We are at war. To date, 3,000 civilians and 36 of our soldiers are dead, and the toll almost certainly will increase. Yet few Americans have had to make any real sacrifice in this war. At worst, there have been some annoyances at airports. One would have hoped that the plaintiffs in these cases would have recognized this and understood that their removal to the next flight was not done to embarrass but to protect. But avoiding self-perceived embarrassment in a "me-first" view of life - narcissism at its finest - apparently trumps saving lives. Sadly, if the plaintiffs win, trained and experienced crews will not act when their instinct tells them action is required. That puts all of us in jeopardy.
Many believe that if the FBI had "connected the dots" before Sept. 11, the attacks may have been avoided. If you believe that, consider this: Suppose the FBI began an investigation in the months before Sept. 11 of all Arab men taking flight lessons in the United States. If that had happened, the ACLU would have filed suit to enjoin the government from engaging in racial profiling.
Déjà vu?
Ira L. Shafiroff, a professor at Southwestern University School of Law in Los Angeles, is the author of "Every Christian's Book on Judaism: Exploring Jewish Faith and Law for a Richer Understanding of Christianity."
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