Flying While Brown

Like everyone else at San Antonio airport on the night of September 17,
Ashraf Khan passed through tight security before boarding Delta Airlines flight
1469 to Dallas, the first leg of a two-day journey to Karachi, Pakistan, where he
planned to attend his brother's wedding. Khan, an 11-year U.S. resident with a
green card, had settled into his first-class seat when the pilot announced that
the plane would be delayed. Minutes later, the pilot left the cockpit, approached
Khan, and asked to speak with him in the gate area outside the plane. There the
pilot declared that he and his crew did not feel safe flying with Khan on board
and even questioned how the 32-year-old businessman had managed to get a
first-class ticket. Angry and humiliated, Khan returned to the terminal and
watched the plane leave without him.

Widespread fear of further terrorist attacks has led to the removal of
more than a dozen brown-skinned men from flights throughout the country because
they were perceived to be from the Middle East and hence a terrorist threat.
Several South Asian and Arab men, and others who appear "Middle Eastern," claim
that their civil rights have been violated by airline staff and pilots who
practice a new form of racial profiling. While just about everyone is willing to
accept heightened airport security and even increased questioning of certain
passengers in the wake of the September 11 attacks, civil-rights advocates insist
that the fine line between profiling at security checkpoints and barring or
ejecting passengers must be drawn more clearly. Though strong words from federal
officials and airline CEOs have led to a decline in profiling incidents since early
October, the spate of incidents in September have left airlines with many thorny
legal questions to answer.

Khan maintains that the pilot had no legal grounds for his action. "Once
someone passes through the security checkpoints, he has a right to fly," he said.
Soon afterward, Khan received a phone call from Delta's president apologizing for
his removal and offering to fly him to Pakistan, but the next available flight
would not have arrived in Karachi until the evening of September 21, well after
his brother's wedding ceremony.

Khan's case was not unique. In Minneapolis, Kareem Alasady, who is a U.S.
citizen, and two companions were turned away from a Northwest flight to Salt Lake
City on September 20. Spokesman Douglas Killian initially insisted that Northwest
Airlines "took the appropriate action," though the airline later apologized when
threatened with a lawsuit by Utah's attorney general. In Tampa, Mohamed el-Sayed,
a U.S. citizen of Egyptian origin, was denied boarding on a United Airlines flight
to Washington on September 21. An airport manager told him apologetically that
the pilot refused to fly with him on board, explaining, "We've reviewed your
profile; your name is Mohamed." In a similar case involving United, Iraqi-American
businessman Younadam Youkhana has filed a civil-rights lawsuit in the U.S.
District Court in Chicago.

In Orlando, Florida, Pakistani businessmen Akbar Ali and Muhammad Naeem Butt
were attending a food-manufacturing exhibition as guests of the U.S. Department
of Commerce. After boarding their U.S. Airways flight to Baltimore on September
17, the two men were questioned extensively; they showed their passports, visas,
a letter of invitation from the U.S. consul, and a brochure from the convention
containing their photographs. Still, Ali and Butt were asked to leave the plane.
And in Seattle, Vahid Tony Zohrehvandi, an Iranian-American engineer and
part-time consultant for American Airlines, was ejected from a flight operated by
his employer on September 21. He was allowed to fly on a subsequent flight only
after the pilot was consulted and agreed to fly with a "Middle Eastern" man on

Kelli Evans and Christy Lopez of the Washington, D.C., law firm
Relman and Associates are representing Zohrehvandi and several other men who were
kicked off flights in recent weeks. All of their clients were cleared for boarding
by law-enforcement officers, yet the pilots still refused to fly with them. Evans
and Lopez likened Zohrehvandi's experience under these circumstances to forcing
customers in a restaurant to wait until a nondiscriminatory waitress is willing
to seat them. While acknowledging that airlines may refuse to transport
passengers who behave suspiciously, Evans insists that "refusing service to
passengers based on their race is illegal." Indeed, federal aviation regulations
are unambiguous on this point, stating: "An air carrier or foreign air carrier
may not subject a person in air transportation to discrimination on the basis of
race, color, national origin, religion, sex, or ancestry." U.S. Secretary of
Transportation Norman Mineta, a Japanese American who was himself interned during
World War II, has publicly affirmed his department's commitment to
nondiscrimination, declaring that "all of us will face heightened security in the
aftermath of September 11, but the security and scrutiny must never become
pretexts for unlawful discrimination." The Department of Transportation is
currently investigating at least seven cases of racial profiling on planes and may
pursue enforcement action if it is deemed necessary.

Meanwhile, Evans maintains that the airlines' refusal to transport her
clients and others also violates federal contract law--specifically, Title 42,
Section 1981, of the U.S. Code, a pillar of the Reconstruction-era drive for
racial equality. Passed in 1870 to ensure that freed slaves could enter the
marketplace, the law guarantees: "All persons within the jurisdiction of the
United States shall have the same right in every State and Territory to make and
enforce contracts ... and to the full and equal benefit of all laws and
proceedings for the security of persons and property as is enjoyed by white
citizens." In Evans's eyes, her clients' right to make and enforce a contract--an
airline ticket--was violated when they were ordered off their respective flights
solely because of their skin color. Airlines "are fundamentally relying on fear,"
Lopez says. "There is no safety justification and absolutely no legal justification
whatsoever for what they're doing."

But others disagree. Neil Livingstone, CEO of Global Options, an international
risk-management firm in Washington, D.C., insists that "if you are young, male,
and Middle Eastern, you are just going to have to be profiled for a period of
time." Even if that must be the case, the distinction between strict security
screening and arbitrary refusal to transport certain passengers must be more
clearly delineated. (After all, few of the men removed from flights in recent
weeks objected to the strict security checks they went through in the terminal.)

No one recognizes this crucial distinction more than the pilots themselves.
From his point of view in the cockpit, U.S. Airways pilot Gary Weiser argues that
there must be more effective profiling at the security-screening stage so that
pilots feel safe. "Without a doubt, people have been wrongly taken off flights
over the last month," he says. As pilots, security "shouldn't even be a concern
of ours. By the time a person gets on one of our aircraft, we should be able to
know that he is not a threat to us or our passengers. Our security at this stage
has proven that it is incapable of determining whether an Arab man has been in
the United States for two years training to drive an airplane into a building or
whether he is a graduate of the University of Michigan working as an engineer for
Ford," Weiser points out. "An airport security screener makes minimum wage, " he
adds, "so what do we expect?" The more difficult issue, Weiser contends, is
overcoming the racial-profiling reflex among passengers and their ingrained fear of
flying with men who appear to be Arabs.

Some airlines seem to acknowledge the distinctions between increased security
and on-board profiling and have admitted that their pilots were wrong. On
September 21, Delta CEO Fred Reid insisted that in suspicious situations, "our
response must be based on the passenger's conduct, not on race or national
origin," citing the Delta Code of Ethics and Business.

Such remorse has not gone unnoticed by Ashraf Khan. Khan and his lawyer,
George Willy, recognize the unique context in which the event took place and are
not planning to pursue a traditional lawsuit. Rather than seeking compensatory
damages for violation of Khan's civil rights, they are contemplating a
conciliatory gesture. "Among other things, we are considering asking Delta to set
up a foundation for the education of Americans about other cultures, specifically
Islam and South Asia," Willy explained. Given the persistence of racial profiling
among pilots and passengers alike, such a foundation may be just what America and
its airlines need.