Like everyone else at San Antonio airport on the night of September 17,Ashraf Khan passed through tight security before boarding Delta Airlines flight1469 to Dallas, the first leg of a two-day journey to Karachi, Pakistan, where heplanned to attend his brother's wedding. Khan, an 11-year U.S. resident with agreen card, had settled into his first-class seat when the pilot announced thatthe plane would be delayed. Minutes later, the pilot left the cockpit, approachedKhan, and asked to speak with him in the gate area outside the plane. There thepilot declared that he and his crew did not feel safe flying with Khan on boardand even questioned how the 32-year-old businessman had managed to get afirst-class ticket. Angry and humiliated, Khan returned to the terminal andwatched the plane leave without him.
Widespread fear of further terrorist attacks has led to the removal ofmore than a dozen brown-skinned men from flights throughout the country becausethey 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," claimthat their civil rights have been violated by airline staff and pilots whopractice a new form of racial profiling. While just about everyone is willing toaccept heightened airport security and even increased questioning of certainpassengers in the wake of the September 11 attacks, civil-rights advocates insistthat the fine line between profiling at security checkpoints and barring orejecting passengers must be drawn more clearly. Though strong words from federalofficials and airline CEOs have led to a decline in profiling incidents since earlyOctober, the spate of incidents in September have left airlines with many thornylegal questions to answer.
Khan maintains that the pilot had no legal grounds for his action. "Oncesomeone 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 forhis removal and offering to fly him to Pakistan, but the next available flightwould not have arrived in Karachi until the evening of September 21, well afterhis 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 LakeCity on September 20. Spokesman Douglas Killian initially insisted that NorthwestAirlines "took the appropriate action," though the airline later apologized whenthreatened 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 flightto Washington on September 21. An airport manager told him apologetically thatthe pilot refused to fly with him on board, explaining, "We've reviewed yourprofile; your name is Mohamed." In a similar case involving United, Iraqi-Americanbusinessman 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 Buttwere attending a food-manufacturing exhibition as guests of the U.S. Departmentof Commerce. After boarding their U.S. Airways flight to Baltimore on September17, 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 conventioncontaining their photographs. Still, Ali and Butt were asked to leave the plane.And in Seattle, Vahid Tony Zohrehvandi, an Iranian-American engineer andpart-time consultant for American Airlines, was ejected from a flight operated byhis employer on September 21. He was allowed to fly on a subsequent flight onlyafter the pilot was consulted and agreed to fly with a "Middle Eastern" man onboard.
Kelli Evans and Christy Lopez of the Washington, D.C., law firmRelman and Associates are representing Zohrehvandi and several other men who werekicked off flights in recent weeks. All of their clients were cleared for boardingby law-enforcement officers, yet the pilots still refused to fly with them. Evansand Lopez likened Zohrehvandi's experience under these circumstances to forcingcustomers in a restaurant to wait until a nondiscriminatory waitress is willingto seat them. While acknowledging that airlines may refuse to transportpassengers who behave suspiciously, Evans insists that "refusing service topassengers based on their race is illegal." Indeed, federal aviation regulationsare unambiguous on this point, stating: "An air carrier or foreign air carriermay not subject a person in air transportation to discrimination on the basis ofrace, color, national origin, religion, sex, or ancestry." U.S. Secretary ofTransportation Norman Mineta, a Japanese American who was himself interned duringWorld War II, has publicly affirmed his department's commitment tonondiscrimination, declaring that "all of us will face heightened security in theaftermath of September 11, but the security and scrutiny must never becomepretexts for unlawful discrimination." The Department of Transportation iscurrently investigating at least seven cases of racial profiling on planes and maypursue enforcement action if it is deemed necessary.
Meanwhile, Evans maintains that the airlines' refusal to transport herclients and others also violates federal contract law--specifically, Title 42,Section 1981, of the U.S. Code, a pillar of the Reconstruction-era drive forracial equality. Passed in 1870 to ensure that freed slaves could enter themarketplace, the law guarantees: "All persons within the jurisdiction of theUnited States shall have the same right in every State and Territory to make andenforce contracts ... and to the full and equal benefit of all laws andproceedings for the security of persons and property as is enjoyed by whitecitizens." In Evans's eyes, her clients' right to make and enforce a contract--anairline ticket--was violated when they were ordered off their respective flightssolely because of their skin color. Airlines "are fundamentally relying on fear,"Lopez says. "There is no safety justification and absolutely no legal justificationwhatsoever for what they're doing."
But others disagree. Neil Livingstone, CEO of Global Options, an internationalrisk-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 oftime." Even if that must be the case, the distinction between strict securityscreening and arbitrary refusal to transport certain passengers must be moreclearly delineated. (After all, few of the men removed from flights in recentweeks 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 thatthere must be more effective profiling at the security-screening stage so thatpilots feel safe. "Without a doubt, people have been wrongly taken off flightsover the last month," he says. As pilots, security "shouldn't even be a concernof ours. By the time a person gets on one of our aircraft, we should be able toknow that he is not a threat to us or our passengers. Our security at this stagehas proven that it is incapable of determining whether an Arab man has been inthe United States for two years training to drive an airplane into a building orwhether he is a graduate of the University of Michigan working as an engineer forFord," Weiser points out. "An airport security screener makes minimum wage, " headds, "so what do we expect?" The more difficult issue, Weiser contends, isovercoming the racial-profiling reflex among passengers and their ingrained fear offlying with men who appear to be Arabs.
Some airlines seem to acknowledge the distinctions between increased securityand on-board profiling and have admitted that their pilots were wrong. OnSeptember 21, Delta CEO Fred Reid insisted that in suspicious situations, "ourresponse 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 arenot planning to pursue a traditional lawsuit. Rather than seeking compensatorydamages for violation of Khan's civil rights, they are contemplating aconciliatory gesture. "Among other things, we are considering asking Delta to setup a foundation for the education of Americans about other cultures, specificallyIslam and South Asia," Willy explained. Given the persistence of racial profilingamong pilots and passengers alike, such a foundation may be just what America andits airlines need.
