Ali Chaudhry, Staff Writer
On August 12, 2006, thirty-year-old Raed Jarrar, an Iraqi who immigrated to the United States three years ago, was attempting to travel on JetBlue Flight 101 from New York’s John F. Kennedy International Airport to Oakland, California, when he was approached by two TSA officers. The officers told him he’d have to cover his T-shirt, which read in English and Arabic, “We Will Not be Silent.” When Jarrar asked why, one of the TSA officers said, “Coming into an airport while wearing a t-shirt with Arabic letters on it was equivalent to going into a bank while wearing a shirt saying, ‘I am a robber.'” Jarrar initially refused to cover up the shirt, first asking to speak to a supervisor, and then asking if there was a law prohibiting Arabic shirts. He finally relented when it became obvious he couldn’t get on the plane without complying. The officials purchased a t-shirt for him to wear, changed his seats without consulting him, and forced him to sit in the back where flight attendants kept an eye on him. As ridiculous as this incident may sound, Jarrar’s story is not a unique one. In today’s America, Muslim citizens are expected to leave their constitutional rights at the gates of the airport, and this trend has received active support from the courts.
In the most publicized case to date, an Arab-American secret service agent working for President Bush was denied a seat onboard an American Airlines flight. Although the parties dispute exactly what happened, race or racial stereotyping played at least a part in the airline employees’ refusal to allow the agent to re-board the plane even after his identity had been confirmed. In San Francisco, Ahsan Baig, a Pakistani businessman, was denied entry to United Flight 288 because the pilot became suspicious of the way he appeared to be talking to other passengers. Another incident in New Jersey involved a New York Family Court judge, Tejinder Singh Kahlon, a Sikh who refused to remove his turban in public for airport officials. In probably the most shocking case, a young Pakistani American woman was strip searched by Illinois National Guard troops at Chicago’s O’Hare Airport because she was wearing a traditional head covering.
After the terrorist attacks on September 11, 2001, the landscape of civil rights in America changed forever. The attacks impacted air travel more than any other aspect of American society. After all, September 11 revealed aviation security to be a national defense function, and a “beleaguered” aviation industry was quick to ask for federal assistance in drafting and enforcing of security mandates. Since the tragic events of that day, courts have been faced with litigation as a result of the terrorists’ attacks, allegations of air carrier racial discrimination, and actions involving unruly passengers. A troubling aspect of post-9/11 litigation in the aviation industry has been the claims involving of racial profiling and discrimination, as well as denial of service to passengers who may be viewed as a security threat simply because of the color of their skin, perceived ethnicity, religion, or race. Even more troubling is the trend that courts are increasingly giving deference to airline crews and pilots in ejecting passengers based on any suspicion, and such passengers have no legal remedy even after their innocence is proven.
As public carriers, “[a]n air carrier . . . may not subject a person in air transportation to discrimination on the basis of race, color, national origin, religion, sex or ancestry.” Although an air carrier cannot discriminate, the airline captain is granted wide discretion in denying boarding to any passenger, and the captain’s decision will be upheld unless it is deemed arbitrary or capricious. The standard that the “pilot in command of an aircraft is directly responsible for, and is the final authority as to the operation of that aircraft” is engrained in the theory that safety is paramount, and that any suspicions with respect to a passenger’s conduct is best resolved on the ground — not in the air. In most cases, while passengers claim race-based discrimination as the primary reason for their ejection from the plane, the airline crews regularly insist that safety was the dominant factor in their decisions. Even so, does the law then allow for racially discriminatory behavior to be allowed in the name of safety?
Validating claims that racial profiling and discrimination do indeed take place in the airline industry, the Department of Transportation (DOT) has also actively investigated complaints against major carriers, resulting in enforcement actions. In April 2003, the DOT filed an enforcement case against American Airlines attempting to impose a $65,000 civil penalty for various alleged incidents of denied boarding involving racial discrimination. On November 19, 2003, United Airlines, facing a similar federal enforcement case, entered into a consent order with the DOT denying all allegations, but committing to provide annual civil rights training for its employees for the next three years costing up to $1.5 million. Clearly, allegations of racial profiling in the airline industry are rampant and not only garner media attention, but also affect numerous travelers within the United States. The issue in the current context becomes what standards a modern-day court would use to balance the claims of racial discrimination, on the one hand, and the airlines’ asserted interests in public safety and protection against terrorism, on the other. It is important to remember that the United States Supreme Court has yet to rule on these issues. Until it does, the airline industry, and attorneys looking to bring claims on behalf of aggrieved passengers, must look to rulings by their local district courts and their corresponding appellate courts for guidance. But in a nation-wide trend, recent rulings by courts across the country, and especially in the Second Circuit, do not provide relief to passengers who may have been wronged.
Williams v. Trans World Airlines
The leading case on this issue is the Second Circuit’s decision in Williams v. Trans World Airlines, where the Court held that a refusal to transport a passenger is proper when made “in the face of evidence which would cause a reasonably careful and prudent air carrier to form the opinion that the passenger’s presence aboard the plane ‘would or might be inimical to safety of the flight.’” The situation in Williams concerned a plaintiff who had been diagnosed with schizophrenia, and whose denial of boarding was based upon specific FBI reports to the airline that the ticket holder had this specific condition and should be considered “armed and dangerous.” The court articulated a test for such cases:
The test of whether or not the airline properly exercised its power . . . to refuse passage to an applicant or ticket-holder rests upon the facts and circumstances of the case as known to the airline at the time it formed its opinion and made its decision and whether or not the opinion and decision were rational and reasonable in the light of those facts and circumstances. They are not to be tested by other facts later disclosed by hindsight.
Under Williams, a claim for a violation of rights based on a refusal to transport or a removal from the airplane is only actionable if it can be demonstrated, under the circumstances known to the airline at the time, that its opinion and decision were irrational and unreasonable and capricious or arbitrary in light of those facts and circumstances. Unless there is evidence that the carrier’s safety-related decision is a sham in order to accomplish another purpose, the carrier is not liable under a state law-based theory. Moreover, what is known to the pilot or crew at the time is paramount, regardless of whether the information is later established to be suspect or erroneous.
As Williams implies, and cases employing its test showcase, the standard for reviewing a carrier’s decision is not a subjective one. Rather, the carrier’s discretion is protected only if exercised in good faith and for a rational reason. Thus, a court must make an objective assessment of the carrier’s decision, taking into account all the circumstances surrounding the decision, including the facts known at the time and the shortage of time that flight crews have in making their decisions, and the general security climate in which the events unfold. Therefore, for all practical purposes, under the Williams test, a court “need not look beyond” the facts available at the time to determine the validity of the information actually conveyed to the pilot. A court is only tasked with determining whether the decision was “arbitrary or capricious,” and the burden for proving this, which is pretty heavy, rests on the plaintiff, which generally results in deference to the airlines for its decisions. Later decisions have expanded on the issue of deference, finding that a carrier cannot be liable merely because it was negligent in deciding that a passenger might be “inimical to safety” and therefore, under the doctrine of “permissive refusal,” the passenger can be removed from the plane.
In Zervignon v. Piedmont Aviation, a passenger reported that, prior to boarding, a group of band members was discussing arriving in “the capital,” which was interpreted to mean Havana, Cuba. This information was relayed to the captain who thereafter ejected all members of the band from the plane due to concerns of a possible hijacking. The district court held that “there can be no doubt that as a matter of law the captain’s decision was reasonable and appropriate.” The court was especially mindful of the captain’s role as commander of the aircraft, and citied federal regulations stating that the pilot “is directly responsible for, and is the final authority as to, the operation of that aircraft.”
In light of Zervignon and the federal regulations, courts are willing to allow airline captains wide latitude in determining when transportation of a passenger “would or might be inimical to safety of flight.” Most cases expressly subscribe to the view that air carrier refusal to transport is proper if the decision was not arbitrary or capricious under the facts and circumstances that existed at the time the decision was made. Despite this discretion given to captains, it can be and is abused in cases where exclusion would be unreasonable. Moreover, such exclusion premised, even in part, on the race of a passenger would be “prima facie unreasonable and thus a fortiori an abuse of discretion.” That being said, there have been only two cases in which a court has held that an airline’s decision to refuse transport to a passenger or property for safety reasons pursuant to 49 U.S.C.A. § 44902(b) was improper, and both these cases were adjudicated prior to the tragic events of September 11th. It is not the test, therefore, that is the problem but the airlines’ application and judicial enforcement of the test that is problematic. While all anti-discrimination regulations allow exceptions for safety purposes, these exceptions themselves have become the norm and today provide an umbrella of protection for discriminatory behavior aboard airplanes. Today, courts rarely ever rule in favor of plaintiffs that have been wronged by airlines, leaving such individuals no remedy or recourse available under the law.
Most recently, in January of 2009, AirTran Airways removed nine Muslim passengers, including three children, from a flight and turned them over to the FBI after one of the men commented to another that they were sitting right next to the engines and wondered aloud where the safest place to sit on the plane was. Although the FBI subsequently cleared the passengers and called the incident a “misunderstanding,” AirTran refused to seat the passengers on another flight, forcing them to purchase last minute tickets on another airline that had been secured with the FBI’s assistance. A spokesman for AirTran initially defended the airline’s actions and said they would not reimburse the passengers for the cost of the new tickets. Although the men had traditional beards and the women headscarves, AirTran denied that their actions were based on the passengers’ appearance. The following day, after the incident received widespread media coverage, AirTran reversed its position and issued a public apology, adding that it would in fact reimburse the passengers for the cost of their rebooked tickets.
Similarly, in the previous example cited of Raed Jarrar, JetBlue Airways and two TSA screeners agreed to pay $240,000 to settle the matter. American Civil Liberties Union (ACLU) attorney Aden Fine, who represented Jarrar, called it a victory, saying that, “A $240,000 award should send a clear and strong message to all TSA officials and to all airlines that what happened here is wrong and should not happen again.” Thus, there is hope indeed that where the government and the courts have failed the Muslim community in this country, civil rights groups like the ACLU will continue the fight and one day correct the wrong that’s been done. Clearly, the population at large is alarmingly comfortable with the fact that Muslims can be ejected from a plane wherever and whenever, at the mere suspicions of a fellow-passenger, and be denied basic human dignity as well as any recourse or remedy by the airlines or through judicial processes. The words on Jarrar’s t-shirt, “We Will Not Be Silent,” originated in Germany as a campaign against the Nazi repression during World War II. Maybe that could serve as an omen to our governments and judges before it is too late.
Edited by Marisa Floriani
 Mike M. Ahlers, JetBlue, TSA employees settle Arabic T-shirt case for $240,000, CNN, Jan. 07, 2009, http://edition.cnn.com/2009/US/01/07/jet.blue.settlement/index.html (last visited Mar. 29, 2009).
 Geoffrey A. Hoffman, Racial Profiling in the Air After Sept. 11: Do Those Who Claim to Have Suffered Its Indignities Have Remedies? It Would Appear So, 227 N.Y.L.J. s3, (col. 1) (Apr. 15, 2002).
 See Press Release, ACLU, ACLU of Illinois Challenges Ethnic and Religious Bias in Strip Search of Muslim Woman at O’Hare International Airport (Jan. 16, 2002), available at http://www.aclu.org/RacialEquality/RacialEquality.cfm? ID=9717&c=133&Type=s.
 Mark C. Fava, Post September 11 Aviation Law: A Proliferation of Litigation, Allegations of Racial Discrimination and Prosecutions of Unruly Passengers, S.C. Lawyer 34 (Jan. 2004).
 Tara Branum & Susanna Dokupil, Security Takeovers and Bailouts: Aviation and the Return of Big Government, 6 Tex. Rev. L. & Pol. 431 (2002).
 Id. at 455.
 Fava, supra note 9, at 38.
 49 U.S.C. § 40127 (2002).
 Fava, supra note 9, at 39.
 14 C.F.R. § 91.3(a) (1983).
 Fava, supra note 9, at 39.
 Id. at 38.
 Id. at 39.
 Id.; see also Consent Order, United Air Lines, Compliance with 49 U.S.C. §§ 40127, 41310, 41702, 41712, OST 2003-14194, Nov. 19, 2003; Continental Airlines, Inc. Compliance with 49 U.S.C. 40127, 41702, and 41712 April 2, 2004 (finding that Continental Airlines discriminated against Arab, Muslim and South Asian passengers); Delta Air Lines, Inc., Aviation Enforcement and Proceedings 2004 DOT Av. LEXIS 553 June 21, 2004 (finding that Delta removed passengers from flight because of passengers ethnicity); United Air Lines, Inc. Compliance with 49 U.S.C. 40127, 41310, 41702 and 41712 2003 DOT Av. LEXIS 947 November 19, 2003 (finding that passengers were removed from flights and denied service due to their ethnicity).
 Stephanie Wilson, Ravi Sattiraju, & E. David Krulewicz, Flying Above Discrimination: Civil Rights Issues Impacting the Airline Industry, N.J. Lawyer Mag. 12-13. (June 2008).
 Id. at 13.
 509 F.2d 942 (2d Cir. 1975).
 Id. at 948.
 Id. at 945 n.5.
 Id. at 948.
 Tory A. Weigand, Air Rage and Legal Pitfalls for State-Based Claims Challenging Airline Regulation of Passenger Conduct During Flight, Boston B. J. 10, 28-29 (May/June 2001).
 Wilson, Sattiraju, & Krulewicz, supra note 23, at 9.
 See Bayaa v. United Airlines, Inc., 249 F. Supp. 2d 1198 (C.D. Cal. 2002) (noting that the airline’s discretion under Section 44902 does not grant it a license to discriminate). See also Adamsons v. Am. Airlines, 444 N.E.2d 21, 24 (N.Y. 1982).
 Wilson, Sattiraju, & Krulewicz, supra note 23, at 9; see also Charu A. Chandrasekhar, Flying While Brown: Federal Civil Rights Remedies to Post-9/11 Airline Racial Profiling of South Asians, Asian L.J. 215, 245-26 (2003).
 Christel v. AMR Corp., 222 F. Supp. 2d 335, 340 (E.D.N.Y. 2002).
 Wilson, Sattiraju, & Krulewicz, supra note 23, at 9.
 See Adamsons v. Am. Airlines, Inc., 58 N.Y.2d 42 (1982).
Kristine Cordier Karnezis, Propriety of Air Carrier’s Refusal for Safety Reasons to Transport Passenger or Property Under 49 U.S.C.A. § 44902(b), 192 A.L.R. Fed. 403 (2008).
 558 F. Supp. 1305 (S.D.N.Y. 1983) aff’d 742 F.2d 1433 (2d Cir. 1983).
 Id. at 1307.
 Id. at 1308 n.12 (citing 14 C.F.R. 91.3(a) (1983)). See also Karnezis, supra note 38, at § 6.
 Hoffman, supra note 5, at s3, (col. 1).
 See, e.g., Dasrath v. Cont’l Airlines, Inc., 228 F. Supp. 2d 531 (D.N.J. 2002); Christel v. AMR Corp., 222 F. Supp. 2d 335 (E.D. N.Y. 2002); Sedigh v. Delta Airlines, Inc., 850 F. Supp. 197 (E.D. N.Y. 1994); Adamsons v. Am. Airlines, Inc., 58 N.Y.2d 42 (1982); Rubin v. United Air Lines, Inc., 117 Cal.Rptr.2d 109 (2d Dist. 2002).
 Hoffman, supra note 5, at s3, (col. 1).
 See Karnezis, supra note 38, at § 7.
 Donna Smith, Muslim Family Booted Off U.S. Airline Gets Apology, Reuters Jan. 2, 2009, http://www.reuters.com/article/wtMostRead/idUSTRE5012XV20090102 (last visited Mar. 29, 2009).
 Amy Gardner, 9 Muslim Passengers Removed from Jet: Others on Flight Say Remark Was Suspicious, Wash. Post. B01, Jan. 2, 2009.
 Smith, supra note 49, http://www.reuters.com/article/wtMostRead/idUSTRE5012XV20090102 (last visited Mar. 29, 2009).
 Ahlers, supra note 1, http://edition.cnn.com/2009/US/01/07/jet.blue.settlement/index.html (last visited Mar. 29, 2009).