Democracy and Homeland Security: Strategies, Controversies, and Impact

Part I. Papers Presented in Panels 1–4

The State of Aviation Security Policy: Balancing Safety and Liberty

Bassel El-Kasaby and Scott E. Tarry, University of Nebraska at Omaha


The changes in aviation security that affect civil rights are unfolding in the context of much broader legal developments. While some changes primarily affect certain minority groups, such as Middle Easterners, South Asians, and Muslims, they are likely to have profound implications on individual rights and democratic principles when considered in their totality. It is our hope that this paper will help put into perspective the importance of constitutionally protected civil rights when security issues are in the balance. This is unquestionably a challenging era for the aviation industry. Progress in preventing terrorism must be carefully weighed against its impact on well-established, even cherished, democratic values. Successful policy solutions depend on striking a well-reasoned balance between measures aimed at protecting the public in a broad sense and preserving our democratic norms, institutions, and procedures.

Starting from this premise, this paper provides an assessment of the impact of the terrorist attacks of September 11, 2001, on civil rights. The primary focus of the analysis is the effect of legal and regulatory changes precipitated by the terrorist events on the aviation industry. The issues in question relate to many civil rights such as equal protection, privacy, and the right to be free from discrimination. These rights arise, inter alia, under the Fourth and Fourteenth Amendments of the United States Constitution, as well as other antidiscrimination legislation.

As a backdrop to this discussion, the paper also surveys the broader changes affecting civil rights in general. The overall legal and political climate provides the necessary context for the topic at hand. To that end, the paper begins with an overview of aviation security policies in place both before and after September 11. The paper then examines the civil rights implications of aviation security measures and changes adopted in the aftermath of the terrorist attacks. Last, the paper discusses the broader reforms affecting national security in a more general sense. The paper concludes with recommendations about further implementation of current reforms, as well as the need for future changes.


The terrorist events of September 11, 2001, had a profound effect on the balance between airline security and passengers’ rights. The importance and relevance of this issue today cannot be overstated. Two years after the events of September 11, the terrorist acts still provide strong justification not only for heightened awareness about airline security, but also in other areas affecting national security. In fact, the ripple effect of the changes that occurred in the wake of September 11 is still being felt today. Airline security in particular is likely to remain an area of national concern for years to come.

It is important to note that aviation security was in flux long before the events of September 11. Several incidents have highlighted the issue during the 1990s. One occurrence in particular, the TWA 800 crash, served as a focusing event that put aviation security firmly on the national agenda. The TWA crash, ultimately ruled not to involve terrorism, spurred the creation of the White House Commission on Aviation Safety and Security, also known as the Gore Commission.1 The Commission was charged with examining the state of aviation security and drawing measures to combat terrorism. Even though the TWA crash was ultimately ruled not to involve terrorism, it resulted in many discriminatory policies, such as the targeting of certain groups for special screening, even though the Federal Aviation Administration (FAA) could not identify any particular threat posed by any particular group.2

The FAA endorsed the Gore Commission’s recommendations in their entirety, without a formal legislative mandate.3 The Commission recommended, among other things, increased funding for various screening technologies. This resulted in the creation of the Computer-Assisted Passenger Pre-screening System (CAPPS I and II), increased use of bag matching, and the implementation of other technologically advanced explosive detection and imaging systems.4

Critics, including airlines and civil rights advocates, immediately objected to the Commission’s recommendations for being too costly,5 as well as for the potential they created for civil rights abuses.6 For example, there were fears that full implementation of the Commission’s recommendations would single out certain groups, such as Arabs or Muslims, because they are more likely to pose a terrorist threat.7 It was also feared that new screening technologies are overly intrusive, raising privacy rights issues. The potential discriminatory effect of these measures was even acknowledged in the Committee’s report.8

Although the adoption of screening technologies has not presented much controversy in the past, airline passenger profiling has been the subject of debate for decades. This practice was adopted as early as the late 1960s as a response to increased hijackings.9 Passengers with certain attributes were subjected to rigorous searches and additional screening. In 1973, however, the FAA abandoned profiling, believed at the time to be ineffective. Instead, all passengers were subjected to the same security checks, absent probable cause.10 The nebulous legal doctrine of probable cause is considered, by most accounts, a complete defense to profiling.11

The formal rejection of profiling did not necessarily abolish the practice. Even before September 11, passengers of Middle Eastern descent were often subjected to additional screening without probable cause.12 According to the American-Arab Anti-Discrimination Committee (ADC), 24 percent of the complaints the organization receives annually are related to airline profiling. The rate of such complaints, however, had been steadily declining until September 11.13 It is important to note that Arabs, Middle Easterners, and Muslims were not the only victims of these de facto profiling practices. African Americans, Hispanics, and others were often subject to profiling in connection with airport drug searches.14

In the wake of September 11, the FAA was stripped of most of its regulatory powers relating to aviation security. Instead, stricter security measures were legislatively enacted pursuant to the Aviation and Transportation Security Act. Among other things, the act created the Transportation Security Administration (TSA) and federalized airport security screening, a function previously delegated to the airlines under the oversight of the FAA, and ultimately the Department of Transportation (DOT).15 The act was only a small part of a larger overhaul under the pennant of “homeland security.”

Allegations of discrimination against Arabs, Muslims, Africans, Asians, and others became more intense under the new regime. In addition to allegations of disparate treatment by government agents and officials, some pilots began exercising their prerogative as “pilots in command” to deny boarding to passengers who appeared Middle Eastern or Muslim.16 Airlines have engaged in similar practices under the doctrine of “permissive refusal.” In response to discrimination charges, the FAA issued a policy statement advising security personnel to be respectful and sensitive as they carry out their responsibilities. Using its remaining powers in that area, the FAA also initiated legal action against airlines that appeared to engage in such discrimination.

The American public, by contrast, seems to have accepted that racial profiling will make airline travel safer. The results of several polls taken in the days immediately following the terrorist attacks provide some support for this notion.17 To some degree, public opinion and the FAA’s official position are at odds. The tension is exacerbated by the fact that government practices in other contexts, including unlawful detentions, interrogations, and increased spying on citizens, have already undermined civil rights. As a result, antiterrorism policies, viewed as a whole, seem to be in disarray. On one hand, the government is proclaiming respect for constitutional rights by making statements to that effect and attempting to punish private violators. On the other hand, the legislative and rule-making processes, together with actions within the discretionary capacity of government entities and agents, are moving in the opposite direction.

The events of September 11 also precipitated one of the largest governmental organizational reform initiatives in U.S. history. This colossal project came at the behest of a wary public demanding explanations and accountability. The most important public demand, however, was security. Terrorism of such devastating scale created an atmosphere of national emergency. Even though there are no specific constitutional provisions dealing with national crises, the executive branch in the United States has traditionally been given significant latitude to act unilaterally to shield the nation from imminent danger. At least in the short run, this latitude was sufficient to allow the government to take drastic measures, even if they affected civil and constitutional rights. However, long-term measures were also needed to address prevention and deterrence of future terrorism.

On the legislative level, Congress created the Department of Homeland Security (DHS), which incorporated virtually all government agencies dealing with transportation security, border control, disaster response, and regulation of aliens. In the area of transportation, the DHS became the parent organization of the TSA. (Initially, the TSA was created provisionally under the auspices of the DOT.) Before September 11, the functions of the TSA were delegated through the FAA to the airlines, which relied on private entities to conduct passenger searches and screening. Even though the FAA and DOT regulated this process, administrative oversight was minimal.

Although airlines may be relieved that the federal government has assumed an important financial burden, they should only be cautiously optimistic. By losing control over the screening and search functions, they also give up some control over delay, inconvenience, and customer service. Under the current regime, airlines are likely to call for advanced, efficient screening technologies, to be paid for and operated by the government. The flying public, however, is faced with a bigger dilemma when it comes to the choice between convenience and safety. In this regard, security is expected to remain the predominant concern. With the exception of civil rights groups and advocates, there is overwhelming support for the notion that providing security at any cost is the responsibility of government. This support remains unchanged even in the face of clear civil rights abuses.

As a result of the aforementioned reforms, the FAA and DOT are in a precarious position. On the one hand, they were stripped of their security functions, and yet they remain charged with enforcing passengers’ rights and punishing violators. They retain this awkward function in a climate where such actions are not only deemed irrelevant but might also be considered disruptive given the overarching goal of security sine qua non. While the FAA is struggling to protect passengers’ rights, Congress has passed legislation stripping citizens of several fundamental rights, the executive branch engaged in extrajudicial detentions of aliens and citizens, and the president has granted his office the power to detain any person designated as an enemy combatant without judicial recourse.

The overall atmosphere is signaling the erosion of important individual rights, including many that affect airline passengers. In terms of constitutional rights, the impact of post–September 11 changes occurs in several areas: Fourth and Fourteenth Amendment issues, Title VII, and civil rights legislation. Fourth Amendment issues deal mostly with questions of privacy. In the context of airline security, privacy issues arise with advanced search and imaging technology, computerized background checks, and sophisticated passenger databases. The Fourteenth Amendment deals with equal treatment and rights of minorities. The Fourteenth Amendment comes into question when the adoption of certain search practices affects certain groups more than others. While these distinctions are useful, the issues often overlap. Title VII, along with state and federal civil rights laws, provides protections to minorities from discrimination by public and private entities. These issues are treated in the next section.


This section discusses four areas of interest where aviation security measures have an impact on civil rights: (1) issues arising under the Fourth Amendment to the U.S. Constitution relating mainly to privacy rights; (2) issues arising under the Fourteenth Amendment to the U.S. Constitution relating primarily to equal protection under the law, (3) issues arising under Title VII concerning employment discrimination, and (4) bars to judicial relief in civil rights cases. These areas must not be regarded as mutually exclusive. Rather, they are cumulative and overlapping. Any given incident of civil rights deprivation may simultaneously invoke various civil rights provisions falling within one or more of these areas. Moreover, this list is not exhaustive, because many other laws, such as civil rights provisions under state law, other federal legislation, or even international human rights law, may bear on the problem.

Fourth Amendment Issues. Airline passengers have a privacy interest in their bodies, luggage, and property under the Fourth Amendment to the U.S. Constitution. However, this right is subject to the administrative search doctrine.18 Under this doctrine, searches relating to aviation security are lawful when a search is part of a regulatory measure, so long as such action is intended to further an important government interest.19 In other words, administrative searches are not permissible if their only purpose is to apprehend criminals. Rather, they must be part of a broader administrative scheme.20 Common sense dictates that some level of intrusion is justified when the search aims to detect weapons on airplanes. Important questions remain unresolved, however, regarding the level of intrusion permitted. For example, it is not clear whether advanced screening and imaging technologies can withstand such a constitutional challenge.

As with most administrative decisions, a government agency, such as the FAA or TSA, must balance the benefits of security searches to the public against the costs to individual rights.21 To determine whether a search is constitutional, courts use a two-tiered analysis. First, the person seeking redress must have an expectation of privacy in the subject matter of the search. Second, such an expectation has to be reasonable.22 A passenger’s expectation of privacy is determined subjectively, by reference to that passenger’s situation and experiences. The reasonableness of such an expectation is an objective determination that a passenger’s expectations are commonly held.

Security measures adopted during the last two decades have significantly eroded the “expectation of privacy” at airports. For example, X-ray machines, metal detectors, and manual searches are widely used at airport security checks. Newly proposed screening technologies have not been tested in view of the post–September 11 security environment. Generally speaking, however, in the absence of manifest discrimination, very little expectation of privacy remains in the area of airport and airline security.

Notwithstanding the above, two areas in particular may still meet significant legal challenges. These are intrusive body imaging technologies and extensive background searches, including the maintenance of public and private terrorist databases. One problem the government may have in meeting such challenges has to do with the secrecy of the rationale for such searches. For example, it is not clear how information other than criminal history can be used in assessing whether a passenger poses a security risk. This goes to both the justification of overly intrusive searches, as well as the ability of the government to obtain and use such information in the first place. Recently, the American Civil Liberties Union has filed what promises to be a landmark challenge in this area. The lawsuit was filed on behalf of white passengers whose names wound up on a terrorist “no-fly” list. Even though the government has declared that it is not responsible for the circulation and use of this list, the plaintiff class is suing the TSA because it had a hand in creating and circulating the database.23

It is worth noting that passengers who raise the Fourth Amendment in the context of airport screening must also overcome qualified immunity and sovereign immunity defenses.24 Qualified immunity shields government agents from liability unless their conduct was unreasonable in light of clearly established law.25 Similarly, sovereign immunity bars suits against the government, with some exceptions, such as constitutional violations. In the context of airport security, immunity generally protects discretionary actions of agents and screeners.26 This includes individual as well as institutional discretion. This is not to say that screeners, supervisors, and government agencies are completely immune from liability. Still, immunity and other unique jurisdictional issues connected to air travel make it very difficult to assert jurisdiction over institutional as well as individual defendants.

Even if a plaintiff successfully overcomes the various jurisdictional bars and hurdles at play, given the current state of the law, the goal of ensuring safer air travel will likely provide a sufficient justification to permit intrusive searches. If current searches at airports are viewed as nondiscriminatory and only minimally invasive, more sophisticated searches could be justified given the heightened threat level. Still, exactly how new screening technologies involving advanced imaging and testing will be viewed remains to be seen.27 The constitutional threshold for privacy rights at airports is yet to be tested. The lack of public information on the precise nature of new and proposed technologies, together with the fact that the rationale for their adoption is not revealed, also complicate potential legal challenges in this area.

Fourteenth Amendment Issues. The government is generally not permitted to treat passengers differently based on certain immutable characteristics, such as race, religion, or national origin.28 Discrimination based on suspect characteristics would normally trigger the equal protection clause of the Fourteenth Amendment.29 This constitutional right applies to both discriminatory legislation and the application of otherwise valid rules in a discriminatory fashion. Laws that appear to discriminate based on suspect classifications are subject to strict scrutiny, the highest level of constitutional review. On the other hand, a law that is neutral on its face can still be considered discriminatory as applied, and therefore would be unconstitutional.30 The difference here will be in the standard of review, which is less strict for laws that do not appear discriminatory.31

The most difficult cases involving suspect classification are those that require proving that a properly enacted law or regulation, which is neutral on its face and in its application, nevertheless classifies persons according to a suspect criterion. In these situations, courts are reviewing the actions of entities that are entitled to a certain degree of deference. Evidentiary issues arise because courts are reluctant to scrutinize the motives of rule making or legislative authorities. Moreover, testimony of members of an agency or legislative body is generally not admissible because of the separation of powers issue. Even where legislative motives are properly called into question, courts do not usually question the subjective mindset of individual legislators or public officials. Legislative or quasi-legislative acts that result from a nondiscriminatory democratic process cannot be overturned only because those who enacted them are prejudiced. At the same time, courts cannot allow all laws to stand unchallenged when they subvert the equal protection guarantee.

In practice, showing that government actions have an underlying discriminatory purpose is generally easier than proving the intent of a legislative or rule-making body. In most cases, however, reliable statistical evidence is required.32 One major problem facing litigants in this area is that intentional discrimination by individual officers or agents is subjective and cannot be ascertained unless admitted. This is true even though questioning the motivations of an individual is less problematic for courts than inquiring into the legislative prerogative. Though acting in an official capacity, such persons are not entitled to the same deference granted to the legislature or administrative agencies acting in a rule-making capacity. Nevertheless, to the extent courts find a societal value in such discriminatory actions, they will downplay the weight of statistical proof in assessing the merits of the case.33 A case in point is the Supreme Court’s rejection of appeals from the death penalty imposed under the laws of the state of Georgia. In the Georgia cases, the appeals were rejected even though the victims of this practice were able to show that “the average odds of receiving a death sentence among all indicted cases were 4.3 higher in cases with white victims.”34

Overall, this constitutional scheme appears to make it easier for complainants to prevail when the government impermissibly classifies them in the administration of neutral laws or rules than to prove that a seemingly neutral law has an impermissible discriminatory effect. The underlying policy is that the exercise of administrative discretion deserves less deference than rule making for society’s benefit. This it true whether such rule making is done by a legislative body or an administrative agency. In all such cases, what is ultimately being tested is the administrative selection of persons for a burden or benefit.35 When it comes to airline searches and screening, problems would arise when considering that most security directives and agency orders are classified. A complainant would have a hard time pointing to a specific administrative rule or action not only to overcome the presumption of validity but also to exhaust his administrative remedies.

In the context of “driving while black” cases, courts have found that race can be considered as a factor in profiling motorists as long as it is not the only factor.36 Typically, these cases are not challenging properly enacted rules or regulations. Rather, the cases focus on the actions of individual officers or agents abusing their discretionary powers. The difficulty for victims in such cases lies in the fact that courts have a very high standard for a showing of disparate impact. To prevail, a person claiming a violation of his right to equal protection must show that similarly situated individuals of a different race are not treated in the same manner.37 The lack of statistics and information about profiling makes it nearly impossible to make such a showing in many cases.38 In practice, the burden placed on the victims of such discrimination is much higher than it appears in theory.

Should the TSA allow the use of race or national origin along with other criteria, such measures would arguably be considered narrowly tailored to support an important government interest. The Supreme Court has permitted the consideration of race in circumstances far less threatening than those facing aviation security. Given the devastating potential of terrorist attacks, such measures would be easily justified.39 If a disparate impact did not violate the equal protection rights of a petty criminal, air travel security procedures attempting to prevent mass murder are not likely to be upheld as violations.40 However, without reliable statistics about such practices, any legal recourse would be illusory or impractical at best.41

The ability of the government to obtain private passenger information, coupled with loosely defined profiling criteria, creates a huge potential for abuse. In theory, the constitutional and civil rights order in the United States provides for equal treatment of similarly situated persons. In practice, however, not all cases of differential treatment are created equal. Disparate treatment has been traditionally justified based on the circumstances of individual cases. More importantly, such treatment may well be defensible when the cost in terms of civil rights deprivation is balanced against an important governmental purpose such as combating terrorism.

Title VII Issues. The aviation industry has the unique distinction of writing the law on employment discrimination. The McDonnell Douglas discrimination standard is possibly the most cited reference in such cases.42 The potential is high for discrimination issues to arise under Title VII in the post–September 11 world. Note, however, that this problem affects minorities both within and outside aviation and its related industries. As with issues arising under the Fourteenth Amendment, there are no reliable statistics on such cases because of the confidential nature of equal employment proceedings, as well as the large number of secret out-of-court settlements. Following is a brief anatomy of such discrimination cases.

To establish discrimination under the McDonnell Douglas burden-shifting test, a plaintiff must first make a prima facie case of unequal treatment.43 Unlike cases under the constitutional rubric of equal protection, the burden of establishing a prima facie case is not onerous, and the concept is flexible.44 When this happens, the burden shifts to the defendant to articulate a legitimate nondiscriminatory reason for its actions. If successfully done, the burden shifts back to the plaintiff to prove the discriminatory pretext of such reason. In order to make a prima facie case, a complainant is required to present evidence showing that (1) He/she is a member of a protected class; (2) He/she was subject to adverse terms or conditions of employment; and (3) Such adverse action occurred under circumstances giving rise to an inference of discrimination.45 It is important to note that only the burden of production shifts; the ultimate burden of persuasion rests at all times upon the plaintiff.46

The gravamen of a Title VII action is “whether the plaintiff’s protected characteristic was a motivating factor in the defendant’s employment decision.”47 It is not enough to simply believe the employer’s proffered reason for discharging or otherwise discriminating against an employee. The fact finder must conclude by the greater weight of the evidence that the employer intentionally discriminated against the employee because of his protected characteristic, that is, that the employee’s protected activity was an actual motivating factor in the defendant’s decision to discharge or take other adverse employment actions against him.48 After the prima facie case is established, the burden shifts to the employer to articulate one or more nondiscriminatory reasons for the employment action. After the employer has articulated its nondiscriminatory reasons, the burden again shifts to the employee to show that such reasons are pretextual and that discrimination was involved in the employment decision.

Discrimination can also be established by direct evidence.49 The evidence must be in the nature of conduct or statements by persons in a decision-making capacity. This evidence must be sufficient to permit a fact finder to infer that the discriminatory attitude is a motivating factor in the employer’s decision. Furthermore, the evidence must establish a specific link between the discriminatory motive and the adverse employment action.50 Even though the existence of direct discriminatory evidence and motives makes it easier for a complainant to prevail, such evidence is usually difficult to discover and prove formally.

A few widely publicized cases have arisen in this context, but the details of most such cases are not available. Across the country, pilots of Middle Eastern origin have been denied employment or terminated under suspect circumstances.51 This is hardly surprising at a time when discrimination complaints by Arab Americans and Muslims are at an all-time high across all industries.52 To make matters worse, it is expected that most discrimination incidents against Arab Americans and Muslims will remain unreported. Cultural factors and fear of retaliation are among the most widely cited reasons for aggrieved persons not asserting their legitimate rights.

The threshold question in Title VII cases is whether complainants can show that the employer’s proffered reason for termination is indeed pretextual. As mentioned above, the burden is not high for complainants to have such cases heard. In order to do so, they must simply show that they were subject to differential treatment and that they belong to a legally protected class, such as race, religion, or national origin. Likewise, the burden placed on employers to rebut such a finding is not excessive. The employer needs simply to provide a seemingly valid nondiscriminatory reason. The range of possible benign motives is not well defined. As such, regular layoffs, employee misconduct, or economic circumstances can suffice to meet the employer’s burden. Proving that such reasons are a mere pretext for discrimination, on the other hand, proves to be the most difficult aspect of such cases. Most lawyers know that discrimination cases involving failure to hire, wrongful termination, or even harassment are usually based on subtleties and innuendo. Rarely is a litigant lucky enough to encounter direct hostility, since most employers try to avoid liability by cloaking their actions with legitimate business reasons.

Despite a trend across many federal circuits of increasing dismissal of employment discrimination cases by summary judgment or 12(b)(6) motions for failure to state a valid claim, most legitimate complaints are likely to be heard on the merits. The ultimate burden of proof in such cases, however, makes it difficult to prevail. Without changing the prevailing standard in such cases, it is doubtful that Title VII will provide an adequate remedy to Arabs, Muslims, or others who suffer discrimination because of workplace hostility after September 11. Moreover, since most such cases are unreported in the first instance, it is impossible to know the real extent of the problem or its impact on such communities. It is even feared that courts would adopt the position, even if only implicitly, that people with certain characteristics pose a risk within certain industries.

Bars to Relief in Civil Rights Cases. Issues that do not fall squarely under the constitutional guarantees of the Fourth and Fourteenth Amendments, or under Title VII, usually fall under various provisions of the Civil Rights Act. Such actions would include unlawful ejection from airplanes or the unjustified use of the “pilot in command” prerogative and an airline carrier’s right of permissive refusal mentioned earlier. There is no simple way to categorize such cases since many civil rights provisions and legislation often overlap. In general, civil rights legislation is not designed to reach most private conduct, except for certain provisions seeking to undercut segregation in public places and to punish private persons acting in furtherance of a government policy.53

The Civil Rights Act contains many antidiscrimination provisions relating to public and private conduct. The most widely used provision, however, is §1983, which is a vehicle through which a complainant may seek compensation for various civil and constitutional rights deprivations. To prevail on a claim brought under 42 U.S.C. §1983, two elements must be demonstrated: (1) the deprivation of a right secured by the Constitution or laws of the United States, and (2) that the deprivation was caused by a person acting under color of law.54 Only state actors can be held liable under §1983.55 The U.S. Supreme Court has articulated four distinct approaches to the state action inquiry: (1) public function, (2) state compulsion, (3) nexus, and (4) joint action.56

As such, a private entity must act under color of law to be liable under the Civil Rights Act. The adverse action, however, must also be considered a public function. Private persons and entities are also deemed to act under color of law if they perform or engage in a “traditionally exclusive governmental function.”57 Thus, an act is under color of law pursuant to this approach only if the tortfeasor was functioning as the government in its relationship with the complainant. In some cases, there need only be a nexus between the government and the deprivation of rights. Under the nexus approach, activities by a private person or entity constitutes acts under color of law if there exists a sufficiently close nexus between the government and the challenged action so that seemingly private behavior may be fairly treated as that of the government itself.58

A challenged activity may also constitute action under color of law when it results from the government’s exercise of coercive power and when the government engages in significant encouragement, either overt or covert.59 By the same token, private persons and entities act under color of law if they willfully participate in joint activity with the government or its agents in performing a constitutional obligation.60 From this standpoint, private actors act under color of law only where the joint activity between a private actor and state is to fulfill a constitutional obligation of the government.

In the context of aviation security, this is a very challenging area. First, it can be very difficult to distinguish between official and private conduct and whether such conduct is in furtherance of a governmental purpose. Although the actions of government security agents in their official capacities may be covered under this rubric, the actions of airline officials, pilots, or even flight attendants are problematic. Second, the acquiescence of government to discriminatory practices would also be difficult to show. It is quite possible that government agents, constrained by antidiscrimination rules, could rely on private entities to achieve what amounts to exclusionary practices. Worse yet, there is vast potential for collusion between government and private entities to the same effect. In several publicized cases, passengers who were thoroughly searched and investigated were still denied boarding after being ejected from a flight based on the decision of the pilot, who often cited crew and other passengers’ fears.

Finally, the jurisdictional requirements of §1983, when considering issues of sovereign and qualified immunity, raise significant problems of standing and the capacity of public and private actors to be sued. This complexity not only prevents complainants from fully understanding whom they can and cannot sue, but also presents unique problems in litigation. Averments relating to conduct by government entities and agents might not be upheld on immunity grounds. At the same time, conduct by private parties is not always actionable because it may lack the requisite connection to a governmental purpose.


Airline security and civil rights issues had been debated well before the terrorist attacks. The attacks, however, caused major changes in the relative importance of many of these issues. A comparison between the major issues on the eve of the attacks and immediately following is warranted. This includes a discussion of the relative importance of issues such as airline security and passengers’ rights before and after September 11. In addition, it may be useful to examine the various political forces and the strategies used to advance or muffle these issues. This section discusses these questions with an eye toward explaining how the various issues gained prominence and what factors influenced their relative salience post–September 11.

The erosion of passenger rights is only one manifestation of the shift in how we think of constitutional rights in a much broader sense. One example of this changing environment is the passage of the USA PATRIOT Act. The act significantly expands the powers of government vis-à-vis individuals, especially in terms of privacy rights. Most notably, the act makes it significantly easier for government agents to spy on individuals and their associations, movements, and financial activity without judicial oversight.61 This legislative initiative came as the government underwent colossal reorganization. In particular, the creation of the DHS is the largest consolidation of government agencies in U.S. history. The department has already swallowed many organizations that previously belonged to other executive agencies, such as the Border Patrol, Coast Guard, Immigration Services, and most importantly, the TSA.62

The USA PATRIOT Act also gives the attorney general and the Justice Department broad investigative powers and authorizes greater discretion in detaining persons suspected of terrorist activity. Following the September 11 attacks, government agents and law enforcement officers targeted young men of Middle Eastern descent. Press reports indicated that up to 1,200 mostly Middle Eastern, Arab, or South Asian men were detained for technical immigration violations, or for no reason at all. Only a handful were being held under federal or state criminal charges. Moreover, the Justice Department promulgated interim INS regulations that prioritize Middle Eastern immigrants in its immigration law enforcement activities.63

In the meantime, the president and other senior officials made public statements calling for tolerance and condemning acts of violence, harassment, and discrimination against the Middle Eastern and Muslim communities. Nevertheless, this did not change the growing sense that persons of Middle Eastern descent have been singled out and targeted based on their race, ethnicity, and national origin by local, state, and federal law enforcement in their antiterrorism efforts.64 Civil rights advocates and many public officials have questioned the constitutionality and legality of current federal investigatory activities that seem to rely on racial, religious, and ethnic profiling.65

Compounding the problems raised by the USA PATRIOT Act, the U.S. government took the position that the president can designate individuals, including U.S. citizens, as enemy combatants. After such a designation has been made, a person can be detained without any access to the legal system, until the president determines that the person’s “hostile” status has ended.66 One such designee is Jose Padilla, who was arrested at O’Hare International Airport as he arrived from Pakistan.67 Without questioning the accusations leveled against Padilla, it is important to remember that he is entitled to certain rights as a U.S. citizen arrested on U.S. soil. Such rights include equal protection, due process, access to counsel, and freedom of speech. The extent to which his rights have been preserved or abrogated is impossible to know since this new parallel system of justice is shrouded in secrecy.

The changes in law enforcement practices post–September 11 and the adverse consequences that these changes continue to produce have reinforced the growing concerns about civil rights violations.68 The overall environment in the United States is one where fear of terrorism has taken precedence over individual rights. The lack of outrage over this trend is perhaps its most disturbing aspect. It appears that Americans have quietly consented to abrogating, or at least suspending, certain civil rights, especially those affecting minorities. How far this trend will continue, both legislatively and in the exercise of administrative discretion, remains to be seen. The constitutionality and legality of new security laws, policies, and discretionary measures has not been established, despite government claims to the contrary.

A great deal of uncertainty also exists about the ability of aggrieved persons to assert their rights against government agencies and private entities under an equal protection analysis, Title VI, or 42 U.S.C. §1981 et seq. “Driving while black” and “flying while brown” are analogous colloquial references to protected activities by protected classes. Racial profiling of Arabs, Muslims, and South Asians is no less vile than profiling of African Americans. The difference in context, however, seems to weigh in significantly, given the national security implications. Still, the constitutional threshold of acceptability with regard to such practices has not been set.

An objective look at the problem, however, begs a different approach to security. The events of September 11 could not have happened but for the naiveté of the passengers and crew. The element of surprise in the attacks is the new modus operandi that defied the victims’ expectations. Hijackings have traditionally followed a few predictable scenarios, which the hijackers violated in this instance.69 As soon as Flight 93 passengers learned the fate of their fallen comrades, both in the air and on the ground, the calculus of the risk was different. The victims quickly organized to overtake the hijackers, if not for their own safety, at least for the safety of compatriots and country. Similar alertness and quick reaction also saved the passengers of the Paris–Miami flight, who would have otherwise been victimized by the infamous “shoe bomber.”

Moreover, security breaches on the ground did not exacerbate our vulnerability to attack on September 11. The hijackers were armed with items that were not disallowed on airplanes. Hence, this is not even an instance of airport security failure. Without minimizing the importance of heightened security measures, we submit that an attack similar to the terrorist attacks on September 11 is nearly impossible to wage for these reasons alone, without taking into account any actual institutional or procedural changes on the ground. The real failure on September 11 involved intelligence and counterterrorism, not screening and profiling. This rational account of the terrorist events, however, has not been adequately considered.

In the same vein, the government reacted to the terrorist attacks by tracking, jailing, and harassing Arabs and Muslims. The vast majority of post–September 11 detainees did not have any connection to terrorism. Only a handful of detainees faced charges, and none have been convicted.70 These actions resulted in sentiments of mistrust, abuse, and alienation. Such measures were also ill conceived given the fact that law enforcement and intelligence agencies have had a shortage of linguists and other personnel with Middle East expertise. This shortage became even more critical after the events of September 11. It is reported that out of an agent force of 11,500, only six agents are Muslim, and only twenty-one are fluent in Arabic. In one widely publicized case, the FBI fired, and then rehired, one of its top Middle East experts because he protested the use of a wiretap on other Muslims for fear of losing the trust and cooperation of the Middle Eastern community. The agent was fired even though the ultimate decision for not wearing the wiretap was made by his supervisor.71

The terrorist attacks created a window of opportunity for drastic policy changes. These changes go far beyond airline security. Moreover, the nature of the attacks affected the ensuing debate in a unique way. Arguments about the cause of the problem and its possible solutions seem to be fueled less by their logical consistency and more by the rhetoric underlying the new policy agenda. The resulting dramatic shifts in policy were caused primarily by a new conception of the problem that was created by the proponents of such policy under uniquely extreme circumstances. This new viewpoint was not entirely based on rational policymaking. Rather, it relied on policy grounds that were not adequately debated, let alone tested and proved. This view remains virtually unchallenged, leaving the debate forever altered. Notwithstanding slowly emerging criticism, opponents of new policy are not directly challenging the powerful paradigm already established. Instead, they are trying to slowly create a new framework for the discussion. All the while, proponents of adverse policy change are not concerned with presenting a coherent causal connection with regard to solutions.


There is no doubt that the government has a responsibility to ensure passenger safety. No effort should be spared in this regard, especially in the wake of September 11. There is also no doubt that resources in this area, as with any other policy area, are not unlimited.72 Security objectives, therefore, should be prioritized in order to best allocate the available resources. The unconstitutionality of security practices notwithstanding, the main problem with targeting minority groups as suspect classes is its inherent counterproductivity. Focusing on thousands of innocent passengers based on their race or other immutable characteristics will ultimately result in a lack of vigilance and inability to detect new terrorist tactics and dangers.

At the same time, the right to be treated with dignity and respect is the theoretic foundation of the constitutional order in the United States. In practice, however, the system creates an uphill battle for complainants trying to prove that government and private conduct is discriminatory. To make matters worse, minority groups and individuals tend to be reluctant in asserting their rights. Behind such reluctance are fear of embarrassment, a sense that their rights cannot be vindicated, or fear of retaliation. This makes the role of government crucial in tracking and punishing abuses. The real problem lies in the fact that while laws and practices are changing to meet the new security challenges, the laws and practices in place to combat discrimination remain unchanged. Even if we assume that democratic norms, institutions, and procedures for protecting minority rights were adequate in the pre–September 11 world, they would clearly fall short of achieving their goal today.

Just as vigilance is warranted to protect the nation from terrorism, equal if not more vigilance is needed to protect the constitutional order. Just as the government is allowed to intrude more on citizens’ rights, citizens must have clear reasons and adequate information about such practices. Given the difficulty of weighing the costs and benefits of new security policies, systematic monitoring and oversight are needed. Such scrutiny would allow advocates and public officials to better understand the problem and make better policy choices that balance safety and security. Collecting data on discriminatory practices can also help us understand the value of security in light of its economic costs. In addition, oversight mechanisms will serve to deter government agents from intentionally engaging in constitutional violations and encourage victims to come forward. This might lead to greater consistency between the federal government’s general antidiscrimination position and federal law enforcement actions in the context of aviation security. Finally, documenting such practices will also allow for more decisive litigation and just settlement of constitutional claims.

There is also a need to reassess the broader changes that took place since the passage of the USA PATRIOT Act. If nothing else, doing so will help determine whether civil rights violations beyond aviation security are politically tenable. Revisiting this debate will also help make a distinction between permissible and impermissible constitutional violations in current enforcement activities. Now more than ever, there is a need to measure to what extent federal law enforcement agents are complying with constitutional and statutory limits on agency discretion. Unfortunately, there is little chance for policy reversal on most of the issues involved here. For one thing, the momentum that the terrorist attacks provided is likely to carry the new policies for years to come. At most, civil rights advocates could hope that the pace of such new measures might slow down because of further debate.

The legal ramifications of September 11 as they relate to the balance between safety and liberty are yet to materialize fully. The costs and benefits of security measures are difficult to weigh against such intangibles as individual freedom and protecting minorities. While we struggle to find the appropriate solution to terrorism in aviation, we would be well served to recognize that a rational approach to security is not by necessity detrimental to individual rights. At the same time, the necessity of sacrificing liberty must be carefully scrutinized. Despite the legal reforms made during the civil rights era affecting transportation, minorities are still in a vulnerable position. Legal recourse is limited and fraught with technical difficulties. This is due both to the enormity of the risks involved in terrorism within aviation and to the current state of the law as it relates to minority rights.

The fallout of September 11 is perhaps most evident in policies that were implemented without much reflection, while issues concerning passengers’ rights were never properly put into perspective. Although the tide is slowly beginning to shift, the post–September 11 effect is largely dominant. Even the growing criticism of the policies in question is not likely to garner enough momentum for policy reversal. The terrorist attacks were simply tragic, with a residual effect to match. There is no question that terrorist events of this magnitude are not an acceptable security risk. However, enhanced security at airports comes at a cost that includes delay, inconvenience, and overall quality of service.73 More importantly, such policies undermine long-cherished constitutional rights that cannot be valued or quantified. Many grounds exist to question the effectiveness of many new security measures, but such rational accounts have not been given much weight in the airline security debate.


In citing works in the notes, several legal abbreviations are used and are identified below.

2nd Cir.                    U.S. Court of Appeals for the Second Circuit

8th Cir.                      U.S. Court of Appeals for the Eighth Circuit

9th Cir.                      U.S. Court of Appeals for the Ninth Circuit

Cong.                       Congress

E.D. Mich.                 U.S. District Court for the Eastern District of Michigan

F.2d                          Federal Reporter, 2nd series

F.3d                          Federal Reporter, 3rd series

F. Supp.                    Federal Supplement

L.Ed.2d                     U.S. Supreme Court Lawyers’ Edition—Supreme Court cases

Minn. Ct. App.          Minnesota Court of Appeals

N.W.2d                     North Western Reporter, 2nd series

P.2d                          Pacific Reporter, 2nd series

S. Ct.                         Supreme Court Reporter

S.D. Tex.                   U.S. District Court for the Southern District of Texas

S.E.2d                       South Eastern Reporter, 2nd series

sec.                           section

sess.                         session

U.S.                           U.S. Supreme Court

Va. Ct. App.              Virginia Court of Appeals

W.D. Wash.              U.S. District Court for the Western District of Washington

Wash.                       Washington Supreme Court

1. White House Commission on Aviation Safety and Security, Final Report to President Clinton, February 12, 1997,

2. Soudavar v. FAA (S.D. Tex. 2001).

3. M. AuBuchon, “Choosing How Safe Is Enough: Increased Antiterrorist Federal Activity and Its Effect on the General Public and the Airport/Airline Industry,” Journal of Air Law and Commerce 64, no. 3 (Summer 1999): 901.

4. U.S. Department of Justice, Report by the Department of Justice to the Department of Transportation on the Department’s Civil Rights Review of the Federal Aviation Administration’s Proposed Automated Passenger Screening System, report prepared at the request of the White House Commission on Aviation Safety and the Department of Transportation, October, 1, 1997,; U.S. Department of Transportation, “DOT Investigates Passenger Security Screening’s Impact on Minorities,” news release, June 4, 2001; U.S. Department of Transportation, Carrying Out Transportation Inspection and Safety Responsibilities in a Nondiscriminatory Manner, policy statement, October 12, 2001,; End Racial Profiling Act of 2001, HR 2074, 107th Cong., 1st sess., Congressional Record 107, no. 537, daily ed. (June 2001); and Senate Subcommittee on the Constitution, “Federalism and Property Rights of the Senate Committee on the Judiciary,” End Racial Profiling Act of 2001: Hearing on S. 989, 107th Cong. 537th sess. (2001).

5. J. Ott, “Profiling to Boost Security, but Funding Still an Issue,” Aviation Week & Space Technology (April 28, 1997), 42; and “FAA Funding Inadequate to Meet Requirements, Experts Say,” Air Safety Week (March 10, 1997), 1.

6. AuBuchon, “Choosing How Safe Is Enough,” 893–94; S. Ross, “Panel Recommends Passenger Profiling to Reduce Terrorism Threat,” Associated Press (February 12, 1997); and A. Nomani and A. Pasztor, “White House Backs Plan for Air Safety, but Calls for No Big Increases for FAA,” Wall Street Journal (February 13, 1997), sec. A.

7. AuBuchon, “Choosing How Safe Is Enough,” 902; R. W. Hahn, “Security Measures: A Cure Worse than the Disease?” Aviation Week & Space Technology (February 3, 1997), 74–76.

8. AuBuchon, “Choosing How Safe Is Enough,” 93–94.

9. J. Rhee, “Rational and Constitutional Approaches to Airline Safety in the Face of Terrorist Threats,” DePaul Law Review 49 (2000): 847–52.

10. E. Baker, “Flying While Arab: Racial Profiling and Air Travel Security,” Journal of Air Law and Commerce 67, no. 4 (Fall 2002): 1378–79; and D. Harris, Profiles in Injustice: Why Racial Profiling Cannot Work (New York: New Press, 2002).

11. Lowery v. Commonwealth, 388 S.E.2d 265 (Va. Ct. App. 1990).

12. Baker, “Flying While Arab”; and D. Nelms, “Shifting Targets: The Changing Face of Terrorism Is Redefining How the U.S. Looks at Airport/Airline Protection,” Air Transport World (February 1, 1997), 29.

13. Baker, “Flying While Arab,” 1390.

14. Ibid.

15. Aviation and Transportation Security Act, Public Law 107–71, U.S. Statutes at Large 115 (2001) 597, codified at U.S. Code Service 49, sec. 44935.

16. N. Mineta, Statement of Norman Y. Mineta, Secretary of the Department of Transportation, before the U.S. Commission on Civil Rights: Hearing on DOT’s Work to Strengthen Transportation Security While Protecting Individuals from Unlawful Discrimination, 107th Cong. 537th sess., October 12, 2001,

17. C. Page, “Look Who’s in Favor of Racial Profiling Now,” Seattle Post-Intelligencer (October 5, 2001), sec. B.

18. Whren v. United States, 517 U.S. 806, 810 (1996).

19. Baker, “Flying While Arab,” 1384.

20. City of Indianapolis v. Edmond, 531 U.S. 32, 47 (2000).

21. A. Hessik, “The Federalization of Airport Security: Privacy Implications,” Whittier Law Review 24 (2002): 48–69.

22. Mapp v. Ohio, 367 U.S. 643, 655 (1961).

23. Green v. TSA (W.D. Wash., number not available, filed April 6, 2004).

24. A. Chen, “The Burdens of Qualified Immunity: Summary Judgment and the Role of Facts in Constitutional Tort Law,” American University Law Review 47, no. 1 (October 1997): 3–4.

25. Elder v. Holloway, 510 U.S. 510, 512 (1994).

26. Berkovitz v. United States, 486 U.S. 531, 535–36 (1988).

27. B. Nordwall, “Airport Security Spurs New Interest in Sensors,” Aviation Week & Space Technology (January 7, 2002).

28. U.S. Constitution, amend. 14, sec. 1.

29. R. J. Sievert, “Meeting the Twenty-First Century Terrorist Threat within the Scope of Twentieth Century Constitutional Law,” Houston Law Review 37 (2000): 1421–55.

30. Lowery, 388 S.E.2d 265.

31. United States v. Weaver, 966 F.2d 391 (8th Cir. 1992).

32. United States v. Arvizu, 122 S. Ct. 744 (2002).

33. State v. Barber, 823 P.2d. 1068 (Wash. 1992).

34. C. Baldus, G. Woodworth, and C. Pulasky, Equal Justice and the Death Penalty (Boston: Northeastern University Press, 1990), 401.

35. J. Nowak and R. Rotunda, Constitutional Law (St. Paul, Minn.: West Publishing, 1977).

36. United States v. Martinez-Fuerte, 428 U.S. 543 (1976); United States v. Coleman, 450 F. Supp. 433 (E.D. Mich. 1978); and United States v. Brignoni-Ponce, 422 U.S. 873 (1975).

37. City of Los Angeles v. Lyons, 461 U.S. 95 (1983); and City of St. Paul v. Uber, 450 N.W.2d 623 (Minn. Ct. App. 1990).

38. United States v. Armstrong, 517 U.S. 456 (1996).

39. Baker, “Flying While Arab,” 1400.

40. Ibid., 1401.

41. Brown v. City of Oneonta, 221 F.3d 329 (2d Cir. 2000), cert. denied, 534 U.S. 816 (2001); and Brown v. City of Oneonta, 195 F.3d 111,116 (2d Cir. 1999).

42. McDonnell Douglas Corp v. Green, 411 U.S. 792, 802–04 (1973).

43. McCullough v. Real Foods, Inc., 140 F.3d 1123 at 1126 (8th Cir. 1998).

44. Texas Dept. of Community Affairs v. Burdine, 101 S. Ct. 1089 (1981).

45. Bergstrom-Ek v. Best Oil Co., 153 F.3d 851 at 860 (8th Cir. 1998).

46. McDonnell Douglas, 411 U.S. 792.

47. Williams v. Valentec Kisco, Inc., 964 F.2d 723, 731 (8th Cir. 1992).

48. St. Mary’s Honor Center v. Hicks, 113 S. Ct. 2742, 125 L.Ed.2d 407, 418–19, 422 (1993).

49. Rivers-Frison v. Southeast Missouri Community Treatment Center, 133 F.3d 616 at 619 (8th Cir. 1998).

50. Thomas v. First Nat’l Bank of Wynne, 111 F.3d 64, 66 (8th Cir. 1997); and Putman v. Unity Health System, 348 F.3d 732 (8th Cir. 2003).

51. U.S. Equal Employment Opportunity Commission, “Muslim Pilot Fired Due to Religion and Appearance, EEOC Says in Post-9/11 Backlash Discrimination Suit,” news release, July 17, 2003,

52. American-Arab Anti-Discrimination Committee, “DOT Orders United to Spend $1.5 Million on Civil Rights Training,” 2002,[]=DOT.

53. Tillman v. Wheaton-Haven Recreation Assn., 410 U.S. 431 (1973).

54. American Mfrs. Mut. Inc. Co. v. Sullivan, 526 U.S. 40 (1999).

55. Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970); and George v. Pacific-CSC Work Furlough, 91 F.3d 1228, 1230 (9th Cir. 1996).

56. Lugar v. Edmonson Oil Co., 457 U.S. 922 (1982).

57. Rendell-Baker v. Kohn, 457 U.S. 830, 837 (1982).

58. Brentwood v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288 (2001); and Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974).

59. Blum v. Yaretsky, 457 U.S. 991, 1004 (1982).

60. West v. Atkins, 487 U.S. 42 (1988).

61. “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001,” Public Law 107-56, 107th Cong., U.S. Statutes at Large 115 (2001): 1272.

62. Aviation and Transportation Security Act, sec. 44935.

63. M. Taylor, “Immigration Enforcement Post–September 11: Safeguarding the Civil Rights of Middle-Eastern American and Immigrant Communities,” Georgetown Immigration Law Journal 17 (Fall 2002): 65.

64. B. Sternberg, “Racial Profiling Complaints Climb at Airports: Arab Americans Fear They Are Being Singled Out, but the Government and Airlines Say the Increased Security Checks Are Random,” Minneapolis Star Tribune (February 3, 2002), sec. A.; and “American Muslim Woman Files Suit over Search at O’Hare,”, January 17, 2002,

65. H. Ibish, ed., 1998–2000 Report on Hate Crimes and Discrimination Against Arab Americans (Washington, D.C.: American-Arab Anti-Discrimination Committee, 2001).

66. R. Lowry, “Profiles in Cowardice: How to Deal with the Terrorist Threat—And How Not To,” National Review (January 28, 2002).

67. C. Layne, “In Terror War, 2nd Track for Suspects: Those Designated ‘Combatants’ Lose Legal Protections,” Washington Post (December 1, 2002).

68. Senate Committee on Governmental Affairs, Aviation Security Measures, Including the Screening of Passengers and Property, 107th Cong., 264th sess. (September 25, 2001).

69. M. Renna, “Fire in the Sky: A Critical Look at Arming Pilots with Handguns,” Journal of Air Law and Commerce 68, no. 4 (Fall 2003): 859–89.

70. K. Bohn, “Rights Groups Challenge Immigration Policy,”, December 26, 2002,

71. M. Izikoff, “Tensions in the FBI: Why Was This Agent Fired?” Newsweek (October 20, 2003).

72. “FAA Funding Inadequate.”

73. R. Slater, “Prepared Remarks by U.S. Transportation Secretary Rodney E. Slater: White House Briefing for 8th Annual Meeting of Muslim-American Council,” prepared remarks, Annual Meeting of Muslim-American Council, Washington, D.C., May 7, 1999,