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Making Flying While Brown Safe Again

Plaintiff Shoshana Hebshi
Plaintiff Shoshana Hebshi
Rachel Goodman,
Former Staff Attorney,
ACLU Racial Justice Program
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July 18, 2014

When Shoshana Hebshi boarded Frontier Flight 623 on September 11, 2011, she was heading home to Detroit Metro Airport from a visit to her sister in San Francisco. She couldn’t have foreseen that being seated next to two other brown-skinned people would end up with her handcuffed, detained, and strip-searched by law enforcement.

Shoshana, born in the United States, is half Saudi Arabian, and the two men who were seated in her row were South Asian. None of them knew each other before they boarded the plane. Still, the airline and the government lumped them all together as suspicious after the two men used the lavatory one after another, for what some passengers believed was an unusually long time.

The airport’s police officers have argued that they acted reasonably in detaining Shoshana and that they were justified in strip-searching her, despite the fact that no one ever suggested that she had done anything suspicious at all. This is just one example of how we, as a nation, seem to have lost track of a fundamental truth in the last decade: the Constitution protects all people from discrimination and from unreasonable searches and seizures.

And that’s true even for brown people, on airplanes, on the 10th anniversary of 9/11.

But today, a federal trial court decision in Shoshana’s case reminds us of that truth. Judge Berg wrote, “The fact that the events occurred on the tenth anniversary of September 11th, on a flight bound for a city previously targeted for a terrorist attack, does not absolve the WCAA Defendants, or any law enforcement officers, of their responsibility to conduct their police work in compliance with the United States Constitution.” He further wrote that the court would not “sacrifice these principles of liberty to the cause of hyper-vigilance.”

Despite this court decision and others like it, “flying while brown” has all too often been viewed as inherently suspicious in recent years.

Remember the Iraqi-born peace activist Raed Jarrar, who was prevented from boarding his flight while wearing a T-shirt with Arabic script on it?

Or the group of nine Muslim Americans removed from their flight because they discussed safety on the plane, of all things?

Or all those innocent folks prevented from flying, without any meaningful after-the-fact opportunity to clear their names, because of their presence on the government’s secretive No Fly List?

Too many law enforcement officers and airline employees seem to think that discriminating against Muslims, South Asians, and Arabs on planes is not quite as bad as other forms of racial profiling. The Department of Justice (DOJ) opened the door to this bias-based thinking when it issued a 2003 policy guidance on racial profiling that prohibits the use of race “to any degree” in law enforcement investigation, except during national security and border integrity investigations.

While DOJ is in the process of revising that guidance, the proposed revisions would leave untouched those gaping exceptions to the racial profiling bar and would not prohibit profiling based on religion or national origin. Those are loopholes that law enforcement can drive a truck through. And just ask Shoshana – that kind of government profiling is no less traumatic and hurtful than any other form of discrimination.

Let’s be clear: What happened to Shoshana Hebshi was illegal and unconstitutional, not to mention shameful. Today’s court decision reminds us that none of us – brown, black, or white – should have to fear being arrested and strip-searched based on bias and stereotypes.

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