Race and Security After 9/11

Frequent business travelers are by now well-acquainted with the increased passenger screening measures in place at our nation’s airports. Checked luggage is screened for bombs. Individual passengers have their carry-on luggage examined and, in some cases, themselves are subjected to pat-down searches. Indeed, one member of Congress recently was reduced to his boxers as his artificial knees, hip and other assorted medical implants set off all manner of detection devices.

These heightened security measures have been mandated by Congress and the Federal Aviation Administration in the wake of the Sept. 11 terrorist attacks on the United States. Most Americans support, if not welcome, the added precautions. But the implementation of stepped-up security requirements is not without controversy.

In particular, whether airport security personnel properly have the authority to include an individual’s apparent racial makeup as a component in a determination to screen more closely an individual is the subject of lively debate. Some legal scholars assert that the U.S. Constitution, federal law, and the American sense of fair play prohibit the use of race as part of any security screening decision. To prove their point, these advocates point to the shameful mass detention of Japanese-Americans during World War II as an illustration of how race-based policies must not be employed.

To be sure, mass detention of American citizens based exclusively on their Japanese heritage went too far (even though the U.S. Supreme Court upheld as constitutional the internment). But, as the United States Supreme Court has noted, the Constitution is not a suicide pact. For that reason, other legal scholars contend that under the current circumstances race (along with sex and age) is the best and most obvious component in making an informed and reasonable evaluation of passengers seeking to carry out terrorist activities, which continue to be threatened by members of known terrorist organizations affiliated with Osama bin Laden and his associates.

These are largely untested legal waters. The constitutional standard that will resolve the issue should it reach the courts is whether the government has demonstrated a “compelling governmental interest” justifying the use of race as a factor in making security decisions and whether the government’s security program is “narrowly tailored” to meet that governmental interest. Clearly preventing terrorist activities is a compelling governmental interest. The more difficult question will be whether the government has or can establish standards for considering a particular individual’s apparent racial background in a decision to subject that individual to additional screening or examination. Moreover, as we move farther from the Sept. 11 attacks, and as the al-Qaida terrorist network becomes less and less viable, the government will have a more difficult time justifying the use of race as a determining factor in security-screening decisions. As a result, a racial component may ultimately be constitutionally untenable. In addition, as Timothy McVeigh taught us, not all terrorists are Middle-Easterners purporting to defend the Muslim faith.

For now, however, taking into account a passenger’s race, along with other observable characteristics, i.e. age, personal behavior, etc., is not only prudent, but is also likely permissible under the law.

A Word of Warning To The Private Sector
Our national awakening to the threat of terrorism on our own soil poses legal considerations for the private sector, too. Property owners, manufacturers, retailers, shopping centers, restaurants, and entertainment centers, just to name a few, all are faced with security concerns that previously were unimagined. But in addressing those concerns, decision makers must keep in mind that federal civil-rights statutes prohibit discrimination or segregation in places of public accommodation or in the making and enforcement of contractual relationships.

A good rule of thumb is to ask whether a private-security policy treats any person differently because of that individual’s apparent racial heritage. Those implementing such a discriminatory policy can plan on an unhappy and expensive visit to their local United States Courthouse.

Richard “Pete” Hutchison is vice president and general counsel of Landmark Legal Foundation, a national public-interest law firm with offices in Kansas City, Mo., and Herndon, Va. He may be reached by phone at 816.931.1175 or by e-mail at llegal@swbell.net.