Korematsu continued....

• Author: Lin, Elbert
• Position: Racism in justice in the wake of September 11th - Case Note

Dasrath v. Continental Airlines, Inc., 228 F. Supp. 2d 531 (D.N.J. 2002).

How far have America and her courts come since World War II? Even in the wake of September 11th, it seemed they would not again endorse racial intolerance on the level of wholesale internments. This Comment argues, however, that Dasrath v. Continental Airlines, Inc. (1) indicates there has been limited progress since the internment camps and the Supreme Court's validation oft hose internments in Korematsu v. United States. (2)

In Part I, this Comment briefly discusses the months that followed 9/11, noting particularly this country's desire to avoid repeating history. In Part II, this Comment asserts that, notwithstanding the observations of Part I, Korematsu has been reborn. Part II finds Dasrath closely mirrors Korematsu's powerful and peculiar rhetoric, and it concludes that Dasrath accordingly embodies Korematsu. Part III discusses Dasrath's ramifications. It demonstrates that Korematsu was the Court's concession to America's existing anti-Asian and anti-asian American (3) racism. As a reincarnation of Korematsu, Dasrath is a tool for cloaking existing anti-Arab and anti-arab American sentiment in legal legitimacy. Finally, in Part IV, this Comment concludes that Dasrath's insidious purpose indicates America and her courts remain willing to sanction some racist sentiment. While Korematsu has been long reviled, the tolerance for racism manifested in that case continues.

I

September 11, 2001, was compared, almost immediately, to December 7, 1941. (4) The ensuing debate over the Bush Administration's domestic response to 9/11 similarly included comparisons to the Roosevelt Administration's response to Pearl Harbor. (5)

Caution against repeating World War II's race-based internments accompanied those comparisons. (6) Many also feared the courts would resurrect the sort of judicial deference that gave legal legitimacy to the internments--i.e., the courts would "repeat" Korematsu v. United States. (7)

These concerns were not overstated. After September 11 th, some called for ethnic profiling, insisting that the Constitution permitted it. (8) Others cited Korematsu as favorable precedent. (9) Indeed, even before 9/11, a few commentators still argued that Korematsu had life, (10) though by the 1980s most scholars considered the case functionally dead letter, (11)

As the Administration and the courts acted, however, it seemed that, while possibly open to criticism, the response to 9/11 would not sink to race-based internments or Korematsu-like opinions. Following the attacks, our leaders were careful to "acknowledg[e] and celebrat[e] our racial and religious diversity." (12) One year after 9/11, the courts appeared not to be deferring to the executive branch's wartime policies. (13) Scholars who warned of Korematsu-type deference conceded that, while judicial deference today might resemble the deference in Korematsu, the sort of outright racism seen in Korematsu would not withstand modern equal protection review. (14) One commentator--a Columbia University professor--even referred to Korematsu as an "obscure" Supreme Court case. (15)

September 11th did not immediately result in the sort of publicly sanctioned racism that, after Pearl Harbor, had led to Time and Life "how-to" guides for distinguishing, on the basis of physical characteristics alone, between our "friends," the Chinese, and our "enemies," the "Japs." (16) In his September 20, 2001, address to Congress, President Bush asserted several times that America would not profile, saying once, "The enemy of America is not our many Muslim friends; it is not our many Arab friends." (17) America would not repeat the past.

II

On October 17, 2002, however, a federal district court in New Jersey revived Korematsu in Dasrath v. Continental Airlines, Inc. (18) by using language remarkably similar to that used in Korematsu. Dasrath concerns two of five suits recently filed by the American Civil Liberties Union (ACLU), all of which allege a racially discriminatory removal of a passenger from a commercial flight. (19) In the opinion, the court construes 49 U.S.C. [section] 44,902, a statute permitting "an air carrier ... [to] refuse to transport a passenger or property the carrier decides is, or might be, inimical to safety." (20) Judge Debevoise's explication of the broad discretion granted by [section] 44,902 and his justification for the "heavy" burden the statute imposes upon a plaintiff (21) echo Justice Black's validation of Exclusion Order No. 34 in Korematsu.

Dasrath mimics Korematsu in several ways. Most significantly, both opinions use threats to national security to deflect attention from race-based actions. In Dasrath:

[T]he objective assessment of a carrier's decision must take into account all the circumstances surrounding the decision, including ... not least, the general security climate in which events unfold.... In the present case, it should not be forgotten that the decisions at issue were made in an atmosphere pervaded by the...