On December 23, 2014, the First Circuit Court of Appeals ruled against plaintiff Professor Mary Beth Ruskai.
We’ve covered this case before, but for ease of reading here’s a brief synopsis: Prof. Ruskai has metal implanted replacement hips. She is a frequent traveler and a “Trusted Traveler, enrolled in Pre✔︎ (I can’t get past the observation that this particular TSA cutesy trademark looks like a dyslexic version of “perv”).
Because her metal implants alarm, however, she is always subjected to a full pat-down. Yes, “full” in the largest sense of the word. You see, the “Trusted Traveler” version of security generally (though not always) uses walk-through metal detectors instead of the full body scan. And therein lies the problem. Ruskai’s metal implants set off the metal detector.
Ruskai filed suit on 2013, alleging 4th Amendment violations and discrimination against the disabled. (See here for the filing). She wanted the TSA to change its procedures to allow for secondary screening with a hand-held wand of only the area that alarms the walk-through metal detector, supplemented by medical documentation. She also claimed “disparate impact,” noting that the preponderance of travelers subjected to full pat-downs were chosen due to nothing more than their medical requirements. Sounds pretty reasonable, no?
Well, the Court disagreed (see opinion here).
The Court found reasonable the TSA’s argument of “well, if someone alarms for metal, it doesn’t cost us much more to search them all over their bodies for non-metallic weapons; so, gosh, we should just go ahead and do it.” It also bought the TSA’s stated desire to implement more body scanners so every passenger could get searched for metallic and non-metallic weapons. Even Pre-Check flyers.
I have a few thoughts and questions. First, exactly how much “trust” does a “trusted traveler” receive? Not a whole hell of a lot, apparently. And as to disparate impact, there can be no doubt that the disabled are severely affected by current TSA procedures. No doubt, no escape, full frontal (and rear) assault every time they try to board a commercial airplane. But the Court decided that since the TSA graciously allows the disabled to board, therefore they aren’t actually denied a benefit. It just costs them their dignity and full surrender of their personal physical integrity.
Once, when I was at the TSA’s “Crystal Palace” in Arlington, Virginia (which, by the way, uses walk-through metal detectors and hand-held wands as secondary screening devices), I startled a TSA official. He emitted an audible protest when I announced that I didn’t know why the TSA had made “Flying While Handicapped” the new “Driving While Black.” This man, who was black, hated the comparison.
Well, sir, do you think you have the patent on protesting discrimination?
News Flash: you don’t.
I don’t know your name. I don’t even know if you’re still with the TSA. I do, however, hope my comment haunts you.