May 19, 2024

What if David Dao had given up his seat?

How would the situation have changed if David Dao had given up his seat for United crewmembers as he was ordered to? Let’s start with the obvious.

  1. Obviously, he wouldn’t have gotten manhandled by airport police.

Though the violence used to remove an elderly man wasn’t justified.  Yes. He wouldn’t now require surgery.

In an hourlong news conference that touched on race, policing and airline manners, a lawyer for the passenger dragged off a United flight on Sunday listed his client’s injuries: a broken nose, a concussion, two knocked-out teeth and sinus problems that may require reconstructive surgery.

2. United Airlines’ authority would have been upheld.

This is where the value of his compliance gets murky. First, people disagree about the legality of Dao’s noncompliance.


According to the Independent, Andrew Harakas, partner at Clyde & Co law firm and aviation expert,  believes that:

“He was denied boarding, he should have got off the plane but he didn’t and the authorities were called. From a legal perspective, he was violating the law if he interfered with the crew members’ duties or the ability for the plane to be operated.”

Reported by United as "belligerent" and "unruly". Dao is on the phone with United before being dragged off the place by force.
Reported by United as “belligerent” and “unruly”. Dao is on the phone with United before being dragged off the place by force. Still from video.

Not so fast though…


John F. Banzhaf III at Law Newz is a professor of public interest law at the George Washington University Law School. He has an interesting legal opinion on why United’s actions were not legal.

Rule 21, entitled “Refusal of Transport,” is very different because it clearly and expressly covers situations in which a passenger who has already boarded the plane can be removed.  It states clearly: “Rule 21, Refusal of Transport, UA shall have the right to refuse to transport or shall have the RIGHT TO REMOVE FROM THE AIRCRAFT AT ANY POINT, any passenger for the following reasons.” [emphasis added]

The rule, which unlike the denied boarding rule does provide for removal “from the aircraft at any point,” lists some two dozen justifications including: unruly behavior, intoxication, inability to fit into one seat, medical problems or concerns, etc.  But nowhere in the list of some two dozen reasons is there anything about over booking, the need to free up seats, the need for seats to accommodate crew members to be used on a different flight etc.

Most importantly, is the dubious value of compliance with an unlawful order.

Finally, it appears that United is seeking to blame the passenger, claiming that when asked to give up his seat, he acted belligerently – and citing a rule which requires that passengers obey the orders of the flight crew.  But, such a requirement applies only to orders which are lawful.

If, for example, the flight crew had ordered two passengers to fight each other for the amusement of the other passengers, or to take off all their clothing, the passengers would not be required to comply, and their forceful removal could not be based upon refusing to follow unlawful orders.

The embarrassment to United has changed policy
Which brings us to a new development that was reported today that resulted from Dao’s noncompliance. As a direct result of this highly publicized situation United has reversed the policies that created the problem in the first place. United is no longer allowing crew members to unseat passengers that are already on the plane. Additionally:

Under the change outlined in an internal April 14 email, a crew member must make must-ride bookings at least 60 minutes prior to departure. Crews could previously be booked until the time of departure.

Context that may have prompted Dao’s refusal to deplane

Whether you agree or disagree with Dao’s decision to not vacate his seat for a crewmember, everyone who flies benefitted from it. People won’t get bumped out of their seats by crewmembers especially after they have boarded. It is hard to say what motivated Dao’s noncompliance. It could have been travel weariness and urgency to return to his patients. China is outraged and Houston’s Asian American community demanded to know if it was racially motivated.

“We want to know what the process was,” Rep. Al Green said. “How does this random process work? We want to know what  does it mean to be selected randomly.”

Hopefully, it is not swept under the rug and it is thoroughly corroborated that Dao was selected by a computer and not by a United crewmember opinion alone. Dao may have believed that was the case and it may have contributed to his resolve to not comply.

 “He said, more or less, ‘I’m being selected because I’m Chinese,’” fellow passenger Tyler Bridges was quoted as saying by The Washington Post.

Although another passenger said he said he was from Vietnam not China and Dao’ s attorney also said that Dao was more terrified by the experience than escaping from Vietnam. My mother also escaped from Vietnam and I can empathize with the sentiment that Asians (not synonymous with Chinese) are unfairly targetted by “random” airport procedures. I have been “randomly” searched aka as groped flying with my biker husband, who walks right through,  numerous times in America, UK, and Australia. At least in the UK, there are stats that Asians are disproportionately targetted by airport security.

 Vikram reports: “Asians make up 5% of the UK population, black people 3% and others 1%. White people make up 91% of the population. Where people are stopped and held for under an hour, the breakdown is: white people, 45% of stops; Asian people, 25%; black people, 8%; other ethnicities, 22%.”

It wouldn’t surprise me if there are similar stats on this in America as well. Some believe that Asians are targetted by security for the ironic perception that they are compliant. Thus, they are less likely to make trouble for personnel who have to complete a mandatory number of “random screenings”. There is a long-standing model minority myth that reinforces this stereotype. Of course, Dao didn’t fit that stereotype. Hopefully, this incident will prompt greater scrutiny of subjecting Asians to unwarranted and invasive security measures.

Hooray for David Dao

So regardless of why he did it, many of us have good reasons already to be thankful that David Dao did not give up his seat. Frequent fliers and hopefully Asians as well can rejoice today that he did refuse to get up. The needed changes to burdensome policies to passengers would not have happened had he quietly submitted.

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