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 Letter to the Editor Regarding the Southwest Airlines Accessible Web Case

November 8, 2004

E-Access Bulletin



Dear Editor:

This letter is to correct significant errors in the article “US law unravels over the web- ADA confusion continues” published in Issue 59, October 2004.  Unfortunately, the Southwest Airlines accessible web case has generated a number of misleading articles in the US and abroad regarding the status of accessible web and disability rights in the US. 


It is not true that the U.S. Court of Appeals ruled on whether or not organizations providing online services needed to comply with the Americans with Disabilities Act (ADA).  In fact, the court did not reach that issue and simply dismissed the case due to procedural issues.  Contrary to what was reported, this means that the court did not rule on the merits of the case and did not uphold the lower court ruling.  As the court stated in their opinion, none of the issues on appeal were properly before them and so they were unable to reach the merits of the case.  (See page two of the attached opinion filed September 24, 2004.)  In fact, one of the difficult issues before the lower court was the fact that airlines such as Southwest are generally not covered by the ADA, but by another disability access statute, the pre-ADA Air Carrier Access Act.


However, the U.S. Court of Appeals opinion noted that even though the merits of the Southwest Airlines case could not be evaluated, the court found that the legal questions are significant.  The Court stated that “The Internet is transforming our economy and culture, and the question whether it is covered by the ADA – one of the landmark civil rights laws in this country – is of substantial importance.”


Readers may be interested to know that at this time in the U.S., our courts are split on the purely legal question as to whether or not the ADA applies to private web sites.  The First and Seventh Circuits have suggested that web sites can be considered public accommodations and thus subject to the ADA.  On the other hand, the Sixth, Third and Ninth Circuits have held otherwise.  Our case law is behind the times, hence the statement by the U.S. Court of Appeals that this is a significant legal question.


As for government web sites, which are not private or commercial web sites, Section 508 of the Rehabilitation Act of 1973, as amended by the 1998 Rehabilitation Act Amendments, requires U.S. federal government web sites be accessible.  Pursuant to the statute, in 2000 the U.S. Access Board published the Electronic and Information Technology Accessibility Standards.  These standards are found at http://www.access-board.gov/508.htm and are triggered whenever government agencies develop, procure, maintain or use a web site.  Today, many States across our nation have also adopted Section 508 accessible web design requirements, either by statute or by policy. As a result, non-governmental organizations using State funding may also be subject to the requirements of accessible web design.


Your article also referenced the New York State Attorney General settlements for accessible web sites against Ramada Inn.com and Priceline.com.  For your information, The International Center for Disability Resources on the Internet has posted the press release on our portal at http://www.icdri.org/News/NYSAccessWeb.htm.  Having served as the Expert Witness on accessible web for a separate Ramada Inn case that has also settled, I can say that education and outreach on accessible web continues to be needed both in the US and worldwide. 


Best regards,

Cynthia D. Waddell, Juris Doctor

Executive Director

International Center for Disability Resources on the Internete

US Court of Appeal decision is below:


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