District Court Holds ADA Does Not Apply to Web Site

October 18, 2002. The U.S. District Court (SDFl) issued its Order Granting Defendant's Motion to Dismiss in Access Now v. Southwest Airlines, holding that the Americans with Disabilities Act (ADA) ban on discrimination in public accommodations does not apply to Southwest's web site.

Background. Plaintiff, Access Now, is a non profit corporation that engages in advocacy under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101, et seq. Defendant, Southwest Airlines, maintains a web site the enables users to check airline fares and schedule and book airline and hotel reservations. Plaintiff filed a complaint in U.S. District Court (SDFl) against Southwest alleging the Southwest has not made its web site accessible to blind persons using a screen reader, in violation of Title III of the ADA.

Statute. 42 U.S.C. § 12182(a) provides that "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation."

42 U.S.C. § 12181(7) then provides a long lists of things that constitute public accommodations, including "an inn, hotel, motel, or other place of lodging ... restaurant, bar, or other establishment serving food or drink ... a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment ...an auditorium, convention center, lecture hall, or other place of public gathering". This list continues. Yet, all of the items in the list are physical places. There is no reference to the Internet or web.

Holding. The Court dismissed the complaint for failure to state a claim, pursuant to FRCP 12(b)(6). The Court wrote that this was a case of first impression, and reached its decision on the basis of statutory construction. It held that "the plain and unambiguous language of the statute and relevant regulations does not include Internet websites among the definitions of ``places of public accommodation´´".

The Court also applied the "rule of ejusdem generis" which provides that "where general words follow a specific enumeration of persons or things, the general words should be limited to persons or things similar to those specifically enumerated." (Citations omitted.)

The Court elaborated that "Where Congress has created specifically enumerated rights and expressed the intent of setting forth "clear, strong, consistent, enforceable standards," courts must follow the law as written and wait for Congress to adopt or revise legislatively defined standards that apply to those rights. Here, to fall within the scope of the ADA as presently drafted, a public accommodation must be a physical, concrete structure. To expand the ADA to cover "virtual" spaces would be to create new rights without well-defined standards."

Justice Department. While the Department of Justice (DOJ), which has enforcement responsibilities under the ADA, has been silent on this issue for some time, it did write a short letter six years ago stating that the ADA does apply to the web. The then Assistant Attorney General in charge of the Civil Rights Division, Deval Patrick, wrote a letter on September 9, 1996 to Sen. Tom Harkin (D-IA) in which he stated that "The Americans with Disabilities Act (ADA) requires ... places of public accommodation to furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities ... Covered entities under the ADA are required to provide effective communication, regardless of whether they generally communicate through print media, audio media, or computerized media such as the Internet. Covered entities that use the Internet for communications regarding their programs, goods, or services must be prepared to offer those communications through accessible means as well." Patrick wrote that web site operators could comply by providing audio tapes and braille copies of their web sites.

Policy Arguments. The Court's opinion addressed only statutory construction and the little case law related to the issue. It did not address policy arguments against extending the ADA to the Internet. However, the House Judiciary Committee's Subcommittee on the Constitution held a hearing on this issue on February 9, 2000. See, TLJ story titled "Do Web Sites Violate the Americans with Disabilities Act?", February 10, 2000.

Walter Olson, a Senior Fellow at the Manhattan Institute, offered policy arguments against ADA based regulation of web sites. He testified that if web sites had to comply with the ADA it would have disastrous effects on the Internet. "Hundreds of millions of existing pages would be torn down. Some of these would eventually be put back up after being made compliant. Countless others never would." "The posting of new pages, by the tens of millions, would screech to a near halt." "Amateur publishing, as by the owner of a small business or a community group that relied on volunteers, would become more of a legal hazard." "Many widely used and highly useful features on websites would be compromised in functionality or simply dispensed with for reasons of cost, delay or cumbersomeness." "Parties subject to the ADA will feel pressure to use government approved authoring tools". See prepared testimony of Olson.

See also, article in the Reason Online May 2000 edition by Olson titled "Access Excess: The Americans with Disabilities Act goes online".

In contrast, seven other witnesses at this hearing argued for application of the ADA to the Internet. See, prepared testimony of Charles Cooper, Peter Blanck, Dennis Hayes, Gary Wunder, Steven Lucas, Judy Brewer, and Susyn Conway.