I had an idea. Congress gave billions of dollars to the airlines after 9/11. Only a fraction of that money was to compensate airlines for the loss of business when airports were closed in the days after 9/11. Most of the money was to assist the airlines because of the loss of business as air travel became less desirable to many people after 9/11. This more than $5 billion in federal assistance to the airline industry seemed to be just what the Rehabilitation Act of 1973 addressed in requiring businesses that receive federal assistance to not discriminate against people with disabilities.

I asked my lawyers to consider suing a number of airlines for violating the requirements of Section 504 of the Rehabilitation Act. Rounding up a number of co-plaintiffs they did just that.

As expected, the district court judge dismissed the lawsuit. We did not think that a single judge would render a decision that would for the first time expose airlines to lawsuits when they violate the rights of passengers with disabilities. The dismissal was appealed to the 11th U.S. Circuit Court of Appeals, which heard oral arguments in this case earlier this summer.

On August 22nd the appeals court published their decision in which they affirmed the lower court decision to dismiss the case -- in other words I lost and the airlines won. Actually, we all lost.

The "Airline Stabilization Act" passed by Congress provided a first payment to the airlines of $5 billion. When debating the bill, Congress acknowledged that the airlines had lost only $1 billion from airports being closed after 9/11. The rest of the money was to help the airlines because of the decrease in passengers wanting to fly after 9/11. Members of Congress who spoke on the record when this bill was being debated commented that this money was to "assist" the airlines and was to "bail out" the airlines. However in the Act the word "compensation" was used, not the word "assistance".

The 11th Circuit has decided that "compensation" is not "assistance." They ignored the Congressional Record which is filled with the concept of providing assistance to the airlines and the ignored the fact that if Congress wanted to provide this assistance and still exempt the airlines from the requirements of the Rehabilitation Act they could have said so in the law or at least expressed that intent in the record. Absent any statement from Congress about the Rehabilitation Act applying to airlines in the face of these billions of dollars of assistance, the Court once again took the opportunity to make law from the bench instead of enforcing the law.

In their tortured logic they stated:

... it seems illogical to infer that, in passing the Stabilization Act in response to the enormous economic crisis the airline industry faced as a result of the September 11 terrorist acts, Congress also intended to expose airline carriers to additional economic risk by allowing private lawsuits for damages to be brought under the Rehabilitation Act.

By that statement the Court has implied that Congress intended to give all of this taxpayer money to the airlines while allowing them to continue to violate the civil rights of passengers with disabilities. A much more logical statement that the Court could have and should have made is:

It seems illogical to infer that, in passing the Stabilization Act in response to the enormous economic crisis the airline industry faced as a result of the September 11 terrorist acts, Congress also intended to allow airline carriers to continue to discriminate against millions of citizens with disabilities whose tax dollars were being given to the airlines. When the airlines accepted this federal money they also accepted the basic principal of not discriminating against any minority group including people with disabilities.

People with service dogs and people whose legs cannot bend are those who have really lost through this decision. The U.S. Dept. of Transportation clearly does not respect our rights to equal access to air travel. The Air Carrier Access Act requires that we be provided with bulkhead seating when requested so that we have additional room at our feet for our service dog or room for legs that will not bend.

In spite of that requirement, though, they find nothing wrong with airlines designing their seating configurations so that all bulkhead rows are exit rows -- where people with disabilities are not allowed to sit. When we are told that there is no place on the aircraft with room for our service dogs or with room for legs that will not bend, the Dept. of Transportaion does nothing, claiming that while the law requires that bulkhead seats be provided, the law is not specific as to the design of the cabin seating.

To make matters worse, the Dept. published a "guidance" without seeking public comment. This "guidance" implies that our service dogs must fit in the space directly in front of our seats. So with no extra space provided by a bulkhead seat, and with seat widths in coach typically being 16 inches, we are supposed to fit our service dogs in that tiny space. When I ask, "where we are supposed to put our feet?" I get no response.

If you have legs that do not bend, you will be told that you can put your leg in the aisle. What if both legs don't bend? Of course it is illegal to obstruct the aisle during takeoff and landing, and you can't block the aisle when the beverage cart is passing.

By this decision the airline industry will continue to be the only business in the United States that is engaged in commerce and that cannot be sued for discrimination against people with disabilities -- even when their acts of discrimination violate the requirements of the Air Carrier Access Act.

All we can do now is to continue to file complaints with the Dept. of Transportation when our rights are violated and then hope that someone will take the time to look into our complaints. I hope that every person with a disability who flies on any U.S. flag airlines will become knowledgeable of the requirements of the Air Carrier Access Act and will file complaints with DOT each and every time those requirements are violated. If we can establish a sufficient record of never ending violations and of DOT doing little about them maybe we can one day get Congress to amend the Air Carrier Access Act so that we have the right to sue when our civil rights are violated.

Posted Aug. 29, 2005.

ADA consultant Frederick A Shotz is president of the Association of Disability Advocates in Ft Lauderdale, FL.

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