In 2022, 18.6 million people identified as travelers with a disability. Their traveling is made difficult, if not impossible, when their accessibility tools are damaged, they encounter insensitive staff perpetuating disability stigma, or they face inaccessible facilities. This Article argues that such constructed exclusion is reinforced by the limitations of public accommodations law in the United States, the lack of a private right of action under the Air Carrier Access Act, and the courts’ failure to recognize a constitutional right to travel as commercial air travel becomes a mode of public transportation.
Under the Americans with Disabilities Act (ADA), airports, aircrafts, and airline websites do not qualify as places of public accommodation. Further, the Air Carrier Access Act (ACAA) does not offer adequate protection to air travelers with disabilities, as there is no private right of action. And despite the known benefits of positive corporate social performance, their constructed exclusion persists due to the highly unequal bargaining power between passengers, including those with disabilities, and airlines. This Article argues that to protect people with disabilities in air travel, legislators and legal scholars should advocate for an ideological shift in the way people with disabilities are viewed and champion a private right of action under the ACAA.