Amicus Curiae Brief — PGA Tour, Inc. v. Martin

Supreme Court brief2001

Ask Donna

What actually matters in this document.

Text

No. 00-24

= — a id

In the Supreme Court of the United States |

PGA Tour, INC., PETITIONER

CASEY MARTIN

ON WRITOF CERTIORARI

TOTHE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

SETH P. WAXMAN

. ‘ =

Solicitor Cree ral

Counsel of Ri cord

Bint. LANN LEE

Assistavt Aftorie if General

JAMES. RAg&Glo

General Counsel

Archit cturval Awd

Transportation Barrie i's

- BARBARA D. UNDERWOOD

. Th wily Solicitors (re hie val

( on planes Board /

Washington, D.C. 20415 PATRICIA A. MILLET

Assistant tothe Solicito;s

General

JESSICA DUNSAY SILVER

THOMAS E. CHANDLER

Atlormeds

Th pa frnent of Justices

Washington, D.C. 20520-0001

(2002) 15-2216

QUESTIONS PRESENTED

1. Whether Title III of the Americans with Disabilities

Act of 1990, 42 U.S.C. 12181 to 12189 (1994 & Supp. IV 1998),

regulates standards for competitors in athletic competitions

held at places of public accommodation.

2. Whether Title II] may require a professional sports

organization to accommodate a disabled competitor by

waiving a rule of athletic competition.

eee eee

TABLE OF CONTENTS

Interest of the United States

Statement

Summary of argument

Argument

I. The golf courses on which petitioner conducts

its competitions are public accommodations

subject to Title III of the Americans with

Disabilities Act

A. Petitioner’s golf course operations fall

squarely within the language of Title

Ill ,

B. The legislative history of the Disabilities

Act supports its application to the playing

field for competitive athletics

C. The administrative interpretation, imple-

mentation, and enforcement of the Dis-

abilities Act reinforce the Act's coverage

of competitive athletics

D. Analogous civil rights legislation applies

to competitive athletics

E. Petitioner’s objections to coverage are

unavailing

Il. There is no reason to disturb the lower courts’

factual determination that permitting respon-

dent to use a golf cart will not fundamentally

alter petitioner’s COMpetitiONS ............ccccceeeeeeeeeeeeee

Conclusion ...

(III)

aoe

_ eS

TABLE OF AUTHORITIES

Cases:

Anderson vy. Little League Baseball, 794 F. Supp.

342 (D. Ariz. 1992)

Bowers v. NCAA, 118 F. Supp. 2d 494 (D.N.J.

Bragdon v. Abbott, 524 U.S. 624 (1998) 2... .cceceeees

Butler v. NCAA, No. C96-1656L, 1996 WL

1058233 (W.D. Wash. Nov. 8, 1996)

Cavallaro by Cavallaro v. Ambach, 575 F. Supp.

171 (W.D.N.Y. 1983) .

Community for Creative Non-Violence v. Reid,

490 US ir ene

Daniel v. Paul, 395 US. 208 (1969) ... -

eeeee

Evans v. Laurel Links, Inc., 261 F. Sun. 474

(E.D. Va. 1966) .

FDA vy. Brown & Williamson Tobacco Corp.,

120 S. Ct. 1291 (2000)

Ganden v. NCAA, No. 96-C-6953, 1996 WL

680000 (N.D. Il. Nov. 21, 1996) ......

Goodyear Tire & Rubber Co. v. Ray-O-Vac Co.,

321 U.S. 275 (1944) ......

Grube v. Bethlehem Area Sch. Dist., 550 F. ~—

418 (E.D. Pa. 1982)

Independent Living Res. v. Oregon Arena Cup. be

982 F. Supp. 698 (D. Or. 1997) ......

Johnson v. City of Saline, 151 F.3d 564 (6th Cir.

1998) ......

Kampmeier v. Noquiet, 553 F.2d 296 (2d Cir.

1977)

McPherson v. Michigan High Sch. Athletic Ass'n,

119 F.3d 453 (6th Cir. 1997)

Menkowitz v. Pottstown Memorial Med. Ctr.,

154 F.3d 113 (3d Cir. 1998) ...................

Miller v. Amusement Enters., Inc., 394 F.2d 342

(5th Cir. 1968)

12, 14

13, 22

15, 18

Cases—Continued: Page

NCAA v. Board of Regents, 468 U.S. 85 (1984) ..........00 20

O'Connor v. Davis, 126 F.3d 112 (2d Cir. 1997),

cert. denied, 522 U.S. 1114 (1998) 19

Pennsylvania Dep't of Corretions v. Yeskey,

524 U.S. 206 (1998) 7,17

Poole v. South Plainfield Bd. of Educ.,

490 F. Supp. 948 (D.N.J. 1980) 14

Pottgen v. Missouri State High Sch. Activities

Ass'n, 40 F.3d 926 (8th Cir. 1994) 12

Runyon v. McCrary, 427 U.S. 160 (1976) 16

Shultz v. Hemet Youth Pony League, 943 F. Supp.

1222 (C.D. Cal. 1996) 12

Tatum v. NGAA, 992 F.Supp. 1114 (E.D. Mo.

1998) 12

United States v. Naftalin, 441 U.S. 768 (1979) ................ 22

United States v. Slidell Youth Football Ass'n,

387 F. Supp. 474 (E.D. La. 1974) ;, 13

Washington v. Indiana High Sch. Athletic Ass'n,

181 F.3d 840 (7th Cir.), cert. denied, 120 S. Ct.

579 (1999) 12, 24

Welsh v. Boy Scouts of America, 993 F.2d 1267

(7th Cir.), cert. denied, 501 U.S. 1012 (1993) 0.0... 13

Wesley v. City of Savannah, 294 F. Supp. 698

(S.D. Ga. 1969) 13

Statutes and regulations:

Americans with Disabilities Act of 1990, 42 U.S.C.

EES ES ALLTEL 1

42 U.S.C. 12101(a\(3) 1

42 US.C. 12101(a)(5) 6

42 U.S.C. 12101(aX8) 6

42 U.S.C. 12101(aX(9) 7

42 US.C. 12101(b)(1) 1,6,17

Tit. I, 42 U.S.C. 12211-12117 ...............0000000 16, 17, 18, 19, 20

42 U.S.C. 12111(5 A) 18

Tit. [1, 42 U.S.C. 12131-12165 17, 18

Statutes and regulations—Continued:

1998)

42 USC.

42 U.S.C.

42 USC.

42 U.S.C.

42 USC.

42 U.S.C.

42 US.C.

42 U.S.C.

42 USC.

42 U.S.C.

42 US.C,

42 USC.

42 U.S.C. 12204(a)

42 U.S.C. 12204(b)

42 US.C. 12206(e(2C)

42 US.C. 12206(¢)(3)

et seq.

42 U.S.C. 2000a(a)

42 U.S.C. 2000a(b)

Page

Tit. I11, 42 U.S.C. 12181-12189 (1994 & Supp. IV

passim

12181(6) 6

12181(7) 23

12181(7\C) . 2, 6, 23

IZIBA(TAD) ....-.-.-ccccccscsvecceees 2, 6, 23

12181(7)F) 23

12181(7\G) .. 23

12181(7\J) .. 23

12181(7) K) 23

12181(7)L) 2,6

12182(a) . 1, 5-6, 15, 22

1282(b)(1)( A) 21,22

12182(b) 1) AY) ........... 21

12182(b)( 1 A ii) 21

12182(b)(1)( A (iii) ....... 21

12182(b)( 1) Aiv) ....... 21, 22

12182(b)(2) 22

12182(b)(2)( A ii) 2

12186(b) 1

12186(c) 10, 11

12187 2, 15, 24

1218&(b) 1,9, 11

12189 24

st]

Civil Rights Act of 1964, Tit. I1, 42 U.S.C. 2000a

12, 13

Rehabilitation Act of 1973, Tit. V, § 502(a), 29 U.S.C.

792(a) (1994 & Supp. IV 1998)

Vil

Statutes and regulations—Continued: Page

28 C.F.R.:

Section 35.130(b)(5) 18

Pt. 36 1

Section 36.309(b)(3) 24

App. A 10,14

App. B 6, 10, 16, 21, 24

34 C.F.R. (1989):

Section 104.37(c) 14

Section 104.47(a) 14

36 C.F.R. 1190.31(s)(3) (1989) 11

Miscellaneous:

Jim Abbott, “It’s Easy to Accommodate,” Golf

World, Feb. 20, 1998 25-26

Black’s Law Dictionary (5th ed. 1979) 20

135-Cong. Rec. 19,835-19,836 (1989) 18

136 Cong. Rec.:

p. 11,437 8

p. 11,4538 ra!

p. 17,373 8,9

p. E1915 (daily ed. June 13, 1999) ........ 9

pp. E1915-E1916 (daily ed. June 13, 1990) .............ccccceseee a)

Consent Decree Between the United States and the .

NCAA, Civil No. 98-1290 (D.D.C. May 27, 1998) ............. 11

Dep't of Justice, Accessible Stadiums (1996) 10

Dep't of Justice, The Americans With Disabilities

Act:

Title Il Technical Assistance Manual (Nov.

I health eaitliatnantaats 18

Title III Technical Assistance Manual (Nov.

1993) 6,18

59 Fed. Reg. 48,542 (1994) «: 12

64 Fed. Reg. (1999):

__-p, 37, 326.. 11

p. 37,336 11

p. 37,343 11

- -p. 37,350 11

65 Fed. Reg. 45,331 (2000) 11

Vill

Miscellaneous—Continued: Page

H.R. Conf. Rep. No. 596, 101st Cong., 2d Sess.

CEIBEIID coccccesssssssssscenssnsssnssmussssscsnansanasssemenssssssensssssnensensnnensse 9, 21, 25

H.R. Rep. No. 485, 101st Cong., 2d Sess. (1990) ..........0000 passim

Letter from Deval Patrick, Asst. Attorney General,

- to Allan Selig, Acting Commissioner of Major

League Baseball (Oct. 22, 1996) ......cccscscssscsssoseserseseseserseees 11

Recreation Access Advisory Comm., Recommenda-

tions for Accessibility Guidelines: Recreational

Facilities and Outdoor Developed Areas (July

BEE cSicenensscssnsennsssnessssanmnansnepssanenennsenetesetnenmnenensneneeeeeneeeneaneenns 11

Settlement Agreement Between the United States

and the Southeastern Conference (Dep’t of

Justice Complaint No. 202-35-103) (1999) ......sssseseeeeees 11

Staff of the House Comm. on Educ. and Labor, 101st

Cong., 2d Sess., Legislative History of Pub. L. No.

101-336: The Americans with Disabilities Act

GES, UE TD ccnccenmnasenrstesstmesmeenmsnmne 8

Three Settlement Agreements Between the United

States and the Atlanta Committee for the Olympic

Games, et al. Concerning the Olympic Stadium,

the Olympic Aquatic Center, and the Olympic

PD CORNET GHD cxctennscensnneransesensmnsmmnnscesenssmssnssnssnsssensenees 11

United States Golf Association, “A Modification of

tne Rules of Golf for Golfers with Disabilities”

GED cnsssesstnsemenssmssnsetemnnnenrecmageeiseemmeememnes 26

United States Golf Association, Rules of Golf

GEE ccsscsssenseassscssnegsenmnmemesssetmeseeemmumemensummnenenees 26, 28

Webster's Third New Int'l Dictionary A986) .....cccccccceereeee 15

INTEREST OF THE UNITED STATES

This case presents important questions concerning the

application of Title III of the Americans with Disabilities Act

of 1990, 42 U.S.C. 12181 to 12189 (1994 & Supp. IV 1998), to

athletic competitions held at places of public accommodation.

Pursuant to 42 U.S.C. 12186(b), the Department of Justice

has promulgated regulations that implement Title III’s pro-

visions, see 28 C.F.R. Pt. 36. The Attorney General also has

substantial enforcement responsibilities under Title III.

42 U.S.C. 12188(b). This Court’s decision on the scope of

Title III’s coverage and its construction of the “fundamental

alteration” defense in the context of competitive events

could have a significant impact on the Department’s my

to enforce Title III’s protections.

STATEMENT

1. The Americans with Disabilities Act of 1990 (Dis-

abilities Act), 42 U.S.C. 12101 et seq., establishes a “compre-

hensive national mandate for the elimination of discrimina-

tion against individuals with disabilities.” 42 U.S.C.

12101(b)(1). Congress specifically found that discrimination

against persons with disabilities “persists in such critical

areas as * * * public accommodations * * * [and]

recreation.” 42 U.S.C. 12101(a)(3).

Title II] of the Act mandates that:

[nJo individual shall be discriminated against on the basis

of disability in the full and equal enjoyment of the goods,

services, facilities, privileges, advantages, or accommo-

dations 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. 12182(a). Congress identified twelve broad cate-

gories of “public accommodation[s]” covered by Title !il,

including “a motion picture house, theater, concert hall,

stadium, or other place of exhibition or entertainmert”; an

(1)

“auditorium, convention center, lecture hall, or other place of

public gathering”; and a “gymnasium, health spa, bowling

alley, golf course, or other place of exercise or recreation.”

42 U.S.C. 12181(7)(C), (D) and (L).' Congress then identified

specific conduct that would violate the general prohibition

against discrimination, including

a failure to make reasonable modifications in policies,

practices, or procedures, when such modifications are

necessary to afford such goods, services, facilities, privi-

leges, advantages, or accommodations to individuals with

disabilities, unless the entity can demonstrate that

making such modifications would fundamentally alter the

nature of such goods, services, facilities, privileges,

advantages, or accommodations.

42 U.S.C. 12182(b)(2)( A (ii).

2. Petitioner is a non-profit association of professional

golfers organized “to promote and operate tournaments for

the economic benefit of its members.” Pet. App. 46a. Peti-

tioner sponsors three golf tours. Its most elite competition is

the PGA Tour, followed by the Nike Tour, and the Senior

Tour for golfers over age 50. Id. at 2a. Petitioner leases and

operates golf courses across the country for its competitions.

Ibid. The primary means of gaining entry to the PGA and

Nike Tours is to compete in petitioner’s three-stage qualify-

ing school tournament. The competition is open to any

member of the public who pays the entry fee and submits

two letters of reference. Jd. at 4la-42a.

Respondent is a professional golfer who has a circulatory

disorder in his right leg that makes it medically necessary

for him to use a golf cart rather than walk the golf course.

Pet. App. 2a, 18a. In 1997, respondent competed successfully

in the first two rounds of petitioner’s qualifying school

! Title ILI exempts from its coverage certain public accommodations

controlled by religious organizations and private clubs. 42 U.S.C. 12187.

_—

tournament and advanced to the final round. That same

year, petitioner abandoned its historic practice of permitting

_ golf-cart usage in the final round of its tournament, J.A. 267,

and refused to make an exception for respondent, Pet. App.

Respondent filed suit under Title III of the Disabilities

Act seeking an injunction requiring petitioner to permit him

to use a golf cart during competitions. J.A. 97. The district

court granted partial summary judgment for respondent,

Pet. App. 41a-55a, holding that petitioner operates a place of

“public accommodation” at the golf courses at which it con-

ducts its tournaments. /d. at 5la-55a. Following a bench

trial, the district court ruled that petitioner’s failure to mod-

ify its walking rule to accommodate respondent’s disability

violated Title III. Pet. App. 16a-40a. Accepting petitioner’s

assertion that the walking rule is designed “to inject the

element of fatigue into the skill of shot-making,” id. at 32a,

the court concluded that the fatigue caused by walkin,

“cannot be deemed significant under normal circumstances,”

id. at 33a, and that permitting respondent to use a cart

would not give him a competitive advantage because “[{t]he

fatigue [respondent] endures just from coping with his

disability is undeniably greater than the fatigueinjected into

tournament play on the able-bodied by the requirement that

they walk from shot to shot,” id. at 35a.

3. The court of appeals affirmed. Pet. App. la-15a. The

court held that the golf courses remain places of public

accommodation during petitioner’s tournaments, id. at 4a-8a,

reasoning that the “fact that users of a facility are highly

selected does not mean that the facility cannot be a public

accommodation,” especially where “[a]Jny member of the

public” who pays the entry fee and supplies letters of recom-

mendation may compete, id. at 7a. The court also ruled that

permitting respondent to use a cart was a “reasonable”

modification, which did not “fundamentally alter the nature

of the PGA and Nike Tour tournaments,” id. at 8a-15a,

because permitting respondent to use a cart would not give

him an advantage over other golfers in “[t}he central com-

petition [of] shot-making,” id. at 10-11.

SUMMARY OF ARGUMENT

1. Petitioner’s operation of golf courses during its tour-

naments falls squarely within Title III’s compass. Title III

expressly identifies “golf courses,” places of “exercise,” and

“any place of exhibition or entertainment,” as “public ac-

commodations” subject to Title III’s terms. Petitioner’s sug-

gestion that only spectators at such venues enjoy Title III’s

protections cannot be reconciled with that straightforward

statutory text. Furthermore, Congress’s express purpose to

afford individuals with disabilities comprehensive protection

against discrimination and to promote social and economic

integration foreclose the unnaturally narrow construction of

that language that petitioner proposes.

The legislative history and consistent regulatory inter-

pretation confirm that Congress meant exactly what it said.

Discrimination in access to athletic services and facilities, not

just for spectators but also for participants, was one of the

problems considered by Congress. Congress also specifically

addressed the application of the Disabilities Act to rules im-

posed by professional sports organizations on their athletes.

Further, the Department of Justice’s implementing regula-

tions, technical guidance, and enforcement activities have

long interpreted and applied Title ill as pertaining to

competitive athletics.

Finally, petitioner’s arguments that respondent is denied

protection under the Disabilities Act because respondent is

an independent contractor, rather than a “client or cus-

tomer” of petitioner, fail. The assumption that respondent is

an “independent contractor” and not a “client” is dubious,

and petitioner’s independent contractor argument ignores

the statutory text, structure, and relevant administrative

interpretations. Likewise, the contention that Title III

protects only an economic marketplace of “clients and

customers” lacks any viable anchor in the statutory text and

is foreclosed by legislative history and rudimentary princi-

ples of statutory construction.

2. The district court and court of appeals appropriately

considered the relevant factors in concluding that a waiver of

petitioner’s walking rule would not fundamentally alter its

competitions. The courts below found that no written rules

or other documentation supported the claim that the game of

competitive golf is intended to measure walking endurance,

rather than shot-making skills. Furthermore, given respon-

dent’s disability, use of a cart would afford him no com-

petitive advantage; indeed, most golfers prefer to walk for

tactical reasons. Finally, numerous exceptions already are

made to the walking rule both by other competitive golfing

organizations and by petitioner, including exceptions for

when balls are lost or long distances separate holes. Given

that record, the courts below reasonably concluded that, if

petitioner can accommodate players who lose their golf balls,

it can equally accommodate respondent’s disability.

ARGUMENT

I. THE GOLF COURSES ON WHICH PETITIONER

CONDUCTS ITS COMPETITIONS ARE PUBLIC

ACCOMMODATIONS SUBJECT TO TITLE III OF

THE AMERICANS WITH DISABILITIES ACT

A. Petitioner’s Golf Course Operations Fall Squarely

Within The Language Of Title III

The plain text of Title III encompasses petitioner’s

tournaments conducted at golf courses. Title III broadly

prohibits (1) “any person who owns, leases (or leases to), or

operates” (2) a “place of public accommodation” from

discriminating against an individual on the basis of that

individual’s disability (3) in the provision of “goods, services,

facilities, privileges, advantages, or accommodations.” 42

U.S.C. 12182(a). First, the district court and court of appeals

found (Pet. App. 2a, 51a), and petitioner does not dispute,

that it is a private entity (42 U.S.C. 12181(6)) that “leases”

and “operates” golf courses during its tournaments.”

Second, the golf courses on which petitioner conducts its

tournaments are “place|s| of public accommodation.” Title

III expressly lists a “golf course, or other place of exercise or

recreation” as a covered public accommodation. 42 U.S.C.

12181(7)L). Moreover, during competitions, the golf course

also operates as a covered “place of exhibition or enter-

tainment,” 42 U.S.C. 12181(7)(C), in the same manner as a

sports stadium or concert hall. See also Pet. Br. 10 (“The

PGA TOUR is ‘part of the entertainment industry.’”).

Third, the opportunity to compete in petitioner’s tourna-

ments for prize money and professional advancement is a

“good,” “service,” “privilege,” or “advantage” offered by

the public accommodation, just as the opportunity to take

college-admission tests and bar examinations, or to compete

in a beauty pageant or casino night may be offered by an

auditorium or other “place of public gathering” (42 U.S.C.

12181(7)(D)).

That straightforward reading of Title III’s text comports

with Congress’s express findings and purpose in enacting

the Disabilities Act. Congress intended that the Disabilities

Act’s coverage be “comprehensive,” 42 U.S.C. 12101(b)(1),

and ensure that individuals with disabilities enjoy “full

participation” in society, rather than continue to be rele-

gated to “lesser * * * programs [and] activities,” 42 U.S.C.

12101(a)(5) and(8).

* That petitioner's operation of the courses is temporary does not

relieve it of its obligations under Title II]. See 28 C.F.R. Pt. 36, App. B, at

629 (definition of covert persons “is quite extensive” and applies “even if

the operation is only for a short time”); see also Dep’t of Justice, The

Americans with Disabilities Act: Title III Technical Assistance Manual 3

(Nov. 1993) (Manual).

Petitioner contends (Br. 22-23) that Title III’s coverage of

golf courses, stadiums, concert halls, and similar places is

limited to the spectators who‘atterd events at those loca-

tions. The short answer is that Title III’s text contains no

such qualification. To the contxary, the description of golf

courses as places of “exercise” is most naturally read to refer

to the playing course itself and not the gallery. Further-

more, the coverage of golf courses, stadiums, and concert

halls is unqualified; if Congress wished to limit Title III’s

coverage to spectators, it could have said “the seating area

of” or “the viewing area of” those facilities. But Congress

did not. The Disabilities Act thus “plainly covers” golf

courses, as facilities for recreation and for exhibition and

entertainment, “without any exception that could cast the

coverage of [petitioner] into doubt.” Pennsylvania Dep't of

Corrections v. Yeskey, 524 U.S. 206, 209 (1998).

B. The Legislative History Of The Disabilities Act Sup-

ports Its Application To The Playing Field For Com-

petitive Athletics

The legislative history confirms what Title III’s plain

language says. “[BJecause discrimination against people with

disabilities is not limited to specific categories of public

accommodations,” S. Rep. No. 116, 101st Cong., Ist Sess. 11

(1989), Congress deliberately crafted a broad definition of

public accommodations to provide “people with disabilities

the opportunity to compete on an equal basis,” 42 U.S.C.

12101(a)(9), and to ensure “access to all aspects of society,” S.

Rep. No. 116, supra, at 11. See also id. at 59 (definition of

public accommodation “should be construed liberally”); H.R.

Rep. No. 485, 101st Cong., 2d Sess. Pt. 2, at 35, 100 (1990). In

particular, the Committee Reports left no doubt that cover-

age of sport facilities was intended to extend to the playing

field. Both the House and Senate Reports specifically

identify “driving ranges,” “[t]ennis courts,” and “basketball

courts” as covered facilities. S. Rep. No. 116, supra, at 59

(emphasis added); H.R. Rep. No. 485, supra, Pt. 2, at 100

(emphasis added).

Title III’s expansive coverage was the product of exten-

sive congressional hearings at which persons with disabili-

ties voiced their objections to exclusion from, among other

things, participation in athletic events. One witness de-

scribed the discriminatory exclusion of mentally retarded

children from Little League baseball. See 2 Staff of the

House Comm. on Educ. and Labor, 101st Cong., 2d Sess.,

Legislative History of Pub. L. No. 101-336: The Americans

with Disabilities Act 1058 (Comm. Print 1990) (Leg. Hist.).

Another witness explained: “Competitive sports activities

provide people with disabilities the opportunity to prove

what we can do. Too often we are told that we cannot com-

pete effectively in all aspects of life. We Can!” 3 Leg. Hist.

3077."

Nor did Congress intend to limit coverage to amateur or

recreational athletics. Congress specifically considered the

implications of the Disabilities Act for drug-testing pro-

grams conducted by “professional sports leagues” (136 Cong.

Rec. 17,373 (1990) (Sen. Hatch)):

|T)he conferees recognize that professional sports organ-

izations have promulgated policies to deter and treat

* See also 2 Leg. Hist. 943 (“When people don’t see the disabled among

our co-workers, or on the bus, or at the sports field * * *, most Ameri-

cans think it’s because they can’t. It’s time to break this myth. The real

reason people don’t see the disabled among their co-workers, or on the

bus, or at the sports field * * * is because of barriers and discrimination.

Nothing more.”); 3 Leg. Hist. 2148 (discrimination prevents persons with

disabilities from “participating in * * * sports”); 136 Cong. Rec. 11,453

(1900) (Rep. Morrison) (“|A]t one time, it was unheard of for individuals

using wheelchairs to play tennis, and tennis court designers and managers

never contemplated disabled players wanting courts. * * * [TJennis

. courts should be wheelchair accessible.”); 136 Cong. Ree. 11,487 (1990)

(Sen. Simon) (“Through the visibility of athletics, the University of Illinois

and other schools are demonstrating the capabilities of underused

citizens.”).

substance abuse among athletes. * * * The House

Committee on Education and Labor reviewed the

policies in light of this legislation and found that the

policies are entirely consistent with the non-discrimina-

tion provisions of the bill.

Ibid. (Sen. Harkin). The Conference Report then stressed

that “[t}he Act is not intended to disturb the legitimate and

reasonable disciplinary rules and procedures established and

enforced by professional sports leagues.” H.R. Conf. Rep.

No. 596, 101st Cong., 2d Sess. 66 (1990). None of that

discussion would have been necessary if Congress did not

intend the Disabilities Act to regulate the standards estab-

lished for competitors by professional sports organizations.

C. The Administrative Interpretation, Implementation,

And Enforcement Of The Disabilities Act Reinforce

The Act's Coverage Of Competitive Athletics

The Justice Department’s consistent interpretation and

implementation of Title II] removes any remaining doubt

that Title III’s coverage extends “inside the ropes” (Pet. Br.

22) to competitive athletics and other performers in places of

public accommodation. In the Disabilities Act, Congress

expressly assigned responsibility to the Attorney General to

issue regulations to carry out the provisions of Title III,

42 U.S.C. 12188(b), and to assist the public in complying with

Title III's obligations through, among other things, the

publication of a “technical assistance manual,” 42 U.S.C.

12206(c)(2)(C) and (3). The Disabilities Act further charges

the Architectural and Transportation Barriers Compliance

* See also 136 Cong. Rec. E1915 (daily ed. June 13, 1990) (Rep. Hoyer)

(“The Committee has reviewed these policies because the leagues have

raised questions as to whether such policies comply with the act.”); see

also id. at E1915-E1916 (specifically discussing programs run by the Na-

tional Football League, the National Basketball Association, Major

League Baseball, and the National Hockey League).

Board (Access Board) with promulgating minimum guide-

lines for making “buildings, facilities, rail passenger cars, and

vehicles” accessible “in terms of architecture and design,

transportation, and communication.” 42 U.S.C. 12204(b); see

also 42 U.S.C. 12186(c).’

Pursuant to its statutory authority, the Department of

Justice has promulgated standards governing the accessibil-

ity of stadiums. See Dep't of Justice, Accessible Stadiums

(1996). That publication emphasizes that the Disabilities

Act’s accessibility requirements extend beyond the specta-

tor areas. “An accessible route must connect the wheelchair

seating locations with the stage(s), performing areas, arena

or stadium floor, dressing or locker rooms, and other spaces

used by performers.” Id. at 2." The purpose of such accessi-

ble routes is to “provide[] access for the public, employees,

and athletes using the facility.” Jd. at 3.

The Justice Department’s Standards for Accessible De-

sign likewise direct that facilities used for public perform-

ances (such as assembly halls or theaters) must “provide an

accessible route to a performing area,” not just to spectator

seats. 28 C.F.R. Pt. 36, App. A, at 534.’ Indeed, Congress

effectively required such coverage. The Disabilities Act

* The Access Board is a federal agency created by the Rehabilitation

Act of 1973, 29 U.S.C. 792(a) (1994 & Supp. IV 199%).

signed so that an “accessible route * * * provide|s| access to all public

and common use areas including the playing field, locker rooms, dugouts,

stages, swimming pools, and warm-up areas”), id. at 4 (identifying “public

and common use areas” subject to the Disabilities Act as including “locker

rooms”).

7 See also 28 C.F.R. Pt. 36, App. A, at 583-585; id. at 585 (“An accessi-

ble route shall connect wheelchair seating locations with performing areas,

including stages, arena floors, dressing rooms, locker rooms, and other

spaces used by performers.”); id. App. B, at 640 (“It would violate this

section to establish exclusive or segregative eligibility criteria that would

bar, for example, ail persons who are deaf from playing on a golf course.”),

Manual 15 (basketball league may exclude wheelchair player only if it

“can demonstrate that the exclusion is necessary for safe operation”).

mandates that the Department’s regulations be “consistent

with the minimum guidelines and requirements” of the

Access Board, 42 U.S.C. 12186(c), which in turn are required

to “supplement the existing Minimum Guidelines and Re-

quirements for Accessible Design,” 42 U.S.C. 12204(a),

promulgated under the Rehabilitation Act and in existence

at the time the Disabilities Act was passed. Those pre-

existing guidelines required the provision of accessible

routes to “performing areas, including but not limited to

stages, arena floors, dressing rooms, locker rooms, and other

rooms and spaces required for use of the assembly area.”

36 C.F.R. 1190.31(s)(3) (1989)."

The Access Board likewise includes the playing area of

athletic facilities, and not just the stands, in proposed

guidance that it has issued. See 64 Fed. Reg. 37,326, 37,336,

37,343, 37,350 (1999) (addressing accessibility in golf courses

and sports facilities in the actual “area of sport activity,” and

accessible routes to player areas, as well as spectator areas).”

* The Department of Justice alxo bears investigation and enforcement

responsibilities under Title III. 42 U.S.C. 12188(b). Those enforcement

efforts similarly reflect the Act's intended coverage of competitive

athletics. See, ¢e.g., Three Settlement Agreements Between the United

States and the Atlanta Committee for the Olympic Games, et al., Con-

cerning the Olympic Stadium, the Olympic Aquatic Center, and the

Olympic Tennis Center (1996) (providing accessibility for spectators,

competitors, and support personnel), available at http://www.usdoj.gov/

ert/ada/settlement.htm; Consent Decree between the United States and

the NCAA, Civil No. 98-1290 (D.D.C. May 27, 1998) (addressing dis-

crimination in initial eligibility requirements against students with

learning disabilities); Settlement Agreement Between the United States

and the Southeastern Conference (Dep't of Justice Complaint No. 202-35-

103) (1999) (same); Letter from Deval Patrick, Asst. Attorney General, to

Allan Selig, Acting Commissioner of Major League Baseball (Oct. 22,

1996), concerning the accessibility of new major and minor league sports

facilities, including team locker rooms and similar areas, available at

http://www.usdoj.gov/ert/foia/citr196.txt.

® See also 65 Fed. Reg. 45,331 (2000); Recreation Access Advisory

Comm., Recommendations for Accessibility Guidelines: Recreational

Facilities and Outdoor Developed Areas 1, 2-7 (July 1994) (summary

Because the Justice Department’s implementing regula-

tions, technical assistance publications, and enforcement

activities have consistently acknowledged and enforced the

Disabilities Act’s coverage of the playing areas for com-

petitive athletics, “the Department’s views are entitled to

deference.” Bragdon v. Abbott, 524 U.S. 624, 646 (1998).""

D. Analogous Civil Rights Legislation Applies To Com-

petitive Athletics

Congress's coverage of competitive athletics under analo-

gous civil rights laws evidences Title III’s similarly broad

scope. Congress modeled Title III of the Disabilities Act on

Title II of the Civil Rights Act of 1964, 42 U.S.C. 2000a et

seq..'' Although the Civil Rights Act’s definition of covered

printed at 59 Fed. Reg. 48,542 (1994)) (recommending that “all new sports

facilities can and should be designed to be usable by persons with dis-

abilities,” and detailing the provision of access to the “field-of-play” for

golf and other sports, dugouts, locker rooms, and other “performing

areas”). The Access Board expects to finalize the guidelines in 2001.

A number of courts also have applied the Disabilities Act’s provi-

sions to competitive athletics. See, ¢.g., Washington v. Indiana High Sch.

Athletic Ass'n, 131 F.3d 840 (7th Cir.) (Title Il applied to high school

eligibility requirements), cert. denied, 120 S. Ct. 579 (1999); McPherson v.

Michigan High Sch. Athletic Ass'n, 119 F 3d 458 (6th Cir. 1997) (en bane)

(same for Title II1); Pottgen v. Missouri State High Sch. Activities Ass'n,

40 F.3d 926 (8th Cir. 1994) (same for Title I1); Bowers v. NCAA, 118 F.

Supp. 2d 494 (D.N.J. 2000) (Title IIL); Tatum v. NCAA, 992 F. Supp. 1114

(E.D. Mo. 1998) (Title III); Shultz v. Hemet Youth Pony League, 943 F.

Supp. 1222 (C.D. Cal. 1996) (Title 111); Ganden v. NCAA, No. 96-C-6953,

1996 WL 680000 (N.D. Ill. Nov. 21, 1996) (Title I1]); Butler v. NCAA, No.

C96-1656L, 1996 WL 1058233 (W.D. Wash. Nov. 8, 1996) (Title II];

Anderson vy. Little League Baseball, 794 F. Supp. 342 (D. Ariz. 1992) (Title

II] protects coaches).

'! That statute provides, in relevant part:

All persons shall be entitled to the full and equal enjoyment of the

goods, services, facilities, privileges, advantages, and accommodations

of any place of public accommodation, as defined in this section, with-

out discrimination or segregation on the ground of race, color,

religion, or national origin.

42 U.S.C. 2000a(a).

public accommodations is narrower than the Disabilities

Act’s definition, see 42 U.S.C. 2000a(b), courts nevertheless

have held that Title II of the Civil Rights Act encompasses

the right to participate in, rather than just to observe,

athletic events. In Daniel v. Paul, 395 U.S. 298 (1969), this

Court found “no support in the legislative history” for the

contention that Title II of the Civil Rights Act “refers only

to establishments where patrons are entertained as specta-

tors or listeners rather than those where entertainment

takes the form of direct participation in some sport or

activity.” Jd. at 306.

More particularly, courts have held that competitive

athletic events conducted by sports associations (including

golf associations) constitute places of public accommodation

subject to Title II of the 1964 Civil Rights Act. See United

States v. Slidell Youth Football Ass’n, 387 F. Supp. 474, 482-

483 (E.D. La. 1974) (association of coaches and football

players is a public accommodation in its operation of a youth

football league); Wesley v. City of Savannah, 294 F. Supp.

698, 702-703 (S.D. Ga. 1969) (golf tournament is a place of

public accommodation)."” Because the Disabilities Act’s cov-

erage of public accommodations is more extensive than that

of the 1964 Civil Rights Act, see S. Rep. No. 116, supra, at

11; H.R. Rep. No. 485, supra, Pt. 2, at 35, petitioner has no

more license to exclude players on the basis of disability than

to exclude Tiger Woods or Vijay Singh on the basis of race.

2 See Welsh v. Boy Scouts of America, 993 F.2d 1267, 1272 (7th Cir.) (a

membership organization is a place of public accommodation when it

“functions as a ‘ticket’ to admission to a facility or location,” such as a

sports field), cert. denied, 510 U.S. 1012 (1993); Miller v. Amusement

Enters., Inc., 394 F.2d 342, 350 (5th Cir. 1968) (en banc) (Title II covers

“establishments which provide recreational or other activities for the

amusement or enjoyment of its patrons”); Evans v. Laurel Links, Inc., 261

F. Supp. 474, 475- 477 (E.D. Va. 1966) (Title 11 guarantees equal right to

play golf on golf course).

Likewise, the Rehabilitation Act of 1973 applies to

competitive athletic events operated by recipients of federal

financial assistance. See 34 C.F.R. 104.47(a) (“In providing

physical education courses and athletics and similar pro-

grams and activities to any of its students,” postsecondary

institutions “to which this subpart applies may not dis-

criminate on the basis of handicap.”)."" Because the Disabili-

ties Act “requires [this Court] to construe the [Act] to grant

at least as much protection as provided by the regulations

implementing the Rehabilitation Act,” Bragdon, 524 U.S. at

632, Title III likewise must regulate competitive athletic

standards.

E. Petitioner's Objections To Coverage Are Unavailing

1. Petitioner contends (Br. 22-23; Pet. 10) that its tourna-

ments cannot fall within Title III’s coverage because the

general public is not allowed to participate; only golfers who

have survived a highly competitive selection process are

entitled to play. But Title III does not condition coverage on

indiscriminate public access. Quite the opposite, the statu-

tory text envisions coverage for numerous entities whose

admission policies may be restricted. See 28 C.F.R. Pt. 36,

App. A, at 530 (Title III applies to areas of “common use,”

which include areas “made available for the use of a

restricted group of people”).

First, many entities that are expressly identified as public

accommodations are highly selective in nature. For exam-

ple, private schools are covered despite the generally com-

petitive nature of admission to elite schools. Theaters,

concert halls, and stadiums are covered despite the fact that

'3 See also 34 C.F.R. 104.37(c) (same for preschool, elementary, and

secondary institutions); 34 C.F.R. 104.47(a) (1989); Kampmeier v. Nyquist,

553 F.2d 296 (2d Cir. 1977) (junior high school athletics); Cavallaro by

Cavallaro v. Ambach, 575 F. Supp. 171 (W.D.N.Y. 1983) (high school ath-

letics); Grube v. Bethlehem Area Sch. Dist., 550 F. Supp. 418 (E.D. Pa.

1982) (high school football); Poole v. South Plainfield Bd. of Educ., 490 F.

Supp. 948 (D.N.J. 1980) (high school wrestling).

they restrict access to ticket holders and, not infrequently,

access to such tickets is highly competitive (e.g., Redskins

season tickets; popular rock concerts). Homeless shelters

and food banks are covered despite the fact that they

frequently restrict eligibility for their goods and services.

Second, Title III’s protection against discrimination in the

allocation of “privileges” and “advantages” provided by

places of public accommodation (42 U.S.C. 12182(a)) demon-

strates that coverage is not limited to activities open to all,

because “privileges” and “advantages,” by definition, are

enjoyed by one person or group to the exclusion of others.

See, eg., Webster's Third New Int'l Dictionary 30, 1805

(1986); see also Menkowitz v. Pottstown Memorial Med. Ctr.,

i54 F.3d 113, 122 (3d Cir. 1998) (Title III applies to hospital

staff privileges).

Third, the limited statutory exemption for genuinely

private clubs, 42 U.S.C. 12187, demonstrates that Title III is

not confined to activities open to the general public. Con-

gress’s deliberately narrow exemption for private clubs

would be superfluous if any entity could avoid Title III’s

mandate simply by limiting public access in some identifiable

way.

Fourth, as the private school and concert hall examples

demonstrate, a public accommodation must be open to the

public, not in the sense of imposing no eligibility require-

ments, but rather in the sense of openly permitting members

of the public to compete for admission. Thus, while those

who actually are admitted to and attend the Nation’s top

4 See also Independent Living Res. v. Oregon Arena Corp., 982 F.

Supp. 698, 759 (D. Or. 1997) (executive suites in a sports arena are places

of public accommodation under Title III; “|A] facility that specializes in

hosting wedding receptions and private parties may be open only to

invitees of the bride and groom, yet it clearly qualifies as a public

accommodation. Attendance at a political convention is strictly controlled,

yet the convention center is still a place of public accommodation.”)

(citation omitted).

private universities may reflect a small cross-section of

society, those universities generally allow any member of the

public who submits an application, references, and the

required fee to participate in the competition for admission.

Further, their admission process is based largely on

objective indicators of performance, rather than the types of

insular and associational values that are the hallmark of

private clubs. Competition for concert or stadium tickets is

likewise generally open to the public and decided based upon

objectively measurable criteria. Petitioner’s tournaments

are no different. While the tournaments themselves include

only a narrow group of participants, petitioner permits any

member of the public who submits the required fee and

application papers to compete for the opportunity to play in

its tournaments.”

2. Petitioner argues (Br. 16-19) that coverage of its tour-

naments would be inconsistent with Title I of the Disabilities

Act’s implied exclusion of independent contractors from its

employment-discrimination provisions. That argument fails

for three reasons.

15 Cf. Runyon v. McCrary, 427 U.S. 160, 172 n.10 (1976) (private

schools are considered open to the public because “[t}heir actual and

potential constituency * * * is more public than private” in that “(they

appeal to the parents of all children in the area who can meet their

academic and other admission requirements”). Petitioner's (Br. 18, 23, 32)

and its amici’s reliance (USGA Br. 13; ATP Br. 13) on regulatory

provisions that identify hybrid private and public facilities is misplaced.

For the most part, those regulations address the opposite situation—

when select portions of facilities that are not otherwise covered by Title

III may be open to the public for a limited purpose. For such private

entities, Title III's coverage pertains only to those portions of their

operations that constitute a public accommodation. See 28 C.F.R. Pt. 36,

App. B, at 625 (where a commercial facility offers tours, only the tour

route is a place of public accommodation); id. at 624 (for a “large hotel that

has a separate residential apartment wing,” the hotel would be covered

while the residential wing would not). Petitioner’s operation of a golf

course for a tournament, where competition for entry or to observe play is

open to the public, does not qualify as a commercial operation exempt from

Title III, in whole or in part.

First, the very premise of petitioner’s argument is mis-

taken. There is nothing inherently inconsistent about con-

cluding that forms of discrimination excluded from coverage

under one Title of the Disabilities Act are included in

another. Rather, such coverage demonstrates the statute’s

breadth. See Yeskey, 524 U.S. at 212. Indeed, petitioner

offers no basis for concluding that, in the course of crafting a

“comprehensive national mandate for the elimination of

discrimination against individuals with disabilities” (42

U.S.C. 12101(b)(1)), Congress intended categorically to ex-

clude such a large class of individuals from the Disabilities

Act’s aegis. The better reading of the Disabilities Act—and

the only reading consistent with Congress’s broad remedial

purpose—is to conclude that the implicit exclusion of inde-

pendent contractors from Title I reflects Congress’s judg-

ment that disputes over the independent provision of goods

and services outside of an employee relationship are better

dealt with through the provisions of Title II (for government

contractors) and Title III (for private contractors).

Second, petitioner’s argument lacks any basis in the

Disabilities Act’s text, legislative history, or administrative

interpretation and implementation. Petitioner points to

nothing in the language of any Title of the Disabilities Act

that states that those engaged in contractual professional

relationships are categorically excluded from protection

under the Act’s otherwise expansive coverage. Instead,

petitioner asks this Court to hold that an implicit exclusion

from one Title licenses disregard of claims that fall squarely

within the text of another Title. But, as previously noted,

the legislative history and administrative interpretation

leave no doubt that Congress intended Title III’s provisions

to apply expansively to virtually everything that public ac-

commodations offer to the public, including the opportunity

to contract and including, in particular, the coverage of

athletes and other performers.

Indeed, Title 1I—the public services counterpart to Title

I1I—has long been understood to apply to those who enter

into contracts with the government. See, e.g., 28 C.F.R.

35.130(b)(5) (“A public entity, in the selection of procurement

contractors, may not use criteria that subject qualified

individuals with disabilities to discrimination on the basis of

disability.”); Johnson v. City of Saline, 151 F.3d 564, 570 (6th

Cir. 1998). Likewise, in Menkowitz, supra, the Third Cir-

cuit held, consistent with administrative guidance (Manual

22), that Title III applies to a private hospital’s extension of

staff privileges to doctors. 154 F.3d at 122-123.

Petitioner offers no explanation why Congress would

afford contractors protection against discrimination by gov-

ernmental entities, but not against the identical discrimina-

tion when practiced by a private place of public accommo-

dation. See H.R. Rep. No. 485, supra, Pt. 2, at 84 (express-

ing intent that “the forms of discrimination prohibited by

[Title II] be identical to those set out in the applicable

provisions of titles I and III”). Indeed, such a construction

would be especially anomalous given that one of Congress’s

primary motivations for enacting the Disabilities Act was to

extend to private entities the protections already available

against public agencies. See id. at 99; S. Rep. No. 116, supra,

at 58."" _

16 See also Dep't of Justice, The Americans with Disabilities Act: Title

II Technical Assistance Manual § 3.7100, at 15 (Nov. 1993)) (“A public

entity may not discriminate on the basis of disability in contracting for the

purchase of goods and services.”)

17 See 135 Cong. Rec. 19,835-19,836 (1989) (Sen. Hatch) (Title III of the

Disabilities Act applies to “all retail businesses, all service businesses, and

more. From sole proprietorships all the way up, beyond 15-employee

businesses. In contrast to the employment provisions, however, * * *

[Title III] contains no exemption whatsoever from its public accommo-

dations provision.”) (emphasis added). Petitioner’s concern that em-

ployers with less than 15 employees who are (unlike independent

contractors) erpressly excluded from coverage under Title I (see 42 U.S.C.

12111(5)(A)), will face claims of employment discrimination under Title III

Third, petitioner’s effort to characterize respondent as an

independent contractor is unpersuasive. A contractor, like

an employee, is ordinarily paid for his work by the employer.

Here, however, respondent initially paid petitioner $3000 for

the privilege of participating in petitioner’s tournaments.

Moreover, respondent could play in petitioner’s tournaments

for an entire year without receiving any payment from

petitioner. Tr. 815-816. And even when a player finally

earns “prize money,” more than half of his payment comes

from someone other than petitioner, such as a corporate

sponsor or tournament organizer. Tr. 819-820.

In addition, a contractor, like an employee, is ordinarily

selected by the employer. But petitioner has no right to

select or reject golfers because membership in the PGA or

Nike Tour is open to anyone who finishes above a certain

position in a qualifying tournament that is broadly opened to

public participation. See Pet. App. 42a.- Petitioner cannot

pick and choose members from among the finalists. See id.

at 49a; Tr. 473 (“[t]he competition picks” the players); Tr. 847

(petitioner does not “select” its members; admission rests

entirely on performance). Finally, an independent

contractor, like an employee, commits to perform some work

is misplaced. The legislative history makes clear that private employer/

employee disputes can only be addressed under Title I and not under Title

III. See H.R. Rep. No. 485, supra, Pt. 2, at 99 (“employment practices are

governed by title I of this legislation,” and not Title III); S. Rep. No. 116,

supra, at 58 (same). In any event, because money damages are available

under Title I but not under Title III, it is difficult to understand peti-

tioner’s argument (Pet. 19) tat pkrsons suing under Title III would some-

how occupy a “preferred position.” ~ a 4

18 Cf. Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751

(1989) (“hiring” is essential to establish agency relationship for both em-

ployees and independent contractors); O'Connor v. Davis, 126 F.3d 112,

115 (2d Cir. 1997) (under the common law, “a prerequisite to considering

whether an individual is” an employee or an independent contractor “is

that the individual have been hired in the first instance”), cert. denied, 522

U.S. 1114 (1998).

pursuant to a contract.” Respondent, however, has no

contract to provide any work or service for petitioner, and

petitioner has absolutely no authority to require respondent

to participate in any of its tournaments. Tr. 812. Tour

members’ participation is entirely within their discretion.

In short, there is no basis for concluding that the associa-

tion between petitioner and respondent is the type of

employment relationship that Congress intended to regulate

either under Title I or not at all. To the contrary, the better

understanding of their mutually beneficial professional rela-

tionship is that petitioner offers a service or privilege—the

opportunity to compete for prizes—which respondent, like

thousands of other members of the golfing public, wishes to

enjoy.”

3. Petitioner seizes (Br. 19-23) upon the reference, in one

subsection of Title III, to covered individuals as “clients or

customers” of the public accommodation and, from that, con-

cludes that Title II] prohibits discrimination only in the

“marketplace” (Br. 18). That cramped vision of Title III is

without basis and, in any event, does not exclude respon-

dent.

First, as a textual matter, the phrase petitioner invokes

has no application to respondent’s claim. Petitioner relies on

the definition of covered individuals as “clients or cus-

19 See Black's Law Dictionary 693 (5th ed. 1979) (employer retains

control over independent contractor “only as to end product or final result

of his work”; independent contractor “contracts with another to do

something for him”).

20 See Tr. 435, 473 (1100 golfers started in petitioner's qualifying school

tournament); cf- NCAA v. Board of Regents, 468 U.S. 85, 102 (1984)

(NCAA's role in organizing and marketing college football enhances

opportunities for athletes, as well as fans). Petitioner is thus similar to

those public accommodations that sell lottery tickets, host beauty pag-

eants, game competitions, or science fairs, or invite comedians and other

performing artists to compete for the opportunity to perform in their

clubs.

tomers” in 42 U.S.C. 12182(b)(1)(A)(iv), which provides:

For purposes of clauses (i) through (iii) of this subpara-

graph, the term “individual or class of individuals” refers

to the clients or customers of the covered public accom-

modation that enters into the contractual, licensing or

other arrangement.

The reference in subsection (iv) to subsections (b)(1)(A)(i)

through (iii) addresses the particular problem of preventing

public accommodations from escaping their obligations under

Title III by indirectly discriminating “through contractual,

licensing, or other arrangements.” 42 U.S.C. 12182

(b)(1)(A)(i)-(iii). The purpose of subsection (iv) was simply to

clarify that, while public accommodations could not avoid

Title III’s mandates through contracts, neither would the

existence of such a contractual relationship expand their

responsibility to include any discrimination independently

perpetrated by the other contracting party separate and

apart from the underlying contract."" The “clients or

customers” language thus was intended to elucidate the

scope of contractual liability faced by places of public accom-

modation, not to transform Congress’s broad mandate of

public access into a narrow “marketplace” regulation. And

the “clients or customers” limitation on contracts is not even

implicated in this case, because the district court and court of

appeals did not grant respondent relief under the provisions

of 42 U.S.C. 12182(b)(1)(A) that prohibit a public aceommo-

dation from contracting away its obligations under Title III.

Thus, “(t]he short answer” to petitioner’s contention that a

“1 See H. R. Rep. No. 485, supra, Pt. 2, at 101 (subsection (iv) makes

“clear” that “a public accommodation is not liable under this provision for

discrimination that may be practiced by those with whom it has a

contractual relationship, when that discrimination is not directed against

its own clients or customers”); H.R. Conf. Rep. No. 596, supra, at 76

(“covered entities are only liable in contractual arrangements for dis-

crimination against the entity’s own customers and clients and not the

contractor’s customers and clients”); 28 C.F.R. Pt. 36, App. B, at 631.

definition deliberately confined to a single subsection should

be expanded to govern an entire Title of the Disabilities Act

“is that Congress did not write the statute that way.”

United States v. Naftalin, 441 U.S. 768, 773 (1979).

Second, even if this case involved liability under subsec-

tion (b)(1)(A), it would be a mistake to give “clients or cus-

tomers” the narrow meaning ascribed to it by petitioner. In

the course of defining liability for contractors, Congress

simply adopted “clients or customers” as a shorthand phrase

for those who partake of the “goods, services, facilities,

privileges, advantages, or accommodations of any place of

public accommodation,” 42 U.S.C. 12182(a). “It is a fund-

amental canon of statutory construction that the words of a

statute must be read in their context and with a view to

their place in the overall statutory scheme.” FDA v. Brown

& Williamson Tobacco Corp., 120 S. Ct. 1291, 1301 (2000)

(internal quotation marks and citation omitted). Rather than

permit one narrowly crafted subsection to drive an un-

natural reading of the remaining statutory provisions, courts

must “fit, if possible, all parts into a harmonious whole.”

Ibid. (citation omitted). Indeed, in Daniel, supra, this Court

refused to adopt a similarly narrow reading of Title III's

predecessor, the public accommodations provision of the

1964 Civil Rights Act, that was “restricted to the primary

objects of Congress’ concern” because “a natural reading of

its language would call for broader coverage.” 395 U.S. at

307. In light of Congress’s underlying purposes, a natural

reading of Title III as a whole should also be adopted here.

Third, subsection (iv) cannot be read as a broad limitation

on Title III’s coverage. The legislative history stressed that,

“to the extent there is any apparent conflict” between sub-

section (b)(1) (which includes (iv)) and the specific provisions

of subsection (b)(2) (which include respondent’s reasonable

modification claim), the latter prevails. S. Rep. No. 116,

supra, at 61; see also H.R. Rep. No. 485, supra, Pt. 2, at 104

(same). That is consistent with the legislative history

emphasizing that the “clients or customers” language was

intended only to clarify the scope of contractual liability,

rather than to limit the overall operation of Title III. See

H. R. Rep. No. 485, supra, Pt. 2, at 101.

Fourth, petitioner’s proposed construction is irreconcil-

able with Congress's definition of covered public accommo-

dations, in 42 U.S.C. 12181(7). If the “marketplace” ap-

proach extended coverage only to paying clients or cus-

tomers, it would render Title III inapplicable, despite the

explicit inclusion of concert halls, auditoriums, lecture halls,

and other places of public gathering and exhibition (42

U.S.C. 12181(7)(C) and (D)), to any concerts, lectures, or

performances offered to the public free of charge, and to any

amateur exhibitions or meetings of political or social groups

that are open to the public. And even if petitioner’s con-

struction included nonpaying “customers,” it would seem to

exclude all who perform services rather than receive them.

Thus, while a “homeless shelter” or a “food bank” is covered

by Title III (42 U.S.C. 12181(7)(K)), volunteers in such

establishments would lack any protections. While hospitals

(42 U.S.C. 12181(7)(F)) and transportation facilities (42

U.S.C. 12187(G)) are public accommodations, the coverage

would extend only to patients, and not their visitors, and

only to travelers and not persons picking them up or drop-

ping them off. Colleges (42 U.S.C. 12181(7)(J)) would be

covered for students, but not for employers who wish to

recruit at a job fair. Companies sponsoring spelling bees

would be covered with respect to the audience, but could

exclude disabled children from participating. In short,

where Congress provided for blanket coyerage of social and

economic activity in places of public accommodation, peti-

tioner offers a reading of Title III that is as gap-ridden as

Swiss cheese.

Finally, even if adopted, petitioner’s “marketplace” rendi-

tion of Ticle III would not support its claim. Because

respondent paid petitioner to participate in its golf tourna-

ments and because petitioner exists entirely “to promote and

operate tournaments for the economic benefit of its mem-

bers,” Pet. App. 46a, respondent could easily be considered a

paying “client” of petitioner.

ll. THERE IS NO REASON TO DISTURB THE

LOWER COURTS’ FACTUAL DETERMINATION

THAT PERMITTING RESPONDENT TO USE A

GOLF CART WILL NOT FUNDAMENTALLY

ALTER PETITIONER’S COMPETITIONS

A. Petitioner argues that the fundamental alteration

analysis should begin and end with an inquiry into whether

the rule of competition implicated by the individual's dis-

ability is a “substantive” rule of competition with a “possible

(non-trivial) effect on the outcome” (Br. 35). Respondent and

the court of appeals, by contrast, place heavy reliance on the

question whether modification of the rule would afford an

individual a competitive advantage. See Pet. App. 10a-1la.

In our opinion, while both considerations are important in

the fundamental alteration analysis, neither one should be

dispositive. Rather, the application of Title III to com-

petitive sports, like its application to educational, trade, and

professional examinations (42 U.S.C. 12189), requires a

judicial determination of what skills and abilities the com-

petition is intended to test and whether the proposed modifi-

cation would substantially alter the measurement of those

skills and abilities. Cf. 28 C.F.R. 36.309(b)(3); 28 C.F.R. Pt.

36, App. B, at 653. In applying that test, a variety of factors

should be considered, focusing ultimately on whether modi-

fying a rule for a particular plaintiff would fundamentally

alter the competition at issue. See Washington v. Indiana

High Sch. Athletic Ass'n, 181 F.3d 840 (7th Cir.), cert.

denied, 120 S. Ct. 579 (1999).*

= There is no basis for crafting a special exemption for professional-

level sports competitions (see USGA Br. 8, 21). The private club and

religious organization exemption (42 U.S.C. 12187) leaves little doubt that

First, a court must determine whether a rule or condition

of competition is substantive in the sense that it regulates

those aspects of play that the competition is designed to

measure. A rule’s label as “substantive,” however, cannot be

dispositive, lest public accommodations be permitted to

define their competitions out of Title III. Rather, the court

should inquire into written or otherwise documented under-

standings of the essential elements of a particular competi-

tion and what it is designed to measure. The court should

also consider evidence of the particular rule’s (1) status in

the written rules and regulations of a competition, (2) foun-

dation in historic practice and/or established record as an

unwritten rule or standard, (3) consistency in application,

and (4) adop*ion of or adherence to by other entities that

host the same or closely similar competitions.

The court’s determination that a rule is non-pretextual

and genuinely substantive in the sense that it regulates

those aspects of play that the competition is designed to

measure will carry substantial weight in the fundamental

alteration analysis. We disagree, however, with petitioner's

contention that such a conclusion necessarily ends the

inquiry. Sometimes a modification that is sufficiently minor

or tailored can be made without affecting the integrity of the

competition or altering the contest’s ability to measure fairly

the relevant capabilities. For example, Major League and

Minor League Baseball permitted Jim Abbott, a pitcher who

was born without a right hand, to deviate from the rule that

“a pitcher must remain completely still before his delivery”

and allowed him to “spin the ball” slightly in his hand before

pitching to accommodate his disability. Jim Abbott, “It’s

Congress knew how to write such exemptions when it wanted them, and it

did not write one for professional sports. The legislative history, more-

over, expressly anticipated the Act's application to a variety of profes-

sional sports. See, e.g., H.R. Conf. Rep. No. 596, supra, at 66. Thus, like

other civil rights legislation, the Disabilities Act tolerates no glass ceiling

Easy to Accommodate,” Golf World 92 (Feb. 20, 1998).

Furthermore, Congress could fairly be concerned that the

technical wording of admittedly substantive rules could

reflect the prior invisibility of athletes with disabilities, such

that reformulating the rule in light of an individual athlete’s

disability could be accomplished without discernibly affect-

ing the competition. For example, the United States Golf

Association’s (USGA) Rules of Golf (1997) generally require

golfers to play a ball where it lies. Jd. Rule 13-1. In those

situations where a player is permitted to alter a ball’s lie by

lifting and dropping it, the rules require the golfer to “stand

erect, hold the ball at shoulder height and arm’s length and

drop it.” Jd. Rule 20-2. Dropping the ball “in any other

manner” results in a penalty. Jbid. That rule could reason-

ably be modified to permit wheelchair golfers to sit erect

rather than “stand” without fundamentally altering the com-

petition. See USGA, “A Modification of the Rules of Golf for

Golfers with Disabilities,” Rule 20-2 (1997).

A court also could reasonably require substantive rules to

be read with a practical sensitivity to the unique situation of

competitors with disabilities. For example, the substantive

rule of golf that prohibits players from “us[ing] any artificial

device or unusual equipment * * * [which might assist him

in making a stroke or in his play” could be construed not to

encompass artificial limbs or leg braces (at least absent any

peculiar, play-affecting modification). Rules of Golf, supra,

Rule 14-3. Likewise, application of the substantive rule

against taking an “unnecessarily abnormal stance, [or]

swing” in the rules governing temporary immovable obstruc-

tions (see id. App. 1; J.A. 119, 128) could reasonably be

required to take account of an individual’s disability in deter-

mining whether the stance is “unnecessary.”

Second, a court may consider the extent to which a pro-

posed modification would afford a player a competitive ad-

vantage. Any modification that poses a realistic risk of

giving one player a competitive advantage would skew and

thus fundamentally alter the competition’s measurement of

ability. That does not mean, however, that the absence of a

competitive advantage is always dispositive. In some cir-

cumstances, there is more to a competition than the final

score or who finishes first. Thus, even if a competitor's

disability would offset any abstract advantage enjoyed by

the modification, a modification still would not be reasonable

if it interfered with the competition’s ability to measure a

physical or mental capability that it is designed to evaluate.

In addition, courts should consider the extent to which a

modification could substantially alter the pace or flow of a

game and thus interfere with other players.

Third, a court should consider the circumstances in which

exceptions are authorized or have been made to the rule.

The frequency and character of exceptions or modifications

both outside and within the disability context will be acutely

relevant in evaluating both what a particular competition

measures and whether a proposed modification would funda-

mentally interfere with the competition’s ability to evaluate

the relevant capabilities. An established practice of modify-

ing a rule for individualized circumstances (such as tem-

porary illness or injury, economic considerations, conven-

ience, or efficiency) will often support an equivalent

modification for a disability. On the other hand, a rule that is

virtually never modified in its operation absent imperative

safety concerns or other extraordinary and rarely arising

circumstances will make modification harder to justify.”

% Petitioner (Br. 33, 36-41) suggests that, because athletics “are con-

tests of physical performance” (id. at 33), the Disabilities Act cannot

functionally police the rules and conditions of athletic contests. That argu-

ment overlooks, however, that many (if not most) disabilities affect only

part rather than all of an individual's physical and mental capabilities.

Likewise, not all sports comprehensively test an individual's physical and

mental abilities from head to toe. The Disabilities Act thus properly

polices stereotypes and overgeneralizations about the impact of particular

disabilities on an individual's ability to engage in “contests of physical

B. In the vast majority of athletic competitions at the

highest level, a request to waive a rule of competition will

effect a fundamental alteration in the sport. According to the

facts as found below, this case qualifies as an exception to

that general rule. The lower courts found that the walking

rule can be modified because the rule does not regulate those

aspects of play that golf competitions are designed to mea-

sure and its waiver will not give respondent a competitive

edge. The district court examined whether walking was one

of the capabilities intended to be measured by the game of

golf and noted that the Rules of Golf neither require walking

nor define it as part of the sport. Pet. App. 30a. Rather, the

rules make clear that the “Game of Golf consists in playing a

ball from the teeing ground into the hole by a stroke or

successive strokes.” Rules of Golf 1-1. In addition, the court

examined the walking rule’s status, noting that the United

States Golf Association permits competitors to ride a cart

unless it is prohibited by the rules of a particular event.

Petitioner also permits competitors to use carts in some of

its tournaments, including the Senior Tour and the early

rounds of the qualifying tournament. Pet. App. 28a n.9 &

30a. And even in the regular PGA and Nike Tour events

where walking is generally required, petitioner allows the

Tours’ respective Rules Committees to authorize the use of

carts to speed play when balls are lost or long distances

separate holes. /d. at 9a, 30a-3la. Further, when carts are

permitted, petitioner imposes no stroke penalty on those

who use them to offset the supposedly lessened fatigue.

Finally, the court noted that, although collegiate g..f

prohibits carts, respondent was permitted to use a cart in his

college tournaments. See id. at 28a.

performance” by requiring careful analysis of the nature of the disability

and the athletic competition at issue.

*4 Indeed, until the year respondent first competed in the qualifying

tournament, petitioner allowed golf cart usage in all three rounds of that

tournament. J.A. 267.

iii

The district court further found that permitting respon-

dent to use a cart will not give him an unfair competitive

advantage. Accepting that the purpose of the walking rule

was to inject a fatigue factor into shot-making, the court

found that the fatigue involved in the “lower intensity

exercise” of walking the golf course during a competition “is

primarily a psychological phenomenon,” and that “{s]tress

and motivation” are key to the level of fatigue. Pet. App.

34a. The court of appeals found ample evidence to support

those conclusions. Jd. at 10a.”

The district court also found, based upon medical and

other evidence, that “(t]he fatigue [respondent] endures just

from coping with his disability is undeniably greater than the

fatigue injected into tournament play on the able-bodied by

the requirement that they walk from shot to shot.” Pet.

App. 35a. The district court explained that respondent

is in significant pain when he walks, and even when he is

getting in and out of the cart. * * * The other gclfers

have to endure the psychological stress of competition as

part of their fatigue; Martin has the same stress plus the

added stress of pain and risk of serious injury. As he put

it, he would gladly trade the cart for a good leg.

Id. at 36a.”

The district court explained that the fatigue caused by walking

“cannot be deemed significant under normal circumstances.” Pet. App.

38a. The court noted that the PGA does not require golfers to walk

rapidly between shots, and that walking at a slow pace is a natural act for

the able-bodied. Jd. at 35a & n.14. The court also noted that “most PGA

Tour golfers appear to prefer walking as a way of dealing with the

psychological factors of fatigue,” asking rhetorically that “[i]f the majority

of able-bodied [golfers] elect to walk in ‘carts optional’ tournaments, how

can anyone perceive that [Martin] has a competitive advantage by using a

cart given his condition?” Id. at 34a-35a.

“The court of appeals also noted that respondent must walk

approximately 25% of the course in any event because the cart frequently

cannot be brought near to the ball. Pet. App. 36a; see also ibid. (district

The court of appeals affirmed the district court’s finding

that “permitting [respondent] to use a golf [cart] in PGA and

Nike Tour competitions would not fundamentally alter the

nature of those competitions.” Pet. App. 10a. The court

emphasized that “[t]he central competition in shot-making

would be unaffected by [respondent's] accommodation,” id.

at 10a-lla, because “{aJll that the cart does is permit

[respondent] access to a type of competition in which he

otherwise could not engage because of his disability.” /d. at

lla. Those concurrent findings by the two lower courts

should not be disturbed. See generally Goodyear Tire &

Rubber Co. v. Ray-O-Vac Co., 321 U.S. 275, 278 (1944).

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

BILL LANN LEE

JAMESJ. RAGGIO Assistant Attorney General

— Counsel BARBARA D. UNDERWOOD

rchitectural And Deputy Solicitor G ;

Transportation Barriers a ae ae

Compliance Board PATRICIA A. MILLETT

Assistant to the Solicitor

General

JESSICA DUNSAY SILVER

THOMAS E. CHANDLER

Attorneys

DECEMBER 2000

court finds that, even with a cart on a course “roughly five miles in length,

[respondent] will walk 1'* miles”).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.