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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 661

## Text

No. 00-24

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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

12

14

_ eS

IV

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

ie

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

VI

Statutes and regulations—Continued:

1998)
42 USC.
42 USC.
42 USC.
42 USC.
42 USC.
42 USC.
42 U.S.C.
42 USC.
42 USC.
42 U.S.C.
42 USC.
42 U.S.C.
42 U.S.C.
42 U.S.C.
42 U.S.C.
42 US.C.
42 U.S.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
11
10
i)
st]
Civil Rights Act of 1964, Tit. I1, 42 U.S.C. 2000a
12, 13
12
13
Rehabilitation Act of 1973, Tit. V, § 502(a), 29 U.S.C.
10

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)

2
“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.

_

_—

3

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.
ae

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,

4

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

5

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

6

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).

7

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

8
(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.”).

9

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).

10

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%).

© See also Accessible Stadinms, supra, at 3 (stadiums must be de-
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”).

11

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

12

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).

13

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).

14

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).

15

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).

16

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.

17

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.

18

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

19

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).

20

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.

21
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.

22

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

23

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-

24

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

25

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

26

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

27

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

28

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

29

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

30

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”).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0406%3A09. Public record. Not legal advice.