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

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VEC 14 Zeer No. 00-24

In The | i On

Supreme Court of the United States

PGA TOUR, INC.

y Petitioner,

CASEY MARTIN,

Respondent.

On Writ Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

: —_-—— ©

BRIEF OF THE NATIONAL ASSOCIATION OF

PROTECTION AND ADVOCACY SYSTEMS, BAZELON

CENTER FOR MENTAL HEALTH LAW, DISABILITY

RIGHTS EDUCATION AND DEFENSE FUND, AND 29

OTHER NATIONAL DISABILITY ORGANIZATIONS

AS AMICI CURIAE IN SUPPORT OF RESPONDENT

— —?*

SHARON MAstinc

NATIONAL ASSOCIATION OF PROTECTION

7 AND Abvocacy SYSTEMS

900 Second St., N.E.

Suite 211 Pe

Washington, DC 20002

(202) 408-9514

Samuet R. BAGENsTOS

Counsel of Record

1545 Massachusetts Ave.

Cambridge, MA 02138

(617) 495-9299

Neu V. McKirrrick

Davin S. FriepMAN

Drroran H. DosSantos

Hut & Bartow,

A PROFESSIONAL CORPORATION

One International Place

Boston,-MA 02110

(617) 428-3000

December 13, 2000

[Additional Amici Listed on Inside Cover]

Amict Curiae Joining This Brief

AARP

ADAPT

American Association of People with Disabilities

American Council of the Blind

American Diabetes Association

American Network of Community Options and Resources

American Therapeutic Recreation Association

Ihe Arc of the United States

Association on Higher Education and Disability

ludge David L. Bazelon Center tor Mental Health Law

Brain Injury Association

Brain Injury Family Assistance Center

Center on Disability and Health

Disability Rights Education and Detense Fund

Epilepsy Foundations

HaltthePlanet Foundation

Justice For All

Learning Disabilities Association of America

National Alliance tor the Mentally Ill

National Association tor the Advancement of Orthotics

and Prosthetics

National Association of Developmental Disabifities

Councils

National Association of Protection and Advocacy Systems

National Center on Accessibility

National Council on Independent Living

National Federation ot the Blind

National Health Law Program

National Mental Health Association

National Multiple Sclerosis Society

National Therapeutic Recreation Society

Paralvzed Veterans of America

Poho Societys

Selt Help tor Hard ot Hearing People

EST AVAILABLE COPY

QUESTIONS PRESENTED

1. Whether the rules governing PGA Tour events

are subject to the requirements of Title III of the Ameri-

cans with Disabilities Act, 42 U.S.C. § 12181 et seq., which

prohibits disability-based discrimination by operators of

public accommodations.

2. Whether the district court properly held that

waiver of the PGA Tour's “walking rule” would not

“fundamentally alter” its competition.

TABLE OF CONTENTS

Page

INTEREST OF THE AMICI CURIAE................ 1

DRS bev cccccdccecccccessecsccsececneuseces 1

SUMMARY OF ARGUMENT...................+++. 4

RIE wen cescnccnscenscoceccnsencéecuscssens 7

I. Title III of the ADA Prohibits the PGA Tour

From Discriminating on the Basis of Disability

Against Individuals Who Compete in its Tour-

PPPPTTTTITITITTTITT TTT TTT ee 7

A. Individuals Who Compete in PGA Tourna-

ments Obtain “Goods, Services, Facilities,

Privileges, Advantages, or Accommoda-

tions” Offered by the PGA Tour......... 7

B. The “Client or Customer” Language Does

Not Limit the Broad Coverage Afforded by

the Text of Title III's General Rule....... 12

C. The Application of ADA Title III to This

Case Does Not Conflict With Any Limita-

tions on the Reach of ADA Title I....... 15

II. The District Court Properly Held That Mod-

ification of the “Walking Rule” Would Not

“Fundamentally Alter” PGA Tour Golf....... 17

A. Title III Required the PGA to Demonstrate

That Its Insistence on the Walking Rule

Was Necessary to Serve a “Fundamental”

PUGRD GF GD TOUR. oo cc cncnccsccccvcces 17

B. The District Court Properly Concluded

That Insistence on the Walking Rule Was

Unnecessary to Serve Any “Fundamental”

Purpose of the PGA Tour................ . 20

SID 6 itd hard uns oees cnesauscassacedoneus 30

EET NT ES ot SORA SLAM eR MEE Ba ae App. 1

TABLE OF AUTHORITIES

Page

Cases

Alexander v. Choate, 469 U.S. 287 (1985)........... 17, 19

Bragdon v. Abbott, 524 U.S. 624 (1998) ........ 20, 22, 25

Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996)..... 19

Daniel v. Paul, 395 U.S. 298 (1969)...... aed 4,9

NCAA v. Board of Regents, 468 U.S. 85 (1984)......... 8

Olmstead v. L.C., 527 U.S. 581 (1999) ................ 22

Pennyslvania Dep't of Corrections v. Yeskey, 524 U.S.

Be Qs 50 esc anecsecececenccesencescceusespsess 11

Pullman-Standard v. Swint, 456 U.S. 273 (1982).....6, 28

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

School Bd. v. Arline, 480 U.S. 273 (1987) .......... 22, 23

Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985)..... 11

Southeastern Community Coll. v. Davis, 442 U.S. 397

SPE ys Hees secesnecnncnienesnuasevcdecnerecsccess 18

United States v. Slidell Youth Football Ass'n, 387

SU. GS GLE GB. BOGE cc cc ceccscccccccccces 4,9

Washington v. Indiana High Sch. Athletic Ass‘n, Inc.,

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

FE Ge ccc ccnceteccseccccccsetecccsespesces 19, 25

STATUTES AND REGULATIONS

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TABLE OF AUTHORITIES - Continued

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TABLE OF AUTHORITIES - Continued

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Be Cr SF ED ov cesvevescesccecdcccéenessees 8, 9

OrHER AUTHORITIES

EEOC, ADA Tech. Asst. Man. § I-3.8................ 24

H.R. Rep. No. 485, Pt. 2, 101st Cong , 2d Sess. 35

SEE vhdd ovbhdnbs nedadhage stededescedbewes 9, 11, 14

H.R. Rep. No. 485, Pt. 3, 101st Cong., 2d Sess. 33

SP épn6nbesessancdacsshucousasepessdendeeseras 20

Paul C. Weiler, Leveling the Playing Field: How

the Law Can Make Sports Better for Fans 18-19

SD pk. cnctccdestcncensseeececeséseecscssecesoens 23

Webster’s Third New Int’l Dictionary 559 (1993)..... 13

INTEREST OF THE AMICI CURIAE!

This case involves the scope and interpretation of

Title III of the Americans with Disabilities Act, 42 U.S.C.

§ 12181 et seq., which protects people with disabilities

against discrimination by public accommodations. Amici

are national organizations that advocate on behalf of

people with disabilities. Because many of the members of

these organizations have encountered discrimination in a

variety of public accommodations settings, amici are con-

cerned about the implications that this Court’s decision

will have for the range of cases brought under ADA Title

III. (A description of each of the amici appears in Appen-

dix A.)

STATEMENT

Casey Martin is a professional golfer. Pet. App. 16a.

Martin has a condition known as Klippel-Trenaunay-

Weber Syndrome, which has caused significant atrophy

and weakening of his right leg. Pet. App. 2a, 16a. His

condition causes him severe pain at all times, and “the

simple act of walking” places him at significant risk of

breaking his leg, bleeding, and developing blood clots.

Pet. App. 16a-17a. Martin’s condition has become more

severe over time, to the extent that he is now physically

unable to walk the course during a round of golf. Pet.

App. 18a, 32a.

After playing on the varsity team at Stanford Univer-

sity, Martin sought to play professionally on the PGA

Tour. A principal way in which golfers join the PGA Tour

is through participation in the PGA’s so-called “qualify-

ing school tournament.” Pet. App. 42a. That tournament

is open to “[a]Jny member of the public who pays a $3000

! No counsel for any party authored this brief in whole or

in part, and no person other than amici or their counsel made a

monetary contribution to the preparation or submission of the

brief. The parties’ written consents to the filing of this brief are

being lodged with the Clerk of the Court.

entry tee and supplies two letters of recommendation.”

Pet. App. 7a; id. at 42a. It consists of three stages. In the

first stage, golfers play 72 holes. Pet. App. 42a. Those

who score well enough advance to the second stage

which also consists of a 72-hole competition. Ibid. About

170 players with the top scores in the second stage

advance to the third stage, which consists of 108 holes

Ibid. The 35 players with the best scores in the third sta -

of the qualifying school tournament receive plaving aie

leges on the PGA Tour. Ibid. The seventy remaining

players with the best scores receive playing privileges a

the Buy.com Tour - another professional golf tour oper-

ated by the PGA. Ibid. (At the time of the district court's

opinion, the Buy.com Tour was known as the Nike Tour

See Pet. Br. 5.) Players on the Buy.com Tour may advance

to the PGA Tour if they win three tournaments in a

season or finish in one of the top 15 places on the

Buy.com Tour money list. Pet. App. 42a. Tour golfers

compete in tournaments for monetary prizes, but they are

not guaranteed any payout. Tr. 815-817.

In the first two stages of the qualifying school tour-

nament, the Tour permits players to use golf carts to carr

them between shots. Pet. App. 42a. In the final round of

that tournament, and inthe tournaments that make u

the PGA Tour and the Buy.com Tour, the PGA haneees

“walking rule”: Contestants must walk between shots

and they must use caddies to carry their clubs. Ibid. This

walking rule is_not required by the official “Rules of

Golf” promulgated jointly by the United States Golf Asso-

ciation and the Royal and Ancient Golf Club of St

Andrews, Scotland, but it forms a part of the supplemen-

tal “conditions of competition” imposed on PGA Tour

and Buy.com Tour golfers. Pet. App. 30a.

| In September of 1997, Martin paid the $3000 applica-

tion fee, submitted the requisite letters of recommenda-

tion, and entered the qualifving school tournament. Pet

App. 42a. He performed well enough in the first and

second stages of the tournament to advance to the final

stage. ibid. Because Martin's disability prevented him

BEST AVAILABLE COPY

from walking the course, he requested that the PGA

waive the walking rule in the third stage of the qualifying

school tournament. Pet. App. 3a. The NCAA and the

Pac-10 athletic conference had provided Martin the same

accommodation when he played intercollegiately. Pet.

App. lla n.8. But the PGA denied the request. Pet. App.

3a, 18a.

Martin then filed this lawsuit. He claimed, inter alia,

that the PGA had violated Title III of the Americans with

Disabilities Act, 42 U.S.C. § 12181 et seq., by refusing to

waive its walking rule to permit him to play. J.A. 94-95.

The district court granted a preliminary injunction that

directed the PGA to allow Martin to use a cart during the

third stage of the tournament. Pet. App. 43a. The Tour

complied by waiving the walking rule for all players who

had reached the third stage. Ibid. Martin participated in

the third stage, finished among the top 105 scorers, and

accordingly qualified to play in what was then the Nike

Tour. Ibid. By stipulation of the parties, the district court

then extended the preliminary injunction to cover the

tournaments in which Martin participated in the Nike

Tour. Ibid.

The district court held a trial on the merits in Febru-

ary 1998 (J.A. 21-22), and issued its findings of fact and

conclusions of law shortly thereafter. Pet. App. 16a-40a.

The court first concluded that the rules governing those

events were subject to Title III’s “reasonable modifica-

tion” requirement. Pet. App. 19a. It then went on to reject

the PGA’s defense that waiver of the walking rule would

“fundamentally alter” its competitions. Pet. App. 19a-40a.

Accordingly, the district court entered a permanent

injunction that required the PGA “to provide Plaintiff

with automotive transportation in NIKE TOUR and PGA

TOUR competitions in which plaintiff is eligible to partic-

ipate.” J.A. 90. The Ninth Circuit affirmed. Pet. App.

la-15a.

SUMMARY OF ARGUMENT

1. Tithe Hl of the ADA protects any “individual”

against disability-based discrimination “in the full and

equal enjoyment of the goods, services, facilities, privi-

leges, advantages, or accommodations” of a public

accommodation. 42 U.S.C. § 12182(a). By paying a $3,000

entry fee and submitting two letters of recommendation,

Casey Martin sought to enjoy a variety of “goods, ser-

vices, facilities, privileges, advantages, [and] accom-

modations” offered by the PGA Tour: reserving a

location, gathering together other top competitors, setting

ground rules to govern the competition, assembling an

audience, and providing prize money to those who suc-

ceed in the competition. By its plair text, Title II] forbade

the Tour to discriminate on the basis of disability in these

services.

The PGA concedes that Title III protects spectators at

places of entertainment like the courses on which its

tournaments are held, but it argues that Title III cannot

protect participants in those tournaments. But case law

under Title Il of the Civil Rights Act of 1964 - the model

for Title II] of the ADA - decisively rejects that argument.

See Daniel v. Paul, 395 U.S. 298, 306 (1969); United States v.

Slidell Youth Football Ass'n, 387 F. Supp. 174 (E.D. La.

1974). The PGA plainly provides two different services to

the public: To those who pay admission, it offers the

opporiunity to watch its tournaments; and to those who

pay a $3,000 entry fee and submit two letters of recom-

mendation, it offers the opportunity to participate in its

tournaments. Title II] prohibits disability-based discrimi-

nation against individuals in either of these groups. A

contrary reading of the statute would have implications

that go well beyond professional athletics and withdraw

protection in a significant number of settings that Con-

gress plainly intended to cover.

The PGA contends that a narrower reading is dic-

tated by Congress's use of the words “client or customer”

ina single sub-section of a Title HI provision that is not at

issue here. See 42 U.S.C. § 12182(b)(1)(A)(iv). But that

language does not limit Title III's broad general rule. Nor

is the PGA correct that application of Title III to Casey

Martin effects an evasion of the limitations Congress

imposed on the ADA’s employment discrimination title,

Title I, 42 U.S.C. § 12111 et seq. Title I provides the

exclusive Americans with Disabilities Act cause of action

for a dispute between a public accommodation and one of

its “employees.” But Martin is not an “employee” of the

Tour, so Title I simply does not apply. The applicability of

Title III to his case cannot turn on the textually unmoored

inquiry into whether his is really a case of “workplace

discrimination.” Cf. Pet. Br. 26. Rather, it must turn on the

inquiry required by Title III’s text: whether Martin has

been denied “the full and equal enjoyment of the goods,

services, facilities, privileges, advantages, or accommoda-

tions of any place of public accommodation.” 42 U.S.C.

§ 12182(a). Martin plainly satisfied that test.

II. The district court properly held that waiver of

the walking rule would not “fundamentally alter” PGA

Tour golf. Contrary to the PGA’s assertions, nothing in

the district court’s order requires a selective waiver of the

walking rule. The district court ordered the Tour to per-

mit Casey Martin to use a cart, but it did not bar the Tour

from waiving its walking rule for all other golfers.

Indeed, the Tour responded to the preliminary injunction

by permitting all competitors in the third stage of the

qualifying school tournament to use carts. If the district

court’s permanent injunction has led to disuniformity in

the rules applied to PGA Tour competitors, that dis-

uniformity is entirely of the Tour’s making.

The PGA thus cannot defend the walking rule by

invoking the interest in uniform rules. It must demon-

strate that the walking rule is itself fundamental to the

competition. 42 U.S.C. § 12182(b)(2)(A)(ii). Based on the

unchallenged findings of the district court, it is evident

that the Tour has failed to carry that burden.

Because they are tests of an arbitrarily defined set of

i skills, top-level professional sports are distinctive in ways

that relate to the fundamental alteration inquiry. In par

ticular, courts lack any clear basis to second-guess a

league’s choices of which skills the competition should

test or of how much those skills should matter to the

outcome. In this respect, top-level professional sports ire

quite unlike many of the far more typical fact scenarios in

which the ADA is applied. But the rules of such sports

are not immune from the statutorily mandated funda-

mental alteration analysis. Courts must still assess

whether a rule that excludes people with disabilities in

fact tests the skills that the league purports to be testing.

In many cases, of course, that determinatior can be

expected to support the league’s judgment. But the

league nonetheless retains a statutory obligation to prove

~ by evidence and not speculation - a connection between

the challenged rule and the skills it purports to test.

The district court found that “the fatigue factor

injected into the game of golf by walking the course

cannot be deemed significant under normal circum-

stances.” Pet. App. 33a. That finding was supported by a

significant amount of evidence presented at trial, the

court of appeals did not disturb it, and the PGA does not

contend that it was clearly erroneous. Instead, the PGA

reads the district court’s finding as necessarily implying

that the walking rule does affect the outcome of golf

competitions under some circumstances. Fairly read, the

district court's finding contains no such implication, and

this Court does not sit to supply missing factfindings

through negative implication. See Pullman-Standard v.

Swint, 456 U.S. 273, 291-292 (1982). In any event, the

PGA's brief offers nothing but speculation and assertion

to support the notion that walking-induced fatigue affects

the outcome of golf competitions. Because the chance that

the walking rule has an effect on competitive outcomes is

speculative at best, the district court properly held that

waiver of that rule would not effect a fundamental alter-

ation.

ARGUMENT

I. Title III of the ADA Prohibits the PGA Tour From

Discriminating on the Basis of Disability Against

Individuals Who Compete in its Tournaments.

A. Individuals Who Compete in PGA Tournaments

Obtain “Goods, Services, Facilities, Privileges,

Advantages, or Accommodations” Offered by

the PGA Tour.

Title II] of the Americans with Disabilities Act, 42

U.S.C. § 12181 et seq., prohibits disability-based discrimi-

nation in public accommodations. Title III begins by

announcing a “general rule” (42 U.S.C. § 12182(a)):

(a) General rule

No individual shall be discriminated

against on the basis of disability in the full and

equal enjoyment of the goods, services, facili-

ties, privileges, advantages, or accommodations

of any place of public accommodation by any

person who owns, leases (or leases to) or oper-

ates a place of public accommodation.

The PGA does not deny that the golf courses on

which its tournaments are held constitute “places of pub-

lic accommodation.” See 42 U.S.C. § 12181(7)(C) (“public

accommodation” includes “place of exhibition or enter-

tainment”), 42 U.S.C. § 12181(7)(L)(“public accommoda-

tion” includes “golf course, or other place of exercise or

recreation”). Nor does it deny that, on tournament days,

it “operates” the golf courses and therefore must comply

with the requirements of Title III. See 42 U.S.C.

§ 12182(a). The PGA contends, however, that Title III does

not protect Casey Martin or any other competitor at its

tournaments. According to the PGA, the statute protects

only a limited class of people at a place of public enter-

tainment such as a golf course hosting a PGA event: “the

spectators and other attendees who are there to watch the

tournament.” Pet. Br. 22; see also USGA Br. 12. That

Ne)

argument fundamentally misreads the statutory lan-

guage.

The PGA Tour plainly provides two separate kinds of

“goods, services, facilities, privileges, advantages, or

accommodations” to the public. The first is the oppor-

tunity to view its tournaments - an opportunity the Tour

provides to any member of the public who comes to the

golf course and pays an admissions fee. The second is the

opportunity to compete for a place in the tournament and

ultimately for prize money before the audience assem-

bled by the Tour - an opportunity the Tour provides to

“[a]jny member of the public who pays a $3000 entry fee

and supplies two letters of recommendation.” Pet. App.

7a. By coordinating participation in, reserving a location

for, and setting ground rules to govern the competition,

the PGA creates the necessary preconditions for both

participation in and viewing of a top-level athletic event.

Ct. NCAA v. Board of Regents, 468 U.S. 85, 101-102 (1984)

(athletic league’s function of coordinating and _ setting

rules for competition serves both fans and competitors).

In arranging its tournaments, the PGA thus performs an

important service both to its spectators and to its competi-

tors (none of whom is employed by the PGA itself). By

the plain text of the statute, the PGA is forbidden from

depriving either of these classes of individuals of the full

and equal access to these opportunities on the basis of

disability.-

- It the opportunity to compete for a place on the tour were

“not in tact open to the public,” 42 U.S.C. § 2000a(e) (setting

torth so-called “private club” exemption under Title II of the

Civil Rights Act of 1964), then Title IIT would not cover the

PGA's practices governing participation in the competition. See

42 USC. § 12187 (incorporating the exemption in 42 U.S.C.

§ 2000a(¢) by reference). But the district court rejected the PGA‘s

attempt to invoke this narrow exemption, et. App. 45a-5la,

and the PGA has not challenged that ruling in the Ninth Circuit

or here. Nor could the PGA reasonably challenge that ruling.

i ee

Cases interpreting Title II of the Civil Rights Act of

1964 - the model for Title III of the ADA* - have

decisively rejected the contention that, at places of public

entertainment, only spectators and not participants are

protected against discrimination. In Daniel v. Paul, 395

U.S. 298, 306 (1969), this Court found “no support” for

the argument that “ ‘place of entertainment’ refers only to

establishments where patrons are entertained as specta-

tors or listeners rather than those where entertainrient

takes the form of direct participation in some sport or

activity.” Relying on Daniel, the court in United States v.

Slidell Youth Foctball Ass'n, 387 F. Supp. 474, 482 (E.D. La.

This Court has made clear that an entity open to all members of

the public who meet identified admissions prerequisites is “in

fact open to the public” for purposes of 42 U.S.C. § 2000a(e). See

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

were “in fact open to the public” because they “appealljed) to

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

academic and admissions requirements”) (internal quotation

marks omitted). And by extending Title III coverage to

“secondary, undergraduate, or post-graduate private

school{s],” 42 U.S.C. § 12181(7)(J) - many of which impose far

more selective criteria for admissions than the PGA imposes for

determining access to its qualifying tournament - Congress

plainly contemplated that the statute would cover institutions

that applied quite stringent criteria to determine which

members of the public would be allowed to participate in their

programs.

3 Like ADA Title III, Title Il of the Civil Rights Act

guarantees “full and equal enjoyment of the goods, services,

facilities, privileges, advantages, and accommodations of any

place of public accommodation,” 42 U.S.C. § 2000a(a), and

extends to “place[s] of exhibition or entertainment,” 42 U.S.C.

§ 2000a(b)(3). If anything, Congress intended the coverage of

ADA Title III to be broader than that of CRA Title II, for the

ADA’s definition of “public accommodations” extends beyond

the relatively narrow class of entities covered by the CRA. See

H.R. Rep. No. 485, Pt. 2, 101st Cong., 2d Sess. 35 (1990).

1974), held that Title Il prohibited a youth football league

from denying African-American children the opportunity

to participate as players. Because its teams played before

an audience of about 600 paying customers each week,

see id. at 477, the court held that the league operated a

place of entertainment, see id. at 483. The league did not

discriminate against African-American spectators any

more than the PGA has discriminated against spectators

with disabilities here. See id. at 477 (African-Americans

had been allowed to attend the league’s games as paying

spectators). But the court held that the league had none-

theless violated Title Il by denying African-Americans the

chance to play on its teams. See id. at 480-481. The same

principle applies here. Regardless of whether the PGA

allows all people with disabilities to attend its events as

spectators, it is still forbidden from discriminating on the

basis of disabilitv in determining which members of the

public may participate in its events as competitors.

By disregarding this point, the PGA’s argument

would artificially deprive people with disabilities of pro-

tection in a wide range of cases in which operators of

public accommodations offer multiple “goods, services,

tacilities, privileges, advantages, or accommodations” to

the public. An unpaid community orchestra that per-

forms at a place of entertainment offers members of the

community the opportunity both to attend its perfor-

mances and to try out for positions in the orchestra. And

many public accommodation operators essentially pro-

vide a place for sellers and consumers to meet. For exam-

ple, a baseball card show that leases a “convention

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

§ 12181(7)(D)) may allow members of the public to rent

tables so they can sell cards to other members of the

public; flea markets and farmers’ markets often have a

similar structure. In such cases, both the sellers and the

consumers enjoy the “services, tacilities, privileges,

advantages, or accommodations” of the place of public

accommodation: The consumers enjoy the opportunity to

purchase goods from the sellers, and the sellers enjoy

access to a pre-assembled market of consumers.

If, fearing the negative reactions of others, a commu-

nity orchestra were to deny a violinist with a serious skin

disease the opportunity to audition and play or a baseball

card show were to refuse to rent a table to a potential

seller with the same disability, those individuals would

be denied “full and equal enjoyment” of the “services,

facilities, privileges, advantages, [and] accommodations”

of a public accommodation. Title III's plain text would

protect those individuals with disabilities, and Congress

clearly sought to prohibit discrimination in circumstances

just like these. See, e.g., 42 U.S.C. § 12101(a)(3) (congres-

sional finding that “discrimination against individuals

with disabilities persists in such critical areas as,” inter

alia, “recreation”); H.R. Rep. No. 485, Pt. 2, 101st Cong.,

2d Sess. 35 (1990) (justifying the drafters’ decision to

include a wide range of facilities under Title III's “public

accommodations” definition by referring to the then-

Attorney General's statement “that we must bring Ameri-

cans with disabilities into the mainstream of society — ‘in

other words, full participation in and access to all aspects

of society’ ”). But the PGA’s position would improperly

deprive those individuals of protection.

The PGA may be correct that no Member of Congress

specifically contemplated that the same principles would

apply to members of the public who, like Casey Martin,

try out for and seek to play in a top-level professional

athletic league. But “the fact that a statute can be ‘applied

in situations not expressly anticipated by Congress does

not demonstrate ambiguity. It demonstrates breadth.’ ”

Pennyslvania Dep't of Corrections v. Yeskey, 524 U.S. 206,

212 (1998) (quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S.

479, 499 (1985)) (internal quotation marks omitted).

Because the plain text of Title III reaches any “individual”

who seeks the “goods, services, facilities, privileges,

ee ee ————aaorrm>X7*rHv”Yerere————————eeee

advantages, or accommodations of any place of public

accommodation,” 42 U.S.C. § 12182(a), and because Casey

Martin is such an individual, he may properly invoke the

statute's protection.

B. The “Client or Customer” Language Does Not

Limit the Broad Coverage Afforded by the Text

of Title III's General Rule.

The plain language of Title III's general rule protects

any “individual” from discriminatory deprivation of any

“goods, services, facilities, privileges, advantages, or

accommodations” offered by a place of public accom-

modation. 42 U.S.C. § 12182(a). That language makes clear

that statutory coverage is not limited to mere spectators or

passive recipients of services; Title II] also protects mem-

bers of the public who actively engage in other types of

participatory opportunities offered by the public accom-

modation. In the face of that broad language - which

plainly reaches Casey Martin’s situation - the PGA relies

on a different provision of Title III to contend that statu-

tory protection is limited to a public accommodation’s

“clients or customers,” 42 U.S.C. § 12182(b)(1)(A)(iv) - a

term that the PGA appears to read as encompassing only

consumers in a marketplace transaction. Pet. Br. 18-22.

As an initial matter, the PGA’s suggestion that Title

III protection extends only to consumers who purchase

goods and services in the marketplace is difficult to rec-

oncile with Title III's broad coverage. The statute reaches

many types of entities that frequently do not offer their

“goods, services, facilities, privileges, advantages, or

accommodations” in marketplace transactions at all.

Examples specifically listed in the statute include: “lec-

ture hall,” 42 U.S.C. § 12181(7)(D); “museum, library,

gallery, or other place of public display or collection,” 42

U.S.C. § 12181(7)(H); “park, zoo,” 42 U.S.C. § 12181(7)(1);

and “senior citizen center, homeless shelter, food bank,”

42 U.S.C. § 12181(7)(K). The statute also reaches other

entities - notably “a nursery, elementary, secondary,

undergraduate, or postgraduate private school, or other

place of education,” 42 U.S.C. § 12181(7)(J) - for which

the marketplace characterization is awkward at best. The

PGA is thus incorrect to say that “[t]he subject to which

Title Ill is addressed is discrimination in the mar-

ketplace.” Pet. Br. 10.

Nor does the PGA’s reliance on the “client or cus-

tomer” language advance its argument. The words “client

or customer” neither purport to limit nor suggest any

particular intent to limit the class of individuals who are

protected under Title III’s general rule. To the contrary,

their plain meaning embraces any individual who seeks

any “goods, services, facilities, privileges, advantages, or

accommodations” that the defendant offers the public.* In

other words, they embrace any individual who is covered

under the broad plain language of Title III's general rule.

The placement of the “client or customer” language

in the statute makes this reading apparent. After estab-

lishing Title III’s “general rule” in 42 U.S.C. § 12182(a),

the statute proceeds, in the balance of § 12182, to set forth

a number of more specific prohibitions encompassed by

that rule. One of those more specific prohibitions is set

forth in three successive subsections, § 12182(b)(1)(A)(i)

through (A)(iii). Among other things, these subsections

bar covered entities from indirectly discriminating (that is,

effectuating discrimination through contractual arrange-

ments with third parties) against an “individual or class

of individuals” seeking “goods, services, facilities, privi-

leges, advantages, or accommodations.” 42 U.S.C.

4 See Webster’s Third New Int’! Dictionary 559 (1993)

(defining “customer” to include “one that patronizes or uses the

services”) (emphasis added); id. at 422 (defining ‘client to

include “a person who engages the professional advice or

sérvices of another” and “a person served by or utilizing the

services of a social agency or a public institution”).

en eee

§ 12182(b)(1)(A)(i)-(iit). The “client or customer” lan-

guage appears in a subsection that emphasizes the lim-

ited scope of the additional obligations imposed by this

prohibition against indirect discrimination: “For purposes

of clauses (i) through (iii) of this subparagraph, the term

‘individual or class of individuals’ refers to the clients or

customers of the covered public accommodation that

enters into the contractual, licensing, or other arrange-

ment.” 42 U.S.C. § 12182(b)(1)(A)(iv).

This provision makes clear that a public accommoda-

tion operator is liable for indirect discrimination only

when that discrimination affects individuals who .eek the

“goods, services, facilities, privileges, advantages, or

accommodations” of the public accommodation itself; the

operator is not liable for discrimination that affects only

those people who seek the “goods, services, facilities,

privileges, advantages, or accommodations” of its con-

tracting partner. The key words in this provision there-

fore are not “client or customer” (which is merely a

shorthand reference for “individual seeking the goods,

services, facilities, privileges, advantages, or accommoda-

tions”) but rather “of the covered public accommodation”

(which identifies whose clients or customers a public

accommodation operator must protect against indirect

discrimination). The legislative history makes this point

crystal clear.®

* See H.R. Rep. No. 485, Pt. 2, at 101 (1990) (“[T]he

‘individual or class of individuals’ referenced in section

302(b)(1)(A)(i)-(iii) has always been intended to refer to the

chents and customers of the public accommodation that entered

into a contractual arrangement. The section has never been

intended to encompass the clients or customers of other entities.

Thus, a public accommodation is not liable under this provision

tor discrimination that may be practiced by those with whom it

has a contractual relationship, when that discrimination is not

directed agair=* its own clients or customers.”).

By paying the entry fee and submitting two letters of

recommendation, Casey Martin sought to avail himself of

the PGA’s “services, facilities, privileges, advantages, or

accommodations” in coordinating the golf competition,

providing an opportunity to compete, and assembling an

audience. He therefore became a “client or customer” of

the Tour within the meaning of Title III.

C. The Application of ADA Title III to This Case

Does Not Conflict With Any Limitations on the

Reach of ADA Title I.

The PGA contends that Martin’s claim is essentially

one for “workplace discrimination.” Pet. Br. 26. Because

Martin is not a common-law “employee,” it is clear that

he may not invoke the protections of ADA Title I, which

provides a range of remedies (including back pay and, in

many circumstances, damages) for disability-based

employment discrimination. See 42 U.S.C. § 12111 et seq.

But the PGA takes the point a step further. Because, it

contends, Martin’s claim is best characterized as a “work-

place dispute” (Pet. Br. 27), the PGA argues that Martin

may not invoke the protection of Title III (which provides

private plaintiffs injunctive but not monetary relief for

disability-based discrimination by public accommoda-

tions, see 42 U.S.C. § 12188(a)(1)).

The PGA is correct that Title I - which specifically

and extensively addresses the treatment of “employees”

in the terms and conditions of employment - creates the

exclusive Americans with Disabilities Act cause of action

for disability discrimination by a place of public accom-

modation against one of its employees.* Where the plain-

tiff is not an employee of the defendant, however, Title |

6 Thus, a reading that extends Title III protection to Martin

does not threaten to extend the Act’s prohibitions on

_ employment discrimination to businesses with fewer than 15

| employees. Cf. Pet. Br. 28-29 & n.22. Because Title I is the sole

simply does not apply. In such circumstances, the avail-

ability of a claim under Title III cannot turn on the

textually unmoored and essentially standardless inquiry

into whether the plaintiff's claim is really one of “work-

place discrimination.” Rather, it must turn on the inquiry

required by Title III’s text: Whether the plaintiff has been

denied equal access to “the full and equal enjoyment of

the goods, services, facilities, privileges, advantages, or

accommodations of any place of public accommodation.”

42 U.S.C. § 12182(a).

For these purposes, if is irrelevant that, in seeking

access to the PGA Tour’s “goods, services, facilities, priv-

ileges, advantages, or accommodations,” Martin hopes to

meet with enough success in competition to make a liv-

ing. Professional gamblers frequently seek to use the

services of casinos and racetracks - which are clearly

“place[s] of . . . entertainment,” 42 U.S.C. § 12181(7) -

with a similar goal, as do sellers at baseball card shows

and flea and farmers’ markets. Nothing in the statutory

text or legislative history suggests that a place of public

accommodation should be free to discriminate against

these individuals on the basis of disability simply

because they hope to use the accommodation’s services to

earn a living.

Contrary to the argument of the PGA and its amicus

(Pet. Br. 27; EEAC Br. 13-14), Martin’s case is a far cry

from that of a typical contractor or vendor who agrees to

provide a defined set of goods or services to the operator

of an accommodation in exchange for a defined payment.

Unlike such an individual, Martin paid a $3000 fee and

participated in an essentially open competition to obtain

ADA provision that prohibits discrimination by a place of

public accommodation against one of its “employees,” its

limitation to employers who have 15 or more employees

necessarily reflects a determination not to regulate the

relationships that smaller employers have with their employees.

ON VS Ee NPE re tele em

the variety of “services, facilities, privileges, advantages,

or accommodations” inherent in participation in PGA

Tour events: the assembly of a top-flight field of competi-

tors; the coordination of play at an agreed-upon location

under an agreed-upon set of rules; access to an audience

assembled by the tour; and the opportunity, should he be

successful in the competition (see Tr. 815-817), to obtain

prize money. Title III prohibits the Tour from denying

these benefits to Martin on the basis of his disability.

II. The District Court Properly Held That Modification

of the “Walking Rule” Would Not “Fundamentally

Alter” PGA Tour Golf.

A. Title III Required the PGA to Demonstrate

That Its Insistence on the Walking Rule Was

Necessary to Serve a “Fundamental” Purpose

of the Tour.

Some of the most significant burdens on people with

disabilities take the form of longstanding practices that,

without any particular design, exclude people with dis-

abilities from important activities. These practices often

continue simply because they reflect the “way things

have always been done.” See Alexander v. Choate, 469 U.S.

287, 295-296 (1985) (observing that Congress described

the problem of discrimination against people with dis-

abilities as largely one of “thoughtlessness and indif-

ference” and “apathetic attitudes”). To combat this

important form of exclusion, the ADA aims centrally to

compel all of the entities it regulates - places of public

accommodation as well as private employers and state

and local government entities - carefully to scrutinize

those practices that exclude people with disabilities. Title

III thus defines “discrimination” to include (42 U.S.C.

§ 12182(b)(2)(A)(ii)):

a failure to make reasonable modifications in

policies, practices, or procedures, when such

modifications are necessary to afford such

goods, services, privileges, 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.”

By requiring “reasonable modifications” that alter,

but do not “fundamentally” alter, the nature of a public

accommodation’s operations, Title III requires a close

examination of practices that operate to exclude individ-

uals with disabilities. This examination must necessarily

be fact-specific, and it must contain several components.

First, the challenged practice must in fact serve the pur-

poses for which the public accommodation imposed it in

the first place. If the practice no longer serves that pur-

pose, and is being continued simply because of inertia,

modification could not effect a “fundamental alteration.”

See Southeastern Community Coll. v. Davis, 442 U.S. 397,

412 (1979) (“insistence on continuing past requirements”

would discriminate on the basis of disability where it

“arbitrarily deprive|s] genuinely qualified handicapped

persons of the opportunity to participate in a covered

program”).

Even if the challenged practice serves some legitimate

purpose of the public accommodation, it must be mod-

ified if reasonable alternatives exist that would permit an

7 ADA Title Ii, which regulates state and local government

entities, also contains a requirement of “reasonable

modifications” subject to a “fundamental|[ ] alter[ation]”

defense. 28 C.F.R. § 35.130(b)(7). ADA Title I, which regulates

employers, similarly requires “reasonable accommodations”

subject to an “undue hardship” defense. 42 U.S.C.

§ 12112(b)(5)(A). Although Title I’s “undue hardship” defense

differs somewhat from the “fundamental alteration” defense

applied under Titles II and III, the core requirements of

“reasonable accommodation” and “reasonable modification”

are essentially the same.

individual with disabilities access without compromising

that purpose. It might be possible to alter the practice for

all people with a given disability without impairing its

underlying purpose.’ Alternatively, it may be the case

that alteration of the practice for a given individual with

a disability will, for reasons specific to that individual’s

particular circumstances, be consistent with the practice’s

underlying purpose.? And even if no alternative way of

serving a legitimate purpose exists, the plain text of the

statute makes clear that the practice may still be modified

if the purpose itself is not “fundamental” to the public

accommodation’s operations.

These inquiries would be entirely frustrated if enti-

ties covered by the ADA could simply define the “funda-

mental” nature of their programs as encompassing the

precise set of policies, practices, and procedures that they

currently impose. In its jurisprudence under the Reha-

bilitation Act, this Court has made clear that defendants

may not evade the reasonable modification requirement

through such definitional fiat. See Choate, 469 U.S. at 301

& n.21 (stating that “[t]he benefit itself, of course, cannot

8 See, e.g., Crowder v. Kitagawa, 81 F.3d 1480, 1485-1486 (9th

Cir. 1996) (although rule requiring quarantine of all dogs

arriving from out of state served the legitimate interest in

keeping Hawaii rabies-free, Title II’s “reasonable

modifications” requirement compelled consideration of

whether alternative measures could serve the same purpose

without effectively preventing people with visual impairments

who use guide dogs from traveling to the state).

9 See, e.g., Washington v. Indiana High Sch. Athletic Ass‘n,

Inc., 181 F.3d 840, 852 (7th Cir.) (upholding preliminary

injunction requiring waiver of high school athletic association’s

8-semester eligibility rule for a student with a learning

disability based in part on a determination that, due to the

specifics of the student’s situation, “none of the dangers that

motivated adoption of the rule is present in this case”), cert.

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

be defined in a way that effectively denies otherwise

qualified handicapped individuals the meaningful access

to which they are entitled”); see also 42 U.S.C. § 12201(a)

(ADA must be interpreted to provide at least as much

protection as the Rehabilitation Act); Bragdon v. Abbott,

524 U.S. 624, 631-632 (1998) (same).!° The PGA thus can-

not avoid a defense of its walking rule simply by defining

PGA Tour golf as a game in which competitors walk

between shots. It must “demonstrate[ ]” that a modifica-

tion of that rule will “fundamentally alter” the nature of

its operations under the standards set forth above. 42

U.S.C. § 12182(b)(2)(A)(ii).

B. The District Court Properly Concluded That

Insistence on the Walking Rule Was Unnecess-

ary to Serve Any “Fundamental” Purpose of the

PGA Tour.

1. The PGA contends that modification of the walk-

ing rule effects a fundamental alteration by compromis-

ing its interest in imposing “a uniform set of substantive

rules” on all of its competitors. Pet. Br. 31. The PGA’s

repeated references to the need for “uniform rules,” “the

same rules,” and “common rules” (see Pet Br. 30, 31,

32-33, 34, 35, 36) reflect a basic misreading of the injunc-

tion issued by the district court and affirmed by the court

10 Congress made the same point clear in the parallel ADA

provisions that guarantee “reasonable accommodations” to

employees with disabilities so long as the accommodations do

not compromise “essential” job functions. See 42 U.S.C.

§§ 12111(8), 12112(b)(5)(A). While the “employer’s judgment as

to what functions of a job are essential” is entitled to

“consideration,” 42 U.S.C. § 12111(8), Congress pointedly

accorded no deference or presumptive weight to that judgment,

see H.R. Rep. No. 485, Pt. 3, 101st Cong., 2d Sess. 33 (1990) (“An

amendment that would have created a presumption in favor of

the employer’s determination of essential functions was

rejected.”).

of appeals. The district court ordered the PGA “to pro-

vide Plaintiff with automotive transportation in NIKE

TOUR and PGA TOUR competitions.” J.A. 90. But noth-

ing in that order prevents the Tour from waiving its

walking rule for all other competitors. Indeed, the PGA

responded to the district court’s preliminary injunction

by lifting the walking rule uniformly for all golfers in the

qualifying school tournament. Pet. App. 43a. If the dis-

trict court’s permanent injunction has led to disuniformity

in the rules applied to PGA Tour competitors, that dis-

uniformity is entirely of the Tour’s making.

Because the PGA can satisfy its interest in uniformity

by waiving the walking rule for all competitors, it cannot

argue that the rule is necessary to serve that interest.

Rather, it must rest on the contention that the walking

rule is, considered on its own merits, a fundamental

aspect of PGA Tour competition, such that elimination of

the rule would constitute a “fundamental| } alter[ation].”

42 U.S.C. § 12182(b)(2)(A)(ii). Evaluation of this argument

requires consideration of the distinctive aspects of top-

level professional athletic competition.

2. As the PGA forcefully contends (Pet. Br. 32-33),

top-level professional sports are distinctive in respects

that relate to the fundamental alteration inquiry. At the

outset, however, two key respects in which top-level pro-

fessional athletics are not distinctive bear emphasis.

First, although top-level professional sports leagues

have traditionally been accorded broad authority to craft

- and resolve disputes concerning - their rules (cf. ATP ~

Br. 7-8), that fact hardly distinguishes those leagues from

a wide range of other entities whose conduct is regulated

by the ADA. Employers, for example, traditionally had

the unquestioned managerial prerogative to define job

functions and set work tules for all employees, but Title

I’s “reasonable accommodation” requirement necessarily

overrides that prerogative. 42 U.S.C. § 12112(b)(5)(A).

Moreover, many of the persons who are subject to the

requirements of ADA Title III are members of professions

that traditionally have a significant degree of autonomy

over the practices they follow. But this Court has rejected

broad deference either to the judgments of individual

professionals, see Bragdon, 524 U.S. at 649, or to the

professional organizations of which they are members,

see id. at 652.

Even when this Court has accorded a measure of

deference to the judgments of nonjudicial bodies on ques-

tions associated with “reasonable modification,” it has

never deferred to the judgments of defendants as such. It

has deferred only to identified professionals who,

because of their training and professional orientation,

have an obligation (regardless of what the defendant

instructs) to take seriously the interests of people with

disabilities as well as the concerns raised by the defen-

dant. In School Bd. v. Arline, 480 U.S. 273, 287-288 (1987),

this Court held that courts “normally should defer to the

reasonable medical judgments of public health officials”

on safety risk questions, in order to “protect[ ] hand-

icapped individuals from deprivations based on preju-

dice, stereotypes, or unfounded fear, while giving

appropriate weight to such legitimate concerns of

grantees as avoiding exposing others to significant health

and safety risks.” See also Bragdon, 524 U.S. at 650 (reaf-

firming this aspect of Arline but noting that the views of

public health officials “are not conclusive”). In Olmstead’

v. L.C., 527 U.S. 581, 602-603 (1999), the Court stated that

“the State generally may rely on the reasonable assess-

ments of its own professionals in determining whether an

individual meets the essential eligibility requirements for

habilitation in a community-based program” - a state-

ment necessarily premised on the expectation that those

treating professionals exercise their own independent

judgment based on knowledge and experience concern-

ing both the individual with a disability and the ability of

community placement to serve that individual. Because

sports leagues have no obligation, independent of the

ADA, to safeguard the interests of people with disabil-

ities,!! there is no basis for according them even the

moderate degree of deference that this Court has granted

to public health officials and treating professionals in

other contexts — particularly in a case, such as this one,

where the league itself is the defendant.

Second, the mere fact that a covered entity must

conduct an individualized inquiry to determine what

modifications are necessary to provide the plaintiff access

in the light of his particular condition is hardly unique to

the professional sports context. Such an individualized

inquiry is the basic point of the reasonable accommoda-

tion/reasonable modification requirement. See Arline, 480

U.S. at 287 & nn.16-17. The statutory text makes this

clear: Public accommodations must provide reasonable

modifications where those modifications are “necessary

to afford” its opportunities to “individuals with disabil-

ities.” 42 U.S.C. § 12182(b)(2)(A)(ii) (emphasis added); see

also 42 U.S.C. § 12112(b)(5)(A) (ADA Title I requires

“reasonable accommodations to the known physical or

mental limitations of an otherwise qualified individual

with a disability”) (emphasis added). If the burden of

conducting individualized inquiries sufficed to work a

fundamental alteration (cf. USGA Br. 25), the core aspect

of the reasonable accommodation/reasonable modifica-

tion requirement would be entirely eviscerated.

'! Professional athletic leagues have not always been

reliable in effectuating the principles of our civil rights laws. See

Paul C. Weiler, Leveling the Playing Field: How the Law Can

Make Sports Better for Fans 18-19 (2000) (describing historical

treatment of African-Americans by sports leagues and noting

that “it was not until the early 1960s, when Congress was

preparing to subject private organizations to a new Civil Rights

Act, that the PGA relented and gave black golfers the right to

play on the Tour”).

3. Nonetheless, there are some respects in which

alterations to the rules of top-level professional sports

raise issues that are not present in the typical reasonable

modification or reasonable accommodation case. In the

typical case in which the plaintiff seeks such a modifica-

tion or accommodation, the defendant's operations are

the means to an end. An employer, for example, seeks to

produce goods or provide services to paying members of

the public. All work rules are intended to serve that

ultimate goal of the enterprise. In a meaningful sense,

however, top-level professional athletic competitions are

not means to an end; they are an end in themselves.

Because the rules that determine the skills tested by

the game are set in an essentially arbitrary manner, many

of the inquiries that are relevant in other fundamental

alteration cases are less appropriate in the top-level pro-

fessional sports context. In a typical employment case, for

example, an employee with a disability can attempt to

prove that the employer should not demand of its ware-

house workers the ability to carry more than fifty pounds

at a time, because alternative means such as a hand truck

exist to allow those workers to accomplish the tasks

necessary for the employer. See, e.g., EEOC, ADA Tech.

Asst. Man. § I-3.8. In a typical case challenging testing

practices, a test-taker with a disability can attempt to

prove that the test, as currently structured, does not in

fact evaluate him on the essential skills that it was

designed to assess. See, e.g., 28 C.F.R. § 36.309(b)(3).

Because the skills a top-level professional sports league

chooses to test are not means to any particularly defined

end, however, courts lack any particular standard for

second-guessing the league’s choice of which skills tested

By the competition’s rules are truly essential, and how

much the competition’s outcome should turn on a particu-

lar skill.??

The rules of top-level professional sports are not

immune from the statutorily mandated reasonable mod-

ification and fundamental alteration analysis, however. In

determining whether a rule that excludes people with

disabilities serves a fundamental purpose, courts must

assess whether that rule in fact tests the skills that the

league purports to be testing. In many if not most cases

involving rules of competition in top-level professional

athletics, that determination can be expected easily to

support the league’s choice of rules. For example, one

would expect that a professional basketball league's deci-

sion to set the basket 10 feet above the floor could plainly

be shown to test leaping and jump-shooting skills; once

that point was established, a court would have no basis

for saying that the league should have tested those skills

more (by setting the basket higher) or less (by setting it

lower). But the fact that the league’s burden of justifica-

tion will in many cases be easy does not excuse the league

from its statutory obligation to “demonstrate[ ],” 42

U.S.C. § 12182(b)(2)(A)(ii) that a proposed rule change

would alter the skills the game tests. The league must

carry this burden by presenting competent evidence and

not mere speculation. Cf. Bragdon, 524 U.S. at 653-654

(speculative evidence insufficient to establish sufficient

safety risk to justify disability-based discrimination).

'2 These concerns are unique to top-level professional

athletics. In recreational and scholastic sports, participatory and

educational goals compete with the interest in determining a

winner under a given set of rules. See, e.g., Washington, 181 F.3d

at 852 (upholding preliminary injunction requiring waiver of

high school athletic eligibility rule on the ground that the

waiver would, in the plaintiff's circumstances, be compatible

with the educational purposes of the rule). Determination of the

essentiality of a given skill to the sport is therefore far more

appropriate.

Of course, elimination of any rule that excluded a

person with a disability will have an effect on competi-

tive outcomes by changing the field of competitors. If

people with disabilities cannot play, they have no chance

to win, so letting them play is obviously outcome-affect-

ing in some sense. But a rule whose only effect on out-

comes is to exclude individuals from competing rather than

to test the skills of those who are competing cannot be “fun-

damental” to the competition. If, for example, the PGA

required all golfers to wear a particular kind of shoe as a

result of an endorsement deal, and that kind of shoe

could not fit a person with a prosthetic foot, elimination

of that requirement would affect competitive outcomes

by permitting people with prosthetic feet to play. But

such a modification would not affect the nature of the

competition at all. It would merely eliminate a gratuitous

exclusion of people with disabilities. Such gratuitous

exclusions are precisely the type of conduct that Title III

seeks to attack.

4. Applying these standards, it is evident that the

district court correctly held that waiver of the walking

rule would not effect a fundamental alteration. The dis-

trict court’s findings make clear that the walking rule does

not test the skill that the Tour purports to be testing. Any

effect that rule has on the outcome of competitions is

speculative at best.

The district court found that the asserted “purpose of

the walking rule is to inject the element of fatigue into the

skill of shotmaking.” Pet. App. 32a. The court did not

second-guess the appropriateness of testing the skill of

shotmaking under conditions of fatigue. See Pet. App.

33a (finding that such a purpose “is a cognizable purpose

of the rule from the standpoint of the ADA”) (footnote

omitted). But it did review the evidence to decide

whether the walking rule does in fact inject a fatigue

factor into the game. Distinguishing between the “normal

circumstances” (Pet. App. 33a) of other Tour competitors

and “Casey Martin’s unique circumstances” (Pet. App.

35a),'° the court found that “the fatigue factor injected

into the game of golf by walking the course cannot be

deemed significant under normal circumstances.” Pet.

App. 33a.

The court gave several reasons for this finding. It

credited the expert testimony of a physiology professor

who stated that a course of golf involves walking five

miles over the course of five hours, with “numerous

intervals of rest and opportunities for refreshment.” Pet.

App. 33a. The expert also testified that “fatigue at lower

intensity exercise is primarily a psychological phenome-

non.” Pet. App. 34a. According to that expert, the promi-

nent case of allegedly walking-induced fatigue relied

upon by the PGA (“Ken Venturi’s memorable 1964 U.S.

Open win”) resulted from “heat exhaustion and fluid loss

~ not walking.” Pet. App. 33a. Moreover, the court found,

“most PGA Tour golfers appear to prefer walking as a

way of dealing with the psychological factors of fatigue.”

Pet. App. 34a. These findings make clear that the walking

rule does not in fact serve as a test of the ability to

overcome fatigue, and that it could be eliminated for all

competitors without effecting a fundamental alteration. A

fortiori, the relief ordered by the district court - requiring

the PGA to waive the rule for Casey Martin but leaving it

up to the Tour to decide whether to eliminate the rule for

all other competitors - does not effect a fundamental

alteration.

The court of appeals did not disturb these findings,

anc the PGA does not challenge them in this Court as

clearly erroneous. Instead, the PGA reads the statement

that “the fatigue factor injected into the game of golf by

'’ The walking rule does not exclude Martin because it

makes him so fatigued that his shotmaking suffers; it excludes

him because he simply cannot walk the course. Pet. App. 9a,

18a 32a.

walking the course cannot be deemed significant under

normal circumstances” (Pet. App. 33a) as necessarily

implying that “the ‘walking rule’ does affect the outcome

of some high-level golf tournaments.” Pet. Br. 36

(emphasis in original). To the extent that the district

court’s findings are ambiguous on this point, the proper

course for this Court is to remand rather than supply a

missing factfinding by the device of negative implication.

See Pullman-Standard v. Swint, 456 U.S. 273, 291-292

(1982). But the PGA’s submission to this Court does not

demonstrate that the walking rule has such an outcome-

determinative effect on high-level golf tournaments in

any event.

The PGA argues that some unspecified number of

golfers without statutory “disabilities” are unusually

likely to experience fatigue from walking and thus would

benefit in the competition from being able to use a golf

cart. PGA Br. 39-41. But that is nothing more than spec-

ulation. Nothing in the district court’s findings - much

less in the brief portion of the record cited by the PGA

(PGA Br. 40 (citing J.A. 168-169, in which a single golfer

testified that he experienced fatigue because of his dia-

betes)) — suggests that an across-the-board elimination of

the walking rule would have any meaningful effect on the

outcome of the competition.'* The Tour can do nothing

more than assert that some unidentified number of

golfers with “bad backs, sore knees and ankles, arthritis,

14 The USGA states that waiver of the walking rule affected

the outcome in at least one competition that Casey Martin won

on the Nike Tour after the district court issued its order. USGA

Br. 23-24 n.9. According to the USGA, Martin won a tournament

by one stroke over an opponent who “was suffering from an

ingrown toenail that caused him to suffer intense pain”; had the

opponent been permitted to use a golf cart, the USGA asserts,

“he might have improved his score by one or two strokes.”

USGA Br. 23 n.9. Like the assertions in the PGA’s brief, this

“might have” is entirely speculative.

[and] diabetes” (Pet. Br. 40) might do somewhat better

vis-a-vis some of their fellow competitors if the walking

rule were lifted. Because the chance that the walking rule

has an effect on tournament outcomes is speculative at

best, it cannot be said truly to test the skill of shotmaking

under fatigue. or

Given the entirely speculative effect that walking the

course has on golfer fatigue, it is hardly surprising that

the district court noted that Martin experiences far more

pain and fatigue simply by getting in and out of his cart

to walk to shots. See Pet. App. 36a. Contrary to the PGA’s

suggestion (Pet. Br. 39-41), this passage of the district

court’s opinion does not require the Tour to seek some

kind of precise calibration between the advantage gained

by a reasonable modification and the disadvantage

imposed by the plaintiff's disability. Rather, the passage

emphasizes that, should the Tour choose to limit waiver

of the walking rule to Casey Martin, it would nonetheless

be quite obvious that Martin would receive no competi-

tive advantage. See Pet. App. 36a (noting that Martin

“easily endures greater fatigue with a cart than his able-

bodied competitors do by walking”) (emphasis added);

ibid. (“To perceive that the cart puts him - with his

condition — at a competitive advantage is a gross distor-

tion of reality.”). Given the district court’s unchallenged

findings, the speculative nature of the PGA’s assertion

that the walking rule affects the competition, and the fact

that the PGA remains free to eliminate the rule for all

golfers, this “competitive advantage” point was unneces-

sary to the district court’s decision. For in no event did

the PGA carry its burden to “demonstrate[ ]” a “funda-

mental[ | alter{ation].” 42 U.S.C. § 12182(b)(2)(A)(ii).

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted,

SHARON MASLING

NATIONAL ASSOCIATION OF

PROTECTION AND ADVOCACY

SYSTEMS

900 Second St., N.E.,

Suite 211

Washington, DC 20002

(202) 408-9514

SAMUEL R. BAGENSTOS

Counsel of Record

1545 Massachusetts Ave.

Cambridge, MA 02138

(617) 495-9299

Nem V. McKrrrrick

Davip S. FrRigEDMAN

DesoraH H. DosSantos

Hitt & Bartow,

A PROFESSIONAL CORPORATION

One International Place

Boston, MA 02110

(617) 428-3000

APPENDIX

App. 1

Amici Descriptions

AARP is a nonprofit membership organization serv-

ing more than thirty-four million persons age 50 and

older that is dedicated to addressing the needs and inter-

ests of older Americans. The protections of the American

with Disabilities Act are especially important to AARP

members because older persons have a higher incidence

of disabilities than other populations.

ADAPT is a national organization, most of whose

members have severe disabilities and have been institu-

tionalized in nursing facilities and other public institu-

tions solely because they have disabilities. ADAPT has a

long history and record of enforcing the civil rights of

people with disabilities and was one of the key organiza-

tions that participated in the political and legislative pro-

cess that resulted in the passage in 1990 of the Americans

with Disabilities Act.

The American Association of People with Disabil-

ities (AAPD) is a non-profit, non-partisan membership

organization of people with disabilities, their family

members and supporters. AAPD was founded on the fifth

anniversary of the Americans with Disabilities Act and

works to promote policies and programs that further the

ADA’s goals of equality of opportunity, full participation,

independent living and economic self-sufficiency for the

more than 56 million children and adults with disabilities

in the U.S.

The American Council of the Blind (ACB) is a

national membership organization of blind and visually

impaired persons and is dedicated to improving the qual-

ity of life, independence and equality of opportunity for

App. 2

people who are blind and visually impaired. One key

element of ACB’s activities has been support for legisla-

tion that would enhance and protect the civil rights of

persons with disabilities such as the Americans with Dis-

abilities Act.

The American Diabetes Association is the nation’s

leading nonprofit health organization providing diabetes

research, information and advocacy. The mission of the

organization is to prevent and cure diabetes, and to

improve the lives of all people affected by diabetes. As

part of its mission, the Association advocates for the

rights of people with diabetes and supports strong public

policies and laws to protect persons with diabetes against

discrimination.

The American Network of Community Options and

Resources (ANCOR) is a nationwide association of 700

private, non-profit, for-profit and family care agencies

that together provide support and services to more than

150,000 people with disabilities. Most member agencies

support group homes, apartments, and other supported

living arrangements in typical, stable family neighbor-

hoods in order to best meet the needs of the people they

support. Some members provide vocational and employ-

ment services through supported employment, commu-

nity rehabilitation programs, and extended employment

arrangements.

The American Therapeutic Recreation Association is

the largest national membership organization represent-

ing the interests and need of recreational therapists. Rec-

reational therapists are health care providers using

App. 3

recreational therapy interventions for improved function-

ing of individuals with illness or disabling conditions.

The Arc of the United States (The Arc), through its

nearly 1,000 state and local chapters, is the largest

national voluntary organization in the United States

devoted solely to the welfare of the more than seven

million children and adults with mental retardation and

their families. Since its inception, The Arc has vigorously

challenged attitudes and public policy, based on false

stereotypes, that have authorized or encouraged segrega-

tion of people with mental retardation in virtually all

areas of life.

The Association on Higher Education and Disabil-

ity (AHEAD) is a non-profit organization committed to

full participation in higher education and equal access to

all curricular and extra-curricular opportunities for per-

sons with disabilities. Its membership includes approxi-

mately 2,000 institutions (including colleges, universities,

not-for-profit service providers and standardized testing

organizations), professionals, and college and graduate

students planning to enter the field of disability practice.

The Judge David L. Bazelon Center for Mental

Health Law is a national legal advocacy organization

dedicated to advancing the rights and dignity of people

with mental disabilities. The Center has worked to pro-

mote equal opportunity for people with mental disabil-

ities to access housing, employment, services and

recreational activities.

The Brain Injury Association (BIA) is a national non-

profit organization whose mission is to create a better

App. 4

future through brain injury prevention, research, educa-

tion and advocacy. BIA’s leadership represents a cross

section of stakeholders in the field of brain injury, includ-

ing survivors, family members, medical and clinical prac-

titioners, researchers, and service providers. Since its

inception, BIA has worked tirelessly to raise public

awareness, prevent brain injury by education, improve

treatments through professional education and research,

and advocate for progressive change in the law.

The Brain Injury Family Assistance Center is com-

mitted to assisting individuals with Traumatic Brain Inju-

ries-and their families in dealing with the many problems

caused by and associated with the injury, including but

not limited to employment and access problems.

The Center on Disability and Health is a nonprofit

health care policy think tank committed to applying non-

discrimination standards in the Americans with Disabil-

ities Act to different components of the health care

delivery system.

The Disability Rights Education and Defense Fund

(DREDF) is a national !aw and policy center dedicated to

advancing and protecting the civil rights of people with

disabilities. Since its founding in 1979, DREDF has pur-

sued its mission through education, advocacy and law

reform efforts, consistently working to promote the full

integration of citizens with disabilities into the American

mainstream. DREDF is nationally recognized for its

expertise in the interpretation of federal disability civil

rights laws.

App. 5

The Epilepsy Foundation® is the sole national chari-

table voluntary health organization dedicated to advanc-

ing the interests of the more than two million people with

epilepsy and seizure disorders. Since its inception, the

Foundation has worked for the full inclusion of people

with epilepsy in everyday, mainstream activities by dis-

pelling the stigma associated with seizures and support-

ing the development of laws that protect individuals from

discrimination based on these stereotypes and fears.

HalfthePlanet Foundation supports the applications

of technology to promote the values of the Americans

with Disabilities Act: independent living, social inclusion,

equality of opportunity, economic self-sufficiency and

empowerment. The vision of HalfthePlanet Foundation is

a planet: where technology pervasively facilitates the

dreams, aspirations, expectations and abilities of children

and adults with disabilities, their families and friends;

where everyone can contribute fully to the economic,

social, and political well being of our local, national,

international and virtual communities; and that fully rec-

ognizes and respects the ci\ i] and human rights of all its

citizens, especially its citizens with disabilities.

Justice For All is a national disability rights organi-

zation whose goal is to defend and advance the full civil

and human rights of Americans with disabilities.

The Learning Disabilities Association of America

(LDA), is a national, non-profit, volunteer organization

whose members are individuals with learning disabilities,

their families and friends, and professionals. LDA is ded-

icated to enhancing the quality of life for all individuals

with learning disabilities, to alleviating the restricting

App. 6

effects of learning disabilities, and to supporting

endeavors to determine the causes of learning disabil-

ities.

The National Alliance for the Mentally fi! NAMI),

with more than 200,000 members and 1,300 state and

local affiliates, is the Nation’s leading grassroots advo-

cacy organization dedicated exclusively to improving the

lives of persons with severe mental illnesses.

The National Association for the Advancement of

Orthotics and Prosthetics is a national non-profit trade

association comprised of orthotists and prosthetists who

design, fit and fabricate orthopedic braces and artificial

limbs to meet the unique needs of millions of people with

amputations and orthopedic impairments.

The National Association of Developmental Dis-

abilities Councils (NADDC) represents approximately 40

Developmental Disabilities Councils around the country.

NADDC'’s mission is to provide support and assistance to

member Councils to promote a consumer and family

centered system of services and supports.

The National Association of Protection and Advo-

cacy Systems (NAPAS) is the membership organization

for the nationwide system of protection and advocacy

(P&A) agencies. Located in all 50 states, the District of

Columbia, Puerto Rico, and the territories, P&As are

mandated under various federal statutes to provide legal

representation and related advocacy services on behalf of

all persons with disabilities in a variety of settings. The

P&A system comprises the nation’s largest provider of

legaily based advocacy services for persons with disabil-

ities.

App. 7

The National Center on Accessibility (NCA) pro-

vides education and technical assistance and conducts

research on accessibility for people with disabilities in

parks, recreation and tourism.

The National Council on Independent Living

(NCIL) is a membership organization that advances the

independent living philosophy and advocates for the

human rights of, and services for, people with disabilities

to further their full integration and participation in soci-

ety. NCIL was established in 1982 and is the leading

national, cross disability, grassroots organization run by

and for people with disabilities.

National Federation of the Blind (NFB) is the lead-

ing national organization of blind persons, with affiliates

in all 50 states, the District of Columbia and Puerto Rico.

Most of its approximately 50,000 members are blind. NFB

is recognized by the public, Congress, governmental

agencies, and the courts as a collective and representative

voice of blind Americans and their families. NFB pro-

motes the general welfare of the blind by (1) assisting the

blind to integrate themselves into society on terms of

equality and (2) removing barriers and changing social

attitudes, stereotypes and mistaken beliefs concerning

blindness that are held by sighted and blind persons and

that result in the denial of opportunity to blind persons in

virtually every sphere of life.

The National Health Law Program is a non-profit,

legal support center that works to improve justice in

health care for low income people, people with disabil-

ities, children, and people of color. For over 30 years, the

National Health Law Program has worked on behalf of

App. 8

these populations to assure that they receive the full

protection of federal and state laws designed to ensure

and expand access to health care services.

The National Mental Health Association, is a

national organization with over 330 affiliates dedicated to

promoting mental health, preventing mental disorders,

and achieving victory over mental illness, as well as

respect, dignity, and opportunities for persons with dis-

abilities.

The National Multiple Sclerosis Society, with over

600,000 members and 83 chapters and divisions, is dedi-

cated to ending the devastating effects of multiple scle-

rosis (MS). The Society focuses on providing services,

information, and programs to persons with MS and fund-

ing for MS biomedical research and health services

research. The Society supports efforts to increase acces-

sibility and independence, as well as to prevent discrimi-

nation.

The National Therapeutic Recreation Society

(NTRS) is a membership organization for those who are

interested in the provision of therapeutic recreation ser-

vices for persons with disabilities in clinical facilities and

in the community. The National Therapeutic Recreation

Society advocates for the leisure rights of individuals

with illnesses, disabilities, and other conditions, and

actively seeks to correct inequities that unjustly discrimi-

nate. Paralyzed Veterans of America (PVA) is a congres-

sionally chartered veterans service organization with

over 19,000 members. Virtually all of PVA’s members use

wheelchairs for mobility and are people with disabilities

as defined by the Americans with Disabilities Act. PVA

App. 9

has a vibrant sports and recreation program that involves

many of its members.

The Polio Society serves its nationwide membership

with information and referral services, training in self-

advocacy to enforce the civil rights of persons with dis-

abilities, and support for legislation of benefit to polio

survivors and the disability community at large. Polio

Society members are persons with disabilities as a result

of polio and post-polio syndrome.

Self Help for Hard of Hearing People (SHHH) is a

nonprofit consumer educational organization, founded in

1979 and devoted to the welfare and interests of those

who cannot hear well, their relatives, and friends. SHHH

has 20,000 national and chapter members in 50 states. It is

the largest consumer organization in the United States

representing people with hearing loss. As the voice for

hard of hearing people, SHHH strives to improve the

quality of life for hard of hearing people through oSuce-

tion, advocacy, and self help.

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.