OCTOBER TERM, 2000
Syllabus
PGA TOUR, INC.
v. MARTIN
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 00-24. Argued January 17, 200l-Decided May 29, 2001
Petitioner sponsors professional golf tournaments conducted on
three annual tours. A player may gain entry into the tours in
various ways, most commonly through successfully competing in a
three-stage qualifying tournament known as the "Q-School." Any
member of the public may enter the Q-School by submitting two
letters of recommendation and paying a $3,000 entry fee to cover
greens fees and the cost of golf carts, which are permitted during
the first two stages, but have been prohibited during the third
stage since 1997. The rules governing competition in tour events
include the "Rules of Golf," which apply at all levels of amateur
and professional golf and do not prohibit the use of golf carts,
and the "hard card," which applies specifically to petitioner's
professional tours and requires players to walk the golf course
during tournaments, except in "open" qualifying events for each
tournament and on petitioner's senior tour. Respondent Martin is a
talented golfer afflicted with a degenerative circulatory disorder
that prevents him from walking golf courses. His disorder
constitutes a disability under the Americans with Disabilities Act
of 1990 (ADA), 42 U. S. C. § 12101
et seq. When Martin
turned pro and entered the Q-School, he made a request, supported
by detailed medical records, for permission to use a golf cart
during the third stage. Petitioner refused, and Martin filed this
action under Title III of the ADA, which, among other things,
requires an entity operating "public accommodations" to make
"reasonable modifications" in its policies "when ... necessary to
afford such ... accommodations to individuals with disabilities,
unless the entity can demonstrate that making such modifications
would fundamentally alter the nature of such ...
accommodations," § 12182(b)(2)(A)(ii) (emphasis added). In denying
petitioner summary judgment, the Magistrate Judge rejected its
contention, among others, that the play areas of its tour
competitions are not places of "public accommodation" within Title
Ill's scope. After trial, the District Court entered a permanent
injunction requiring petitioner to permit Martin to use a cart.
Among its rulings, that court found that the walking rule's purpose
was to inject fatigue into the skill of shotmaking, but that the
fatigue injected by walking a golf course cannot be deemed
significant under normal
662
Syllabus
circumstances; determined that even with the use of a cart, the
fatigue Martin suffers from coping with his disability is greater
than the fatigue his able-bodied competitors endure from walking
the course; and concluded that it would not fundamentally alter the
nature of petitioner's game to accommodate Martin. The Ninth
Circuit affirmed, concluding,
inter alia, that golf courses,
including play areas, are places of public accommodation during
professional tournaments and that permitting Martin to use a cart
would not "fundamentally alter" the nature of those
tournaments.
Held:
1. Title III of the ADA, by its plain terms, prohibits
petitioner from denying Martin equal access to its tours on the
basis of his disability. Cf.
Pennsylvania Dept. of
Corrections v.
Yeskey, 524 U. S. 206, 209. That
Title provides, as a general rule, that "[n]o individual shall be
discriminated against on the basis of a disability in the full and
equal enjoyment of the ... privileges ... of any place of public
accommodation." § 12182(a). The phrase "public accommodation" is
defined in terms of 12 extensive categories, § 12181(7), which the
legislative history indicates should be construed liberally to
afford people with disabilities equal access to the wide variety of
establishments available to the nondisabled. Given the general rule
and the comprehensive definition of "public accommodation," it is
apparent that petitioner's golf tours and their qualifying rounds
fit comfortably within Title Ill's coverage, and Martin within its
protection. The events occur on "golf course[s]," a type of place
specifically identified as a public accommodation. § 12181(7)(L).
And, at all relevant times, petitioner "leases" and "operates" golf
courses to conduct its Q-School and tours. § 12182(a). As a lessor
and operator, petitioner must not discriminate against any
"individual" in the "full and equal enjoyment of the ...
privileges" of those courses.
Ibid. Among those "privileges"
are competing in the Q-School and playing in the tours; indeed, the
former is a privilege for which thousands of individuals from the
general public pay, and the latter is one for which they vie.
Martin is one of those individuals. The Court rejects petitioner's
argument that competing golfers are not members of the class
protected by Title III-i.
e., "clients or customers of the
covered public accommodation," § 12182(b)(1)(A)(iv)-but are
providers of the entertainment petitioner sells, so that their
"job-related" discrimination claims may only be brought under Title
I. Even if Title Ill's protected class were so limited, it would be
entirely appropriate to classify the golfers who pay petitioner
$3,000 for the chance to compete in the Q-School and, if
successful, in the subsequent tour events, as petitioner's
663
clients or customers. This conclusion is consistent with case
law in the analogous context of Title II of the Civil Rights Act of
1964. See,
e. g.,
Daniel v.
Paul, 395 U. S. 298, 306. Pp.
674-681.
2. Allowing Martin to use a golf cart, despite petitioner's
walking requirement, is not a modification that would
"fundamentally alter the nature" of petitioner's tours or the third
stage of the Q-School. In theory, a modification of the tournaments
might constitute a fundamental alteration in these ways: (1) It
might alter such an essential aspect of golf,
e. g., the
diameter of the hole, that it would be unacceptable even if it
affected all competitors equally; or (2) a less significant change
that has only a peripheral impact on the game itself might
nevertheless give a disabled player, in addition to access to the
competition as required by Title III, an advantage over others and
therefore fundamentally alter the character of the competition. The
Court is not persuaded that a waiver of the walking rule for Martin
would work a fundamental alteration in either sense. The use of
carts is not inconsistent with the fundamental character of golf,
the essence of which has always been shotmaking. The walking rule
contained in petitioner's hard cards is neither an essential
attribute of the game itself nor an indispensable feature of
tournament golf. The Court rejects petitioner's attempt to
distinguish golf as it is generally played from the game at the
highest level, where, petitioner claims, the waiver of an
"outcome-affecting" rule such as the walking rule would violate the
governing principle that competitors must be subject to identical
substantive rules, thereby fundamentally altering the nature of
tournament events. That argument's force is mitigated by the fact
that it is impossible to guarantee that all golfers will play under
exactly the same conditions or that an individual's ability will be
the sole determinant of the outcome. Further, the factual basis of
petitioner's argument-that the walking rule is "outcome affecting"
because fatigue may adversely affect performance-is undermined by
the District Court's finding that the fatigue from walking during a
tournament cannot be deemed significant. Even if petitioner's
factual predicate is accepted, its legal position is fatally flawed
because its refusal to consider Martin's personal circumstances in
deciding whether to accommodate his disability runs counter to the
ADA's requirement that an individualized inquiry be conducted. Cf.
Sutton v.
United Air Lines, Inc., 527 U. S. 471, 483. There
is no doubt that allowing Martin to use a cart would not
fundamentally alter the nature of petitioner's tournaments, given
the District Court's uncontested finding that Martin endures
greater fatigue with a cart than his able-bodied competitors do by
walking. The waiver of a peripheral tournament
664
rule that does not impair its purpose cannot be said to
fundamentally alter the nature of the athletic event.
Pp.681-691.
204 F.3d
994, affirmed.
STEVENS, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, KENNEDY, SOUTER, GINSBURG, and
BREYER, JJ., joined. SCALIA, J., filed a dissenting opinion, in
which THOMAS, J., joined,
post, p. 691.
H. Bartow Farr III argued the cause for petitioner. With him on
the briefs were Richard G. Taranto, William J. Maledon, and Andrew
D. Hurtiwz.
Roy L. Reardon argued the cause for respondent. With him
on the brief was
Joseph M. McLaughlin.
Deputy Solicitor General Underwood argued the cause for the
United States as amicus curiae urging affirmance. With her on the
brief were Solicitor General Waxman, Assistant Attorney General
Lee, Patricia A. Millett, Jessica Dunsay Silver, and Thomas E.
Chandler. *
JUSTICE STEVENS delivered the opinion of the Court. This case
raises two questions concerning the application of the Americans
with Disabilities Act of 1990, 104 Stat. 328, 42 U. S. C. § 12101
et seq., to a gifted athlete: first, whether the Act
protects access to professional golf tournaments by a qualified
entrant with a disability; and second, whether a
*Briefs of
amici curiae urging reversal were filed for
the Equal Employment Advisory Council by
Ann Elizabeth
Reesman; for ATP Tour, Inc., et al. by
Bradley I.
Ruskin; for the United States Golf Association by
Roy T.
Englert, Jr., Lee N. Abrams, James C.
Schroeder, Robert M.
Dow, Jr., and
John W Vardaman; and for Kenneth R. Green
II by
Gregory
Briefs of
amici curiae urging affirmance were filed for
the American Association of Adapted Sports Programs et al. by
Anita M. Moorman and
Lisa Pike Masteralexis; for the
K- T Support Group by
Brian D. Shannon; for the National
Association of Protection and Advocacy Systems et al. by
Sharon
Masling, Samuel R. Bagenstos, and
Neil V. McKittrick;
and for Robert J. Dole et al. by
Robert L. Burgdorf, Jr.,
and
George G.
Olsen.
665
disabled contestant may be denied the use of a golf cart because
it would "fundamentally alter the nature" of the tournaments, §
12182(b)(2)(A)(ii), to allow him to ride when all other contestants
must walk.
I
Petitioner PGA TOUR, Inc., a nonprofit entity formed in 1968,
sponsors and cosponsors professional golf tournaments conducted on
three annual tours. About 200 golfers participate in the PGA TOUR;
about 170 in the NIKE TOUR; 1 and about 100 in the SENIOR PGA TOUR.
PGA TOUR and NIKE TOUR tournaments typically are 4-day events,
played on courses leased and operated by petitioner. The entire
field usually competes in two 18-hole rounds played on Thursday and
Friday; those who survive the "cut" play on Saturday and Sunday and
receive prize money in amounts determined by their aggregate scores
for all four rounds. The revenues generated by television,
admissions, concessions, and contributions from cosponsors amount
to about $300 million a year, much of which is distributed in prize
money.
There are various ways of gaining entry into particular tours.
For example, a player who wins three NIKE TOUR events in the same
year, or is among the top-15 money winners on that tour, earns the
right to play in the PGA TOUR. Additionally, a golfer may obtain a
spot in an official tournament through successfully competing in
"open" qualifying rounds, which are conducted the week before each
tournament. Most participants, however, earn playing privileges in
the PGA TOUR or NIKE TOUR by way of a three-stage qualifying
tournament known as the "Q-School."
Any member of the public may enter the Q-School by paying a
$3,000 entry fee and submitting two letters of reference
1 After the trial of the case, the name of the NIKE TOUR was
changed to the Buy.com TOUR.
666
from, among others, PGA TOUR or NIKE TOUR members. The $3,000
entry fee covers the players' greens fees and the cost of golf
carts, which are permitted during the first two stages, but which
have been prohibited during the third stage since 1997. Each year,
over a thousand contestants compete in the first stage, which
consists of four 18-hole rounds at different locations.
Approximately half of them make it to the second stage, which also
includes 72 holes. Around 168 players survive the second stage and
advance to the final one, where they compete over 108 holes. Of
those finalists, about a fourth qualify for membership in the PGA
TOUR, and the rest gain membership in the NIKE TOUR. The
significance of making it into either tour is illuminated by the
fact that there are about 25 million golfers in the country.2
Three sets of rules govern competition in tour events.
First, the "Rules of Golf," jointly written by the United States
Golf Association (USGA) and the Royal and Ancient Golf Club of
Scotland, apply to the game as it is played, not only by millions
of amateurs on public courses and in private country clubs
throughout the United States and worldwide, but also by the
professionals in the tournaments conducted by petitioner, the USGA,
the Ladies' Professional Golf Association, and the Senior Women's
Golf Association. Those rules do not prohibit the use of golf carts
at any time.3
Second, the "Conditions of Competition and Local Rules," often
described as the "hard card," apply specifically to petitioner's
professional tours. The hard cards for the PGA
2 Generally, to maintain membership in a tour for the succeeding
year, rather than go through the Q-School again, a player must
perform at a certain level.
3 Instead, Appendix I to the Rules of Golf lists a number of
"optional" conditions, among them one related to transportation:
"If it is desired to require players to walk in a competition, the
following condition is suggested:
"Players shall walk at all times during a stipulated round."
App. 125.
667
TOUR and NIKE TOUR require players to walk the golf course
during tournaments, but not during open qualifying rounds.4 On the
SENIOR PGA TOUR, which is limited to golfers age 50 and older, the
contestants may use golf carts. Most seniors, however, prefer to
walk.5
Third, "Notices to Competitors" are issued for particular
tournaments and cover conditions for that specific event. Such a
notice may, for example, explain how the Rules of Golf should be
applied to a particular water hazard or manmade obstruction. It
might also authorize the use of carts to speed up play when there
is an unusual distance between one green and the next tee.6
The basic Rules of Golf, the hard cards, and the weekly notices
apply equally to all players in tour competitions. As one of
petitioner's witnesses explained with reference to "the Masters
Tournament, which is golf at its very highest level, ... the key is
to have everyone tee off on the first hole under exactly the same
conditions and all of them be tested over that 72-hole event under
the conditions that exist during those four days of the event."
App. 192.
II
Casey Martin is a talented golfer. As an amateur, he won 17
Oregon Golf Association junior events before he was 15,
4 The PGA TOUR hard card provides: "Players shall walk at all
times during a stipulated round unless permitted to ride by the PGA
TOUR Rules Committee."
Id., at 127. The NIKE TOUR hard card
similarly requires walking unless otherwise permitted.
Id.,
at 129. Additionally, as noted, golf carts have not been permitted
during the third stage of the Q-School since 1997. Petitioner added
this recent prohibition in order to "approximat[e] a PGA TOUR event
as closely as possible."
Id., at 152.
5994 F. Supp. 1242, 1251 (Ore. 1998).
6 See,
e. g., App. 156-160 (Notices to Competitors for
1997 Bob Hope Chrysler Classic, 1997 AT&T Pebble Beach National
Pro-Am, and 1997 Quad City Classic).
668
and won the state championship as a high school senior. He
played on the Stanford University golf team that won the 1994
National Collegiate Athletic Association (NCAA) championship. As a
professional, Martin qualified for the NIKE TOUR in 1998 and 1999,
and based on his 1999 performance, qualified for the PGA TOUR in
2000. In the 1999 season, he entered 24 events, made the cut 13
times, and had 6 top-10 finishes, coming in second twice and third
once.
Martin is also an individual with a disability as defined in the
Americans with Disabilities Act of 1990 (ADA or Act).7 Since birth
he has been afflicted with Klippel-TrenaunayWeber Syndrome, a
degenerative circulatory disorder that obstructs the flow of blood
from his right leg back to his heart. The disease is progressive;
it causes severe pain and has atrophied his right leg. During the
latter part of his college career, because of the progress of the
disease, Martin could no longer walk an 18-hole golf course.8
Walking not only caused him pain, fatigue, and anxiety, but also
created a significant risk of hemorrhaging, developing blood clots,
and fracturing his tibia so badly that an amputation might be
required. For these reasons, Stanford made written requests to the
Pacific 10 Conference and the NCAA to waive for Martin their rules
requiring players to walk and carry their own clubs. The requests
were granted.9
7Title 42 U. S. C. § 12102 provides, in part:
"The term 'disability' means, with respect to an individual-
"(A) a physical or mental impairment that substantially limits
one or more of the major life activities of such individual ....
"
8 Before then, even when Martin was in extreme pain, and was
offered a cart, he declined. Tr. 564-565.
9 When asked about the other teams' reaction to Martin's use of
a cart, the Stanford coach testified:
"Q. Was there any complaint ever made to you by the coaches when
he was allowed a cart that that gave a competitive advantage over
the"A. Any complaints? No sir, there were exactly-exactly the
opposite.
Everybody recognized Casey for the person he was, and what he
was
669
When Martin turned pro and entered petitioner's Q-School, the
hard card permitted him to use a cart during his successful
progress through the first two stages. He made a request, supported
by detailed medical records, for permission to use a golf cart
during the third stage. Petitioner refused to review those records
or to waive its walking rule for the third stage. Martin therefore
filed this action. A preliminary injunction entered by the District
Court made it possible for him to use a cart in the final stage of
the Q-School and as a competitor in the NIKE TOUR and PGA TOUR.
Although not bound by the injunction, and despite its support for
petitioner's position in this litigation, the USGA voluntarily
granted Martin a similar waiver in events that it sponsors,
including the U. S. Open.
III
In the District Court, petitioner moved for summary judgment on
the ground that it is exempt from coverage under Title III of the
ADA as a "private clu[b] or establishmen[t]," 10 or alternatively,
that the play areas of its tour competitions do not constitute
places of "public accommodation" within the scope of that Title.ll
The Magistrate Judge concluded that petitioner should be viewed as
a commercial enterprise operating in the entertainment industry for
the economic benefit of its members rather than as a private
doing with his life, and every coach, to my knowledge, and every
player wanted Casey in the tournament and they welcomed him
there.
"Q. Did anyone contend that that constituted an alteration of
the competition to the extent that it didn't constitute the game to
your level, the college level?
"A. Not at all, sir." App.208.
10 Title 42 U. S. C. § 12187 provides: "The provisions of this
subchapter shall not apply to private clubs or establishments
exempted from coverage under Title II of the Civil Rights Act of
1964 (42 U. S. C. § 2000-a(e)) or to religious organizations or
entities controlled by religious organizations, including places of
worship."
11 See § 12181(7).
670
club. Furthermore, after noting that the statutory definition of
public accommodation included a "golf course," 12 he rejected
petitioner's argument that its competitions are only places of
public accommodation in the areas open to spectators. The operator
of a public accommodation could not, in his view, "create private
enclaves within the facility ... and thus relegate the ADA to
hop-scotch areas." 984 F. Supp. 1320, 1326-1327 (Ore. 1998).
Accordingly, he denied petitioner's motion for summary
judgment.
At trial, petitioner did not contest the conclusion that Martin
has a disability covered by the ADA, or the fact "that his
disability prevents him from walking the course during a round of
golf." 994 F. Supp. 1242, 1244 (Ore. 1998). Rather, petitioner
asserted that the condition of walking is a substantive rule of
competition, and that waiving it as to any individual for any
reason would fundamentally alter the nature of the competition.
Petitioner's evidence included the testimony of a number of
experts, among them some of the greatest golfers in history. Arnold
Palmer,13 Jack Nicklaus,14 and Ken Venturi 15 explained that
fatigue can be
12 § 12181(7)(L).
13 "Q. And fatigue is one of the factors that can cause a golfer
at the PGA Tour level to lose one stroke or more?
"A. Oh, it is. And it has happened.
"Q. And can one stroke be the difference between winning and not
winning a tournament at the PGA Tour level?
"A. As I said, I've lost a few national opens by one stroke."
App. 177. 14 "Q. Mr. Nicklaus, what is your understanding of the
reason why in these competitive events ... that competitors are
required to walk the course?
"A. Well, in my opinion, physical fitness and fatigue are part
of the game of golf."
Id., at 190.
15 "Q. SO are you telling the court that this fatigue factor
tends to accumulate over the course of the four days of the
tournament?
"A. Oh definitely. There's no doubt.
"Q. Does this fatigue factor that you've talked about, Mr.
Venturi, affect the manner in which you-you perform as a
professional out on the golf course?
671
a critical factor in a tournament, particularly on the last day
when psychological pressure is at a maximum. Their testimony makes
it clear that, in their view, permission to use a cart might well
give some players a competitive advantage over other players who
must walk. They did not, however, express any opinion on whether a
cart would give Martin such an advantage.16
Rejecting petitioner's argument that an individualized inquiry
into the necessity of the walking rule in Martin's case would be
inappropriate, the District Court stated that it had "the
independent duty to inquire into the purpose of the rule at issue,
and to ascertain whether there can be a reasonable modification
made to accommodate plaintiff without frustrating the purpose of
the rule" and thereby fundamentally altering the nature of
petitioner's tournaments.
Id., at 1246. The judge found that
the purpose of the rule was to inject fatigue into the skill of
shotmaking, but that the fatigue injected "by walking the course
cannot be deemed significant under normal circumstances."
Id., at 1250. Furthermore, Martin presented evidence, and
the judge found, that even with the use of a cart, Martin must walk
over a mile during
"A. Oh, there's no doubt, again, but that, that fatigue does
play a big part. It will influence your game. It will influence
your shot-making. It will influence your decisions."
Id., at
236-237.
16 "Q. Based on your experience, do you believe that it would
fundamentally alter the nature of the competition on the PGA Tour
and the Nike Tour if competitors in those events were permitted to
use golf carts?
"A. Yes, absolutely.
"Q. Why do you say so, sir?
"A. It would-it would take away the fatigue factor in many ways.
It would-it would change the game.
"Q. Now, when you say that the use of carts takes away the
fatigue factor, it would be an aid, et cetera, again, as I
understand it, you are not testifying now about the plaintiff. You
are just talking in general terms?
"A. Yes, sir."
Id., at 238. See also
id., at
177-178 (Palmer);
id., at 191 (Nicklaus).
672
an is-hole round,17 and that the fatigue he suffers from coping
with his disability is "undeniably greater" than the fatigue his
able-bodied competitors endure from walking the course.
Id.,
at 1251. As the judge observed:
"[P]laintiff is in significant pain when he walks, and even when
he is getting in and out of the cart. With each step, he is at risk
of fracturing his tibia and hemorrhaging. The other golfers 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. To perceive that the cart puts him-with his
condition-at a competitive advantage is a gross distortion of
reality." Id., at 1251-1252.
As a result, the judge concluded that it would "not
fundamentally alter the nature of the PGA Tour's game to
accommodate him with a cart."
Id., at 1252. The judge
accordingly entered a permanent injunction requiring petitioner to
permit Martin to use a cart in tour and qualifying events.
On appeal to the Ninth Circuit, petitioner did not challenge the
District Court's rejection of its claim that it was exempt as a
"private club," but it renewed the contention that during a
tournament the portion of the golf course" 'behind the ropes' is
not a public accommodation because the public has no right to enter
it."
204 F.3d
994, 997 (2000). The Court of Appeals viewed that contention as
resting on the incorrect assumption that the competition among
participants was not itself public. The court first pointed out
that, as with a private university, "the fact that users of a
facility are highly selected does not mean that the facility cannot
be
17 "In the first place, he does walk while on the course-even
with a cart, he must move from cart to shot and back to the cart.
In essence, he still must walk approximately 25% of the course. On
a course roughly five miles in length, Martin will walk 1 Y4
miles." 994 F. Supp., at 1251.
673
a public accommodation."
Id., at 998.18 In its opinion,
the competition to enter the select circle of PGA TOUR and NIKE
TOUR golfers was comparable because "[a]ny member of the public who
pays a $3000 entry fee and supplies two letters of recommendation
may tryout in the qualifying school."
Id., at 999. The court
saw "no justification in reason or in the statute to draw a line
beyond which the performance of athletes becomes so excellent that
a competition restricted to their level deprives its situs of the
character of a public accommodation."
Ibid. Nor did it find
a basis for distinguishing between "use of a place of public
accommodation for pleasure and use in the pursuit of a living."
Ibid. Consequently, the Court of Appeals concluded that golf
courses remain places of public accommodation during PGA
tournaments.
Ibid.
On the merits, because there was no serious dispute about the
fact that permitting Martin to use a golf cart was both a
reasonable and a necessary solution to the problem of providing him
access to the tournaments, the Court of Appeals regarded the
central dispute as whether such permission would "fundamentally
alter" the nature of the PGA TOUR or NIKE TOUR. Like the District
Court, the Court of Appeals viewed the issue not as "whether use of
carts generally would fundamentally alter the competition, but
whether the use of a cart by Martin would do so."
Id., at
1001. That issue turned on "an intensively fact-based inquiry,"
and, the court concluded, had been correctly resolved by the trial
judge. In its words, "[a]ll that the cart does is permit Martin
access to a type of competition in which he otherwise could not
engage because of his disability."
Id., at 1000.
18 It explained: "For example, Title III includes in its
definition 'secondary, undergraduate, or post-graduate private
school[s].' 42 U. S. C. § 12181(7)(J). The competition to enter the
most elite private universities is intense, and a relatively select
few are admitted. That fact clearly does not remove the
universities from the statute's definition as places of public
accommodation." 204 F. 3d, at 998.
674
The day after the Ninth Circuit ruled in Martin's favor, the
Seventh Circuit came to a contrary conclusion in a case brought
against the USGA by a disabled golfer who failed to qualify for
"America's greatest-and most democratic-golf tournament, the United
States Open."
Olinger v.
United States Golf Assn.,
205 F.3d
1001 (2000).19 The Seventh Circuit endorsed the conclusion of
the District Court in that case that "the nature of the competition
would be fundamentally altered if the walking rule were eliminated
because it would remove stamina (at least a particular type of
stamina) from the set of qualities designed to be tested in this
competition."
Id., at 1006 (internal quotation marks
omitted). In the Seventh Circuit's opinion, the physical ordeals
endured by Ken Venturi and Ben Hogan when they walked to their Open
victories in 1964 and 1950 amply demonstrated the importance of
stamina in such a tournament.20 As an alternative basis for its
holding, the court also concluded that the ADA does not require the
USGA to bear "the administrative burdens of evaluating requests to
waive the walking rule and permit the use of a golf cart."
Id., at 1007.
Although the Seventh Circuit merely assumed that the ADA applies
to professional golf tournaments, and therefore did not disagree
with the Ninth on the threshold coverage issue, our grant of
certiorari, 530 U. S. 1306 (2000), encompasses that question as
well as the conflict between those courts.
IV
Congress enacted the ADA in 1990 to remedy widespread
discrimination against disabled individuals. In studying the need
for such legislation, Congress found that "historically, society
has tended to isolate and segregate individuals with
19 The golfer in the Seventh Circuit case, Ford Olinger, suffers
from bilateral avascular necrosis, a degenerative condition that
significantly hinders his ability to walk.
20 For a description of the conditions under which they played,
see
Olinger v.
United States Golf Assn., 205 F. 3d,
at 1006-1007.
675
disabilities, and, despite some improvements, such forms of
discrimination against individuals with disabilities continue to be
a serious and pervasive social problem." 42 U. S. C. § 12101(a)(2);
see § 12101(a)(3) ("[D]iscrimination against individuals with
disabilities persists in such critical areas as employment,
housing, public accommodations, education, transportation,
communication, recreation, institutionalization, health services,
voting, and access to public services"). Congress noted that the
many forms such discrimination takes include "outright intentional
exclusion" as well as the "failure to make modifications to
existing facilities and practices." § 12101(a)(5). After thoroughly
investigating the problem, Congress concluded that there was a
"compelling need" for a "clear and comprehensive national mandate"
to eliminate discrimination against disabled individuals, and to
integrate them "into the economic and social mainstream of American
life." S. Rep. No. 101-116, p. 20 (1989); H. R. Rep. No. 101-485,
pt. 2, p. 50 (1990).
In the ADA, Congress provided that broad mandate. See 42 U. S.
C. § 12101(b). In fact, one of the Act's "most impressive
strengths" has been identified as its "comprehensive character,"
Hearings on S. 933 before the Senate Committee on Labor and Human
Resources and the Subcommittee on the Handicapped, 101st Cong., 1st
Sess., 197 (1989) (statement of Attorney General Thornburgh), and
accordingly the Act has been described as "a milestone on the path
to a more decent, tolerant, progressive society,"
Board of
Trustees of Univ. of Ala. v.
Garrett, 531 U. S. 356, 375 (2001)
(KENNEDY, J., concurring). To effectuate its sweeping purpose, the
ADA forbids discrimination against disabled individuals in major
areas of public life, among them employment (Title I of the Act),21
public services (Title II),22 and public accommodations (Title
III).23 At issue now, as a threshold matter, is
2142 U. S. C. §§ 12111-12117. 22 §§ 12131-12165.
23 §§ 12181-12189.
676
the applicability of Title III to petitioner's golf tours and
qualifying rounds, in particular to petitioner's treatment of a
qualified disabled golfer wishing to compete in those events.
Title III of the ADA prescribes, as a "[g]eneral rule":
"No individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, or accommodations 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).
The phrase "public accommodation" is defined in terms of 12
extensive categories,24 which the legislative history indicates
"should be construed liberally" to afford people with disabili-
24 "(A) an inn, hotel, motel, or other place of lodging, except
for an establishment located within a building that contains not
more than five rooms for rent or hire and that is actually occupied
by the proprietor of such establishment as the residence of such
proprietor;
"(E) a restaurant, bar, or other establishment serving food or
drink; "(C) a motion picture house, theater, concert hall, stadium,
or other place of exhibition or entertainment;
"(D) an auditorium, convention center, lecture hall, or other
place of public gathering;
"(E) a bakery, grocery store, clothing store, hardware store,
shopping center, or other sales or rental establishment;
"(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop,
travel service, shoe repair service, funeral parlor, gas station,
office of an accountant or lawyer, pharmacy, insurance office,
professional office of a health care provider, hospital, or other
service establishment;
"(G) a terminal, depot, or other station used for specified
public
transportation;
"(R) a museum, library, gallery, or other place of display or
collection; "(I) a park, zoo, amusement park, or other place of
recreation;
"(J) a nursery, elementary, secondary, undergraduate, or
postgraduate private school, or other place of education;
"(K) a day care center, senior citizen center, homeless shelter,
food bank, adoption agency, or other social service center
establishment; and "(L) a gymnasium, health spa, bowling alley,
golf course, or other place of exercise or recreation." §
12181(7) (emphasis added).
677
ties "equal access" to the wide variety of establishments
available to the nondisabled.25
It seems apparent, from both the general rule and the
comprehensive definition of "public accommodation," that
petitioner's golf tours and their qualifying rounds fit comfortably
within the coverage of Title III, and Martin within its protection.
The events occur on "golf course[s]," a type of place specifically
identified by the Act as a public accommodation. § 12181(7)(L). In
addition, at all relevant times, petitioner "leases" and "operates"
golf courses to conduct its Q-School and tours. § 12182(a). As a
lessor and operator of golf courses, then, petitioner must not
discriminate against any "individual" in the "full and equal
enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations" of those courses.
Ibid.
Certainly, among the "privileges" offered by petitioner on the
courses are those of competing in the Q-School and playing in the
tours; indeed, the former is a privilege for which thousands of
individuals from the general public pay, and the latter is one for
which they vie. Martin, of course, is one of those individuals. It
would therefore appear that Title III of the ADA, by its plain
terms, prohibits petitioner from denying Martin equal access to its
tours on the basis of his disability. Cf.
Pennsylvania Dept. of
Corrections v.
Yeskey, 524 U. S. 206, 209 (1998)
(holding that text of Title II's prohibition of discrimination by
"public entities" against disabled individuals "unmistakably
includes State prisons and prisoners within its coverage").
Petitioner argues otherwise. To be clear about its position, it
does not assert (as it did in the District Court) that it is a
private club altogether exempt from Title Ill's coverage. In fact,
petitioner admits that its tournaments are conducted at places of
public accommodation.26 Nor does petitioner contend (as it did in
both the District Court and
25 S. Rep. No. 101-116, p. 59 (1989); H. R. Rep. No. 101-485,
pt. 2, p. 100 (1990).
26 Reply Brieffor Petitioner 1-2.
678
the Court of Appeals) that the competitors' area "behind the
ropes" is not a public accommodation, notwithstanding the status of
the rest of the golf course. Rather, petitioner reframes the
coverage issue by arguing that the competing golfers are not
members of the class protected by Title III of the ADA.27
According to petitioner, Title III is concerned with
discrimination against "clients and customers" seeking to obtain
"goods and services" at places of public accommodation, whereas it
is Title I that protects persons who work at such places.28 As the
argument goes, petitioner operates not a "golf course" during its
tournaments but a "place of exhibition or entertainment," 42 U. s.
C. § 12181(7)(C), and a professional golfer such as Martin, like an
actor in a theater production, is a provider rather than a consumer
of the entertainment that petitioner sells to the public. Martin
therefore cannot bring a claim under Title III because he is not
one of the"
'clients or customers of the covered public
accommodation.'" 29 Rather, Martin's claim of discrimination is
"job-related" 30 and could only be brought under Title I -but that
Title does not apply because he is an independent contractor (as
the District Court found) rather than an employee.
The reference to "clients or customers" that petitioner quotes
appears in 42 U. S. C. § 12182(b)(1)(A)(iv), which
27 Martin complains that petitioner's failure to make this exact
argument below precludes its assertion here. However, the Title III
coverage issue was raised in the lower courts, petitioner advanced
this particular argument in support of its position on the issue in
its petition for certiorari, and the argument was fully briefed on
the merits by both parties. Given the importance of the issue, we
exercise our discretion to consider it. See
Harris Trust and
Sav. Bank v.
Salomon Smith Barney Inc., 530 U. S. 238, 245-246,
n.2 (2000);
Carlson v.
Green, 446 U. S.14, 17, n. 2
(1980).
28 Brieffor Petitioner 10, 11.
29 Id., at 19 (quoting 42 U. S. C. §
12182(b)(I)(A)(iv)).
30 Brieffor Petitioner 15; see also id., at 16 (Martin's claim
"is nothing more than a straightforward
discrimination-in-the-workplace complaint").
679
states: "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 arrangement."
Clauses (i) through (iii) of the subparagraph prohibit public
accommodations from discriminating against a disabled "individual
or class of individuals" in certain ways 31 either directly or
indirectly through contractual arrangements with other entities.
Those clauses make clear on the one hand that their prohibitions
cannot be avoided by means of contract, while clause (iv) makes
clear on the other hand that contractual relationships will not
expand a public accommodation's obligations under the subparagraph
beyond its own clients or customers.
As petitioner recognizes, clause (iv) is not literally
applicable to Title Ill's general rule prohibiting discrimination
against disabled individuals.32 Title Ill's broad general rule
contains no express "clients or customers" limitation, § 12182(a),
and § 12182(b)(1)(A)(iv) provides that its limitation is only
"[f]or purposes of" the clauses in that separate subparagraph.
Nevertheless, petitioner contends that clause (iv)'s restriction of
the subparagraph's coverage to the clients or customers of public
accommodations fairly describes the scope of Title Ill's protection
as a whole.
We need not decide whether petitioner's construction of the
statute is correct, because petitioner's argument falters even on
its own terms. If Title Ill's protected class were limited to
"clients or customers," it would be entirely appropriate to
classify the golfers who pay petitioner $3,000 for the chance to
compete in the Q-School and, if successful, in the subsequent tour
events, as petitioner's clients or custom-
31 Clause (i) prohibits the denial of participation, clause (ii)
participation in unequal benefits, and clause (iii) the provision
of separate benefits.
32 Brief for Petitioner 20 (clause (iv) "applies directly just
to subsection 12182(b)"); Reply Brief for Petitioner 4, n. 1
(clause (iv) "does not apply directly to the general provision
prohibiting discrimination").
680
ers. In our view, petitioner's tournaments (whether situated at
a "golf course" or at a "place of exhibition or entertainment")
simultaneously offer at least two "privileges" to the public-that
of watching the golf competition and that of competing in it.
Although the latter is more difficult and more expensive to obtain
than the former, it is nonetheless a privilege that petitioner
makes available to members of the general public. In consideration
of the entry fee, any golfer with the requisite letters of
recommendation acquires the opportunity to qualify for and compete
in petitioner's tours. Additionally, any golfer who succeeds in the
open qualifying rounds for a tournament may play in the event. That
petitioner identifies one set of clients or customers that it
serves (spectators at tournaments) does not preclude it from having
another set (players in tournaments) against whom it may not
discriminate. It would be inconsistent with the literal text of the
statute as well as its expansive purpose to read Title Ill's
coverage, even given petitioner's suggested limitation, any less
broadly.33
33 Contrary to the dissent's suggestion, our view of the
Q-School does not make "everyone who seeks a job" at a public
accommodation, through "an open tryout" or otherwise, "a customer."
Post, at 697 (opinion of SCALIA, J.). Unlike those who
successfully apply for ajob at a place of public accommodation, or
those who successfully bid for a contract, the golfers who qualify
for petitioner's tours play at their own pleasure (perhaps, but not
necessarily, for prize money), and although they commit to playing
in at least 15 tournaments, they are not bound by any obligations
typically associated with employment. See,
e.g., App. 260
(trial testimony of PGA commissioner Timothy Finchem) (petitioner
lacks control over when and where tour members compete, and over
their manner of performance outside the rules of competition).
Furthermore, unlike athletes in "other professional sports, such as
baseball,"
post, at 697, in which players are employed by
their clubs, the golfers on tour are not employed by petitioner or
any related organizations. The record does not support the
proposition that the purpose of the Q-School "is to hire," ibid.,
rather than to narrow the field of participants in the sporting
events that petitioner sponsors at places of public
accommodation.
681
Our conclusion is consistent with case law in the analogous
context of Title II of the Civil Rights Act of 1964, 78 Stat. 243,
42 U. S. C. § 2000a
et seq. Title II of that Act prohibits
public accommodations from discriminating on the basis of race,
color, religion, or national origin. § 2000a(a). In Dan
iel
v.
Paul, 395
U. S. 298, 306 (1969), applying Title II to the Lake Nixon Club
in Little Rock, Arkansas, we held that the definition of a "place
of exhibition or entertainment," as a public accommodation, covered
participants "in some sport or activity" as well as "spectators or
listeners." We find equally persuasive two lower court opinions
applying Title II specifically to golfers and golf tournaments. In
Evans v.
Laurel Links, Inc., 261 F. Supp. 474, 477
(ED Va. 1966), a class action brought to require a commercial golf
establishment to permit black golfers to play on its course, the
District Court held that Title II "is not limited to spectators if
the place of exhibition or entertainment provides facilities for
the public to participate in the entertainment." 34 And in
Wesley v.
Savannah, 294 F. Supp. 698 (SD Ga. 1969),
the District Court found that a private association violated Title
II when it limited entry in a golf tournament on a municipal course
to its own members but permitted all (and only) white golfers who
paid the membership and entry fees to compete.35 These cases
support our conclusion that, as a public accommodation during its
tours and qualifying rounds, petitioner may not discriminate
against either spectators or competitors on the basis of
disability.
V
As we have noted, 42 U. S. C. § 12182(a) sets forth Title Ill's
general rule prohibiting public accommodations from
34 Title II of the Civil Rights Act of 1964 includes in its
definition of "public accommodation" a "place of exhibition or
entertainment" but does not specifically list a "golf course" as an
example. See 42 U. S. C. § 2000a(b).
35 Under petitioner's theory, Title II would not preclude it
from discriminating against golfers on racial grounds. App. 197;
Tr. of Oral Arg. 11-12.
682
discriminating against individuals because of their
disabilities. The question whether petitioner has violated that
rule depends on a proper construction of the term "discrimination,"
which is defined by Title III to include
"a failure to make reasonable modifications in policies,
practices, or procedures, when such modifications are necessary to
afford such goods, services, facilities, 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." §
12182(b)(2)(A)(ii) (emphasis added).
Petitioner does not contest that a golf cart is a reasonable
modification that is necessary if Martin is to play in its
tournaments. Martin's claim thus differs from one that might be
asserted by players with less serious afflictions that make walking
the course uncomfortable or difficult, but not beyond their
capacity. In such cases, an accommodation might be reasonable but
not necessary. In this case, however, the narrow dispute is whether
allowing Martin to use a golf cart, despite the walking requirement
that applies to the PGA TOUR, the NIKE TOUR, and the third stage of
the Q-School, is a modification that would "fundamentally alter the
nature" of those events.
In theory, a modification of petitioner's golf tournaments might
constitute a fundamental alteration in two different ways. It might
alter such an essential aspect of the game of golf that it would be
unacceptable even if it affected all competitors equally; changing
the diameter of the hole from three to six inches might be such a
modification.36 Alternatively, a less significant change that has
only a peripheral
36 Cf.
post, at 701 (SCALIA, J., dissenting) ("I suppose
there is some point at which the rules of a well-known game are
changed to such a degree that no reasonable person would call it
the same game").
683
impact on the game itself might nevertheless give a disabled
player, in addition to access to the competition as required by
Title III, an advantage over others and, for that reason,
fundamentally alter the character of the competition.37 We are not
persuaded that a waiver of the walking rule for Martin would work a
fundamental alteration in either sense.38
As an initial matter, we observe that the use of carts is not
itself inconsistent with the fundamental character of the game of
golf. From early on, the essence of the game has been
shotmaking-using clubs to cause a ball to progress from the teeing
ground to a hole some distance away with as few strokes as
possible.39 That essential aspect of the game
37 Accord,
post, at 703 (SCALIA, J., dissenting) ("The
statute seeks to assure that a disabled person's disability will
not deny him
equal access to (among other things)
competitive sporting events-not that his disability will not deny
him an
equal chance to win competitive sporting
events").
38 As we have noted, the statute contemplates three inquiries:
whether the requested modification is "reasonable," whether it is
"necessary" for the disabled individual, and whether it would
"fundamentally alter the nature of" the competition. 42 U. S. C. §
12182(b)(2)(A)(ii). Whether one question should be decided before
the others likely will vary from case to case, for in logic there
seems to be no necessary priority among the three. In routine
cases, the fundamental alteration inquiry may end with the question
whether a rule is essential. Alternatively, the specifics of the
claimed disability might be examined within the context of what is
a reasonable or necessary modification. Given the concession by
petitioner that the modification sought is reasonable and
necessary, and given petitioner's reliance on the fundamental
alteration provision, we have no occasion to consider the
alternatives in this case.
39 Golf is an ancient game, tracing its ancestry to Scotland,
and played by such notables as Mary Queen of Scots and her son
James. That shotmaking has been the essence of golf since early in
its history is reflected in the first recorded rules of golf,
published in 1744 for a tournament on the Leith Links in
Edinburgh:
"Articles & Laws in Playing at Golf
"1. You must Tee your Ball, within a Club's length of the
[previous] Hole. "2. Your Tee must be upon the Ground.
"3. You are not to change the Ball which you Strike off the Tee.
[Footnote 39 is
continued on p. 684]
684
is still reflected in the very first of the Rules of Golf, which
declares: "The Game of Golf consists in playing a ball from the
teeing ground into the hole by a
stroke or successive
strokes in accordance with the rules." Rule 1-1, Rules of Golf,
App. 104 (emphasis in original). Over the years, there have been
many changes in the players' equipment, in golf course design, in
the Rules of Golf, and in the method of transporting clubs from
hole to hole.40 Originally, so few clubs were used that each player
could carry them without
"4. You are not to remove, Stones, Bones or any Break Club for
the sake of playing your Ball, Except upon the fair Green/&
that only/ within a Club's length of your Ball.
"5. If your Ball comes among Water, or any Watery Filth, you are
at liberty to take out your Ball & bringing it behind the
hazard and Teeing it, you may play it with any Club and allow your
Adversary a Stroke for so getting out your Ball.
"6. If your Balls be found anywhere touching one another, You
are to lift the first Ball, till you play the last.
"7. At Holling, you are to play your Ball honestly for the Hole,
and, not to play upon your Adversary's Ball, not lying in your way
to the Hole.
"8. If you should lose your Ball, by its being taken up, or any
other way, you are to go back to the Spot, where you struck last
& drop another Ball, And allow your Adversary a Stroke for the
misfortune.
"9. No man at Holling his Ball, is to be allowed, to mark his
way to the Hole with his Club or, any thing else.
"10. If a Ball be stopp'd by any person, Horse, Dog, or any
thing else, The Ball so stop'd must be play'd where it lyes.
"11. If you draw your Club, in order to Strike & proceed so
far in the Stroke, as to be bringing down your Club; If then, your
Club shall break, in, any way, it is to be Accounted a Stroke.
"12. He, whose Balllyes farthest from the Hole is obliged to
play first. "13. Neither Trench, Ditch, or Dyke, made for the
preservation of the Links, nor the Scholar's Holes or the Soldier's
Lines, Shall be accounted a Hazard; But the Ball is to be taken
out/Teed/and play'd with any Iron Club." K. Chapman, Rules of the
Green 14-15 (1997).
40 See generally M. Campbell, The Random House International
Encyclopedia of Golf 9-57 (1991); Golf Magazine's Encyclopedia of
Golf 1-17 (2d ed.1993).
685
a bag. Then came golf bags, caddies, carts that were pulled by
hand, and eventually motorized carts that carried players as well
as clubs. "Golf carts started appearing with increasing regularity
on American golf courses in the 1950's. Today they are everywhere.
And they are encouraged. For one thing, they often speed up play,
and for another, they are great revenue producers." 41 There is
nothing in the Rules of Golf that either forbids the use of carts
or penalizes a player for using a cart. That set of rules, as we
have observed, is widely accepted in both the amateur and
professional golf world as the rules of the game.42 The walking
rule that is contained in petitioner's hard cards, based on an
optional condition buried in an appendix to the Rules of Golf,43 is
not an essential attribute of the game itself.
Indeed, the walking rule is not an indispensable feature of
tournament golf either. As already mentioned, petitioner permits
golf carts to be used in the SENIOR PGA TOUR, the open qualifying
events for petitioner's tournaments, the first two stages of the
Q-School, and, until 1997, the third stage of the Q-School as well.
See
supra, at 665-667. Moreover, petitioner allows the use
of carts during certain tournament rounds in both the PGA TOUR and
the NIKE
41 Olinger v.
United States Golf Assn., 205 F.3d
1001, 1003 (CA72000). 42 On this point, the testimony of the
immediate past president of the USGA (and one of petitioner's
witnesses at trial) is illuminating:
"Tell the court, if you would, Ms. Bell, who it is that plays
under these Rules of Golf ... ?
"A. Well, these are the rules of the game, so all golfers. These
are for all people who play the game.
"Q. SO the two amateurs that go out on the weekend to play golf
together would-would play by the Rules of Golf?
"A. We certainly hope so.
"Q. Or a tournament that is conducted at a private country club
for its members, is it your understanding that that would typically
be conducted under the Rules of Golf?
"A. Well, that's-that's right. If you want to play golf, you
need to play by these rules." App. 239.
43 See n. 3,
supra.
686
TOUR. See
supra, at 667, and n. 6. In addition, although
the USGA enforces a walking rule in most of the tournaments that it
sponsors, it permits carts in the Senior Amateur and the Senior
Women's Amateur championships.44
Petitioner, however, distinguishes the game of golf as it is
generally played from the game that it sponsors in the PGA TOUR,
NIKE TOUR, and (at least recently) the last stage of the
Q-School-golf at the "highest level." According to petitioner,
"[t]he goal of the highest-level competitive athletics is to assess
and compare the performance of different competitors, a task that
is meaningful only if the competitors are subject to identical
substantive rules."45 The waiver of any possibly
"outcome-affecting" rule for a contestant would violate this
principle and therefore, in petitioner's view, fundamentally alter
the nature of the highest level athletic event.46 The walking rule
is one such rule, petitioner submits, because its purpose is "to
inject the element of fatigue into the skill of shot-making,"47 and
thus its effect may be the critical loss of a stroke. As a
consequence, the reasonable modification Martin seeks would
fundamentally alter the nature of petitioner's highest level
tournaments even if he were the only person in the world who has
both the talent to compete in those elite events and a disability
sufficiently serious that he cannot do so without using a cart.
The force of petitioner's argument is, first of all, mitigated
by the fact that golf is a game in which it is impossible to
guarantee that all competitors will play under exactly the
44 Furthermore, the USGA's handicap system, used by over 4
million amateur golfers playing on courses rated by the USGA, does
not consider whether a player walks or rides in a cart, or whether
she uses a caddy or carries her own clubs. Rather, a player's
handicap is determined by a formula that takes into account the
average score in the 10 best of her 20 most recent rounds, the
difficulty of the different courses played, and whether or not a
round was a "tournament" event.
45 Brief for Petitioner 13.
46Id., at 37.
47994 F. Supp., at 1250.
687
same conditions or that an individual's ability will be the sole
determinant of the outcome. For example, changes in the weather may
produce harder greens and more head winds for the tournament leader
than for his closest pursuers. A lucky bounce may save a shot or
twO.48 Whether such happenstance events are more or less probable
than the likelihood that a golfer afflicted with
Klippel-Trenaunay-Weber Syndrome would one day qualify for the NIKE
TOUR and PGA TOUR, they at least demonstrate that pure chance may
have a greater impact on the outcome of elite golf tournaments than
the fatigue resulting from the enforcement of the walking rule.
Further, the factual basis of petitioner's argument is
undermined by the District Court's finding that the fatigue from
walking during one of petitioner's 4-day tournaments cannot be
deemed significant. The District Court credited the testimony of a
professor in physiology and expert on fatigue, who calculated the
calories expended in walking a golf course (about five miles) to be
approximately 500 calories"'nutritionally ... less than a Big
Mac.'" 994 F. Supp., at 1250. What is more, that energy is expended
over a 5-hour period, during which golfers have numerous intervals
for rest and refreshment. In fact, the expert concluded, because
golf is a low intensity activity, fatigue from the game is
primarily a psychological phenomenon in which stress and motivation
are the key ingredients. And even under conditions of severe heat
and humidity, the critical factor in fatigue is fluid loss rather
than exercise from walking.
Moreover, when given the option of using a cart, the majority of
golfers in petitioner's tournaments have chosen to
48 A drive by Andrew Magee earlier this year produced a result
that he neither intended nor expected. While the foursome ahead of
him was still on the green, he teed off on a 322-yard par four. To
his surprise, the ball not only reached the green, but also bounced
off Tom Byrum's putter and into the hole. Davis, Magee Gets Ace on
Par-4, Ariz. Republic, Jan. 26,2001, p. C16, 2001 WL 8510792.
688
walk, often to relieve stress or for other strategic reasons.49
As NIKE TOUR member Eric Johnson testified, walking allows him to
keep in rhythm, stay warmer when it is chilly, and develop a better
sense of the elements and the course than riding a cart. 50
Even if we accept the factual predicate for petitioner's
argument-that the walking rule is "outcome affecting" because
fatigue may adversely affect performance-its legal position is
fatally flawed. Petitioner's refusal to consider Martin's personal
circumstances in deciding whether to accommodate his disability
runs counter to the clear language and purpose of the ADA. As
previously stated, the ADA was enacted to eliminate discrimination
against "individuals" with disabilities, 42 U. S. C. § 12101(b)(1),
and to that end Title III of the Act requires without exception
that any "policies, practices, or procedures" of a public
accommodation be reasonably modified for disabled "individuals" as
necessary to afford access unless doing so would fundamentally
alter what is offered, § 12182(b)(2)(A)(ii). To comply with this
command, an individualized inquiry must be made to determine
whether a specific modification for a particular person's
disability would be reasonable under the circumstances as well as
necessary for that person, and yet at the same time not work a
fundamental alteration. See S. Rep. No. 101-116, at 61; H. R. Rep.
No. 101-485, pt. 2, at 102 (public accommodations "are required to
make decisions based on facts applicable to individuals"). Cf.
Sutton v.
United Air Lines, Inc., 527 U. S. 471, 483 (1999)
("[W]hether a person has a disability under the ADA is an
individualized inquiry").
49 That has been so not only in the SENIOR PGA TOUR and the
first two stages of the Q-School, but also, as Martin himself
noticed, in the third stage of the Q-School after petitioner
permitted everyone to ride rather than just waiving the walking
rule for Martin as required by the District Court's injunction.
50 App. 201. See also id., at 179-180 (deposition testimony of
Gerry Norquist); id., at 225-226 (trial testimony of Harry
Toscano).
689
To be sure, the waiver of an essential rule of competition for
anyone would fundamentally alter the nature of petitioner's
tournaments. As we have demonstrated, however, the walking rule is
at best peripheral to the nature of petitioner's athletic events,
and thus it might be waived in individual cases without working a
fundamental alteration. Therefore, petitioner's claim that all the
substantive rules for its "highest-level" competitions are
sacrosanct and cannot be modified under any circumstances is
effectively a contention that it is exempt from Title Ill's
reasonable modification requirement. But that provision carves out
no exemption for elite athletics, and given Title Ill's coverage
not only of places of "exhibition or entertainment" but also of
"golf course[s]," 42 U. s. C. §§ 12181(7)(C), (L), its application
to petitioner's tournaments cannot be said to be unintended or
unexpected, see §§ 12101(a)(1), (5). Even if it were, "the fact
that a statute can be applied in situations not expressly
anticipated by Congress does not demonstrate ambiguity. It
demonstrates breadth."
Pennsylvania Dept. of Corrections v.
Yeskey, 524 U. S., at 212 (internal quotation marks
omitted).51
51 Hence, petitioner's questioning of the ability of courts to
apply the reasonable modification requirement to athletic
competition is a complaint more properly directed to Congress,
which drafted the ADA's coverage broadly, than to us. Even more
misguided is JUSTICE SCALIA'S suggestion that Congress did not
place that inquiry into the hands of the courts at all. According
to the dissent, the game of golf as sponsored by petitioner is,
like all sports games, the sum of its "arbitrary rules," and no
one, including courts, "can pronounce one or another of them to be
'nonessential' if the rulemaker (here the PGA TOUR) deems it to be
essential."
Post, at 700. Whatever the merit of JUSTICE
SCALIA'S postmodern view of "What Is [Sport]," ibid., it is clear
that Congress did not enshrine it in Title III of the ADA. While
Congress expressly exempted "private clubs or establishments" and
"religious organizations or entities" from Title Ill's coverage, 42
U. S. C. § 12187, Congress made no such exception for athletic
competitions, much less did it give sports organizations
carte
blanche authority to exempt themselves from the fundamental
alteration inquiry by deeming any rule, no matter how peripheral to
the competition, to be
690
Under the ADA's basic requirement that the need of a disabled
person be evaluated on an individual basis, we have no doubt that
allowing Martin to use a golf cart would not fundamentally alter
the nature of petitioner's tournaments. As we have discussed, the
purpose of the walking rule is to subject players to fatigue, which
in turn may influence the outcome of tournaments. Even if the rule
does serve that purpose, it is an uncontested finding of the
District Court that Martin "easily endures greater fatigue even
with a cart than his able-bodied competitors do by walking." 994 F.
Supp., at 1252. The purpose of the walking rule is therefore not
compromised in the slightest by allowing Martin to use a cart. A
modification that provides an exception to a peripheral tournament
rule without impairing its purpose cannot be said to "fundamentally
alter" the tournament. What it can be said to do, on the other
hand, is to allow Martin the chance to qualify for, and compete in,
the athletic events petitioner offers to those members of the
public who have the skill and desire to enter. That is exactly what
the ADA requires.52 As a result, Martin's request for a waiver of
the walking rule should have been granted.
The ADA admittedly imposes some administrative burdens on the
operators of places of public accommodation that could be avoided
by strictly adhering to general rules and policies that are
entirely fair with respect to the able-bodied but that may
indiscriminately preclude access by qualified persons with
disabilities.53 But surely, in a case of this kind,
essential. In short, JUSTICE SCALIA'S reading of the statute
renders the word "fundamentally" largely superfluous, because it
treats the alteration of any rule governing an event at a public
accommodation to be a fundamental alteration.
52 On this fundamental point, the dissent agrees. See
post, at 699 ("The PGA TOUR cannot deny respondent
access to that game because of his disability").
53 However, we think petitioner's contention that the task of
assessing requests for modifications will amount to a substantial
burden is overstated. As Martin indicates, in the three years since
he requested the
691
Congress intended that an entity like the PGA not only give
individualized attention to the handful of requests that it might
receive from talented but disabled athletes for a modification or
waiver of a rule to allow them access to the competition, but also
carefully weigh the purpose, as well as the letter, of the rule
before determining that no accommodation would be tolerable.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, dissenting.
In my view today's opinion exercises a benevolent compassion
that the law does not place it within our power to impose. The
judgment distorts the text of Title III, the structure of the ADA,
and common sense. I respectfully dissent.
I
The Court holds that a professional sport is a place of public
accommodation and that respondent is a "custome[rJ" of
"competition" when he practices his profession.
Ante, at
679-680. It finds,
ante, at 680, that this strange
conclusion is compelled by the "literal text" of Title III of the
Americans with Disabilities Act of 1990 (ADA), 42 U. S. C. § 12101
et seq., by the "expansive purpose" of the ADA, and by the
fact that Title II of the Civil Rights Act of 1964, 42 U. S. C. §
2000a(a), has been applied to an amusement park and public golf
courses. I disagree.
The ADA has three separate titles: Title I covers employment
discrimination, Title II covers discrimination by
use of a cart, no one else has sued the PGA, and only two other
golfers (one of whom is Olinger) have sued the USGA for a waiver of
the walking rule. In addition, we believe petitioner's point is
misplaced, as nowhere in § 12182(b)(2)(A)(ii) does Congress limit
the reasonable modification requirement only to requests that are
easy to evaluate.
692
government entities, and Title III covers discrimination by
places of public accommodation. Title II is irrelevant to this
case. Title I protects only "employees" of employers who have 15 or
more employees, §§ 12112(a), 12111(5)(A). It does not protect
independent contractors. See,
e. g., Birchem v.
Knights
of Columbus, 116 F.3d
310, 312-313
(CA8 1997); cf.
Nationwide Mut. Ins.
Co. v.
Darden, 503 U. S. 318, 322323
(1992). Respondent claimed employment discrimination under Title I,
but the District Court found him to be an independent contractor
rather than an employee.
Respondent also claimed protection under § 12182 of Title III.
That section applies only to particular places and persons. The
place must be a "place of public accommodation," and the person
must be an "individual" seeking "enjoyment of the goods, services,
facilities, privileges, advantages, or accommodations" of the
covered place. § 12182(a). Of course a court indiscriminately
invoking the "sweeping" and "expansive" purposes of the ADA,
ante, at 675, 680, could argue that when a place of public
accommodation denied
any "individual," on the basis of his
disability,
anything that might be called a "privileg[e],"
the individual has a valid Title III claim. Cf.
ante, at
677. On such an interpretation, the employees and independent
contractors of every place of public accommodation come within
Title III: The employee enjoys the "privilege" of employment, the
contractor the "privilege" of the contract.
For many reasons, Title III will not bear such an
interpretation. The provision of Title III at issue here (§ 12182,
its principal provision) is a public-accommodation law, and it is
the traditional understanding of public-accommodation laws that
they provide rights for
customers. "At common law,
innkeepers, smiths, and others who made profession of a public
employment, were prohibited from refusing, without good reason, to
serve a customer."
Hurley v.
Irish-American Gay, Lesbian
and Bisexual Group of Boston, Inc., 515 U. S. 557, 571 (1995)
(internal quotation marks omitted). See also
693
Heart of Atlanta Motel, Inc. v.
United States,
379 U. S. 241
(1964). This understanding is clearly reflected in the text of
Title III itself. Section 12181(7) lists 12 specific types of
entities that qualify as "public accommodations," with a follow-on
expansion that makes it clear what the "enjoyment of the goods,
services, etc.," of those entities consists of-and it plainly
envisions that the person "enjoying" the "public accommodation"
will be a
customer. For example, Title III is said to cover
an "auditorium" or "other place of public gathering," §
12181(7)(D). Thus, "gathering" is the distinctive enjoyment derived
from an auditorium; the persons "gathering" at an auditorium are
presumably covered by Title III, but those contracting to clean the
auditorium are not. Title III is said to cover a "zoo" or "other
place of recreation," § 12181(7)(1). The persons "recreat[ingJ" at
a "zoo" are presumably covered, but the animal handlers bringing in
the latest panda are not. The one place where Title III
specifically addresses discrimination by places of public
accommodation through "contractual" arrangements, it makes clear
that discrimination against the other party to the contract is not
covered, but only discrimination against "clients or customers of
the covered public accommodation that enters into the contractual,
licensing or other arrangement." § 12182(b)(1)(A)(iv). And finally,
the regulations promulgated by the Department of Justice reinforce
the conclusion that Title Ill's protections extend only to
customers. "The purpose of the ADA's public accommodations
requirements," they say, "is to ensure accessibility to the goods
offered by a public accommodation." 28 CFR, ch. 1, pt. 36, App. B,
p. 650 (2000). Surely this has nothing to do with employees and
independent contractors.
If there were any doubt left that § 12182 covers only clients
and customers of places of public accommodation, it is eliminated
by the fact that a contrary interpretation would make a muddle of
the ADA as a whole. The words of Title III must be read "in their
context and with a view to their
694
place in the overall statutory scheme."
Davis v.
Michigan Dept. of Treasury, 489 U. S. 803, 809
(1989). Congress expressly excluded employers of fewer than 15
employees from Title 1. The mom-and-pop grocery store or laundromat
need not worry about altering the nonpublic areas of its place of
business to accommodate handicapped employees-or about the
litigation that failure to do so will invite. Similarly, since
independent contractors are not covered by Title I, the small
business (or the large one, for that matter) need not worry about
making special accommodations for the painters, electricians, and
other independent workers whose services are contracted for from
time to time. It is an entirely unreasonable interpretation of the
statute to say that these exemptions so carefully crafted in Title
I are entirely eliminated by Title III (for the many businesses
that are places of public accommodation) because employees and
independent contractors "enjoy" the employment and contracting that
such places provide. The only
distinctive feature of places
of public accommodation is that they accommodate the
public,
and Congress could have no conceivable reason for according the
employees and independent contractors of such businesses
protections that employees and independent contractors of other
businesses do not enjoy.
The United States apparently agrees that employee claims are not
cognizable under Title III, see Brief for United States as
Amicus Curiae 18-19, n. 17, but despite the implications of
its own regulations, see 28 CFR, ch. 1, pt. 36, App. B, at 650,
appears to believe (though it does not explicitly state) that
claims of independent contractors are cognizable. In a discussion
littered with entirely vague statements from the legislative
history, cf.
ante, at 674-675, the United States argues that
Congress presumably wanted independent contractors with private
entities covered under Title III because independent contractors
with governmental entities are covered by Title II, see Brief for
United States as
Amicus Curiae 18, and n. 17-a line of
reasoning
695
that does not commend itself to the untutored intellect. But
since the United States does not provide (and I cannot conceive of)
any possible construction of the
terms of Title III that
will exclude employees while simultaneously covering independent
contractors, its concession regarding employees effectively
concedes independent contractors as well. Title III applies only to
customers.
The Court, for its part, assumes that conclusion for the sake of
argument,
ante, at 679-680, but pronounces respondent to be
a "customer" of the PGA TOUR or of the golf courses on which it is
played. That seems to me quite incredible. The PGA TOUR is a
professional sporting event, staged for the entertainment of a live
and TV audience, the receipts from whom (the TV audience's
admission price is paid by advertisers) pay the expenses of the
tour, including the cash prizes for the winning golfers. The
professional golfers on the tour are no more "enjoying" (the
statutory term) the entertainment that the tour provides, or the
facilities of the golf courses on which it is held, than
professional baseball players "enjoy" the baseball games in which
they play or the facilities of Yankee Stadium. To be sure,
professional ballplayers
participate in the games, and
use the ballfields, but no one in his right mind would think
that they are
customers of the American League or of Yankee
Stadium. They are themselves the entertainment that the customers
pay to watch. And professional golfers are no different. It makes
not a bit of difference, insofar as their "customer" status is
concerned, that the remuneration for their performance (unlike most
of the remuneration for ballplayers) is not fixed but
contingent-viz., the purses for the winners in the various events,
and the compensation from product endorsements that consistent
winners are assured. The compensation of
many independent
contractors is contingent upon their success-real estate brokers,
for example, or insurance salesmen.
696
As the Court points out, the ADA specifically identifies golf
courses as one of the covered places of public accommodation. See §
12181(7)(L) ("a gymnasium, health spa, bowling alley, golf course,
or other place of exercise or recreation"); and the distinctive
"goo[d], servic[e], facilit[y], privileg[e], advantag[e], or
accommodatio[n]" identified by that provision as distinctive to
that category of place of public accommodation is "exercise or
recreation." Respondent did not seek to "exercise" or "recreate" at
the PGA TOUR events; he sought to make money (which is why he is
called a
professional golfer). He was not a customer
buying recreation or entertainment; he was a professional
athlete
selling it. That is the reason (among others) the
Court's reliance upon Civil Rights Act cases like
Daniel v.
Paul, 395 U.
S. 298 (1969), see
ante, at 681, is misplaced. A
professional golfer's practicing his profession is not comparable
to John Q. Public's frequenting "a 232-acre amusement area with
swimming, boating, sun bathing, picnicking, miniature golf, dancing
facilities, and a snack bar."
Daniel, supra, at 30l.
The Court relies heavily upon the Q-School. It says that
petitioner offers the golfing public the "privilege" of "competing
in the Q-School and playing in the tours; indeed, the former is a
privilege for which thousands of individuals from the general
public pay, and the latter is one for which they vie."
Ante,
at 677. But the Q-School is no more a "privilege" offered for the
general public's "enjoyment" than is the California Bar Exam.1 It
is a competition for entry into the PGA TOUR-an open tryout, no
different in principle from open casting for a movie or stage
production, or walk-on try-
1 The California Bar Exam is covered by the ADA, by the way,
because a separate provision of Title III applies to "examinations
... related to applications, licensing, certification, or
credentialing for secondary or post-secondary education,
professional, or trade purposes." 42 U. S. C. § 12189. If open
tryouts were "privileges" under § 12182, and participants in the
tryouts "customers," § 12189 would have been unnecessary.
697
outs for other professional sports, such as baseball. See,
e. g., Amateurs Join Pros for New Season of HBO's
"Sopranos," Detroit News, Dec. 22, 2000, p. 2 (20,000 attend open
casting for "The Sopranos"); Bill Zack, Atlanta Braves, Sporting
News, Feb. 6, 1995 (1,300 would-be players attended an open tryout
for the Atlanta Braves). It may well be that some amateur golfers
enjoy trying to make the grade, just as some amateur actors may
enjoy auditions, and amateur baseball players may enjoy open
tryouts (I hesitate to say that amateur lawyers may enjoy taking
the California Bar Exam). But the purpose of holding those tryouts
is not to provide entertainment; it is to hire. At bottom, open
tryouts for performances to be held at a place of public
accommodation are no different from open bidding on contracts to
cut the grass at a place of public accommodation, or open
applications for any job at a place of public accommodation. Those
bidding, those applying-and those trying out-are not converted into
customers. By the Court's reasoning, a business exists not only to
sell goods and services to the public, but to provide the
"privilege" of employment to the public; wherefore it follows, like
night the day, that everyone who seeks a job is a customer.2
2 The Court suggests that respondent is not an independent
contractor because he "play[s] at [his] own pleasure," and is not
subject to PGA TOUR control "over [his] manner of performance,"
ante, at 680, n. 33. But many independent
contractors-composers of movie music, portrait artists, script
writers, and even (some would say) plumbers-retain at least as much
control over when and how they work as does respondent, who agrees
to play in a minimum of 15 of the designated PGA TOUR events, and
to play by the rules that the PGA TOUR specifies. Cf.
Community
for Creative Non-Violence v.
Reid, 490 U. S. 730, 751-753
(1989) (discussing independent contractor status of a sculptor).
Moreover, although, as the Court suggests in the same footnote, in
rare cases a PGA TOUR winner will choose to forgo the prize money
(in order, for example, to preserve amateur status necessary for
continuing participation in college play) he is contractually
entitled to the prize money if he demands it, which is all
that a contractual relationship requires.
698
II
Having erroneously held that Title III applies to the
"customers" of professional golf who consist of its practitioners,
the Court then erroneously answers-or to be accurate simply
ignores-a second question. The ADA requires covered businesses to
make such reasonable modifications of "policies, practices, or
procedures" as are necessary to "afford" goods, services, and
privileges to individuals with disabilities; but it explicitly does
not require "modifications [that] would fundamentally alter the
nature" of the goods, services, and privileges. §
12182(b)(2)(A)(ii). In other words, disabled individuals must be
given
access to the same goods, services, and privileges
that others enjoy. The regulations state that Title III "does not
require a public accommodation to alter its inventory to include
accessible or special goods with accessibility features that are
designed for, or facilitate use by, individuals with disabilities."
28 CFR § 36.307 (2000); see also 28 CFR, ch. 1, pt. 36, App. B, at
650. As one Court of Appeals has explained:
"The common sense of the statute is that the content of the
goods or services offered by a place of public accommodation is not
regulated. A camera store may not refuse to sell cameras to a
disabled person, but it is not required to stock cameras specially
designed for such persons. Had Congress purposed to impose so
enormous a burden on the retail sector of the economy and so vast a
supervisory responsibility on the federal courts, we think it would
have made its intention clearer and would at least have imposed
some standards. It is hardly a feasible judicial function to decide
whether shoestores should sell single shoes to one-legged persons
and if so at what price, or how many Braille books the Borders or
Barnes and Noble bookstore chains should stock in each of their
stores." Doe v. Mutual of Omaha Ins. Co., 179 F.3d
557, 560 (CA7 1999).
699
Since this is so, even if respondent here is a consumer of the
"privilege" of the PGA TOUR competition, see
ante, at 677, I
see no basis for considering whether the rules of that competition
must be altered. It is as irrelevant to the PGA TOUR's compliance
with the statute whether walking is essential to the game of golf
as it is to the shoe store's compliance whether "pairness" is
essential to the nature of shoes. If a shoe store wishes to sell
shoes only in pairs it may; and if a golf tour (or a golf course)
wishes to provide only walkaround golf, it may. The PGA TOUR cannot
deny respondent
access to that game because of his
disability, but it need not provide him a game different (whether
in its essentials or in its details) from that offered to everyone
else.
Since it has held (or assumed) professional golfers to be
customers "enjoying" the "privilege" that consists of PGA TOUR
golf; and since it inexplicably regards the rules of PGA TOUR golf
as merely "policies, practices, or procedures" by which access to
PGA TOUR golf is provided, the Court must then confront the
question whether respondent's requested modification of the
supposed policy, practice, or procedure of walking would
"fundamentally alter the nature" of the PGA TOUR game, §
12182(b)(2)(A)(ii). The Court attacks this "fundamental alteration"
analysis by asking two questions: first, whether the "essence" or
an "essential aspect" of the sport of golf has been altered; and
second, whether the change, even if not essential to the game,
would give the disabled player an advantage over others and thereby
"fundamentally alter the character of the competition."
Ante, at 683. It answers no to both.
Before considering the Court's answer to the first question, it
is worth pointing out that the assumption which underlies that
question is false. Nowhere is it writ that PGA TOUR golf must be
classic "essential" golf. Why cannot the PGA TOUR, if it wishes,
promote a new game, with distinctive rules (much as the American
League promotes a game of baseball in which the pitcher's turn at
the plate can be
700
taken by a "designated hitter")? If members of the public do not
like the new rules-if they feel that these rules do not truly test
the individual's skill at "real golf" (or the team's skill at "real
baseball") they can withdraw their patronage. But the rules are the
rules. They are (as in all games) entirely arbitrary, and there is
no basis on which anyone-not even the Supreme Court of the United
States-can pronounce one or another of them to be "nonessential" if
the rule maker (here the PGA TOUR) deems it to be essential.
If one assumes, however, that the PGA TOUR has some legal
obligation to play classic, Platonic golf-and if one assumes the
correctness of all the other wrong turns the Court has made to get
to this point-then we Justices must confront what is indeed an
awesome responsibility. It has been rendered the solemn duty of the
Supreme Court of the United States, laid upon it by Congress in
pursuance of the Federal Government's power "[t]o regulate Commerce
with foreign Nations, and among the several States," U. S. Const.,
Art. I, § 8, cl. 3, to decide What Is Golf. I am sure that the
Framers of the Constitution, aware of the 1457 edict of King James
II of Scotland prohibiting golf because it interfered with the
practice of archery, fully expected that sooner or later the paths
of golf and government, the law and the links, would once again
cross, and that the judges of this august Court would some day have
to wrestle with that age-old jurisprudential question, for which
their years of study in the law have so well prepared them: Is
someone riding around a golf course from shot to shot
really
a golfer? The answer, we learn, is yes. The Court ultimately
concludes, and it will henceforth be the Law of the Land, that
walking is not a "fundamental" aspect of golf.
Either out of humility or out of self-respect (one or the other)
the Court should decline to answer this incredibly difficult and
incredibly silly question. To say that something is "essential" is
ordinarily to say that it is necessary to the achievement of a
certain object. But since it is the very
701
nature of a game to have no object except amusement (that is
what distinguishes games from productive activity), it is quite
impossible to say that any of a game's arbitrary rules is
"essential." Eighteen-hole golf courses, lO-foot-high basketball
hoops, gO-foot baselines, lOO-yard football fields-all are
arbitrary and none is essential. The only support for any of them
is tradition and (in more modern times) insistence by what has come
to be regarded as the ruling body of the sport-both of which
factors support the PGA TOUR's position in the present case. (Many,
indeed, consider walking to be
the central feature of the
game of golf-hence Mark Twain's classic criticism of the sport: "a
good walk spoiled.") I suppose there is some point at which the
rules of a wellknown game are changed to such a degree that no
reasonable person would call it the same game. If the PGA TOUR
competitors were required to dribble a large, inflated ball and put
it through a round hoop, the game could no longer reasonably be
called golf. But this criterion-destroying recognizability as the
same generic game-is surely not the test of "essentialness" or
"fundamentalness" that the Court applies, since it apparently
thinks that merely changing the diameter of the cup might
"fundamentally alter" the game of golf,
ante, at 682.
Having concluded that dispensing with the walking rule would not
violate federal-Platonic "golf" (and, implicitly, that it is
federal-Platonic golf, and no other, that the PGA TOUR can insist
upon), the Court moves on to the second part of its test: the
competitive effects of waiving this nonessential rule. In this part
of its analysis, the Court first finds that the effects of the
change are "mitigated" by the fact that in the game of golf
weather, a "lucky bounce," and "pure chance" provide different
conditions for each competitor and individual ability may not "be
the sole determinant of the outcome."
Ante, at 687. I guess
that is why those who follow professional golfing consider Jack
Nicklaus the
luckiest golfer of all time, only to be
challenged of late by
702
the phenomenal
luck of Tiger Woods. The Court's
empiricism is unpersuasive. "Pure chance" is randomly distributed
among the players, but allowing respondent to use a cart gives him
a "lucky" break every time he plays. Pure chance also only matters
at the margin-a stroke here or there; the cart substantially
improves this respondent's competitive prospects beyond a couple of
strokes. But even granting that there are significant nonhuman
variables affecting competition, that fact does not justify adding
another variable that always favors one player.
In an apparent effort to make its opinion as narrow as possible,
the Court relies upon the District Court's finding that even with a
cart, respondent will be at least as fatigued as everyone else.
Ante, at 690. This, the Court says,
proves that
competition will not be affected. Far from thinking that reliance
on this finding cabins the effect of to day's opinion, I think it
will prove to be its most expansive and destructive feature.
Because step one of the Court's two-part inquiry into whether a
requested change in a sport will "fundamentally alter [its]
nature," § 12182(b)(2)(A)(ii), consists of an utterly unprincipled
ontology of sports (pursuant to which the Court is not even sure
whether golf's "essence" requires a 3-inch hole), there is every
reason to think that in future cases involving requests for special
treatment by would-be athletes the second step of the analysis will
be determinative. In resolving that second step-determining whether
waiver of the "nonessential" rule will have an impermissible
"competitive effect"-by measuring the athletic capacity of the
requesting individual, and asking whether the special dispensation
would do no more than place him on a par (so to speak) with other
competitors, the Court guarantees that future cases of this sort
will have to be decided on the basis of individualized factual
findings. Which means that future cases of this sort will be
numerous, and a rich source of lucrative litigation. One can
envision the parents of a Little
703
League player with attention deficit disorder trying to convince
a judge that their son's disability makes it at least 25% more
difficult to hit a pitched ball. (If they are successful, the only
thing that could prevent a court order giving the kid four strikes
would be a judicial determination that, in baseball, three strikes
are metaphysically necessary, which is quite absurd.)
The statute, of course, provides no basis for this
individualized analysis that is the Court's last step on a long and
misguided journey. The statute seeks to assure that a disabled
person's disability will not deny him
equal access to (among
other things) competitive sporting events-not that his disability
will not deny him an
equal chance to win competitive
sporting events. The latter is quite impossible, since the very
nature of competitive sport is the measurement, by uniform
rules, of unevenly distributed excellence. This unequal
distribution is precisely what determines the winners and
losers-and artificially to "even out" that distribution, by giving
one or another player exemption from a rule that emphasizes his
particular weakness, is to destroy the game. That is why the
"handicaps" that are customary in social games of golf-which, by
adding strokes to the scores of the good players and subtracting
them from scores of the bad ones, "even out" the varying
abilities-are
not used in professional golf. In the Court's
world, there is one set of rules that is "fair with respect to the
able-bodied" but "individualized" rules, mandated by the ADA, for
"talented but disabled athletes."
Ante, at 691. The ADA
mandates no such ridiculous thing. Agility, strength, speed,
balance, quickness of mind, steadiness of nerves, intensity of
concentration-these talents are not evenly distributed. No wildeyed
dreamer has ever suggested that the managing bodies of the
competitive sports that test precisely these qualities should try
to take account of the uneven distribution of God-
704
given gifts when writing and enforcing the rules of competition.
And I have no doubt Congress did not authorize misty-eyed judicial
supervision of such a revolution.
***
My belief that to day's judgment is clearly in error should not
be mistaken for a belief that the PGA TOUR clearly
ought not
allow respondent to use a golf cart.
That is a close
question, on which even those who compete in the PGA TOUR are
apparently divided; but it is a
different question from the
one before the Court. Just as it is a different question whether
the Little League
ought to give disabled youngsters a fourth
strike, or some other waiver from the rules that makes up for their
disabilities. In both cases, whether they
ought to do so
depends upon (1) how central to the game that they have organized
(and over whose rules they are the master) they deem the waived
provision to be, and (2) how competitive-how strict a test of raw
athletic ability in all aspects of the competition-they want their
game to be. But whether Congress has said they
must do so
depends upon the answers to the legal questions I have discussed
above-not upon what this Court sententiously decrees to be
"'decent, tolerant, [and] progressive,'"
ante, at 675
(quoting
Board of Trustees of Univ. of Ala. v.
Garrett, 531
U. S. 356, 375 (2001) (KENNEDY, J., concurring)).
And it should not be assumed that to day's decent, tolerant, and
progressive judgment will, in the long run, accrue to the benefit
of sports competitors with disabilities. Now that it is clear
courts will review the rules of sports for "fundamentalness,"
organizations that value their autonomy have every incentive to
defend vigorously the necessity of every regulation. They may still
be second-guessed in the end as to the Platonic requirements of the
sport, but they will
assuredly lose if they have at all
wavered in their enforcement. The lesson the PGA TOUR and other
sports organizations should take from this case is to make sure
that the same written
705
rules are set forth for all levels of play, and never
voluntarily to grant any modifications. The second lesson is to end
open tryouts. I doubt that, in the long run, even disabled athletes
will be well served by these incentives that the Court has
created.
Complaints about this case are not "properly directed to
Congress,"
ante, at 689, n. 51. They are properly directed
to this Court's Kafkaesque determination that professional sports
organizations, and the fields they rent for their exhibitions, are
"places of public accommodation" to the competing athletes, and the
athletes themselves "customers" of the organization that pays them;
its Alice in Wonderland determination that there are such things as
judicially determinable "essential" and "nonessential" rules of a
made-up game; and its Animal Farm determination that fairness and
the ADA mean that everyone gets to play by individualized rules
which will assure that no one's lack of ability (or at least no
one's lack of ability so pronounced that it amounts to a
disability) will be a handicap. The year was 2001, and "everybody
was finally equal." K. Vonnegut, Harrison Bergeron, in Animal Farm
and Related Readings 129 (1997).
Comments
Be the first to comment
Leave a Comment