|||SUPREME COURT OF THE UNITED STATES
|||May 29, 2001
|||PGA TOUR, INC., PETITIONER
|||SYLLABUS BY THE COURT
|||OCTOBER TERM, 2000
|||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 III'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 shot-making, but that the fatigue injected by walking a golf course cannot
be deemed significant under normal 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.
|||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 III'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 III'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 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.
|||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 shot-making. 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 rule that
does not impair its purpose cannot be said to fundamentally alter the nature
of the athletic event. Pp. 19-29.
|||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.
|||Court Below: 204 F. 3d 994
|||The opinion of the court was delivered by: Justice Stevens
|||532 U. S. ____ (2001)
|||On Writ Of Certiorari To The United States Court Of Appeals For The Ninth
|||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 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.
|||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*fn1;
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 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.*fn2
|||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.*fn3
|||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 TOUR and NIKE TOUR require
players to walk the golf course during tournaments, but not during open
qualifying rounds.*fn4 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.*fn5
|||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 man-made 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
|||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.
|||Casey Martin is a talented golfer. As an amateur, he won 17 Oregon Golf
Association junior events before he was 15, 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).*fn7
Since birth he has been afflicted with Klippel-Trenaunay-Weber 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.*fn8 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.*fn9
|||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.
|||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],"*fn10
or alternatively, that the play areas of its tour competitions do not constitute
places of "public accommodation" within the scope of that Title.*fn11
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 club. Furthermore, after noting
that the statutory definition of public accommodation included a "golf
course,"*fn12 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
|||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,*fn13
Jack Nicklaus,*fn14 and Ken Venturi*fn15
explained that fatigue can be 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.*fn16
|||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 shot-making, 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 an 18-hole round,*fn17
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 a public accommodation." Id., at 998.*fn18
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
try out 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.
|||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).*fn19
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.*fn20
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.
|||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 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
|||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),*fn21
public services (Title II),*fn22 and
public accommodations (Title III).*fn23
At issue now, as a threshold matter, is 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,*fn24 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.*fn25
|||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 III's coverage. In fact, petitioner admits that its tournaments
are conducted at places of public accommodation.*fn26
Nor does petitioner contend (as it did in both the District Court and 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.*fn27
|||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.*fn28 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.' "*fn29
Rather, Martin's claim of discrimination is "job-related"*fn30
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 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*fn31
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
III's general rule prohibiting discrimination against disabled individuals.*fn32
Title III'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 III'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 III'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 customers. 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 III's
coverage, even given petitioner's suggested limitation, any less broadly.*fn33
|||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
Daniel 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."*fn34
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.*fn35 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.
|||As we have noted, 42 U. S. C. §12182(a) sets forth Title III's general
rule prohibiting public accommodations from 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
|||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.*fn36
Alternatively, 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, for that reason, fundamentally alter the character of the competition.*fn37
We are not persuaded that a waiver of the walking rule for Martin would
work a fundamental alteration in either sense.*fn38
|||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 shot-making -- using clubs to cause a ball to progress
from the teeing ground to a hole some distance away with as few strokes
as possible.*fn39 That essential aspect
of the game 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 (italics 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.*fn40 Originally,
so few clubs were used that each player could carry them without 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."*fn41 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.*fn42 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,*fn43
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 2-4. Moreover, petitioner allows the
use of carts during certain tournament rounds in both the PGA TOUR and the
NIKE TOUR. See supra, at 4, 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.*fn44
|||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."*fn45
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.*fn46
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,"*fn47
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 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.*fn48 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 walk, often to relieve stress
or for other strategic reasons.*fn49
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.*fn50
|||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").
|||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 III's reasonable modification
requirement. But that provision carves out no exemption for elite athletics,
and given Title III'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).*fn51
|||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.*fn52 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.*fn53 But surely,
in a case of this kind, 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
|||The Court holds that a professional sport is a place of public accommodation
and that respondent is a "custome[r]" of "competition"
when he practices his profession. Ante, at 17. It finds, ante, at 18, 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 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, 322-323 (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 13, 18, 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 14. 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 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)(I). The persons "recreat[ing]"
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 III'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 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 I. 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, p. 650 (2000), 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 12, 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 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 17, 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.
|||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 18-19, 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 301.
|||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 14-15. But the Q-School is no more a "privilege"
offered for the general public's "enjoyment" than is the California
Bar Exam.*fn54 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 tryouts 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.*fn55
|||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, p. 650 (2000).
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).
|||Since this is so, even if respondent here is a consumer of the "privilege"
of the PGA TOUR competition, see ante, at 14, 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 walk-around 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 20-21. 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 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 rulemaker (here the PGA TOUR) deems it to
|||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 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, 10-foot-high basketball hoops, 90-foot baselines, 100-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 well-known 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 20.
|||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 25.
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 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 28. This, the Court
says, proves that competition will not be affected. Far from thinking that
reliance on this finding cabins the effect of today'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 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 29. 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 wild-eyed 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-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 today'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 13 (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 today'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 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 27-28, 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).
|||*fn1 After the trial of the case, the
name of the NIKE TOUR was changed to the Buy.com TOUR.
|||*fn2 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.
|||*fn3 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.
|||*fn4 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.
|||*fn5 994 F. Supp. 1242, 1251 (Ore. 1998).
|||*fn6 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).
|||*fn7 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 ... ."
|||*fn8 Before then, even when Martin was
in extreme pain, and was offered a cart, he declined. Tr. 564-565.
|||*fn9 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 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."
|||*fn10 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."
|||*fn11 See §12181(7).
|||*fn13 "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.
|||*fn14 "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
|||*fn15 "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? "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.
|||*fn16 "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).
|||*fn17 "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 11/4 miles." 994 F. Supp., at 1251.
|||*fn18 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,
|||*fn19 The golfer in the Seventh Circuit
case, Ford Olinger, suffers from bilateral avascular necrosis, a degenerative
condition that significantly hinders his ability to walk.
|||*fn20 For a description of the conditions
under which they played, see Olinger v. United States Golf Assn., 205 F.
3d, at 1006-1007.
|||*fn21 42 U. S. C. §§12111-12117.
|||*fn24 "(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; "(B) 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; "(H) 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
|||*fn25 S. Rep. No. 101-116, at 59;
H. R. No. 101-485, pt. 2, at 100.
|||*fn26 Reply Brief for Petitioner 1-2.
|||*fn27 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).
|||*fn28 Brief for Petitioner 10, 11.
|||*fn29 Id., at 19 (quoting 42 U. S.
|||*fn30 Brief for Petitioner 15; see
also id., at 16 (Martin's claim "is nothing more than a straightforward
|||*fn31 Clause (i) prohibits the denial
of participation, clause (ii) participation in unequal benefits, and clause
(iii) the provision of separate benefits.
|||*fn32 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").
|||*fn33 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 7 (opinion of Scalia, J.). Unlike those
who successfully apply for a job 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 7, 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.
|||*fn34 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).
|||*fn35 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.
|||*fn36 Cf. post, at 11 (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").
|||*fn37 Accord, post, at 13 (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").
|||*fn38 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.
|||*fn39 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 shot-making 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. "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 Ball lyes 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).
|||*fn40 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).
|||*fn41 Olinger v. United States Golf
Assn., 205 F. 3d 1001, 1003 (CA7 2000).
|||*fn42 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.
|||*fn43 See n. 3, supra.
|||*fn44 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"
|||*fn45 Brief for Petitioner 13.
|||*fn46 Id., at 37.
|||*fn47 994 F. Supp., at 1250.
|||*fn48 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.
|||*fn49 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.
|||*fn50 App. 201. See also id., at 179-180
(deposition testimony of Gerry Norquist); id., at 225-226 (trial testimony
of Harry Toscano).
|||*fn51 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 10-11. Whatever the
merit of Justice Scalia's postmodern view of "What Is [Sport],"
post, at 10, 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 III'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 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.
|||*fn52 On this fundamental point, the
dissent agrees. See post, at 9 ("The PGA TOUR cannot deny respondent
access to that game because of his disability").
|||*fn53 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 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.
|||*fn54 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.
|||*fn55 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 18 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
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