The first decade following the passage of the Americans with Disabilities Act (ADA) has seen much litigation in the areas of gaining access to a job, to City Hall, to the Courthouse, and other necessary services to live. Persons with disabilities are now reaching beyond those very important areas to seek equal treatment regarding sports and recreation.  The first case to reach the Supreme Court in that regard is the Casey Martin case.  In view of recent Supreme Court decisions involving the ADA, the holding in the Martin case, issued on Tuesday, May 29th, was surprising and very positive.  The U.S. Supreme Court held that the Professional Golf Association (PGA), cannot deny Casey Martin the privilege to play in their tournaments simply because he uses a golf cart. They ruled that his use of a golf cart does not fundamentally alter the game of golf even though other players in this tournament must walk.

The PGA sponsors three tours.  While players can gain admission to these tours in various ways, it is usually done by qualifying through a three-stage competition known as the Q-School.  Golfers can enter this competition by paying a $3,000 fee and submitting two reference letters from PGA members.  Golfers are not precluded from using golf carts during the first two stages of the Q-School competition, but are precluded from doing so at the third and final stage.

Casey Martin, now 28 years old, has had a very successful career in golf since the age of 15.  Despite his disability, Martin has qualified in several competitions.  Casey Martin has a permanent and degenerative condition called Klippel-Trenaunay-Weber Syndrome.  It is a degenerative circulatory disorder that obstructs the flow of blood from his right leg to his heart.  His right leg has already atrophied.  He still has limited ability to walk, but too much walking causes pain, fatigue, and anxiety.  In addition, too much walking can cause him to have life-threatening blood clots, or put him at high risk of fracturing his tibia so severely that amputation of his leg might be required.  Throughout his
golfing career, Martin has always used a cart.  Martin submitted letters from his doctor to the PGA, indicating why it was necessary for him to use a cart during the third stage of the Q-School competition.  The PGA denied his request to use a cart.

In response to the PGA’s refusal to let him use a cart, Martin filed suit in Oregon District Court alleging that the PGA was violating Title III of the ADA by not modifying their rule regarding the use of carts so that he could continue to compete to qualify for the PGA tournament. Martin alleged that their unwillingness to modify their rules regarding the third stage of the Q-School competition resulted in discrimination against him because of his disability. The two issues to be decided by the Court were:  A)  Do the PGA’s golf tournaments constitute a public accommodation for purposes of the ADA?  B)  If so, can the PGA successfully raise the defense that allowing Martin to use the cart in this third stage of Q-School competition is a fundamental alteration of the game and therefore not required by the ADA? The District Court determined that the PGA did constitute a public accommodation for purposes of the ADA, and that Martin’s use of a cart would not fundamentally alter the game of golf.

The PGA Arguments

The PGA argued at the District Court level that it was not a public accommodation, but a private club with a select membership not open to the public.  Private clubs are exempt from coverage under the ADA.  In case the Court didn’t buy its “private club” argument, the PGA made an alternate argument  that the golf tournaments constituted a public accommodation only in terms of providing entertainment to spectators, and did not constitute a public accommodation with regard to the participation of players.  In other words, the PGA had to make the sport accessible to spectators but not to players.  The PGA argued that the portion of the golf course “behind the ropes” was not a public accommodation because the general public had no right to enter the area.

The District Court held that any member of the public can enter the Q-School competition if they have the $3,000 fee and two reference letters from PGA members.  Thus, the membership is not selective and the PGA is not a private club.  The District Court further held that the PGA constituted a public accommodation as it was a “commercial enterprise operating in the entertainment industry for the economic benefit of its members.” Thus, both spectators and players were protected from discrimination under Title III of the ADA, and the PGA was a public accommodation for purposes of the ADA.

The District Court then reviewed a great deal of evidence regarding whether or not walking the golf course was an essential part of the game.  If it were found to be an essential element of the game, then allowing Martin to use a cart might constitute a “fundamental alteration” of the game.  Public accommodations are not required to modify rules and procedures if such modifications fundamentally alter the program itself.  The Court ultimately accepted the testimony of Martin’s expert that walking the golf course did not inject physical fatigue into the game for golfers without disabilities.  The expert testified that the main elements injecting fatigue and stress into the game were the mental efforts it took to plot strategy and time shots.  The Court credited testimony that the amount of fatigue Martin suffered even using a cart was greater than the fatigue others had while walking the course.

Testimony to the Court indicated that Martin had no extra advantages by using the cart.  Golfers, including Martin, testified that they would rather walk than use a cart, that they did not believe it gave them an extra advantage because they were more in control of the ball when walking.  Ultimately, the Court determined that the essential element of the game was moving a golf ball from the tee into the hole using as few shots as possible.  Thus, Martin’s use of the cart did not constitute a fundamental alteration of the game.  The District Court entered a permanent injunction ordering the PGA to let Martin play using a cart.  The PGA appealed the ruling, and the Ninth Circuit Court of Appeals agreed with
the District Court on all of the essentials of the case, and affirmed the District Court’s decision and its order that Martin be allowed to use a cart when playing in PGA tournaments.

Within the same week that the Ninth Circuit released its decision upholding Martin’s right to play golf using a cart, the Seventh Circuit Court of Appeals, in Ollinger vs. USGA, reached the opposite conclusion with regard to another golfer with disabilities who was suing the USGA because it would not let him use a cart in tournaments.  The Seventh Circuit did not dispute that the USGA constituted a public accommodation for purposes of the ADA. The Court asserted, however, that requiring the USGA to review individual applications for a waiver from the rule that everyone must walk and not use carts constituted an administrative burden that the USGA shouldn’t have to bear.  The Court held that instituting a uniform neutral rule would remove that administrative burden.  The Court also held that granting a waiver of the walking rule and allowing Ollinger to use a cart fundamentally altered the game of golf.  When two conflicting appellate decisions come about, the U.S. Supreme Court will often agree to review the issue if someone appeals. The PGA in the Casey Martin case did appeal to the U.S. Supreme Court.

The PGA introduced a new argument this time to explain why it was not a public accommodation.  It argued that the PGA Tournament, and the golf course leased for such tournaments, were places of exhibition and entertainment, not unlike a theater.  While spectators, or audience members, were protected by Title III of the ADA, players were really independent contractors and providers of the entertainment of the tournaments, not unlike actors.  Thus, only spectators, or customers, must be afforded the advantages and privileges of a public accommodation.  The Supreme Court rejected this argument saying that players were not independent contractors but were, in fact, customers, who paid the PGA a fee for the privilege of participating in the tournament.  If they were winners, they might get financial rewards, including advertising contracts on television, but that did not make them employees or independent contractors employed by the PGA. Thus, the court affirmed that players are covered by the public accommodation provisions of the ADA.  The Court further reaffirmed, using the same arguments accepted by the lower Courts, that allowing Martin to use a cart did not
fundamentally alter the game.

The Court then went on to address the administrative burden defense raised by the Seventh Circuit in Ollinger even though it had not been raised in Martin.  The Court said that the few applications the PGA would get from qualified applicants who would be precluded from playing because of their disabilities did not rise to the level of an undue administrative burden. The Court further said that athletic tournament sponsors were required to consider the individual circumstances of a case to determine whether a specific modification for the person’s disability would be reasonable, necessary for the person’s participation, and would not fundamentally alter the nature of the game. The Court said that failure to do this individualized analysis, and unwillingness to consider modifying a rule might well cause discrimination against persons with disabilities and certainly did not fall within the spirit of the law as Congress intended it when they passed the ADA.

A Win For the Disability Community

This decision is definitely a win for the disability community.  We can assume that more persons with disabilities will seek inclusion in sporting events, in contests of all sorts.  It is the first recognition by this Court that persons with disabilities have the right to participate in sporting events and in recreational opportunities available to persons without disabilities.  The Court clearly intended, however, that this be a narrow ruling and assumes that there will be very few persons who are talented enough to compete in elite athletic events, and who have disabilities severe enough to preclude their participation without modifying a rule.  For example, the Court advises that discomfort when walking would not constitute a disability severe enough to qualify a person for such rule modifications.

Reviewing the dissent in this case reminds us that we must continue to be watchful.  The dissenting opinion was written by Justice Scalia and was joined by Justice Thomas.  Justice Scalia said in his dissent that the Court had made its decision out of “compassion” rather than reason.  Justice Scalia believes that people with disabilities need only be allowed to participate in sporting events if they can do so without any modification of the rules, and that such events are defined as public accommodations only for the spectators of such events.  Justice Scalia argued that this decision will lead to a plethora of cases, perhaps even to the parents of a Little Leaguer with attention deficit disorder arguing that their child, because it took him more time or concentration to hit a ball, should be allowed four strikes instead of three.

People with disabilities must keep in mind that we are now in a new administration.  President Bush will probably have the opportunity in the next four years to appoint one or two Supreme Court Justices as other Justices on the Court retire.  President Bush has indicated that Justices Scalia and Thomas represent the model for the kind of Justice he would appoint to the Court.  This could lead to a complete control of the Court by conservative activists intent on re-writing Civil Rights laws.  We must be constantly vigilant and protest mightily the appointment of others with such conservative and misguided views to the Court as those expressed in the most recent dissent.

Kathy Hagen is a staff attorney with the Minnesota Disability Law Center