- The Washington Times - Wednesday, January 17, 2001

Affirmative action may be coming to the playing fields. The United States Supreme Court hears arguments today in PGA Tour vs. Martin, a case which asks the Supreme Court to decide whether the Americans With Disabilities Act (ADA) applies to professional sports. Common sense suggests that laws which require accommodation of disabled persons should not apply to the playing field. But political correctness often flies in the face of common sense.

The case stems from the PGA Tour's refusal to let disabled golfer Casey Martin use a cart. All other players must walk. Mr. Martin, a former Stanford teammate of Tiger Woods, suffers from a crippling circulatory disorder, which makes it both painful and dangerous for him to walk for extended periods of time. Mr. Martin is a sympathetic figure, and he is to be admired for the many hurdles he has overcome. But while the PGA Tour's treatment of Mr. Martin may be unfair, it is not unlawful.

The ADA requires that "places of public accommodation" be made handicap accessible. Covered establishments must "accommodate" disabled persons, provided that the requested accommodation is "reasonable." The ADA was passed in order to remove barriers that prevent the disabled from equally participating in American life. This makes sense when we are talking about access to employment, restaurants or hotels. But when it comes to athletic competitions, all are not equal. And no amount of social engineering can change that without altering the very essence of sport.

This point was apparently lost on the U.S. Court of Appeals for the 9th Circuit, which last year upheld a federal trial court's verdict in favor of Mr. Martin. The 9th Circuit rejected the PGA Tour's claim that any exception to its walking rule would rewrite the rules of professional golf. It concluded that Mr. Martin's request for a cart was reasonable because it would not alter the "central competition in shot making."

But, within 24-hours of the decision in the Martin case, another appellate court reached the opposite conclusion. In a case involving disabled golfer Ford Olinger, the 7th Circuit ruled that allowing disabled golfers to ride was unreasonable because it would fundamentally alter the nature of the sport a point even Mr. Olinger seemed to concede when he reportedly complained that the judges who heard his case are golfers, while those who heard Mr. Martin's are not.

As these two cases show, "reasonableness" can be subjective. Not surprisingly, it is not just the courts that are split on the question of whether allowing disabled golfers to use carts meets this legal test. Golf pro Greg Norman has weighed in on the side of Mr. Martin, while legends Jack Nicklaus and Arnold Palmer support the PGA.

But while even experts differ on whether allowing carts unfairly alters the rules of golf, this debate is, in fact, irrelevant because the ADA does not apply to competitive sports at all.

To be sure, Title III of the ADA prohibits discrimination in "places of public accommodation," and includes in its definition of public accommodation "golf course[s] or other place of exercise or recreation." But this language refers to access to recreational facilities not to actual competitions. In other words, golf courses like theaters and restaurants are properly prohibited from discriminating against the disabled and are required to make reasonable accommodations for disabled patrons, spectators and employees. They are not required to alter the rules of a tournament.

Perhaps even more fundamentally, the PGA Tour, unlike an actual golf course, is not a "place" open to the public. The PGA Tour is a traveling competition of professional athletes who have beaten many other excellent players in order to qualify for the competition. Yes, all persons should be granted reasonable access to sporting arenas and facilities. But, no one is entitled to play professional sports.

Applying the statute to athletic competitions would have far-reaching consequences. If the ADA applies to the PGA Tour, then it logically also applies to the NBA, NFL, NCAA and even local youth soccer leagues.

Of course, a lawsuit seeking affirmative action for short basketball players would be regarded by most people as silly. But it would not be inconceivable under the reading of the statute advanced by Mr. Martin.

Nor would a lawsuit by players disabled in the course of playing competitive sports. Football players, like Troy Aikman, who have suffered multiple concussions but are otherwise capable of playing could seek an exemption from tackling as an accommodation. Such a request might not be reasonable, but it would take an individualized determination, and perhaps litigation, to determine this.

The application of the ADA to competitive sports would also place the nail in the coffin of academic eligibility requirements. Such requirements, which play a critical role in assuring that the students who represent an educational institution in athletic competitions are actually advancing their studies, have been challenged with mixed results in the lower courts. Should Mr. Martin prevail, any athlete who failed to make the grade would be able to demand a waiver of eligibility rules on the ground that he or she is learning disabled.

The PGA's refusal to allow disabled golfers to use a cart is perhaps unfair. But the question before the Supreme Court this week is not whether the PGA should let Mr. Martin use a cart, only whether under federal law requires it to do so. It doesn't, and the justices should not allow their sympathy for Mr. Martin stand in the way of an accurate reading of the law.

Jennifer Braceras is a Charles Hamilton Houston Fellow at the Harvard Law School.

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