**UNITED STATES DISTRICT COURT**

**FOR THE NORTHERN DISTRICT OF GEORGIA**

**ATLANTA DIVISION**

> )

KAMI Z. BARKER and )

ACCESS NOW, INC., )

> )

Plaintiffs, )

)

v\. ) CASE NO.: 1 02-CV-2450-CC

)

> )

EMORY UNIVERSITY, NILES )

BOLTON ASSOCIATES, INC., )

and TCR GA CONSTRUCTION )

LIMITED PARTNERSHIP, )

> )

Defendants. )

)

**[UNITED STATES' SUR-REPLY BRIEF AS AMICUS CURIAE]{.underline}**

**[IN OPPOSITION TO EMORY UNIVERSITY'S MOTION TO DISMISS]{.underline}**

In order to correct several fundamental misrepresentations and to
address new arguments proffered by Defendant Emory University in its
Reply brief, the United States, as [amicus]{.underline}
[curiae]{.underline}, files this Sur-Reply.

Emory University is a public accommodation subject to the requirements
of title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181
[et]{.underline} [seq.,]{.underline} (the

"ADA"). [See]{.underline} 42 U.S.C. § 12181(7)(J) (identifying
"undergraduate, or postgraduate private school\[s\], or other place\[s\]
of education" as public accommodations). As such, Emory is obligated to
ensure that all admitted students have "full and equal enjoyment of the
goods, services, facilities, privileges, advantages, or accommodations"
that it provides. 42 U.S.C. § 12182(a). These include its residential
housing program, which is only open to students who have been admitted
to and enrolled at Emory (or their family members who live with them).

Rather than applying a straightforward analysis to the question at hand
-- whether student housing is a "good, service, facility, privilege,
advantage, or accommodation" of attendance at the University -- Emory
attempts to carve out a variety of exceptions from the ADA's clear
statutory provisions. Emory misrepresents the position of the Department
of Justice (the "Department"), misconstrues applicable case law, and
manufactures what it describes as a "room-by-room" application of the
nondiscrimination requirements of title III.

On a motion to dismiss, the facts alleged in the complaint, and all
reasonable inferences therefrom, must be construed in the light most
favorable to the plaintiffs. [See]{.underline} [Covad Communications Co.
v. BellSouth Corp.]{.underline}, 299 F.3d 1272,

1276 n. 2 (11^th^ Cir. 2002); [Stephens v. Dep't of Health & Human
Servs.]{.underline}, 901 F.2d 1571, 1573 (11^th^ Cir. 1990). The
question of whether a particular building or facility on Emory
University's campus is ultimately subject to the design standards
imposed by title III requires a factual inquiry beyond the scope of a
motion to dismiss. In this light, the United States respectfully
requests that this Court deny Emory's motion to dismiss and hold that
on-campus student housing may be a "good, service, facility, privilege,
advantage, or accommodation" of the University.

**[ARGUMENT]{.underline}**

Title III requires nondiscrimination in the provision of all the "goods,
services, facilities, privileges, advantages, or accommodations" of a
place of education. [See]{.underline} 42 U.S.C. §§ 12182(a);
12181(7)(J). The category of a "place of education" "'should be
construed liberally' to afford people with disabilities 'equalaccess' to
the wide variety of establishments available to the non-disabled." [PGA
Tour, Inc. v. Martin]{.underline}, 532 U.S. 661, 676-77 (2001) (quoting
S.Rep. No. 101-116, p. 59 (1989); H.R. Rep. No. 101-485, pt. 2, p. 100
(1990), U.S.C.C.A.N. 1990, pt. 2, at pp. 303, 382-83). As set forth in
the United States' [amicus]{.underline} brief and the exhibits attached
thereto, Emory's own publications make clear that Emory offers student
housing as a facility, privilege, advantage, and accommodation of the
University.

1\. Emory contends that the Department's position is inconsistent with
the statute and regulations because no formal educational process takes
place inside a student's apartment. However, the ADA does not require
that every facility, privilege, advantage, or accommodation of a place
of education offer a "formal educational process" in order to be subject
to the requirements of title III.[^1] [Cf.]{.underline} [Pennsylvania
Dep't of Corrections v. Yeskey]{.underline}, 524 U.S. 206 (1998)
(finding that programs offered by state prisons that are not necessarily
formally penal in character -- such as recreational activities, medical
services, and educational and vocational programs -- are nonetheless
programs, services and activities provided by a public entity and
covered by title II of the ADA, 42 U.S.C. §§ 12131-12132). Such a
requirement would be inconsistent with the Supreme Court's mandate to
read the categories of places of public accommodation broadly. All this
Court need conclude on this Motion to Dismiss is that plaintiffs may be
able to establish that Emory offers student housing as a facility,
privilege, advantage, or accommodation of enrollment in the University.
Because this is the only issue addressed by the United States, the
remaining arguments set forth in Emory's Reply brief are irrelevant. The
Court need not consider, for example, whether other buildings on the
University campus or privately-owned apartment buildings would be
covered by the ADA.

2\. Emory also contends that the Department's position is inconsistent
with title III of the ADA and its regulations, which, according to
Emory, cover residential facilities only if they offer short-term stays.
In support of its argument, Emory cites only case law addressing
defendants who were alleged to own, lease, or operate "**places of
lodging**," 42 U.S.C. § 12181(7)(A), not "places of education."[^2] The
length of a student's stay in college housing is irrelevant because
student housing is covered by the ADA under the broad category of a
place of education. [Cf.]{.underline} [Lindgren v. Camphill Village
Minn., Inc.]{.underline}, No. Civ. 00-2771 RHK/RLE, 2002 WL 1332796, \*6
(D. Minn. June 13, 2002) (attached as Exhibit 1). The defendant in
[Lindgren]{.underline}, the operator of a group home, took a similar
position, arguing that, as a residential facility, the group home where
the plaintiff had lived for four years was not a "place of lodging." The
court, however, recognizing that the home offered classes and other
services for persons with disabilities, held that the facility was a
"social service center establishment," 42 U.S.C. § 12181(7)(K), covered
by title III. [See]{.underline} [Lindgren]{.underline}, 2002 WL 1332796,
\*6. Similarly, as an advantage of enrollment at Emory University,
student housing is covered as part of a "place of education"; the Court
need not reach the question of whether Emory's dormitories could
alternatively be covered as "places of lodging."[^3]

Alternatively, Emory argues that dormitories are only covered by title
III if they offer short-term stays, because dormitories are listed in
the heading of section 9.1 of the Department's ADA accessibility
standards: "Hotels, Motels, Inns, Boarding Houses, Dormitories, Resorts
and Other Similar Places of Transient Lodging." 28 C.F.R. Pt. 36 App. A
§ 9. Emory's argument fails, however, because Emory has neglected to
distinguish the issue of whether an entity is covered by title III from
the subsequent inquiry about what standards apply to a particular
covered entity. Claims for violations of the facilities-related
requirements of title III require a multi-step analysis. The first step
is to determine whether an entity is covered by title III. If the entity
is covered, one applies the relevant parts of the ADA Standards for
Accessible Design in order to determine whether a covered entity has
violated title III. [See]{.underline} [id]{.underline}. § 1 ("This
document sets guidelines for accessibility to places of public
accommodation and commercial facilities by individuals with
disabilities."). The Department's position that dormitories are covered
as places of education is not inconsistent with the fact that the
standards mention dormitories as a type of transient lodging; to the
contrary, the reference to dormitories in the standards is a clear
indication that coverage of such facilities was anticipated by the
drafters of the regulation.

3\. In its Reply, Emory argues, for the first time, that its student
housing is not a place of public accommodation because it is not open
for any member of the public to walk into off the street. This
contention is contrary both to the broad purpose of the ADA -- to remedy
discrimination "in such critical areas as employment, housing, public
accommodations, education, . . . and access to public services," 42
U.S.C. § 12182(a) -- and to the holding of the Supreme Court in [PGA
Tour]{.underline}. There the Court held that a professional golf tour
was a public accommodation, even though only highly skilled golfers who
had won preliminary competitions were permitted to compete.
[See]{.underline} 532 U.S. at 677. In [PGA Tour]{.underline}, the Court
of Appeals rejected the defendant's similar argument, that title III
exempts from coverage areas of public accommodations that are not open
to any member of the public. The district court held, [Martin v. PGA
Tour, Inc.]{.underline}, 984 F.Supp. 1320, 1326-27 (D. Or. 1998), and
the Ninth Circuit agreed, that a public accommodation cannot be
"compartmentalized" to exclude from coverage those areas into which only
invitees may enter. [See]{.underline} [Martin v. PGA Tour,
Inc.]{.underline}, 204 F.3d 994, 997 (9^th^ Cir. 2000), [aff'd on other
grounds by]{.underline} [PGA Tour, Inc. v. Martin]{.underline}, 532 U.S.
661 (2001). The PGA Tour argued that the golf course was not a public
accommodation during a tournament because no member of the general
public was allowed on the field of play. The Ninth Circuit disagreed,
holding that a public accommodation retains its character, regardless of
who is permitted entry. "It is true that the general public cannot enter
the area 'inside the ropes,' but competitors, caddies, and certain other
personnel can . . . . The statute does not restrict this definition \[of
a "place of exhibition or entertainment," 42 U.S.C. § 12181(7)(C),\] to
those portions of the place of exhibition that are open to the general
public. The fact that entry to a part of a public accommodation may be
limited does not deprive the facility of its character as a public
accommodation." [Martin]{.underline}, 204 F.3d at 997-98 (citing
[[Independent Living Resources v. Oregon Arena Corp.]{.underline},
982](http://www.westlaw.com/Find/Default.wl?rs=) [F.Supp. 698, 759 (D.
Or. 1997)](http://www.westlaw.com/Find/Default.wl?rs=) (arena's
executive suites contracted by businesses are public accommodations)).

Innumerable public accommodations, including medical offices, hotels,
day care centers, health spas, and even Emory's own classroom buildings,
are open only to members of the public who have, like students, met
eligibility requirements, been invited, or made appointments. In fact,
the Ninth Circuit in [PGA Tour]{.underline} specifically observed that
universities are public accommodations even though members of the
general public do not have access to their campuses. [See]{.underline}
[Martin]{.underline}, 204 F.3d at 998 ("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. It is true
that the rest of the public is then excluded from the schools, but the
students who are admitted are nevertheless members of the public using
the universities as places of public accommodation.").

4\. Similarly, Emory's contention, presented for the first time in its
Reply brief, that this Court should conduct a room-by-room analysis of
its student housing is without merit. Emory suggests that even if some
areas of its dormitories were covered by title III, individual student
units would not be, partly because no student would want "\[his\]
college bedroom open to the public." Defendant, Emory University's,
Reply to Plaintiffs' Br. in Opp'n to Emory's Mot. to Dismiss Complaint,
or in the alternative, for Partial Summary Judgment at 32. However, a
room-by-room analysis is not appropriate because the purpose of the
dormitory facilities is to house Emory students, as a privilege,
advantage, or accommodation of the University, a place of education.[^4]
There is no requirement that every space or room in a place of education
be "option to the public," as explained in the [PGA Tour]{.underline}
decisions discussed above. Contrary to Emory's suggestion, no provision
of the ADA or its regulations removes a space or area from coverage as a
place of public accommodations because of individual privacy concerns.
In fact, the statute explicitly lists hotels (where the same privacy
concerns would apply to guest rooms) as places of public accommodation.
Moreover, the University's extensive control over its housing program
extends to all of the individual rooms.[^5]

5\. The Department's position, expressed in its [amicus]{.underline}
brief, that student housing is covered as a place of education under
title III is entitled to deference. [See]{.underline} [Bragdon v.
Abbott]{.underline}, 524 U.S. 624, 646 (1998) (citing [Chevron U.S.A.,
Inc. v. Natural Resources Defense Counsel, Inc.]{.underline}, 467 U.S.
837, 844 (1984)). Contrary to Emory's position, the Department's
position is not unworthy of deference merely because it comes to the
Court in the form of a legal brief. [See]{.underline} [Auer v.
Robbins]{.underline}, 519 U.S. 452, 462 (1997); [see]{.underline}
[also]{.underline} [United States v. AMC Entertainment,
Inc.]{.underline}, -- F.Supp.2d --, No. CV 99-1034 FMC (SHx), 2002 WL
31649984 \*18 (C.D. Cal. Nov. 20, 2002). Rather, this Court must
determine whether the Department's position represents a "fair and
considered judgment" by inquiring into whether the position is
consistent with the agency's previous statements and with the statute
and regulation itself. [See]{.underline} [Bowen v. Georgetown Univ.
Hosp.]{.underline}, 488 U.S. 204, 212-13; [see]{.underline}
[also]{.underline} [AMC Entertainment]{.underline}, 2002 WL 31649984,
\*18.

As demonstrated above, as well as in the United States'
[amicus]{.underline} brief, the Department's position that student
dormitories are covered by title III is consistent with the statute and
regulations. It is also consistent with the Department's prior
statements interpreting the regulations, statements which are themselves
entitled to deference. [See]{.underline} United States' Br. as [Amicus
Curiae]{.underline} at 8-9 & nn. 8-9. Accordingly, the Department's
position is not a retroactive change to a rule.[^6]

Contrary to Emory's contention, the Department's position is consistent
with statements in the preamble to the regulations and in the technical
assistance manual that a residential wing of a hotel and the production
and processing facilities of a oil company are not covered by title III,
even though the hotel and the oil company's service stations are covered
public accommodations. [See]{.underline} 28 C.F.R. Pt. 36, App. B p.
588; United States Department of Justice, [The Americans with
Disabilities Act Title III Technical Assistance Manual]{.underline} §
III-1.2000 (1993). The Department does not assert that, merely because
some part of a private entity is a place of public accommodation, all of
the entity is a place of public accommodation. On the contrary, the
obligations of a public accommodation only apply to those aspects of a
private entity whose operations fall within one of the 12 categories.
The residential wing of the hotel would be excluded from coverage
"because of the nature of the occupancy of that part of the facility."
28 C.F.R. Pt. 36, App. B p. 588. The Department\'s discussion goes on to
point out, however, that if the residential facility provided social
services to its guests, it "would be considered a 'social service center
establishment' and thus covered by the ADA as a place of public
accommodation, regardless of the length of stay of the occupants."
[Id.]{.underline} at p. 589. Similarly, here, housing provided by Emory
University as an integral part of its educational program clearly falls
within the category of place of education.

Also, even though a gas station is a place of public accommodation, the
oil refining facility owned by the same corporation to produce gasoline
is not a place of public accommodation because the Department has
consistently stated that manufacturing facilities are not places of
public accommodation. [See]{.underline} [Title III Technical Assistance
Manual]{.underline} § III-1.3000. In contrast, the Department has
explained that a residential facility will be covered as a place of
public accommodation if it falls within one of the 12 categories, such
as "social service center establishment" or, in this case, "place of
education."

//

**CONCLUSION**

For these reasons, as well as those set forth in the United States'
amicus brief, the United States urges this Court to deny Emory's motion
to dismiss the claims in Plaintiff Kami Barker's complaint regarding
student housing facilities.

CERTIFICATE OF COMPLIANCE

I certify that this brief was prepared in Times New Roman 14-point font
in compliance with Local Rule 5.1B.

DATED: January \_\_\_, 2003

> Respectfully submitted,
>
> Ralph F. Boyd, Jr.
>
> Assistant Attorney General
>
> Civil Rights Division
>
> John L. Wodatch, Chief
>
> L. Irene Bowen, Deputy Chief
>
> Philip L. Breen, Special Legal Counsel
>
> Disability Rights Section

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

> Alyse S. Bass

Elizabeth T. Bangs

> Trial Attorneys
>
> Disability Rights Section
>
> Civil Rights Division
>
> U.S. Department of Justice

950 Pennsylvania Ave., NW

> NYAV Building
>
> Washington, D.C. 20035
>
> \(202\) 616-9511

\(202\) 353-7414

> \(202\) 307-1198 (fax)

\[[alyse.bass@usdoj.gov](mailto:%5Bbass.alyse@usdoj.gov)\]

[\[elizabeth.bangs@usdoj.gov\]](mailto:%5Bbaskette.peggy@usdoj.gov%5D)

William S. Duffey, Jr.

United States Attorney

Laura Kennedy

Assistant United States Attorney

Northern District of Georgia

Richard B. Russell Federal Building

75 Spring Street, S.W.

Suite 600

Atlanta, GA 30303-3309

> \(404\) 581-6000
>
> Counsel for United States of America

CERTIFICATE OF SERVICE

I hereby certify that on this \_\_ day of January 2003, true and correct
copies of "United States's Motion for an Extension of Time to File its
Amicus Brief in Opposition to Emory University's Motion to Dismiss" and
Proposed Order were served by Federal Express, postage pre-paid, on the
following parties:

Mitchell Benjamin Matthew W. Dietz

Johnson & Benjamin, LLP Law Office of Matthew W. Dietz,

One Securities Centre P.L.

3490 Piedmont Rd., Suite 650 1320 South Dixie Hwy.

Atlanta, GA 30305 Penthouse

Attorney for Plaintiffs Coral Gables, FL 33146

> Attorney for Plaintiffs

Ernest L. Greer George D. Wenick

Greenberg Taurig, LLP Smith, Currie & Hancock, LLP

The Forum, Suite 400 233 Peachtree Street NE, Suite 2600

3290 Northside Pkwy. Atlanta, GA 30303

Atlanta, GA 30327 Attorney for Defendant

Attorney for Defendant TCR GA Construction, LP

Emory University

Kent T. Stair

Carlock, Copeland, Semler & Stair, LLP

2600 Marquis Two Tower

285 Peachtree Center Ave.

Atlanta, GA 30303-1235

Attorney for Defendant Niles Bolton Assoc., Inc.

> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> Elizabeth T. Bangs

[^1]: ^?^ Emory implies that this Court should disregard Emory's own
    publications advertising its student housing program, arguing that
    it is irrelevant that the housing offers an "educational experience"
    if the housing does not have an educational "use." The difference
    between "experience" and "use" is a matter of semantics; Emory's
    attempt to distinguish the two terms is illogical. The exhibits
    attached to the United States' [amicus]{.underline} brief
    demonstrate that Emory itself describes its on-campus housing as
    being "used" for educational purposes. [See]{.underline},
    [e.g.]{.underline}, Emory University, "Undergraduate Housing at
    Emory,"
    [[http://www.emory.edu/RES_LIFE/UNDERGRAD/]{.underline}](http://www.emory.edu/RES_LIFE/UNDERGRAD/)
    ("Learning that occurs outside of the classroom can often be as
    valuable as learning that takes place in an academic setting . . . .
    The campus housing program has been designed with these goals in
    mind."); Ex. A to the United States' Brief as [Amicus
    Curiae]{.underline} (advertising that the graduate student housing
    complex "provides students with the opportunity to . . . interact in
    an academic environment"); [id.]{.underline} (noting that the
    complex offers "\[p\]rograms that address cultural diversity,
    social, and informational needs, and help to reduce the stresses of
    student and family life").

[^2]: ^?^ [See]{.underline} [Radivojevic v. Granville Terrace Mutual
    Ownership Trust]{.underline}, No. 00 C 3090, 2001 WL 123796, \*3
    (N.D. Ill. Jan. 31, 2001) (holding that a cooperative apartment is
    not a "place of lodging"); [Hanks v. Tilley]{.underline}, No.
    1:98CV00789, 1999 WL 1068484, \*2 (M.D. N.C. Feb. 2, 1999) (holding
    that the plaintiff's single-family home, consisting of a house,
    pasture, and a barn, leased from the defendant was not a "place of
    lodging"); [Independent Hous. Servs. of San Francisco v. Fillmore
    Ctr. Assocs.]{.underline}, 840 F.Supp. 1328, 1344 (N.D. Cal. 1993)
    (holding that a privately owned housing project is not a "place of
    lodging").

[^3]: ^?^ Emory blatantly misrepresents the United States' discussion of
    the significance of the coverage of student housing by the Fair
    Housing Act (the "FHA"). Emory incorrectly contends that the United
    States suggested that because the dormitories are covered by the FHA
    they must also be covered the ADA. Rather, the United States merely
    observed that "\[s\]tudent dormitories are both dwellings and an
    integral part of a place of education and are covered by both
    statutes." United States' Br. as [Amicus Curiae]{.underline} at 11.

[^4]: ^?^ In addition to having no legal basis, Emory's argument would
    require a factual inquiry not appropriate for resolution on a motion
    to dismiss. Any number of educational activities could -- and
    presumably do -- take place in students' rooms, including studying,
    tutoring, counseling, and meetings of student groups.

[^5]: ^?^ Emory argues that the extent to which it controls the student
    housing on its campus does not support a determination that the
    housing is a place of education. But, as set forth in the United
    States' [amicus]{.underline} brief, by reserving the right to add
    roommates, move students to other units at any time, or subject
    students to university disciplinary proceedings for violating their
    leases, Emory's control goes beyond that of a typical landlord.

[^6]: ^?^ Emory's suggestion that the Department's position is a "post
    hoc rationalization," [Bowen]{.underline}, 488 U.S. at 212, is
    incorrect and misplaced. In [Auer]{.underline}, the Supreme Court
    subsequently explained that its discussion about "post hoc
    rationalizations" in [Bowen]{.underline} was addressed to
    justifications "advanced by an agency seeking to defend past agency
    action against attack." [Auer]{.underline}, 519 U.S. at 462 (citing
    [Bowen]{.underline}, 488 U.S. at 212). Here, the Department has
    taken no previous action that is under attack in this lawsuit.