UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

JUSTIN TATUM )

)

Plaintiff, )

)

v\. ) No. 4:97CV2592-DJS

)

THE NATIONAL COLLEGIATE )

ATHLETIC ASSOCIATION, and )

ST. LOUIS UNIVERSITY )

)

Defendants. )

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
)

**UNITED STATES' MOTION FOR LEAVE TO PARTICIPATE AS**

**AN AMICUS CURIAE AND FOR LEAVE TO PARTICIPATE IN ORAL ARGUMENT**

Justin Tatum has filed suit alleging that the National Collegiate
Athletic Association (NCAA) violated title III of the Americans with
Disabilities Act (ADA) when it declared him ineligible to participate in
athletics or receive an athletic scholarship during his first two
semesters of college.

On January 2, 1998, the Court directed the parties to address several
issues, including the issue of whether the complaint fails to state a
claim under the ADA because the NCAA is not a public accommodation under
title III.

The United States respectfully requests leave to participate as an
[amicus]{.underline} [curiae]{.underline} on this issue, for the reasons
given in the attached Memorandum of Law. The United States also seeks
permission to participate in any oral argument held on this issue.

The United States' Memorandum of Law as [Amicus]{.underline}
[Curiae]{.underline} is attached.

Respectfully submitted,

EDWARD L. DOWD, JR. BILL LANN LEE

United States Attorney Acting Assistant Attorney General

Eastern District of Missouri Civil Rights Division

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

EDWIN BRZEZINSKI JOHN L. WODATCH

Assistant U.S. Attorney L. IRENE BOWEN

United States Attorney\'s Office PHILIP L. BREEN

Eastern District of Missouri DANIEL W. SUTHERLAND

1114 Market Street Attorneys

Room 401 Disability Rights Section

St. Louis, Missouri Civil Rights Division

\(314\) 539-2200 U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 307-0663

January 9, 1998

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

JUSTIN TATUM )

)

Plaintiff, )

)

v\. ) No. 4:97CV2592-DJS

)

THE NATIONAL COLLEGIATE )

ATHLETIC ASSOCIATION, and )

ST. LOUIS UNIVERSITY )

)

Defendants. )

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_)

**UNITED STATES' MEMORANDUM OF LAW IN SUPPORT OF**

**ITS MOTION FOR LEAVE TO PARTICIPATE AS AN AMICUS CURIAE**

[INTRODUCTION]{.underline}

On December 30, 1997, Justin Tatum filed suit alleging that the National
Collegiate Athletic Association (NCAA) violated title III of the
Americans with Disabilities Act (ADA) when it declared him ineligible to
participate in athletics or receive an athletic scholarship during his
first two semesters of college.

In opposing Mr. Tatum's application for a temporary restraining order,
the NCAA filed a brief arguing, in part, that the complaint fails to
state a claim under the ADA because the NCAA is not a public
accommodation under title III. The Court directed the parties to brief
that issue, and others, in greater detail.

[ARGUMENT]{.underline}

The United States has significant responsibilities for implementing and
enforcing the ADA, including, pursuant to statutory directive, the
promulgation of implementing regulations. Accordingly, the United States
has a strong interest in ensuring that the case law is consistent with
the United States\' interpretation of the statute and the Department of
Justice\'s regulation implementing title III of the ADA, 28 C.F.R. pt.
36.[^1]

Therefore, the United States often participates as [amicus
curiae]{.underline} in litigation involving the ADA. [See]{.underline}
[e.g.,]{.underline} [Helen L. v. DiDario]{.underline}, 46 F. 3d 325 (3rd
Cir. 1995), [cert. denied sub nom.]{.underline} [Penn. Sec\'y of Public
Welfare v. Idell S.]{.underline}, 116 S. Ct. (1995); [Kinney v.
Yerusalim]{.underline}, 9 F. 3d 1067 (3rd Cir. 1993), [cert. denied sub
nom.]{.underline} [Hoskins v. Kinney]{.underline}, 114 S. Ct. 1545
(1994); [Fiedler v. American Multi-Cinema, Inc.]{.underline}, 871
F.Supp. 35 (D.D.C. 1994). Moreover, the United States has participated
as [amicus]{.underline} [curiae]{.underline} in litigation involving the
NCAA. [See]{.underline} [Butler v. National Collegiate Athletic
Association]{.underline}, No. C96-1656 (W.D. Wash., Nov. 8, 1996)(a copy
is attached as Exhibit A to the United States' Memorandum of Law as
Amicus Curiae); [Bowers v. National Collegiate Athletic
Association]{.underline}, No. 97-2600 (D.N.J., Oct. 28, 1997)(a copy is
attached).

This litigation presents critical issues under title III, the resolution
of which is likely to have effects beyond just this litigation. The
threshold issue argued by the NCAA relates to the interpretation of
title III\'s requirement that discrimination on the basis of disability
is prohibited \"by any person who owns, leases (or leases to), or
operates a place of public accommodation.\" 42 U.S.C. § 12182. The
specific question here is whether the substantive provisions of title
III apply to an athletic association that imposes eligibility criteria
on public and private schools, and sponsors athletic events at public
and private coliseums and stadiums around the country. It is the United
States\'s position that the substantive provisions of title III do apply
to the NCAA. In addition, the proper interpretation of this provision of
title III is important in a number of contexts other than that of
athletic associations.

The attached Memorandum of Law does not take a position on the other
issues discussed in the Court's January 2, 1998 ruling, including,
"whether standardized test-taking constitutes a major life activity for
purposes of the ADA; whether plaintiff's disability results in a
'substantial limitation' on his test-taking ability; whether the NCAA
has failed to reasonably accommodate plaintiff's disability and whether
such accommodations would fundamentally alter the participation criteria
in intercollegiate athletics." [Tatum v. National Collegiate Athletic
Association,]{.underline} slip op. at 10.

Because the United States believes that its interests may be affected by
the outcome of this case and, further, that its views will be of
assistance to the Court, the United States requests that it be permitted
to file a memorandum of law as an [amicus]{.underline}
[curiae.]{.underline}

The United States further requests that if this Motion is granted, its
[amicus]{.underline} [curiae]{.underline} status include the right to
participate in any oral arguments involving the issues discussed in its
[amicus curiae]{.underline} brief.

Respectfully submitted,

EDWARD L. DOWD, JR. BILL LANN LEE

United States Attorney Acting Assistant Attorney General

Eastern District of Missouri Civil Rights Division

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

EDWIN BRZEZINSKI JOHN L. WODATCH

Assistant U.S. Attorney L. IRENE BOWEN

United States Attorney\'s Office PHILIP L. BREEN

Eastern District of Missouri DANIEL W. SUTHERLAND

1114 Market Street Attorneys

Room 401 Disability Rights Section

St. Louis, Missouri Civil Rights Division

\(314\) 539-2200 U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 307-0663

January 9, 1998

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

JUSTIN TATUM )

)

Plaintiff, )

)

v\. ) No. 4:97CV2592-DJS

)

THE NATIONAL COLLEGIATE )

ATHLETIC ASSOCIATION, and )

ST. LOUIS UNIVERSITY )

)

Defendants. )

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_)

**[O R D E R]{.underline}**

This matter having been brought before the Court by the United States's
Motion for Leave to Participate as [Amicus]{.underline}
[Curiae]{.underline} and for Leave to Participate in Oral Argument, and
the Court having read and considered the memoranda of counsel, and for
good cause shown, it is hereby ORDERED, this \_\_\_\_ day of
\_\_\_\_\_\_\_, 1998, as follows:

1\. The motion is GRANTED, and the Court shall accept the United States'
Memorandum of Law as [Amicus]{.underline} [Curiae]{.underline},
submitted simultaneously with the motion.

2\. The United States\' status as [amicus]{.underline}
[curiae]{.underline} shall include the right to participate in any oral
argument held concerning the issues raised in its [amicus]{.underline}
[curiae]{.underline} brief.

IT IS SO ORDERED.

HON. DONALD J. STOHR

United States District Court

Eastern District of Missouri

January \_\_, 1998

**CERTIFICATE OF SERVICE**

I certify that the United States' Motion for Leave to Participate as
Amicus Curiae, Memorandum in Support, Proposed Order, and Memorandum of
Law as Amicus Curiae was served on the following attorneys by overnight
mail on January 8, 1998.

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

Daniel W. Sutherland

William Hellmich

John Banjak

John Borbonus

King, Koster, King, Hellmich & Hentz

12813 Flushing Meadow Dr., Second Floor

St. Louis, Missouri 63131

Linda Salfrank

Swanson Midgley

922 Walnut

Suite 1500

Kansas City, Missouri 64106

Frank Gundlach

Armstrong, Teasdale, Schlafly & Davis

One Metropolitan Square

Suite 2600

St Louis, Missouri 63102-2740

Ian Cooper

Peper Martin Jensen Maichel & Hetlage

720 Olive Street

St. Louis, Missouri 63101

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

JUSTIN TATUM )

)

Plaintiff, )

)

v\. ) No. 4:97CV2592-DJS

)

THE NATIONAL COLLEGIATE )

ATHLETIC ASSOCIATION, and )

ST. LOUIS UNIVERSITY )

)

Defendants. )

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_)

**UNITED STATES' MEMORANDUM OF LAW AS AMICUS CURIAE**

[INTRODUCTION]{.underline}

On December 30, 1997, Justin Tatum filed suit alleging that the National
Collegiate Athletic Association (NCAA) violated title III of the
Americans with Disabilities Act (ADA) when it declared him ineligible to
participate in athletics during his first two semesters of college. Mr.
Tatum now seeks a preliminary injunction allowing him to accept an
athletic scholarship and participate on St. Louis University's
basketball team.

The Court directed the parties to address several issues, including
whether the NCAA is a private entity that owns, leases or operates
places of public accommodation under title III of the ADA. [Tatum v.
National Collegiate Athletic Association,]{.underline} No. 4:97CV2592,
slip op. at 7-9 (E.D.Mo., Jan. 2, 1998). The NCAA argues that Mr.
Tatum's complaint fails to state a claim under the ADA because the NCAA
is not a public accommodation under title III [^2].

The United States argues as [amicus]{.underline} [curiae]{.underline}
that Mr. Tatum has a substantial likelihood of success on the merits of
the argument that the NCAA is subject to title III.

[ARGUMENT]{.underline}

> **I. Legal standards applicable to the motion for a preliminary
> injunction.**

A preliminary injunction is warranted if Mr. Tatum can prove that there
is a threat of a irreparable harm if he is not granted an injunction,
that the harm he will suffer outweighs the injury the NCAA would suffer
if an injunction is granted, that there is a probability that he will be
successful on the merits, and that granting an injunction would be in
the public interest. [Dataphase Systems v. C L Systems]{.underline}, 640
F.2d 109, 113 (8th Cir. 1981). The United States' role as
[amicus]{.underline} [curiae]{.underline} is to address the issue of
whether Mr. Tatum has a probability of success on the merits of the
threshold issue of whether the NCAA is subject to title III of the ADA.

The issue of whether the NCAA is a private entity that owns, leases or
operates places of public accommodation is a mixed question of law and
fact. [Butler v. National Collegiate Athletic Association]{.underline},
No. C96-1656, slip op. at 8-9 (W.D. Wash., Nov. 8, 1996)(Exhibit A). The
United States and Mr. Tatum are currently privy to only a small subset
of the information that will eventually be developed in discovery
regarding how the NCAA relates to a number of places of public
accommodation. This mixed question of law and fact depends on the
answers to questions such as,

> \* When the NCAA sponsors a basketball tournament (or a gymnastics
> competition or a swimming championship or a tennis tournament), does
> it lease the stadium or arena?
>
> \* How extensive is the NCAA's control over the stadium or arena
> during the tournament that it is sponsoring?
>
> \* How extensively does the NCAA regulate the athletic training
> facilities (for example, gymnasiums, weight rooms or exercise
> facilities) of its member colleges and universities?

However, even reviewing only the evidence currently available, it is
clear that there is a substantial likelihood that Mr. Tatum will be
successful in showing that the NCAA is subject to title III.

> **II. Mr. Tatum is likely to succeed on the merits of his argument
> that the National Collegiate Athletic Association leases or operates
> places of public accommodation.**

**A. Title III of the Americans with Disabilities Act should be
interpreted broadly.**

The Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213, is the
most extensive civil rights legislation to pass Congress since the Civil
Rights Act of 1964. Its purpose is to provide \"a clear and
comprehensive national mandate for the elimination of discrimination
against individuals with disabilities.\" 42 U.S.C. § 12101(b)(1). The
ADA\'s coverage is accordingly broad, prohibiting discrimination on the
basis of disability in employment, state and local government programs
and services, transportation systems, telecommunications, commercial
facilities, and the provision of goods and services offered to the
public by private businesses.

Under well-established canons of statutory construction, remedial
legislation should not be given a narrow or limited construction but
rather should be liberally construed. [Butler v. National Collegiate
Athletic Association]{.underline}, slip op. at 8, [citing]{.underline}
[Tcherepnin v. Knight]{.underline}, 389 U.S. 332, 336 (1967). This
principle of statutory construction is especially true of civil rights
legislation, and has been applied repeatedly to the Americans with
Disabilities Act. [See]{.underline}, [e.g.]{.underline}, [Kinney v.
Yerusalim]{.underline}, 812 F. Supp. 547, 551 (E.D. Pa.),
[aff\'d]{.underline} 9 F.3d 1067 (3d Cir. 1993), [cert.
denied]{.underline} [sub]{.underline} [nom.]{.underline} [Hoskins v.
Kinney]{.underline}, 114 S. Ct. 1545 (1994); [Niece v.
Fitzner]{.underline}, 922 F. Supp. 1208, 1218-19 (E.D. Mich. 1996).

This action involves title III of the ADA, which prohibits
disability-based discrimination by private entities that own, lease (or
lease to), or operate a place of public accommodation. 42 U.S.C. §
12182(a); 28 C.F.R. § 36.202. The Preamble to the implementing
regulation provides, \"The coverage is quite extensive and would include
. . . any other entity that owns, leases, leases to, or operates a place
of public accommodation, even if the operation is only for a short
time.\" 28 C.F.R. Part 36, Appendix B at 593.[^3]

> **B. Title III of the Americans with Disabilities Act covers private
> entities that own, lease (or lease to), or operate places of public
> accommodation.**

Mr. Tatum argues that the NCAA is a private entity that leases or
operates places of public accommodation. The NCAA, a private entity,
clearly has contacts with several places of public accommodation,
including:

\* a \... stadium, or other place of exhibition of entertainment;

> \* an auditorium, convention center . . . or other place of public
> gathering; and,
>
> \* a gymnasium . . . or other place of exercise of recreation.

42 U.S.C. §§ 12181(7)(C), (D) and (L).

This Memorandum of Law addresses the issue of whether the NCAA
\"operates\" these facilities. In the context intended by the statute,
\"operates\" means to control, manage, administer, or regulate.[^4] A
federal court in Connecticut defined "operate" in the context of title
III of the ADA as \"managing and controlling\[.\]\" [Dennin v.
Connecticut Interscholastic Athletic Conf.]{.underline}, 913 F.Supp.
663, 670 (D. Conn. 1996), [vacated as moot]{.underline}, 94 F.3d 96 (2d
Cir. 1996). A federal court in California held that the word \"implies a
requirement of control over the place providing services\" subject to
title III. [Aikins v. St. Helena Hospital]{.underline}, 843 F.Supp.
1329, 1335 (N.D. Cal. 1994). A federal district court in Ohio held that
"operate" means that the person or entity \"is in a position of
authority\" to make decisions that are allegedly discriminatory under
title III. [Howe v. Hull]{.underline}, 873 F.Supp 72, 77 (N.D. Ohio
1994). In applying the ADA specifically to the NCAA, one federal court
held that the NCAA "operates" athletic facilities because it "exercises
control" over those facilities; another federal court held that the NCAA
"operates" athletic facilities because it "regulates" their use. [Ganden
v. National Collegiate Athletic Association]{.underline}, No. 96C-6953,
1996 W.L. 680000 at \*11 (N.D. Ill., Nov. 21, 1996); [Butler v. National
Collegiate Athletic Association]{.underline}, slip op. at 9. As the
Preamble to the implementing regulation explains, a private entity may
"operate" a facility even if its relationship to the place of public
accommodation is for only a limited period of time. 28 C.F.R. Part 36,
Appendix B at 593. [See]{.underline} [also]{.underline} [Ganden v.
National Collegiate Athletic Association]{.underline}, 1996 W.L. 680000
at \*11.

The statute's focus is not on whether the place of public accommodation
at which the individual with a disability is subject to discriminatory
treatment is a facility that is owned by a private or public entity. The
Preamble to the regulation provides, \"It is the public accommodation,
and not the place of public accommodation, that is subject to the
regulation\'s nondiscrimination requirement.\" 28 C.F.R. Part 36,
Appendix B at 587.

> **C. The evidence currently available suggests that the NCAA operates
> places of public accommodation.**

While the United States is obviously not aware of the evidence that will
be presented at the preliminary injunction hearing, two things are
clear. First, at this early stage of the proceedings, the facts
available to Mr. Tatum are only a small subset of what will be available
once discovery is conducted. Second, a review of simply the NCAA's own
operating procedures and by-laws makes it clear that there is a
substantial probability of success on the merits of the argument that
the NCAA operates one or more places of public accommodation.

> **1. The evidence currently available suggests that the NCAA operates
> stadiums or other places of exhibition or entertainment, as well as
> auditoriums, convention centers or other places of public gathering.**

The NCAA controls, manages and administers athletic events held in
stadiums, auditoriums, convention centers and other places of
entertainment and public gathering. These athletic events range from
football \"bowl games\" to the NCAA basketball championship, from
women\'s gymnastics championships to men\'s swimming competitions. By
setting eligibility standards, the association regulates who can compete
in the stadiums, coliseums and other places of public gathering.

However, the NCAA controls more than just the people who are allowed to
compete. The NCAA carefully manages the stadiums, auditoriums,
convention centers, and other places of entertainment and public
gathering. For example, it controls which stadiums and coliseums will be
chosen for championship events. NCAA Executive Regulation 31.1.3.2,
1996-97 NCAA Manual at 490 (1996)(copies of all Executive Regulations
and Bylaws cited are attached as Exhibit C). The NCAA regulates the
ticket prices that the stadiums and coliseums may charge. NCAA Executive
Regulation 31.1.11. The NCAA controls the types of beverages the arenas
may sell. NCAA Executive Regulation 31.1.13 (prohibiting the sale of
alcohol). The NCAA controls the types of goods that vendors may sell.
NCAA Executive Regulation 31.6.2. It regulates the profits that are
earned from sales at concession stands. NCAA Executive Regulation
31.4.2. The NCAA controls which members of the press will be allowed to
set up broadcast facilities at the stadiums. NCAA Executive Regulation
31.6.4. On the most obvious level, the NCAA controls which institutions
are allowed to play in the stadiums and coliseums. NCAA Executive
Regulation 31.3.

NCAA Executive Regulation 31.1, \"*Administration* of NCAA
Championships,\" could be read, \"*Operation* of NCAA Championships.\"
The NCAA operates significant functions of the stadiums, coliseums, and
arenas at which competitions are staged for at least a limited, specific
period of time. During the athletic events sponsored by the NCAA, it
exercises substantial control over the operations of the places of
public gathering, from the ticket windows to the concession stands to
the press passes.

> **2. The evidence currently available suggests that the NCAA operates
> gymnasiums or other places of exercise or recreation.**

The NCAA manages, administers and regulates the athletic training
facilities \-- gymnasiums and other places of exercise or recreation \--
used by member institutions. It allows colleges and universities to set
aside these facilities for the use of authorized athletes.
[See]{.underline}, [e.g.]{.underline}, NCAA Operating Bylaw
17.02.1.2(p)(permitting member institutions to reserve their athletics
facilities only for student-athletes). These training facilities are
likely to include weight rooms, practice fields, lap pools, batting
cages, exercise facilities with equipment to build cardiovascular
strength or recuperate from injuries, and facilities where athletic
trainers provide massage and other therapy.

The NCAA\'s controls over these athletic training facilities are
substantial. It regulates the conditions under which individuals who are
not enrolled in the school may use the facilities. NCAA Operating Bylaw
17.02.1.2(p). It directs that student-athletes can voluntarily choose to
work out in the gym or other place of exercise only under certain
conditions. NCAA Operating Bylaw 17.02.1.2(m). It regulates the
conditions under which members of the coaching staff can be in the
exercise facility while an athlete engages in a voluntary workout. NCAA
Operating Bylaw 17.02.1.2(q). It prohibits students from using tobacco
products while working out in the gym or other place of exercise. NCAA
Operating Bylaw 17.1.11. It regulates the number of days that
student-athletes are allowed to practice in the athletic facilities.
NCAA Operating Bylaws 17.02.13, 17.1.1 and 17.1.5. It regulates the
types of equipment that they may use while working out in the athletic
training facilities. NCAA Operating Bylaw 17.11.6. It controls the
conditions under which student-athletes may ask a coach for advice and
instruction on athletic training not conducted during the playing
season. NCAA Operating Bylaw 17.1.5.2.1. It establishes rules for the
types of \"conditioning activities\" that athletes can use. NCAA
Operating Bylaw 17.1.5.2.2.

The NCAA manages who can use the exercise facilities, how long they can
use those facilities, and what they can do while in the facilities.
Clearly, the evidence suggests that the NCAA \"operates\" the gymnasiums
or other places of exercise or recreation of its member institutions.

**D. Relevant authorities support the conclusion that the NCAA operates
places of public accommodation.**

In [Butler v. National Collegiate Athletic Association]{.underline}, No.
C96-1656 (W.D. Wash., Nov. 8, 1996), a federal court held that a
University of Washington athlete with a learning disability who had been
declared academically ineligible had demonstrated "at least a reasonable
probability of ultimate success" on the argument that the NCAA is a
public accommodation under title III. In [Ganden v. National Collegiate
Athletic Association]{.underline}, No. 96C-6953, 1996 WL 680000 (N.D.
Ill., Nov. 21, 1996), the court held that Mr. Ganden's allegation that
the NCAA is closely affiliated with the athletic training facilities of
its member colleges was "a compelling argument." [Id.]{.underline} at
\*10.[^5] The court further held that it was "reasonably probable" that
Mr. Ganden could establish that the NCAA has a "significant degree of
control" over athletic competitions held in stadiums and other places of
public gathering, as well as over athletic training facilities, and
therefore "operates" places of public accommodation. [Id.]{.underline}
at \*11.

[Butler]{.underline} and [Ganden]{.underline} are consistent with
[Dennin v. Connecticut Interscholastic Athletic Conf.]{.underline}, 913
F. Supp 663 (D. Conn. 1996), [vacated as moot]{.underline}, 94 F.3d 96
(2d Cir. 1996). In [Dennin]{.underline}, a student charged that the
state's athletic association, the Connecticut Interscholastic Athletic
Association (\"CIAC\"), violated the ADA when it declared him
ineligible.[^6] The court held that the CIAC had two major activities.
First, \"\[m\]ember schools delegate significant control and authority
to CIAC in regulating this athletic component of education.\"
[Id.]{.underline} at 670. Like the NCAA, the CIAC set rules for the
types of classes student-athletes should take, minimum grades they must
receive, and other facets of the student\'s academic life. Second,
\"CIAC sponsors athletic competitions and tournaments.\"
[Id.]{.underline} The sponsorship of competitions and tournaments
brought CIAC into a management role over coliseums where the events are
staged. Therefore, the court held, \"By managing and controlling the
aforementioned, it 'operates' places of public accommodation, i.e., a
place of education, entertainment and/or recreation.\" [Id.]{.underline}
While the parallels between the CIAC and the NCAA are obvious, the role
of the NCAA is even more comprehensive than that of the state athletic
association.

Cases outside the context of athletic associations also support the
proposition that the NCAA operates places of public accommodation. In
[Howe v. Hull]{.underline}, 873 F.Supp. 72 (N.D. Ohio 1994), the court
held that the admitting physician, not an employee of the hospital,
\"operated\" the hospital because he was \"in a position of authority\"
to make decisions which are allegedly discriminatory under title III.
[Id.]{.underline} at 77. [See]{.underline} [also]{.underline} [Aikins v.
St. Helena Hospital]{.underline}, 843 F. Supp. 1329 (N.D. Cal. 1994)(a
physician would operate a hospital if he had control over the provision
of services, although in this case the physician had no authority to
arrange a sign language interpreter for the spouse of a patient).[^7]
Similarly, the NCAA is in a position of authority over a number of
places of public accommodation \-- it is in a position of authority to
set the standards for admitting individuals into colleges and
universities, into gymnasiums and training facilities, and into stadiums
and coliseums.

> **E. Contrary authorities do not justify a conclusion that the NCAA
> does not operate places of public accommodation.**

In addition to the [Butler]{.underline} and [Ganden]{.underline} courts,
one other federal court has ruled on whether the NCAA operates places of
public accommodation under title III of the ADA. A federal court in
Arizona denied a motion for a preliminary injunction because the student
could not establish a likelihood of success on the merits of the
argument that the NCAA is covered by title III. [Johannesen v. National
Collegiate Athletic Association]{.underline}, No. Civ. 96-197 (D. Ariz.,
filed May 3, 1996)(Exhibit C). The court held that, \"The Johannesens'
claims relate to access to facilities operated by \[Arizona State
University\], which is a public, not private entity.\" [Id.]{.underline}
at 7. The court relied on [Sandison v. Michigan High School]{.underline}

[Athletic Association]{.underline}, 64 F.3d 1026 (6th Cir. 1995), which
held that a state association was not subject to title III because the
facilities where its member institutions played games were on public
school grounds and public parks.

[Johannesen]{.underline} and [Sandison]{.underline} should not be
applied in this case. First, neither opinion gave title III the broad
interpretation that sound principles of construction require. Second,
the courts in both cases did not focus on the correct entity. It is not
the place of public accommodation that is the focus; rather, the entity
that \"owns, leases (or leases to), or operates\" the place of public
accommodation is the focus. [Butler v. National Collegiate Athletic
Association]{.underline}, slip op. at 6. As the Department of Justice\'s
Technical Assistance Manual makes clear, activity at a publicly-owned
facility can be subject to title III if that facility is operated or
leased by a private entity. [See]{.underline} The Americans with
Disabilities Act, Title III Technical Assistance Manual, \"Covering
Public Accommodations and Commercial Facilities,\" at 7-8 (Nov. 1993)(a
copy of the relevant section is attached as Exhibit D).[^8] [See
also]{.underline}, [Butler v. National Collegiate Athletic
Association]{.underline}, slip op. at 7 ("the nature of the place is
determined by who owns, leases, or operates the place"); [Ganden v.
National Collegiate Athletic Association]{.underline}, 1996 WL 680000 at
\* 11 ("Title III proscribes discrimination committed by private
entities in their management of public accommodations\.... Parties may
not escape the requirements of the ADA through multiple ownership or
management of a facility"); [Dennin v. Connecticut Interscholastic
Athletic Conf.]{.underline}, 913 F.Supp. at 670 (\"\[t\]he fact that
some of these facilities might be owned by a public entity, i.e., a
public school, does not affect the conclusion that CIAC 'operates' the
facilities for purposes of athletic competition\"). The question is not
where Mr. Tatum will participate in basketball practices or play in
basketball games, but whether the private entity in operational control
of the eligibility decision manages one or more places of public
accommodation. As the court in [Dennin]{.underline} put it, \"\[t\]he
fact that some of these facilities might be owned by a public entity,
i.e., a public school, does not affect the conclusion that CIAC
'operates' the facilities for purposes of athletic competition.\"
[Dennin v. Connecticut Interscholastic Athletic Conf.]{.underline}, 913
F.Supp. at 670.

Third, the distinction raised in [Johannesen]{.underline} and
[Sandison]{.underline} is artificial. If title III does not apply solely
because the place where Mr. Johannesen would usually practice and play
is owned by a public school, title III would logically apply when Mr.
Johannesen sought to play when the university had a game with a private
school. Although most of the members of the league to which Arizona
State University belongs are public schools, at least two are private
entities: Stanford University and the University of Southern California.
The NCAA\'s decision to deny Mr. Johannesen eligibility therefore
prevented him from playing in stadiums that are owned by a variety of
entities, both public and private. The courts' distinction is obviously
artificial; the NCAA applies the same allegedly discriminatory
eligibility rules at all member institutions, public and private, and in
a variety of stadiums, coliseums and arenas.

If [Sandison]{.underline} and [Johannsen]{.underline} are correct, then
Mr. Tatum's claim should be successful because St. Louis University is a
private entity, while Mr. Johannesen's should not be successful because
Arizona State University is a state school. As the court in [Butler v.
National Collegiate Athletic Association]{.underline} concluded,
"Congress could not have intended such an arbitrary result." [Butler v.
National Collegiate Athletic Association]{.underline}, slip op. at 6,
n.3.[^9]

In its Memorandum in Opposition to Mr. Tatum's application for a
temporary restraining order, the NCAA notes that several courts have
held that "membership organizations" do not fall under the definition of
"places of public accommodation" under the ADA and other civil rights
statutes. The National Collegiate Athletic Association's Memorandum in
Opposition to Plaintiff's Request for a Temporary Restraining Order,
[Tatum v. National Collegiate Athletic Association]{.underline}, No.
4:97CV2592, at 7-8 (Dec. 31, 1997). The NCAA failed to note that a
number of courts have held the opposite: organizations that do not have
an office or physical structure are covered by title III of the ADA.
[See]{.underline}, [e.g.]{.underline}, [Carparts Distribution Center v.
Automotive Wholesaler\'s Association of New England]{.underline}, 37
F.3d 12, 18-20 (1st Cir. 1994); [Anderson v. Little League
Baseball]{.underline}, 794 F. Supp. 342, 344 (D. Ar. 1992); [Shultz v.
Hemet Youth Pony League]{.underline}, No. 95-1650 (C.D. Cal., Aug. 22,
1996) (a copy is attached as Exhibit E). [But]{.underline}
[see]{.underline} [Parker v. Metropolitan Life Ins. Co.]{.underline},
121 F.3d 1006, 1013 (6th Cir. 1997) (rejecting the analysis in
[Carparts]{.underline}).

The leading case supporting the NCAA's position, [Welsh v. Boy Scouts of
America]{.underline}, 993 F.2d 1267 (7th Cir. 1993), [cert.
denied]{.underline}, 114 S.Ct. 602 (1993), and other cases discussing
whether \"membership organizations\" are public accommodations, are of
limited assistance to this Court. First, [Welsh]{.underline} is
primarily concerned with whether the Boy Scouts are a public
accommodation under title II of the 1964 Civil Rights Act, a statute
with purposes and legislative history that are completely distinct from
the Americans with Disabilities Act. Moreover, the primary issue in
[Welsh]{.underline} is whether a membership organization with no
physical facility can be characterized as a public accommodation. The
Boy Scouts are a neighborhood group whose leaders are parents donating a
few hours of free time on a week night. The meetings are held in the
home of one of the parents. While the NCAA is also a membership
organization, the nature of its work could hardly be more different than
that of a Boy Scout troop. The NCAA has extensive offices in Kansas,
hundreds of employees, an annual budget in the tens of millions of
dollars, and close connections with places of public gathering
throughout the country. The court in [Ganden v. National Collegiate
Athletic Association]{.underline} held,

> The court questions whether [Welsh]{.underline} directly applies to
> Ganden's claim. . . . It is evident that the NCAA, in contrast to the
> Boy Scouts, has a connection to a number of public accommodations; the
> athletic facilities of its member institutions. [Welsh]{.underline}
> found that the Boy Scouts only conducted meetings of small groups of
> young boys, primarily in private homes. NCAA events occur in stadiums
> or arenas, open to the public, with a significant number of
> competitors, support staff and fans.

[Ganden v. National Collegiate Athletic Association]{.underline}, slip
op. at \*10 (citations omitted).

If anything, the membership organization cases support the argument that
the NCAA is a public accommodation. [Welsh]{.underline} in fact cites
eight cases holding that various membership organizations are public
accommodations. [Welsh v. Boy Scouts of America]{.underline}, 993 F.2d
at 1272. According to [Welsh]{.underline}, membership organizations have
been found to be public accommodations under two circumstances. First, a
membership organization with a connection to facilities is a public
accommodation:

> In each of these \[eight\] cases, Title II \[of the 1964 Civil Rights
> Act\] was found applicable because the organization conducted public
> meetings in public facilities or operated *facilities* open to the
> public like swimming pools, gyms, sports fields and golf courses. In
> contrast, the trial court in the case before us found that the typical
> Boy Scout gathering involves five to eight young boys engaging in
> supervised interpersonal interaction in a private home.

[Id.]{.underline} In contrast to the Boy Scouts, the NCAA establishes
rules governing the operation of facilities for athletes who train and
compete \-- facilities such as swimming pools, gyms, sports fields and
golf courses. The court in [Butler v. National Collegiate Athletic
Association]{.underline} held,

> However, both \[[Welsh]{.underline} and [Stoutenborough v. National
> Football League, Inc.]{.underline}, 59 F.3d 580 (6th Cir. 1995),
> [cert.]{.underline} [denied]{.underline}, 116 S.Ct. 674 (1995)\] dealt
> with member organizations as organizations, not as the operators of
> facilities that might, in turn, be considered places of public
> accommodation. . . . In the instant case, Plaintiff alleges that the
> NCAA does operate facilities open to the public, facilities that are
> listed in the ADA as places of public accommodation.

[Butler v. National Collegiate Athletic Association]{.underline}, slip
op. at 7.

According to [Welsh]{.underline}, the second circumstance under which
membership organizations are found to be public accommodations is \"when
the organization functions as a 'ticket' to admission to a facility or
location.\" [Welsh v. Boy Scouts of America]{.underline}, 993 F.2d at
1272. [See]{.underline} [also]{.underline} [Elitt v. U.S.A.
Hockey]{.underline}, 922 F.Supp. 217, 223 (E.D.Mo. 1996). In other
words, when the organization serves as a gatekeeper, controlling who can
use facilities, the organization is often found to be a public
accommodation. The NCAA serves precisely this gatekeeper function,
setting eligibility rules for students who wish to participate in
athletic competitions.

The court in [Butler v. National Collegiate Athletic
Association]{.underline} concluded, "Thus, if anything, Defendant's
authorities work against its position." [Butler v. National Collegiate
Athletic Association]{.underline}, slip op. at 7.

Respectfully submitted,

EDWARD L. DOWD, JR. BILL LANN LEE

United States Attorney Acting Assistant Attorney General

Eastern District of Missouri Civil Rights Division

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

EDWIN BRZEZINSKI JOHN L. WODATCH

Assistant U.S. Attorney L. IRENE BOWEN

United States Attorney\'s Office PHILIP L. BREEN

Eastern District of Missouri DANIEL W. SUTHERLAND

1114 Market Street Attorneys

Room 401 Disability Rights Section

St. Louis, Missouri Civil Rights Division

\(314\) 539-2200 U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 307-0663

January 9, 1998

[^1]: ^?^ Because the Department is the rule-making agency for title
    III, both its regulation and its interpretation of the regulation
    are entitled to deference. [See]{.underline} [Chevron, U.S.A., Inc.
    v. Natural Resources Defense Council, Inc.]{.underline}, 467 U.S.
    837, 844 (1984) (where Congress expressly delegates authority to an
    agency to issue legislative regulations, the regulations \"are given
    controlling weight unless they are arbitrary, capricious, or
    manifestly contrary to the statute.\"). [See also]{.underline}
    [Petersen v. University of Wis. Bd. of Regents]{.underline}, 818 F.
    Supp. 1276, 1279 (W.D. Wis. 1993) (applying [Chevron]{.underline} to
    give controlling weight to Department of Justice interpretations of
    title II of the ADA); [Fiedler v. American Multi-Cinema,
    Inc.]{.underline}, 871 F.Supp. 35, 39 (D.D.C. 1994) (stating that
    the Department, as author of the regulation, is the principle
    arbiter of its meaning, and according Department interpretations
    substantial deference) (citing [Thomas Jefferson Univ. v.
    Shalala]{.underline}, 114 S. Ct. 2381, 2386 (1994)).

[^2]: ^?^ This Memorandum of Law does not take a position on the other
    issues discussed in the Court's January 2, 1998 ruling, including,
    "whether standardized test-taking constitutes a major life activity
    for purposes of the ADA; whether plaintiff's disability results in a
    'substantial limitation' on his test-taking ability; whether the
    NCAA has failed to reasonably accommodate plaintiff's disability and
    whether such accommodations would fundamentally alter the
    participation criteria in intercollegiate athletics." [Tatum v.
    National Collegiate Athletic Association,]{.underline} slip op. at
    10.

[^3]: ^?^ Congress explicitly delegated to the Department of Justice the
    authority to promulgate regulations under title III. 42 U.S.C. §
    12186. Accordingly, the Department\'s regulations are entitled to
    substantial deference. [Butler v. National Collegiate Athletic
    Association]{.underline}, slip op. at 8. [See]{.underline}
    [also]{.underline} [Thomas Jefferson Univ. v. Shalala]{.underline},
    114 S. Ct. 2381, 2386 (1994)(Secretary of Health and Human
    Services\' regulation interpreting statutory language on
    reimbursable medical education expenses must be given controlling
    weight unless plainly erroneous); [Chevron U.S.A., Inc. v. Natural
    Resources Defense Council, Inc.]{.underline}, 467 U.S. 837, 844
    (1984) (where Congress expressly delegates authority to an agency to
    issue legislative regulations, the regulations \"are given
    controlling weight unless they are arbitrary, capricious, or
    manifestly contrary to the statute\"); [Petersen v. University of
    Wisc. Bd. of Regents]{.underline}, 818 F.Supp. 1276, 1279 (W.D. Wis.
    1993)(applying Chevron to give controlling weight to the
    Department's interpretations of title II of the ADA); [Fiedler v.
    American Multi-Cinema, Inc.]{.underline}, 871 F.Supp. 35, 39 (D.D.C.
    1994)(the Department, as author of the title III regulation, is the
    principle arbiter of its meaning, and Department interpretations are
    given substantial deference). The preamble or commentary
    accompanying a regulation is entitled to deference since both are
    part of a department\'s official interpretation of legislation.
    [Stinson v. United States]{.underline}, 508 U.S. 36, 45 (1993),
    quoting [Bowles v. Seminole Rock & Sand Co.]{.underline}, 325 U.S.
    410, 414 (1945)(an agency\'s interpretation of its own regulations
    must be given controlling weight, unless the interpretation violates
    the Constitution or a federal statute, or is plainly erroneous).

[^4]: ^?^ Dictionaries define \"operate\" in its transitive form as
    \"\[t\]o control or direct the functioning of.\" [Webster\'s II: New
    Riverside University Dictionary]{.underline} (1988), p. 823 (core
    meaning). [See]{.underline} [also]{.underline} [7 The Oxford English
    Dictionary]{.underline}, p. 144 (1933) (\"\[t\]o direct the working
    of; to manage, conduct, work (a railway, business, etc.\")); [2 New
    Shorter Oxford English Dictionary]{.underline}, p. 2005 (1993)
    (\"\[m\]anage, direct the operation of (a business, enterprise,
    etc.\")).

[^5]: ^?^ The court denied Mr. Ganden's motion for a preliminary
    injunction. The court held that NCAA eligibility criteria must be
    modified for students with learning disabilities, but the
    modifications Mr. Ganden suggested would fundamentally alter the
    nature of the NCAA's initial-eligibility standards. [Ganden v.
    National Collegiate Athletic Association]{.underline}, 1996 WL
    680000 at \*15.

[^6]: ^?^ The Second Circuit Court of Appeals did not reject the lower
    court\'s reasoning in [Dennin]{.underline}. The Court of Appeals
    simply held that there was no longer a ripe controversy because the
    student had already completed the athletic season. The Court of
    Appeals, quoting other courts, explained, "Where it appears upon
    appeal that the controversy has become entirely moot, it is the
    *duty* of the appellate court to set aside the decree below and to
    remand the cause with directions to dismiss." [Dennin]{.underline},
    94 F.3d at 101 (citations omitted).

[^7]: ^?^ The NCAA cites [Neff v. American Dairy Queen
    Corp.]{.underline}, 58 F.3d 1063 (5th Cir. 1995),
    [cert.]{.underline} [denied]{.underline}, 116 S.Ct. 704 (1996) and
    [Cortez v. National Basketball Association,]{.underline} 960 F.Supp.
    113 (W.D. Tex. 1997) for its argument that the NCAA does not
    "operate" athletic facilities or stadiums. The United States'
    position is that [Neff]{.underline} was wrongly decided because the
    court too narrowly construed what it means to operate a place of
    public accommodation and therefore adopted a reading of the statute
    that cannot be reconciled with the statutory language. Moreover,
    [Neff]{.underline} is clearly inapplicable since it is a decision
    regarding whether a company is responsible under the ADA for the
    actions taken by another company to which it has granted a
    franchise. The franchisor-franchisee relationship is substantially
    different than the relationship between the NCAA and its member
    colleges and the NCAA and the stadiums where athletic competitions
    are held. [Cortez]{.underline} also depends on an analysis of the
    franchisor-franchisee relationship. Moreover, the relationship
    between the NCAA and its member colleges is entirely different from
    the NBA's relationship with professional sports franchises. The
    NCAA's role in collegiate sports is much more extensive because it
    is concerned not only with the quality of the sporting event, but
    also with the integrity of college athletics, preserving both
    amateurism (leading to hundreds of regulations on benefits that can
    be provided to student-athletes) and academics (leading to hundreds
    of regulations on academic standards that students must meet to
    participate in athletics). The NBA is concerned with neither of
    these factors and therefore its regulation of its franchisees is
    much less extensive.

[^8]: ^?^ More than one entity can \"own, lease (or, lease to) or
    operate\" a facility at one time. If a state or local government
    owns a facility, but a private entity operates within it, title II
    of the ADA applies to discriminatory actions by the governmental
    entity and title III applies to discriminatory actions by the
    private entity. Title III Technical Assistance Manual at 7.
    Interpretive documents such as the Department of Justice's Technical
    Assistance Manual are entitled to deference. [See]{.underline},
    [e.g.]{.underline}, [Fiedler v. American Multi-Cinema,
    Inc.]{.underline}, 871 F. Supp. at 36 n.4; [Ferguson v. City of
    Phoenix]{.underline}, 931 F. Supp. 688, 694 (D. Ariz. 1996).
    [Cf.]{.underline} [Pinnock v. International House of
    Pancakes]{.underline}, 844 F. Supp. 574 (S.D. Cal. 1993) (rejecting
    a constitutional challenge to title III of the ADA as void for
    vagueness in part by considering clarification of statute found in
    administrative regulations and the title III TA Manual).

[^9]: ^?^ [Brown v. 1995 Tenet Paraamerica Bicycle
    Challenge]{.underline}, 959 F.Supp. 496 (N.D.Ill. 1997) relied on
    [Sandison]{.underline} and is therefore of limited usefulness to
    this Court.