DOJ: Illinois High School Association is a Public Accommodation Covered by the ADA

A couple of weeks ago, the Department of Justice filed this statement of interest in Illinois ex rel. Madigan v. Illinois High School Association, a case about which I have blogged before.  The statement of interest argues that the IHSA is a public accommodation that is subject to the requirements of Title III of the ADA.  Here is the crucial analysis:

A “public accommodation” under the statute is “a private entity that owns, leases (or leases to), or operates a place of public accommodation.” 28 C.F.R. § 36.104; 42 U.S.C. § 12181(7). The Department’s 1991 regulatory guidance confirms that it is the private entity — the “public accommodation” — that is subject to title III’s requirements: “The term ‘public accommodation[ ]’ . . . is reserved by the final rule for the private entity that owns, leases (or leases to), or operates a place of public accommodation. It is the public accommodation, and not the place of public accommodation, that is subject to the regulation’s nondiscrimination requirements.” 28 C.F.R. pt. 36, App. C (concerning the definitions at 28 C.F.R. § 36.104). 

Application of this standard to Plaintiffs’ claims demonstrates that IHSA is subject to title III. IHSA asserts that it is not a “public entity.” Mem. Supp. Mot. Dismiss at 11-2. If that assertion is correct, see supra note 2, then it necessarily follows that IHSA qualifies as a “private entity” for purposes of title III. See 42 U.S.C. § 12181 (6) (defining “private entity” for purposes of title III as “any entity other than a public entity (as defined in section 12131(1))”). In addition, IHSA does not dispute that its activities affect commerce. Finally, IHSA operates “places of public accommodation” — specifically, the facilities in which the association’s meets and tournaments are held, including the gymnasiums, arenas, courts, pools, tracks, stadiums, and other venues open to the public. Compl. ¶ 38. Title III explicitly identifies such facilities as places of public accommodation when owned, leased, or operated by a private entity whose operations affect commerce. See 42 U.S.C. § 12181(7)(C), (D), (J), and (L) (listing, as places of public accommodation: elementary, secondary, undergraduate, or other places of education; gymnasiums, or other places of exercise or recreation; stadiums or other places of exhibition entertainment; and/or other places of public gathering). 

IHSA asserts that because it is “not a physical structure” and is “merely an organization that sanctions and promotes athletic events,” it is not required to comply with title III. Def.’s Mem. Supp. Mot. Dismiss at 13; Rep. at 7. IHSA cites Brown v. 1995 Tenet Paraamerica Bicycle Challenge, 959 F. Supp. 496 (N.D. Ill. 1997) for this proposition. Brown is materially different from the case at bar. Brown — involving a bicyclist who was denied participation in a cross country bicycle tour because he refused to wear a helmet — turned on whether roads upon which a cycling tour occurred could themselves be considered “places of public accommodation” to bring the organizer within title III coverage. Id. A road, without more, is not a “place of public accommodation” under title III. See 28 C.F.R. § 36.104 (“facility” definition). Brown did not plead sufficient facts for title III coverage of the organizing group because he did not show that the places in which it operated — the roads — were analogous to the twelve categories of places of public accommodation listed in title III, and he did not allege that he was denied access to a service at a place. See 959 F. Supp. at 499. In contrast, the gymnasiums, stadiums, and other athletic facilities that IHSA operates are undoubtedly places of public accommodation, and plaintiffs allege denial of participation in them. 

Contrary to IHSA’s argument, this case does not raise a question of the coverage of public accommodations that do not occupy a physical space, such as online-only stores. Plaintiffs have, indeed, alleged that IHSA operates — and controls student athletes’ access to — the sectional and state tournaments held in various physical gymnasiums, stadiums, and other arenas across the state. See Compl. ¶¶ 7, 13, 29-32. Accordingly, IHSA falls squarely within title III’s coverage and is subject to the requirements of title III.