This blog entry is divided into separate categories: introduction; the statutes; the case of the week; and takeaways. You probably will want to read all of it, but you still have the option to focus on any of the categories you like.

I
Introduction

Recently, I ran across this article, in my Google alerts. It shouldn’t surprise anyone that I have a Google alert set for Americans with Disabilities Act. Well, I wanted to find out if this was indeed the case. After checking with my colleague, Richard Hunt, who I consider to be a Fair Housing Act maven, and doing further research, I came to the conclusion that the article may or not be correct and here is why:

II
The Statutes

1. 42 U.S.C. § 3607 is the private club exception In the Fair Housing Act, but all it says is that a private club can limit housing to members.

2. 42 U.S.C. § 12187 is the private club exception for title III of the ADA. It states that title III of the ADA does not apply to private clubs or establishments exempted from coverage under title II of the Civil Rights Act of 1964 or to religious organizations or entity controlled by religious organizations, including places of worship. This means we have to go to the provisions of 42 U.S.C. § 2000-a(e) to see what that says.

3. 42 U.S.C. § 2000a(e) says that title two of the Civil Rights Act does not apply to a private club or other establishment not in fact open to the public, except to the extent that the facilities of such establishment are made available to customers or patrons of an establishment within the scope of 42 U.S.C. § 2000a(b).

With respect to fraternities, an argument can be made that fraternities are open to the public. After all, both members of the fraternity and nonmembers of the fraternity will frequently visit fraternities. Second, a fraternity is providing lodging to a transient guest (see paragraph 4 immediately below).

4. 42 U.S.C. § 2000a(b)(1) covers any inn, hotel, motel, or other establishment providing lodging to transient guests other than an establishment located within a building containing not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence.

With respect to fraternities, the proprietor exception would not apply.

III
The Case of the Week

A
Facts

But you don’t have to take my word for it. The US Court of Appeals for the Third Circuit has spoken on this as far back as 2006 in Regents of the Mercersburg College v. Republic Franklin Insurance Company, 458 F.3d 159 (3d Cir. 2006). In this case, the insured operated a private secondary boarding school. A school building that contained dormitory housing was damaged by fire. The insured claim that an ordinance and a endorsement to its property insurance policy covered the costs to bring the building into compliance with the ADA.

B
Court’s Reasoning

In holding that the costs to bring the building into compliance with the ADA was covered by the policy, the court reasoned as follows:

1. Private school dormitories are transient lodging as defined by the ADA regulations.

2. Dormitories are part of boarding schools and therefore are places of education.

3. Appendix A to the ADA Accessibility Guidelines specifically includes dormitories.

4. Chapter 3 of the Appendix A to the ADA Accessibility Guidelines explicitly states that transient lodging includes a building or facility containing sleeping accommodations and also mentions dormitories.

5. Student housing is an integral part of the boarding school experience and therefore is one of the facilities, privileges, advantages, and accommodations of a place of education covered by title III of the ADA.

6. Places of education are subject to title III of the ADA.

7. A technical assistance letter from the Department of Justice dated May 2, 1994 takes the position that all aspects of a school’s student activities and of the educational experience are covered by title III of the ADA. This letter specifically references fraternity houses owned and operated By a University.

The court wound up remanding the case because whenever alterations are made, the path of travel regulations kick in. That means, conceivably the undamaged portions of the dormitory might need to undergo ADA renovations. As a matter contractual interpretation, the insurance company would not be liable for necessary renovations to undamaged areas of the dormitory.

IV
Takeaways:

1. With respect to public universities, as we have seen many times before in this blog, title II of the ADA applies to everything that a public entity does. Further, since places of education are involved, to satisfy the Rehabilitation Act all of the operations of the place of education must be accessible to persons with disabilities. Since just about all universities take federal funds, the Rehabilitation Act does come into play in just about all cases.

2. This same technical assistance letter is perhaps overstated by the Third Circuit. In this letter, the Department of Justice states that if the fraternity house is not owned or operated by the University and will not be owned or operated by it in the foreseeable future, the house may be exempt from ADA coverage even if the house otherwise fits into one of the categories of places of public accommodation because it would be exempt as a private club. The factors to consider in whether a private club is involved are:

A. Whether the club is highly selective in choosing members

most fraternities would be

B. Whether the club membership exercises a high degree of control over the establishment’s operations

This may be highly variable

C. Whether the organization has historically been intended to be a private club

probably yes

D. The degree to which the establishment is opened up to nonmembers

probably frequently

E. The purpose of the club’s existence

This one is interesting because a fraternity doesn’t really have the same reason for being as an exclusive country club does, though some of those reasons do exist.

F. The breadth of the club’s advertising for members

Fraternities probably focus on the college community but one would need to know all of the facts

G. Whether the club is nonprofit

H. The degree to which the club observes formalities

It would take research on my part to determine what formalities are being referred to. Corporate formalities? Formalities that make the fraternity setting stand apart?

I. Whether substantial membership fees are charged

Undoubtedly fees are charged, but whether they are substantial would take further research.

J. The degree to which the club receives public funding

This one is very interesting because if a public university is involved, the fraternity is in some way probably receiving public funds.

K. Whether the club was created or is being used to avoid compliance with a Civil Rights Act.

This one is also interesting because the Americans with Disabilities Act is a Civil Rights Act.

A question that arises is whether all of these factors must be satisfied or whether, like revenue ruling 87-41 (dealing with independent contractors), no one particular factor is dispositive, rather you have to look at it in the broad sense. Also, this technical assistance letter says that they are covered by title III to the extent they open up their establishment to the general public for purposes falling within one of the categories of places of public accommodation. So, if the fraternity host events open to persons other than fraternity members and their guests (in the context of a fraternity, I am not sure what the phrase, “and their guests” refers to), the fraternity must be accessible in their public areas during those events. The more often those public events occur, the higher the obligation to make the publicly use areas accessible. This also doesn’t answer the question considering the nature of fraternities. An argument can be created that with respect to fraternities, even the living quarters would be public areas or areas that the public frequently uses.

3. As we have discussed previously, it is now unclear as to just how persuasive interpretation of regulations, such as appendices, are going to be.

4. So how do you deal with this situation? First, is it a private university? Second, is the private university owning and operating the fraternity? Third, if not, is the fraternity a private club? Fourth, if the fraternity is a private club, have you gone through the criteria in this letter? (Don’t forget about applicable case law here as well). Fifth, if it is a public University, is the fraternity receiving federal funds. If so, the Rehabilitation Act would apply and so would accessibility obligations. If not, go back to the private club analysis. Finally, if it is a public University and even if the fraternity is not receiving federal funds, are the fraternities such an integral part of the educational experience that denying accessibility would mean not allowing a person with a disability to benefit from the privileges, advantages, and benefits of an education at that institution?

Lots to think about and that leads to…. make sure you have a knowledgeable attorney to help your sort these things out.

8 Responses to Are fraternities subject to title III of the ADA?

Can we assume for a moment that, despite the fact that most fraternities/sororities may qualify as “private clubs, ” for ADA purposes, the land and buildings which house the fraternities are usually on land owned by the university and leased to a separate corporate entity, or are owned outright by separate corporate entities, as opposed to the fraternity chapters. That alone might be enough to convince a judge that, while they can admit whomever they please, they are “private boarding houses/dorms” and may be prohibited from discriminating against the disabled as a class. As far as being public accommodations, fraternities and sororities often hold beer parties to which large segments of the campus–e.g. every female who drinks beer–are often invited. On homecoming weekends, former members of the hypothetical “Alpha Male” fraternity may visit, and Biff Sr. and Biff Jr., who may be in varying states of disability, may want to check out the accommodations of Biff III–if only to see what his trust fund is paying for each semester. Finally, since fraternities are virtually synonymous with alcohol abuse on some campuses, ADA compliance is prudent–if only because it’s a heck of a lot easier to get an ambulance gurney up a ramp to the side door than it is up the front steps.

I work for a large architectural firm that has a division that specializes in Greek Housing. In our experience, we have only come upon one institution that owned the Fraternity house … and that was a private college. Aside from the argument of whether or not Fraternities and Sororities are considered “Private Clubs”, one needs to ask if the Americans with Disabilities Act (ADA) is still relevant “regarding new construction” after all these years. In the time since the ADA was written in 1990, the International Code Council has evolved to be the bellwether for jurisdictional Building Codes in almost every state in the union. As far back as the 2000 International Building Code (IBC), Chapter 11 – Accessibilty has dictated that ANSI A117.1 shall be complied with for all new construction. It would be very difficult to argue that ANSI A117.1 does not address every accessibility issue covered by the ADA. I can say that the requirements for ramps are the same for both codes.

Thanks so much for posting!

Are you saying that regardless of whether the fraternity would be subject to title III of the ADA, that the ANSI standard you mentioned would need to be applied regardless and that standard would mean that the fraternity house would have to be accessible, assuming new construction? Does the standard say anything about existing facilities?

Chapter 2 (Scope), Section 201 of ANSI A117.1 states: “This standard provides technical criteria for making site, facilities, buildings, and elements accessible. The administrative authority (read local code official) shall provide scoping provisions to specify the extent to which these technical criteria apply. These scoping provisions shall address the application of this standard to: each building and occupancy type; new construction, alterations, temporary facilities, and existing buildings; specific site and building elements; and to multiple elements or spaces provided within a site or building.” It also appears that the ICC has developed an International Existing Building Code (IEBC) that has the same language from the ADA that requires accessibility improvements for up to 20-percent of the construction cost of any alterations to existing buildings.

If the Fraternity is to be built on public (University) land, then the ADA is typically applied. This is usually because the city or county does not have jurisdiction. However, if the land is privately owned by the Fraternity or it is owned by a privately funded University, then the city or county has jurisdiction and the building official has final say as to which standard is required. Typically in those situations it is ANSI A117.1.

My understanding is that ANSI A117.1 (through IBC) ADA (regarding public aspects of the building, but not the rooms) and FHA all apply, and that all codes have language regarding other possible codes and to do the strictest.

With this idea in mind, saying “we follow ANSI A117.1” is not enough in my opinion. I can promise you there are more restrictive and cost additive procedures in FHA not covered in ANSI or ADA.

In some cases, a more relevant question may be at what point does a “renovation” qualify as “new construction?” And if it varies by jurisdiction, does the ADA import the “local” definition? I ask this because back in the ’80’s, at the end of the year, at a mid-Atlantic school that shall remain nameless, contractors often had to gut some of those lovely neo-Federalist-style brick mansions used by the fraternities down to the studs due to the damage sustained during the year.

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