# 129

III-1.2000
III-1.6000 May 2, 1994

The Honorable Trent Lott

United States Senator
3100 South Pascagoula Street
Pascagoula, Mississippi 39567

Dear Senator Lott:

This letter is in response to your inquiry on behalf of your

constituent, Richard Wilkinson, who asks about the applicability
of the Americans with Disabilities Act (ADA) to the new
construction of a fraternity house on land owned by a university.
Mr. Wilkinson's letter states that his fraternity intends to
build a two-story building to house 27 occupants, plus an attic,
which might be used for study hall and meetings. We have learned
from a telephone conversation with Mr. Wilkinson that the
university is privately owned.

Under title III of the ADA, an entity that owns, operates,

or leases a place of public accommodation, must ensure that ADA
standards are met in all of its activities, including the new
construction of its facilities. Universities are places of
public accommodation. Therefore, if the university owns or
operates the fraternity house, or if it has contracted to or
intends to own or operate the house in the future, the university
is obligated to ensure that the construction of the house meets
ADA new construction standards. University-owned fraternity
houses, like all other aspects of a university experience, are
part of the place of education, and are covered by title III.

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 would otherwise fit into one of the categories
of places of public accommodation, it is exempt from title III's
coverage if it is a private club. Whether a particular facility
is a private club is a case-by-case determination, based on a
variety of factors that have been recognized by courts. We
cannot make a particular determination of whether Mr. Wilkinson's
fraternity house will constitute a private club, but some of the
factors to be considered in such a determination are the
following:
(1) whether the club is highly selective in choosing
members;
(2) whether the club membership exercises a high
degree of control over the establishment's
operations;
(3) whether the organization has historically been
intended to be a private club;
(4) the degree to which the establishment is opened up
to non-members;
(5) the purpose of the club's existence;
(6) the breadth of the club's advertising for members;
(7) whether the club is non-profit;
(8) the degree to which the club observes formalities;
(9) whether substantial membership fees are charged;
(10) the degree to which the club receives public
funding; and
(11) whether the club was created or is being used to
avoid compliance with a civil rights act.

Nonetheless, private clubs are still covered by title III to

the extent that they open up their establishments to the general
public for a purpose that falls within one of the categories of
places of public accommodation. Thus, if the fraternity hosts
events that are open to persons other than the fraternity members
and their guests, the fraternity must make accessible the public
areas during those events. The more often such public events
occur, the higher the obligation to make the publicly used areas
accessible. If, for example, only one event in several years is
open to the general public, a temporary ramp may be sufficient to
make the area accessible, while, if the fraternity hosts several
such events during the course of a year, it may be obligated to
construct a permanent ramp.

I hope this information is useful to your constituent.

Sincerely,
 Deval L. Patrick
Assistant Attorney General
Civil Rights Division

Enclosures