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:

01-03015 -2(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 01-03016