The Politics of Deference and Inclusion: Toward a Uniform Framework for the Analysis of ‘Fundamental Alteration’ Under the ADA

57 Pages Posted: 27 May 2010 Last revised: 23 Jun 2010

See all articles by Kerri Lynn Stone

Kerri Lynn Stone

Florida International University (FIU) - College of Law

Date Written: June 1, 2007


In 2001, a disabled professional golfer prevailed in his claim to use a golf cart on the PGA Tour in the Supreme Court case of PGA Tour, Inc. v. Martin. While the Americans with Disabilities Act (“ADA”) mandates that essential and reasonable accommodations be made for plaintiffs like Martin, it does not require any actions that would fundamentally alter the nature of a defendant’s “goods, services, facilities, privileges, advantages, or accommodations.”

This article surveys federal opinions that undertook the fundamental alteration query posed by Titles II and III of the ADA in the five years since Martin was decided, and it identifies problems engendered by Martin’s approach and lack of clear guidance on the issue. Then, it sets forth a proposed framework for the analysis and provides suggested considerations for courts undertaking the fundamental alteration query. The article proposes that the critical question of where access ends and substance begins is akin to the query posed in antitrust law as to when an action crosses over from pro-competitive to anti-competitive – a query in which courts’ deference to parties’ characterizations and arguments underlies and contours the scope of the relevant “industry analysis.” Using antitrust analysis as a model, this article posits a framework for the fundamental alteration query in which the level of deference a court will give a defendant and the scope of the remedy at issue will determine the scope of the analysis. It then sets forth some unifying considerations for courts to examine in the course of this analysis.

Whether or not they are articulated, seeming “intangibles” like the presumptive deference accorded a defendant or the initial skepticism that a court harbors upon hearing the formulation of a fundamental alteration argument, predicate the breadth and depth of the ensuing analysis, and, often, the outcome of the fundamental alteration query. To the extent that the process by which the fundamental alteration query is formulated and executed is not transparent, decisions will be inconsistent and ad hoc. Only with a consciousness that there are varying gradations of deference, and concomitantly, varying gradations of depth and breadth that a court can reach in its analysis of an entity or industry, can courts deliberately and somewhat predictably resolve a query so complex and nuanced.

Keywords: Americans with Disabilities Act, ADA, public accommodations, Title II, Title III, fundamental alteration, fundamentally alter, PGA Tour, Inc. v. Martin, Supreme Court, deference, inclusion

Suggested Citation

Stone, Kerri Lynn, The Politics of Deference and Inclusion: Toward a Uniform Framework for the Analysis of ‘Fundamental Alteration’ Under the ADA (June 1, 2007). Hastings Law Journal, Vol. 58, No. 6, 2007; Florida International University Legal Studies Research Paper No. 10-04. Available at SSRN:

Kerri Lynn Stone (Contact Author)

Florida International University (FIU) - College of Law ( email )

11200 SW 8th St.
RDB Hall 1097
Miami, FL 33199
United States
305-348-1154 (Phone)


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