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July 1998
Volume 16, Number 7

Rules of the Game
by Michael Levin

The civil rights juggernaut has now invaded sports, that one-time redoubt of pure merit and standing embarrassment for affirmative action. Not only does this latest beachhead presage significant real-world consequences, it reveals something of the strategy of the privilege lobby.

Casey Martin, the most recent poster boy for "equal opportunity," is a 25-year-old professional golfer. Like Tiger Woods a product of Stanford University, he is unlike other golfers, and no doubt every other pro athlete on the planet. He suffers from Klippel- Trenaunay-Weber Syndrome, a congenital circulatory disorder that makes walking long distances impossible.

This of course puts Martin at quite a disadvantage, since playing 18 holes of golf typically requires walking several miles. Nonetheless, and at first blush much to his credit, Martin has tried to overcome this handicap and earn his living on the links. But in the past, athletes fighting adversity had only their own gumption to rely on; thats why so many of them--the likes of Ben Hogan and Mordecai ("Three-Fingers") Brown--are remembered as heroes. Nowadays, however, when native resolution wont push you over the top, there is always the federal judiciary, which is exactly where, to his discredit, Casey Martin turned.

Every pro golfer hopes to play the lucrative and prestigious Professional Golf Association Tour. But to do that, at least until the Martin case, you had to follow the PGAs rules, one of which is a ban on golf carts. Carts are fine for friendly duffers out for a mornings recreation on the local course, the PGA reasons, but not at the top levels of competition, where stamina is as integral to the game as putting. So in 1997 it denied Martins request for permission to ride a cart in the Hooters Tour. PGA Commissioner Tim Fenchem expressed apparently sincere regret, but, he explained, the principle that no competitor should get any special advantage came first.

In response, Martin went before federal magistrate Thomas M. Coffin to argue that the PGA was violating the 1990 Americans With Disability Act, which bars discrimination against the handicapped in all "public accommodations," and requires employers to make "reasonable accommodations" for employees with disabilities. First arguing that he should count as an "employee" of the PGA, and then that golf courses are public areas, Martins lawyers persuaded Coffin to issue an injunction requiring the PGA to let Martin use a cart in the Hooters. In an effort to maintain a level playing field, which anti-discrimination laws always overturn, the PGA gave every entrant the cart option, but Martin alone took it up.

The issue came to trial early this year when Martin sought to participate in the Nike Tour, a level of competition just below that of the PGA Tour itself. The defense deposed Jack Nicklaus and Arnold Palmer as expert witnesses--you can hardly get more expert than that--testifying that walking reduces the effectiveness of ones golf game and therefore is a legitimate subject for rule-making.

But Martins lawyers had some new weapons of their own. They pressed the argument that the PGA allows carts for the older pros in its Senior Tour, so sometimes accommodates physical conditions akin to Martins. But their most effective ploy was the nakedly emotional appeal of a videotape about Martins leg, accompanied, when shown in court, by the weeping of Martins mother seated at the lawyers table. Martin himself testified that some days his leg was so bad he couldnt shower. Predictably, he won. The judge, deciding that the field of play is as "public" as the spectators gallery, ordered the PGA to permit Martin the use of a cart in the Texas Open.

This was less a victory of emotion over the facts than of legislation over reason. For once a law like the ADA is on the books, fairness or common sense go out the window. It is useless to point out that Martin is not really able to compete, since the government has decided that some privileged disadvantages should be neutralized. It is useless to point out that these privileges are unfair, since, with the ADA, civil rights law has ceased even giving lip service to the principle that everyone should play by the same rules. When a disability advocate, gloating over Martins victory, announced that "the ADA is about opportunity," George Orwell was heard to rotate in his grave.

Still, social revolutionaries face the tricky matter of public resistance: how to persuade people that invasions of individual liberty and property like the ADA are really highly desirable? Some of the rough-and-ready propaganda tactics that have emerged in the last half-century received additional polish in the Martin case.

The first rule is to personify the new domestic order with an attractive protagonist. Casey Martin is just that: youthful, handsome, well-spoken, modest, brave (he risks losing his leg every time he pursues a ball in the rough), unassuming (he cried when he won his case) and unspoiled (his mother was in court, for goodness sake).

You may recall the equally mediagenic figures of the initial civil rights battles. There is a well-known painting by Norman Rockwell of a neat, pretty, but above all tiny, tiny little black girl on her way to school being escorted by federal marshals past hostile whites. Opposing federal intervention equals wanting to crush this delicate flower; likewise, opposition to the ADA becomes the wish to thwart handsome, etc. Mr. Martin.

(A few years ago the Achilles Club, people who race in wheelchairs, demanded entry into the New York Marathon. The New York Roadrunners Club objected not only on the obvious grounds that wheels have no place in a footrace, but also because wheelchairs can be propelled so fast that an Achilles would surely defeat the fleetest marathoner. New York City eventually let the Achilles race in the Marathon, but not as official entrants. Pusillanimous as this compromise was, I would not want to be the one to tell gallant men, who struggle against the cruelty of fate to remain fit, that they should get lost.)  

The second rule is to make sure that the initial concessions demanded in the name of civil rights seem intrinsically reasonable. Look, a great many people will be inclined to say, its not as if Martin was asking for fifty yards added to his drives off the tee. He just wanted to stay off his feet between shots, which, as Judge Coffin remarked, has nothing to do with the "essential nature" of golf.

In the same spirit, a friend once remarked to me that all that the blacks who sat in at lunch counters wanted was the right to have a sandwich. Who can object to wanting a sandwich, even it means trampling property rights? Likewise, sexual harassment laws were first broached in connection with obnoxious male behavior that nobody would want to defend in its own right. This "start small" ploy again traps critics of nouveau rights in a rhetorical bind, this time that of opposing simple and human desires. Who would deny Casey Martin a chance to pursue a sport he loves for the sake of abstract principles like property rights?

But even the initial breaches of principle are never wholly innocent. Despite the confidence of Judge Coffin that he can discern the "essence" of golf, only regular participants in a sport, or any activity, can understand its demands. And the fact is that golf does indeed require stamina. Every physical activity does. Major-league pitchers do pregame wind sprints in the outfield: while throwing a baseball per se involves no running, a pitcher with that little extra in the ninth inning will outlast an opponent who lacks it. So with golf: walking on a hot day takes something out of you, and victory in the final round of a tournament, when four players are tied for the lead and ten others are bunched a few strokes behind them, may hinge on what each competitor has left.

Economists call this phenomenon efficiency at the margin. When everybody is going all out, relative differences in performance depend on minuscule differences in ability, determination, and conditioning. Of the millions of golfers in the U.S., only the top few hundred are allowed to participate in PGA Tour events. All of them, in other words, are extremely good. Outcomes at that level of skill are sensitive to small marginal advantages, including those in fitness.

Golf, it is said, is a mental game, but mental games require stamina just as surely as do more overtly "physical" games like basketball and hockey. Many chess masters put in hours per day of calisthenics before a major match. The reason will be obvious to anyone who has tried to concentrate after a restless night: fatigue makes it harder to do anything right. That includes hitting a little ball into a hole when success and failure may be separated by a hundredth of an inch. Golf is not strenuous, but it is no accident that top golfers like Greg Norman and Tom Weisskopf stay in excellent physical condition.

So the Martin case raises real issues of fairness after all. Imagine Martin a one-stroke winner of a tournament held on four hot, muggy midsummer days. Could not the runner-up complain that he might have won had he been permitted to use a cart for just enough to have felt as fresh as Martin did? And what of the guy who finishes out of the money because of a recurring stiff neck --nothing with a clinical name like "Klippel-Trenaunay-Weber," not an official ADA handicap (as alcoholism and drug addition are), but still a contributor to defeat?

Can anyone with any complaint demand enough "accommodation" to enter the last hole of the last round in precisely the same state of readiness as everyone else? It is hard to predict developments along these lines. But just as the courts have conjured "sexual harassment" doctrine from the 1964 Civil Rights Act, they are quite up to inventing a notion of "competitive equity" on the basis of the ADA.

One can certainly see a test case arising when some lame child in a public elementary school--where skill levels are not the point--demands that dodge ball be slowed so he can derive the same benefits from it that the other children do. (His parents pay equal taxes, after all.) Then a triskadecaphobic shortstop might ask that the tryouts for a minor league team not be scheduled for March 13. Next, an enterprising civil rights lawyer will sue to lower basketball nets to 8 feet, to accommodate all the shorties that cant play now. And come to think of it, why do bowling balls have to be so darn heavy? Dont call this a contrived parade of horrors that will never take place. You can almost hear the marching band now.

One of Martins lawyers inadvertently gave the game away when he remarked at a press conference that golf "is the way Casey makes his living." No. Golf is the way Martin would like to make his living. If he cannot --perhaps because he is unable to conform to rules that all other golfers are expected to meet--he is free to try his hand elsewhere. And just as the PGA may not force him to play golf, neither he nor the state has any right to force the PGA to meet his wishes.

Not so long ago, laws were mostly against various actions. "There ought to be a law" expressed a desire to keep people from doing something, generally a thing annoying to others. Civil rights law has changed this very basic conception, for it tells people what to do: who to hire, who to promote, and, now, what rules to adopt in athletic competition. That is the real civil rights revolution.

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Michael Levin, an adjunct scholar of the Mises Institute, is professor of philosophy at the City University of New York.

FURTHER READING: Murray N. Rothbard, Freedom, Inequality, Primitivism, and the Division of Labor (Auburn, Ala.: Mises Institute, 1991) and Thomas J. DiLorenzo, Handicapping the Handicapped: State Intervention for the "Differently Abled" (Auburn, Ala.: Mises Institute, 1991).

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