§6.

7 THE PRIVATE CLUB EXEMPTION

§6.7.1 Using Title II to Protect Racist Clubs

Section 201(e) of Title II excludes from coverage “a private club or other

establishment not in fact open to the public.” As could have been expected, this provision

has encouraged proprietors of hitherto open facilities to form “private clubs” which, in

many instances, have only one membership criterion — race. In the obvious instances,

the courts have branded such schemes as “shams” and have enjoined the discriminatory

policies.1

Neighborhood associations that provide facilities such as swimming pools, tennis

courts, and golf courses, are not exempt as “private clubs.” Courts have found that under

42 U.S.C.A. §1982, which guarantees property rights of all citizens, a community

recreational corporation open to all white residents can not deny membership to or use by

black residents.2

In spite of judicial diligence in ferreting out public facilities in fact that try to exclude

blacks under the private club exemption, hundreds of such operations continue to exist

and to discouraging black membership in subtle ways. The few blacks who seek

admission are turned away with a “this is a private club” excuse so flimsy that the
1
United States v. Richberg, 398 F.2d 523 (5th Cir. 1968) (restaurant transformed into the “Dixie Dinner
Club”); United States v. Johnson Lake, Inc., 312 F. Supp. 1376 (S.D. Ala. 1970) (previous patronage was
the only qualification for membership to formerly all-white recreational facility); United States v.
Northwest La. Restaurant Club, 256 F. Supp. 151 (W.D. La. 1966) (club consisted of 90 white-owned
restaurants formerly operated on a segregated basis).
2
Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969); see also Tillman v. Wheaton-Haven
Recreational Assn., Inc. 410 U.S. 431 (1973) (finding that a swimming pool association comprised of
neighbors who joined together to build the pool for use by persons living within a three-quarter-mile radius
of the facility could not deny membership to a black family that purchased a home within that area; denial
of membership would violate rights protected by both Title II and 42 U.S.C. §1982); Wright v. The
Salisbury Club, Ltd., 632 F.2d 309 (4th Cir. 1980) (holding that a club offering sports and dining facilities
to all members of a subdivision, as well as to some nonresidents, was not a private club under Title II);
Daniel v. Paul also involved allegations rejected by the Court that the facility was a private club.
victims, enraged and demeaned, conclude that litigation to affirm their rights would add

farce to what, in any event, is injury no court order can heal.

There are also the thousands of “bona fide” clubs and organizations — blatantly racist

— which, by the grace of congressional exemption, continue policies and practices that

deny the personal dignity of all blacks simply because they are not open to all whites.

Section 201(e) is not justified by any First Amendment right of privacy or association

argument. The fraternal groups that lobbied for this exemption include those with

thousands of members. The sponsors of Title II were led to believe that without a private

club exemption the whole of Title II might go down to defeat. The private club This

exemption then stands less as a monument to First Amendment rights than as a still viable

and damaging holdover of the Plessy philosophy, most frightening in its reminder of the

antiblack political power still available to mainstream whites, aided by white elites, when

both are determined to protect what they deem are joint interests.

Even the exclusive small club and fraternal groups that arguably may have protected

interests in privacy and association may be adequately protected by due process rights

enabling them to rebut a discriminatory presumption by showing that the basis for

rejecting a black complainant was nonracial.

 Although the Supreme Court and lower courts have discussed the requisite features of

a private club,3 the dimensions of the exemption remain undefined.4 The very presence of

§201(e) reflects the congressional intention to permit private clubs to use race as one

criterion of membership, but if the black applicant has the same qualifications as white

applicants, including the often necessary sponsorship of one or more members, his

rejection would seem to be solely on the basis of race, an inadequate defense under

Sullivan.5

Thus, more than three decades after the enactment of Title II, private clubs continue

to occupy an anomalous position in the scheme of public accommodations laws. At the

same time, however, present legal action seeking relief under Title II for discrimination in

private clubs has become more and more rare. With the state of the law so uncertain,

organizations feel little pressure to change discriminatory membership policies until

forced to do so by legal action.6

Note: African Americans and All-White Social Clubs

James Durham realized that he faced an uphill battle when he brought a suit after

being denied admission into an 80-member fishing, hunting, and boating club.7 Durham

3
See, e.g., Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 236 (1969) (indicating that a club must
follow some “plan or purpose of exclusiveness”); Daniel v. Paul, 395 U.S. 298 (1969) (indicating that the
presence of a profit motivation reflects a public accommodation rather than a club); see also Wright v. Cork
Club, 315 F. Supp. 1143, 1153 (S.D. Texas 1970) (suggesting guidelines for distinguishing a bona fide club
from subterfuge: 1. specific screening process for applicants; 2. controlled by the membership; 3. nonprofit,
existing for the benefit and pleasure of its members; and 4. directs publicity and newsletters only to its
membership); Cornelius v. Benevolent Protective Order of the Elks, 382 F. Supp. 1182 (D. Conn. 1974)
(examining the size of club dues and circumstances of the club’s origin).
4
Welsh v. Boy Scouts, 993 F.2d 1267 (7th Cir.), cert denied, 510 U.S. 1012 (1993) (concluding that the
Boy Scouts are not covered by Title II, and if it were, it would be within the private club exception).
5
See Watson v. Fraternal Order of Eagles, 915 F.2d 235 (6th Cir. 1990) (finding that §1981 reached racial
discrimination by a private club that was exempt under Title II).
6
Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987).
7
Durham v. Red Lake Fishing & Hunting Club, Inc., 666 F. Supp. 954 (W.D. Tex. 1987).
was recommended highly by another member as “the son of Walter Durham” who had

worked for the Club since its inception in 1938. But Durham received five negative votes

and that, under Club rules, mandated his rejection. The Club rejected only two applicants

in its history.

After an almost too-careful consideration of the facts and applicable law, the district

court found for Durham. Thirty years ago, such a victory would have seemed another

milestone in the long effort to eradicate islands of racial discrimination that stubbornly

remained after the enactment of Title II. Unfortunately, the Red Lake Hunting and

Fishing Club represents similar groups all over the country whose members’ sense of

racial superiority requires the exclusion of even a black man whose father has served the

club for more than forty years.

§6.7.2 Fighting Exclusion in Private Business Clubs

Efforts to get Congress to distinguish between private social clubs and groups

organized primarily for business purposes have gained little support. Business-related

groups are largely adjuncts of the marketplace, organized to provide business-related

services and funded by dues paid by businesses and employers. The impressive lobbying

power of these clubs and the cooling of congressional ardor for civil rights makes it

unlikely that even a limited amendment would pass.8

In the face of Title II’s private club exemption, courts have distinguished business-

supported clubs from so-called private clubs in upholding state or municipal laws barring

discrimination against women. The Supreme Court has found that under these more

8
See United States v. Glass Menagerie, Inc., 702 F. Supp. 139 (E.D. Ky. 1988) (holding that nonselective
use of VIP entrance cards to exclude blacks from a restaurant-nightclub was a violation of rights under Title
II).
expansive anti-discrimination laws the public’s interest in affording individuals equal

opportunity outweighed the private club members’ rights to private association.9

In Rotary International v. Rotary Club of Duarte,10 for example, women invoked state

anti-discrimination laws to successfully challenge the exclusionary policies of a large

private club whose dining and other social facilities were places where business was

conducted. Upholding the California statute that required an international nonprofit

corporation of professional men to admit women members,11 the Supreme Court found

that the state statute did not violate the Rotarian’s First Amendment right of expressive

association.

Even in the face of such progress for women, discrimination continues. Challenges to

discriminatory practices, however, may require advocacy that circumvents the confines of

legislation, especially when seeking litigation remedies becomes time-consuming,

expensive, and futile given the narrowness of the range of clubs to which Title II applies.

Note: All-Male Golf Course Under Intense Fire for Excluding Women Members

One such example is a one-woman crusade to use a nonlitigation strategy to pressure

Augusta National, the elite all-male golf course that hosts the Masters tournament, to

open its doors to women. Martha Burk, President of the National Council of Women’s

9
New York State Club Assn. v. City of New York, 487 U.S. 1 (1988). The Court upheld a New York City
law that prohibited clubs from practicing discrimination based on race, creed, or sex, stating that the law
did not interfere with club activities or selectivity, except insofar as is necessary to prevent invidious
discrimination.
10
481 U.S. 537 (1987).
11
Unrue Civil Rights Act, Cal. Civ. Code Ann. §51 (West 1982). The Unrue Act is a California statute that
entitles all persons, regardless of sex, to full and equal accommodations, advantages, facilities, privileges,
and services in all business establishments in the state.
Organizations, sparked a debate over the club’s men-only policy by sending a single letter

to the club’s chairman, William Johnson, which drew an unexpectedly hostile response.12

Johnson, the club’s autocratic leader, announced publicly that women members are

not in the club’s foreseeable future and that the club would not capitulate to Burk’s

threats. Johnson’s reaction fed directly into Burk’s strategy. Because the majority of the

public either favor or are indifferent about Augusta National’s all-male policy, Burk’s

campaign intentionally targeted reporters, columnists, editorialists, and others whom

Burk calls a part of the “thinking class.”13

While Johnson argued that the private club had the right to selective association,

Burk’s response framed the discussion in terms of protecting women’s basic civil rights. 13

Regardless of the legal viability of her argument under federal protections, it has attracted

supportive editorials and op-eds criticizing the policy.14 A New York Times story

suggested that Augusta members settled for a sexist exclusionary policy because “no

prominent, powerful business leader can afford to be labeled a racist.”15 The first black

golf player was invited to join Augusta National in 1975.

Burk’s campaign tried to recruit the support of Tiger Woods, urging him to go as far

as boycotting the 2003 tournament. When his silence about the controversy began hurting

his image, Woods stated publicly, “Do I want to see a female member? Yes. . . . It would

12
Peter Boyer, Club Rules: The Antagonists in the Augusta Controversy Are More Complicated Than You’d
Think, New Yorker, Feb. 17, 2003, at 78. Bill Saporito, Getting Teed Off: A Women’s Group Is Targeting
Top CEO’s Who Are Members of All-Male Augusta National Golf Club, Time, Sept. 17, 2002, at 50.
13
Id.
14
Anti-discrimination lawyers are considering how to frame a lawsuit against Augusta National’s policy.
Alessandra Stanley & Bill Carter, CBS Staying Silent in Debate on Women Joining Augusta, N.Y. Times,
Nov. 25, 2002, at A1, col 1.
15
Id. See also Boyer, supra note 12; Saporito, supra note 12.
be nice to see everyone have an equal chance to participate, but there’s nothing you can

do about it.”16

Woods’s predicament reminds me of the story about the Catholic priest trying to get a

young black boy to join the church. The youth shook his head sadly. “I’m sorry, father. I

have enough problems being colored.”

Although the ultimate result of this pressure is uncertain, it has taken a toll on

Augusta National’s reputation. Republican party members seeking political appointments

have withdrawn their memberships. Prominent Augusta member, Thomas Wyman,

former CEO of CBS, the network that hosts the Masters each year, resigned in protest of

the policy, calling Johnson “pigheaded” in a New York Times article. And perhaps most

significantly, Augusta National released prospective sponsors from their contracts for the

April 2003 Masters tournament, requiring the club to pick up the tab.17

The Augusta National showdown highlights an alternative means for fighting

discrimination in private clubs where legislation has failed women and minorities.

Regardless of the outcome, Burk has already declared victory: “Augusta National has

now become emblematic of sex discrimination.”18

A positive corollary example seems to be the one of the Detroit Golf Club, which is

located in a city where three-fourths of the population is black. There were no black

members at the club until 1986. Today there are 60 blacks among the 800-strong

membership and the club even has an African-American on the board of directors now.19

16
Lawrence Donegan, Britian’s Craven Role in Golf War, Guardian Unltd., Dec. 15, 2002.
17
Patrick McGeehan, Low Profiles and No-Shows at Golf’s Showcase, N.Y. Times, Mar. 30, 2003, at 3-1.
18
Id.
19
See “The Changing Face of Private Clubs – The integration of African Americans into Private Golf
Clubs”, available online at http://findarticles.com/p/articles/mi_m0HFI/is_8_51/ai_63411415