Hawkins v. North Carolina Dental Society
| Citation | 355 F.2d 718 |
| Decision Date | 20 January 1966 |
| Docket Number | No. 9612.,9612. |
| Parties | Reginald A. HAWKINS, on behalf of himself and others similarly situated, Appellant, v. NORTH CAROLINA DENTAL SOCIETY, an unincorporated association, and its officers, W. B. Sherrod, President, L. Franklin Bumgardner, Vice-President, Luther Butler, President-elect, and S. B. Towler, Secretary-Treasurer, Second District Dental Society, Component of the North Carolina Dental Society, an unincorporated association and its officers, William F. Yelton, President, James A. Harrell, President-elect, Fleming H. Stone, Vice-President, O. J. Freund, Editor, and James E. Graham, Secretary-Treasurer, Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
Jack Greenberg, New York City (Frank H. Heffron, New York City, and Thomas H. Wyche, Charlotte, N. C., on brief), for appellant.
William T. Joyner, Raleigh, N. C. (R. C. Howison, Jr., and Joyner & Howison, Raleigh, N. C., on brief), for appellees.
Before HAYNSWORTH, Chief Judge, and SOBELOFF, BOREMAN and BRYAN, Circuit Judges.
We conclude that the record requires findings that the North Carolina Dental Society's exclusion of this Negro dentist from its membership was state action within the prohibitions of the Fourteenth Amendment and that it was a discriminatory denial to him of the equal protection of the laws.
The plaintiff, a practicing dentist, licensed by the State of North Carolina, sought admission to the North Carolina Dental Society and its regional component, the Second District Dental Society, membership in the latter being a prerequisite to membership in the former. There is presently no Negro member of those societies, and the plaintiff was unable to obtain the recommendations of two white dentist members. Without such recommendations, his application was not even eligible for consideration. Feeling that his exclusion was a discrimination because of his race, he then brought this class action for injunctive relief. We find that he was entitled to it.
The District Court grappled with the problem earnestly, but it did so in terms of the statutes as they appeared at the time of trial. Focus of attention there, however, deprives the statutes of the strong coloration which post-litigation history provides. The District Court was able to find, quite correctly, that, at the time of trial, in theory, any licensed dentist could be elected as a member of the Board of Dental Examiners or appointed by the Governor as the dental member of the Medical Care Commission or the Mental Health Council. Other activities of the Society in aid of the State's dental school and its research efforts, of adequate dental care in state mental hospitals and other institutions, and of appropriate fee schedules for dental services in State-sponsored programs were found to be "voluntary" and, of course, not state action. The District Court thus concluded that the Society's activities were private and not subject to the limitations of the Fourteenth Amendment.1
We think we should start at the beginning.
When the plaintiff sought admission to membership in the Society and when this action was begun, the statutes required that the six members of North Carolina's Board of Dental Examiners be elected by the Society.2 Then, one member of the North Carolina Medical Care Commission was required to be the nominee of the Society,3 while a representative of the Society had to be a member of the Mental Health Council.4 There were also, the "voluntary" programs in aid of the state's dental school, hospital accreditation, dental care in state institutions and the promulgation of fee schedules for use by the state's industrial commission.
The Society had federal, as well as state, recognition, for the Veterans Administration required the Society's approval of applications by dentists to participate in the Administration's program.
When the Society declined consideration of the plaintiff's application for admission, therefore, and when this action was commenced, the state's statutes empowered the Society to name the six members of the North Carolina Board of Dental Examiners. They did much more. The dental member of the state's Medical Care Commission was required to be the nominee of the Society, and one member of the state's Mental Health Council was required to be a member of the Society. The other statutory recognition of the Society may be relegated to a back seat for the moment, for the ones upon which we now concentrate clearly authorized the Society to influence, if not to control, state functions.
The Board of Dental Examiners, the Medical Care Commission and the Mental Health Council are creatures of the State of North Carolina. The functions they serve are concededly public functions of the state. The questions at the time this action was commenced, therefore, were whether or not, the Society's exercise of its statutory powers to nominate and elect state officers5 was state action, and, if so, whether or not its control of its membership, in the light of the additional requirement that another state officer6 be a member of the Society, was also state action. The answers to these questions seem plain to us, but before we elaborate them we should refer to subsequent developments to put them in context.
After this controversy arose, § 90-22, N.C.Gen.Stat., was amended to delete the provision that the Dental Society name the members of the Board of Dental Examiners. Instead those members of the Board of Examiners who were not candidates to succeed themselves in that election were constituted a Board of Elections. Any licensed North Carolina dentist can now be nominated for election as a member of the Board of Examiners by a written petition signed by not less than ten licensed dentists and filed with the Board of Elections. The Board of Elections then prepares printed ballots containing the names of all nominees, one of which is mailed to each licensed dentist in the state, the eligible voters.
While the amendment of § 90-22 eliminated the role of the Society as such in the process of election of examiners and made it theoretically possible for a licensed, nonmember dentist to become a member of the Board of Examiners, there has been no substantial change in practical results. In the three elections held subsequent to the amendment there were three nominees for the two vacancies in the first one, but only two for the two vacancies in the second and third. In each of the latter two instances, the two nominees were declared elected without the formality of an election. All seven nominees in the three elections were members of the Society. At the time of the trial, all six Examiners were members of the Society, of course, and five of the six had been members of the Board prior to the amendment of § 90-22.7
In 1963, § 131-117 was amended to eliminate the provision that the dental member of the North Carolina Medical Care Commission was to be nominated by the Society. The amendment provided, instead, that the dental member of the Commission should be appointed by the Governor after requesting recommendations from the Society's president. At the same time, § 122-105 relating to the Mental Health Council was similarly amended. The amendments were sponsored by the Society.
At the oral argument in this Court, when reference was made to the fact that §§ 122-105 and 131-117, after the 1963 amendments, still contained explicit recognition of the Society's role in the nominating process, its attorney stated that if those provisions made the Society's conduct "state action," they could easily be eliminated when North Carolina's legislature met "next month." He was true to his word, and amendments were adopted deleting the requirements that the Governor solicit the recommendations of the Society's president when appointing the dental members of the Commission and the Council.
From the foregoing, it clearly appears that effective control of the practice of dentistry in North Carolina is in the Society. With respect to dentistry, the legislature leans heavily upon the Society. Its recommendations as to legislation are accepted, and embarrassing legislative recognition of its authority readily eliminated at its request. At the same time, while the statutes have undergone formal change at the Society's behest, there is no evidence of any change in its practical power to control the selection of the dental members of North Carolina's Boards, Commissions and Councils. The history of the three elections to the Board of Examiners following the amendment of § 90-22 demonstrates continuing control of the elective processes in the Society's inner clique.
The conclusion is inescapable that, when this action was begun, the Dental Society was performing important functions of the State. Exercise of its statutory powers to elect and nominate members of state boards and commissions was clearly state action. A similar conclusion has been reached with respect to a dental association whose powers were more indirect.8 An organization vested by statute with the power to control, or even to substantially influence, the selection of state officers functions as an arm of the state.9
Under the circumstances of this case, the subsequent watering down of the statutes cannot alter the result. What has happened here is closely in parallel to earlier attempts to divorce party primaries from the state for the purpose of avoiding barriers to the exclusion of Negroes. After the Supreme Court held that Negroes could not be excluded from participation in Democratic Party primaries in Texas,10 the statute was amended to delegate to the executive committees of the parties the power to prescribe qualifications for participation in the primaries. Party exclusion of Negroes under the amended statute was held to be unconstitutional, for the delegation of the power to discriminate was the substantial equivalent of its...
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Jackson v. Godwin
...even though the policy was non-discriminatory on its face and based on otherwise rational considerations. In Hawkins v. North Carolina Dental Society, 355 F.2d 718 (4th Cir., 1966), the requirement of endorsement by two members of an all-white quasi-governmental society was invalidated wher......
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...nominations for a state agency is, at least in performing the selection process, performing a state function. Hawkins v. North Carolina Dental Society, 4 Cir. 1966, 355 F.2d 718. As Hawkins pointed out, the situation is analogous to that created when the Jaybird Democratic Association in Fo......
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