Perkins v. New Orleans Athletic Club

• Decision Date: 05 August 1976
• Docket Number: Civ. A. No. 75-2325.
• Citation: 429 F. Supp. 661
• Parties: Thomas P. PERKINS, Jr., Plaintiff, v. NEW ORLEANS ATHLETIC CLUB, Defendant.
• Court: U.S. District Court — Eastern District of Louisiana

429 F. Supp. 661

Thomas P. PERKINS, Jr., Plaintiff, v. NEW ORLEANS ATHLETIC CLUB, Defendant.

Civ. A. No. 75-2325.

United States District Court, E. D. Louisiana.

August 5, 1976.

COPYRIGHT MATERIAL OMITTED

John P. Nelson, Jr., Nelson, Nelson & Lombard, Ltd., and Robert F. Azar, New Orleans, La., for plaintiff.

Harry P. Gamble Jr., New Orleans, La., for defendant.

ALVIN B. RUBIN, District Judge.

There remain three final issues in this case:

I. APPLICABILITY OF SECTION 1981

The plaintiff, who is black, contends that 42 U.S.C. Section 1981, which guarantees the right of any person to make and enforce contracts on the same basis as white persons, requires the NOAC to admit him to membership and thus to contract with him. This issue was left open pending the Supreme Court's decision in Runyon v. McCrary, 1976, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415.

Runyon v. McCrary dealt with the applicability of Section 1981 to private, commercial schools. In its opinion, the court dealt with the question of admission to such schools, and said that the issues it was concerned with "do not present any question of the right of a private social organization to limit its membership on racial or any other grounds." Runyon v. McCrary, supra, at 167, 96 S.Ct. at 2592. It cited, with apparent approbation, the decision in Moose Lodge No. 107 v. Irvis, 1972, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627, which was discussed at length in a prior opinion in this case.

In Runyon the court decided that this Section, derived from the Civil Rights Act of 1866, does not merely remove legal disabilities to contract; the statute goes further and reaches "private acts of racial discrimination;" it prohibits a private person from refusing to contract with a black person when he would willingly do so with a white. It is therefore apparent that Section 1981 reaches some non-governmental (i. e., private) conduct and requires business concerns and commercial schools to deal with a black person on the same basis offered to white persons.

In footnote 10 of its opinion, the court discussed whether the "private club or other (private) establishment" exemption in Section 201(e) of the Civil Rights Act of 1964, 42 U.S.C. § 2000a(e) "operates to narrow § 1 of the Civil Rights Act of 1866." It said:

As the Court of Appeals implied, that exemption, if applicable at all, comes into play only if the establishment is "not in fact open to the public . . ." 42 U.S.C. § 2000a(e). See McCrary v. Runyon, 4 Cir., 515 F.2d 1082, at 1088-1089. . . .

The pattern of exclusion is thus directly analogous to that at issue is Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 90 S.Ct. 400, 24 L.Ed.2d 386, and Tillman v. Wheaton-Haven Recreation Assn., 410 U.S. 431 93 S.Ct. 1090, 35 L.Ed.2d 403 where the so-called private clubs were open to all objectively qualified whites — i. e., those living within a specified geographic area.

Moreover, it is doubtful that a plausible "implied repeal" argument could be made in this context in any event. Implied repeals occur if two acts are in irreconcilable conflict. Radzanower v. Touche Ross & Co., 426 U.S. 148, 153 96 S.Ct. 1989, 1993, 48 L.Ed.2d 540. Title II of the Civil Rights Act of 1964, of which the "private club" exemption is a part, does not by its terms reach private schools. Since there would appear to be no potential for overlapping application of § 1981 and Title II of the 1964 Act with respect to racial discrimination practiced by private schools, there would also appear to be no potential for conflict between the § 1981 and Title II's "private club" exemption in this context. See Note, The Desegregation of Private Schools: Is Section 1981 the Answer?, 48 N.Y.U.L.Rev. 1147, 1159 (1973).

At 172, 96 S.Ct. at 2595.

This discussion implies that the private establishment exemption remains operative. This interpretation is strengthened to some extent by the statements in Mr. Justice Powell's concurrence:

(A)s the Court of Appeals suggested, some contracts are so personal "as to have a discernible rule of exclusivity which is inoffensive to § 1981. 515 F.2d, at 1089.

In Sullivan v. Little Hunting Park, supra, we were faced with an association in which "(t)here was no plan or purpose of exclusiveness." Participation was "open to every white person within the geographic area, there being no selective element other than race." 396 U.S. at 236, 90 S.Ct. 400 at 404. See also Tillman v. Wheaton Haven Recreation Assn., supra, at 438, 93 S.Ct., 1090 at 1094. In certain personal contractual relationships, however, such as those where the offeror selects those with whom he desires to bargain on an individualized basis, or where the contract is the foundation of a close association (such as, for example, that between an employer and a private tutor, babysitter, or housekeeper), there is reason to assume that, although the choice made by the offeror is selective, it reflects "a purpose of exclusiveness" other than the desire to bar members of the Negro race. Such a purpose, certainly in most cases, would invoke associational rights long respected.

The case presented on the record before us does not involve this type of personal contractual relationship.

At 187, 96 S.Ct. at 2602.

(I) do not suggest that a "bright line" can be drawn that easily separates the type of contract offered within the reach of § 1981 from the type without. The case before us is clearly on one side of the line, however defined, and the kindergarten and music school examples are clearly on the other side. Close questions undoubtedly will arise in the grey area that necessarily exists inbetween. But some of the applicable principles and considerations, for the most part identified by the Court's opinion, are clear: Section 1981, as interpreted by our prior decisions, does reach certain acts of racial discrimination that are "private" in the sense that they involve no state action. But choices, including those involved in entering into a contract, that are "private" in the sense that they are not part of a commercial relationship offered generally or widely, and that reflect the selectivity exercised by an individual entering into a personal relationship, certainly were never intended to be restricted by the Nineteenth Century Civil Rights Acts. The open offer to the public generally involved in the case before us is simply not a "private" contract in this sense.

At 188, 96 S.Ct. at 2603.

Although Section 1981 reaches some private contracts, it does not reach all associational relationships. Somewhere between the open-ended invitations of a private commercial school (which 1981 does reach) and a small class "operated on the basis of personal invitations extended to a limited number of preidentified students," the line must be drawn that limits the reach of section 1981.

In Runyon, the schools whose admission policies were attacked were described as "private, commercially operated, nonsectarian schools." "(T)he schools would have received payments for services rendered, and the prospective students would have received instruction in return for those payments."

The court relied on findings below that the "schools are private only in the sense that they are managed by private persons and they are not direct recipients of public funds. Their actual and potential constituency, however, is more public than private." 515 F.2d at 1089, quoted in Mr. Justice Powell's concurrence. At 188, 96 S.Ct. at 2602.

"The schools extended a public offer open, on its face, to any child meeting certain minimum qualifications who chose to accept. They advertised in the `yellow' pages of the telephone directories and engaged extensively in general mail solicitation to attract students. The schools are operated strictly on a commercial basis, and one fairly could construe their open-end invitations as offers that matured into binding contracts when accepted by those who met the academic, financial, and other racially neutral specified conditions as to qualifications for entrance. There is no reason to assume that the schools had any special reason for exercising an option of personal choice among those who responded to their public offers."

At 188, 96 S.Ct. at 2602-2603.

The NOAC operates on a different basis than the Bobbie's Private School or Fair-fax-Brewster School, which were considered in Runyon.

As stated in the prior opinion, the NOAC "does not advertise membership to the public; it is non-profit and it is run by the senior members; it does not fulfill a vital community role; no contention is made that it receives governmental support; it exacts substantial dues without regard to the extent of the use of its facilities; except for the public affairs it sponsors and the use of its meeting room, it generally denies use of its facilities to any but members and their guests; its membership is of moderate size; it is not connected with a larger establishment that is a public accommodation; its organizers had the intention of constituting a private club; its structure has not been altered since passage of the Civil Rights Act of 1964; it maintains membership admission procedures; and its members do have a nexus of common interest."

On these facts, Runyon and the privacy consideration set forth at length in the prior opinion would require the conclusion that Section 1981 does not compel the NOAC to admit Mr. Perkins to membership.

II. MR. PERKINS' STANDING TO SUE

The NOAC contends that Mr. Perkins sought full membership in its organization. This has been denied him. He did not seek specifically each item of relief awarded him. It is therefore suggested that he was not "aggrieved" by the NOAC's racially discriminatory actions in each specific instance and had no standing to raise these issues. But Mr. Perkins sought an entire bundle of rights. When he was denied membership, he was denied each and every one of the rights he would have had if he had been admitted. The...