Tillman v. Recreation Association, Inc 8212 1136, WHEATON-HAVEN

• Court: United States Supreme Court
• Writing for the Court: BLACKMUN
• Citation: 410 U.S. 431,93 S.Ct. 1090,35 L.Ed.2d 403
• Parties: Murray TILLMAN et al., Petitioners, v. RECREATION ASSOCIATION, INC., et al. —1136
• Docket Number: No. 71,WHEATON-HAVEN
• Decision Date: 27 February 1973

410 U.S. 431 93 S.Ct. 1090 35 L.Ed.2d 403 Murray TILLMAN et al., Petitioners,

v.

WHEATON-HAVEN RECREATION ASSOCIATION, INC., et al.

No. 71—1136. Argued Nov. 15, 1972. Decided Feb. 27, 1973.

Syllabus

Respondent association (Wheaton-Haven) operates a community swimming pool, use of which is limited to white members and their white guests. Under Wheaton-Haven's bylaws, a person residing within a geographic preference area, unlike one living outside that area, needs no endorsement for membership from a current member; receives priority (if the membership is full) over all but those who have first options; and (if an owner-member selling his house) can confer a first option for membership on his vendee. Petitioners—the Presses, a Negro couple who bought a home in the preference area from a nonmember, and were denied membership for racial reasons; a white couple, members of Wheaton-Haven, whose Negro guest was refused admission to the pool for racial reasons; and the guest—brought suit for declaratory and injunctive relief under the Civil Rights Acts of 1866, 1870, and 1964, 42 U.S.C. §§ 1982, 1981, and 2000a et seq. The District Court granted respondents' motion for summary judgment. The Court of Appeals affirmed, holding that, because Wheaton-Haven membership rights could not be leased or transferred, the case was distinguishable from Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386, making § 1982 unavailable to the Presses, and agreeing with the District Court that Wheaton-Haven was a private club within the meaning of 42 U.S.C. § 2000a(e), and therefore implied an exception to § 1982. Held:

1. Respondents' racially discriminatory membership policy violates 42 U.S.C. § 1982. The preferences for membership in Wheaton-Haven gave valuable property rights to white residents in the preference area that were not available to the Presses, and this case is therefore not significantly distinguishable from Sullivan, supra. Pp. 435—437.

2. Wheaton-Haven is not a private club within the meaning of § 2000a(e), since membership, until the association reaches its full complement, 'is open to every white person within the geographic area, there being no selective element other than

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race,' Sullivan, supra, 396 U.S., at 236, 90 S.Ct., at 404. Wheaton-Haven is thus not even arguably exempt by virtue of § 2000a(e) from § 1982 or § 1981. Pp. 438—440.

4 Cir., 451 F.2d 1211, reversed and remanded.

Allison W. Brown, Jr., Washington, D.C., for petitioners.

Henry J. Noyes, Rockville, Md., for respondents Wheaton-Haven Recreation Association, Inc., and others.

John H. Mudd, Baltimore, Md., for respondent E. Richard McIntyre.

Mr. Justice BLACKMUN delivered the opinion of the Court.

Wheaton-Haven Recreation Association, Inc., a non-profit Maryland corporation, was organized in 1958 for the purpose of operating a swimming pool. After a membership drive to raise funds, the Association obtained zoning as a 'community pool' and constructed its facility near Silver Spring, Maryland. The Association is essentially a single-function recreational club, furnishing only swimming and related amenities.¹

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Membership is by family units, rather than individuals, and is limited to 325 families.² This limit has been reached on at least one occasion. Membership is largely keyed to the geographical area within a three-quarter-mile radius of the pool.³ A resident (whether or not a homeowner) of that area requires no recommendation before he may apply for membership; the resident receives a preferential place on the waiting list if he applies when the membership is full; and the resident-member who is a homeowner and who sells his home and turns in his membership, confers on the purchaser of his property a first option on the vacancy created by his removal and resignation. A person residing outside the three-quarter-mile area may apply for membership only upon the recommendation of a member; he receives no preferential place on the waiting list if the membership is full; and if he becomes a member, he has no way of conferring an option upon the purchaser of his property. Beyond-the-area members may not exceed 30% of the total. Majority approval of those present at a meeting of the board of directors or of the general membership is required before an applicant is admitted as a member.

Only members and their guests are admitted to the pool. No one else may gain admission merely by payment of an entrance fee.

In the spring of 1968 petitioner, Harry C. Press, a Negro who had purchased from a nonmember a home within the geographical preference area, inquired about

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membership in Wheaton-Haven. At that time the Association had no Negro member. In November 1968 the general membership rejected a resolution that would have opened the way for Negro members. Dr. Press was never given an application form, and respondents concede that he was discouraged from applying because of his race.

In July 1968 petitioners Murray and Rosalind N. Tillman, who were husband and wife and members in good standing, brought petitioner Grace Rosner, a Negro, to the pool as their guest. Although Mrs. Rosner was admitted on that occasion, the guest policy was changed by the board of directors, at a special meeting the following day, to limit guests to relatives of members. Respondents concede that one reason for the adoption of this policy was to prevent members from having Negroes as guests at the pool. Under this new policy Mrs. Rosner thereafter was refused admission when the Tillmans sought to have her as their guest. In the fall of 1968 the membership, by resolution, reaffirmed the policy.

In October 1969 petitioners (Mr. and Mrs. Tillman, Dr. and Mrs. Press, and Mrs. Rosner) instituted this civil action against the Association and individuals who were its officers or directors, seeking damages and declaratory and injunctive relief, particularly under the Civil Rights Act of 1866, now 42 U.S.C. § 1982,⁴ the Civil Rights Act of 1870, now 42 U.S.C. § 1981, and Title II of the Civil Rights Act of 1964, 78 Stat. 243, 42 U.S.C. § 2000a et seq. The District Court, in an unreported opinion, held that Wheaton-Haven was a private club and exempt from the nondiscrimination provisions of the statutes. It granted summary judgment for defendants. The

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Court of Appeals affirmed, one judge dissenting. 451 F.2d 1211 (C.A.4 1971). It later denied rehearing en banc over two dissents, id., at 1225. We granted certiorari, 406 U.S. 916, 92 S.Ct. 1770, 32 L.Ed.2d 115 (1972), to review the case in the light of Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969).

I

In Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), this Court, after a detailed review of the legislative history of 42 U.S.C. § 1982, id., at 422—437, 88 S.Ct. at 2194—2202, held that the statute reaches beyond state action and is not confined to officially sanctioned segregation. The Court subsequently applied § 1982 in Sullivan to private racial discrimination practiced by a nonstock corporation organized to operate a community park and playground facilities, including a swimming pool, for residents of a designated area. The Presses contend that their § 1982 claim is controlled by Sullivan. We agree.

A. The Court of Appeals held that § 1982 would not apply to the Presses because membership rights in Wheaton-Haven could neither be leased nor transferred incident to the acquisition of property. 451 F.2d, at 1216—1217. In Sullivan, the Court concluded that the right to enjoy a membership share in the corporation, assigned by a property owner as part of...