Wright v. Cork Club

• Decision Date: 14 August 1970
• Docket Number: Civ. A. No. 67-H-706.
• Citation: 315 F. Supp. 1143
• Parties: Mrs. Noah WRIGHT, Plaintiff, v. The CORK CLUB et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

315 F. Supp. 1143

Mrs. Noah WRIGHT, Plaintiff, v. The CORK CLUB et al., Defendants.

Civ. A. No. 67-H-706.

United States District Court, S. D. Texas, Houston Division.

August 14, 1970.

COPYRIGHT MATERIAL OMITTED

Weldon H. Berry, Houston, Tex., Conrad K. Harper, New York City, for plaintiff.

Charles Kipple, Saccomanno, Clegg & Martin, Glenn H. McCarthy, Jr., Houston, Tex., for defendants.

Memorandum and Order

SINGLETON, District Judge.

Plaintiff, Mrs. Noah Wright, was denied membership in the Cork Club and the use of its facilities because she is a Negro. She brings this action against defendants, Cork Club, et al., seeking injunctive relief and claiming infringement of her rights under the Thirteenth and Fourteenth Amendments to the United States Constitution, the Commerce Clause (Art. I, Sec. 8, Cl. 3), Title II of the Civil Rights Act of 1964 (42 U.S.C. § 2000a et seq.), and 42 U.S.C. §§ 1981, 1982, and 1983. The parties have submitted this case to the Court on an agreed statement of facts, from which the following narrative is drawn.

In May, 1967, Ethel Banks, a Negro and a member of the Gamma Omega Chapter of the predominantly Negro Zeta Phi Sorority talked by telephone to defendant, Al Uhlenhoff, resident auditor of the Cork Club, regarding the possibility of the sorority's having a luncheon and style show at the Cork Club in October, 1967. Mrs. Banks explained at that time that neither the sorority nor any member thereof had membership in the Cork Club. Mr. Uhlenhoff was unaware of Mrs. Banks' race or the race of most Zeta Phi Beta members. She was assured by Mr. Uhlenhoff that membership was not necessary for use of the Cork Club's facilities and that the sorority members could be guests of defendant, Glenn H. McCarthy, president of the Cork Club. Mr. Uhlenhoff inquired whether any member of the sorority would like to become a member of the Club and volunteered to send Mrs. Banks application forms for that purpose. On May 29, 1967, Mr. Uhlenhoff mailed to Mrs. Banks a letter confirming the arrangements for the October luncheon and style show and enclosed several membership applications. Plaintiff filled out one of these applications, sent a check for $18.00, payable to the Cork Club, to cover one month's dues for a Class "A" member, and duly received her membership card.

On June 9, 1967, Mrs. Wright and Mr. and Mrs. Banks went to the Club for drinks. They were served. Mrs. Wright used her membership card and Mr. and Mrs. Banks were treated as guests of Mr. McCarthy. On June 14, 1967, Mrs. Wright and a friend were again served at the Club.

By a letter dated June 14, 1967, Mr. Uhlenhoff advised Mrs. Wright that "the matter of integration has never come before the membership of the Cork Club;" that the question of integration would be brought up at the next stated meeting in January, 1968; and that her membership card would not be active until the question was settled; Mr. Uhlenhoff also advised Mrs. Banks that the sorority's plans for a luncheon and style show at the Cork Club were cancelled. In June, 1967, a Negro physician resident in Houston, Dr. C. W. Thompson, applied for membership in the Club. By a letter dated June 20, 1967, Mr. Uhlenhoff returned Mr. Thompson's check in the amount of $18.00 "as the matter of integration has never come before the membership of the Cork Club, and, therefore, the membership committee at this time has no authority to act on your membership."

Except for Mrs. Wright, no Negro has ever been issued a membership card by the Cork Club. The sole ground upon which she was denied use of the Cork Club's facilities as a member was that the Cork Club did not wish to have Negro members. At a special meeting of the Class "A" members of the Cork Club on September 28, 1967, called for the single purpose of securing a vote on integration of the Club, 352 members voted against integration; 34 voted for integration; 8 were neutral.

The Cork Club is located on two floors of an office building on the edge of downtown Houston. The thirteenth floor, known as the Century Room, consists of a large dining room with a capacity of six hundred, where a fourteen piece orchestra appears regularly and "name" floor shows appear regularly. There are two facilities on the fourteenth floor— the Clover Room¹ and the Brass Rail. The Brass Rail is promoted as a luncheon facility for businessmen.

The Cork Club came into being in 1949, when its initial charter was filed with the Secretary of State of the State of Texas. In 1966 the charter was amended and a Certificate of Restated Articles of Incorporation under the Texas Non-Profit Corporation Act was issued. The Charter provides for two types of membership—Class "A" and Class "B". The Class "A" members, who are residents of Harris County, Texas, have the right to vote, hold office, endorse membership applications, and amend the by-laws.² The Class "B" members may take advantage of all the Cork Club facilities, but play no role in the governing of the Club. A Class "B" member may be what is termed a company member. A company pays a monthly fee for the first five of its officers, then company memberships are made available to each employee or agent that the company specifies. Initiation fees have been established for each type of membership, but these are often waived. The monthly dues are $6.00 per month for Class "B" members, $18.00 per month for Class "A" members, and $54.00 per month for the company that sponsors "company members." In 1967 there were 946 Class "A" members and 1,918 Class "B" members.³

The Charter of the Cork Club also establishes a six member Board of Directors, who are elected for a one year term by an annual meeting of the Class "A" members.⁴ Only Class "A" members can become directors. The Board of Directors must meet at least once a year following the Class "A" members' meeting. The Board of Directors may adopt rules for the Club, suspend or expel members for misconduct, and fix initiation fees and dues. The Board also elects the club officers—President, Vice President, Treasurer, and Secretary.⁵

The Board also has the duty of passing upon all applications for membership, but it may, and on past occasions has actually done so, delegate this duty to a Membership Committee composed of Glenn McCarthy, the president; William J. McCarthy, general manager,⁶ and Mrs. Shirley Swiryn, the secretary of the Cork Club Corporation. The Membership Committee meets once a week to examine the list of prospective members and check credit references, if any. The membership list is approved when two members of the committee have signed it. The "usual" practice is for one to submit an application showing the recommendation of a member, although such recommendation is not always required. On approximately 430 occasions out of some 1500 applications examined, a membership card has been issued without prior consideration by the Membership Committee. When the Membership Committee does pass on the applications the criteria by which they are judged are: (a) good credit, (b) no substantial doubt about character, and (c) white race. The Club asserts that it does reserve the right to disapprove a person for membership or terminate his membership privileges. Thus, even if an individual has not been passed on by the Committee, he is subject to some scrutiny. As is pointed out, "if a member, and especially a Class `A' member, had an objection to another member or an applicant such other member or applicant would have to be expelled or denied a membership.⁷ Although the record indicates that some memberships have been terminated by the Board,⁸ it does not indicate whether these terminations were the result of the objections of members or failure to pay dues or other bills.

Aside from the members, the Cork Club's facilities are used by guests of members or guests of the Club. Guest cards are issued only at the request of a member or at the request of the management of the Club. The facilities of the Club have been made available to individuals attending conventions in Houston.⁹ They have been treated as guests of the management and could use the facilities on a "cash only" basis. This has been done on more than one occasion. The Club has sent form letters to Houston-area teachers offering them "cash only" memberships at a reduced rate and making no mention of initiation fees. It has also sent form letters to certain individuals soliciting applications for memberships. These solicitations have drawn responses and have resulted in new members for the Cork Club.¹⁰

The Cork Club has paid for advertisements in the daily Houston papers.¹¹ The advertisement that has been submitted into evidence is in the form of a salute to the Houston Livestock Show and Rodeo. However, prominent in the ad is a picture of the entertainer starring at the Cork Club during that week and the names of the two entertainers who would star at the Cork Club for the next two weeks. The ad gives the times of the shows and extends a general invitation to attend the shows. The telephone number of the Cork Club is given for those who wish to make reservations. The ad does not indicate that the invitation is limited to members and their guests.¹²

The Cork Club also has a working arrangement with the publisher of two magazines distributed in the Houston area, whereby he and his staff are permitted to use the Cork Club free of charge and, in return, ads for the Cork Club are run in his magazines. One of the magazines is intended for travelers and local residents. It is distributed free to all hotels, motels, most restaurants, ticket offices, apartment buildings, the airport, train, and bus stations. The other magazine is aimed at the "executive" in Houston. Both magazines are designed, among other things, to provide their readers with information about the available entertainment and dining facilities in Houston.¹³

The financial statements of the Cork Club reflect that it has made...