Wright v. Salisbury Club, Ltd.

• Decision Date: 29 September 1980
• Docket Number: No. 79-1768,79-1768
• Citation: 632 F.2d 309
• Parties: Thomas WRIGHT, Jr., D.D.S., and Barbara B. Wright, Appellants, v. The SALISBURY CLUB, LTD., a Virginia corporation; Thomas J. Hampton; Frank G. Dolezal; Knox W. Ramsey; W. Larry Wallace; Raymond R. Beasley; Richard L. Carleton; Frank N. Cowan; Albert J. Dean; John T. Doherty; Nancy Phillips; Jack Sawyer; Charles P. Williams, Each of Whom are sued individually and in their official capacity as Directors of the Salisbury Club, Ltd., Appellees. United States, Amicus Curiae. National Club Association, Amicus Curiae. Conference of Private Organizations, Amicus Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 309

632 F.2d 309

Thomas WRIGHT, Jr., D.D.S., and Barbara B. Wright, Appellants, v. The SALISBURY CLUB, LTD., a Virginia corporation; Thomas J Hampton; Frank G. Dolezal; Knox W. Ramsey; W. Larry Wallace Raymond R. Beasley; Richard L. Carleton; Frank N. Cowan Albert J. Dean; John T. Doherty; Nancy Phillips; Jack Sawyer; Charles P. Williams, Each of Whom are sued individually and in their official capacity as Directors of the Salisbury Club, Ltd., Appellees United States, Amicus Curiae. National Club Association, Amicus Curiae. Conference of Private Organizations, Amicus Curiae.

No. 79-1768.

United States Court of Appeals, Fourth Circuit.

Argued June 4, 1980.

Decided Sept. 29, 1980.

Allison W. Brown, Jr., Washington, D. C. (Arthur F. Samuel and Robert A. Pustilnik, Richmond, Va., on brief), for appellants.

James M. Minor, Jr., Richmond, Va. (Minor, Marshall, Forb & Batzli, P. C., Donald W. Lemons, Parker, Pollard, Brown, Froman & Lemons, Inc., Richmond, Va., on brief), for appellees.

Carol E. Heckman, Dept. of Justice, Washington, D. C. (Drew S. Days, III, Asst. Atty. Gen., Walter W. Barnett, Dept. of Justice, Washington, D. C., on brief), for The United States as amicus curiae.

Robert A. Yothers, Seattle, Wash., on brief, for Conference of Private Organizations as amicus curiae.

Thomas P. Ondeck, Baker & McKenzie, Washington, D. C., on brief, for National Club Association as amicus curiae.

Before WINTER and HALL, Circuit Judges, and KIDD, ^* District Judge.

WINTER, Circuit Judge:

The plaintiffs, Thomas Wright and Barbara Wright, ¹ sued the Salisbury Club ² under 42 U.S.C. §§ 1981 and 1982 for denying them club membership because they are black. Although it found that the Wrights had been denied club membership because they were black, the district court denied them relief under § 1981, because it concluded that the Salisbury Club was a truly private club, and under § 1982, because it concluded that membership in the club was not "property" for the purposes of that statute. On both issues, we conclude to the contrary and we therefore reverse.

I.

The Salisbury Club, located near Richmond, Virginia, was established in 1963 by the developer of the adjacent Salisbury subdivision. ³ It is a privately-owned club which provides tennis, swimming, golf, and dining facilities for the use of its members. At first, residents of the Salisbury subdivision were formally given preference for membership in the club. In recent years the preference has been abolished to permit the club to attract new members without limitation. Currently, somewhat over half the members reside in the Salisbury subdivision, and until 1977, no resident of the Salisbury subdivision had been denied membership.

In May, 1977, the plaintiffs moved into a house that they had purchased in the Salisbury subdivision. Soon after moving, the plaintiffs twice applied for membership in the Salisbury Club. Their applications were sponsored by two club members, as required by club bylaws. On both occasions, the plaintiffs' applications were rejected. It is conceded that the plaintiffs were denied membership because they are black.

The plaintiffs then brought suit in district court, seeking injunctive relief and damages for denial of civil rights guaranteed by 42 U.S.C. §§ 1981 and 1982. Subsequently, the district court granted summary judgment for the defendants. After examining the club's formation, membership policies, and membership recruitment activities, the district court found that the Salisbury Club was a "truly private" club. ⁴ The district court ruled that § 1981 does not apply to truly private clubs and therefore rejected the plaintiffs' § 1981 claim.

In addition, the district court rejected the plaintiffs' § 1982 argument. It examined the connection between the subdivision and the club, and discovered no formal link between club membership and ownership of a home in the subdivision. Consequently, it concluded that membership in the club did not amount to "property" within the ambit of § 1982.

The critical facts of this case are undisputed, and we do not disagree with the factual findings made by the district court. We do disagree, however, with the court's application of §§ 1981 and 1982 to those facts. In our view, the characteristics of the Salisbury Club demonstrate that it is not a truly private club and the close connection between club membership and ownership of subdivision property establishes that club membership is "property" within the meaning of § 1982. Because we reverse the district court's §§ 1981 and 1982 rulings, we do not consider its decision that §§ 1981 and 1982 are subject to a "private club" defense. ⁵ We think it unnecessary to give extended treatment to its possible ruling that the constitution requires that "private" social organizations be free from governmental regulation of their membership policies. ⁶

II.

We consider first plaintiffs' claim under § 1981. That section guarantees to "all citizens" the same "right to make and enforce contracts ... as in enjoyed by white citizens." The club concedes that it refused to contract with the plaintiffs for membership because they are black. The club's only defense is that it is a truly private club immune from liability under § 1981.

The district court agreed with the club that it was truly private. As the district court recognized, the Supreme Court has never determined whether genuinely private organizations are outside the reach of § 1981. In three decisions the Supreme Court has avoided that issue by finding that the private organizations before it were not truly private. Runyon v. McCrary, 427 U.S. 160, 172 n.10, 96 S.Ct. 2586, 2595, 49 L.Ed.2d 415 (1976); Tillman v. Wheaton-Haven Recreation Ass'n, 410 U.S. 431, 438-39, 93 S.Ct. 1090, 1094, 35 L.Ed.2d 403 (1973); Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 236, 90 S.Ct. 400, 404, 24 L.Ed.2d 386 (1969). We, like the Supreme Court, find it unnecessary to determine whether § 1981 is subject to a "private club" defense, because in this case, we are persuaded that, for three reasons, the Salisbury Club is not a truly private club.

First, the Salisbury Club does not follow a selective membership policy. Only three white persons have ever been denied membership in the Salisbury Club, and they all resided outside the Salisbury subdivision. Conversely and most critically for this case, no white resident of the Salisbury subdivision has been denied club membership throughout the entire history of the Salisbury Club. The only residents of the subdivision who have been denied membership are the plaintiffs and another black family who applied for membership at about the same time. They were admittedly refused membership because of their race. Thus, it is apparent that the club follows "no plan or purpose of exclusiveness." Rather, membership "is open to every white person within the geographic area, there being no selective element other than race." Sullivan v. Little Hunting Park, 396 U.S. at 236, 90 S.Ct. at 404. See also Runyon v. McCrary, 427 U.S. at 172 n.10, 96 S.Ct. at 2595.

The district court was persuaded of the club's supposed selectivity by the formal requirements for membership. ⁷ All applicants must have two members sponsor their applications. Then, the applicant must be approved by the membership committee. Finally, seventy-five percent of the board of directors must vote to admit the applicant to membership.

These formal membership requirements, however, do not prove that the Salisbury Club is a truly private club because in practice the club admits all white subdivision residents and practically all white applicants from outside the subdivision. The formalities have little meaning when in fact the club does not follow a selective membership policy. See Tillman v. Wheaton-Haven Recreation Ass'n, 410 U.S. at 433, 438-39, 93 S.Ct. at 1094 (club found not genuinely private even though club membership was contingent upon approval of a majority of those present at a meeting of the board of directors or the general membership). We find the actions of the Salisbury Club far more convincing than its written procedures.

Second, the Salisbury Club has actively solicited members through public advertising. The club has made extensive efforts to draw residents of the Salisbury subdivision into its membership. In November, 1975, the club inserted an announcement in the Salisbury Village Crier, a newsletter distributed by the subdivision developer to Salisbury residents. The ad was entitled "Notice to All Salisbury Residents". It invited the readers to "take advantage of a great opportunity" in the form of reduced initiation fees during a membership drive, and it concluded by asking, "Why not join us at the Salisbury Club?" In addition, the club has tried to recruit Salisbury residents by welcoming them in the subdivision property buyers guide, by participating in a hospitality program for new Salisbury residents, and by distributing membership application forms to real estate salesmen. Furthermore, the developer who established the club advertises club membership as one of the attractions of living in the subdivision.

Clearly, the Salisbury Club's recruitment activities are not those of a truly private club. Through the real estate developer who set up the club and created the subdivision, club membership has been advertised beyond the bounds of the subdivision. Particularly relevant to this case, the club represents itself as open to all residents of the Salisbury subdivision and has diligently tried to lure all subdivision residents onto its membership rolls. This extensive advertising belies the club's attempt to characterize itself as a truly private club. See Runyon v. McCrary, 427 U.S. at 172 n.10, 96 S.Ct. at 2595.

Third, from its inception, the club has served the commercial interests of the developer of the Salisbury subdivision. The club was created on the initiative of J. Kenneth...