Wright v. Salisbury Club, Ltd.

• Decision Date: 18 October 1979
• Docket Number: Civ. A. No. 78-0706-R.
• Citation: 479 F. Supp. 378
• Parties: Thomas WRIGHT, Jr., et al. v. The SALISBURY CLUB, LTD., et al.
• Court: U.S. District Court — Eastern District of Virginia

479 F. Supp. 378

Thomas WRIGHT, Jr., et al. v. The SALISBURY CLUB, LTD., et al.

Civ. A. No. 78-0706-R.

United States District Court, E. D. Virginia, Richmond Division.

October 18, 1979.

Arthur F. Samuel, Robert A. Pustilnik, Samuel & Pustilnik, Richmond, Va., for plaintiffs.

James M. Minor, Jr., Donald W. Lemons, Parker, Pollard, Brown, Froman & Lemons, Inc., Richmond, Va., for defendants.

MEMORANDUM

WARRINER, District Judge.

I.

Plaintiffs, Dr. and Mrs. Thomas Wright, Jr., live in a residential subdivision in Chesterfield County, Virginia, known as "Salisbury." The corporate defendant, The Salisbury Club, Ltd., was organized and exists under the laws of Virginia as a country club to provide recreation exclusively for its members and guests. The Club is located in Salisbury subdivision and was originally organized by the subdivision developer to enhance the saleability of the subdivision lots.

Plaintiff Dr. Wright applied for membership in the country club in June 1977. The application was denied. Plaintiff later submitted another application; this application also was disapproved. It is beyond dispute that Dr. Wright was refused membership in the country club solely because he is a Negro.

Dr. Wright and his wife claim they have been deprived, on account of their race, of their rights to contract for membership with and purchase stock in the defendant corporation, in violation of 42 U.S.C. §§ 1981, 1982, and the Thirteenth Amendment of the United States Constitution. Plaintiffs seek injunctive relief and damages.

II.

At the outset this Court emphasizes its finding that plaintiff Dr. Wright was denied membership in the Salisbury Club because of his race. The Court finds, further, that the Salisbury Club maintains a racially discriminatory membership selection process. The Club enforces an unwritten policy against non-Caucasian members.¹ Nonwhite applicants who may meet all other criteria will nevertheless be rejected on account of their race.²

The defendants answer plaintiffs' charge of racial discrimination by asserting that the Salisbury Club is a private club, organized exclusively for the recreational and sporting pleasures of its members, their families, and guests. The defendants argue that in their capacity as a private club they have a constitutional right to select their fellow members by whatever criteria they wish, and to associate with whomever they choose. This right, say defendants, allows them to exclude Dr. Wright on account of his race.

The legal issues in this case arise and will be resolved under Section 1 of the Civil Rights Act of 1866, codified in 42 U.S.C. §§ 1981, 1982 as these sections may be affected by the constitutional right of privacy — the right to be let alone. The Court is hopeful that careful factual, statutory, and constitutional analysis will not obscure a broad perspective of what is at stake in this controversy. At the core of the case is a conflict between "two profound claims of right." Cornelius v. Benevolent Protective Order of Elks, 382 F.Supp. 1182, 1187 (D.Conn.1974) (Blumenfeld, J.). Plaintiffs' claim that they have a right to be free from racial discrimination is supported by an established and vigorous social and legal policy of nondiscrimination. Defendants' claim that they have a right to associate themselves in a private club, free from governmental intrusion, embodies respected and fundamental principles upon which this country was founded. The Court's task is to examine both claims with care, and to determine, under the facts presented, whether plaintiffs should be awarded relief in the assertion of their civil rights, or whether the Club members should prevail because of their constitutionally protected rights of privacy and association.³

III. THE § 1981 CLAIM

42 U.S.C. § 1981 provides that "all persons . . . shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens . . .."⁴ The Court having found that Dr. Wright was denied the opportunity to contract for membership in the Salisbury Club because of his race, it would seem that § 1981 affords Dr. Wright a remedy. The matter, however, is not so easily resolved.

In a series of cases decided within the last decade, the Supreme Court has made clear that 42 U.S.C. §§ 1981, 1982 reach "private" as well as officially sanctioned acts of discrimination. Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976); Tillman v. Wheaton-Haven Recreation Ass'n, 410 U.S. 431, 93 S.Ct. 1090, 35 L.Ed.2d 403 (1973); Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969); Jones v. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968). The same cases leave unanswered the question of whether §§ 1981, 1982 prohibit racial discrimination by "truly private" associations.⁵ The Court did not avoid this question; it simply never had to consider it. None of the cases involved an organization or club that could be characterized by the Court as truly private. As a consequence, it remains uncertain just what a truly private association is, and whether such an association lies beyond the reach of §§ 1981, 1982.

This Court will begin its analysis of plaintiffs' claim under § 1981 by examining the nature of the Salisbury Club. If the facts indicate that Salisbury is not truly private, it is likely that the plaintiffs must prevail.⁶ If, on the other hand, the facts show that the Salisbury Club is truly private, a question exists about whether the Club's racially motivated denial of Dr. Wright's application is privileged.

A. The Salisbury Club, Ltd.

Whether a given club is truly private is a determination to be made in light of the facts of each case. The test for private club status, in controversies arising under §§ 1981, 1982, is whether, without regard to race, the club's membership policies and practices manifest "a plan or purpose of exclusiveness." This test was first adopted by the Supreme Court in Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 236, 90 S.Ct. 400, 404, 24 L.Ed.2d 386 (1969), and later cited with approval in Tillman v. Wheaton-Haven Recreation Ass'n, 410 U.S. 431, 93 S.Ct. 1090, 35 L.Ed.2d 403 (1973). It is closely related to, and indeed may have derived from, a variety of tests employed by courts in resolving whether a club qualifies for the "private establishment" exemption contained in Title II of the Civil Rights Act of 1964. 42 U.S.C. § 2000a(e).⁷

The association that was challenged in Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969), was a nonstock corporation organized to operate a community park and playground for residents of a specified area in Fairfax County, Virginia. 396 U.S. at 234, 90 S.Ct. 400. According to the bylaws of Little Hunting Park, a resident of the area owning a membership share was entitled to use the corporation's recreation facilities, and, upon selling or leasing his residence, to assign his share to the purchaser or tenant. The controversy in Sullivan arose when a Little Hunting Park shareholder leased his house and assigned his membership share. The board of directors disapproved the membership assignment because the assignee was black.

The homeowner and lessee in Sullivan joined as plaintiffs and sued Little Hunting Park under 42 U.S.C. § 1982. The Virginia trial court concluded that Little Hunting Park was a private social club and dismissed the complaint. The Virginia Supreme Court refused to hear an appeal. The United States Supreme Court granted certiorari. In reversing and ruling for plaintiffs, the Court noted that the record did not support a conclusion that Little Hunting Park was private. "There was no plan or purpose of exclusiveness. Little Hunting Park 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. at 404.

The Court confronted issues similar to those raised in Sullivan in Tillman v. Wheaton-Haven Recreation Ass'n, 410 U.S. 431, 93 S.Ct. 1090, 35 L.Ed.2d 403 (1973). The Wheaton-Haven Recreation Association was a nonprofit corporation organized to operate a swimming pool. Membership in the corporation was keyed to the geographic area within a three-quarter mile radius of the pool; the corporate bylaws provided that one who purchased a home within that area was entitled to several "preferences" for membership. Suit was brought against the Association when it refused to extend those preferences to a new homeowner in the three-quarter mile area because the homeowner was black.

The district court in Tillman granted summary judgment for the Association, a decision affirmed by the Fourth Circuit. 451 F.2d 1211 (4th Cir. 1971). Both Courts concluded that Wheaton-Haven was a private club, and thus exempt from the sanctions of the Civil Rights Act. The Supreme Court reversed, and expressly rejected the finding that Wheaton-Haven was a private club. 410 U.S. at 438, 93 S.Ct. 1090. Like Little Hunting Park, the Wheaton-Haven Recreation Association opened its membership to all white persons living within a limited geographic area, but not to nonwhites. There was no selective element other than race, nor was there evidence establishing exclusivity. The Wheaton-Haven Recreation Association, thus, was not truly private.

In Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976), the Supreme Court considered a § 1981 claim brought by black applicants who had been denied admission by two all-white private schools. In its decision affirming judgment in favor of the applicants, the Court noted that neither of the schools were truly private:

Both schools advertised in the `Yellow Pages' of the telephone directory and both used mass mailings in attempting to attract students. . . . 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

...