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, 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.
410 U. S.
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
Page 410 U. S. 432
race,"
Sullivan, supra, at
396 U. S. 236.
Wheaton-Haven is thus not even arguably exempt by virtue of §
2000a(e) from § 1982 or § 1981. Pp.
410 U. S.
438-440.
451 F.2d 1211, reversed and remanded.
BLACKMUN J., delivered the opinion for a unanimous Court.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
Wheaton-Haven Recreation Association, Inc., a nonprofit 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. [
Footnote 1]
Page 410 U. S. 433
Membership is by family units, rather than individuals, and is
limited to 325 families. [
Footnote
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. [
Footnote 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
Page 410 U. S. 434
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, [
Footnote 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
Page 410 U. S. 435
Court of Appeals affirmed, one judge dissenting. 451 F.2d 1211
(CA4 1971). It later denied rehearing en banc over two dissents,
id. at 1225. We granted certiorari, 406 U.S. 916 (1972),
to review the case in the light of
Sullivan v. Little Hunting
Park, 396 U. S. 229
(1969).
I
In
Jones v. Alfred H. Mayer Co., 392 U.
S. 409 (1968), this Court, after a detailed review of
the legislative history of 42 U.S.C. § 1982,
id. at
392 U. S.
422-437, 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 a leasehold he was granting,
constituted a right "to . . . lease . . . property" protected by §
1982. 396 U.S. at
396 U. S.
236-237. The Court of Appeals distinguished
property-linked membership shares in
Sullivan from
property-linked membership preferences in Wheaton-Haven by
emphasizing the speculative nature of the benefits available to
residents of the area around Wheaton-Haven. We conclude that the
Court of Appeals erroneously characterized the property-linked
preferences conferred by Wheaton-Haven's bylaws.
Page 410 U. S. 436
Under the bylaws, a resident of the area within three-quarters
of a mile from the pool receives the three preferences noted above:
he is allowed to apply for membership without seeking a
recommendation from a current member; he receives preference over
others, except those with first options, when applying for a
membership vacancy; and, if he is an owner-member, he is able to
pass to his successor-in-title a first option to acquire the
membership Wheaton-Haven purchases from him. [
Footnote 5] If the membership is full, the
preference-area resident is placed on the waiting list; other
applicants, however, are required to reapply after those on the
waiting list obtain memberships.
The Court of Appeals concluded, incorrectly it later appeared,
that the membership had never been full, [
Footnote 6] and that the option possibility, therefore,
was "far too tenuous a thread to support a conclusion that there is
a transfer of membership incident to the purchase of property." 451
F.2d at 1217. Since the Presses had not purchased their area home
from a member, the court found no transaction by which the Presses
could have acquired a membership preference. 451 F.2d at 1217-1218,
n. 14.
Page 410 U. S. 437
We differ from the Court of Appeals in our evaluation of the
three rights obtained. The record indicates that the membership was
full in the spring of 1968, but dropped, perhaps not unexpectedly
in view of the season, in the fall of that year. We cannot be
certain, either, that the membership would not have remained full
in the absence of racial discrimination, [
Footnote 7] or that the membership will never be full
in the future. As was observed in dissent in the Court of
Appeals:
"Several years from now, it may well be that a white neighbor
can sell his home at a considerably higher price than Dr. and Mrs.
Press because the white owner will be able to assure his purchaser
of an option for membership in Wheaton-Haven. Dr. and Mrs. Press,
however, are denied this advantage."
451 F.2d at 1223. Similarly, the automatic waiting list
preference given to residents of the favored area may have affected
the price paid by the Presses when they bought their home. Thus,
the purchase price to them, like the rental paid by Freeman in
Sullivan, may well reflect benefits dependent on residency
in the preference area. For them, however, the right to acquire a
home in the area is abridged and diluted.
When an organization links membership benefits to residency in a
narrow geographical area, that decision infuses those benefits into
the bundle of rights for which an individual pays when buying or
leasing within the area. The mandate of 42 U.S.C. § 1982 then
operates to guarantee a nonwhite resident, who purchases, leases,
or holds this property, the same rights as are enjoyed by a white
resident.
Page 410 U. S. 438
Respondents contend that, even if 42 U.S.C. § 1982 applies,
Wheaton-Haven nevertheless is exempt as a private club under §
201(e) of the Civil Rights Act of 1964, 42 U.S.C. § 2000a(e),
[
Footnote 8] with a consequent
implied narrowing effect upon the range and application of the
older § 1982. In
Sullivan, we found it unnecessary to
consider limits on § 1982 as applied to a truly private association
because we found "no plan or purpose of exclusiveness" in
Little Hunting Park. 396 U.S. at
396 U. S. 236.
But here, as there, membership "is open to every white person
within the geographic area, there being no selective element other
than race."
Ibid. The only restrictions are the stated
maximum number of memberships and, as in
Sullivan, id. at
396 U. S. 234,
the requirement of formal board or membership approval. The
structure and practices of Wheaton-Haven thus are indistinguishable
from those of
Little Hunting Park. [
Footnote 9] We hold, as a consequence, that
Wheaton-Haven is not a private club, and that it is not necessary
in this case to consider the issue of any implied limitation on
the
Page 410 U. S. 439
sweep of § 1982 when its application to a truly private club,
within the meaning of § 2000a(e), is under consideration.
Cf.
Moose Lodge No. 107 v. Irvis, 407 U.
S. 163 (1972);
Daniel v. Paul, 395 U.
S. 298 (1969).
II
Mrs. Rosner and the Tillmans, relying on 42 U.S.C. §§ 1981,
[
Footnote 10] 1982, and
2000a
et seq., contend that Wheaton-Haven could not adopt
a racially discriminatory policy toward guests. The District Court
granted summary judgment for the respondents on these claims also,
holding that Wheaton-Haven was a private club, and exempt from all
three statutes.
The operative language of both § 1981 and § 1982 is traceable to
the Act of April 9, 1866, c. 31, § 1, 14 Stat. 27.
Hurd v.
Hodge, 334 U. S. 24,
334 U. S. 331
n. 7 (1948). [
Footnote
11]
Page 410 U. S. 440
In light of the historical interrelationship between § 1981 and
§ 1982, we see no reason to construe these sections differently
when applied, on these facts, to the claim of Wheaton-Haven that it
is a private club. Consequently, our discussion and rejection of
Wheaton-Haven's claim that it is exempt from § 1982 disposes of the
argument that Wheaton-Haven is exempt from § 1981. On remand, the
District Court will develop any necessary facts concerning the
adoption of the guest policy, and will evaluate the claims of the
parties [
Footnote 12] free
of the misconception that Wheaton-Haven is exempt from §§ 1981,
1982, and 2000a.
The judgment of the Court of Appeals is reversed, and the case
is remanded for further proceedings.
It is so ordered.
[
Footnote 1]
Candy, ice cream, and soft drinks have been sold on the
premises, but these were merely incidentals for the convenience of
swimmers during the season. Aside from meetings of the board of
directors and of the general membership, the premises apparently
have been utilized only for pool-related activities.
[
Footnote 2]
Wheaton-Haven presently charges an initiation fee of $375 and
annual dues ranging from $50 to $60, depending on the number of
persons in the family unit.
[
Footnote 3]
The Association's bylaws provide that "[m]embership shall be
open to
bona fide residents (whether or not home owners)
of the area within a three-quarter mile radius of the pool," and
"may be extended" to others "who shall have been recommended . . .
by a member."
[
Footnote 4]
"All citizens of the United States shall have the same right, in
every State and Territory, as is enjoyed by white citizens thereof
to inherit, purchase, lease, sell, hold, and convey real and
personal property."
42 U.S.C. § 1982.
[
Footnote 5]
Under the Wheaton-Haven system, a within-the-area member selling
his home may either retain his membership or seek to sell it back
to the Association. If Wheaton-Haven is willing to purchase, it
pays 80% of the initial cost if the membership is not full, and 90%
if the membership is full. The purchaser of the member's home then
has a first option on the membership so released by the seller. The
practical effect of this system is to prefer applicants who
purchase from members over other applicants, particularly at a time
when the membership is full.
[
Footnote 6]
In the court's per curiam statement responsive to the petition
for rehearing, it described its earlier observation that the
membership list had never been full as an "inadvertent misstatement
. . . now corrected to reflect a full membership list in the spring
of 1968." 451 F.2d 1211, 1225.
[
Footnote 7]
The record reveals that a number of members withdrew when the
present suit was filed. Tr. of Oral Arg. in District Court 15.
[
Footnote 8]
The provisions of this subchapter shall not apply to a private
club or other establishment not in fact, open to the public, except
to the extent that the facilities of such establishment are made
available to the customers or patrons of an establishment within
the scope of subsection (b) of this section.
42 U.S.C. § 2000a(e).
[
Footnote 9]
Apparently one applicant was formally rejected during the
preceding 12 years of Little Hunting Park's operation. App. 127 and
Brief for Petitioner 7,
Sullivan v. Little Hunting Park,
396 U. S. 229
(1969). At Wheaton-Haven, one applicant was formally rejected in
the preceding 11 years.
The Court of Appeals found it
"inferable from Little Hunting Park's organization and
membership provisions that it was built by the same real estate
developers who built the four subdivisions from which members were
drawn, as an aid to the sale of homes."
451 F.2d at 1215 n. 8. This inference may be erroneous. App.
24-36 and Tr. of Oral Arg. 24, 31-34,
Sullivan v. Little
Hunting Park, supra. In any event,
Sullivan did not
rest on any relationship between the club and real estate
developers.
[
Footnote 10]
"All persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make and
enforce contracts, to sue, be parties, give evidence, and to the
full and equal benefit of all laws and proceedings for the security
of persons and property as is enjoyed by white citizens, and shall
be subject to like punishment, pains, penalties, taxes, licenses,
and exactions of every kind, and to no other."
[
Footnote 11]
The Act of Apr. 9, 1866, § 1, read in part:
"That all persons born in the United States . . . of every race
and color . . . shall have the same right, in every State and
Territory in the United States, to make and enforce contracts, to
sue, be parties, and give evidence, to inherit, purchase, lease,
sell, hold, and convey real and personal property, and to full and
equal benefit of all laws and proceedings for the security of
person and property, as is enjoyed by white citizens, and shall be
subject to like punishment, pains, and penalties, and to none
other, any law, statute, ordinance, regulation, or custom, to the
contrary notwithstanding."
14 Stat. 27. The present codification of § 1981 is derived from
Revised Statutes § 1977 (1874), which codified the Act of May 31,
1870, § 16, 16 Stat. 144. Although the 1866 Act rested only on the
Thirteenth Amendment,
United States v. Harris,
106 U. S. 629,
106 U. S. 640
(1883);
Civil Rights Cases, 109 U. S.
3,
109 U. S. 22
(1883);
United States v. Morris, 125 F. 322, 323 (ED
Ark.1903), and, indeed, was enacted before the Fourteenth Amendment
was formally proposed,
United States v. Price,
383 U. S. 787,
383 U. S. 804
(1966);
Hurd v. Hodge, 334 U. S. 24,
334 U. S. 32 n.
11 (1948);
Oyama v. California, 332 U.
S. 633,
332 U. S. 640
(1948);
Civil Rights Case, supra, 109 U.S. at
109 U. S. 22, the
1870 Act was passed pursuant to the Fourteenth, and changes in
wording may have reflected the language of the Fourteenth
Amendment.
See United States v. Wong Kim Ark, 169 U.
S. 649,
169 U. S.
695-696 (1898). The 1866 Act was reenacted in 1870, and
the predecessor of the present § 1981 was to be "enforced according
to the provisions" of the 1866 Act. Act of May 31, 1870, § 18, 16
Stat. 144.
[
Footnote 12]
Respondent McIntyre urges that the judgment in his favor should
be affirmed as to him because he was merely a director of
Wheaton-Haven, and was later defeated in his bid for reelection to
its board, and because, in his deposition, he stated that he
opposed the Association's exclusionary practices. Neither the
District Court nor the Court of Appeals discussed Mr. McIntyre's
individual liability, and we find it inappropriate to attempt
resolution of this issue on the present record.