Murray Tillman v. Wheaton-Haven Recreation Association, Inc.

BUTZNER, Circuit Judge

(dissenting):

I would have granted the plaintiffs’ motion for summary reversal because the judgment dismissing their claim is a marked departure from authoritative precedent construing those provisions of the Civil Rights Act of 1866 codified as 42 U.S.C. § 1982 (1970).

The bylaws of the Wheaton-Haven Recreation Association, Inc. provide that membership “shall be open” to residents who live within three-quarters of a mile of the pool, subject to a stated maximum number of families and to approval of the association acting through its members or its board of directors. The bylaws also provide for Wheaton-Haven to repurchase the membership of a member who resigns and sells his home. In that event, the purchaser of the home shall have the first option to buy the membership of the seller from Wheaton-Haven, subject to the approval of the board.

Dr. and Mrs. Harry C. Press own a home in this neighborhood. It is undisputed that they were disqualified from membership for one reason — they are black. Had they been white persons, they could have purchased a membership in Wheaton-Haven. Membership would have afforded them not only a right to use the pool but, of greater significance to this case, it would have allowed them to sell to the eventual purchaser of their home an option to purchase their membership.

I

The Civil Rights Act of 1866 provides in part:

“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.

In Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), the Court applied the Act to bar racial discrimination in the sale of a house. The Court cautioned that “Negro citizens * * * would be left with ‘a mere paper guarantee’ if Congress were powerless to assure that a dollar in the hands of a Negro will purchase the. same thing as a dollar in the hands of a white man. At the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever a white man can buy, the right to live wherever a white man can live. If Congress cannot say that being a free man means at least this much, then the Thirteenth Amendment made a promise the Nation cannot keep.” 392 U.S. at 443, 88 S.Ct. at 2205.

Jones v. Alfred H. Mayer Co. establishes beyond doubt that Dr. and Mrs. Press have the same right enjoyed by their white neighbors to purchase, hold, *1223sell, and convey real and personal property. They are entitled to no less. The sole question raised by this case, then, is whether membership in Wheaton-Haven is property within the meaning of § 1982. I believe it is.

While the details differ, this ease is indistinguishable in all material aspects from Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed. 2d 386 (1969). Under the bylaws of Little Hunting Park, membership in a swimming pool association was open to residents in an area of Fairfax County, Virginia, and a member could assign his membership to a tenant, subject to the approval of the board of directors. When a white member attempted to assign a membership to his tenant, the board of directors refused approval because the tenant was black. The trial court denied relief to the landlord and tenant on the ground that Little Hunting Park was a private social club. Finding “nothing of the kind,” the Supreme Court reversed, saying: “There was no plan or purpose of exclusiveness. It is open to every white person within the geographic area, there being no selective element other than race. * * * It is not material whether the membership share be considered realty or personal property, as § 1982 covers both.” 396 U.S. at 236, 90 S.Ct. at 404. And the Court held that the transaction clearly fell within the right to “lease” protected by § 1982. 396 U.S. at 237, 90 S.Ct. 400.

The points of distinction involving the nature of the property right considered in Sullivan and the nature of a Wheaton-Haven membership are not of controlling significance.

It is immaterial that a tenant claimed membership in Little Hunting Park under a lease, while Dr. and Mrs. Press base their claim on ownership of real property situated less than three-quarters of a mile from the pool. Section 1982 protects the rights to “purchase” and “hold” property no less than the right to “lease.”

Nor does it matter that families who own no real estate can join Wheaton-Haven or that Dr. and Mrs. Press are seeking to acquire membership on the basis of owning a home instead of exercising an option. Under the bylaws membership is “open” to a white neighbor without the exercise of an option. Having obtained a membership, the neighbor can eventually sell an option for it along with his home in accordance with Wheaton-Haven's bylaws. Since membership in Wheaton-Haven is incident to the ownership of property, it is covered by § 1982.

Similarly, I cannot accept Wheaton-Haven’s argument that because the membership rolls are not presently filled the option has little or no value. 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. Even though the present value of an option cannot be readily ascertained, a dollar in the hands of Dr. and Mrs. Press, in the language of Jones v. Alfred H. Mayer Co., should be able to purchase at least the same thing as a dollar in the hands of their white neighbors. Section 1982 should not be construed to deny a bargain on the basis of race.

The vice of Wheaton-Haven’s discriminatory practices is similar to Little Hunting Park’s. In each case ownership of real property by a white person carried with it the right to a transferable membership — a right denied to black persons. Little Hunting Park’s transfer by assignment and Wheaton-Haven’s use of an option differ only in form, not substance. The congressional commitment to equal rights under the law manifested by the enactment of the Civil Rights Act of 1866 cannot be served by viewing this case as a simple exercise in the fine art of conveyancing. The case involves far more. It is an attempt to secure what the proponents of the Act envisioned and the Supreme Court has preserved — the “great fundamental rights” of “all men, *1224whatever their race or color” to “acquire” and “dispose” of property. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 432, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968).

II

I doubt the pertinency of the claim that the Civil Rights Act of 1866 is circumscribed or limited by the Civil Rights Act of 1964.1 This is an inappropriate case to consider whether private clubs are excluded from the Civil Rights Act of 1866. The plaintiffs make no claim for admission to a private club. Instead they contend correctly, I believe, that Wheaton-Haven is not a private club.

To maintain its claim of privacy, Wheaton-Haven points to its rejection of one white applicant since 1958, and its counsel in oral argument asserted that other persons had been informally rejected. But the record and counsel’s excursion outside it do not establish that any homeowner living within three-quarters of a mile of the pool was denied membership or that any person acquiring an option with his purchase of a house was turned away.2

It is difficult to believe that a club is private when its membership is so closely tied to real estate bought and sold on the open market. Sullivan v. Little Hunting Park holds that in a similar context the test of a private club is whether there is “a plan or purpose of exclusiveness.” 396 U.S. at 236, 90 S.Ct. at 404. Here there is none save race. As far as this record shows, Wheaton-Haven’s bylaws mean just what they say: membership is “open” to residents within a specified geographic area and membership can be transferred to the purchaser of a member’s house. It is immaterial that membership initially and by transfer is subject to the approval of the corporation either through its members or its board of directors. The bylaws of Little Hunting Park also subjected assignment of membership to approval of the board of directors. But as Sullivan teaches, § 1982 prohibits the board from withholding approval because of race. 396 U.S. at 236.

Wheaton-Haven emphasizes that Little Hunting Park had aspects of commercialism that it lacks. The record before us does not support this conclusion, but even if it did, it would be irrelevant. Sullivan did not turn on this point. The test is not whether the organizers were commercially motivated, but whether there is presently a “plan or purpose of exclusiveness” with respect to membership. 396 U.S. at 236, 90 S.Ct. 400.

Ill

Mr. and Mrs. Murray Tillman are white members of the association who brought a black guest, Mrs. Grace Ros-ner, to the pool. Her visit provoked a change in the bylaws; guests were limited to relatives of members — all of whom are white. Unquestionably Wheaton-Haven can limit the number of guests a member can bring. Similarly, it can refuse to admit guests, regardless of race, who because of their demeanor or age would unduly burden the use of the pool. But otherwise valid limitations cannot be couched directly or indirectly to restrict the race of guests. The Tillman membership is a valuable property right, an incident of which is the right to invite guests. The right would be empty indeed unless the guests have the right to accept. Racial restrictions on the right to invite guests, and to accept invitations, are racial restrictions on the right to hold property that violate § 1982. A white host can vindicate this right. Walker v. Pointer, 304 F.Supp. 56 (N.D. *1225Tex.1969). Cf. Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969).

I would reverse the judgment, enter summary judgment for the plaintiffs, and remand for further proceedings consistent with this opinion.

. Similar arguments have been made and rejected. B. g., Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969) ; of. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413-17, 88 S.Ct. 2186, 20 L.Ed. 2d 1189 (1968) ; Sanders v. Dobbs Houses, Inc., 431 F.2d 1097, 1100 (5th Cir. 1970).

. Of course, Wheaton-Haven could refuse ' membership to any number of persons, black or white, who lived within or without the geographic area designated in its bylaws, without infringing rights secured by § 1982 if refusal were not based on race.