Tillman v. Wheaton-Haven Recreation Assn., Inc.

RESPONDENT:Wheaton-Haven Recreation Assn., Inc.
LOCATION:United States Department of Agriculture

DOCKET NO.: 71-1136
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Fourth Circuit

CITATION: 410 US 431 (1973)
ARGUED: Nov 15, 1972
DECIDED: Feb 27, 1973

Allison W. Brown, Jr. – for petitioners
Henry J. Noyes – for respondents Wheaton-Haven Recreation Association, Inc., and others
John H. Mudd – for respondent E

Facts of the case


Audio Transcription for Oral Argument – November 15, 1972 in Tillman v. Wheaton-Haven Recreation Assn., Inc.

Warren E. Burger:

We’ll hear arguments next in 71-1136, Tillman against Wheaton-Haven.

Mr. Brown, you may proceed whenever you are ready.

Allison W. Brown, Jr.:

Mr. Chief Justice, may it please the Court.

This case is virtually indistinguishable from a case which this Court had four or three years ago called Sullivan against Little Hunting Park.

The issue here as it was there is whether a community recreation association may discriminate on grounds of race which respect the persons who are otherwise eligible to use its facilities.

Wheaton-Haven Recreation Association, the organization at issue here is virtually a carbon copy of Little Hunting Park, the association which was at issue in the Sullivan case.

The principle characteristic of Wheaton-Haven Recreation Association is set by its bylaws which state very unequivocally that membership shall be open to bona fide residents, whether or not home owners of the area within a three quarter mile radius of the pool.

The facility involved, which is the principle function of Wheaton-Haven is the swimming pool that it operates.

The swimming pool is similar to those that are characteristic of many suburban areas in the United States and most particularly in the Washington area.

In Washington suburbs are some 100-150 of them that have been built by neighbors, people in the neighborhood on a cooperative basis.

They are principally predominant in the areas where of course there are no public swimming facilities.

Wheaton-Haven has an initiation fee of $375 and in addition, annual dues of $50-60 a year.

I regret to say that on Page 4 of the petitioner’s brief, there is a typographical error, where it says that the annual dues are a $150-160 a year, it should be $50-60 a year.

Warren E. Burger:

Which page was that, again?

Allison W. Brown, Jr.:

That’s Page 4 of the petitioner’s brief.

The annual dues are $50-60, not a $150-160, that’s the blue brief.

The bylaws provide that numbers can be taken from outside of the three quarter mile radius of the pool provided that such numbers do not exceed 30% of the membership of the association.

Members who are brought into the association, who pay their dues are subject to approval of the Board of Directors or the membership of the association.

One of the characteristics or one of the features of membership in the pool is that a member upon selling his house, may transfer a first option to his vendee.

Now, he does this by selling his membership back to the association and that vendee then has a first option to buy that.

That is — and that gives him a preference over any persons who are on a waiting list.

The maximum number of members permitted in the pool being 325 families.

Wheaton-Haven was constructed in 1958 under the terms of a special ordinance adopted by the Montgomery County, Maryland Council which is adopted and designed to facilitate the construction of these community recreation — swimming pools.

The Montgomery County Council stated that it wished to promote the building and construction of these pools because they served an important community function by providing recreation facilities which were not otherwise available in the area.

As a condition of getting zoning approval, the Wheaton-Haven was required by the zoning authority to show — demonstrate that 60% of its construction cost were subscribed.

In other words, that was in fact meeting a need of the community.

As a means of creating its initial membership, the association conducted a door to door solicitation campaign in the area.

It distributed an advertising circular and charter members — memberships were made available on the payment of a $20 pledge.

It’s original organizational meeting was a public meeting held, or I should say its original promotional meeting was a public meeting held in the auditorium of the Maryland National Capital Park and Planning Commission, a government agency which has a public auditorium.

Wheaton-Haven has always had a sign posted on its premises which is visible from the street in front which states the name and telephone number of the Membership Chairman.

Allison W. Brown, Jr.:

In more recent years, since this litigation has transpired that sign has — the name of the Membership Chairman and his telephone number has been removed.

At the hearing before the zoning authority in 1958, when Wheaton-Haven sought commission to build its facility, its swimming pool, its representatives testified that the pool would serve the needs of the community as a whole and that it was needed as a deterrent to Juvenile Delinquency in the neighborhood.

It was specified that the pool would not be used for private social functions.

The construction of the pool was performed by a contractor from outside the State of Maryland and the pool utilizes pumps and filters and other mechanical devices which originate from outside the state.

Now, in the spring of 1968, to get down to the facts of the discrimination here, Dr. and Mrs. Harry Presses sought membership in the pool.

They are a Black family who lived in the neighborhood within a three quarter mile radius of the pool.

The membership, they were told was unavailable to them because of their race or color.

Similarly in 1968, in July of that year, Mr. and Mrs. Murray Tillman, white members of the association brought a Black guest, Mrs. Grace Rosner to the pool and although she was admitted on a first occasion, she was later denied admission under the guides of the new rule which pool adopted after her first entry stating that henceforth only relatives of members would be admitted.

It is undisputed on the record that the pool has and enforces a discriminatory policy with respect to memberships and guests.

The suit in here, in this case was initiated in Federal District Court in Baltimore on the basis of the Civil Rights Act of 1866 and the Civil Rights Act of 1964.

The District Court held against the plaintiffs and upon appeal, the Court of Appeals held against the plaintiffs.

The basis for their decisions in both instances was that this case was distinguishable from Sullivan versus Little Hunting Park.

It is the petitioner’s position that both courts violated the Principle of stare decisis.

This case is on all four with Sullivan versus Little Hunting Park. There are seldom two cases with facts more similar.

The Court of Appeals or both courts constructed grounds for distinguishing the two cases.

I will deal principally of course with the Court of Appeals decision.

The Court of Appeals committed two basic errors.

First of all it misconstrued the Civil Rights Act in 1866, which had been the basis for this Court’s holding in Sullivan versus Little Hunting Park.

Secondly, the Court of Appeals relied on insubstantial and indeed in some instances wholly false grounds for distinguishing this case, Sullivan versus Little Hunting Park and concluded that Wheaton-Haven Recreation Association was a private club and hence exempt from both the Civil Rights Act of 1866 and of 1964.

I will get to the question of whether or not Wheaton-Haven is a private club in a moment, since that bears on whether or not it is indeed covered by the 1866 law and the 1964 Act.

But I would like to first point out the matter in which we believe the Court engaged — basically misconstrued the Civil Rights Act of 1866.

That Act the Court will recall was the basis of this Court’s decision first in Jones versus Mayer Company.

In Jones versus Mayer Company the Court held that the Thirteenth Amendment and the Civil Rights of 1866 applied to private discrimination and that they were intended, that the Act of 1866 was intended to abolish all badges and incidents of slavery, and that the Act was to be broadly construed.

The 1866 Act has since been incorporated in — that is since its adoption has been incorporated and is now part of 42 U.S.C 1981 and 42 U.S.C 1982.

1981 guarantees Black person’s the same right as White persons, to make and enforce contracts and 1982 provides that Black person shall have the right as White persons “to inherit, purchase, lease, sale, hold and convey real and personal property.”

In Jones against Mayer and indeed in Sullivan versus Little Hunting Park, there were some members of this Court who dissented and who in fact doubted the wisdom of applying the 1866 law to private discrimination in housing and in Sullivan case to a membership in a swimming pool association because they felt that more emphasis should be given to the Court or more significance should be given by the Court, should be placed by the Court upon — the more recent enactments by Congress of the Civil Rights Act of 1964 and the Fair Housing Act or the Fair Housing Provisions of the Civil Rights Act of 1968.

In other words, the dissenting members in those cases felt that those case — those laws and more recent laws should be given — should be made applicable and they questioned the wisdom of resurrecting the old 1866 law.

However, since that time, since the Jones decision and since the Sullivan decision, numerous court decisions have now applied both 42 U.S.C 1981 and 1982 to a variety of kinds of racial discrimination.

Provisions have been applied in cases of employment discrimination, in cases of housing discrimination, in cases of discrimination with respect to public accommodations, schools, cemetery plots and so forth.

And most recently a significant development occurred which unfortunately we failed to be aware of in time to cover in our brief and that is that Congress has now in effect ratified this Court’s decision in Jones against Mayer.

Allison W. Brown, Jr.:

On February 8 and 9 of this year, during the debates on the equal Employment Opportunity Law and the question of whether enforcement power should be given to the Equal Employment Opportunity Commission, an amendment was introduced by Senator Hruska which would have withdrawn any right of an individual to seek relief in the federal courts on the basis of 42 U.S.C 1981.

It would have limited one’s right of redress to Title VII of the 1964 Civil Rights Act, namely the Fair Employment Provisions of that Act.

The Hruska Amendment was debated, it was criticized by the floor leaders for the Bill, the legislation was under consideration.

Senator Williams of New Jersey and Senator Javits of New York, those Senators hailed this Court’s decision in Jones against Mayer and specifically expressed approval of the construction that the judicial laws which has accrued, which in fact holds that Title VII of the 1964 Civil Rights Act and the Act of 1866 provide alternative means to redress individual grievances.

The result was that the Hruska amendment was defeated.

So therefore it seems apparent that there was no longer any basis for holding back, shall we say, on the meaning or the construction to be given to the 1866 law.

It applies here to this case and the Court of Appeals and indeed the District Court, it seems to me engaged in a very serious error by failing to follow this Court’s admonition that the plain words of the 1866 law, should be broadly construed and complied with.

Now the plaintiffs base their sue as they indicated on both the 1866 law and the 1964 law.

Essentially under the 1866 law, they have claimed that there were contract and property interest of their’s which had been impaired by the discrimination committed by the association.

The plaintiffs depresses who had sort to purchase a swimming pool membership claimed, asserted in the complaint that their contract and property interest had been denied and denied them which were otherwise — interest which would have been available to them, had they been of the Caucasian race.

The Tillman plaintiffs, the White plaintiffs had contract and property interest involved in the swimming pool membership.

Their allegations and their position in this case was similar to that of the plaintiff Sullivan in the case of Sullivan against Little Hunting Park.

There not only were their own interest being impinged or impaired by, on the basis of racial considerations but in addition they were in a position of asserting the rights of the Negro guest that they had brought to the pool, Mrs. Rosner.

Mrs. Rosner’s interest grows from the fact that as a guest of Tillman’s she had a licensed or an easement that was enforceable and recognizable as a property for contract interest.

Now the other ground aside from its misconstruction of the 1866 law which we claim the Court of Appeals seriously departed from this Court’s precedent on was the issue of the private club.

The court held that because in it’s view Wheaton Haven was a private club, it fell within the private club exemption of the 1964 Act.

This exemption, exempts from the public accommodation provisions of that Act, any private club or other establishment not in fact open to the public.

Now the Court of Appeals committed additional error in our view by — it’s quite clear by reading that exemption as a limitation on the 1866 Act.

Now this Court both in the case of Jones against Mayer and in the case of Sullivan against Little Hunting Park, has specifically held that the later enactments of Congress were not — did not in anyway limit or qualify the earlier enactments and indeed that is the effect now of many other court opinions, decisions which we have cited in our brief and as I just indicated it’s — certainly the effect also of the Congress’s rejection of an amendment which would have constituted a limitation on the 1866 Act.

Now the question then arises, what kind of a limitation if any is there on the 1866 Act so far as the matter of a private club is concerned.

We would submit that the only limitation is a constitutional limitation.

There is we would agree a constitutional right of privacy or freedom of the association.

This Court has never defined that in very explicit terms in circumstances comparable to these.

The right of privacy received it’s fullest discussion, I suppose in as far as I know in the case of Griswold against Connecticut which involved of course the matter of birth control devices and the Court held that there was a constitutional right of privacy which was part of the penumbra of the Bill of Rights, that has not been expanded upon to any great degree as far as I know in subsequent decisions of the Court.

There have been holdings that there is a constitutional rights of free association which is based on the First Amendment and that as a result associations may not be interfered, unduly interfered with as a result of state action or infringement of their constitutional right of association, of their free association.

However, that issue is not really — those issues are not really involved here to the extent that they need to be the outer limits or the privacy need to be explored or delineated by this Court.

The real question here was resolved in Sullivan versus Little Hunting Park, where the Court held very clearly that Little Hunting Park was not a private club because it had no program — no plan or program of exclusiveness; no plan or purpose of exclusiveness and that it had no criteria for excluding people from its facilities, other than race.

Now, we submit that exactly the same thing is true of Wheaton-Haven.

As indicated by the bylaws and as indicated by the record here, there has never been a basis, any ground, there have never been any grounds for excluding people that have been — that are in any way reflected in the record.

There is indication that one person in this association’s 10-year history was excluded, the record doesn’t indicate why.

Allison W. Brown, Jr.:

It doesn’t indicate the person’s race, it doesn’t indicate where the person lived, whether he might have been outside the geographic area and indeed, it doesn’t indicate whether he might have been afflicted with some dreaded disease, which would make his presence in the swimming pool undesirable.

So, there is no record of excluding people.

There are no criteria anywhere that could indicate that the association had intended to exclude people so long as they lived within the prescribed geographic area.

With respect to the 1964 Act, there has been some questions as to just what meaning should be given to this private club exemption in the 1964 Act?

Well, it would seem to me that as a practical matter, although the — that as a practical matter that the exemption in the 1964 — from the 1964 Act should be read to be coextensive with the constitutional limitation, which as I say, I would concede applies to the 1866 Act.

I say that on a basis of the statutory history, the congressional history, which we have eluded to in our reply brief, where Senator Humphrey, who is the Floor Manager for the 1964 Civil Rights Act in explaining the exemption for private clubs stated that it was intended to protect only the genuine privacy of private clubs, whose membership is genuinely selected.

Well that language certainly, parallels very closely the language of this Court in Sullivan versus Little Hunting Park and it seemed that there would be no basis for creating different criteria or a different right of privacy.

The only difference is that the Court of Appeals made this error of reading the statutory provision as a limitation on the 1866 law.

There have been references made in the briefs and of course, the question naturally arises in anyone’s mind is the difference between this case and the famous Moose Lodge case, which was decided by this Court quite recently.

And of course, the difference between this case and the Moose Lodge, between Wheaton-Haven and the Moose Lodge is like the difference between day and night.

The constitution of the Moose Lodge organization specifically states that membership is restricted to male persons of the Caucasian or White race above the age of 21 years and not married to someone of any other than the Caucasian or White race, who are of good moral character, physically and mentally normal, who shall profess a belief in a Supreme Being.

Moose by its own definition, is exclusionary, it’s a traditional fraternal organization.

William H. Rehnquist:

You are not claiming here that the constitution prevents the respondent from doing what it did you are relying on statutes, aren’t you?

Allison W. Brown, Jr.:

Yes Sir.

William H. Rehnquist:

Well, isn’t that an other distinction between Moose Lodge and your case?

Allison W. Brown, Jr.:

Of course, of course.

Obviously, that case involves state action and I only cited it because it has been relied on by the respondents here, that is to suggest that because the Court indict him or I guess, really assumed in that they didn’t indict in the court, the basic assumption in that case was that Moose Lodge a private organization and I am simply saying that, that so be it but that this Wheaton-Haven is wholly distinguishable as an organization, simply because Wheaton-Haven has no exclusionary criteria of the sort that exists in Moose Lodge.

Warren E. Burger:

Well, you have said that it has an exclusionary criteria, a parameter of three quarters of a mile?

Allison W. Brown, Jr.:

That’s the only one.

Warren E. Burger:

And none other?

Allison W. Brown, Jr.:

None other, no Sir, and it’s open specifically by its own bylaws to everyone else within that parameter.

Harry A. Blackmun:

Mr. Brown, going back to your property right argument, on what specifically do you base this, on the option?

Allison W. Brown, Jr.:

Well, no, not specifically sir.

The option is merely one of the aspects of the property interests that is involved —

Harry A. Blackmun:

But your brief is saying whether or not the option existed?

Allison W. Brown, Jr.:


Although the option, well, I don’t mean to say it would be the same, but the option is one of the indicia of the fact that the pool membership here is an incident of real property in that neighborhood.

Harry A. Blackmun:

And this is so despite the fact that there must be membership approval even for the purchaser of a former member’s property?

Allison W. Brown, Jr.:

Yes, yes.

But that membership approval, there is no evidence that it has ever been utilized other than in the one instance that we referred to.

Allison W. Brown, Jr.:

But certainly by making that option, putting that option in there, it adds to the inducement of persons to buy a membership and it increases the attraction and value of homes in the neighborhood.

Warren E. Burger:

What kind of reasons could be properly used under their voting power to pass on new members?

Did they say for example they won’t take any chronic alcoholic or drug addict, what would be the areas?

Allison W. Brown, Jr.:

I would think that they could utilize, yes, the kinds of reasons that you are discussing, chronic alcoholic, a person with a dreaded skin disease or a person who lives outside the geographic area.

But those are criteria which are comparable to those which the proprietor — I say comparable to those, that the proprietor of any business might use, he can exclude persons and not that this is a business, but it’s an accommodation.

The proprietor of any public accommodation can exclude persons who are going to be disruptive, who perhaps don’t wear a necktie, if you go to a restaurant.

There are reasons why a place can draw lines as to a kind of the patrons it wants, but that doesn’t indicate that it has an absolute right of privacy which is exempts it from the operation of the Civil Right Acts.

Harry A. Blackmun:

Incidentally is the three quarter mile rule absolute?

Am I correct in my impression that one living beyond three quarters of a mile from the pool might still become a member upon being accepted?

Allison W. Brown, Jr.:

He can become a member if the membership rolls are open, that is not — haven’t exceeded the limit and so long as the number of persons from outside the three quarter mile limit do not exceed the 30% of its total membership.

Harry A. Blackmun:

And usually the membership rolls were not full, am I correct in that?

Allison W. Brown, Jr.:

Well usually they were not.

Although at the time of the events here in they were full, they were at the 325 of limit.

Warren E. Burger:

Mr. Noyes.

Henry J. Noyes:

Mr. Chief Justice and may it please the Court.

This case was decided in the District Court on cross motions summary judgment.

Counselor for the petitioners who has argued today and counsel myself, stipulated as all the facts and that is the basis upon which the lower court made its decision.

Now those stipulations are contained in the transcript which we have provided in this case.

I might say in spite of the fact that the petitioners in the record in this case have advised this Court that such transcript was not available.

That transcript as we see it, in fact as a matter of certainty was the way in which the Fourth Circuit decided this case.

Matters have not crept into the case and we heard arguments today which can nowhere be found in the record.

The matters such as alleged door to door solicitation and the matters of the Montgomery County Council’s hearings are not contained in the record in this case.

There are matters indeed that have crept in as late as reply brief for the petitioners.

Now when we analyze the case as it appeared down below and it was argued in the Fourth Circuit, really the only contention that the petitioners make is that there is no distinction between this case and Sullivan v. Little Hunting Park, that is their really issue, that is their real argument.

And we of course the Fourth Circuit rejected that.

Rejected it for very good reasons after having this case under advisement for over a year.

The points of distinction are substantial and several between Little Hunting Park and this case.

First of all, the most important, Little Hunting Park turned on the fact that there was an attempted assignment of a membership incident to the sale or lease of real property.

You do not have that in this case.

In Little Hunting Park, Freemen moved into the neighborhood and leased his home from Sullivan for a $129 a month.

Henry J. Noyes:

In Sullivan the court found that at least a portion of the $129 was for the pool membership because in Sullivan, the member had a natural to assign his membership.

In this case, Presses moved into this neighborhood in 1967, at least a year before he ever had an idea to attempt to join this pool.

There is no contention that Presses ever attempted to obtain an assignment from an existing member.

There is no contention that the existing member ever attempted to assign a membership and such attempt to sign it was aborted.

All Presses says that he wants to join.

Now Presses did this.

Presses made informal request to one of the members, or one or two members for an application.

The Directors had a meeting and they voted against Presses and that was as far as it went.

Then Presses —

Thurgood Marshall:

Did they specifically do it on race or not?

Henry J. Noyes:

In Presses’ case the record was stipulated and we do not deny it.

We stipulated to get this case decided on summary judgment that Presses was denied a membership because of his race, that’s in the record, we do not deny that.

And now —

Warren E. Burger:

Well, that has at least the same posture as a finding of fact of the District Court, based on substantial evidence then, doesn’t it?

Henry J. Noyes:

At that point.

Now Presses however, here is how we distinguish Little Hunting Park, in Little Hunting Park, first of all the Board of Directors had the sole control over membership.

In Wheaton-Haven Presses asked for an application and they would not give an application, this was a Board of Directors vote.

However the bylaws of Wheaton-Haven provide that any member at any meeting can propose a member and a majority of the members can elect in a member.

You don’t have that or you did not have that in Sullivan v. Little Hunting Park.

So rather than have Tillman the plaintiff in this case, as a member propose him at the next annual meeting of members for membership, he did not even bother attempting to follow that route, because the board refused to give him an application, he immediately went into the courts.

Now we say that there is a distinction that there frankly is a substantial body, a substantial group in Wheat-Haven who would admit Presses and vote to admit Presses, but he did not even attempt that route.

He did not even attempt to poll a membership by having Mr. Tillman propose him at the meeting.

Now special meetings can be called by members and 20% of the membership can call a special meeting at anytime, and 10% of the membership constitutes a quorum.

Therefore as few as — even if the membership was filled as few as 10% or 325 will constitute a quorum which could presumably lead to Mr. Presses, Dr. Presses being voted in by the members.

One of things that is very important that there never was an attempted assignment.

All Presses is saying and all Rosner is saying is this in its simplest form, they asked the court to adopt their propositions as follow; because of our race, we are entitled to our membership, and we are entitled to be guests when similarly situated white citizens do not enjoy such right.

Those facts are admitted in the record before the District Court.

When counsel in an answer to the question posed by the district court conceded that white citizens would not have the same right that Presses and Rosner now press before this Court.

Thurgood Marshall:

I thought only he was asking for was an application blank.

Henry J. Noyes:

Well —

Thurgood Marshall:

Am I right or wrong?

Henry J. Noyes:

He asked to have an application to – well, in asking for application he indicated he wanted to join.

Thurgood Marshall:

And he was denied the application–

Henry J. Noyes:

He was denied the application by the end effect he was told formally or informally, that at that time, even if an application was given, it would not approved, we do not dispute that.

Thurgood Marshall:

What about all these other business you are talking about?

He can go there and he can there, he can hold a meeting here and he do this, what has that got to do with this case?

Henry J. Noyes:

It’s a point of distinction between the Sullivan v. Little Hunting Park and this case.

The petitioners are relying almost solely on Sullivan v. Little Hunting Park which was a transfer —

Thurgood Marshall:

I didn’t note that Hunting — Sullivan as I remember, that’s the only thing about appealing to the membership and getting one third of the votes, I do not think that was in the case at all?

Henry J. Noyes:

It was not in that case, but it is in this case.

It was not in that case because in Sullivan, the sole way a person could get a membership was through the Board of Directors.

In this particular case, the members can vote the person in this is a point of distinction that we raise, although its the most substantial point.

The most substantial point we say is that this was not an attempted assignment incident to the sale or lease of real property, that is the difference.

There was an attempted direct application to the membership by Dr. Mrs. Presses.

It was a direct attempt by Rosner, saying she is entitled to be a guest even though the uniformly applied bylaws limit guest privileges to relatives of members.

There has never been any contention that those aren’t uniformly applied.

Now this first option statement was rejected in the Fourth Circuit and reading the bylaws of Little Hunting Park which we have cited in our brief as compared to the bylaws in Wheaton-Haven, there is no first option.

At all the relevant times in these proceedings the membership has not been filled, that is the matter of fact in this record.

Now if the membership is filled, the Wheaton-Haven bylaws say that the club shall, shall buy back the membership at 90% of the initiation fee and then a person who was buying a home of that resigning member would have the first option to buy that, subject to the approval of Board of Directors.

But in cases when the membership is not filled which is what we have here and have had at all the relevant times in these proceedings, the club may, the bylaws say may buy back this membership, strictly whether they want to do it or not, it’s strictly up to club.

They are not required to buy back.

Now in Sullivan v. Little Hunting Park you had absolute right to assign or transfer membership.

You do not have that in Wheaton-Haven. In Wheaton-Haven when a person desires to resign, he has to submit a written resignation and if the club is not filled as we have it now, the club may or may not buy it back.

You had no such provision in Sullivan v. Little Hunting Park.

If a member attempted to assign his membership and the club would not approve it, that meant he had no way of disposing or getting any money out of his membership.

There is no situation in Wheaton-Haven where a contractual relationship could arise, no way, between an existing member and a prospective member.

There is no way that a contract could arise under the bylaws.

Now there is significance, attempt to be laid on the fact that supposedly during entire history of this club, that the record only indicates one rejection of one person, and I believe that the record indicates that person was a White person, some great significance is laid up on this.

The Fourth Circuit dealt with this and the district court dealt with this, in stating the more subtle ways that private clubs operate.

Once a person gets an application the approvals, usually a proforma type of thing.

Henry J. Noyes:

We do not keep rate of rejections of members.

The petitioners would have us believe or have the Court believe that throughout the history of this club there has been a long record of exclusiveness of Negroes and no exclusion of White persons.

Yet the record shows no prior exclusions of Negroes or White people.

It shows one rejection and that was a situation which is unusual where the application has been found and then rejected, but we do not generally reach that point.

Now we therefore say Your Honors that in this case, it really boils down to whether or not the Court would pigeonhole Wheaton-Haven into Little Hunting Park and the briefs and facts that I have stated indicates it is entirely different.

Now as to 2000 (a) of the Public Accommodations Law, the record will indicate that the counsel in the District Court, substantially if not totally abandoned this argument under that concept.

At one point the counsel said, that the only issue is whether there is a link between the association in interstate commerce, that was on Page 61.

Another point he stated that if Wheaton-Haven is a private club we can see that neither Sections 1981 or 1982 or 2000 (a) apply.

They said of course we believe this is not a private club, but if it is a private club than we are out on all three statues and of course if it is a private club they’d be out under Little Hunting Park too, because Little Hunting Park was decided under Section 1982.

In regard to the counsel’s statement that this — the court found Little Hunting Park to be a private club or a public operation, we do not read the case that way.

The court did, in one paragraph stated there is no plan or purpose of exclusiveness, but the court did not say it was a public accommodation.

That case was decided on the transfer or attempted transfer of membership incident to the sale or lease of real property.

Now as to membership at this time, the way that bylaws are structured, anybody in the United States who we deem or we want to admit can be a member, or not restricted to a three quarter mile area until and unless the membership is filled.

And in closing I would simply point this out to the Court, as far as exclusiveness is concerned, again the petitioner’s attempt to lay heavy stress on the fact that allegedly one person was turned down over the years.

However, this club is situated in the Wheaton area which is about 12-13 miles above the district line.

Homes from the district line are out for many, many miles or as thick as they can be placed, there is practically no available land.

At this time we can take members because our membership is not filled, we can take memberships from anyone in Montgomery County, the District of Columbia, Prince George’s County and in the surrounding Virginia areas and indeed California.

Yet our membership remains below the maximum of 325.

It was the same axiomatic that if we desire to fill those memberships by running an ad in the newspaper if we were in fact such a public operation then we would fill the thing tomorrow.

My people prefer to keep their club at the present amount of some 260-265, and despite of the fact that they have got potential membership, potential area to draw members, some rough guess to 5 million people.

We say that this is not a public accommodation.

The record shows it is not.

The record in the well reasoned opinion of the Fourth Circuit shows that the Little Hunting Park does not apply.

We respectfully urge upon Your Honors to sustain the opinions of both lower courts.

Warren E. Burger:

Thank you Mr. Noyes.

Mr. Mudd.

John H. Mudd:

Mr. Chief Justice and may it please the Court.

I appear on behalf of Mr. Ernest McIntyre, one of the respondents in this case, who previously was a member of the board, who at this time finds himself somewhat in an anomalous situation.

The record, including his deposition which is in the transcript, in the Appendix shows that he, Mr. McIntyre was one of the members mentioned by Mr. Noyes, who favored integration of the pool or admission of Negroes to the pool and in fact first met Dr. Presses when he was coaching his youngster on a little league or softball, baseball team and it was he who inquired about application to the club.

However, we find now that he is a defendant and nowhere below as the court ruled that he, since he was sued only as a Director should not have a part in these proceedings and should have been dismissed because the lower courts have not got into that.

John H. Mudd:

I will pass this point quickly because I want to get to the other points mentioned by Mr. Noyes, but I would say that Mr. McIntyre has no place in these proceedings and to keep an individual in a case like this with his demonstrated concern as a matter of social philosophy, if you will, would discourage any individual from serving in any community activity whatsoever.

But, we come now to the point as to whether the verdict or judgments below should be affirmed and I think we come to the one point which has been the issue running through the briefs and that is whether Wheaton-Haven is not a place of public accommodation, but a private club or other establishment, not in fact open to the public.

Now, I do not have the time, nor do I think the point necessitates taking time to demonstrate that in fact this swimming pool was not open to the public.

It was created, formed, controlled, financed by members.

The applications were voted on by members, either at a board meeting or at a membership of the whole.

It was not a type of membership as in Little Hunting Park that followed the real estate.

We had 70% within this three mile area, three mile radius, 30% would be outside of the area.

The sale on a house did not ipso facto mean that the purchaser became a member of the pool.

The seller of the house turned his membership in, yes he did have an option, the buyer.

But the membership flowed back to the cooperation which had the obligation to buy it on 90% or 80% depending on whether the membership was full.

Now, we come to one thing that I think is most important to fulfill the oral arguments and I do not wish to repeat the points that have been made in the briefs.

Below, in the District Court, when this case started, Mr. Brown and I quote from the transcript, Page 18, “But of course, for the question of whether it is a private club, we will also concede for this for any purpose, would is also relevant to Section 2000 as well as Sections 1981 and 1982.

We do not think it is a private club, but if it is a private club, then neither 1981, 1982 or 2000 would apply.”

I think the same principles would be applicable.

Now, we find in the reply brief of Mr. Brown at page 9, accordingly, Wheaton-Haven at least falls within the category of associations which even though private, which though private are not immune from judicial interference, to remedy injury resulting from arbitrary or discriminatory exclusion.

So, we have a complete reversal of his position with no authority cited other than a medical society case and a labor union case which we submit is different.

That is an economic unit, a professional unit such as a bar exam.

It is not a place of pleasure, it is not a recreational activity, it is not a social club such as Wheaton-Haven.

Thank you.

Warren E. Burger:

You have a minute left if you need it Mr. Brown.

Allison W. Brown, Jr.:

I would just like to say very briefly that the important thing here to consider and which has been stressed in the plaintiff’s briefs and has been stressed in the brief that was filed by the justice department in this case is that these community recreational facilities of the type that is involved here are not country clubs or fraternal organizations or sororities.

They are organizations established as the records shows here to serve the community and I submit that if in this day of — where there is a governmental policy attempting to foster a free and open housing for example, there can be no more significant and detrimental poignant badge of slavery than to have a situation where everyone in the neighborhood is eligible to use local community swimming pool except the Black family that happens to move in that neighborhood and that is exactly what has happened here.

Lewis F. Powell, Jr.:

Mr. Brown, were there any facilities other than the swimming pool?

Allison W. Brown, Jr.:

At the time, in the early days, at the time Wheaton-Haven was first organized, the record shows that there were no public pools and indeed the organizers had asked the county authorities about that to build the public pool in that area and they were told we cannot afford to, we are too busy building schools and consequently they went ahead and built this pool in the local community, that is on the record.

Lewis F. Powell, Jr.:

Did this club had own any facilities there?

Was there any club house?

Allison W. Brown, Jr.:

Oh yes, there is a — well, there is a single block, one level frame building which is where they keep their facilities I guess or keep their tools and the equipment and pumping equipment, and filters and so on and they have some vending machines there.

I do not know what else is there, that is not reflected in the record, sir.

But there is no club house to the social activity on the premises.

Warren E. Burger:

Does the record show whether they served food or soft drinks?

Allison W. Brown, Jr.:

Yes, the record shows that there was service of foods from these vending machines for people who were admitted of course to the premises and this is the whole basis or one basis for our assertion that they are covered by the 1964 Public Accommodations Act which if you would “hinges” on the service of food or the existence of other kinds of equipment which are passed on in interstate commerce and that is why we asserted jurisdiction under the 1964 Act.

I would just like to say in closing that the association here, as the record will show made a commitment to the people who were originally solicited to join, it made a commitment to the public authorities in Montgomery County that it would provide a public community service facility and we submit that now those same — the people who are in charge of this facility are attempting to convert it from a community facility into a haven for whites.

Warren E. Burger:

Mr. Brown, is that in the stipulation, the representations made to the board, the county board?

Allison W. Brown, Jr.:

That is Sir, in a decision of the Montgomery County Commission on Human Relations –

Warren E. Burger:

That is in the record.

Allison W. Brown, Jr.:

That’s right, which is in the record was submitted in the Court of Appeals and the Court of Appeals in fact received it and considered it.

So, there are certain findings which were made by that Human Relations Commission which are included in the record, were in the record in the Court of Appeals and a number of those finding as we point out in our reply brief, were in fact stipulated — not stipulated to, but they were brought out in the course of discovery in interrogatories and admissions.

So, there really is no — they are in the record in that way, if not through the Human Relations Commission’s decision.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.