AuthorDiane S. Worth, Nancy M. Landis

Kansas Bar Journals

Volume 60.

60 J. Kan. Bar Assn. June-July, 27 (1991).


Journal of the Kansas Bar AssociationVol. 60, June/July, 1991DOES MEMBERSHIP HAVE ITS PRIVILEGES? THE LIMITS ON PERMISSIBLE DISCRIMINATION IN PRIVATE CLUBS[FN1]Diane S. Worth, Nancy M. LandisCopyright 1991 by the Kansas Bar Association; Diane S. Worth and Nancy M. Landis


Nearly thirty years after the enactment of the Civil Rights Act of 1964, racism and sexism continue to flourish in many private clubs. But, due in large part to the increasing numbers of minorities and women in business professions, there is a movement afoot, both legal and social, to open the doors to private clubs where valuable business and social contacts often are made. In many cases, however, there is strong resistance to this movement by the members of these clubs, who cling to their right to associate "with whomever they please."

In the past year, two incidents, one concerning Birmingham's Shoal Creek Country Club and the PGA Championship, and the other concerning professional golfer Tom Watson and The Kansas City Country Club, have drawn the public's attention to private country clubs' discriminatory practices. First the PGA, and then Tom Watson, voiced their opposition to the practice of excluding members based on race or religion by refusing to do business with the clubs. Such practices are becoming -- or have become -- socially unacceptable. [FN2]

In response to this social recognition, the code of judicial conduct recently was amended to prohibit membership by judges in any private clubs that discriminate. [FN3] Failure to comply has resulted in lost career opportunities: witness the president's recent nomination of U.S. District Judge Kenneth L. Ryskamp to a seat on the 11th Circuit Court of Appeals. The Senate Judiciary Committee rejected Ryskamp. One of the stated reasons was his membership in a country club that excluded blacks and Jews. [FN4]

And -- in the courts -- private clubs' First Amendment armor has begun to disintegrate. In a trilogy of decisions in the 1980s, the United States Supreme Court set forth a restrictive definition of the freedom of association and upheld the constitutionality of state statutes designed to keep private clubs from discriminating. As a consequence, more lawsuits are being filed with more success by those who have been denied membership or services in private clubs due to their race or sex or religion.

The interests at stake in these controversies are clear: minorities seek the right of access to social and fraternal clubs where business contacts are made and social prestige is gained, state governments seek to eradicate discrimination, and private club members seek to protect their rights to privacy and to associate. [FN5] The state and lower federal courts have been left with the task of determining which clubs are truly private and entitled to constitutional protection.

In this article we will explore the federal and state statutory remedies available to the individual who has been denied membership or service at a private club due to his or her race, national origin, religion, or sex. Those statutory remedies include:

1. Federal civil rights laws:

a. 42 U.S.C. § 1981 -- ensures black citizens the same right to "make and enforce contracts" as enjoyed by white citizens. The right may extend to those blacks who seek to make contracts with private clubs, although courts disagree on this issue; b. 42 U.S.C. § 1982 -- bars racial discrimination in the sale or rental of property; [FN6] c. 42 U.S.C. § 1983 prohibits anyone acting under color of state law from denying equal protection to any individual. There must be state action, which is rare in private clubs;

d. The Civil Rights Act of 1964, 42 U.S.C. § 2000a (Title II) -- prohibits discrimination on the basis of race, religion or national origin (but not sex) by a place of public accommodation whose operations affect commerce. "Public accommodation" is broadly defined in the Act and may include private membership clubs. The Act specifically excludes distinctly private clubs from its coverage, but does not define the term "private club." The burden is on the club to prove it qualifies as a private club. 2. State civil rights laws.

Unlike Title II's public accommodation law, most state public accommodation laws, including Kansas', prohibit discrimination on the basis of gender, as well as race, religion and national origin. States vary on whether or not they provide an exemption to private clubs.

There is unquestionably a zone of associational privacy into which these anti-discrimination laws cannot intrude. The second part of this article, therefore, discusses the constitutional right of freedom of association and analyzes the scope of that right in the private club context.

The following scenarios illustrate some of the issues involved in the cases that will be discussed in this article:

  1. A seven-year-old boy, whose parents are agnostics, is denied membership in the Boy Scouts because he is unwilling to sign a declaration professing his belief in God. Can the Boy Scouts be forced to accept this boy as a member? [FN7]

  2. Black individuals are permitted to attend a party as guests of a member of an all-white male club. The club refuses to serve them drinks despite the fact that other white guests are permitted to buy drinks from the bar. Does the club's action violate any anti-discrimination laws? [FN8]

  3. A woman is awarded the family's country club membership in a divorce settlement. Thereafter, the club cancels her membership because of its rule that only men can own family memberships. Can the woman state a cause of action against the club for discrimination? [FN9]

  4. A city enacts an ordinance providing that any club with over 400 members that serves meals and allows nonmembers to rent the facilities is not a "private club" and is therefore not exempt from the city's civil rights laws. Does this ordinance infringe the First Amendment rights of the private club members? [FN10]

  5. A private country club allows both men and women as members. Within the club is a social room that serves food and drinks from which women are excluded. Is the club violating any anti-discrimination laws? [FN11]


An individual who has been denied membership or some aspect of membership in a private club because of the individual's race, sex, religion or national origin may have several means of challenging that discrimination through the federal and state civil rights laws. The avenues available to the individual will depend upon the type of discrimination alleged and the remedies sought. In many instances, several statutes may apply to a given situation and violation of such statutes may be alleged in the alternative.

A. Title II

The federal statute most frequently applied to private club discrimination is Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a, et seq. That statute enacted a "sweeping prohibition" of discrimination or segregation on the ground of race, color, religion, or national origin at places of "public accommodation" whose operations affect commerce. [FN12] Title II "must be read broadly so as to effectuate its purpose of removing the daily affront and humiliation involved in discriminatory denials of access to facilities

ostensibly open to the general public." [FN13] The Act provides an exception, however, for discrimination by "private clubs." Additionally, the Act does not apply to sex discrimination.

  1. Place of Public Accommodation.

    The "centerpiece" of Title II is its application to places of "public accommodation." [FN14] In order to qualify as a "place of public accommodation" a private club's operations must affect commerce and it must be included in one of the following categories of establishments that serve the public:

    (1) any inn, hotel, motel, or other establishment which provides lodging to transient guests. . . .

    (2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises. . . .

    (3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and

    (4) any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment. [FN15]

    The category most frequently applied to private clubs is 42 U.S.C. § 2000a(b)(3), which provides that a place of public accommodation is any "place of exhibition or entertainment" whose "operations affect commerce. . . . " [FN16]

    Courts are very liberal in their interpretation of what constitutes a place of public accommodation. They do not consider whether the facility is truly public, rather they focus on whether the association is a "place" that falls within one of the enumerated categories. In determining whether the requirement of a "place" has been met, the courts, for the most part, have refused to interpret the term as applying to a physical facility rather than to a business or organization. Instead, when the exclusionary practices of private clubs have been challenged under Title II, courts focus more on the...

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