League of United Latin American Citizens (LULAC), Council #4434 v. Judger Sharolyn Wood and Judge F. Harold Entz Supplemental Brief on Rehearing En Banc of Plaintiff-Intervenor-Appellees

    I n the

Imtri* (Emtrt at Ajiyrals
F ok the F ifth Circuit

No. 25894

B l e v in  Stout and Sammie B ibb, J r., individually, 
and on behalf o f others similarly situated,

Appellants,

—versus—

Y oung Men ’s Christian A ssociation 
of B essemer, Alabama,

Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ALABAMA

BRIEF FOR APPELLANTS

Norman C. A maker 
J ack Greenberg 
Conrad K. H arper

10 Columbus Circle 
New York, N. Y. 10019

Oscar W . A dams, Jr.
Harvey M. B urg

1630 Fourth Avenue, North 
Birmingham, Alabama 35203

Attorneys for Appellants



I N D E X

Statement ..............................................................................  1

Specification of Error ........................................................  5

A rgument :

The Bessemer YMCA is a place of public accom­
modation under Title II of the 1964 Civil Rights 
Act because (a) it provides lodging to transients 
and (b) it serves food to the public for consumption 
on the premises .......................................   5

A. Lodging ..................................................................  5

B. Food ........................................................................  10

C. The authority of Nesmith v. YMCA of Raleigh,
North Carolina ....................................................... 13

Conclusion...............................................................................  15

Table of A uthorities

Cases:

Adams v. Fazzio Real Estate Co., 268 F. Supp. 630 
(E. D. La. 1967) aff’d, No. 24825 (5th Cir., May
28, 1968) ............................................................................  13

Adler v. Northern Hotel Co., 80 F. Supp. 776 (N. D.
111. 1948), rev’d, 180 F. 2d 742 (7th Cir. 1950) ...........  6

Asseltyne v. Fay Hotel, 22 Minn. 91, 23 N. W. 2d 357 
(1946)

PAGE

6



ii

Beale v. Posey, 72 Ala. 323 (1882) ...................................  6
Bolton v. State, 220 Ga. 632, 140 S. E. 2d 866 (1965) .... 11

Codogan v. Fox, 266 F. Supp. 866 (M. D. Fla. 1967) .... 12

Evans v. Laurel Links, Inc., 261 F. Supp. 474 (E. D.
Va. 1966) ......................................................................... 11,12

Foster v. State, 84 Ala. 451, 4 So. 833 (1888) ...............  6, 7

Gregory v. Meyer, 376 F. 2d 509 (5th Cir. 1967) ...........  12

Hamm v. Rock Hill, 379 U. S. 306 (1964) ..... ............. 11,12
Heart of Atlanta Motel v. United States, 379 U. S.

241 (1964) .........................................................................  5
Holstein v. Phillips & Sims, 146 N. C. 366, 59 S. E. 1037 

(1907) .............................................................................   6

Katzenbach v. McClung, 379 U. S. 294 (1964) .............  12
Kyles v. Paul, 263 F. Supp. 412 (E. D. Ark. 1967), 

aff’d No. 18,824 (8th Cir., May 3, 1968) ..... ......... .....  13

Meaeham v. Galloway, 102 Tenn. 415, 52 S. W. 859
(1899) .....    6

Miller v. Amusement Enterprises, Inc., No. 24,259 (5tli 
Cir. en banc, April 8, 1968) reversing 391 F. 2d 86 
(5th Cir. 1967) .......................................................... .....12,13

Nesmith v. YMCA of Raleigh, North Carolina, 273 F. 
Supp. 502 (E. D. N. C. 1967), rev’d, No. 11.931 (4th 
Cir. June 7, 1968) .............   10,11,13,14,15

PAGE



Ill

Newman v. Piggie Park Enterprise, Inc., 256 F. Supp.
941 (D. S. C. 1966), rev’d, 377 F. 2d 433 (4th Cir. 
1967) ..................................................................................  12

Pettit v. Thomas, 103 Ark. 593, 148 S. W. 501 (1912) .. 6
Pinkney v. Meloy, 241 F. Supp. 943 (N. D. Fla., 1965) .. 13

Statutes :

Title II of the Civil Rights Act of 1964, 78 Stat.

PAGE

243, 42 U. S. C. §2000a et seq................... 2, 5,10,12,13,14

42 U. S. C. §1981 ..............................................................  2

Other Authorities:

43 C. J. S. Innkeepers §3 (1945) ................................... 8

Hearings on Miscellaneous Proposals Regarding the 
Civil Rights of Persons Within the Jurisdiction of 
the United States Before a Subcommittee of the 
House Committee on the Judiciary, 88th Cong., 1st 
Sess., ser. 4, p. 2 (1963) ...............................................  7,9

Hearings on S. 1732 Before the Senate Committee 
on Commerce, 88th Cong., 1st Sess., ser. 26 
(1963) ...................................................................... 8,9,10,12

H. R. 7152, S. 1731, S. 1732, 88th Cong., 1st Sess. 
(1963) ................................................................................  11

H. Zworensteyn, Fundamentals of Hotel Law (1963) .... 7



I n the

l&nxttb States (Emtrt of Appeals
F or the F ifth Circuit 

No. 25894

B levin Stout and Sammie B ibb, J r., individually, 
and on behalf o f others similarly situated,

Appellants,

—versus—

Y oung Men ’s Christian A ssociation 
of B essemer, A labama,

Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ALABAMA

BRIEF FOR APPELLANTS

Statement

On November 21, 1966, appellants, Blevin Stout and 
Sannnie Bibb, Jr., Negro citizens of Jefferson County, 
Alabama, instituted a class action in the United States 
District Court for the Northern District of Alabama against 
the Young Men’s Christian Association of Bessemer, Ala­
bama, Inc. (R. 1, 56). The appellants claimed that the 
Y. M. C. A. was depriving them, and Negro citizens simi­



2

larly situated, of rights, privileges and immunities secured 
by (a) the Fourteenth Amendment to the Constitution; (b) 
the Commerce Clause of the Constitution; (c) Title II of 
the Civil Rights Act of 1964, providing for injunctive relief 
against discrimination in places of public accommoda­
tions; and (d) 42 U. S. C. Section 1981, providing for the 
equal rights of citizens and all persons within the juris­
diction of the United States (R. 1, 2). The complaint al­
leged that the Y. M. C. A. pursued a policy of racial dis­
crimination in the operation of its facilities, services and 
accommodations (R. 4). Plaintiffs prayed for injunctive 
relief (R. 5).

On January 5, 1967, the Y. M. C. A. answered the com­
plaint (R. 7). After a trial without a jury, the district 
court, on December 13, 1967, held that the activities of 
the Y. M. C. A. do not affect commerce within the contem­
plation of the Civil Rights statutes, and that the Y. M. C. A. 
is not a place of public accommodation (R. 15), and dis­
missed the complaint with prejudice (R, 15, 16). On De­
cember 20, 1967, the findings of fact, conclusions of law and 
judgment were amended by striking therefrom the words 
“ with prejudice” (R. 18). The appellants filed notice of 
appeal to this Court on January 10, 1968 (R. 19).

The Y. M. C. A. is a tax exempt, non-profit corporation 
(R. 114). Over 50% of its funds are derived from the 
Jefferson County Community Chest, a county-wide solicita­
tion of the general public (R. 44, 45). Membership in the 
Y. M. C. A. is open to the general public (R. 78, 124, 128). 
Of approximately 3,000 membership applications in 1966, 
all were accepted except four dormitory applications which 
were rejected (R. 102).



3

The Y. M. C. A.’s building located at 1815 Fourth Avenue, 
North, Bessemer, Alabama (R. 78, 90), live blocks from 
TJ. S. Highway 11 (R. 88), contains forty-six rooms for 
rent (R. 47). When rooms are available, lodging is pro­
vided to individuals for one night (R. 46, 105). Since the 
dormitory membership fee is set on a weekly basis, persons 
staying for only one night are not charged a dormitory 
membership fee and have no membership privileges (R. 
104). Although persons staying for only one night are 
supposed to fill out an application (R. 53), Stephen Cotton, 
a white Harvard College student temporarily living in 
Birmingham, Alabama, testified that he rented a room for 
one night on December 7, 1965, without being required to 
fill out any membership application or other forms (R. 
35). He was given a receipt which stated that the charge 
of $1.50 included a membership fee of $.50 (R. 64). Per­
sons renting a room for one night are not asked where they 
are from or if they are members of any Y. M. C. A. before 
being rented lodging (R. 53, 59). They are rented a room 
without the prior approval of the Y. M. C. A.’s Board of 
Directors (R. 59). During the year 1965, the Y. M. C. A.’s 
records show that six individuals stayed at the Y. M. C. A. 
less than one week, and in 1966 there were five such in­
dividuals (R. 51).

In the basement of the Y. M. C. A .’s building is a dining 
room exclusively engaged in selling food for consumption 
on the premises (R. 71, 85). This dining room can accom­
modate 75 to 80 people comfortably (R. 116). Food is 
cooked on the premises (R. 117). The dining room is run 
by a caterer employed by the Y. M. C. A. (R. 116). Dinner 
is served to church and civic groups two or three nights 
each week (R. 117, 124). These groups are not members



4

of the Y. M. C. A. (R. 123). Any group wishing to meet 
there regularly must obtain the prior approval of the 
Y. M. C. A.’s Board of Directors (R. 116, 124). If the 
facilities are available, however, the caterer may serve any 
group she chooses on a single occasion (R. 116, 124). Use 
of these facilities by any Negro group would under any 
circumstances require the prior approval of the Board of 
Directors (R. 118, 123, 124). No Negro group has ever 
used these dining facilities (R. 111).

Groups using the dining facilities pay the caterer (R. 71, 
85). The Y. M. C. A. receives ten cents for each plate 
served (R. 117). As the Y. M. C. A. furnishes the equip­
ment, lights, gas and maintenance for the dining room, 
the dining room operation is not self-supporting (R. 117). 
The deficit from this operation is not kept separately in 
the Y. M. C. A.’s accounts (R. 117). Once each year for 
the past several years, the Lions Club served a supper 
in this dining room to which the general public was invited 
(R. 49). This tradition has now been discontinued (R. 49).

The Y. M. C. A. does not advertise on radio or television 
or in newspapers (R. 84) or by signs on highways (R. 51). 
However, the Y. M. C. A. does benefit from the national 
publicity of the National Council of Y. M. C. A.’s (R. 98), 
of which the Bessemer Y. M. C. A. is a member (R. 84, 97). 
In addition, the Bessemer Y. M. C. A. is listed in the Official 
Roster of Y. M. C. A .’s published by the National Council 
and sold to the general public (R. 53).

On November 17, 1965, appellants Blevin Stout and 
Sammie Bibb, Jr., went to the Y. M. C. A. at Bessemer 
and asked to rent a room (R. 24, 29). They also inquired 
about membership applications (R. 24, 29) and about dining 
facilities for organizations (R. 24, 29). The district court



5

found as a fact that Blevin Stout and Sammie Bibb, Jr. 
were denied membership and the use of the Y. M. C. A.’s 
facilities, because they are Negroes (R. 14), but the court 
held the Y. M. C. A. was not subject to Title II because it 
allegedly did not accommodate transients or open its facili­
ties to the public (R. 15).

Specification of Error

The court below erred in failing to find that the Young 
Men’s Christian Association of Bessemer, Alabama, Inc., 
is a place of public accommodation as defined in Title II 
of the Civil Rights Act of 1964, 78 Stat. 243, 42 U. S. C. 
Sections 2000a et seq., and in failing to issue an injunc­
tion requiring desegregation.

A R G U M E N T

The Bessemer YMCA is a place of public accommoda­
tion under Title II of the 1964 Civil Rights Act because 
(a) it provides lodging to transients and (b ) it serves 
food to the public for consumption on the premises.

A. Lodging

The section of Title II of the Civil Rights Act of 1964, 
which states that any establishment which provides lodg­
ing to transient guests is a place of public accommodation, 
was viewed by the court in Heart of Atlanta Motel v. 
United States, 379 U. S. 241, 249 (1964) as applying to a 
motel which admitted coverage under §201 (a) and which 
had refused lodging to transient Negroes. Based on the 
legislative history regarding this section, the meaning of 
the term “ transient guest” at common law, and the express



6

words of the statute itself, it is clear that the Y. M. C. A. of 
Bessemer is an establishment which provides lodging to 
transient guests.

At common law, a distinction is made between a transient 
guest or simply a guest on the one hand, and a lodger on 
the other. An individual whose stay is temporary is a 
guest, while an individual who intends to remain indefi­
nitely or permanently, without any present purpose of 
going to any other place, is a lodger. Adler v. Northern 
Hotel Co., 80 F. Supp. 776 (N. D. 111. 1948), rev’d on other 
grounds, 180 F. 2d 742 (7th Cir. 1950); 43 C. J. S. Inn­
keepers §3, 1140, 1143 (1945). The length of an individu­
al’s stay, the existence of a special contract for a room, 
and the existence of a home elsewhere are material cir­
cumstances in determining whether an individual is a guest 
or a lodger, but these circumstances are not controlling. 
43 C. J. S. Innkeepers §3, 1138 (1945). An individual may 
be a transient guest, although he has stayed at an establish­
ment for one week or longer, Asseltyne v. Fay Hotel, 22 
Minn. 91, 23 N. W. 2d 357 (1946); Pettit v. Thomas, 103 
Ark. 593, 148 S. W. 501 (1912); Meacham v. Galloway, 102 
Tenn. 415, 52 S. W. 859 (1899); 43 C. J. S. Innkeepers §3, 
1138 (1945); even though he is paying a weekly, monthly, 
or other reduced rate, Pettit v. Thomas, supra; Holstein v. 
Phillips & Sims, 146 N. C. 366, 59 S. E. 1037 (1907); Beale 
v. Posey, 72 Ala. 323 (1882); 43 C. J. S. Innkeepers §3, 
1138 (1945); and even though he is not a traveler but re­
sides in the immediate vicinity, Beale v. Posey, supra; 43 
C. J. S. Innkeepers §3, 1140 (1945). A single establish­
ment may be both a boarding house in respect to permanent 
residents and an inn in respect to transient guests. Adler 
v. Northern Hotel Co., supra; Foster v. State, 84 Ala. 451,



4 So. 833 (1888); see also H. Zworensteyn, Fundamentals 
of Hotel Law, 16, 34-35 (1963).

The term “ transient guest” was used by the authors of 
the Civil Rights Act of 1964 with the intent that it have a 
meaning at least as broad as its meaning at common law. 
Attorney General Kennedy defined the “ transient guest” 
test in a document prepared at the request of the House 
Judiciary Committee:

The “ transient guest”  requirement exempts estab­
lishments, like apartment houses, which provide per­
manent residential housing. For example, apartments 
rented on month-to-month tenancies automatically re­
newed each month unless specifically terminated, are 
exempted. The question of coverage would be deter­
mined by the actualities of the arrangement. The ques­
tion whether an establishment caters to “ transient 
guests” would be a question of Federal, not State local 
law. Hearings on Miscellaneous Proposals Regarding 
the Civil Rights of Persons Within the Jurisdiction of 
the United States Before a Subcommittee of the House 
Committee on the Judiciary, 88th Cong., 1st Sess., 
ser. 4, p. 2 at 1402 (1963) (hereinafter cited as House 
Civil Rights Hearings).

Before the Senate Commerce Committee, Assistant At­
torney General Marshall was asked by Senator Morton how 
long a person had to stay at a hotel or rooming house to 
cease being a transient guest:

Mr. Marshall. I  think, Senator, I wouldn’t be able 
to cover all possible situations with a definition of it, 
but I think places generally either furnish rooms or 
apartments to permanent residents or they hold them­

7



8

selves out to people that come for maybe a week at a 
time or maybe in the case of a summer establishment, 
for the summer.

But I think that in almost every case you could tell 
the difference between a place that rents from month 
to month with the intention of the people that rent 
from it of staying there and a place that caters to 
people that move in and out. Hearings on 8 .  1732 Be­
fore the Senate Committee on Commerce, 88th Cong., 
1st Sess., ser. 26 at 213 (1963) (hereinafter cited as 
Senate Civil Rights Hearings).

The Y. M. C. A. at Bessemer is neither an establishment 
merely providing permanent residential housing nor a 
social club. It is apparent from the legislative history 
that the language—“ any establishment which provides 
lodging to transient guests”—was intended to embrace this 
Y. M. C. A. Aside from one or two retired individuals who 
make their home permanently at the Y. M. C. A. (R. 51), the 
Y. M. C. A.’s residents are primarily men who work in Bes­
semer and have a home in some other place (R. 58). They 
go home each weekend (R. 58). They do not intend to stay 
at the Y. M. C. A. indefinitely or permanently, without any 
present intention of going elsewhere, but to remain only 
as long as their employment in Bessemer lasts (R. 58).

At common law and under the meaning intended by Con­
gress, these individuals are transient guests and not per­
manent residents. That the Y. M. C. A. categorizes these 
men as permanent residents and defines a transient as an in­
dividual who stays less than one week (R, 57, 58) is imma­
terial. The transient guest requirement was intended to 
exempt establishments providing permanent residential



9

housing and was never intended to exempt establishments 
simply because guests usually remain longer than one week. 
The district court erred in construing “transient guest” to 
mean travelers who remain at an establishment less than 
one week.

Assuming arguendo that the district court’s definition of 
transient guest is correct, the undisputed facts show that 
the Y. M. C. A. provides lodging to transient guests (R. 13). 
But because rooms are rented to such transients only occa­
sionally and because “ as far as the evidence reveals, all 
of these so-called transients were residents of the State of 
Alabama” (R. 13), the lower court erroneously concluded 
that the Y. M. C. A. is not a place of public accommodation 
(R. 15). An establishment providing lodging to transient 
guests was intended to be covered whether the guests are 
from within the state or from without, and whether or not 
transient guests in large numbers are accommodated. 
Senate Civil Rights Hearings at 66, 170 (testimony of 
Attorney General Kennedy).

A  requirement that a “ substantial” part of an establish­
ment’s business be in interstate commerce was intentionally 
omitted. House Civil Rights Hearings at 1386 (testimony 
of Attorney General Kennedy). In testimony before the 
House Judiciary Committee and the Senate Commerce 
Committee, Attorney General Kennedy affirmed that the 
provision on lodgings was intended to cover small as well 
as large establishments and that the size of a business was 
not a criterion for coverage. Id. at 1384; Senate Civil 
Rights Hearings at 24. It was decided not to set some arbi­
trary standard because discrimination by many small 
establishments imposes a cumulative burden on interstate 
commerce, Senate Civil Rights Hearings at 24 (testimony



10

of Attorney General Kennedy), and because it makes little 
sense to prohibit a large and not a small establishment 
from discriminating, Id. at 59.

There is no basis in the legislative history for the tests 
imposed by the district court in determining whether the 
Y. M. C. A. provides lodging to transient guests within the 
meaning of Title II of the Civil Rights Act of 1964. The 
statutory language was intended to be absolute, in order 
that virtually all persons operating establishments provid­
ing public accommodations would know they were covered. 
Senate Civil Rights Hearings at 24 (testimony of Attorney 
General Kennedy) and at 210 (testimony of Assistant At­
torney General Marshall). On the basis of the undisputed 
fact that the Y. M. C. A. occasionally rents rooms to tran­
sient guests, that the Y. M. C. A. is listed in a directory cir­
culated throughout the United States, and that Y. M. C. A .’s 
customarily provide lodging to transient guests (R. 112), 
the Y. M. C. A. is a place of public accommodation.

B. Food

It is not disputed that there is an eating place exclusively 
engaged in selling food for consumption on the premises 
located within the Y. M. C. A .’s building (R. 12). The dis­
trict court found that the Y. M. C. A. did not operate this 
eating place (R. 12). There is no support for this finding 
in the record. The Y. M. C. A. employs a caterer to pur­
chase and prepare the food sold (R. 116). The Y. M. C. A. 
absorbs the deficit from this operation in its general budget 
(R. 117). This factor was regarded by the Fourth Circuit 
as significant in finding that the Raleigh Y. M. C. A. was 
a single establishment. Nesmith v. Y. M. C. A. of Raleigh, 
N. C., 273 F. Supp. 502 (E. D. N. C. 1967), rev’d, No. 11,931



11

(4th Cir. June 7, 1968) (slip op. 5). The caterer is not free 
to serve any group she chooses, but must obtain the Board 
of Directors’ prior approval before serving any group on 
a regular basis (R. 116, 124) or before serving a Negro 
group under any circumstances (R. 118, 123).

The original civil rights bill required that an eating place 
serve interstate travelers to a substantial degree; this re­
quirement was later omitted by substituting the current 
provision that an offer to serve interstate travelers would 
affect commerce, H. R. 7152, S. 1731, S. 1732, 88th Cong., 
1st Sess. (1963). That this offer is made only to groups 
and not to individuals is immaterial. An offer to serve the 
general public, whether in groups or as individuals, under 
circumstances which make it reasonable to assume that 
some interstate travelers will accept the offer has been 
treated as an offer to serve interstate travelers, where, as 
here, there is no inquiry made as to the customers’ origin. 
Hamm. v. Rock Hill, 379 U. S. 306 (1964); Evans v. Laurel 
Links, Inc., 261 F. Supp. 474 (E. D. Ya. 1966); Bolton v. 
State, 220 Ga. 632, 140 S. E. 2d 866 (1965). In Evans v. 
Laurel Links, Inc. the court held that where a lunch counter 
on a golf course offered to serve the general public and 
players occasionally came from Washington, D. C., to par­
ticipate in tournaments, it was reasonable to assume that 
some interstate travelers would accept the lunch counter’s 
offer. In serving groups such as the Rotary Club, The 
Kiwanis Club, and The Industrial Management Club (R. 
116), which customarily provide guest speakers at lunch­
eons and which customarily hold their luncheons or dinners 
out to members from all over the United States, the 
Y. M. C. A. is offering to serve interstate travelers. That 
interstate travelers are in fact actually served without



12

inquiry as to their origin is evidenced by the fact that 
Stephen Cotton, a Harvard College student temporarily 
residing in Birmingham, was served without question at a 
Lions Club dinner (R. 39-40). The fact that the Y. M. C. A. 
does not formally advertise its eating place does not pre­
clude finding an offer to serve interstate travelers. Codogan 
v. Fox, 266 F. Supp. 866 (M. D. Fla. 1967). The Y. M. C. A .’s 
location five blocks from an interstate highway (R. 88) is 
also material to coverage under Title II. Gregory v. Meyer, 
376 F. 2d 509 (5th Cir. 1967) (3 blocks from federal high­
way) ; Evans v. Laurel Links, Inc., supra (4 blocks from 
State highway and 5 miles from nearest II. S. highway); 
see also Miller v. Amusement Enterprises, Inc., No. 24,259 
(5th Cir. en banc, April 8, 1968).

In addition, a substantial portion of the food served at 
the Y. M. C. A. has moved in commerce. It is settled that 
substantial means “more than minimal” . Gregory v. Meyer, 
376 F. 2d 509, 511 n. 1 (5th Cir. 1967); Newman v. Piggie 
Park Enterprise, Inc., 256 F. Supp. 941 (D. S. C. 1966), 
rev’d on other grounds, 377 F. 2d 433 (4th Cir. 1967) (18% 
is substantial); Codogan v. Fox, 266 F. Supp. 866 (M. D. 
Fla. 1967); Senate Civil Bights Hearings at 24 (testimony 
of Attorney General Kennedy). The Supreme Court has 
recognized that Congress intended to cover retail store 
lunch counters, Hamm v. Rock Hill, 379 IJ. S. 306, 310 
(1964) and that Congress was especially concerned with 
the effect on commerce of racial discrimination in restau­
rants, Katzenbachv. McClung, 379 U. S. 294, 299-301 (1964). 
In view of this recognized congressional policy, food served 
in the Y. M. C. A. must be deemed to have affected com­
merce.

This Court may take judicial notice that coffee, tea and 
bread ingredients originate without the State of Alabama.



13

Adams v. Fazzio Real Estate Co., 268 F. Supp. 630, 639 
n. 18 (E. D. La. 1967) aff’d, No. 24825 (5th Cir., May 
28, 1968); Kyles v. Paul, 263 F. Supp. 412 (E. D. Ark. 
1967), aff’d, No. 18,824 (8th Cir., May 3, 1968) (petition 
pending for rehearing en banc). As the only beverages 
served in the Y. M. C. A .’s eating place are coffee and tea 
and as the dinners consist of the regular plate (R. 117), 
more than a minimal amount of the food served at the 
Y. M. C. A. has undoubtedly moved in interstate commerce. 
Thus the Y. M. C. A. is subject to Title II because it pro­
vides lodging for transients and serves and offers to serve 
food, a substantial portion of which has moved in com­
merce, to interstate travelers.

Since the YMCA is a place of public accommodation 
on all of the above grounds, it is a place of public accom­
modation as to all services rendered within its physical 
confines. Nesmith v. YMCA of Raleigh, North Carolina, 
No. 11,931 (4th Cir., June 7, 1968); Pinkney v. Meloy, 241 
F. Supp. 943 (N. D. Fla., 1965).

C. The authority of Nesmith v. YMCA of Raleigh,
North Carolina

This court has made it clear that Title II of the Civil 
Rights Act of 1964 is to be liberally construed so as to 
effectuate its purpose of eradicating racial discrimination 
in public accommodation. Miller v. Amusement Enter­
prises, Inc., No. 24259 (5th Cir., en bam, April 8, 1968) 
(slip op. 13) reversing 391 F. 2d 86 (5th Cir., 1967); Fazzio 
Real Estate Co., Inc. v. Adams, No. 24825 (5th Cir., May 
28, 1968). The only authority cited by the district court 
in the instant case for its conclusion that the activities of 
the YMCA do not affect commerce and are not open to 
the public was Nesmith v. YMCA of Raleigh, N. C., 273



14

F. Supp. 520 (E. D. N. C., 1967) (R. 15). But the Nesmith 
district court recently has been reversed by the Fourth 
Circuit (No. 11,931, June 7, 1968).

Appellants urge that the application of standards set out 
in the Fourth Circuit Nesmith decision makes it incon- 
trovertibly clear that the Bessemer YMCA is covered by 
Title II. For example, the district court found as a fact 
that some 53% or 54% of the income of the Bessemer 
YMCA is derived from the United Appeal (R. 12). In de­
termining that the Raleigh YMCA was not a private club, 
the Fourth Circuit put heavy reliance upon the fact that 
more than 20% of the operating funds of the athletic 
building was provided by the United Fund. Nesmith v. 
YMCA of Raleigh, N. C., supra, slip op. 11.

The district court impliedly put some reliance upon the 
fact that the facilities of the Bessemer YMCA are allegedly 
not open to the public (R. 15). Support for the district 
court’s conclusion is apparently contained in its finding of 
fact that a person wishing to become a member of the 
YMCA must file an application, which application is pur­
portedly reviewed by a committee and the board of direc­
tors (R, 13). Yet the record is clear, and the district 
court found as a fact, that Steven Cotton, a white student, 
was rented a room for $1.50 and that he attended a Lions 
Club oyster supper—all with no hint that the YMCA made 
any effort to bar him as a non-member (R. 14, 36-37). As 
an indicium of how little membership in the YMCA meant 
for a person who was white, Mr. Cotton was given a 
receipt at the time he paid his $1.50, which receipt indi­
cated that 50  ̂ was for membership.



15

In rejecting the contention that the Raleigh YMCA was 
a private club in light of its requirements for applications 
and review by a membership committee, the Fourth Cir­
cuit significantly noted that it was “ admitted that there 
are no prescribed or regularly used qualifications for 
membership” and the court went on to conclude that, “ The 
YMCA, with no limits on its membership and with no 
standards for admissibility, is simply too obviously un- 
selective in its membership policies to be adjudicated a 
private club.” (Nesmith v. YMCA of Raleigh, North Caro­
lina, supra, slip op. 10-11). We submit that the district 
court’s reliance in the instant case upon the Nesmith dis­
trict court was clearly misplaced in light of the disposi­
tion made by the Fourth Circuit.

CONCLUSION

For the foregoing reasons, we respectfully submit 
that the judgment of the district court should be re­
versed.

Respectfully submitted,

Norman C. A maker 
J ack Greenberg 
Conrad K. Harper

10 Columbus Circle 
New York, N. Y. 10019

Oscar W. A dams, Jr.
H arvey M. B urg

1630 Fourth Avenue, North 
Birmingham, Alabama 35203

Attorneys for Appellants



RECORD PRESS — N. Y. C. 38