NAACP Legal Defense and Educational Fund, Inc. v. Harrison Petition for Appeal

    I n  T H E

WnxUb (&smxt of Kppmln
F or t h e  F ohrth  Circuit

No. 9612

R eginald A . H a w k in s ,
Appellant,

N orth  Carolina D ental  S ociety, et al.,
Appellees.

on appeal from  t h e  u n ited  states district court

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

BRIEF FOR APPELLANT

J ack Greenberg 
F rank  H . H effron

10 Columbus Circle 
New York, New York 10019

T homas H . W yche

2500 Beatties Ford Road 
Charlotte, North Carolina

Attorneys for Appellant



I N D E X

PAGE

Statement of the Case ..................................................  1

Questions Involved.......... ..................... ......................—- 3

Statement of F acts.........................................................  3

A r g u m e n t ...................     I I

I. The North Carolina Dental Society and Its 
Component Societies Are Bound by Constitu­
tional Prohibitions Against Racial Discrimina­
tion in the Selection of Members .................  11

II. Plaintiff Was Denied Membership in Segre­
gated Societies for Failure to Comply With 
Procedures That Operate Discriminatorily 
Against Negroes ................... ........................... 21

Conclusion  ........ ............................................................................. 25

T able of Cases

Anderson v. Martin, 375 IT. S. 399 ................................ 13

Barrows v. Jackson, 346 U. S. 249 ...................... ...........  13
Bell v. Georgia Dental Association, 231 F. Supp. 299

(N. D. Ga. 1964) ......................................................... 13
Blende v. Maricopa County Medical Society,----- Ariz.

----- , 393 P. 2d 926 (Ariz. Sup. Ct. 1964) ................. 20
Boman v. Birmingham Transit Co., 280 F. 2d 531 (5th

Cir., 1960) ......................—........ ............................. .11,19
Burton v. Wilmington Parking Authority, 365 U. S.

715 ............... ................................. ........................... 12,19



11

PAGE

Eaton v. Grubbs, 329 F. 2d 710 (4th Cir. 1964) ...... 12,19

Falcone v. Middlesex County Medical Society, 34 N. J.
582, 170 A. 2d 791 (N. J. Sup. Ct. 1961) ......... ........ 20

Hunt v. Arnold, 172 F. Supp. 847 (N. D. Ga. 1959) ----- 23

James v. Marinship Corp., 25 Cal. 2d 721, 155 P. 2d 
329 ............................ -........ -...........................-.........-  21

Lndley v. Board of Supervisors of Louisiana State Uni­
versity, 150 F. Supp. 900 (E. D. La. 1957), aff’d 252 
F. 2d 372 (5th Cir. 1958), cert, denied, 358 IJ. S. 819 .. 23

Marsh v. Alabama, 326 U. S. 501 --------------- ---------  19
Meredith v. Fair, 298 F. 2d 696 (5th Cir. 1962)  ....... 23, 24

Nixon v. Condon, 286 U. S. 73............-....-................... H? U
N. L. R. B. v. Southern Bell T. & T. Co., 319 U. S. 50 .... 14

Robinson v. Florida, 378 U. S. 153................................ 13

Shelley v. Kraemer, 334 U. S. 1 ...... .... ..............-......... 13
Simkins, et al. v. Moses H. Cone Memorial Hospital, 323 

F. 2d 959 (4th Cir. 1963), cert, denied, 376 U. S. 938
(1964) ....... .............................-----................................  12

Steele v. Louisville & Nashville R. Co., 323 U. S. 192 .... 21

Terry v. Adams, 345 IT. S. 461....................................... 16,19

United States v. Manning, 205 F. Supp. 172 (W. D.
La. 1962) ........ .................... -........ - - ........ -...............

United States v. Ward, 222 F. Supp. 617 (W. D. La. 
1963) ................................................................. -........

Wilson & Co. v. N. L. R. B., 156 F. 2d 577 (10 Cir. 
1946), cert, denied, 329 U. S. 789 14



Ill

29 U. 8. C. §158(a)(2)  .................................-........  14
F. E. C. P. Rule 43 .....................................................  24
N. C. Gen. Stat, §90-22 (1958) ............................ ......... 2, 6, 7
N. C. Gen. Stat. §90-22 (1964) ............... 2, 6, 7,12,13,15,18
N. C. Gen. Stat. §122-105 (1964) .................................... 8,17
N. C. Gen. Stat. §130-4 (1958) .................................... --9,17
N. C. Gen. Stat. §131-117 (1958) .....................................8,16
N. C. Gen. Stat. §131-117 (1963) .......................   8,16

Oth er  A utho rities

2 Jones, Evidence §325 (5th ed. 1958)............................ 24
Judicial Control of Actions of Private Associations,

76 Harv. L. Eev. 983 (1963) .............. .......... — ........  20
Stansbury, North Carolina Evidence, §§161, 162 ......  24

S tate S tatutes

N. C. G. S. §90-22 (1958):
Practice of dentistry regulated in public interest; article 

liberally construed; Board of Dental Examiners; mem­
bership.—The practice of dentistry in the State of North 
Carolina is hereby declared to affect the public health, 
safety and welfare and to be subject to regulation and 
control in the public interest. It is further declared to be 
a matter of public interest and concern that the dental pro­
fession merit and receive the confidence of the public and 
that only qualified persons be permitted to practice den­
tistry in the State of North Carolina. This article shall be 
liberally construed to carry out these objects and purposes.



IV

The North Carolina State Board of Dental Examiners 
heretofore created by chapter one hundred and thirty-nine, 
Public Laws, one thousand eight hundred and seventy-nine 
and by chapter one hundred and seventy-eight, Public Laws 
one thousand nine hundred and fifteen, is hereby continued 
as the agency of the State for the regulation of the practice 
of dentistry in this State, said Board to consist of six (6) 
members of the North Carolina Dental Society, to be elected 
by the said Society at its annual meeting; said members 
so elected to be commissioned by the Governor for a period 
of three years or until their successors are elected, com­
missioned and qualified. Any vacancy in the said Board 
shall be filled by a member of the North Carolina Dental 
Society to be elected by said Board by and with the consent 
and approval of the executive committee of the North Caro­
lina Dental Society, and commissioned by the Governor to 
hold office for the unexpired term to which elected. Nothing 
in this article and no provision of this section shall in any 
way change the terms of office of the members of the North 
Carolina State Board of Dental Examiners as now consti­
tuted, and said members of said Board shall hold their office 
for the term to which they have been elected.

N. C. G. S. §122-105 (1964):
Creation of Council; membership; chairman.—There is 

hereby created a Mental Health Council to be composed of 
the following persons: The Superintendent of Mental Hy­
giene, the Chairman of the North Carolina State Depart­
ment of Mental Health, the Commissioner of Public Wel­
fare, the Director of the Division of Psychological Services 
of the State Board of Public Welfare, the State Health 
Director, a representative of the North Carolina Association 
of Clerks of Court, the State Superintendent of Public In­
struction, the Commissioner of Correctional Institutions, 
the Director of the Division of Vocational Rehabilitation



V

of the State Department of Public Instruction, the Chief of 
the Mental Health Section of the State Board of Health, 
a representative of the Medical Society of the State of 
North Carolina, a dentist licensed to practice in North 
Carolina appointed by the Governor after requesting rec­
ommendations from the president of the North Carolina 
Dental Society, a representative of the North Carolina 
Neuropsychiatric Association, a representative of the 
North Carolina Mental Hygiene Society, a representative 
of the Department of Psychiatry of each ,of the four-year 
medical schools in the State, a representative of the North 
Carolina Psychological Association, a representative of the 
North Carolina Conference for Social Service, a represen­
tative of the State Congress of Parents and Teachers, and 
a representative of the Eugenics Board. The Mental Health 
Council is hereby empowered to invite additional organiza­
tions to name representatives to the council.

N. C. G. S .§130-4 (1958):
State Board of Health created; membership.—There is 

hereby created a State Board of Health. The Board shall 
consist of nine members, four of whom shall be elected by 
the Medical Society of the State of North Carolina and 
five of whom shall be appointed by the Governor. One of the 
members appointed by the Governor shall be a licensed 
pharmacist, one a reputable dairyman, one a licensed den­
tist, and one a licensed veterinarian.

N. C. G. S. §131-117 (1958):
North Carolina Medical Care Commission.—There is 

hereby created a State agency to be known as “The North 
Carolina Medical Care Commission,” which shall be com­
posed of twenty members nominated and appointed as fol­
lows :



VI

Three members shall be nominated by the Medical So­
ciety of the State of North Carolina ; one member by the 
North Carolina Hospital Association; one member by the 
North Carolina Dental Society; one member by the North 
Carolina Nurses’ Association; one member by the North 
Carolina Pharmaceutical Association, and one member by 
the Duke Foundation, for appointment by the Governor.

N. C. G. S. §131-117 (1963):
North Carolina Medical Care Commission.—There is 

hereby created a State agency to be known as “The North 
Carolina Medical Care Commission,” which shall be com­
posed of twenty members nominated and appointed as fol­
lows :

Three members shall be nominated by the Medical So­
ciety of the State of North Carolina; one member by the 
North Carolina Hospital Association; one member by the 
North Carolina Nurses’ Association; one member by 
the North Carolina Pharmaceutical Association, and one 
member by the Duke Foundation, for appointment by the 
Governor. One member shall be a dentist licensed to prac­
tice in North Carolina appointed by the Governor after 
requesting recommendations from the president of the 
North Carolina Dental Society.



I n  THE

Intfrii B'Mez Court of Appeal#
F or t h e  F ourth  C ircuit  

No. 9612

R e g in a l d  A. H a w k i n s ,
Appellant,

—v.—

N orth  Carolina D ental  S ociety, et al.,
Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

BRIEF FOR APPELLANT

Statement of the Case

This is a suit to enjoin the North Carolina Dental So­
ciety and its regional component society from excluding 
the plaintiff, a Negro dentist, from membership on the 
basis of race. The complaint was filed in the United States 
District Court for the Western District of North Carolina 
on March 30, 1960 (la). Naming as defendants the North 
Carolina Dental Society and its officers and the Second 
District Dental Society and its officers, the complaint al­
leged that the plaintiff and other Negro dentists had been 
excluded from membership in the societies solely on the 
basis of race, in violation of the Fourteenth and Fifteenth



2

Amendments to the United States Constitution. The con­
stitutional claim was based on the defendant societies’ “con­
trol and influence over the policies and decisions of various 
organs of government relating to the practice of dentistry” 
(6a-7a) and the North Carolina Dental Society’s power 
under the General Statutes of North Carolina §90-22 (1958) 
to appoint from its membership the members of the North 
Carolina State Board of Dental Examiners. Motions to 
dismiss and to strike, filed by the defendants, were denied 
on December 16, 1960. Defendants filed an answer to the 
complaint January 16, 1961 (13a).

On April 13, 1961, the North Carolina Legislature 
amended G. S. §90-22 to provide that members of the State 
Board of Dental Examiners would be chosen by an election 
conducted among all licensed dentists in the state (30a). 
In June 1961 the defendants filed a supplemental answer 
incorporating G. S. §90-22 as amended (28a). In December 
1962 plaintiff filed a supplemental complaint alleging that 
notwithstanding the amendment of G. S. §90-22 the North 
Carolina Dental Society retained control of the selection 
of members of the State Board of Dental Examiners (41a). 
Defendants answered the supplemental complaint January 
29,1963 (44a).

Trial was held September 9, 1963. On June 19, 1964 the 
district court issued its decision, finding that the plaintiff 
had not established that his exclusion from the societies 
was based on race, and concluding that the North Carolina 
Dental Society and its component societies were not re­
quired to conform to nondiscriminatory standards in their 
membership policies (50a). Judgment was entered dis­
missing the complaint on July 1, 1964 (63a). Notice of 
appeal was filed July 23, 1964.



3

Questions Involved

1. Whether the North Carolina Dental Society and its 
component regional societies are hound by constitutional 
standards of nondiscrimination in membership policies as 
a result of their position of dominance over the dental 
profession in the State of North Carolina, their continuing 
control over the selection of state officers, and their par­
ticipation in governmental programs and activities.

2. Whether the defendant dental societies have excluded 
the plaintiff and other Negro dentists on the basis of race, 
or have followed procedures which are unfair as applied to 
Negro applicants.

Statement of Facts

The plaintiff, Dr. Reginald A. Hawkins, is a Negro citi­
zen of the United States residing in Charlotte, North Caro­
lina. He is a qualified member of the dental profession 
having received the degree of Doctor of Dental Surgery 
from Howard University and having served as a dentist and 
a commissioned officer in the United States Army. Dr. 
Hawkins is licensed to practice dentistry by the North Caro­
lina State Board of Dental Examiners and has been en­
gaged since 1948 in the practice of dentistry in Charlotte 
(70a-71a).

The North Carolina Dental Society, an unincorporated 
association, is the dominant professional association of 
dentists in North Carolina (267a) and is a constituent so­
ciety of the American Dental Association (77a). The North 
Carolina Dental Society limits active membership to per­
sons who are members of its five regional district societies



4

including the defendant Second District Dental Society 
(16a).

The Second District Dental Society is an unincorporated 
association of dentists residing or practicing in fourteen 
counties of the State of North Carolina, including dentists 
in Charlotte. The Second District Dental Society is a con­
stituent or component society of the North Carolina Dental 
Society, and any person admitted to membership in the 
Second District Dental Society is automatically admitted 
to membership in the North Carolina Dental Society (4a-5a, 
16a).

The by-laws of the Second District Dental Society require 
that applicants for admission to active membership submit 
a written application signed by two active members of the 
society; that the application be unanimously approved by 
the executive committee of the society; and that the ap­
plication be approved by at least two-thirds of the members 
present and voting at the next annual meeting of the so­
ciety (76a-77a).

At the time of trial, there were 1529 licensed dentists in 
North Carolina, including 90 to 100 Negroes. There were 
1214 members of the North Carolina Dental Society, none 
of whom were Negroes (240a). Neither the State Society 
nor the Second District Dental Society has ever had a 
Negro member (20a).

The plaintiff, Dr. Hawkins, has been denied membership 
in the State Society and the Second District Dental Society 
despite numerous attempts to join. After securing an ap­
plication form he attempted to obtain the recommendation 
of two members but was unable to persuade either to spon­
sor him (97a, 100a, 109a). Dr. Hawkins offered to testify 
that both members refused on racial grounds but the dis­
trict court refused to allow such testimony (99a-109a).



5

Following Ms unsuccessful attempts to obtain the neces­
sary endorsements, Dr. Hawkins submitted his application 
without them and the Second District Dental Society re­
fused to act on the application. Dr. Hawkins then wrote 
several letters to officers of the State Society and the Sec­
ond District Society requesting that the rule requiring 
recommendations be waived since there were no Negro 
members of the organization, but these requests were 
denied (109a-llla).

Other Negro dentists have faced the same problem. One 
Negro dentist who had practiced in High Point for 36 years 
asked three members to sponsor his application in 1960 but 
none agreed. He testified as follows:

Q. Did you know any Negro dentists who were mem­
bers of the North Carolina Dental Society? A. No 
sir.

Q. Did you have any close friends who were white 
dentists and members of the North Carolina Dental 
Society? A. I assumed that I did.

Q. You assumed that you did? A. Yes. Until I 
asked them to sign it, and I don't know whether they 
are friends there or not, but I know they wouldn’t sign 
it.

Q. They did not sign it? A. That’s right (178a).

Another Negro dentist asked almost every dentist in High 
Point to sign his application. All refused (183a-185a). 
Both of the above witnesses offered to testify that dental 
members refused their requests because of fear of pressure 
that might result if they recommended a Negro (179a- 
185a). Both submitted applications without the signatures, 
but they were not acted upon1 (180a, 185a-186a).

1 At the time of trial, one Negro dentist had obtained the recom­
mendations of two members. His application was pending^ before 
the executive committee of the Second District Dental Society, to



6

Another Negro dentist testified that when he took the 
examinations given by the State Board of Dental Exami­
ners, applications for membership in the North Carolina 
Dental Society were passed out to white candidates but not 
to Negroes. This witness, a light-skinned Negro who has 
often been mistaken for a white man, was offered an appli­
cation (170a, 174a-175a).

The President of the Second District Dental Society 
testified that he did not know of any white dentist who had 
secured the recommendation of two members but had failed 
to gain membership in the society (237a). A former Vice 
President of the State Society testified to the same effect 
(224a, 227a).

The North Carolina Dental Society and its component 
district societies exercise dominant influence over the pro­
fession of dentistry in North Carolina. The State Society 
participates in the selection of members of various agencies 
of the State of North Carolina, and through cooperation 
with various public agencies, exercises control over virtu­
ally every aspect of governmental administration pertain­
ing to dentistry.

Until April 13, 1961, the General Statutes of North Caro­
lina, §90-22, designated the North Carolina Dental Society 
as the sole group empowered to elect the members of the 
North Carolina State Board of Dental Examiners, the 
agency of the State of North Carolina charged with the 
function of licensing dentists and regulating the practice

be considered the week following termination of the trial (238a- 
239a). Subsequently, this applicant secured unanimous approval 
of the Executive Committee but failed to obtain approval of two- 
thirds of the members at the annual meeting. In October 1964 two 
dentists in Greensboro, North Carolina failed to gain membership 
in the Third District Dental Society, although having been recom­
mended by two members.



of dentistry and dental hygiene within the State. XJntil that 
time, G. S. §90-22 also limited membership on the North 
Carolina State Board of Dental Examiners to persons who 
were members of the North Carolina Dental Society. Pur­
suant to statute, the North Carolina Dental Society elected 
the members of the North Carolina State Board of Dental 
Examiners at its annual meetings, each year electing two 
of its members to three-year terms on the Board.

In 1961, G. S. §90-22 was amended to eliminate the elec­
tion of members of the North Carolina State Board of 
Dental Examiners by the membership of the State Society. 
As amended in 1961, §90-22 provides for the selection of 
the members of the State Board of Dental Examiners by 
an annual election in which all licensed dentists in North 
Carolina may vote.

Despite the statutory change, the North Carolina Dental 
Society continues to control the selection of members of 
the State Board of Dental Examiners. At the time of trial, 
the State Board of Dental Examiners was still composed 
entirely of members of the North Carolina Dental Society 
(41a, 44a). Five of the six present members of the North 
Carolina State Board of Dental Examiners at the time of 
trial, although holding office by virtue of G. S. §90-22 as 
amended in 1961, were originally elected to their positions 
by the membership of the State Society (41a, 44a). Be­
tween 1961 and 1963, members of the North Carolina State 
Board of Dental Examiners were selected on three occa­
sions. In 1961 three persons were nominated for two posi­
tions on the North Carolina State Board of Dental Exam­
iners, all three of whom were members of the State Society 
and were nominated by prominent members and officers of 
the State Society, (Pl. Ex. 11,166a; 209a-216a). In 1962 
and 1963, respectively, only two nominations were sub­
mitted for the two available positions, and pursuant to

7



8

statute these nominees were declared elected without the 
formality of an election (41a, 45a, 216a).

Until 1963, the General Statutes of North Carolina, 
§131-117, provided that one member of the North Carolina 
Medical Care Commission should be nominated by the 
North Carolina Dental Society for appointment by the 
Governor (134a). It is now provided by G. S. §131-117, as 
amended in 1963, that one member of the Medical Care 
Commission “shall be a dentist licensed to practice in 
North Carolina appointed by the Governor after requesting 
recommendations from the president of the North Caro­
lina Dental Society.”

The dental member of the North Carolina Medical Care 
Commission is Dr. H. Royster Chamblee, a member of the 
North Carolina Dental Society who has been Vice-Presi­
dent of the North Carolina Dental Society and President 
of the Fourth District Dental Society (131a). Dr. Cham­
blee was originally nominated for membership on the Medi­
cal Care Commission by the North Carolina Dental Society 
under the previous statute. After the amendment of G. S. 
§131-117, he was appointed again (132a-133a). Following 
the institution of this suit, Dr. Chamblee resigned from 
the Medical Care Commission but continued to offer advice 
when requested by the Executive Secretary of the Medical 
Care Commission (133a, 142a-143a).

The General Statutes of North Carolina §122-105 (1964), 
have provided since 1963 that one member of the Mental 
Health Council, a state agency, shall be “a dentist licensed 
to practice in North Carolina appointed by the Governor 
after requsting recommendations from the president of the 
North Carolina Dental Society.” The dental member of the 
Mental Health Council at the time of trial was Dr. Cleon 
Sanders, a member of the North Carolina Dental Society 
(240a-241a).



9

The General Statutes of North Carolina, §130-4, provide 
that one member of the State Board of Health shall be a 
licensed dentist. The licensed dentist on the State Board 
of Health at the time of trial was Dr. G. L. Whooper, a 
member of the North Carolina Dental Society whose ap­
pointment was suggested to the Governor by the Society 
(241a).

The State Society has an Advisory Committee to the 
University of North Carolina. This committee meets with 
officials of the University of North Carolina and has been 
working toward the creation of a foundation for the estab­
lishment of a dental research center at the university. 
Present plans contemplate a cost of one million dollars 
for this project, half of which is to be provided by funds 
from the federal government (224a-226a).

The North Carolina Dental Society has a Hospital Serv­
ice Committee which inspects hospitals in North Carolina, 
including military hospitals, to determine whether such 
hospitals are qualified facilities for teaching dentists. The 
committee’s report is sent to the Council on Hospital Den­
tal Service of the American Dental Association (153a-156a).

The North Carolina Dental Society has an Industrial 
Commission Committee which upon request from the In­
dustrial Commission of North Carolina suggests a fee 
scale for dentists who treat recipients of Workmen’s Com­
pensation. When the Industrial Commission accepts the 
suggestions of the State Society committee, as it usually 
does, the Industrial Commission pays the fees (241a-245a).

The State Society has an Advisory Committee to the 
School Health Coordinating Service. This committee ad­
vises the School Health Coordinating Service of North 
Carolina as to appropriate fees for dentists who treat 
indigent children. These fees are paid by the School Health 
Coordinating Service (246a).



10

The North Carolina Dental Society has a State Institu­
tions Committee, which upon request from various public 
agencies inspects the dental care facilities of mental hos­
pitals and schools of correction operated by the State of 
North Carolina (248a-249a).
. The North Carolina Dental Society through its Secre­

tary-Treasurer, recommends to the Veterans Administra­
tion of the United States approval or disapproval of den­
tists in North Carolina for participation in the Veterans 
Administration program of dental care (247a-248a). In 
all instances the Veterans Administration has accepted the 
recommendations of the State Society (255a-258a). The 
plaintiff, Dr. Hawkins, has been approved, with the recom­
mendation of the State Society by the Veterans Adminis­
tration as qualified to treat recipients of Veterans Admin­
istration dental benefits (247a).

The North Carolina Dental Society has a Legislation 
Committee which sends delegations to appear before the 
North Carolina General Assembly to recommend the ap­
proval or disapproval of proposed legislation relating to 
the practice of dentistry. A delegation from the Legisla­
tion Committee, acting on instructions of the North Caro­
lina Dental Society’s House of Delegates, recommended 
that the General Assembly revise the manner of selecting 
members of the State Board of Dental Examiners, as was 
done in 1961 (249a).

Plaintiff offered to prove that membership in the State 
Society and the Second District Dental Society is a prere­
quisite to membership in the Charlotte Dental Society, 
which in turn is a prerequisite to admission to practice in 
the Charlotte Memorial Hospital, a public institution. The 
district court refused to allow any evidence on the matter 
(121a-123a).



11

A R G U M E N T

I.
The North Carolina Dental Society and Its Component 

Societies Are Bound by Constitutional Prohibitions 
Against Racial Discrimination in the Selection of Mem­
bers.

When this suit was filed in 1960, the question of state 
action was hardly subject to dispute. In addition to vari­
ous other forms of involvement in state functions, the 
North Carolina Dental Society had the power, conferred 
by statute, to elect all members of the State Board of Den­
tal Examiners, the body created by the General Assembly 
to regulate the practice of dentistry. The Society also had 
the power to nominate the dental member of the North 
Carolina Medical Care Commission.

No authority could more patently obligate an ostensibly 
private group to observe fundamental standards of fair­
ness than the power to select members of official state or­
gans. As long ago as 1932 the Supreme Court held in Nixon 
v. Condon, 286 U. S. 73, 89 (1932) that a private group ex- 
ercising power delegated by the state is subject to constitu­
tional restrictions against discrimination on the ground of 
race. In that case, the Texas legislature delegated to a polit­
ical party’s executive committee the power to prescribe 
qualifications for party membership, and the executive 
committee proceeded to exclude Negroes. The Fifth Cir­
cuit applied this principle in Boman v. Birmingham. Transit 
Co., 280 F. 2d 531 (5th Cir. 1960), where a privately owned 
bus company operating under governmental franchise ex­
ercised power delegated by an ordinance to make rules for 
seating passengers, which rules were criminally enforce-

f /  y /

/L ,,-;  .<«4 <? Ct, ■ t - . .  ri—"> j  * • - > - >  &

,y £ ? )  H f V '  j



12

able. The bus company, held to be exercising a public func­
tion, was forbidden to segregate passengers according to 
race. See also Eaton v. Grubbs, 329 F. 2d 710 (4th Cir. 
1964).

The broader principle that private bodies in whose ac­
tivities the state is involved to a significant extent may not 
discriminate on the basis of race was applied by the Su­
preme Court in Burton v. Wilmington Parking Authority, 
365 U. S. 715, and has been followed by this Court in Sim- 
kins v. Moses IL. Cone Memorial Hospital, 323 F. 2d 959
(1963) , cert, denied, 376 U. S. 938 (1964) and Eaton v. 
Grubbs, supra. Where a private group exercises the power 
to select the groups which regulate the practice of den­
tistry, a subject declared by the legislature “to affect the 
public health, safety and welfare and to be subject to regu­
lation and control in the public interest,” N. C. G. S. §90-22
(1964) , that group obviously is subject to constitutional 
limitations. The District Court for the Northern District 
of Georgia so held in a recent case sharply reflecting the 
situation existing in North Carolina in 1960:

The Georgia Legislature, . . .  by giving to the Dental 
Association the right to nominate members of the three 
state agencies above referred to, made it an agency of 
the State of Georgia to that extent. The Dental Asso­
ciation by excluding Negro dentists from its member­
ship thereby deprived them of the right to vote in con­
nection with the nomination of dentists to fill places 
on the three boards mentioned, one of these boards 
having the responsibility of examing applicants for a 
license to practice dentistry in Georgia. The result of 
such action therefore is that only dentists approved 
by those of the white race can be elected to such offices 
and Negro dentists can have no voice in their selec-



13

tion. This seems to be a clear violation of the Equal 
Protection Clause of the United States Constitution. 
Bell v. Georgia Dental Association, 231 F. Supp. 299 
(N. D. Ga. 1964).

In December 1960, the district court denied defendants’ 
motion to dismiss in this case, and the outcome did not 
seem to be in doubt. Subsequently, the North Carolina 
Dental Society, through its lobby, the Committee on Legis­
lation, supported a bill in the General Assembly to strip the 
Society of its formal power to elect members of the Board 
of Dental Examiners (249a). The legislature adopted the 
suggestion on April 13, 1964, providing for an election to 
be conducted among all licensed dentists in the State (G. S. 
§90-22 (1964), 29a).

Ironically, the Society now rests its case against state 
action on the passage of a statute which was sought, to pre­
serve segregation. For several reasons this tactic cannot 
succeed. First, a state cannot encourage, much less sup­
port, racial discrimination. In Anderson v. Martin, 375 
U. S. 399, the Supreme Court struck down a Louisiana 
statute requiring racial designations of candidates on the 
ballot because the statute encouraged private discrimina­
tion. Even though the voter was free to discriminate, the 
state’s action encouraging the practice had to fall. Simi­
larly, in Barrows v. Jackson, 346 U. S. 249, the Supreme 
Court refused to allow a state court to award damages 
against one who violated a racially restrictive covenant in 
a real estate deed, because the practice would encourage the 
continued use of racial covenants even though unenforce­
able in equity under Shelley v. Kraemer, 334 U. S. 1. Just 
this past term the Supreme Court invalidated state tres­
pass convictions where Florida health regulations encour­
aged private discrimination by requiring separate rest-



14

rooms for each race in establishments serving both races. 
Robinson v. Florida, 378 U. S. 153.

Second, the amending statute prolonged the effects of 
the Society’s actions in regulating the practice of dentistry. 
In 1961, the six members previously elected by the Society 
were serving on the Board. The amending statute “con­
firmed, appointed, named and designated” (37a) precisely 
these six men to continue serving until the expiration of the 
staggered terms to which they had originally been elected 
by the Society (41a, 44a). It is difficult to see how this leg­
islative ratification of the Society’s action can be viewed as 
separating the Society from the governmental process. 
Rather, the legislature’s adoption of the Society’s decision 
is no different than the Texas Legislature’s giving the force 
of law to membership policies adopted by the executive 
committee of the Democratic Party, Nixon v. Condon, 286 
U. S .73.

It would seem axiomatic that a group which once had 
complete authority over a sector of public regulation 
should have to make a convincing showing that its control 
has been divested before being relieved of the responsi­
bilities that go along with the authority. Where a labor 
union dominated by management in violation of §8(a) (2) 
of the National Labor Relations Act (29 U. S. C. §158(a) 
(2)) is replaced by a successor organization, it will be as­
sumed that company domination continues to exist unless 
there is shown to be an absolute cleavage between the em­
ployer and the union. See N. L. R. B. v. Southern Bell 
T. & T. Co., 319 U. S. 50 ; Wilson d  Co. v. N. L. R. B., 156 
F. 2d 577 (10 Cir. 1946), cert, denied, 329 U. S. 789. In this 
case, the statute purporting to divest the State Dental So­
ciety of control over selection of the members of the Board 
of Dental Examiners actually confirms the selections made 
by the Society.



15

Further demonstration of the legislature’s failure to di­
vest the Society of control over the governmental process 
is seen in the system created by the statute for future 
designations of Board members. The body created by the 
amending statute to conduct the election among all licensed 
dentists is the State Board of Dental Elections, which has 
the same membership as the Board of Dental Examiners. 
The latter Board assumes the name Board of Dental Elec­
tions when performing the work required to conduct the 
election (G. S. §90-22 (1964), 31a). Thus, the group in­
vested with authority to administer the new system is the 
same group originally chosen by the State Dental Society 
and subsequently confirmed and re-appointed by the Gen­
eral Assembly.

Moreover, the capacity for domination of the election 
process lies entirely with the Dental Society. As the only 
state-wide organization of dentists, except for the incom­
parably smaller Negro group (267a), the North Carolina 
Dental Society is the only instrument for effective political 
activity among dentists. Any dentist who was not a mem­
ber would be considerably hampered in any attempt to 
muster support for his candidacy. It is no coincidence that 
the deadline for filing nominations falls immediately after 
the time when the Society holds its annual state meeting 
(31a, 167a). In any event, the newly created system of elec­
tions has wrought a minimum of change in results. Only 
in 1961, the first year, were there more than two nomi­
nees for the two positions on the Board. In that year, three 
dentists, all prominent members of the Society, were nomi­
nated, and an election was held. In both 1962 and 1963 re­
spectively, only the two incumbents were nominated, and 
they were declared elected without the formality of an elec­
tion, pursuant to the amended statute. At the time of trial 
in September 1963, five of the six Board members origi­
nally elected by the Society remained in office.



16

This case presents a striking analogy to Terry v. Adams, 
345 U. S. 461, the last of the white primary cases. In that 
case the Jaybird Democratic Society, a private group hav­
ing no formal connection with the state’s electoral proc­
esses, held pre-primary primaries among white registered 
Democrats. After the white Jaybirds had settled any real 
contest, Negroes were allowed to vote in the regular pri­
mary, where the Jaybird choice always emerged victorious. 
In Terry, the Supreme Court ruled that Negroes could not 
be excluded from participation in the Jaybird primary. 
The right of Negro dentists to vote for members of the 
Board of Dental Examiners while they are excluded from 
the North Carolina Dental Society, where any genuine con­
test is bound to be determined, is as valuable as allowing 
Negroes to vote in the Democratic primary after the Jay­
bird Society has foreclosed the issue.

Another example of continued stability despite the pas­
sage of a statute seeming on its face to make the state’s 
regulation of dentistry independent of the State Dental 
Society is seen in the situation regarding appointment of 
the dental member of the North Carolina Medical Care 
Commission. The original statute, G. S. §131-117 (1958), 
provided for appointment by the Governor of one dentist 
nominated by the North Carolina Dental Society. Under 
that statute, Dr. H. Royster Chamblee was nominated by 
the Society and appointed by the Governor. After this suit 
was filed, Dr. Chamblee resigned from the Medical Care 
Commission on the advice of counsel (133a). No one was 
appointed to the post, and notwithstanding Dr. Chamblee’s 
resignation, the Executive Secretary of the Medical Care 
Commission found it necessary to consult with Dr. Cham­
blee with regard to dental matters concerning the Commis­
sion (142a-143a). In 1963, soon before this case came to 
trial, the Legislature attempted to pull another rug out 
from under the plaintiff’s position and amended §131-117 to



17

provide that the Governor’s appointment should be made 
after he has requested recommendations from the Presi­
dent of the North Carolina Dental Society.2 To the sur­
prise of no one, Dr. Chamblee was again appointed to the 
Medical Care Commission by the Governor.

All too clearly, the North Carolina Dental Society has 
the same influence over the selection of the dental member 
of the Medical Care Commission as it had in 1960. The 
statutory change has been of a purely formal nature. It 
strains credulity to think that the Governor’s practice in 
making appointments to the Medical Care Commission 
would be altered in the least by this amendment. In fact, 
the Governor is so accustomed to asking the advice of the 
Dental Society before appointing dentists to public office 
that he consulted it before appointing the dental member 
of the State Board of Health (124a) although the statute, 
G. S. §130-4 (1958), mentions no such procedure.

It has been argued at some length that the North Caro­
lina Dental Society’s previous control of the appointment 
of state officers and the failure of the Legislature to change 
that situation in any real sense are sufficient factors to re­
quire a holding that the North Carolina Dental Society is 
bound by the requirements of the Fourteenth Amendment. 
However, the plaintiffs’ position does not rest alone on 
these circumstances. Many other factors presented on 
the record in this case demonstrate that the North Carolina 
Dental Society effectively guides the hand of the state 
at levels where the practice of dentistry is a concern of 
the state.

2 In 1963 the Legislature followed the same pattern, providing 
that one member of the North Carolina Mental Health Council 
should be a licensed dentist appointed by the Governor after re­
questing recommendations from the President of the North Caro­
lina Dental Society. G. S. §122-105 (1964).



18

Governmental activity concerning the practice of den­
tistry follows a consistent pattern in North Carolina. A 
state agency has the ultimate power to make operative de­
cisions, but the stimulus for these decisions invariably 
can be traced to the North Carolina Dental Society. Thus, 
the State Industrial Commission designates fee scales and 
actually pays those dentists who treat recipients of Work­
men’s Compensation, but the Commission receives its ad­
vice on fee scales from a committee of the North Caro­
lina Dental Society. The North Carolina School Health 
Coordinating Service solicits, receives, and accepts similar 
advice on fees for the treatment of indigent school children. 
The Veterans Administration uses the Dental Society as a 
screening agency to pass on the qualifications of dentists 
for the care of veterans. The Society does not limit itself; 
it passes on the qualifications of nonmembers as well as 
members. In theory, the Veterans Administration is free 
to disregard the suggestions of the Society, but in prac­
tice the determination of the Society consistently prevails.

The North Carolina Dental Society performs other ser­
vices for the state and federal governments. Its Advisory 
Committee to the University of North Carolina is working 
toward the establishment of a federally assisted research 
center at the University. The Hospital Services Committee 
inspects hospitals to determine whether their facilities 
qualify them for the teaching of dentists. The State 
Institutions Committee inspects the dental care facilities 
of mental hospitals and schools of correction.

According to G. S. §90-22 (1964):

The practice of dentistry in the State of North Caro­
lina is hereby declared to affect the public health, 
safety and welfare and to be subject to regulation and 
control in the public interest. It is further declared 
to be a matter of public interest and concern that the



19

dental profession merit and receive the confidence of 
the public and that only qualified persons be permitted 
to practice dentistry in the State of North Carolina. 
This article shall be liberally construed to carry out 
these objects and purposes.

The numerous activities of the North Carolina Dental 
Society, as enumerated above, make it the dominant force 
in regulating dentistry in North Carolina. It is the group, 
along with the State Board of Dental Examiners, which 
actually performs the function of regulating this matter 
affecting “the public health, safety and welfare.” Although 
a private organization, its importance is no less than would 
be a formal state agency’s performing the same duties. In 
Marsh v. Alabama, 326 U. S. 501, a privately owned com­
pany town performing all the essential functions of an in­
corporated municipality was required to conform to stand­
ards contained in the Fourteenth Amendment. In Eaton 
v. Grubbs, 329 F. 2d 710, 715 (4th Cir. 1964), it was held 
that the James Walker Memorial Hospital was “performing 
the state’s function and is the chosen instrument of the 
state.” See also Terry v. Adams, 345 U. S. 461, Boman v. 
Birmingham Transit Co., 280 F. 2d 531 (5th Cir. 1960). 
Undoubtedly, many of these arrangements are of consider­
able benefit to the State of North Carolina. However, under 
the Supreme Court’s decision in Burton v. Wilmington 
Parking Authority, 365 U. S. 715, the benefits and obliga­
tions of both sides of the relationship are significant de­
terminants of state action.

Evidence on one of the most significant connections be­
tween the Dental Society and the State was excluded by 
the district court. Plaintiff offered to prove that he had 
been denied the right to practice at Charlotte Memorial 
Hospital because of nonmembership in the Society and also 
that the Charlotte Memorial Hospital was governed by the



20

Fourteenth. Amendment (122a-123a). Plaintiff should have 
been given the opportunity to prove that the Dental Society, 
by its membership requirements, acts as a licensing board 
for state institutions. In Falcone v. Middlesex County Medi­
cal Society, 34 N. J. 582, 170 A. 2d 791 (N. J. Sup. Ct. 
1961), the New Jersey Supreme Court compelled the ad­
mission of a doctor into a medical society where nonmem­
bership caused his dismissal from a hospital staff. This 
ruling resulted even though the hospital was not a party 
and the medical society refused the doctor membership 
because of what it deemed to be inadequate educational 
qualifications.

A more recent decision of the Supreme Court of Arizona,
Blende v. Maricopa County Medical Society, ----- - Ariz.
----- , 393 P. 2d 926 (Ariz. Sup. Ct. 1964) held that a doc­
tor could not be denied membership in a county medical 
society on an arbitrary basis if there were any definite 
relationship, even though informal, between such member­
ship and the availability of staff privileges at local hos­
pitals. The court wrote:

We agree with the reasoning in the Falcone decision. 
The interests in freedom of association and in au­
tonomy for private associations make it desirable to 
allow private groups to determine their own member­
ship. But when a medical society controls a doctor’s 
access to hospital facilities, then the society’s exercise 
of a quasi-governmental power is the legitimate ob­
ject of judicial concern. See Judicial Control of Ac­
tions of Private Associations, 76 Harv. L. Rev. 983 
(1963). 393 P. 2d at 929.

The Falcone and Blende decisions properly distinguish 
between purely private groups, such as social clubs, and 
voluntary associations which have a significant impact on



21

subjects of public concern, such as the North Carolina 
Dental Society. Both cited James v. Marinship Corp., 25 
Cal. 2d 721, 155 P. 2d 329, where a labor union operating 
under a closed shop agreement was held to hold “a quasi­
public position similar to that of a public service”, and 
was therefore precluded from discriminating against 
Negroes. See Steele v. Louisville <& Nashville R. Co., 323 
U. S. 192.

II.
Plaintiff Was Denied Membership in Segregated So­

cieties for Failure to Comply With Procedures That 
Operate Discriminatorily Against Negroes.

With some twelve hundred white members and no 
Negroes, the North Carolina Dental Society is a thoroughly 
segregated institution. It is not a particularly selective 
group, or four-fifths of the dentists in North Carolina could 
not have satisfied its membership requirements. While 
neither the State Society nor the Second District Society 
has any written or otherwise acknowledged policy of ex­
cluding Negroes, none of the ninety to one hundred licensed 
dentists of the Negro race has qualified for membership, 
although several have tried.

It is stating the obvious to say that Dr. Hawkins and 
his Negro colleagues have been refused membership in the 
defendant societies because of their race and for no other 
reason. Dr. Hawkins is a graduate of Howard University’s 
dental school. While at dental school he was a Junior Mem­
ber of the American Dental Association, an institution 
from which he is now barred because he chose the wrong 
state in which to practice his profession. He served as a 
commissioned dental officer in the United States Army. 
After passing the examination given by the State Board 
of Dental Examiners, he was licensed to practice dentistry



22

in North Carolina. He now practices in Charlotte and is 
active in dental societies composed entirely of Negroes, hav­
ing been president of two such groups (71a). The holder of 
a Bachelor of Divinity degree, he is a member of a minis­
terial society which is integrated (70a, 71a). He has been 
approved by none other than the North Carolina Dental So­
ciety for participation in the dental program of the Vet­
erans Administration (247a), bnt that Society refuses to 
admit him to membership.

The court below ruled that there was no proof that plain­
tiff’s “inability to obtain membership is due to any racially 
discriminatory act or policy of either defendant” (62a). 
This ruling rests, apparently, on the ground that the plain­
tiff failed to comply with the requirement that his applica­
tion contain the signatures of two members, and on the 
further premise that the defendants’ reliance on this rule 
was perfectly fair (57a-58a).

Professional associations often require that applicants 
be recommended by members, and there is nothing inher­
ently unfair about such a rule in the normal situation. 
However, the court below erred in failing to recognize that 
the situation in this ease is anything but normal. A white 
dentist seeking recommendations from members of his own 
race may choose from any of the twelve hundred members. 
A Negro cannot possibly get a recommendation from a 
Society member of his own race, and so must ask a white 
member.

A Negro dentist seeking recommendations from white 
members faces two problems that a white dentist does not 
have. Many of the members testified that they had been 
recommended by close friends, relatives or associates and 
that they followed the same practice in making recom­
mendations (131a, 188a, 227a, 237a). Obviously, a Negro 
dentist in North Carolina has a limited opportunity to



23

develop such associations with white members. Moreover, 
any Negro applicant must ask not only the endorsement of 
a white member, but also a willingness to participate in 
the process of breaking down the wall of separation. These 
considerations, to say nothing of racial prejudice or prefer­
ence for segregation on the part of white members, point 
up the manifest inequality of the defendant societies’ ad­
mission procedures as applied to Negroes.

The Court of Appeals for the Fifth Circuit dealt with 
precisely this situation in Meredith v. Fair, 298 F. 2d 696 
(5th Cir. 1962). One reason given by the University of 
Mississippi for rejecting the Negro plaintiff’s application 
was his inability to secure recommendations from five 
alumni of the University. The Fifth Circuit held that, as 
applied to a Negro applicant, this requirement was un­
constitutional because there were no Negro alumni. The 
Meredith decision followed similar rulings in Ludley v. 
Board of Supervisors of Louisiana State University, 150 
F. Supp. 900 (E. D. La. 1957), aff’d, 252 F. 2d 372 (5th 
Cir. 1958), cert, denied, 358 U. S. 819 and Hunt v. Arnold, 
172 F. Supp. 847, 856 (N. D. G-a. 1959). See also United 
States v. Manning, 205 F. Supp. 172 (W. D. La. 1962) (vot­
ing registrar may not require Negro to be identified by 
registered voter in county where no Negroes are regis­
tered) ; United States v. Ward, 222 F. Supp. 617 (W. D. 
La. 1963) (same).

Certainly the experience of Dr. Hawkins and other Negro 
dentists illustrates the unfairness of the rule relied on by 
the defendant societies. At least three dentists made deter­
mined efforts to secure the recommendations but they all 
failed. Then they submitted applications without the recom­
mendations, but the Second District Dental Society refused 
to act on them.

The defendant societies insisted on strict adherence to 
the rule. Repeated requests by plaintiff for waiver of the



24

recommendation requirement were denied. The district 
court upheld the societies’ position, refusing to acknowledge 
that a Negro does not have an equal chance.3 Rather, the 
court demanded strict proof that those wdio refused to en­
dorse plaintiff’s application did so on the basis of race, 
but when plaintiff offered to testify as to the reasons given 
by these men the court sustained an objection on hearsay 
grounds.4

At no time have the defendant societies offered any ob­
jective reasons for refusal to admit Dr. Hawkins. The 
objective requirements for membership are easily met by 
any licensed dentist, and Dr. Hawkins fully qualifies. His 
problem, shared by all other Negro dentists, is the arbitrary 
nature of the admissions procedures. An applicant needs 
two recommendations, unanimous approval of the Second 
District Society’s executive committee, and a two-thirds

3 The court took pains to point out that one Negro dentist had 
obtained the required signatures shortly before trial (57a), al­
though the plaintiff and other Negroes had been unable to secure 
them in the past. It is a strange coincidence that this breakthrough 
occurred just prior to trial and too late for final action on the 
application to be taken before the trial ended. The district court 
was informed in plaintiff’s brief that the applicant was rejected.

4 No such proof was in any way necessary to show that Negroes 
have a more difficult time getting recommendations from white men 
than white men do. None was required in Meredith or similar cases. 
Assuming, however, that such testimony would have been important, 
the district court improperly excluded it, since a clear exception to 
the hearsay rule applies. A witness can testify as to statements of 
another, even for the purpose of proving the truth of the matter 
asserted, when those statements tell something of the state of mind 
of the speaker. 2 Jones, Evidence §325 (5th ed. 1958). A person’s 
reasons for granting or refusing a recommendation are part of his 
state of mind. North Carolina recognizes this exception to the hear­
say rule, Stansbury, North Carolina Evidence, §§161, 162, and the 
district court was governed by it. F. B. C. P. Rule 43. Plaintiff did 
not waive his objection to the court’s ruling by failing to call the 
dentists who had refused to grant the recommendation. Having 
taken depositions, plaintiff had every reason to expect his testimony 
to conflict with the members’ recollection of events, but plaintiff 
was at least entitled to place his version before the court.



25

vote of the members present at the annual meeting. At any 
stage, an applicant can be rejected for purely arbitrary, 
unstated reasons. These procedures present no difficulty 
to white dentists; two prominent members testified that 
they had never heard of any white dentist being rejected 
after receiving two recommendations. But the arbitrary 
procedures place an insuperable obstacle in the path of a 
Negro applicant.

A purely private group is at liberty to exclude prospec­
tive members for any reason or for no reason, but a group 
to which the Fourteenth Amendment’s guarantee of equal 
protection is applicable, may not hide behind discrimina­
tory procedures and arbitrary exclusions.

CONCLUSION

W herefore , fo r  th e  fo reg o in g  reaso n s  i t  is  re sp ec tfu lly  
subm itte d  th a t  th e  ju d g m en t below  shou ld  be rev ersed .

Respectfully submitted,

J ack Greenberg 
F rank H . H effron

10 Columbus Circle 
New York, New York 10019

T homas H. W yche

2500 Beatties Ford Road 
Charlotte, North Carolina

Attorneys for Appellant



38 •

i *

©