Tillman v. Wheaton-Haven Recreation Association, Inc. Brief for the Petitioners

    No. 71-1136

IN THE

grtpremr (Erwrt af %  Intitb &tat£B
October Term, 1971

MURRAY TILLMAN, et al,
Petitioners,

v.

WHEATON-HAVEN RECREATION ASSOCIATION, INC., et al.,
Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR THE PETITIONERS

Of Counsel:

MELVIN L. WULF 
SANFORD JAY ROSEN 

American Civil Liberties 
Union Foundation 

156 Fifth Avenue 
New York, N.Y. 10010

ALLISON W. BROWN, JR.
Suite 501, 1424-16th St., N.W. 
Washington, D.C. 20036

RAYMOND W. RUSSELL 
22 West Jefferson St.
Rockville, Maryland 20850

SAMUEL A. CHAITOVITZ 
30 W. 60th St.
New York, N.Y. 10023

Attorneys for Petitioners

THE C A S IL L A S  PRESS, IN C .-1717  K Street, N. W.-Washington, D. C.-223-1220



INDEX

OPINIONS BELOW.....................................................................  1

JURISDICTION..........................................................................  2

QUESTION PRESENTED .......................................................  2

STATUTES INVOLVED...........................................................  2

STATEMENT ................................................................................ 4

A. Wheaton-Haven Recreation Association,
Inc.-its purpose and manner of
o p e ra tio n ...........................................................  4

B. Wheaton-Haven’s racially discriminatory
membership and guest policies......................... 6

C. Proceedings below . ........................................  7

SUMMARY OF ARGUM ENT.................................................  8

ARGUMENT...............................................................................  10

I. Wheaton-Haven’s racially discriminatory 
policies violate the Civil Rights Act of 
1866 (42 U.S.C. §§1981, 1 9 8 2 ) .............................. 10

A. The remedy provided by the Act 
of 1866 for racially discriminatory
conduct should be broadly construed . . .  10

B. Rights secured to petitioners by the
Act of 1866 are violated by Wheaton- 
Haven’s racially discriminatory member­
ship and guest policies. . . . . . . . .  17

(i)

Page



C. Wheaton-Haven lacks the character­
istic of exclusiveness associated with 
a truly private club, since member­
ship is open to all residents of the
area prescribed by its b y -law s......................... 20

D. There are no valid grounds for dis­
tinguishing this case from Sullivan
v. Little Hunting Park ........................................ 24

II. Wheaton-Haven’s racially discriminatory
policies violate the Civil Rights Act of 
1964 (42 U.S.C. §2000a)...........................................  27

CONCLUSION..........................................................................  29

CITATIONS

Cases:

American Universal Insurance Co. 
v. Scherfe Insurance Agency,

135 F. Supp. 407 (S.D. Iowa, 1 9 5 4 ) .............................. 30

Barrows v. Jackson,
346 U.S. 249 ( 1 9 5 3 ) ...........................................................  23

Boudreaux v. Baton Rouge Marine 
Contracting Co.,

437 F.2d 1011 (C.A. 5, 1971)................................................  16

Brady v. Bristol-Meyers, Inc.,
decided May 8, 1972, 4 FEP Cases 749 (C.A. 8) . . . 16

Brown v. Balias,
331 F. Supp. 1033 (N.D. Tex., 1 9 7 1 ) .........................16, 30

Brown v. Gaston County Dyeing Machine Co.,
457 F.2d 1377 (C.A. 4, 1972)

(ii)

Page

16



(iii)

Civil Rights Cases,
109 U.S. 3 (1 8 8 3 ) ................................................................  12

Collyer v. Yonkers Yacht Club,
17 A.D.2d 973,
234 N.Y.S.2d 259 ( 1 9 6 2 ) .................................................  19

Daniel v. Paul,
395 U.S. 298 ( 1 9 6 9 ) ..................................................  21, 27, 28

Grier v. Specialized Skills, Inc.,
326 F. Supp. 856 (W.D., N.C., 1 9 7 1 ) .............................. 16

Hitchcock v. American Plate Glass Co.,
259 Fed. 948 (C.A. 3, 1 9 1 9 ) ............................................  30

Hyde v. Woods,
4 Otto 523 (1877 )................................................................  18

International Brotherhood o f  Electrical Workers 
v. National Labor Relations Board,

341 U.S. 694 ( 1 9 5 1 ) ...........................................................  28

Jones v. Mayer Co.,
392 U.S. 409 ( 1 9 6 9 ) ................................... 11, 12, 13, 14, 15

Knight v. Auciello,
453 F.2d 852 (C.A. 1, 1 9 7 2 ) ........................................ 16, 29

Lee v. Southern Home Sites Corp.,
429 F.2d 290 (C.A. 5, 1970),
444 F.2d 143 (C.A., 1 9 7 1 )............................................ 16, 29

Lobato v. Pay Less Drug Stores, Inc.,
261 F.2d 406 (C.A. 10, 1958)............................................  30

McLaurin v. Brusturis,
320 F. Supp. 190 (E.D.Wis., 1 9 7 0 ) ................................... 16

Miller v. Amusement Enterprises, Inc.,
394 F.2d 342 (C.A. 5, 1968)

Page

28



National Cash Register Co. v. Leland,
94 Fed. 502 (C.A. 1, 1899),
cert, denied, 175 U.S. 724 .................................................. 30

National Fire Insurance Co. v. Thompson,
281 U.S. 331 ( 1 9 3 0 ) ...........................................................  24

National Labor Relations Board v. The Austin Co.,
165 F.2d 592 (C.A. 7, 1 9 4 7 ) ............................................  28

National Labor Relations Board
v. Local 1423, United Brotherhood o f  Carpenters,

238 F.2d 832 (C.A. 5, 1 9 5 6 ) ............................................  28

National Labor Relations Board v.
National Survey Service,

361 F.2d 199 (C.A. 7, 1 9 6 6 ) ............................................  28

Nesmith v. Y.M.C.A. o f  Raleigh, N.C.,
397 F.2d 96 (C.A. 4, 1 9 6 8 ) ........................................ 21, 29

Page v. Edmunds,
187 U.S. 596 ( 1 9 0 3 ) ...........................................................  18

Rockefeller Center Luncheon Club, Inc. v. Johnson,
131 F. Supp. 703 (S.D.N.Y., 1 9 5 5 ) ................................... 21

Sanders v. Dobbs Houses, Inc.,
431 F.2d 1097 (C.A. 5, 1970)............................................  16

Scott v. Young,
421 F.2d 143 (C.A. 4, 1970),
cert, denied, 398 U.S. 929 ............................................  16, 28

Shelley v. Kraemer,
334 U.S. 1 (1 9 4 8 ) ................................................................  23

(iv)

Page

Smith v. Sol D. Adler Realty Co., 
436 F.2d 344 (C.A. 7, 1971) 16, 29



(V)

Sullivan v. Little Hunting Park,
396 U.S. 229 (1969) . . . .  2, 8, 10, 13, 14, 15, 17, 19,

20, 23, 24, 25, 26, 27, 28, 29

Terry v. Elmwood Cemetery,
307 F. Supp. 369 (N.D.Ala., 1 9 6 9 ) ...................................  16

Trounstein v. Bauer, Pogue & Co.,
144 F.2d 379 (C.A. 2, 1944),
cert, denied, 323 U.S. I l l .................................................  30

United States v. Central Carolina Bank & Trust Co.,
431 F.2d 972 (C.A. 4, 1 9 7 0 ) .........................' 28

United States v. Pink,
315 U.S. 203 ( 1 9 4 2 ) ...........................................................  24

United States v. Richberg,
398 F.2d 523 (C.A. 5, 1 9 6 8 ) ............................................  21

Walker v. Pointer,
304 F. Supp. 56 (N.D.Tex., 1 9 6 9 ) ................................... 19

Waters v. Wisconsin Steel Works,
427 F.2d 476 (C.A. 7, 1970),
cert, denied, 400 U.S. 9 1 1 .................................................  16

Williamson v. Hampton Management Co.,
339 F. Supp. 1146 (N.D., 111., 1 9 7 2 ) .............................. 30

Young v. International Telephone & Telegraph Co
438 F.2d 757 (C.A. 3, 1 9 7 1 ) .........................i 6

Constitutional and Statutory Provisions:

Thirteenth Amendment to the C o n s titu tio n ....................12, 14

28 U.S.C. §1254(1)

Page

1



(Vi)

42 U.S.C. §1981........................................2, 7, 8, 10, 11, 12, 13,
15, 16, 17, 19, 20, 27, 28, 29

42 U.S.C. §1982 ........................................ 2, 3, 7, 8, 10, 11, 12,
14, 16, 17, 18, 19, 27, 28, 29

42 U.S.C. §2000a........................................2, 3, 7, 10, 15, 27, 28

42 U.S.C. § 2 0 0 0 e .....................................................................  16

42 U.S.C. §3601 ........................................................................... 14

Internal Revenue Code,
26 U.S.C. §501 ( c ) ( 7 ) ...........................................................  6

Maryland Code Annotated Art. 81,
§288(d)(8)...............................................................................  6

Page

Miscellaneous:

Larson, The Development of §1981 as a 
Remedy for Racial Discrimination in Private 
Employment, 7 Harv. Civ. Rights L. Rev.

56 (1 9 7 2 ) ...............................................................................  16

17 Am. Jur. 2d,
Contracts §§302-319   20

Restatement (Second) of Torts
§§330, 332 ( 1 9 6 5 ) ................................................................  19

(Washington) Evening Star,
April 25, 1969 .....................................................................  17

Washington Post,
January 12, 1967   17



IN THE

Supreme (tort nt tlj? llnttpii &tat£B
October Term, 1971

No. 71-1136

MURRAY TILLMAN, et al,
Petitioners,

v.

WHEATON-HAVEN RECREATION ASSOCIATION, INC., et al.,
Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR THE PETITIONERS1

OPINIONS BELOW

The opinion of the Court of Appeals (Pet. App. B1 -B31)2 
is reported at 451 F.2d 1211. The District Court’s opinion 
(Pet. App. Cl-Cl 3) is unreported.

1 Petitioners, in addition to Murray Tillman, are Rosalind N. Tillman, 
his wife, Dr. Harry C. Press and Francella Press, his wife, and Mrs. Grace 
Rosner. Respondents, in addition to Wheaton-Haven Recreation, Inc., 
are Bernard Katz, Philip S. Trusso, Sidney M. Plitman, Anthony J. De­
Simone, Brian Carroll, Albert Friedland, Mrs. Robert Bennington, Mrs. 
Anthony Abate, Richard E. McIntyre, James V. Welch, Mrs. Ellen Fen- 
stermaker, Walter F. Smith, Jr. and James M. Whittles, individuals who 
were officers and/or directors of said corporation at times material herein 
(A. 8, 23).

2 64“Pet. App.” refers to the appendix to the petition for a writ of cer­
tiorari. “A.” refers to the separate appendix to the briefs.



2

JURISDICTION

The judgment of the court of appeals was entered on 
October 27, 1971. A petition for rehearing and sugges­
tion for rehearing en banc was duly filed and the court 
of appeals entered its order of denial on December 16, 
1971 (A. 40). The petition for a writ of certiorari was 
filed on March 13, 1971, and was granted on May 15, 
1971. The jurisdiction of this court rests on 28 U.S.C. 
1254(1).

QUESTION PRESENTED

Whether the court of appeals erred in holding a com­
munity recreation association to be a private club and 
hence exempt from civil rights statutes which prohibit 
racial discrimination (42 U.S.C. §§1981, 1982 and 42 
U.S.C. §2000a), despite the fact that this Court in a pre­
vious case (Sullivan v. Little Hunting Park, 396 U.S. 229 
(1969)) held that an association with virtually identical 
characteristics could not lawfully discriminate on the basis 
of race with respect to persons seeking to use its facilities.

STATUTES INVOLVED

The relevant provisions of the Civil Rights Act of 1866, 
as incorporated in 42 U.S.C. §§1981, 1982, are as follows:

§1981. All persons within the jurisdiction 
of the United States shall have the same right 
in every State and Territory to make and en­
force contracts * * * as is enjoyed by white 
citizens * * * .



3

§1982. All citizens of the United States shall 
have the same right in every State and Terri­
tory, as is enjoyed by white citizens thereof to 
inherit, purchase, lease, sell, hold, and convey 
real and personal property.

The relevant provisions of Title II of the Civil Rights 
Act of 1946 (42 U.S.C. §2000a) are as follows:

§201(a) (42 U.S.C. Sec. 2000a(a)). All per­
sons shall be entitled to the full and equal en­
joyment of goods, services, facilities, privileges, 
advantages, and accommodations of any place 
of public accommodations as defined in this 
section, without discrimination or segregation 
on the ground of race, color, religion, or na­
tional origin.

§201 (b) (42 U.S.C. §2000a(b)). Each of the 
following establishments which serves the public 
is a place of public accommodation within the 
meaning of this title if its operations affect 
commerce * * * ;

*  *  *

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

*  *  *

§201 (c) (42 U.S.C. §2000a(c)). The operations 
of an establishment affect commerce within the 
meaning of this title if * * * (3) in the case 
of an establishment described in paragraph (3) 
of subsection (b), it customarily presents films,



4

performances, athletic teams, exhibitions, or 
other sources of entertainment which move in 
commerce; * * *

*  *  *

§201(e) (42 U.S.C. §2000a(e)). The provis­
ions of this title shall not apply to a private 
club or other establishment not in fact open 
to the public * * *

*  *  *

STATEMENT3

A. WHEATON-HAVEN RECREATION ASSOCIATION,
INC.- ITS PURPOSE AND MANNER OF OPER­
ATION

Wheaton-Haven Recreation Association, Inc. is a non­
profit Maryland corporation organized in 1958 for the 
purpose of operating a swimming pool in an area of Sil­
ver Spring, Maryland (Pet. App. C l; A. 7-8, 23). The pool 
was financed by subscriptions for membership collected 
from persons residing in the area. The pool presently 
charges a $375 initiation fee and an annual dues of $150- 
$160 (Pet. App. C1-C2; A. 44). The by-laws of the as­
sociation provide that membership “shall be open to bona 
fide residents (whether or not homeowners) of the area 
within a three-quarter mile radius of the pool” (Art. Ill, 
§1, Pet. App. C2; A. 43). Members may be taken from

 ̂ The facts stated herein are based on the district court’s find­
ings as modified by the court of appeals.



5

outside the three-quarter mile radius upon the recommen­
dation of a member as long as members from outside the 
area do not exceed 30 percent of the total membership 
(Pet. App. C2; A. 43)5 In either event, the by-laws pro­
vide that applicants for membership must be approved by 
“an affirmative vote of a majority of those present at a 
regular membership meeting, or a regular meeting of the 
Board of Directors, or a special meeting of either group 
called for this purpose” (Art. Ill, §3, Pet. App. C2; A. 43).

Membership, which is by family units rather than by in­
dividuals, is limited to 325 families (Art. Ill, §§6, 7, Pet. 
App. C2; A. 43-44). If a member who is also a home- 
owner sells his property and resigns his membership, his 
purchaser receives a first option to purchase his member­
ship, subject to the approval of the Board of Directors 
(Art. VI, Pet. App. C2; A. 47).

Only members and their guests are admitted to the pool. 
Members of the general public cannot gain admittance by 
payment of an entrance fee (Pet. App. C2-C3; A. 42-43).

The Wheaton-Haven pool was constructed in 1958-1959 
by a contractor from outside the State of Maryland (Pet. 
App. C3; A. 9, 23, 87, 92). The pool’s operation involves 
the use of pumps, a motor and a chlorine feeder, all manu­
factured outside of Maryland. There are also snack vend­
ing machines. All of these facilities are in an enclosed 
area accessible only to members and their guests (Pet. App. 
C3; A. 41, 122-123).

^ At times when the membership rolls are full, applicants for 
membership are limited to the geographic area within a three-quarter 
mile radius of the pool, and such applications are considered in chro­
nological order of receipt (Art. V, §3, A. 46).



6

The pool was constructed pursuant to a “special excep­
tion” granted by the Montgomery County Board of Ap­
peals under the county’s zoning ordinance (Pet. App. C3- 
C4; A. 8, 23, 96, 98).5 Prior to granting the exception, 
the zoning authority required Wheaton-Haven to demon­
strate its financial responsibility by submitting evidence 
that 60 percent of its projected construction costs were 
obligated or subscribed (A. 96, 99).

Wheaton-Haven pays state and local property taxes, but 
is exempt from state and federal income taxes under Mary­
land Code Ann. Art. 81, §288(d)(8), and §501(c)(7) of the 
Internal Revenue Code (26 U.S.C. §501 (c)(7)) exempting 
non-profit, membership-owned and controlled recreational 
facilities (Pet. App. C4; A. 97, 99).

B. WHEATON-HAVEN’S RACIALLY DISCRIMINA­
TORY MEMBERSHIP AND GUEST POLICIES

Dr. and Mrs. Harry C. Press, two of the Negro plaintiffs, 
own a home within the three-quarter mile radius of the 
pool (Pet. App. C3; A. 11-12). The previous owner of 
the home was not a member of Wheaton-Haven. In the 
spring of 1968, Dr. Press sought to obtain a membership 
application from members of the association’s Board of 
Directors, who declined to furnish him with an application

5 The provisions of the zoning ordinance applicable to Wheaton- 
Haven was enacted by the Montgomery County Council as Ordinance 
No. 3-28, dated May 24, 1955. In the ordinance, the Council stated,
“ . . . this action sets up the community swimming pools as a special 
exception . . . Council strongly endorses the interests of the various 
communities in attempting to organize and promote their own recre­
ational facilities, and believes that the County will be generally bene­
fited by such development” (A. 9, 62, 96, 98).



7

(Pet. App. C3; A. 11, 97, 99). The stipulated reason for 
their refusal was his race (Pet. App. C3; A. 90, 95).

Mr. and Mrs. Murray Tillman are white members of 
Wheaton-Haven. On July 19, 1968, the Tillmans brought 
Mrs. Grace Rosner, a Negro, to the pool as their guest.
She was admitted (Pet. App. C3; A. 12). The following 
day, at a special meeting, the Board of Directors promul­
gated a rule limiting guests to relatives of members (Pet. 
App. C3; A. 12, 97, 99). Mrs. Rosner has been refused 
admission as a guest of the Tillmans since then (Pet. App. 
C3; A. 12, 90, 95). The new guest policy was adopted 
in response to the Tillman’s bringing a Negro guest to the 
pool, though it was intended also to reduce the burgeoning 
number of guests using the pool (Pet. App. C3; A. 12, 90, 
95, 115-117).6

At a meeting of the association’s members in the fall of 
1968, a resolution was adopted reaffirming Wheaton-Haven’* 
policy of not admitting Negroes to its facilities (Pet. App. 
B30; A. 109, 90, 95).

C. PROCEEDINGS BELOW

Petitioners brought their complaint in the United States 
District Court for the District of Maryland, seeking decla­
ratory and injunctive relief, as well as damages. They 
claimed that Wheaton-Haven’s racially discriminatory policies 
violated their rights under the Civil Rights Act of 1866,
42 U.S.C. §§ 1981, 1982 and under the Civil Rights Act of 
1964 (42 U.S.C. 2000a).

The district court (Northrop, J.) denied the relief sought 
by plaintiffs, and granted summary judgment to defendants 
below (Pet. App. Cl-Cl 3). Before the court of appeals,



8

plaintiffs’ motion for summary reversal was denied, and 
following consideration of the merits, a majority of the 
panel (Haynsworth, Chief Judge, and Boreman, Circuit 
Judge) affirmed the district court, holding that Wheaton- 
Haven is a “private club” and hence exempt from the 
Civil Rights Act of 1866 as well as the Civil Rights Act 
of 1964 (Pet. App. B1-B23). Judge Butzner, dissenting, 
would have granted plaintiffs motion for summary rever­
sal of the district court. He found the case to be “indis­
tinguishable in all material aspects” from Sullivan v. Little 
Hunting Park, supra, and hence termed the majority deci­
sion “a marked departure from authoritative precedent” 
(Pet. App. B23). Judges Winter and Craven dissented from 
the court’s denial of rehearing en banc, and expressed 
their agreement with Judge Butzner’s view that the case 
is indistinguishable from Sullivan (Pet. App. B31). Finally, 
all three dissenting judges deplored the majority’s holding 
that the 1866 Act was impliedly repealed in part by the 
1964 Act.

SUMMARY OF ARGUMENT

This case involves the question whether a community 
recreation association established to operate a swimming pool 
for the benefit of all residents of a neighborhood may exclude 
persons otherwise eligible on the basis of race. In Sullivan 
v. Little Hunting Park, supra, 396 U.S. 229, the Court 
held that such an association, which has no other criteria 
for membership than residence within a prescribed area, is 
not a “private club” because it lacks a “plan or purpose 
of exclusiveness,” and therefore is subject to applicable 
laws prohibiting racial discrimination.

Wheaton-Haven Recreation Association, Inc., whose ra­
cially discriminatory membership and guest policies are at



9

issue here, is typical of many such non-profit associations 
organized in suburban neighborhoods by residents who con­
tribute their time and energy to establish neighborhood rec­
reational facilities for themselves and their families. Whea- 
ton-Haven’s by-laws specify that membership in the associ­
ation is open to everyone residing within a three-quarter 
mile radius of its swimming pool. Community recreation 
facilities, particularly a swimming pool, obviously are a 
major factor affecting the desirability and attractiveness 
of residential property. The availability of such facilities 
for all white residents of a neighborhood and the routine 
exclusion of Negroes, will both discourage the latter from 
buying in that community and make any purchase they 
do make a poorer bargain than a white citizen could ob­
tain. To thus allow an association such as Wheaton-Haven 
to exclude Negroes from community recreation facilities 
places in the hands of this private group the power to 
control the racial composition of a neighborhood, a result 
comparable to enforcement of a racially restrictive cove­
nant.

The close relationship between membership in Wheaton- 
Haven and the ownership of property in the neighborhood 
served by the pool is shown by the provision of the associ­
ation’s by-laws giving a member who sells his home the 
right to make his membership available for purchase by 
the buyer of his home, despite the fact that there may be 
a waiting list of persons who have been seeking member­
ships for a substantial period of time. This nexus between 
membership in the pool and the passage of title to real 
property in the neighborhood which it serves, and the fact 
that the home buyer in such circumstances has priority in 
obtaining a membership over those on the waiting list, evi­
dences the fact that the organizers of Wheaton-Haven were 
well aware that the availability of a pool membership



10

would add to the attractiveness and value of their homes. 
This provision of Wheaton-Haven’s by-laws refutes any claim 
of exclusiveness the association might make, since one’s eligi­
bility for membership in such circumstances is entirely a func­
tion of who he buys his house from.

The Civil Rights Act of 1866 (42 U.S.C. §§1981, 1982) 
protects Negroes against private acts of discrimination in 
transactions based on contract, and in matters involving 
the ownership or possession of real or personal property. 
Rights of petitioners secured by the Act of 1866 are vio­
lated by Wheaton-Haven’s racially discriminatory member­
ship and guest policies. Wheaton-Haven’s racist policies 
also violate plaintiffs’ rights under the Civil Rights Act of 
1964 (42 U.S.C. 2000a).

This case is indistinguishable in all material aspects from 
Sullivan v. Little Hunting Park, supra, and the court be­
low erred in failing to follow that precedent. The court 
assumed differences between the two cases where in fact 
none exist, and it relied on an invalid factual analysis of 
the two cases to support its determination not to be 
bound by Sullivan.

ARGUMENT

I. WHEATON-HAVEN’S RACIALLY DISCRIMINA­
TORY POLICIES VIOLATE THE CIVIL RIGHTS 
ACT OP 1866 (42 U.S.C. §§1981, 1982)

A. The remedy provided by the Act of 1886 
for racially discriminatory conduct should 
be broadly construed

Section 1 of the Act of April 9, 1866, 14 Stat. 27, en­
titled “An Act to protect all Persons in the United States



11

in their Civil Rights, and furnish the means of their Vin­
dication,” provides as follows:

That all persons bom in the United States 
and not subject to any foreign power, exclud­
ing Indians not taxed, are hereby declared to 
be citizens of the United States; and such citi­
zens of every race and color without regard to 
any previous condition of slavery or involun­
tary servitude, except as a punishment for 
crime whereof the party shall have been duly 
convicted, shall have the same right, in every 
State and Territory in the United States to 
make and enforce contracts, to sue, be parties, 
and give evidence, to inherit, purchase, lease, 
sell, hold, and convey real and personal prop­
erty, and to full and equal benefit of all laws 
and proceedings for the security of person and 
property, as is enjoyed by white citizens and 
shall be subject to like punishment, pains and 
penalties, and to none other, any law, statute, 
ordinance, regulation or custom, to the con­
trary notwithstanding.

In codifying this section, it was divided into two parts, 42 
U.S.C. §§1981 and 1982, but the language remained es­
sentially unchanged with §1981 securing the right to “make 
and enforce contracts” and §1982 securing the right to “in­
herit, purchase, lease, sell, hold, and convey real and per­
sonal property.”

In Jones v. Mayer Co., 392 U.S. 409 (1968), the Court 
exhaustively reviewed the legislative history of Section 1 
of the Act of 1866. The congressional debates and his­
torical circumstances attending passage of the law were



12

examined in detail, leading the Court to conclude that,
“In light of the concerns that led Congress to adopt it 
and the contents of the debates that preceded its passage, 
it is clear that the Act was designed to do just what its 
terms suggest: to prohibit all racial discrimination, whether 
or not under color of law, with respect to the rights enu­
merated therein * * *” 392 U.S. at 436.

The Civil Rights Act of 1866 was enacted by Congress 
pursuant to the Thirteenth Amendment which, as its te x t6"7 
reveals, “is not a mere prohibition of State laws establish­
ing or upholding slavery, but an absolute declaration that 
slavery or involuntary servitude shall not exist in any part 
of the United States.” Civil Rights Cases, 109 U.S. 3 ,20  
(1883). Not only did the Thirteenth Amendment, abolish 
slavery and establish universal freedom, but it did much 
more. As the Court has stated, its enabling clause “clothed 
‘Congress with power to pass all laws necessary and proper 
for abolishing all badges and incidents o f  slavery in the 
United States” '1 (emphasis in original). Jones v. Mayer Co., 
supra, 392 U.S. at 439, quoting Civil Rights Cases, supra, 
109 U.S. at 20. Under the Thirteenth Amendment, the 
Court held, Congress has the power “rationally to deter­
mine what are the badges and incidents of slavery and to

The Thirteenth Amendment states:
Section 1. Neither slavery nor involuntary servi­

tude, except punishment for crime whereof the party 
shall have been duly convicted, shall exist within the 
United States, or any place subject to their jurisdic­
tion.

Section 2. Congress shall have power to enforce 
this article by appropriate legislation.



13

translate that determination into effective legislation.”
Jones v. Mayer Co., supra, 392 U.S. at 440.

The Congress that passed the Civil Rights Act of 1866, 
as the Court has noted, “had before it an imposing body 
of evidence pointing to the mistreatment of Negroes by 
private individuals and unofficial groups * * *. The con­
gressional debates are replete with references to private 
injustices against Negroes — references to white employers 
who refused to pay their Negro workers, white planters 
who agreed among themselves not to hire freed slaves 
without permission of their former masters, white citizens 
who assaulted Negroes or who combined to drive them 
out of their communities” (footnotes omitted). Id. at 427- 
428. The history of the 1866 Act, therefore, reveals con­
gressional objectives for the legislation that “belie any at­
tempt to read it narrowly.” Id., at 431. Senator Turn- 
bull, the author of the Act, declared that it was intended 
to affirmatively secure for all men, whatever their race or 
color, “great fundamental rights,” including “the right to 
acquire property, the right to go and come at pleasure, 
the right to enforce rights in the courts, to make contracts, 
and to inherit and dispose of property.” Id., at 431-432. 
As to those basic civil rights,” the Court has noted, the 
Act was intended to “break down all discrimination be­
tween black men and white men” (emphasis in original).
Id., at 432.

In Jones v. Mayer Co., the Court held that the Act of 
1866 must be accorded “a sweep as broad as its language.” 
Id., at 437. Summarizing the broad import of the statute 
in language reiterated in Sullivan v. Little Hunting Park, 
supra, 396 U.S. at 235-236, the Court stated (392 U.S. 
at 443):



14

Negro citizens, North and South, who saw 
in the Thirteenth Amendment a promise of 
freedom — freedom to “go and come at pleas­
ure” and to “buy and sell when they please”
— would be left with “a mere paper guaran­
tee” if Congress were powerless to assure that 
a dollar in the hands of a Negro will purchase 
the same thing as a dollar in the hands of a 
white man. At the very least, the freedom 
that Congress is empowered to secure under 
the Thirteenth Amendment includes the free­
dom to buy whatever a white man can buy, 
the right to live wherever a white man can 
live. If Congress cannot say that being a free 
man means at least this much, then the Thir­
teenth Amendment made a promise the na­
tion cannot keep (footnotes omitted).

The refusal to sell a home to a person because of his 
race was held in Jones v. Mayer Co. to be violative of 42 
U.S.C. §1982. In Sullivan v. Little Hunting Turk the Court 
held that a membership share in a community recreation 
association which had been assigned as part of a lease for 
the use of the tenant fell within the protection of §1982, 
and hence could not be disapproved by the association’s 
board of directors merely because the tenant was a Negro. 
Significantly, in both cases the Court, specifically rejected 
the assertion that, by enacting comprehensive civil rights 
legislation in recent years, Congress impliedly repealed the 
Act of 1866. Thus, the Fair Housing Title (Title VIII) of 
the Civil Rights Act of 1968 (42 U.S.C. §§3601, et seq.) 
is quite different in scope of coverage and method of en­
forcement from the Act of 1866. Further, Congress was 
aware of the earlier law’s provisions at the time it adopted



15

the 1968 statute. Jones v. Mayer Co., supra, 392 U.S. at 
413-417. Likewise, in Sullivan v. Little Hunting Park the 
Court held that the Act of 1866 is not superseded by the 
Public Accommodations provisions of the Civil Rights Act 
of 1964 (42 U.S.C. 2000a). The two laws are “plainly 
‘not inconsistent’ ” and the later law in no way impairs 
the sanction of the earlier. 396 U.S. at 237-238.8

Since the decision in Jones v. Mayer Co., a considerable 
body of case law has developed giving further importance 
to the Act of 1866 as a means of securing equality for 
Negroes. In Sullivan v. Little Hunting Park, the Court re­
emphasized the “broad and sweeping nature of the protec­
tion meant to be afforded by §1 of the Civil Rights Act 
of 1866,” and admonished against a “narrow construction” 
of the statutory language. 396 U.S. at 237. Hence, the 
1866 Act has been applied by lower courts to prohibit 
racially discriminatory practices in employment, housing, 
public accommodations and education.

To date, five circuit courts of appeals have recognized 
42 U.S.C. §1981 as a basis for relief from private racial 
discrimination in employment. In giving effect to the rem­
edy, provided by this section, these courts have uniformly

O
This express holding by the Court in Sullivan was disregarded 

by the court of appeals in the case at bar. Taking a position di­
rectly contrary to this Court’s ruling, the majority below held that 
because the 1964 Public Accommodation provisions contain an ex­
emption for private dubs, a like exemption is to be read into the 
1866 Act. The majority stated, “This exception to the ban on racial 
discrimination of necessity operates as an exception to the Act of 
1866 in any case where the Act prohibits the same conduct which is 
saved as lawful by the terms of the 1964 Act” (Pet. App. B6). This 
is one of several examples, as discussed more fully below, of the court 
of appeals’ demonstrated lack of regard for precedent set by this Court.



16

rejected the contention that the subsequent enactment of 
Title VII (Fair Employment Title) of the Civil Rights Act 
of 1964 (42 U.S.C. §2000e, et seq.) invalidated the earlier law. 
Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (C.A. 5, 1970); 
Boudreaux v. Baton Rouge Marine Contracting Co., 437 F.2d 
1011, 1016-1017 (C.A. 5, 1911); Brady v. Bristol-Meyers, Inc., 
decided May 8, 1972, 4 FEP Cases 749 (C.A. 8); Brown 
v. Gaston County Dyeing Machine Co., 457 F.2d 1377 
(C.A. 4, 1972); Young v. International Telephone & Tele­
graph Co., 438 F.2d 757, 758-763 (C.A. 3, 1971); Waters 
v. Wisconsin Steel MIorks, 427 F.2d 476, 481-488 (C.A. 7,
1970) , cert, denied, 400 U.S. 911. See also Larson, The 
Development o f  §1981 as a Remedy for Racial Discrimina­
tion in Private Employment, 7 Flarv. Civ. Rights L. Rev.
56 (1972).

§§1981 and 1982 of the 42 U.S.C. have also been ap­
plied by courts to remedy racial discrimination in housing 
(e.g., Lee v. Southern Home Sites Corp., 429 F.2d 290 
(C.A. 5, 1970), 444 F.2d 143 (C.A. 5, 1971); Smith v. Sol
D. Adler Realty Co., 436 F.2d 344, 349 (C.A. 7, 1971), 
Knight v. Auciello, 453 F.2d 852 (C.A. 1, 1972);McLaurin 
v. Brusturis, 320 F. Supp. 190 (E.D. Wis., 1970); Brown v. 
Balias, 331 F. Supp. 1033 (N.D. Tex., 1971)); in connec­
tion with admission to an outdoor recreational facility 
{Scott v. Young, 421 F.2d 143, 145 (C.A. 4, 1970), cert, 
denied, 398 U.S. 929); admission to a trade school {Grier 
v. Specialized Skills, Inc., 326 F. Supp. 856 (W.D.N.C.,
1971) , and in the purchase of a cemetery plot {Terry v. 
Elmwood Cemetery, 307 F. Supp. 369 (N.D. Ala., 1969)).



17

B. Rights secured to petitioners by the Act of 
1866 are violated by Wheaton-Haven’s racially 
discriminatory membership and guest policies

Wheaton-Haven Recreation Association, Inc. is all but in­
distinguishable from Little Hunting Park, Inc., the organiza­
tion which was at issue in the Sullivan case. Each is a 
voluntary association organized to operate a community 
recreation facility, primarily a swimming pool, for residents 
of a prescribed neighborhood.9 Here, as in the Sullivan 
case, the structure and function of the recreation associ­
ation compel the conclusion that reliance on racially dis­
criminatory criteria for determining those eligible to use 
its facilities is violative of the Civil Rights Act of 1866.

As shown supra, p. 7, solely because they are Negroes,
Dr. and Mrs. Press were denied the right, which is avail­
able to others living in the neighborhood, to purchase a 
Wheaton-Haven membership share and thereby use the as­
sociation’s recreational facilities. Since the purchase of such 
a share involves making a contract, the denial to the Press’ 
on the basis of race of the right to enter into such a trans­
action violated their right secured by §1981 not to be dis­
criminated against in such matters. Likewise, because under 
common law principles a membership share in Wheaton-Haven,

9 Such cooperatively established recreation associations formed to 
operate neighborhood swimming pools are particularly common in 
areas where public swimming pools and beaches are not readily ac­
cessible. Petitioners’ brief to this Court in the Sullivan case (p. 24) 
noted that in the Northern Virginia suburbs of Washington, D.C., 
where Little Hunting Park is located there are about 50 community 
pool associations; there are about 42 such associations in Montgom­
ery County, Maryland, where Wheaton-Haven is located. The Wash­
ington Post, p. A-20, June 12, 1967; The (Washington) Evening Star, 
p. B-l, Noon edition, April 25, 1969.



18

a non-stock corporation, constitutes personal property,10 the 
discriminatory refusal to permit Dr. and Mrs. Press to pur­
chase such property on the same basis as white persons 
constituted a violation of §1982. Real property interests 
subject to the protection of §1982 are also adversely af­
fected by Wheaton-Haven’s refusal to allow Dr. and Mrs. 
Press access to its facilities. Thus, occupancy of their 
home is rendered less valuable and enjoyable when use of 
the community swimming pool, which is available to all 
white residents of the neighborhood, is denied to them be­
cause they are black. Further, since under Wheaton-Haven’s 
by-laws the purchaser of a home has the first option to 
buy the pool membership of his seller, a home obviously 
may be more valuable on the market if it carries with it 
an option to purchase such a membership. However, this 
increment in property value is denied to Negro home- 
owners such as Dr. and Mrs. Press, since they can have no 
option to convey. Finally, since membership priority in 
Wheaton-Haven is given to persons residing within a three- 
quarter mile radius of the pool, homeowners within that 
area, of whatever race, who decide to sell to a Negro must 
be prepared to accept any loss in value to their property 
resulting from the racial restriction on use of the swim­
ming pool.

Mr. and Mrs. Murray Tillman have a property interest in 
Wheaton-Haven’s pool and recreation facilities as a result 
of being shareholders, as well as a contractual relationship 
with the association based on the by-laws and rules and 
regulations applicable to all members. Under the by-laws 
and rules, members generally have a right to bring guests

10 Hyde v. Woods, 4 Otto 523 (1877); Page v. Edmunds, 187 US 
596 (1903).



19

to the pool. The association, by adopting the rule limit­
ing guest privileges to relatives of members, at least par­
tially, in order to impose a racial limitation on the right 
to bring guests and thereby prohibit Mr. and Mrs. Tillman 
from taking Mrs. Grace Rosner, a Negro, or for that matter 
any Negro, to the pool, has created an unlawful racial re­
striction on the Tillman’s property interests, as well as on 
their contractual relationship with the association. This 
racial restriction is plainly impermissible in the face of 
§§1981 and 1982. Since, as shown above, the racial re­
striction also limits the market for the sale of the Till­
man’s home and thereby diminishes its value, the restric­
tion is further violative of §1982. Although the Tillmans 
are white, since they stand in the role of persons seeking 
“to vindicate the rights of minorities” protected by the 
statute, they have standing to maintain this action. Sulli­
van v. Little Hunting Park, supra, 396 U.S. at 237; Walker 
v. Pointer, 304 F. Supp. 56, 58-61 (N.D. Tex., 1969).

Mrs. Grace Rosner, as the Negro guest of the Tillmans, 
similarly has rights under §§1981 and 1982, which were 
violated by respondents. As the Court held in Walker v. 
Pointer, supra, 304 F. Supp. at 60-62, a guest has an im­
plied easement of ingress and egress, or a license, which 
constitutes property. Hence, to apply the association’s ra­
cially restrictive guest policy is to deny prospective Negro 
guests the right to acquire and enjoy such an easement, as 
well as the opportunity to receive from members a license 
or other possessory interest concerning permissible actions 
while on association property. See Collver v. Yonkers 
Yacht Club, 17 A.D. 2d 973, 234 N.Y.S. 2d 259 (1962). 
(social guest of members of club is business invitee); Re­
statement (Second) of Torts, §§330, 332 (1965). It should 
be further noted that Mrs. Rosner stood in the role of a



20

third person beneficiary to the contract between the Till­
mans and Wheaton-Haven, which incorporated a general 
policy of permitting members to take guests to the pool. 
See generally 17 Am. Jur. 2d Contracts, §§302-319. As a 
third person beneficiary, Mrs. Rosner had the right under 
§1981 not to be denied performance of the contract be­
cause of the imposition of a racial condition.

C. Wheaton-Haven lacks the characteristic of ex­
clusiveness associated with a truly private club, 
since membership is open to all residents of 
the area prescribed by its by-laws.

By sanctioning the exclusion of Negroes from the com­
munity recreation facilities operated by Wheaton-Haven, 
the court of appeals has squarely contravened this Court’s 
decision in Sullivan v. Little Hunting Park. Both this case 
and Sullivan involve voluntary associations organized by 
residents of neighborhood to provide opportunities for rec­
reation for themselves and others in the area, principally 
by the construction and operation of a swimming pool.
In each instance membership in the association, and hence, 
use of its facilities, is available to everyone residing in the 
area defined by its by-laws. In neither case did the associ­
ation pursue a policy of exclusiveness until a black resident 
of the neighborhood sought the privileges of membership 
for himself and his family. In Sullivan, as here, the court 
below held that the association could properly exclude the 
black applicant on the ground that the association was a 
“private club.” In Sullivan, however, this Court declared 
that it found “nothing of the kind on this record.” 396 
U.S. at 236. The Court continued (ibid.):

There was no plan or purpose of exclusive­
ness. It is open to every white person within



21

the geographic area, there being no selective 
element other than race.

Wheaton-Haven similarly has “no plan or purpose of 
exclusiveness.” Its by-laws specify that membership “shall 
be open to bona fide residents (whether or not home- 
owners) of the area within a three-quarter mile radius of 
the pool.” Unlike the conventional social club, fraternal 
lodge, or similar organization, personal compatibility with 
other members is not a qualification for membership in 
Wheaton-Haven. In conventional social or fraternal organ­
izations — those having as their principal purpose the fos­
tering of fellowship and camaraderie -  friendship, tradi­
tion and common social, educational or occupational back­
grounds play a major role in determining membership eligi­
bility. For Wheaton-Haven, however, the sole determinant 
of membership is residence within the prescribed area. No 
further qualification, recommendation, or nomination is re­
quired. It is inconsistent with the nature of a truly pri­
vate club for an organization, in determining membership 
eligibility, to rely solely on geography, to the exclusion 
of all other factors — except race. Nesmith v. Y.M.C.A. 
o f Raleigh, N.C., 397 F.2d 96, 102 (C.A. 4, 1968); and 
see United States v. Richberg, 398 F.2d 523 (C.A. 5, 
1968); Rockefeller Center Luncheon Club, Inc. v. John­
son, 131 F. Supp. 703, 705 (S.D. N.Y., 1955). Wheaton- 
Haven is functionally similar to the recreational facility in 
Daniel v. Paul, 395 U.S. 298 (1969). The Court there 
held that an establishment which is “open in general” to 
“all members of the white race” may not masquerade as 
a private club merely in order to exclude Negroes from 
its facilities. 395 U.S. at 302.

Nor is the missing element of selectivity supplied by the 
fact that under Wheaton-Haven’s by-laws, in addition to



22

the residence requirement, membership applications are 
subject to approval by a majority vote at a meeting of 
the membership or of the Board of Directors. There is 
no evidence that any factor other than area of residence 
or race has ever been considered as a basis for such votes. 
Indeed, it is clear that membership approvals are given as 
a routine matter, as shown by the fact that in Wheaton- 
Haven’s 11-year history prior to the events herein, only 
one person had ever been rejected for membership. The 
record does not disclose either the race of that applicant 
or place of residence at the time of the rejection (Pet. App. 
B21; A. 88, 93).11

Any claim of exclusivity by Wheaton-Haven has a par­
ticularly hollow ring, in view of its by-laws provision which 
gives a member who sells his home the right to make his 
membership share available for purchase by his vendee, not­
withstanding the fact that there may be a waiting list con­
sisting of persons who have been seeking memberships for 
a substantial period of time.12 The accident of who one 
buys his home from, therefore, determines membership eli­
gibility in those circumstances. This by-laws provision

1 The court of appeals erroneously relied on the unsubstan­
tiated claim of defendants’ counsel at oral argument that “numer­
ous” other unidentified white persons were informally rejected for 
membership by being denied an application form (Pet. App. B21, 
n. 23). This claim is contradicted by defendants’ sworn answer to 
plaintiffs’ interrogatory No. 17, which reflects only one rejection 
for membership, formal or informal, and gives no indication that 
there were others whose identity was unknown (A. 88, 93).

12
Thus, Article VI of the by-laws provides that when the mem­

bership rolls are full, the association is required to purchase the share 
of the vendor who wishes to transfer his share to his vendee. Upon 
receipt of the vendor’s resignation, the association must give the 
vendee first option to purchase the share (A. 47).



23

further demonstrates that the organizers of Wheaton-Haven 
were well aware of the important asset that the swimming 
pool would be to their neighborhood, and that they would 
increase the attractiveness and value of their homes by be­
ing able to assure a potential purchaser not only of the 
availability of a pool membership, but that if there was a 
waiting list, the buyer would have the unqualified right to 
purchase the seller’s pool membership.

In view of the membership priority thus given to per­
sons purchasing homes from Wheaton-Haven members, and 
the priority given generally to persons residing within a 
three-quarter mile radius of the pool, it is apparent that 
use of Wheaton-Haven’s facilities is in fact an incident of 
“residence” in the neighborhood served by the pool. Hence, 
the association’s racially discriminatory admission policies 
cannot be disassociated from other factors generally re­
sponsible for residential segregation by race which, unfor­
tunately, is still all too prevalent in this country. The 
enactment of numerous fair housing laws, federal, state 
and local, in recent years reflects the national commitment 
to combat this problem. However, it is clear that the rou­
tine exclusion of Negroes from neighborhood recreation 
facilities would both discourage them from buying in that 
neighborhood, and make any purchase they did make a 
poorer bargain than that a white citizen can make. “Solely 
because of their race, non-Caucasians will be unable to pur­
chase, own, and enjoy property on the same terms as Cau­
casians.” Barrows v. Jackson, 346 U.S. 249, 254 (1953). 
As the Court stated in Sullivan v. Little Hunting Park, su­
pra, 396 U.S. at 236, “What we have here is a device func­
tionally comparable to a racially restrictive covenant, the 
judicial enforcement of which was struck down in Shelley 
r. Kraemer, 334 U.S. 1 [1948] * * *”



24

D. There are no valid grounds for distinguishing 
this case from Sullivan v. Little Hunting Park

Faced with the compelling precedent of Sullivan v. Lit­
tle Hunting Park, and the unassailable conclusion of Judges 
Butzner, Winter and Craven, in dissent, that this case is 
“indistinguishable” from Sullivan, the majority of the court 
below nevertheless assumed differences between the two 
cases where in fact none exist, and constructed a false 
factual analysis of the two cases to support its determina­
tion not to be bound by Sullivan.13

1. The court of appeals made the clearly erroneous 
assumption that Little Hunting Park’s recreation facilities, 
which were involved in Sullivan, were built by the same 
real estate developers who built the subdivisions named 
in that organization’s by-laws, and that therefore the right 
to use those facilities is incidental to the acquisition of a 
lot in one of those subdivisions (Pet. App. B9, n. 8,B16). 
This assumption is belied by the record of the Sullivan 
proceeding in this Court, which was before the court of 
appeals.14 The court of appeals’ attention was called to

1 ̂ The court of appeals did not rely on the district court’s rea­
sons for determining that Wheaton-Haven is a private club, but in­
stead stated its own grounds to support its conclusion.

14 The printed appendix to the briefs used in this Court in the 
Sullivan case was submitted to the court of appeals at oral argu­
ment by petitioners’ counsel, and was relied upon by the court in 
writing its opinion. In addition, excerpts from the Sullivan appen­
dix, have been designated by petitioners for inclusion in the appen­
dix to the briefs in the instant case (A. 64-84). Petitioners respect­
fully request this Court to take judicial notice of those portions of 
the Sullivan record. United States v. Pink, 315 U.S. 203, 216 (1942); 
National Fire Insurance Co. v. Thompson, 281 U.S. 331, 336(1930)



25

the fact that there was no connection between Little Hunt­
ing Park and any commercial builder, and that the associ­
ation there, like Wheaton-Haven, is a voluntary organiza­
tion formed by residents of an area who joined together 
to build and operate a .neighborhood recreation facility 
(A. 65-76, 77-78).

2. The court of appeals made the clearly erroneous 
assumption that in order to be eligible for membership in 
Little Hunting Park one is required to own property within 
a prescribed geographic area (Supp. App. B15). The rec­
ord of the Sullivan case shows that out of an authorized 
membership of 600, 133 members resided in areas outside 
of the prescribed area at the time they acquired member­
ship, and there is no evidence that at the time of acquir­
ing membership any of them owned property in that area 
(A. 84). A similar situation exists with respect to Wheaton- 
Haven which allows persons residing outside the three-quar­
ter mile eligibility area to join upon the recommendation 
of a member as long as such persons do not exceed 30 
percent of the total membership {supra, pp. 4-5).15

3. The court of appeals made the clearly erroneous 
assumption that Wheaton-Haven has a greater degree of 
“exclusivity” than Little Hunting Park, which distinguishes

5 Contrary to the court of appeals’ supposition (Supp. App. 
B15, n. 17), the Little Hunting Park eligibility area was extended 
several times to include areas in addition to the four subdivisions 
specified in the by-laws (A. 82-84). Further, there is no basis for 
the court’s the “leap to suppose” (Supp. App. B15, n. 17) that 
such additional areas were opened by the same developers who had 
opened the original four. As shown above, the subdivisions sur­
rounding Little Hunting Park were built long before the recreation 
association was organized, and builders had nothing to do with its 
formation.



26

this case from Sullivan and gives Wheaton-Haven license 
to discriminate against Negroes. The court relies on the 
fact that in Wheaton-Haven’s 11-year history one applicant 
for membership was rejected (Supp. App. B20-B21). The 
court, however, completely ignores the fact from the Sul­
livan record, which was brought to its attention, that in 
the 12 years of Little Hunting Park’s existence one ap­
plicant for membership was also rejected (A. 79).16

4. The court of appeals made the clearly erroneous 
finding that the option to buy a membership in Wheaton- 
Haven which the purchaser of a home obtains when his 
vendor resigns his membership is “utterly without use or 
value” (Supp. App. B13). The court arrived at this find­
ing by erroneously relying on the unsubstantiated claim of 
defendant’s counsel at oral argument that Wheaton-Haven’s 
membership had been 260 families for several years, less 
than its maximum limit of 325 (Supp. App. B2, n. 1). 
The Court reasoned that the option has no value unless 
the membership rolls are full. When it was pointed out 
in the petition for rehearing that the membership rolls 
were full to the 325 maximum in the spring of 1968 when 
Dr. Press sought membership, and that he would have been 
placed on the waiting list, if he had not been discriminated 
against, the court corrected its findings to reflect full mem­
bership at that time (Supp. App. B30; A. 88, 92, 105-106). 
However, the court did not alter its conclusion that the 
option is of no use or value.

16 The court of appeals, in Part III of its opinion, cited various 
features of Wheaton-Haven as “indicators of its private nature” (B18). 
Every one of the factors referred to, however, is also characteristic of 
Little Hunting Park, which was held by this Court not to be a pri­
vate club.



27

The court’s adherence to its conclusion, despite the dem­
onstrated error of its underlying factual finding illustrates 
the erroneous approach taken by the court to this case.
Its opinion is based on previously arrived at determina­
tions, and facts were fashioned to provide their justifica­
tion. In actuality, the question of whether Wheaton-Haven’s 
membership rolls are full, or not full, at any given time 
has nothing to do with whether the purchase of a mem­
bership share involves contractual and property rights fall­
ing under the protection of 42 U.S.C. §§1981, 1982. How­
ever, by seizing on this and other irrelevant factors in ana­
lyzing this case and Sullivan, the court relied upon wholly 
invalid grounds for distinguishing the two cases.

II. WHEATON-HAVEN’S RACIALLY DISCRIMINATORY 
POLICIES VIOLATE THE CIVIL RIGHTS ACT OF 
1964 (42 U.S.C. §2000a)

Title II of the Civil Rights Act of 1964 (42 U.S.C. Sec. 
2000a) prohibits racial discrimination in “any place of 
public accommodation,” which is defined to include any 
“place of entertainment” if its “operations affect com­
merce” . In Daniel v. Paul, supra, 395 U.S. 298, the Court 
held that a recreational establishment in which persons are 
not passive spectators, but are direct participants, is a “place 
of entertainment” within the meaning of the statute. The 
Court also held in Daniel that recreational equipment and 
apparatus originating out of the state constituted “sources 
of entertainment which move in commerce” for the pur­
poses of subsection (c)(3) of the statute. In reaching the 
latter conclusion, the Court adopted the view previously 
taken by the Court of Appeals for the Fifth Circuit that 
the phrase “move in commerce” in subsection (c)(3) in­
cludes sources of entertainment, such as equipment and



28

supplies, which had moved in interstate commerce but 
which have come to rest at the place of entertainment. See 
Miller v. Amusement Enterprises, Inc., 394 F.2d, 342, 351-352 
(C.A. 5, 1968). Accord: Scott v. Young, supra, 421 F.2d at 
144 (C.A. 4). United States v. Central Carolina Bank & Trust 
Co., 431 F.2d 972 (C.A. 4, 1970).

In the instant case, as shown supra, p. 5, the Wheaton- 
Haven pool was constructed by a contractor from outside 
the State of Maryland and the operations of the pool in­
volve the use of machinery and equipment manufactured 
in other states. Hence, there can be no question under 
the relevant authorities that the necessary link to inter­
state commerce is present. Daniel v. Paul, supra; Scott v. 
Young, supra11

The Civil Rights Act of 1964 has a specific provision 
exempting from coverage “a private club or other estab­
lishment not in fact open to the public.” Consistent with 
its holding that Wheaton-Haven is not subject to the Act 
of 1866 because of its status as a private club, the court 
below held that the Act of 1964 similarly is inapplicable 
because of the private club exemption. This Court’s hold­
ing in Sullivan v. Little Hunting Park, and the discussion 
supra, pp. 20-27, amply demonstrate, we believe, that 
Wheaton-Haven lacks the degree of exclusiveness sufficient 
to exempt it from coverage of the 1964 Act. Nor can it 17

17 The performance of services by a contractor from another 
state suffices to bring a facility within the scope of interstate commerce. 
International Brotherhood o f Electrical Workers v. National Labor Re­
lations Board, 341 U.S. 694, 699 (1951); National Labor Relations 
Board v. National Survey Service, 361 F.2d 199, 203-204 (C.A. 7, 
1966), and cases cited; National Labor Relations Board v. Local 1423, 
United Brotherhood o f Carpenters, 238 F.2d 832, 835 (C.A. 5,1956); 
National Labor Relations Board v. The Austin Co., 165 F.2d 592,
594 (C.A. 7, 1947).



29

be maintained that Wheaton-Haven is “not in fact open to 
the public.” For the record shows that it is open to every­
one residing within the three-quarter mile radius which it 
serves. The numerical limit on memberships to 325 fami­
lies does not compel a contrary conclusion, for that is 
merely a means of preventing overcrowding of the facili­
ties. The observance of such a limitation in the interest 
of health and safety is no more indicative of private club 
status for Wheaton-Haven than it is for a theatre or restau­
rant which similarly limits its number of patrons. Nor is 
it significant that Wheaton-Haven requires payment of an 
annual fee, rather than individual admission charges, for the 
use of its facilities. The fact is that the Wheaton-Haven 
pool is “open to any white individual” or family residing 
within the prescribed area “who can afford the yearly mem­
bership rates.” Nesmith v. Y.M.C.A. o f  Raleigh, N.C., su­
pra, 397 F.2d at 101 (C.A. 4).

CONCLUSION

The judgment of the court of appeals should be re­
versed, and the case should be remanded to that court 
with directions to remand to the district court for further 
appropriate proceedings.18

1 Q
Since the district court took no evidence on the question of 

damages, this issue, as well as the liability for damages of individual 
directors of Wheaton-Haven, requires a further hearing. It is clear 
that an award of monetary damages is an appropriate remedy for vio­
lations of 42 U.S.C. §§1981, 1982. Sullivan v. Little Hunting Park, 
supra, 396 U.S. at 238-240; Lee v. Southern Home Sites Corp., su­
pra, 429 F.2d at 293-295 (C.A. 5); Smith v. Sol D. Adler Realty 
Co., supra, 436 F.2d at 350-351 (C.A. 7); Knight v. Auciello, supra,

(continued)



30

Respectfully submitted,

ALLISON W. BROWN, JR.
Suite 501, 1424 -  16th St.,N.W. 
Washington, D.C. 20036

RAYMOND W. RUSSELL 
22 West Jefferson Street 
Rockville, Maryland 20850

SAMUEL A. CHAITOV1TZ 
30 W. 60th Street 
New York, N.Y. 10023

Of Counsel: Attorneys for Petitioners

MELVIN L. WULF 
American Civil Liberties Union 
156 Fifth Avenue 
New York, N.Y. 10010

June 1972.

^  (continued) 453 F.2d 852 (C.A. 1); Brown v. Balias, supra, 
331 F. Supp. at 1037 (N.D. Tex.); Williamson v. Hampton Manage­
ment Co., 339 F. Supp. 1146, 1149 (N.D. 111., 1972). Moreover, 
on the basis of the complaint’s allegations, the directors who par­
ticipated in the discrimination against petitioners are liable for 
damages, along with the corporation, based on their roles in the 
wrongful conduct. See National Cash Register Co. v. Leland, 94 
Fed. 502, 508-511 (C.A. 1, 1899), cert, denied, 175 U.S. 724; 
Trounstine v. Bauer, Pogue & Co., 144 F.2d 379, 382 (C.A. 2, 
1944), cert, denied, 323 U.S. I l l ; Hitchcock v. American Plate 
Glass Co., 259 Fed. 948, 952-953 (C.A. 3, 1919); Lobato v. Pay 
Less Drug Stores, Inc., 261 F.2d 406, 408-409 (C.A. 10, 1958); 
American Universal Insurance Co. v. Scherfe Insurance Agency, 135 
F. Supp. 407, 415416 (S.D. Iowa, 1954).

(continued)



31

1 Q
(continued)

One director, Richard E. McIntyre, who has been separately rep­
resented in this litigation, argues that the case should be dismissed 
as to him because he did not agree with the board of directors’ 
racial policies and because he did not participate in the discrimina­
tion. This, of course, is a matter for determination upon the taking 
of evidence in the trial court. In any event, McIntyre’s deposition 
shows that he knew of Dr. and Mrs. Press’ desire to become mem­
bers, that he told them they were unacceptable to the board be­
cause of their race, and that he never made any formal move at a 
board meeting to admit them to membership (A. 104-105). In ad­
dition, at one board meeting in the summer of 1968, when Wheaton- 
Haven’s guest policy was under discussion, McIntyre admittedly, 
made a motion “to bar all Negro guests” (A. 116). McIntyre was 
at the board meeting on July 20, 1968, when the vote was taken 
to adopt the racially discriminatory guest policy. He claims he did 
not vote, but the official minutes of the meeting record him as 
being present and state that the vote for the guest policy was unan­
imous (A. 41-42).