Cannon v. Durham County Board of Elections Brief for Appellees

    In the

Itutefc Stall's (Emtrt uf Appeals
F ob the F ourth Circuit 

No. 9628

Samuel E. NeSmith, 

— v .—
Appellant,

Y oung Men’s Christian A ssociation of Raleigh, North 
Carolina, I nc. and C. Lynn  Brown, President of the 
Executive Committee of the Young Men’s Christian 
Association of Raleigh, Inc.,

Appellees.

BRIEF FOR APPELLANT

Conrad 0 . Pearson
203% East Chapel Hill Street 
Durham, North Carolina

Samuel S. Mitchell
Romallus 0 . Murphy

126% East Hargett Street 
Raleigh, North Carolina

J. LeV onne Chambers
405% East Trade Street 
Charlotte, North Carolina

Jack Greenberg
Michael M eltsner 

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellant



I N D E X

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

Questions Involved ............................... ............................ 3

Statement of Facts ...........................................................  5

A k g u m e n t

I. The Health and Athletic Facilities Are Part of the 
“ Services” and “Accommodations” Offered by the 
Raleigh Y.M.C.A., an Establishment Providing 
“Lodging to Transient Guests” and a “Restaurant, 
Cafeteria, Lunchroom, Lunch Counter, Soda Foun­
tain, or Other Facility Principally Engaged in 
Selling Food for Consumption on the Premises” 
as Defined by the Civil Rights Act of 1964 Because 
All of the Facilities Are Integrally Connected and 
Related-Physically, Administratively, Operation­
ally and Financially .................................................. 8

II. The Health and Athletic Facilities of the Raleigh 
Y.M.C.A. Are Not Operated as Private Clubs or 
Other Establishments Not in Fact Open to the 
Public Because: (A ) the Facilities Are Available 
to the Public at Large; (B) New Members Are 
Recruited Annually; (C) the Sustaining Element 
of the Clubs Is The Members’ Interest in the Ac­
tivities Offered Rather Than Their Interest in 
Associating With Each Other; (D) the Member­
ship Is Large and Open-Ended; and (E) All 
Applications Are Accepted as a Matter of Course 16

Conclusion 20



11

Table of A uthorities

Cases: page

Bradshaw v. Whigman, 11 Race Eel. L. Rep. 934 (S.D.
Fla. 1966) .....................................................................18,19

Castle Hill Beach Club v. Arbury, 208 Misc. 35, 142 
N.Y.S. 2d 432 (Sup. Ct. 1955), modified, 1 App. Div.
2d 943, 950, 150 N.Y.S. 2d 367 (1956), aff’d, 2 N.Y.
2d 596, 142 N.E. 2d 186, 162 N.Y.S. 2d 1 (1957) .....18,19

Chambers v. Hendersonville City Board of Education,
364 F.2d 189 (4th Cir. 1966) ..........................................  17

Cypress v. Newport News General and Nonsectarian 
Hospital Assn., 375 F.2d 648 (4th Cir. 1967) .............16,17

Evans v. Ross, 57 N.J. Super. 223, 154 A.2d 441 (App.
Div. Super. Ct.), cert, den., 31 N.J. 292, 157 A.2d 362 
(1949) ............................................................................. 10,19

Hamm v. City of Rock Hill, 379 U.S. 306 (1964) .......  15
Hawkins v. Charlotte Young Men’s Christian Assn.,

11 Race Eel. L. Rep. 424 (W.D. N.C. 1965) ............. 20
Hawkins v. North Carolina Dental Society, 355 F.2d

718 (4th Cir. 1966) .......................................................... 17
Heart of Atlanta Motel v. United States, 379 U.S. 241 

(1964) ...............................................................................  14

Johnson v. Auburn & S. Elec. R.R. Co., 222 N.Y. 443,
119 N.E. 72 (1918) ......................................................19,20

Kyles v. Paul, 263 F. Supp. 412 (E.D. Ark. 1967) ....17,19

Newman v. Piggie Park Enterprises, 377 F.2d 433 
(4th Cir. 1967) 12



Ill

PAGE

Rackley v. Board of Trustees of Orangeburg Regional 
Hospital, 310 F.2d 141 (4th Cir. 1962) ...................10,11

United States v. Clarksondale King & Anderson Co.,
10 Race Rel. L. Rep. 1762 (N.D. Miss. 1965) ........... 19

United States v. Jack Sabin’s Private Club, 265 F.
Supp. 90 (E.D. La. 1967) ..........................................17,19

United States v. Northwest Louisiana Restaurant 
Club, 256 F. Supp. 151 (W.D. La. 1966) ...............17,19

Statutes:

42 U.S.C. §1343 ............................

§2000a ..........................

§2000b ..........................

§2000a(b)(1) ..............

§2000a(b)(2) ...............

§2000a(b)(3) ...............

§2000a(b)(4) ...............

§2000a(c) .....................

§2000a(c)(1) ...............

§2000a(c)(2) ...............

§2000a(c)(4) ..........................

§2000a(e) ..................................

Rules:

Federal Rules of Civil Procedure

................  2

.....................2,11

........................  11

..........9,11,12,14

...............9,11,12

........................  12

.......11,12,13,14

........................  11

........................  11

........................  11

........................  11

2, 9,17,18,19, 20

Rules 23(a), (b)(2) 2



IV

Other Authorities: page

Bunting, James F. (address) “ The Purpose and Goals 
of the Y.M.C.A.” Record of the Thirty-Eighth An­
nual Meeting of the National Council of Young 
Men’s Christian Associations of the United States
of America (May 17, 1964) pp. 7-13 ..........................  8

Constitution of Y.M.C.A.— 31A ............................. 7, 8, 9,18

110 Cong. Rec. 1973.............................................................  13

110 Cong. Rec. 13697 .........................................................  17



In the

Mnttpfc Btntts Court of Appeals
F ob the F ourth Circuit 

No. 9628

Samuel E. NeSmith,

Appellant,
—v.—

Y oung Men’s Christian A ssociation of Raleigh, North 
Carolina, Inc. and C. Lynn  Brown, President of the 
Executive Committee of the Young Men’s Christian 
Association of Raleigh, Inc.,

Appellees.

BRIEF FOR APPELLANT

Statement of the Case

This is an appeal from a judgment (177A) of the United 
States District Court for the Eastern District of North 
Carolina, Raleigh Division,1 denying the plaintiff the 
injunctive relief he sought to prohibit alleged racial dis­
crimination by the Young Men’s Christian Association of 
Raleigh and dismissing the suit with prejudice.

The action was instituted on October 7, 1965 by Samuel 
E. NeSmith, a Negro, on behalf of himself and others 
similarly situated against the Raleigh Y.M.C.A. and its 
President alleging violations of Title II of the Civil Rights

1 The case was heard and decided by Chief Judge Edwin M . Stanley 
of the Middle District o f North Carolina, sitting by designation.



2

Act of 1964, 42 U.S.C. §§2000a et seq. Jurisdiction was in­
voked pursuant to 42 U.S.C. §1343 (1A-7A).

The defendant Y.M.C.A. answered the complaint on 
November 24, 1965 (8A) claiming, inter alia, that those 
portions of its operations involving lodging and eating 
facilities were opened to the public generally, but that the 
athletic and health facilities were limited to members of 
several clubs (10A-11A).

Depositions of three officials of the Y.M.C.A. were taken: 
Eugene B. Phillips (46A-78A), Chairman of the Member­
ship Committee; R. Norman Williams (78A-99A), Resi­
dence and Business Secretary, and Wyatt Taylor (100A- 
147A), General Secretary. Interrogatories were pro­
pounded by plaintiff (12A) and answered by defendant 
(19A).

The case was tried by the court without a jury on May 
2, 1967 upon the evidence as contained in the depositions, 
answers to interrogatories, stipulations (164A) and exhibits 
(27A, 31A, 149A-162A). On October 3, 1967, the district 
court made Findings of Fact and Conclusions of Law 
(166A) and entered a judgment (177A) denying the relief 
sought and dismissing the case with prejudice. The court 
found that it had jurisdiction, that it was a proper class 
action under Rule 23(a), (b )(2) of the Federal Rules of 
Civil Procedure, that the health and athletic activities of 
the Y.M.C.A. were not covered by Title II of the Civil 
Rights Act of 1964, 42 U.S.C. §§2000a et seq., and that the 
health and athletic membership clubs of the Y.M.C.A. were 
exempt from the requirements of the Act under 42 U.S.C. 
§2000a (e) (176A).

Appellants filed notice of appeal on October 24, 1967 
(178A).



3

Questions Involved

I.

Whether the court below erred in finding that the Athletic 
and Health facilities of the Raleigh Y.M.C.A. “constitute 
separate and distinct operations” from those facilities 
offering lodging to transient guests and food to interstate 
travelers which are covered by Title II of the Civil Rights 
Act of 1964 where:

a. the health and athletic facilities are housed in a 
structure physically connected to the one contain­
ing the eating and lodging facilities admittedly 
covered by the Act;

b. both structures are on the same plot of land;

e. both structures were planned and constructed at 
the same time out of a common fund;

d. the two structures share a common heating plant, 
telephone connections and utilities;

e. both structures are owned and operated by the 
same tax-exempt, non-profit corporation whose ob­
ject is “ to develop the Christian character and 
usefulness of its members through a vigorous pro­
gram of religious, physical, mental and social activ­
ities”  ;

f. all facilities are administered and managed from a 
central office by a single executive secretary;

g. all funds are co-mingled in a common budget which 
is managed by a single business secretary;

h. the revenue from the lodging and food facilities 
accounted for more than 70% of all fees and charges 
collected in 1965;



4

i. a surplus was generated in 1965 by the activities 
within the structure housing the lodging and eating 
facilities of $35,683.42 which went towards defray­
ing the deficit incurred by the operation of the 
health and athletic facilities; and

j. a contribution of $48,949.92 from the United Fund 
was used to further defray the deficit incurred from 
the operation of the health and athletic facilities.

II.

Whether the court below erred in finding that the athletic 
and health facilities of the Raleigh Y.M.C.A. are operated 
as private clubs or other establishments not in fact open 
to the public as defined by the Civil Rights Act of 1964 
where:

a. “Any person of good moral character who sub­
scribes to the Association’s purposes may apply for 
membership in the Association” ;

b. there were 2,781 members of the athletic and health 
clubs as of December 31, 1965;

c. 1,327 neAV members were acquired during the year 
1965;

d. from August 1, 1965 through September 8, 1966, 
1,295 neAV members were acquired and only five 
applications were rejected;

e. all applications are acted upon by a four-man sub­
committee ;

f. new members are recruited annually, and

g. there is no limit imposed on the number of member­
ships.



5

Statement of Facts

The Young Men’s Christian Association of Raleigh is a 
tax exempt non-profit corporation, incorporated under the 
laws of the State of North Carolina affiliated with and sub­
scribing to the constitution, by-laws, rules and regulations 
of the Young Men’s Christian Association (19A, 25A). Its 
stated purpose and goal is to develop the Christian char­
acter and usefulness of its members through a vigorous 
program of religious, physical, mental and social activity 
(19A, 31A).

The purpose and goal of the Y.M.C.A. is carried out by 
offering rooms for community and civic meetings, rooms 
for classes and discussion clubs, a chapel, rooms for rental 
to permanent and transient guests, a coffee shop, public 
lounges, a television viewing area, basketball courts, a 
swimming pool, exercise devices, steam rooms and showers 
and by maintaining camp facilities in Carteret and Pamlico 
Counties, North Carolina (19A-21A).

The rooming facilities include more than five rooms for 
rent or hire to transient guests (23A, 164A). The coffee 
shop serves and offers to serve food for consumption on the 
premises to interstate travelers (23A, 164A).

The Y.M.C.A. is located at 601 Hillsboro Street, Raleigh, 
North Carolina. Its programs and activities are carried out 
in two connected structures. The health and athletic facili­
ties are in one structure. The other activities are in another. 
The two are connected by an overhead covered walkway 
(47A-48A), a single heating unit, single utilities and single 
telephone connections. The buildings were planned together 
and constructed at the same time from a common source of 
funds (24A, 92A).

The central administrative office and Executive Secre­
tary administers and are generally responsible for all



6

activities and functions of the Y.M.C.A. (78A-79A). There 
is one business secretary and one budget for the total 
operation with proceeds from each operation being placed 
in the central fund (87A).2 All employee wages and fringe 
benefits are paid through the central office as are all other 
bills and expenses (94A-95A).

The fees received from the rental of rooms, for food 
service and for club room rentals are received as the ser­
vices are used. The fees for the athletic and health facili­
ties are paid annually by those using the facilities.

The community building activities are open to the public 
without regard to race (20A) subject to the kinds of gen­
eral limitations which hold in any place of public accom­
modation such as sobriety, proper attire and appropriate 
behavior. The health and athletic facilities are open to 
“ any person of good moral character who subscribes to the 
Association’s purposes” and who pays an annual fee ac­
cording to age and sex (25A-26A). There are six such 
classifications: boy’s and students, for boys 7-16 years of 
age; sustaining, for under-privileged boys whose fees are 
paid by a sponsor; men’s athletic club, for young and older 
men; men’s health club, also for young and older men; 
girl’s, for girls 7-16 years of age; and women’s (152A-160A).

Each November the Y.M.C.A. conducts a membership 
drive for the several athletic and health classifications to 
renew membership of its old members and to recruit new 
members (25A-26A, 48A-55A). No limitation on the number

2 The income and expense figures for 1965 show that the community 
building activities helped to defray the expenses of the athletic health 
programs. Fees from the health and athletic clubs amounted to $135,683.42. 
Expenses amounted to $218,654.58. The deficit of $82,976.16 was offset by 
a $35,675.01 surplus from the community building activity and a $48,949.92 
contribution to the Y .M .C .A . made by the United Fund. This left a total 
surplus of $1,648.77 for all Y .M .C .A . operations. (Answers to Interroga­
tories 22 and 23, 24 A -25A ).



7

of memberships is stated in the Constitution of the Y.M.C.A., 
nor has any been suggested. As of December 31, 1965, there 
were 1,028 members in the men’s health club, 561 members 
in the men’s athletic club, 95 members in the women’s 
athletic club and 1,107 members in the youth club (21A- 
22A). From August 1, 1965 through September 8, 1966,
I, 295 new members were acquired by the Raleigh Y.M.C.A. 
in the several athletic and health programs (26A).

Membership applications are considered by a four-man 
subcommittee; this procedure was adopted because of the 
difficulty of convening the full membership committee 
(70A). Other than the constitutional requirements (Article
II, 31A-32A) no rules have been adopted by defendant to 
govern membership (23A, 57A). Membership applications 
are routinely approved by the subcommittee. Of the 1,295 
applications from August 1, 1965 through September 8, 
1966, only five were rejected (26A). One of those five was 
the plaintiff in this action, Samuel E. NeSmith.

In August 1965, Samuel E. NeSmith applied for member­
ship in the men’s athletic club and tendered the requisite 
fee (162A). He was notified by letter dated September 9, 
1965, that his application was not approved (161A). Prior 
thereto Wilber B. Johnson, also a Negro, made application 
for membership in the Youth athletic club on behalf of his 
son. This application was also rejected (21A). The ex­
planation given for the rejections was that the committee 
did not think that the applicants were sincere (61A-62A). 
The record contains no similar rejection of a white appli­
cant.

Since the Raleigh Y.M.C.A. was established on Hillsboro 
Street in 1960, no Negro has ever been allowed to use the 
health or athletic facilities, nor were Negroes accepted 
in any of the health or athletic groups at the previous loca­
tion (63 A).



8

A R G U M E N T

I.

The Health and Athletic Facilities Are Part of the 
“ Services”  and “ Accommodations”  Offered by the Ra­
leigh Y.M.C.A., an Establishment Providing “ Lodging 
to Transient Guests”  and a “ Restaurant, Cafeteria, 
Lunchroom, Lunch Counter, Soda Fountain, or Other 
Facility Principally Engaged in Selling Food for Con­
sumption on the Premises”  as Defined by the Civil 
Rights Act of 1964 Because All of the Facilities Are 
Integrally Connected and Related— Physically, Adminis­
tratively, Operationally and Financially.

The Raleigh Y.M.C.A., indeed as Y.M.C.A.s generally, 
has adopted as its general purpose and goal, the develop­
ment of character and usefulness of young boys and adults 
through vigorous programs of religious, physical, mental 
and social activity (see Constitution of defendant 31A).3 
To carry out this objective the defendant has established 
facilities in Raleigh to provide physical activities, character 
development, social and religious activities, eating and 
lodging facilities and community programs. It has two 
structures, physically connected and quite clearly integrated 
in operation and activities. One structure houses the room­
ing and eating facilities, lounges and meeting rooms and the 
other, the athletic facilities. It is clear that the total opera­
tion is designed to implement the general purposes and 
goals of defendant as stated in its constitution. The 
Y.M.C.A. makes its facilities and services available to “any

3 See also address by James F . Bunting, “ The Purpose and Goals of the 
Y .M .C .A .,” Record of the Thirty-Eighth Annual Meeting of the National 
Council of Young Men’s Christian Associations of the United States of 
America (M ay 17, 1964, pp. 7 -13).



9

person of good moral character who subscribes to the 
Associations purposes . . . ”  and who pays the annual 
membership fee (Article II, Section I of the Y.M.C.A. 
Constitution; 31A), and conducts annual membership drives 
to renew memberships and to solicit new members. As to 
all persons who apply and satisfy the age limitation on 
adult and youth memberships, with the exception of Negro 
applicants, they are extended and expected to utilize all 
facilities, services, and accommodations.

It is clear that the lodging and eating facilities operated 
by the defendant are covered by 42 U.S.C. §§2000a(b) (1) 
and (b )(2 ).4 Defendants have maintained and the court 
below held that the Raleigh Y.M.C.A. is, in effect, two 
establishments, one covered and one not covered by the Act. 
By this view the activities in the structure housing the 
lodging and eating facilities are covered but those in the 
structure housing the athletic and health facilities are 
not. The court concluded that “ the facilities are located in 
separate buildings and constitute separate and distinct 
operations” (173A ).5 This conclusion is at variance with 
its own findings of facts concerning the physical layout, 
the administration, operations and the purpose and objec­
tives of the entire operation of the Raleigh Y.M.C.A.

Defendant does not operate merely a restaurant, or 
merely rooming facilities, or merely a chapel and lounging 
area, or merely athletic facilities, but rather defendant 
operates a Y.M.C.A. which encompasses all these facilities 
and activities and without which defendant could not suc­

4 See Stipulations (3) and (4 ) , 164A.

5 The court also held that these facilities were offered on a membership 
basis which excluded them under the private club exemption, 42 U .S.C. 
$2000a(e). This contention is dealt with in Section I I  of the brief below. 
Plaintiff’s position is that there is no private club or other establishment 
not in fact open to the public as defined by the Act.



10

cessfully or as efficiently carry out its stated objective and 
goal. All activities are administered by a single board; 
committees are appointed by the President of the Board; 
rules and regulations for the operation of all facilities are 
promulgated by the committees thus appointed; there is 
one constitution for the operation of all facilities; there is 
a central administrative office planning and administering 
all facilities.

The finances of defendant are administered by one office 
and a single budget for the total operation. Funds from 
the total operation are co-mingled and used to balance op­
erations which carry deficits. A deficit of $82,976.16 in the 
operation of the health and athletic facilities in 1965 was 
offset by a surplus of $35,675.01 from the other activities 
and a contribution of $48,949.92 from the United Fund 
(24A-25A).

The two structures are physically connected with a single 
heating unit, single utilities and telephone connections. In­
deed, despite the general public usage of one area, the evi­
dence here clearly establishes the singleness of defendant’s 
operation, with each area, activity and function dependent 
physically, administratively, financially and otherwise on 
the other. Clearly, defendant does not conceive of its As­
sociation as the athletic area, the eating area, the rooming 
area or the conference area, but rather as one operation 
offering all these facilities and functions. See Evans v. 
Ross, 57 N. J. Super. 223, 154 A.2d 441 (App. Div. Super. 
C t.); cert, den., 31 N. J. 292, 157 A.2d 362 (1949), where 
the Court rejected the contention that a private banquet 
room was not covered by the New Jersey Civil Rights Act, 
the Court finding the banquet room to be an integral part 
of the restaurant—physically, operationally and financially.

In Rackley v. Board of Trustees of Orangeburg Regional 
Hospital, 310 F.2d 141 (4th Cir. 1962) this court refused



11

to make distinctions between the waiting room from which 
the Negro plaintiffs had been barred and the ward and 
room facilities for which they also sought relief: “ It is 
enough to note that these are items of general hospital 
operation; the complainants should not be required to 
prosecute a separate suit for each activity or department 
of the hospital.” 310 F.2d at 143. The health and athletic 
facilities of the Y.M.C.A. are similarly items of its general 
operation. Under 42 U.S.C. §2000a(b)(1), (b )(2) and 
(b )(4 ),6 the Y.M.C.A. as an entity is federally obligated 
not to practice racial discrimination.

The pertinent language of the Act which grants cover­
age here is :

§2000a

(b) Each of the following establishments . . .

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

(2) any restaurant, cafeteria, lunchroom, lunch 
counter, soda fountain, or other facility prin­
cipally engaged in selling food for consump­
tion on the premises . . .;

(4) any establishment (A )(i)  which is physically 
located within the premises of any establish­
ment otherwise covered by this subsection, or 
(ii) within the premises of which is physically 
located any such covered establishments, and

6 The effect on commerce required by 42 U .S.C . 52000a (e) is clear. 
Section c ( l )  requires only that the establishment be “ one of the establish­
ments described in paragraph (1) o f subsection (b) . . .”  Section (e) (2 )  
is satisfied in that the Y .M .C .A . has stipulated and admitted that its 
eating facilities “serves or offers to serve interstate travelers.”  The record 
does not indicate whether or not “a substantial portion of the food . . .  or 
other products . . . has moved in commerce.”  The requirements o f (c) (4) 
require only that the Section (b) requirements be met.



12

(B) which holds itself out as serving patrons 
of such covered establishment.

The entire operation of the Y.M.C.A. is an “establish­
ment which provides lodging to transient guests” within 
the meaning of (b )(1). An important component of this 
(b )(1) “ establishment” is the coffee shop. Additionally, it 
is covered by (b )(2). It is clear that the coffee shop is a 
“ facility principally engaged in selling food for consump­
tion on the premises.” See Newman v. Piggie Park Enter­
prises, 377 F.2d 433 (4th Cir. 1967).

In addition to the coverage for the whole Y.M.C.A. “ es­
tablishment,” (b )(1), there is also 2000a(b)(4) coverage 
for the whole Y.M.C.A. operation, although the (b) (1) and 
(2) coverage is ample.7

The first half of (b )(4) coverage is satisfied here because 
the health and athletic facilities are “ (A) . . . (ii) within 
the premises of which is physically located any such cov­
ered establishment,” 8 the lodging and food facilities being 
such covered establishments. The second half of the (b)(4) 
requirement, (b) (4) (B), “any establishment. . .  which holds 
itself out as serving patrons of such covered establishment” 
is also met. The record shows very clearly that whites are 
granted the privileges of the health and athletic facilities 
as a matter of course while Negroes are excluded from 
those facilities.9 This policy obviously extends to those 
who use the lodging and eating facilities as well as those 
who do not. Nothing in Section (b )(4) suggests that its 
coverage is limited to an establishment which only “holds

7 Clearly Section (b ) (4 )  is not a limitation on Sections (b) (1 ) , (2) 
and (3 ). Its purpose is to extend rather than to limit Title I I  coverage.

8 Section ( b ) ( 4 ) ( A ) ( i )  might also be applicable, though (b) (4 )(A )  (ii) 
seems more appropriate.

9 See note 13 infra.



13

itself out as serving patrons of such covered establish­
ment.” No special arrangement is required.10 The provi­
sion is aimed at an establishment which is part of another 
which is opened to Negroes by the Act. Congress obviouslj’ 
intended that Negroes should not suffer the indignity of

10 The court below ruled that just such a special arrangement was re­
quired for the health and athletic facilities to be brought within (b ) (4 ) .  
The court wrote:

“All the evidence is to the effect that the use of one facility does not 
give the individual the right to use the other facility” (1 74A ).

The legislative history of the Act makes clear that no such right is re­
quired. Barbershops, for example, are not generally covered unless they 
are within a covered establishment. The following coloquy is on point:

“February 5, 1964

Mr. Gross: Mr. Chairman, I  would like the attention of the 
gentleman from New York [M r. Celler], if I  may. W hat about the 
barber operating in a hotel who works by appointment— and let 
us say the gentleman from New York or the gentleman from Iowa 
not having much hair—

Mr. Celler: I  do not have much hair either.
Mr. Gross: Yes, that is what I  have just said. Suppose we try 

to get an appointment and the barber insisted we did not have 
enough hair to suit him or for some other reason he refuses to 
give us an appointment. Could I bring an action against him for 
discriminating against me?

Mr. Celler: And does the barbershop hold itself out as serving 
patrons of the hotel?

Mr. Gross: The barbershop holds itself out as serving anyone.
Mr. Celler: I f  the barbershop holds itself out as serving patrons 

o f the hotel and he is a barber in that barbershop, he is covered 
by this bill.

Mr. Lindsay: Mr. Chairman, if  the gentleman will yield, I  am 
sure the gentleman understands that this bill has to do with dis­
crimination on the basis of race, creed, or racial origin and has 
nothing to do with the degree o f a man’s baldness.

Mr. Gross: I  happen to be white; do I  not come under the pro­
visions of this bill?

Mr. Lindsay: I f  the refusal in a hotel to grant access to any 
public accommodation in that hotel is on account o f race, it is 
covered.

Mr. Gross: It  is covered?
Mr. Lindsay: That is correct.”

110 Cong. Rec. 1973.



14

being excluded from any facility within another facility 
which had been opened by the Act.

Upon the record of the unified nature of the Y.M.C.A.’s 
total operation, the above construction of “ establishment” 
in (b )(1) and “holds itself out as serving” in (b )(4) is not 
only consistent with the language of the Act but is required 
by the strong national purpose embodied in the Act. Mr. 
Justice Clark writing for the Supreme Court in Heart of 
Atlanta Motel, Inc. v. United States, 379 U.S. 241, 13 L.ed. 
2d 258, 85 S. Ct. 348 (1964), in upholding the constitu­
tionality of Title II noted that the central congressional 
purpose of the Act was to uphold personal dignity:

“ The Senate Commerce Committee made it quite 
clear that the fundamental object of Title II was to 
vindicate ‘the deprivation of personal dignity that 
surely accompanies denials of equal access to public 
establishments’ . . . S. Rep. No. 872, 88th Cong., 2d 
Sess.” 11

And Mr. Justice Goldberg, in the same case, in a concur­
ring opinion re-emphasized the point:

“ The primary purpose of the Civil Rights Act of 
1964, however, as the Court recognizes, and as I would 
underscore, is the vindication of human dignity and 
not mere economics. The Senate Commerce Commit­
tee made this clear:

‘The primary purpose of . . . [the Civil Rights 
Act], then, is to solve this problem, the deprivation 
of personal dignity that surely accompanies denials 
of equal access to public establishments. Discrimi­
nation is not simply dollars and cents, hamburgers 
and movies; it is the humiliation, frustration and

11 379 U .S. at 250.



15

embarrassment that a person must surely feel when 
he is told that he is unacceptable its a member of 
the public because of his race or color. It is equally 
the inability to explain to a child that regardless of 
education, civility, courtesy, and morality he will be 
denied the right to enjoy equal treatment, even 
though he be a citizen of the United States and may 
well be called upon to lay down his life to assure 
this Nation continues.’ S. Rep. No. 872, 88th Cong., 
2 Sess. 16.” 379 U.S. at 288.

Mr. Justice Clark later in the same term characterized 
the essential purpose of the whole Civil Rights Act of 
1964 as rectifying a wrong tolerated too long. In abating 
a multitude of trespass convictions which occurred before 
the passage of the Act, arising out of efforts to secure ser­
vice at places of public accommodation, he wrote:

“The great purpose of the Civil Rights legislation was 
to obliterate the effects of a distressing chapter of our 
history.” 12

This profound Congressional purpose as recognized by the 
Supreme Court is not well served by the kind of restrictive 
construction given the Act by the court below. The evil 
complained of here is precisely that evil which was to be 
obliterated by the passage of the Act. 13

13 Hamm v. City of Bock Hill, 379 U .S. 306, 315, 13 L.ed. 2d 300, 
85 S. Ct. 384 (1964).



16

n.
The Health and Athletic Facilities of the Raleigh 

Y.M.C.A. Are Not Operated as Private Clubs or Other 
Establishments Not in Fact Open to the Public Because:
(A ) the Facilities Are Available to the Public at Large;
(B ) New Members Are Recruited Annually; (C) the 
Sustaining Element of the Clubs Is The Members’ In­
terest in the Activities Offered Rather Than Their Inter­
est in Associating With Each Other; (D ) the Member­
ship Is Large and Open-Ended; and (E) All Applications 
Are Accepted as a Matter of Course.

By its own constitution the Raleigh Y.M.C.A. offers mem­
bership to “ any person of good moral character who sub­
scribes to the Associations purposes” and who pays the 
annual membership fee. (31 A) This general requirement 
is clearly in line with the stated national goals and pur­
poses of the National Y.M.C.A. and also reflects the his­
tory of the Raleigh Y.M.C.A. in recruiting and accepting 
persons into memberhip. (See Interrogatories 26 and 27, 
25A-26A.) The Court below found this clause in the con­
stitution of the Raleigh Y.M.C.A. only permissive, that 
those with good moral character and the requisite fee are 
simply eligible to apply (174A-175A). It is possible that 
a bona fide private club, not in fact open to the public may 
operate under such a clause. However, here, the Y.M.C.A.’s 
written policy is given full meaning by its actual practice. 
From August 1, 1965 through September 8, 1966 it took 
in 1,295 new members. It rejected only five applications, 
one of whom was the plaintiff.13 Courts in construing Sec- 13

13 Upon the record in this case there is no question that the Y .M .C .A . 
excludes Negroes. See Cypress v. Newport News General and Non­
sectarian Hospital Ass’n, 375 F .2d 648 (4th Cir. 1967). The burden was 
clearly on the Y .M .C .A . to show non-discrimination. Cypress, 375 F .2d at



17

tion 2000a(e) have looked not only to the stated policy 
but also to the practice. United States v. Northwest La. 
Restaurant Club, 256 F. Supp. 151 (W.D. La. 1966); Kyles 
v. Paul, 263 F. Supp. 412 (E.D. Ark. 1967); United States 
v. Jack Sabin’s Private Club, 265 F. Supp. 90 (3 judge 
court) (E.D. La. 1967). Both the stated policy and the ac­
tual practice of the Y.M.C.A. indicate that it is in fact open 
to the public.14

655; Chambers v. Hendersonville City Board of Educ., 364 F .2d 189, 192 
(4th Cir. 1966). Failure to secure a white sponsor could not justify  
refusal. Cypress, 375 F .2d at 655; Hawkins v. North Carolina Dental 
Soc., 355 F .2d 718, 723-724 (4th Cir. 1966). Using a different standard 
in processing Negro applications not used for whites, i.e., questioning 
their “sincerity” is also forbidden by Cypress. Nor does the fact that few 
Negroes have made application for membership in any way suggest a 
failure of proof. Rather, it reflects “a sense of the futility o f such an 
effort in face of the notorious discriminatory policy”  (Cypress, 375 F .2d  
at 653) of the Y .M .C .A .

14 Not only is membership open to all who can afford the membership 
fees but sustaining membership is made available to youth who are deserv­
ing and sponsored by an adult. (See Exhibit 2, 15 3A ).

It is clear that the test of the Section (e) is primarily whether it is 
not in fact open to the public.

“ Senate Discussion, June 13, 1964
Mr. Long of Louisiana: The purpose o f the amendment is to 

clarify this particular section and make it conform to the legis­
lative history.

Its purpose is to make it clear that the test of whether a private 
club, or an establishment not open to the public, is exempt from  
Title I I , .relates to whether it is, in fact, a private club, or whether 
it is, in fact, an establishment not open to the public. It  does not 
relate to whatever purpose or animus the organizers may have had 
in mind when they originally brought the organization or estab­
lishment into existence.

*  »  *

Mr. Hum phrey: Mr. President, we have discussed this amend­
ment with the Senator from Louisiana, the Senator from Illinois, 
and other Senators, as well as the Justice Department.

The modification is, I believe, a good one, and the language is 
more precise. * * •
W e  intend only to protect the genuine privacy of private clubs 
or other establishments whose membership is genuinely selective on 
some reasonable basis.”

110 Cong. Rec. 13697.



18

The general character of the Raleigh Y.M.C.A., as all 
Y.M.C.A.’s throughout the country, is to provide recrea­
tional, health, rooming and other facilities to anyone who 
cares to join. Here membership has generally been ex­
tended to and annually recruited of all persons except 
Negroes.

The fact that fees are charged annually for the use of 
the health and athletic facilities, rather than as the facilities 
are used is primarily a matter of convenience. As it is, 
these facilities operate at a deficit. Such an arrangement 
makes it possible to predict the extent of the annual deficit 
to be made up from the other facilities and the United 
Fund. This arrangement eases problems of administration 
and also probably produces more income. Y.M.C.A.’s gen­
erally follow such a procedure. In addition to the practical 
considerations, Y.M.C.A.’s are thus able to have a large 
constituency of people across the country subscribing to 
their general goals. However, the fact that this kind of 
membership is required does not create the kind of “private 
club or other facility not in fact opened to the public” as 
defined by §2000a(e), because it is clear that the member­
ship is freely available to all persons who apply and pay 
the requisite fee. (Article II, Section 1, 31A.)

The size and open-ended nature of defendant are impor­
tant factors in determining whether it is a private club 
or not in fact open to the public. Defendant had 2,791 
members as of December 31, 1965. During the year 1965, 
it took in 1,327 new members. From August 1, 1965 through 
September 8, 1966, it accepted 1,295 new members (25A- 
26A). A  private club or establishment not in fact open to 
the public does not have such open-ended membership. 
Bradshaw v. Whigman, 11 Race Rel. L. Rep. 934, 936 
(S.D. Fla. 1966); see Castle Hill Beach Club v. Arbury, 
2 N.Y. 2d 596, 162 N.Y.S. 2d 1, 142 N.E. 2d 186 (1957), 
modified, 1 App. Div. 2d 943, 950, 150 N.Y.S. 2d 367 (1956),



19

aff’d, 2 N.Y. 2d 596,142 N.E. 2d 186, 162 N.Y.S. 2d 1 (1957); 
Note, 45 N.C. L. Rev. 498, 502 (1967).

Other factors which have been considered in determining 
the “privateness” of private clubs include: whether the 
principal sustaining element in the club is the members’ 
interest in and association with one another or the com­
mon interest in the activity of the sponsors; the extent to 
which the members are actually acquainted with one an­
other; whether the allegedly private facility is operated 
in connection with another operation admitted to be a pub­
lic accommodation. Note, 45 N.C. L. Rev. 498, 503 (1967); 
Evans v. Ross, supra; Castle Hill Beach Club v. Arbury, 
supra.

Here, in addition to the lack of limitation on members, 
membership applications are passed on by a small three or 
four-man committee (Dep. of Eugene B. Phillips 68A- 
71A). Membership drives are conducted annually for re­
newal of old memberships and the solicitation of new mem­
bers (Dep. of Eugene B. Phillips 48A-50A, 53A-55A; An­
swers to Interrogatories 26 and 27, 25A-26). The principal 
sustaining element is clearly the services and accommoda­
tions offered by defendant rather than interests among 
members in associating with one another. In fact, non­
members are used in soliciting members and admittedly 
participate in certain functions, e.g., summer camps. Such 
general, open-ended procedures do not meet the require­
ments of §2000a(e) of a “private club or other establish­
ment not in fact open to the public.” See generally Brad­
shaw v. Whigman, supra; United States v. Clarksondale 
King (& Anderson Co., 10 Race Rel. L. Rep. 1762 (N.D. Miss. 
1965); United States v. Northwest La, Restaurant Club, 256 
F. Supp. 151 (W.D. La. 1966); United States v. Jack Sabin’s 
Private Club, 265 F. Supp. 90 (E.D. La. 1967); Kyles v. 
Paul, 263 F. Supp. 412 (E.D. Ark. 1967); Evans v. Ross, 
supra; Castle Hill Beach Club v. Arbury, supra; Johnson



20

v. Auburn & S. Elec. R.R. Co., 222 N.Y. 443, 119 N.E. 72 
(1918). Indeed, the public nature and role of defendant 
are clearly stated in defendant’s constitution and in the 
practice, policy and procedure of Y.M.C.A.’s generally. See 
also Hawkins v. Charlotte Young Men’s Christian Associa­
tion, 11 Race Rel. L. Rep. 424 (W.D.N.C. 1965). The pub­
lic nature of defendant equally distinguishes it from the 
private lodge, fraternity or country club or association en­
visaged by Section 2000a(e).

CONCLUSION

For the foregoing reasons, appellant respectfully sub­
mits that the decision of the lower court dismissing the 
case should be reversed and that the Young Men’s Chris­
tian Association of Raleigh, North Carolina, Inc. should 
be permanently enjoined as prayed for by the plaintiff 
below.

Respectfully submitted,

Conrad 0 . Pearson

203% East Chapel Hill Street 
Durham, North Carolina

Samuel S. Mitchell

Romallus O. Murphy

126% East Hargett Street 
Raleigh, North Carolina

J. L eV onne Chambers

405% East Trade Street 
Charlotte, North Carolina

Jack Greenberg

Michael Meltsner 
10 Columbus Circle 
New York, New York 10019

Attorneys for Appellant



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