Private social clubs have endured a great deal of criticism in the past several decades for two reasons: first for the use of the word 'social' which many people consider an affectation, and second for the continued insistence of many clubs on being considered 'private.' Neither of these criticisms is entirely justified. 'Social' is merely the proper word for a convivial group of people, and although 'private' has in some cases has been used as a pretext for outright wrongful discrimination, but it doesn't necessarily mean that.

All private clubs have a right to select their own members, just as individuals have the right to select their own friends. The American Yacht Club was founded in the nineteenth century by financier Jay Gould because members of the New York Yacht Club would not accept him for membership.

No one hesitates to compliment the new bride on her 'discriminating' taste in china, and every parent urges his or her children to 'be discriminate' in the choice of their associates. So what's wrong with 'discrimination?' Nothing. And everything.

The discrimination we so often read about is actually what the United States Supreme Court has called 'invidious class discrimination:' it means the exclusion of an entire group of people for no other reason than their 'class' especially when that 'class' is based on race, gender, religion, ethnicity or any other arbitrary standard which has no legitimate purpose. Can you choose not to have dinner with people who wipe their noses on their sleeves? Certainly. Can you pass a law excluding all Yahoos from restaurants because you once sat across from an Yahoo who wiped his nose on his sleeve? Certainly not. (Those who are extraordinarily sensitive on the subject of discrimination should note there are no 'Yahoos' in the original sense of the word. The name comes from the classic work, Gulliver's Travels by Jonathan Swift. Yahoos were a subjugated race who lived in the land of the Houynhnms. The Yahoos were viewed by the Houynhnms as the lowest class of society.)

Taking that example from one extreme to the other reveals the differences between the concept a 'private' club and how it differs from a 'place of public accommodation.' Can you refuse to invite any Yahoo to your home for dinner because you once had an unpleasant experience with a Yahoo who wiped his nose on his sleeve? Again, you certainly can. It's your home. What if you and your spouse have dinner once a week with two other couples in each other's homes? Can you keep all Yahoos out of your group for the same reason? Sure. Now what if you expand your cozy little clique to the entire block? What if you start soliciting for new members? And then what if the informal block club starts to collect dues and receives a federal tax exemption? Then what if one of the members of your dinner group - an insurance agent - begins offering discounts to everyone who is a member of 'The Block Club?' Can you legitimately exclude that one Yahoo family who recently moved in down the street? Can you exclude them merely because they are Yahoos? Remember, there a very few 'bright line' rules in the law. Legal problems, like coffee, slowly slip from scalding hot to disgustingly cold. Few people have difficulty distinguishing the extremes; lawsuits come from the area in the middle.

The questions raised concerning 'The Block Club' and the fate of the newly-arrived Elbonians are not new; they were considered and answered in a 1983 case from the New York Court of Appeals called United States Power Squadrons v. State Human Rights Appeal Board. (The case first went to the Appellate Division of the New York Supreme Court, which also ruled in favor of the defendant, State Human Rights Appeal Board. The opinion of the Appellate Division can be found at 84 A.D.2d 318 and 445 N.Y.S.2d 565. The Court of Appeals opinion can be found at 59 N.Y.2d 401, 452 N.E.2d 1199, 465 N.Y.S.2d 871). Check with your local law library.

"It all started in 1973," said New York's highest court, when three women attempted to join three local units of United States Power Squadrons. They met all of the qualifications of membership except one: they were female and membership was open to males only. In other words, the ladies were that year's Yahoos.

The ladies brought an action in the New York State Division of Human Rights, which ruled that United States Power Squadrons was as a 'place of public accommodation' under New York law and it was therefore prohibited from discriminating on the basis of gender. The Squadron then appealed to the courts.

The Squadron first claimed it was not a 'place of public accommodation' as that term was defined in New York law because it did not have its own 'place.' 'Wrong,' replied the Court. "Public accommodations are customarily supplied at fixed places, but not necessarily so. * * * It is a term of convenience, not limitation." Home delivery services and services performed in the customer's home may be places of public accommodation.

'Well, then,' argued the Squadron, 'the law doesn't apply to us because we're a private club.' 'Wrong again,' responded the Court. Private clubs don't solicit for members; in fact, "The essence of a private club is selectivity in its membership. It must have a 'plan or purpose of exclusiveness.' * * * Organizations which routinely accept applicants and place no subjective limits on the number of persons eligible for membership are not private clubs." The Court went on to explain that in determining whether a club is private, it would consider whether the club (1) has permanent machinery established to carefully screen applicants on any basis or no basis at all; i.e., membership is determined by subjective, not objective factors; (2) limits the use of the facilities and the services of the organization to members and bona fide guests of members; (3) is controlled by the membership; (4) is nonprofit and operated solely for the benefit and pleasure of the members; and (5) directs its publicity exclusively and only to members for their information and guidance.

'And, by the way,' opined the Court, 'there are lots of other things private clubs don't do: they don't teach safe boating to the public; they don't volunteer time to teach in public schools or prisons; they don't enter into agreements with the federal government to correct their charts; they don't act as agents of the Department of Environmental Conservation; and they don't get tax exemptions for their members' dues.'

'Well,' argued the Squadron, 'this is still America, and under the First Amendment we can freely associate with whom we choose.' 'Really, really wrong,' responded the Court. "It is much too late in the day to challenge the constitutionality of civil rights legislation generally," and we're not going to allow you to challenge the way it applies to you. "Private discrimination may be characterized as a form of freedom of association under the [First] amendment, but 'the constitution places no value on it'" and you are not "entitled to affirmative protection to further [your] discriminatory practices."

In short, in 1983 the highest court in New York State found Untied States Power Squadrons to be 'a place of public accommodation' which could not discriminate in selecting its members from among the people who met the minimum requirement of passing the safe boating examination.

This case should not in any way be taken as a criticism of United States Power Squadrons, which is an outstanding nationwide organization of powerboaters and sailors. U.S.P.S. is made up of some 50,000 public-spirited individuals who have provided and continue to provide valuable services to their fellow-citizens. Nor were they doing anything that wasn't being done by many other clubs at that time. The Kiwanis Clubs, Rotary Clubs, and Jaycees all had similar policies and all ended up with the same result.

But the Power Squadrons case - like the Kiwanis, Rotary and Jaycees cases - serves as a warning to all clubs to 'be what you are.' If you are a national, public-service club which exists primarily for the benefit of the public as well as your own members, take pride in that distinction and follow the rules laid out for 'public accommodations.' If, on the other hand, you are a 'distinctly private' club that wants to remain that way, be private: don't enter into agreements with the government to teach safe boating, or run blood drives, or lease underwater land, or obtain tax benefits for your members. Treat the club as an extension of your living room. And remember, if the question arises, the burden of proving your 'distinctly private' status is on you.

- from Yachting Customs and Courtesies, Joseph A. Tringali, Copyright 2002.

Joseph A. Tringali is an attorney at law, consultant and author of "I Was That Baby," and "Yachting Customs and Courtesies." He was Mayor of North Palm Beach, and currently serves as a Florida Assistant Attorney General. He obtained his Juris Doctor degree from the University at Buffalo in 1970. His website is http://www.josephatringali.com

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