The Importance of the Nominating Committee: How to Avoid Unnecessary Management Crises.
February 2, 2021Spoiling Golf at a Private Club
June 18, 2021Equality, Diversity, Inclusion, and Private Clubs1
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Much media and rhetoric have been bandied about respecting the terms or concepts “equality”, “diversity”, “inclusion” and their benefits. It may be useful to raise several questions concerning respecting the origin and utility of this media and rhetorical discussion. What, if anything, do these concepts contribute to the well-being and mission of the private social and recreational club? What is meant by diversity in the context of a private club? Is “diversity” a meaningful end unto itself or merely a current passion of contemporary, progressive social doctrine? The same questions present themselves as to “equality” and “inclusion”.
We address herein these three concepts as relating to member-owned private clubs. The so-called proprietary or corporate-owned clubs are not addressed herein.
Equality.
“Equality” in the context of a private club may be the most comprehensive notion of the three concepts to address. In a private, member-owned club, all members at first blush are presumably entitled to be treated equally by the club and its officers, directors, and staff. That is, assuming the members are of the same classification, e.g., golf privileged, they should have equal access to tee reservations. However, at numerous clubs with historical customs, e.g., respecting group golf course tee time reservation systems, “equal” access may be an illusion. That is, preferred tee times may be set aside for the same members year after year. As golf course access became tighter during the 2020 pandemic, complaints about equal access understandably arose. The clubs that confronted these complaints used different responses.
Other areas of the private club present similar equality issues. If all members are entitled to use the dining facilities on a first-come (or reservation) basis, then should a member who violates a “no-tipping” policy receive better service and seating preference than a member who observes the policy? Should a club officer be able to get an event reservation if the reservation list is closed with a waiting list that does not include the officer?
Of course, the foregoing illustrations are not what is now being bandied about when a discussion centers on “equality” as illustrated by the Equality Act2 adopted in the U.S. House of Representatives and pending before the U.S. Senate. The Act’s purported purpose is “To prohibit discrimination on the basis of sex, gender identity, and sexual orientation, and for other purposes.”
In its present form, the Act amends the Civil Rights Act of 1964, Titles II, III, IV, VI, VII, and IX. Title II (public accommodations), and VII (employment) are of particular relevance to our discussion. If the club is a truly or distinctly private club, it may escape the mandates of Titles II, and VII or a state or local ordinance emulating Title II.3 Numerous private clubs have already accepted new members reputed to have or espousing sexual orientation or identity different from the norm, (collectively, “LBGTQs”). Some clubs have not only accepted LBGTQs persons as members but in at least one case elected one of them as a club president. Another club was tentative about admitting an LBGTQ fearing it didn’t want to become the “go-to” club for LBGTQs in the area.
These examples illustrate that it doesn’t take legislation to get private organizations to become more heterogeneous. If the membership is primarily comprised of liberal thinking millennials whose formative years exposed and indoctrinated them into tolerance and acceptance of a heterogeneous society, then it may be admitting LBGTQs to club membership is a non-issue.
However, if as is most likely, the club is controlled and mostly populated by older Gen X members the tolerance for admitting LBGTQs may be much less. This absence of tolerance may emanate from a desire to preserve the homogeneity of its constituency. If the club desires to remain so, then it will be incumbent upon it to establish, and maintain truly private status to invoke exclusion from a legislative mandate for including LBGTQs in its member roster.
Regardless, a member-owned private club is wise to establish and maintain distinctly private status if only because if it desires to preserve the power to exclude a person from membership or access to its facilities, an excluded person may claim a violation of the Equal Rights Act, if and when adopted, or a similar state law whether or not the LBGTQ status was evident or known to the Club.
Many putative private clubs unwittingly or otherwise violate the requirements for Constitutional private status. They indiscriminately allow for unaccompanied by a member, non-member use of their facilities; they advertise the availability of their facilities through public media in connection with fundraisers and other events; they lack a formal mechanism to propose, process, investigate, and evaluate prospective members;4 and omit or transgress other indicia of distinctly private status.
It is beyond the scope of this article to expound upon what it takes to establish a truly or distinctly private status for purposes of avoidance of the application of Titles II, and VII of the Civil Rights Act of 1964, (whether or not amended by the Equal Rights Act), or a similar state or local law. Some examples are illustrated by the material listed in footnote 5.5 A private status legal audit may be helpful to support a club’s contention it is a truly private club and entitled to the Constitutional freedom of association and expression inherent in the 14th Amendment.
Likewise, a review of the relevant case law6 is useful if the Club is unfamiliar with the privacy principles and facts needed to support distinctly or truly private status. While Constitutional freedom of association should theoretically always trump statutory freedom from perceived discrimination, (statutes being of a lower order of legislation than the Constitution), courts differ on the importance of and priority of the various criteria necessary to establish freedom of association. Some courts also entertain a balancing of rights to reach a decision.
“Equality” is a much-misunderstood concept. Thomas Jefferson in the Declaration of Independence announced “All men are created equal”. This quotation has been said to have meant “all free, property-owning males are created equal”.7 But as Brundage explains further,
Equality is hard to define because its meaning keeps changing. Jefferson’s restrictive definition, that “people are of equal moral worth, and as such deserve equal treatment under the law”, made distinctions for free men vs. slaves, men vs. women, property owners vs. debtors, et cetera [citation omitted]. On the one hand, most Americans’ notion of legal equality makes no such distinctions.8
Equality is not something that a government can grant or deny a person or a group of citizens. The objective, scientific, and irrefutable fact is we are all more or less differently endowed physically, mentally, emotionally, and genetically. I cannot hope or could not have expected to compete with a Leonardo DaVinci, Amadeus Mozart, Immanuel Kant, Michael Jordan, Tiger Woods, or any of the historical or contemporary polymaths and genetically superb athletes.
However, equality of economic and educational opportunity, access to health care, and similar society ambitions for its citizens are all to some degree achievable societal objectives. But even these objectives face practical and objective limitations. It is not realistic or advantageous for a person with an IQ of less than 100 to matriculate at a university with an average admissions standard of over a 700 SAT score.
The relevance of these observations to private club governance is to be found in the expectations of the club’s members and its mission. Is the constituency of the club comprised of largely higher educated, economically advantaged, and socially compatible members? Are they members because they sought inclusion in an institution of persons of similar tastes, interests, and societal outlook?
Or is the constituency of a different genre, e.g., of social reform-minded, eager proponents of equal opportunity for everyone regardless of social standing, indifference towards intermingling with members who are different from each other respecting their social and political values or expectations? We recall one member candidate who responded to the question “what interests you in joining our club”, by pointing out the window to the golf course. The proposal to admit the candidate was declined. It was apparent the candidate wasn’t interested in comingling with other members or in the club’s social activity and lacked social skills in responding to the question in a verbal, friendly manner.
Numerous private clubs are most active in promoting local charities and allowing local high school golf teams to use their golf course for practice and matches. However, these same clubs are most circumspect concerning the scrutiny given member candidates for admission. Reputation for good character, perceived compatibility with the existing membership, and congeniality, are prominent and necessary considerations. Clubs are known to avoid the admission of candidates with criminal convictions especially those involving moral turpitude. Clubs do not need to be social reformers, a goal outside of their mission.
Diversity.
Of the many private clubs, some have knowingly accepted the occasional LGBTQ membership candidate. Other clubs, believing that LGBTQ persons don’t “fit” their membership profile have demurred. In the simplest, generic definition, “diversity” means a range of different things.
“In the social science use of the word, ‘diversity’ refers to both an obvious fact of human life—namely, that there are many different kinds of people—and the idea that this diversity drives cultural, economic, and social vitality and innovation.”9
This source of the foregoing quotation continues to state, “. . . decades of research suggest that intolerance hurts our well-being—and that individuals thrive when they are able to tolerate and embrace the diversity of the world.”10 That is, “diversity” is allegedly inconsistent with tolerance. It promotes intolerance. We question the objectivity of this “research” and its conclusion. That is, are there not societies, associations, and clubs that are not diverse but yet tolerant and empathic of other people who do not fit their profile? We know of several from our own experience.
A further quote from the same source is most useful.
“In North America, the word ‘diversity’ is strongly associated with racial diversity. However, that is just one dimension of the human reality. We also differ in gender, language, manners and culture, social roles, sexual orientation, education, skills, income, and countless other domains. In recent years, some advocates have even argued for recognition of “neurodiversity,” which refers to the range of differences in brain function.”11
Our philosophical training informs us social norms and tenets are posited concepts not necessarily logical, empirical, or objective ones. There can be no conclusive proof homogenous societies and their members, e.g., social and recreational private clubs, are intolerant of persons whose profile is different than theirs. To maintain to the contrary is but sophistry.
The hallmark, indeed requirement of a truly private club, is that its member qualifications specifically include congeniality and compatibility with existing members. It must exist solely for the social and recreational enjoyment of its members, chosen for their congeniality and compatibility. Its very purpose is to produce an exclusive membership.12 It is required to have a plan or purpose of exclusiveness.13 Its antithesis is to produce an “inclusive” membership based upon diversity.14
Likewise, truly private social and recreational club members possess common social, educational, and cultural backgrounds. That is, they are homogeneous, not diverse.
The foregoing recitation of truly private club characteristics does not preclude the admittance and assimilation of prospective members who may be of a different color, creed, national origin, sex, or sexual preference, than most existing members. It does mean they must evidence likely congeniality and compatibility with the existing membership. It also means they should share a common social, educational, and cultural background of most existing members.
We know of very prestigious private clubs that have admitted members with some or all of the categories listed in the preceding paragraph, i.e., color, creed, national origin, sex, or sexual preference . The issue presented for the admissions committee and governing board is not how to show diversity but to determine a candidate’s likely compatibility and congeniality. The purpose of vetting is to preserve the purpose of exclusiveness.
If demonstrated compatibility and congeniality is evident in a prospective member candidate, we believe the candidate is most likely to be accepted as a new member at most all private clubs today regardless of other profile characteristics which differ in the main with the existing membership. Some years ago it was our observation being of a different race or national origin than the predominant existing membership constituency might have been or was a barrier to acceptance. However, today we observe there is generally no barrier. At our own social and recreational club, we now have members of differing races, religious identity, and national origins and long have had the latter.
We submit having members of differing races, religious identity, national origin or other profile differentials is not a measurable good in absolute or objective moral terms. For a private club, the membership profile is what the members desire it to be. Constitutionally, if the club is truly private, that principle is legally justified.15 Whatever a non-member of that club believes is right or wrong, is irrelevant.
If there is any validity to the notion private clubs as a general rule lack diversity, it is likely in the economic sense. That is, at numerous clubs disposable wealth and social standing remain a constant test of acceptability, the former usually evidenced by the size of the initiation fee and dues. Some clubs when new had modest joining fees and dues now tout initiation fees approaching or even exceeding $100K and annual dues and mandatory fees ranging upwards of or exceeding $20K. In the sense that such a club continues to have older members of lesser wealth than the newer, majority of members, however, the club may be said to be at least, economically diverse.
Inclusion.
Private clubs by nature are “exclusive” not “inclusive”. But these two terms are not necessarily contradictions. A tax-exempt recreational and social club under I.R.C. 501(c)(7) is required to maintain “exclusivity” in the sense its facilities are reserved for the exclusive use of its members, their families, and their (presumably and preferably “accompanied”) guests. This does not mean within the club, there is not an objective to make members feel inclusive among the various programming and activities offered to all members of the same classification. Once admitted, usually, efforts are made to make the newly admitted member comfortable by being introduced to and given the opportunity to join group activities.
Conclusion.
It is not usually the mission of a private club to be a leader in general societal change or improvement. The goal of a truly private club is to provide its members, not the outside world, with a compatible, congenial, and friendly environment for social and recreational intercourse. It serves as a retreat from the helter-skelter of everyday life. While this goal may seem selfish or antithetical to persons who do not belong to the club, it is built into our legal and social framework as a free society.
1.This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice or the formation of a lawyer/client relationship. The author of this blog is not certified by any state agencies or boards of legal specialization. This blog may constitute attorney advertising in some jurisdictions.
2.The act encompasses “SEC. 3. Public accommodations.(a) Prohibition on discrimination or segregation in public accommodations.—Section 201 of the Civil Rights Act of 1964 (42 U.S.C. 2000a) is amended— (1) in subsection (a), by inserting “sex (including sexual orientation and gender identity),” before “or national origin”; and(2) in subsection (b)— (A) in paragraph (3), by striking “stadium” and all that follows and inserting “stadium or other place of or establishment that provides exhibition, entertainment, recreation, exercise, amusement, public gathering, or public display;”; . . . ”(b) Prohibition on discrimination or segregation under law.—Section 202 of such Act (42 U.S.C. 2000a–1) is amended by inserting “sex (including sexual orientation and gender identity),” before “or national origin”. H.R.5 — 117th Congress (2021-2022) See https://www.congress.gov/bill/117th-congress/house-bill/5/text
3. EEOC v. Chicago Club, 86 F. 3rd 1423 (7th Circuit 1996)
4. See, Gillespie v. Lake Shore Golf Club, Inc., 56 Ohio L.Abs. 222, 91 N.E.2d 290 (Ohio Ct.App. 1950); United States by Katzenbach v. Jack Sabin’s Private Club, 265 F. Supp. 90 (E.D. La. 1967); and Wright v. Cork Club, 315 F. Supp. 1143 (S.D. Tex. 1970).
5. See, e.g., https://somerslawfirm.org/blogs/When Does Unaccompanied Nonmember use of Private Club Facilities Risk Loss of Private Status?; Private Status Remains Alive and Well; and The Private Club and the Supreme Court Decision in Obergefell v. Hodges.
6. See Louisiana Debating and Literary Association v. City of New Orleans Stratford Club, 42 F.3d 1483 (5th Cir. 1995) cert. denied 515 U.S. 1145, 115 S.Ct. 2583, 132 L.Ed.2d 832 (1995) holding a New Orleans ordinance as applied to the clubs is unconstitutional where the Clubs are private entities protected by the First Amendment; and the ordinance’s procedures interfere impermissibly with that protection. “While the right to intimate association is not absolutely protected from state regulation, state [or local] regulation of intimate association is subject to strict scrutiny, the [government] must show that: (1) the action serves a compelling state interest which (2) cannot be achieved through “means significantly less restrictive of one’s associational freedom.” Behm v. Luzerne Cty Children & Youth Policy Makers, 172 F.Supp.2d 575 (M.D. Pa. 2001) citing Louisiana Debating.
7. https://www.mattbrundage.com/publications/jefferson-equality The meaning of Thomas Jefferson’s “all men are created equal” – Matt Brundage
8. Id.
9. https://www.greatergood.Diversity Definition | What Is Diversity (berkeley.edu)
10.Id.
11. Id.
12. See Sullivan v. Little Hunting Park, 396 U.S. 229 (1969); Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987)
13. United States v. Landsdowne Swim Club, 713 F. Supp. 785 (E.D. Pa. 1989), aff’d, 894 F.2d 83 (3rd Cir. 1990)
14. Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987)
15. New York State Club Association, Inc. v. City of New York, 487 U.S. 1 (1988); Louisiana Debating & Literary Ass’n v. City of New Orleans, 42 F.3rd 1483 (5th Cir. 1995) cert. denied, 1995 WL 26853 (U.S. 6/19/95); EEOC v. Chicago Club, 86 F. 3rd 1423 (7th Circuit 1996); and Lobel v. Woodland Golf Club of Auburndale, Civil Action No. 15-13803-FDS (D. Mass 2017)
