DIY History | Transcribe | Campus Culture | Burlington Commission on Human Rights, 1964-1965 | Iowa Law Review, "State Civil Rights Statute: Some Proposals" Page 1102

Transcribe
Translate

Burlington Commission on Human Rights, 1964-1965

Iowa Law Review, "State Civil Rights Statute: Some Proposals" Page 1102

1102     IOWA LAW REVIEW     [Vol. 49

maintain required by this section of the proposed statute will be the "public" or "private" nature of any particular establishment. The problem is "to acknowledge the legitimacy of certain interests in exclusive association which renders a place distinctly private, without at the same time swallowing up the rule that there shall be no discrimination in places of public accommodation."128
   It is impossible to determine the scope of this "private club" exemption by listing kinds of establishments, such as golf courses or swimming pools, for the legitimate exclusiveness of such clubs is more a function of their mode of operation and internal order than of the activity they sponsor. A hotel is usually a place of public accommodation. Yet, if it is operated exclusively by and for the dues-paying members of a particular club, it should not have to carter to the rest of the world. Even if the private club should use race, religion, or national origin as a criterion for choosing its members, the assertion of these associational preferences in this relatively harmless context can be legitimately respected in any balancing of interests.
   Nevertheless, not every establishment purporting to be a private club merits an exemption from the statute. There will be some close cases in which a real difficulty exists in determining whether a particular facility "caters ... to the general public" or "is by its nature distinctively private." Even so, various factors can properly be examined in order to determine whether the particular establishment involved is a bona fide private club deserving an exemption from the statute, or an establishment catering to the public at large and therefore within the act's coverage.129
   The basic inquiry is the extent to which the establishment in question actually exercises any substantial control over its clientele or membership. It cannot be considered 'distinctively private" if its membership is in fact wide open. The method and criteria for the selection of members, and the kind and number of memberships available, are therefore very significant. Also of  importance will be the media and approach used by the facility to solicit its patrons.
   Information about various other factors will also be helpful. An examination of the corporate charter, by-laws, and other documents, as well as the terms of any state licenses required for its operation, may indicate whether the facility is meant to be open to the public or to be "distinctively private." The kind of telephone listing utilized by the establishment in the classified directory, and the type of tax returns it files, will also be of some evidentiary weight.
_________________________
128 Van Alstyne, supra note 108, at 688. (Emphasis added.)
129 See generally KONVITZ & LESKES, op. cit. supra note 89, at 183-90; Van Alstyne, supra note 108, at 689-90.

Saving...

1102 IOWA LAW REVIEW [Vol. 49 maintain required by this section of the proposed statute will be the "public" or "private" nature of any particular establishment. The problem is "to acknowledge the legitimacy of certain interests in exclusive association which renders a place distinctly private, without at the same time swallowing up the rule that there shall be no discrimination in places of public accommodation."128 It is impossible to determine the scope of this "private club" exemption by listing kinds of establishments, such as golf courses or swimming pools, for the legitimate exclusiveness of such clubs is more a function of their mode of operation and internal order than of the activity they sponsor. A hotel is usually a place of public accommodation. Yet, if it is operated exclusively by and for the dues-paying members of a particular club, it should not have to carter to the rest of the world. Even if the private club should use race, religion, or national origin as a criterion for choosing its members, the assertion of these associational preferences in this relatively harmless context can be legitimately respected in any balancing of interests. Nevertheless, not every establishment purporting to be a private club merits an exemption from the statute. There will be some close cases in which a real difficulty exists in determining whether a particular facility "caters ... to the general public" or "is by its nature distinctively private." Even so, various factors can properly be examined in order to determine whether the particular establishment involved is a bona fide private club deserving an exemption from the statute, or an establishment catering to the public at large and therefore within the act's coverage.129 The basic inquiry is the extent to which the establishment in question actually exercises any substantial control over its clientele or membership. It cannot be considered 'distinctively private" if its membership is in fact wide open. The method and criteria for the selection of members, and the kind and number of memberships available, are therefore very significant. Also of importance will be the media and approach used by the facility to solicit its patrons. Information about various other factors will also be helpful. An examination of the corporate charter, by-laws, and other documents, as well as the terms of any state licenses required for its operation, may indicate whether the facility is meant to be open to the public or to be "distinctively private." The kind of telephone listing utilized by the establishment in the classified directory, and the type of tax returns it files, will also be of some evidentiary weight. _________________________ 128 Van Alstyne, supra note 108, at 688. (Emphasis added.) 129 See generally KONVITZ & LESKES, op. cit. supra note 89, at 183-90; Van Alstyne, supra note 108, at 689-90.