"Discrimination" at Private Clubs in Michigan

In the hyper-sensitive 1990's, not even special tee times on private golf courses can survive the attention of the Michigan Legislature. What was conceived as a protection for women in Michigan country clubs has become another entry on a long list of meddlesome and ultimately counterproductive restrictions on personal freedom.

First Amendment protections of the freedom of association have a long and proud history in America. Private groups from the Boy Scouts and the Congressional Black Caucus to the Ku Klux Klan and the Man-Boy Love Association are exempt from anti-discrimination laws. This tolerance for organizations that base membership on race, sex, or creed has generally been a source of strength in our nation, despite the reprehensible groups that sometimes arise.

In 1992, however, the legislature approved a bill introduced by Senator Lana Pollack known as Public Act 70 (P. A. 70). This law amended Michigan's Elliott-Larsen Civil Rights Act by including as a "place of public accommodation" all private Michigan golf, yachting, athletic, dining, and country clubs, thereby prohibiting these groups from making organizational decisions based on race or gender.

P. A. 70 also required that all adults using the club under a single membership (such as a husband and wife) be given equal access to club facilities. The rationale was that private clubs often set aside certain times for "shareholding" members-the members who pay the membership fee-to use certain club facilities. The majority of shareholders being men, it was mostly men who were using restricted tee times or special dining hours, for example.

If this law is enforced according to its original intent it would be counterproductive, harming the very groups it was intended to protect. People join these clubs for exclusive, high quality service. The effect of prohibiting special time restrictions is to either overcrowd the facilities or make them inaccessible to certain members during times of high demand. To comply with the spirit of the law, clubs can proceed in one of two ways.

First, the clubs can simply eliminate access by non-shareholders. This would, of course, eliminate joint use by a spouse, and have the effect of denying many women use of the facilities.

The alternative is simply to open the club to all adult family members. This option would result in overcrowding of club facilities and a lower quality of service and accommodation. Most likely, some members would leave for clubs that provide more exclusivity to the shareholder.

Fortunately for the clubs and their members, several have apparently been able to comply with the law by creating different types of memberships. Under this arrangement, a shareholder has one type of membership, the spouse another, and any children yet a third or fourth, depending on age. Separate restrictions can be placed on each separate class of member. Senator Pollack believes this arrangement is legal. If this interpretation of the law is correct, however, P.A. 70 will have done nothing except encumber clubs with this paperwork process.

Other clubs have established regulations that allow only one designated person per membership who may use certain facilities at set times. The members may designate different people every month. This action is another attempt to deal with the law and it too seems to have received a nodding approval. Again, however, the effect on the club is to burden it with red tape with little change in member use.

Professor Steve Safranek of the University of Detroit Law School argues, "To the extent P.A. 70 makes it difficult for private clubs to operate, it is an annoyance. To the extent that it attempts to regulate truly private clubs with respect to discrimination, it is unconstitutional." No matter what the Michigan statute may say, states may not prohibit truly private clubs from discriminating because they are protected by the First Amendment of the U.S. Constitution. The distinction between a "place of public accommodation" and a private club is an important one, and may very likely form the basis for a constitutional challenge of P.A. 70 in the future.

Legislation like P.A. 70 is always a test of the depth and political sophistication of a governing body. A seductive call to end apparent discrimination is one of the sweetest sounds to the modern American with a social conscience. Unfortunately, too many of our elected officials lack respect for the rights of citizens to associate in the manner they choose.

When intolerance for something as benign as a special tee time for club members brings an attack on the fundamental right of private association, we should be concerned that our legislators evidence a failure to appreciate what freedom is all about.