Transcript for the Piece Audio version of The Jonathan Club


Peter Douglas: I think the Jonathan Club is one of those stellar examples of what a good law, applied by good people can do.

Nancy Cave: Even after 40 years there are ways that we are using this law to address situations that I think no one anticipated at the time of drafting.

You’re listening to “Stories of the Coast.” I’m your host, Robin Pressman.

Una: And I’m Una Glass, Executive Director of Coastwalk California. Coastwalk offers this series to celebrate the 40th anniversary of Proposition 20, by highlighting stories of how the California Coastal Act has protected our public beaches and trails. Because the coast is never saved, it’s always being saved.

Robin: It’s safe to assume that the authors of the Coastal Act never envisioned the law being used to end discrimination at an exclusive, all white, men’s social club. But that’s exactly what happened in 1985 in a case that went all the way to the U.S. Supreme Court. In this episode, we travel to Santa Monica Beach in Los Angeles, to take a look at one of the Coastal Commission’s most unusual accomplishments, and consider the deeper meaning of “public access.” Here’s former Coastal Commission Director, Peter Douglas.

Peter Douglas—The Jonathan Club was a private club that was formed on the beach in Santa Monica-- the most popular beach in the state. The rub is that it was on public property. And there were decades of arguments and fights and litigation about how much of this is really on public land. And it finally came to a head when the Jonathan Club wanted to expand. And I couldn’t believe when I saw they wanted to expand onto public property, public beach property

ROBIN-But it wasn’t just the fact that the Jonathan Club wanted to build their paddle tennis courts and a parking lot for their private use on a public beach. Allegations that the Club excluded women and minorities had circulated for years. Reports that they told prospective members that “blacks and Jews were not welcome,” and refused to allow the Air Force Academy Choir to perform at the facility because some of the singers were African-American, had prompted former City councilwoman Cheryl Rhoden to vow that the city would not give “one grain of sand” to the Jonathan Club unless it changed its membership policy. But in 1984, the State Lands Commission agreed to lease the Jonathan Club some state-owned beach for its expansion. All they needed was a permit from the Coastal Commission. And that’s when things got interesting.

My name is Nancy Cave, I work for the California Coastal Commission, and I was the staff member assigned to the Jonathan Club permit request in the 1980s.

Santa Monica state beach is the most popular beach in the state of California and it was at that time, and the Commission had great concerns over losing available space for the public.

Many of us were opposed to giving up any sandy beach whatsoever. And the only way we could see it being consistent with the law from the staff level was to be assured by the club that no one was prevented from being members here.

Nancy Cave- I felt very strongly that we should be opening up the membership of this club. I can tell you that as a woman, I was very offended by this club’s policies, this club’s practices. We did an onsite meeting in Santa Monica and I went with two other women from the Commission, and when we arrived at the club they tried to have us go in a women’s entrance. I of course walked right through the front door and I probably was acting like I didn’t see them gesturing toward the side door by the kitchen. And we had our meeting in the main dining room and not in the side dining room where I could see women sitting.

ROBIN—Offensive membership practices are one thing. Whether the Coastal Commission could do anything about it was another. Both Cave and Douglas wanted to find a way to leverage the Club’s permit to bring an end their historic discrimination. The State Coastal Act protects public access, sensitive habitat, agriculture and scenic views. The law gives the Commission broad authority over development, but could it be used to end discrimination at a private club? It was a bold and radical idea, and not without risk. If the Commission got sued, and lost, the decision could weaken other policies in the Coastal Act. Douglas and his staff thought it was worth a chance. The next step was to get their legal team on board. But when they met with State lawyers to discuss the idea, he knew faced an uphill battle.

NC-It was our legal representatives from the Attorney General’s office that were concerned about the precedent and what this might do. And they were concerned that we would lose in a court action. I honestly believe that.

PD But my position was there’s a greater law. And that law is the Constitution of the United States. And I couldn’t believe some of these attorneys who otherwise are very smart, ethical, arguing with a straight face why they should be able to discriminate on who gets to come and use public property. It was outrageous.

ROBIN-Douglas had a legal theory. He wanted to use the Constitution’s Equal Protection Clause to leverage the Coastal Act definition of “public access” to force a change in the club’s membership policies. Deputy Attorney General Anthony Summers explains why he was skeptical.

The question with discrimination is almost always, is there state activity involved? Private individuals can discriminate if they want to. If you have a private club, and you want to exclude people on the basis if race or religion you can do that And at first blush of course it seems as though discrimination in membership of a private club is pretty far removed from whether a coastal development permit should be used.

ROBIN-Douglas argued with Summers and his staff, but the lawyers dug in their heels. If challenged in court, they feared the Commission would lose. And Lawyers hate to lose.

Anthony Summers- At the Commission, it was certainly not my job to advocate how the Commission should vote on any particular matter. Peter Douglas had that role and he reveled in it, he did a wonderful job, My role was to tell them what the law was to the extent that it was clear, or what I thought a court was most likely to do in the areas where it wasn’t clear.

PD- And I said well, if we lose, it’s the court that made that decision and we were not a party to it.

ROBIN- The more they argued the more adamant the lawyers became. Regardless of its emotional appeal, Summers was convinced the idea would never stand up in court. (pause) Douglas could see it was a self-fulfilling prophesy. If the Attorney General’s office didn’t back him up, and told the Commission they didn’t support the recommendation, there was no way the Commission would side with him and vote for it. So in spite of his strong convictions, Douglas backed away from the idea. Or at least, that’s how it seemed. In fact, he was just plotting another course.

PD— I didn’t think it would be seemly to have a public debate of staff making one recommendation, and the Attorney General coming in and making another recommendation. I thought that would undermine credibility of the staff. It just would look awkward. So I decided as I had done before that I would talk to several commissioners behind the scenes. Let them bring it up. When a question comes from a commissioner it does dramatically change the dynamic of the discussion. And I knew there were several who would bring it up. Then we would have to join the argument, publicly.

ROBIN- So while a dejected Nancy Cave prepared to approve the development, her boss was working behind the scenes, contacting key Commissioners and priming them to press the issue. On the day of the hearing, Cave thought the Jonathan Club would get their tennis courts. What happened next caught her completely off guard…

The only member of the public who showed up to testify that day was David Lehrer, counsel to the Anti-Defamation League. But he was representing a who’s who of social justice organizations

DAVID LEHRER—Mr. Chairman, Madam ViceChair, Honorable Commissioners, I am David Lehrer the Western States Counsel of the Anti Defamation League of the Banai Brith. I’m testifying on behalf of the Asian Pacific American Legal Center, the Community Relations Council of the Jewish Federation Council of Greater Los Angeles, the Los Angeles Chapter of the National Association for the Advancement of Colored People…

ROBIN-Lehrer urged the Commission to do what he felt the Sate Lands Commission should have done—end the Club’s discriminatory membership policies in return for their ability to use state property

DL —The issue of discrimination in the admission policies of social clubs is one that touches us all. The fact that any institution continues to restrict admission on the basis of race, religion, ethnicity, and sex, is troubling enough. There is however, a very different problem presented by the discriminatory policies of institutions, at which important political, economic and social decisions are made on a daily basis. When the corporate and the political elite meet for lunch or dinner at a downtown club, and there is a long standing policy to exclude most visible minorities—women and Jews-from membership in that institution, a message is sent out to the community at large, that minorities and women are somehow not fit, not equal to those who are making decisions of moment. It is an anachronism which is ripe for change. It is particularly appropriate that the Coastal Commission consider the issue of social club discrimination as it deliberates on the application of the Jonathan Club.

ROBIN—when questioned, the Club’s representatives refused to disclose their membership policy, telling the Commission they had no right to ask, because they had no legal jurisdiction over the issue. Commissioner Marshall Grossman tried to get some answers from the Jonathan Club’s lawyer, Robert Philobosian.

GROSSMAN —Does the Jonathan Club discriminate in its admission policies? Based upon race, religion and sex?
--Respectfully Mr. Grossman, that issue is not before this Commission, and frankly, I don’t know the answer.
--You are not a member, I guess?
--No Sir, I am not.
--And, are there any members here with you?
--Yes, there is.
--Could you enquire of them whether or not the Club does, in fact, discriminate against Blacks, for example? Or women?
--Mr. Grossman, That issue has not been raised previously, and I’m sure the reason it has not been raised is simply because of what I said earlier, that the issue is not within the purview of the Coastal Act, and is therefore not before this Commission.
--Mr Lehrer suggested a provision in the permit, or some equivalent where the Club would affirm publicly, for example, that it does not discriminate against women, or blacks, or other minorities. Would the Club have a problem with such a condition?
--Once again, Mr. Grossman, I must repeat myself, at the risk of taking more time of the Commission members, that the issue is simply not before this body, and the issue is not within the purview of the Coastal Commission.

So Commissioner Marshall Grossman pulled out a 1981 article from Los Angeles Magazine, which included interviews with Jonathan Club members.

MG —It says, “Too much is made about this thing with Jews. A few of them are in now. And what about the thing with Blacks? God, if you think about it, everything is working in the Black’s favor. One day the Clubs will probably have to take them. Some cockamamie law will probably mandate it. I wouldn’t be surprised if it happens before the turn of the century. And then it goes on to state, “That will be a little late for Tom Bradley. After having traditionally granted memberships to many of his predecessors, the Jonathan club declined to bestow a similar honor upon the City’s first black mayor.

ROBIN-The Club’s representatives were caught off guard. (pause) So were several of the Commissioners. Except for the few who Peter Douglas had tipped off, none of them had ever considered using the Coastal Act in this way. In their confusion, they looked to the Deputy Attorney General for clarification. As Douglas predicted, Anthony Summers had revised his initial opinion.

AS: at some point I was told that the issue was going to come up during the public hearing. And I was pleased that I had advance notice. This was not the kind of question that I would have had sufficient, detailed understanding of the Supreme Court cases and the applicable law if I hadn’t had the opportunity to get into the library and look at those cases.

ROBIN—Just as Douglas predicted, the dynamic of the meeting, as well as Summers’ extensive legal research before the meeting, had an affect on the advice he gave. Knowing that the he would have to defend the Commission in court whatever it did, Summers didn’t want to hurt his own case. So when asked whether the Commission had the legal authority to place a condition on the Jonathan Club’s permit that would require them to end their discriminatory membership policies, here’s what he told them:

AS: I don’t know how the courts will ultimately rule, but there is, I believe, a substantial possibility that the California courts would determine that the existence of the lease is sufficient involvement of the government with the Jonathan Club that it is prohibited from having discriminatory admission policies. I think it is a legitimate concern under the Coastal Act, if this Commission so chooses, to impose conditions that would assure that the access is open to everybody.

ROBIN—Summers gave the Commission a choice—they had plausible justification to force the Club to open its membership, but he couldn’t guarantee it would stand up in court. The decision was up to them. None of the Commissioners wanted to defend discrimination, but some had concerns the Commission would be overreaching if it went after the club’s membership policies. Some thought it was “social management.” Others didn’t want to risk a lawsuit.

Commissioner Marshall Grossman delivered the pivotal argument.

GROSSMAN --Many of you are not members of minority groups, and you don’t know the feeling of walking by an institution and knowing it is really a symbol, a vestige of racism, of social discrimination. While racism and social discrimination is not the same as genocide, they are the seeds of genocide. It is in clubs like this, which are lily-white, all male bastions, free of the impure except for a chosen few, where prejudice is passed on from generation to generation. The kids grow up being served by blacks, being served and babysat by Hispanics, having their food cooked by Asians, but yet knowing that these people may not join as members, as they inherit memberships of their parents. The Jonathan Club can discriminate if it wants, but not at my expense. It cannot take public, sandy beach and public parking lots and convert them to its own use at my expense and discriminate against my kids. Public access means access for everybody.

PD- it was really dynamic, exciting because there were very strong feelings and the majority of the commissioners agreed that we should be adding a provision that prohibits discrimination. Very simple.

ROBIN—Not surprisingly, the Jonathan Club sued. The didn’t deny that they excluded minorities. They argued that the Commission lacked legal authority to address the issue. Summers argued the case.

PD …Once the Commission did what it did, Tony became a pit bull. And he’s a great attorney. And he fought this thing excellently.

ROBIN—Apparently the court thought so too. In October, 1985, the court found that the Commission did have the authority to impose the condition, in part because the Coastal Act requires that maximum access shall be provided for all people. The Jonathan Club continued to pursue their case and Anthony Summers next argued before the Court of Appeals. Not only did the judges agree with the lower court, they strengthened the decision, finding that the public access policies of the Coastal Act as well as the Equal Protection Clause of the Constitution gave the Commission clear authority to end the club’s discrimination. But they went one step further. Anthony Summers:

AS: I was particularly pleased that the court of appeal ordered its decision published because court of appeal decisions don’t have to be published and unless the court orders them published, they aren’t.

ROBIN-The significance of a published decision is that it doesn’t just apply narrowly to the case at hand, it becomes, in effect, the law of the land. The decision to publish the Jonathan Club case put all private clubs on notice. From the Club’s perspective, things had gone from bad to worse. Rather than comply with the court’s ruling, they appealed to the California Supreme Court.

PD-The Jonathon Club appealed. They were furious. They were adamant and I could not believe how strongly they felt about this policy. And they were angry, and they just said publicly we are going to take this as far as we can, this is wrong, this a denial of our rights, and we just said well, you’re welcome to it.

ROBIN-The state’s highest court declined to hear the Jonathan Club case, letting the earlier ruling stand. But then they did something very unusual.

AS: The one thing that did surprise and very much disappoint me was when the California Supreme Court chose not to hear the case, but they ordered the opinion not to be published, they “decertified” it in legalese. They said, “don’t publish the case”

AS: The effect of de-publishing is that that decision cannot be cited in any other case. And so it’s not a precedent. If another case comes along six months later, a year later you more or less have to start all over again from scratch. And even if you’re in court you’re not allow to cite those non-published decisions. (19:42)

ROBIN—Why would the Supreme Court de-publish such a ground-breaking case? Anthony Summers has a theory.

AS: I recall that around that time there was a certain amount of controversy going on because it turned out that some members of the Supreme Court were members of a private club that may well have been discriminatory in its membership practices, the Bohemian Club up in the Bay area. And so if I had to guess, and of course I have no way of documenting or proving this, but I think that the Supreme Court just didn’t want to be in the position of having to rule on the merits of the Jonathan Club case.

ROBIN—The Jonathan Club had one last chance—the U.S. Supreme Court. They now argued that the Coastal Act itself was unconstitutional, not just that the Commission had over-reached. Anthony Summers, writing for the California State Attorney General Jon VanDeKamp, asked the Court to either dismiss the case or affirm the lower court’s ruling. On October 11, 1988, he received the following letter.

PD: Dear Mr. Summers, The court today entered the following order in the above entitled case. The appeal is dismissed for want of a substantial federal question. Very truly yours. Oct 11, 1988, Supreme Court of the United States. This is a pretty profound document, short but sweet.

ROBIN—Even though it had been de-published, the Jonathan Club decision had the desired effect.

PD: in fact we had a meeting several years ago at the Jonathan Club and the president of the Jonathan Club was an Asian Jew and he made the point. He said I wouldn’t be a member of this club if it hadn’t been for the Coastal Commission. And there were a number of people in the audience, blacks, Latinos, who said and we wouldn’t be able to be members.

ROBIN—Looking back at the Jonathan Club decision, it’s hard to imagine that the agency charged with protecting the coast would go so far out on a limb and deal with the issue of racial and gender discrimination. It would have been so much easier to just give them their permit. But the Coastal Commission is not your average state agency. And Peter Douglas, who died in April of 2012, was not your typical bureaucrat.

PD: think the Jonathan Club is one of those stellar examples of what a good law, applied by good people can do. And it’s not just a good law and good people, it’s the interpretation of that law and when we have a provision in our law that says it should be liberally construed to better achieve its objectives, this is the best example of that. Because discrimination still takes place. And it shouldn’t. Especially not in public spaces, public lands, anything that involves public resources.