Reflections on Augusta: Judicial, Legislative and Economic Approaches to Private Race and Gender Consciousness

In light of the recent controversy surrounding Augusta National Golf Club’s exclusionary membership policy, this Article highlights the myriad incentives and disincentives that Augusta and similar clubs have for reforming such policies. The author acknowledges the economic importance of club membership in many business communities and addresses the extent to which club members’ claims of rights of privacy and free association are valid. The Article also considers the potential of judicial action in promoting the adoption of more inclusive membership policy; the state action doctrine and the First Amendment right to freedom of association are discussed as frameworks under which litigants may potentially bring claims against clubs and the author assesses the likelihood of success under each.

This Article next addresses the possibility of using existing legislation to prohibit or discourage exclusionary membership policies. Though he finds that the federal legislation on the books (Title II of the Civil Rights Act) falls short as a tool for combating discrimination, the author finds potential in some states’ civil rights acts. The author also outlines the probable arguments plaintiffs and defendants would make were a claim brought against an exclusionary club.

Finally, this Article addresses the potential for new federal or state legislation to combat this type of discrimination, the efficacy of denying liquor licenses and property tax exemptions to exclusionary clubs, and the potential normative effect that could be realized were high-profile athletes, professional tours, concerned club members, and business communities to make their disapproval of exclusionary policies heard.