Nightclub changed tune to repel blacks, suit says Bias alleged in music policy in Ill.

February 28, 1993|By William Grady | William Grady,Chicago Tribune

Baur's Opera House was an institution of sorts in Springfield Ill., a nightspot that was popular for its drinks, dancing and 3 a.m. closing time.

When the Illinois Legislature was in session during Baur's heyday in the early 1980s, it was sometimes said that enough lawmakers could be found on the dance floor to make a quorum.

But in recent years, when the dance floor filled up with young blacks, the management tended to pull the plug on dance music and switch to heavy metal rock, according to litigation that is now before a federal appeals court panel.

The question that the Chicago-based U.S. Court of Appeals for the 7th Circuit has been asked to consider is this:

Can a nightclub's music selection provide evidence to support a claim of discrimination brought under the public accommodation provision of a civil rights law originally intended to end segregated hotel facilities and lunch counters in the South?

The lawsuit's premise is unusual. But there is little doubt that nightclubs and other places of entertainment occasionally use subtle forms of discrimination in an attempt to limit the number of minority patrons.

Sometimes there are complaints that blacks are more likely to be carded than whites, even when they are obviously of drinking age, or are asked for two identification cards, according to John Donohue, a Northwestern University law professor.

Sometimes an establishment's dress code is more strictly enforced for blacks than for whites.

In this case, a lawyer for a Springfield man contends that Baur's music policy was part of a pattern of discrimination, evidenced also by racial slurs, which was intended to limit the black clientele.

"I'm not arguing that they don't have a right to change the music," said Springfield lawyer Steven Ward, during oral arguments Wednesday before a three-judge appeals court panel. "But they don't have the right to change the music for the purpose they did."

A lawyer for Baur's countered that federal law did not guarantee equality of listening pleasure for all patrons.

"This is a matter of individual choice," said Brad McMillan, an attorney with a Peoria, Ill., law firm representing Baur's, which is no longer in business.

Mr. Ward represents Mark W. Stearnes, a Springfield resident who filed a federal lawsuit against Baur's Opera House after an incident there in February 1990.

Mr. Stearnes' lawsuit was dismissed without a trial last March.

U.S. District Judge Richard Mills ruled that "the Constitution does not guarantee to each patron of a bar and dance hall the right to hear the music he or she prefers."

Lawyers for Baur's contended -- and Judge Mills agreed -- that Mr. Stearnes had no viable claim because he never was denied access to the dance club nor refused service.

The lawsuit alleges that George Baur, the dance club's owner, had taken steps to change the music policy in response to complaints from white patrons about the number of blacks in the bar.

According to the lawsuit, the bar's manager would tell the disc jockey that it was "too dark in here."

Two former disc jockeys submitted affidavits indicating they were told by the bar manager to play hard rock whenever it appeared too many blacks were in the establishment.

Lawyers for Mr. Stearnes argue that Judge Mills' ruling was too narrow an interpretation of a law intended to prohibit a range of discriminatory practices by public establishments.

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