[Update II — Anne Marie Green of CBS3 (KYW) News Philadelphia also spoke with me about case, particularly the relief available to the day camp members. Video available here.

UpdateJon Elliott on San Diego 1700AM interviewed me on the incident and the law. List of their podcasts here (I’m "7/10/09 2nd Hour, 07/10/09 4:00pm"), direct link to 36MB MP3 here. Best part is when a spaceship lands in the middle of my interview.]

You’ve probably heard by now about the Valley Swim Club / Creative Steps Day Camp incident, in which a Huntingdon Valley "private" swim club apparently refused to let 65 African-American and Hispanic children who had paid $1950 for a weekly membership swim in the pool.

For a legal introduction, see my post yesterday, Philadelphia Swim Club Refuses Black Children Because Of Their "Complexion." In short, the Pennsylvania Human Relations Act prohibits racial discrimination in "public accommodations" like "swimming pools" unless those entities are "distinctly private." Odds are, the Valley Swim club is not "distinctly private" because the PHRA and the case law imply "distinctly private" applies only to bona fide fraternal organizations that do not let nonmembers use their facilities at all, not the simple paid-your-membership-dues-and-swim system the Valley Swim Club used.

Today let’s talk about the upcoming legal procedure, the disputed facts, and the core issues to be resolved.

The Legal Procedure:

Discrimination lawsuits (whether based on race, gender, age, or disability) don’t begin like most lawsuits; before filing in court, the victim of discrimination must file a complaint with either the Pennsylvania Human Relations Commission (PHRC) or, if related to employment, the federal Equal Employment Opportunity Commission (EEOC).

Also unlike almost every other field of law, most of which allow plaintiffs one year, two years, or possibly more to file their claim under the ‘statute of limitations,’ discrimination complaints must be filed within 180 days of the discrimination or they are forever waived

Based on a NAACP complaint, the PHRC has already opened an investigation. Typically, these investigations take months, and can take up to a year; by state law, victims of discrimination are prohibited from suing until the investigation is completed or a year from when they filed the complaint, whichever comes first. The PHRC has said they will conduct an "expedited" investigation here.

The PHRC process is flexible and analogous to a police investigation, in that the bulk of the process is not lawyers arguing with one another, but rather a PHRC investigator talking with the complainant, the respondent, and important witnesses. Eventually, the PHRC will either dismiss the case for lack of probable cause (after which a normal lawsuit can be initiated) or:

If probable cause is found in your case, the Commission will attempt to settle the case. The respondent will be asked to stop the discriminatory actions, begin any new programs or make financial payment to settle your case. If this conciliation process is unsuccessful, a public hearing will be held on your case.

At the public hearing, testimony is given under oath and evidence in your case is submitted. If you do not have an attorney, a Commission attorney will represent your complaint. After your case is presented, the Commissioners will vote either to agree that discrimination did occur and approve a settlement, or dismiss the complaint, if they decide discrimination did not occur.

The idea here is similar to small claims court and arbitration of motor vehicle accidents: presumably, if the parties go through the process once and one side clearly loses, this will encourage settlement.

Unfortunately, except where the damages are small, PHRC decisions, like compulsory arbitration decisions, are typically appealed to state court. Unless the Valley Swim Club and the Day Camp can come up with a solution, then, regardless of what the PHRC finds, this case will likely be appealed and litigated in the Montgomery County Court of Common Pleas, since the pool was in Montgomery County.

The Facts That Will Be Disputed:

The core allegations by the plaintiffs are simple: we paid $1950 to swim at a club, got there, heard a number of racist remarks, then, the next day, had our money refunded and told not to come back because of "complexion" and "atmosphere."

The Valley Club has replaced its entire website with:

The Valley Club is deeply troubled by the recent allegations of racism which are completely untrue.

We had originally agreed to invite the camps to use our facility, knowing full well that the children from the camps were from multi-ethnic backgrounds. Unfortunately, we quickly learned that we underestimated the capacity of our facilities and realized that we could not accommodate the number of children from these camps. All funds were returned to the camps and we will re-evaluate the issue at a later date to determine whether it can be feasible in the future.

Our Valley Club deplores discrimination in any form, as is evidenced by our multi-ethnic and diverse membership. Whatever comments may or may not have been made by an individual member is an opinion not shared by The Valley Club Board.

Plausible, but disputed:

HUNTINGDON VALLEY, Pa. – A suburban Philadelphia swim member tells the AP she didn’t see inner-city kids misbehaving at a pool they were later barred from.

Amy Goldman said she’s been a member of the Valley Club for two years. She said the pool wasn’t particularly crowded and the children from Creative Steps daycare were "well behaved and respectful."

She said there had been black members at the club in the past, though she couldn’t remember seeing any this year.

We see hints of a "no good deed goes unpunished" defense in the works:

The statement says the day campers were turned away because they overwhelmed the 110,000-gallon pool.

"We quickly learned that we underestimated the capacity of our facilities, and realized that we could not accommodate the number of children from these camps," the statement says.

A worker at another Northeast Philadelphia day camp that had an agreement to use Valley Club this summer, Storybook Children’s Center, said she believed the club’s account. Monica Scanlon said she took 25 children of diverse ethnicities to its pool this summer, but the noise had clearly been too much for comfort.

Valley Club president John Duesler apologetically refunded Storybook’s money, as he did for Creative Steps.

"He was trying to help us out, because there weren’t supposed to be city pools open this year," said Scanlon, who contacted The Inquirer after learning of the controversy.

These sorts of factual disputes are precisely why we have courts and juries and why cases take so long.

What Creative Steps Day Camp Has To Prove And What The Valley Swim Club Has To Explain:

This incident is intriguing, legally, because it asks a basic question that hasn’t really been raised in more than forty years: what does a complainant have to prove to show they were the victim of racial discrimination?

Do they have to show that race had some effect in excluding them from a public accommodation? That race was the only factor in their exclusion? What happens if the jury finds that race impacted the decision by the Club but that the Club would have refunded the money anyway for other reasons?

These questions have been answered in the employment context, where they come up all the time, but not in the public accommodation context, where there have been few lawsuits alleging racial discrimination for decades.

Based on the minimal Pennsylvania case law out there, I believe the PHRC and any later court would set a fairly low bar. Back in the 1970s, The Pennsylvania Supreme Court recognized "In trying to eradicate other manifestations of racial discrimination, courts, including the Supreme Court of the United States, have recognized that statistics alone can establish racial discrimination. " Pennsylvania Human Relations Comm’n v. Chester Housing Authority, 458 Pa. 67, 80, 327 A.2d 335, 342 (1974).

If statistics alone can prove discrimination, without concrete proof of racial motive or that race was a necessary factor, then odds are the eventual jury that hears this case will only be asked to decide if the Club "den[ied] to any person because of his race" "any of the accommodations, advantages, facilities or privileges of such public accommodation," just as the Human Relations Act says.

So how do we show denial because of their race?

Let’s assume, for the moment, that everything the Club said is true. There’s still a big unanswered question: once they realized they were overbooked, how did they choose which money to refund?

The most recent members? Did they do that for individual white members, too? What about predominantly white day camps?

On its face, the Storybrook Day Camp story sounds favorable to the Valley Swim Club’s position, but upon closer inspection it’s another diverse day camp whose money was refunded after they showed up. Like the "statistics" described by the Pennsylvania Supreme Court, the presence of another minority Day Camp which was excluded might be very damaging to the Swim Club’s defense, unless they can show similar exclusions / refunds of white camps or members.

But I think they’ve got an even bigger problem: we’re having a debate they obviously did not have when they refunded the money. The concern stated at the time was over "complexion" and "atmosphere."

That’s not the same thing as their website says, that they "quickly learned that we underestimated the capacity of our facilities and realized that we could not accommodate the number of children from these camps."

And it gets worse:

Apparently, the way Duesler handled it was to refund Wright’s check and tell her that the club membership overthrew his decision "by voting to disinvite us," Wright said.

Well, that’s news to Valley Club member Jim Flynn. Standing in front of the club – which was padlocked yesterday – Flynn seethed over the way he said Duesler has handled things.

"To my knowledge, the members were not involved in any of the decisionmaking," says Flynn, 41, a Fox Chase resident who pays a $700 membership for a family of four. "As far as I know, all we recommended was to change the time that [the campers] came, from the afternoons to a nonpeak time. We never recommended to disinvite them."

As for Duesler’s "complexion" comment, he said, "I couldn’t believe he said that. . . . It was insensitive and inflammatory. Look, I’m not naive enough to think that racism doesn’t exist here, but I don’t want the good people’s names at this club to be smeared."

And that’s what will probably sink the Swim Club’s defense: they can’t get their stories straight. At some point, even the most open-minded juror can tell you’re just treading water. 

  • Progress

    Another question that needs to be asked is why the Creative Steps children were charged $30 per child and only granted limited access to the club. Before Valley Club dismantled its site the membership fees listed per child was $30 with Mon-Thurs anytime access. Why were the Creative Steps children only given access on Mondays for 90 mins only?

  • Frank

    “needs to be asked is why the Creative Steps children were charged $30 per child and only granted limited access to the club.”
    One might note that a family membership with presumably “full” access costs $150 a person, five times as much.
    Readers should also remember that among the well-spoken, the word “complexion”, especially as used in this context, is not limited in definiton to skin color or tone.
    It can also mean the general character, aspect or appearance. As noted in Websters II dictionary “New evidence may alter the complexion of a case.”

  • Helen

    The swim club should not back down from the law suit, if they can prove safty was the main issue
    It is clear there are white children attending the day camp.
    It is also clear that no 11 year old child would remember the pain of the past generation. The child was coached in his words.
    There is clear proof that that one child is feeding off a non exsiting promblem that some of his elder wish to raise about their grand parents past!

  • Jon

    Safety wasn’t the issue, safety was made up by the board more than a week after it happened. The club kicked them out for no reason at all, then a day later said it because of their “complexion,” then made up something about “safety” after national media starting asking questions.
    Smerconish had a column quoting a white club member saying the kids’ visit didn’t cause any problems at all, the kids were very respectful, and the lifeguards had no trouble at all. Most of the members have said that the time the kids came wasn’t even a busy time at all, and there was room for all of them.
    Race is the only explanation here.

  • victoria Newman

    What crazy times we live in. Private to me means private. The swim club should be able to recind invitations along with a money refund for whatever reason they choose. It’s no one’s bloody business what’s going on inside someone’s head. Welcome to Big Brother country.

  • Timothy B.

    The term “change of compexion” can easily be defended in court.
    Having 60-70 children in a pool that normally has 6-10, certainly would change the “complexion” and atmosphere of the Club. Noise levels, crowding, lifeguard to swimmer ratio, safety issues…all would change the normal complexion of the Club for attending members.
    The Valley Swim Club has several black, latino, asian and bi-racial members, this is a documented fact. How is it even conceivable that it had suddenly turned into some bastion of racism?
    Ms Wright was recently convicted of tax evasion and fined over $9,000 by a Philadelphia court. Another documented fact. This lawsuit is clearly about making a quick buck. Any lawyer willing to take such a case to court would be willing to do so only on the basis of publicity gained for them, as there is clearly little chance of winning an action such as this.

  • Timothy B.

    My only hopes are that the Valley Swim Club does NOT capitulate to a threat of a lawsuit, that they counter-claim for damages, slander and costs against Ms. Wright, and that they put this “case” into the proper context from which it was launched.

  • Blonkita

    If the adults representing the children seek further monetary compensation, the entire case ought be thrown out on the basis of greed.
    I read that 120 adults accompanied those 60-65 children. 120? That would DEFINITELY overwhelm the facility.
    Storybrook Day Camp admits that the inner city children they brought to a suburban pool were too noisy. They understood why they were asked to accept a refund. It is not difficult to imagine 60-65 children aged 6-12 or so creating a chaotic environment.
    The Valley Club management failed, two ways. They overbooked the facility. And, they apparently did not advise their regular, private members that the pool would be used by campers from inner-Philly.
    That is all they are responsible for, bad management. Racism? Very doubtful.
    Racist pool members? That, is probable . . . are we going to start suing a bar when we are asked to leave due to capacity and/or conduct, and a fellow patron makes a racist comment? No difference. You do NOT hold an organisation responsible for the opinions of those who frequent same.
    You DO expect them to comply to the terms of a contract. If they wish to dissolve same, good cause must be cited. Good cause has been cited, overcrowding and improper conduct (noise, splashing, etc)
    Too bad the word “complexion” was used. That could be indicative of a racist mind . . could be . . not, is.
    If these children are traumatised by this incident, Ms. Wright is responsible. Or, whomever has been forcing these children to hold signs and stand in picket lines is the one doing damage. The kids would have forgotten allll about it, if the adults had just said, “It’s overcrowded so we can’t stay.”
    GOod lesson in bad management for the kids, or, could have been. Now, it is a good lesson in entitlement complexes, snap judgements with little or no basis in fact and that being angry is a good thing. Poor kids. May they survive their childhoods, no matter where they swim.