Update — Jon 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 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."
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.