[You may wish to see my follow-up post, How The Valley Swim Club Racial Discrimination Lawsuit Will Go Down]
More than 60 campers from Northeast Philadelphia were turned away from a private swim club and left to wonder if their race was the reason.
"I heard this lady, she was like, ‘Uh, what are all these black kids doing here?’ She’s like, ‘I’m scared they might do something to my child,’" said camper Dymire Baylor.
The Creative Steps Day Camp paid more than $1900 to The Valley Swim Club. The Valley Swim Club is a private club that advertises open membership. But the campers’ first visit to the pool suggested otherwise.
"When the minority children got in the pool all of the Caucasian children immediately exited the pool," Horace Gibson, parent of a day camp child, wrote in an email. "The pool attendants came and told the black children that they did not allow minorities in the club and needed the children to leave immediately."
The next day the club told the camp director that the camp’s membership was being suspended and their money would be refunded.
Bad enough. Then comes the kicker:
The explanation they got was either dishearteningly honest or poorly worded.
"There was concern that a lot of kids would change the complexion … and the atmosphere of the club," John Duesler, President of The Valley Swim Club said in a statement.
Refusing access to a public pool because of someone’s "complexion" is illegal, a violation of the Pennsylvania Human Relations Act, specifically 43 P.S. § 955(i)(1):
§ 955. Unlawful Discriminatory Practices
It shall be an unlawful discriminatory practice, unless based upon a bona fide occupational qualification, or in the case of a fraternal corporation or association, unless based upon membership in such association or corporation, or except where based upon applicable security regulations established by the United States or the Commonwealth of Pennsylvania:
* * *
(i) For any person being the owner, lessee, proprietor, manager, superintendent, agent or employee of any public accommodation, resort or amusement to:
(1) Refuse, withhold from, or deny to any person because of his race, color, sex, religious creed, ancestry, national origin or handicap or disability, or to any person due to use of a guide or support animal because of the blindness, deafness or physical handicap of the user or because the user is a handler or trainer of support or guide animals, either directly or indirectly, any of the accommodations, advantages, facilities or privileges of such public accommodation, resort or amusement.
The key term there is "public accommodation." Does that include a nominally private swim club which leased access to nonmembers then refused to honor it?
The Human Relations Act defines "public accommodation" as:
(l) The term "PUBLIC ACCOMMODATION, RESORT OR AMUSEMENT" means any accommodation, resort or amusement which is open to, accepts or solicits the patronage of the general public, including but not limited to inns, taverns, roadhouses, hotels, motels, whether conducted for the entertainment of transient guests or for the accommodation of those seeking health, recreation or rest, or restaurants or eating houses, or any place where food is sold for consumption on the premises, buffets, saloons, barrooms or any store, park or enclosure where spirituous or malt liquors are sold, ice cream parlors, confectioneries, soda fountains and all stores where ice cream, ice and fruit preparations or their derivatives, or where beverages of any kind are retailed for consumption on the premises, drug stores, dispensaries, clinics, hospitals, bathhouses, swimming pools, barber shops, beauty parlors, retail stores and establishments, theatres, motion picture houses, airdromes, roof gardens, music halls, race courses, skating rinks, amusement and recreation parks, fairs, bowling alleys, gymnasiums, shooting galleries, billiard and pool parlors, public libraries, kindergartens, primary and secondary schools, high schools, academies, colleges and universities, extension courses and all educational institutions under the supervision of this Commonwealth, nonsectarian cemeteries, garages and all public conveyances operated on land or water or in the air as well as the stations, terminals and airports thereof, financial institutions and all Commonwealth facilities and services, including such facilities and services of all political subdivisions thereof, but shall not include any accommodations which are in their nature distinctly private.
A "swimming pool" is thus by definition a public accommodation unless it is "in [its] nature distinctly private."
Though nearly forty years old by this point, one of the key cases before the Pennsylvania Supreme Court held a dining hall connected to a fraternal organization was a public accommodation because:
We believe that the Superior Court dissenters were correct in concluding that ‘by its practice of opening its dining room to non-members, subject only to the limitation that they be of the Caucasian race and invited by a member, [the lodge] has brought itself within the ambit of a ‘public accommodation’ as defined by the act.’ Having done so, it has also brought itself within the prohibition of § 5, as above set out, at least to the extent of its dining and bar facilities. … The lodge concedes that any member of the general public who is of the Caucasian race and who is invited by a member of the lodge is welcome in its dining room. As aptly stated by the Superior Court dissenters: ‘The interests of privacy and exclusiveness of association which the Act acknowledged by creating its exclusion for fraternal organizations have been compromised by the policies of the organization itself. Any member of the public, regardless of affection or disaffection for the [lodge] and regardless of eligibility for membership (as in the case of women and children) may intrude upon the privacy and exclusiveness of the Moose dining room, so long as there is some member of the Moose who will stand accountable for his conduct while on the premises . . . that is, any Caucasian member of the public.’
There is, of course, no question that when the lodge leases its facilities to nonmembers, a place of public accommodation exists and the lodge does in fact follow a nondiscriminatory policy in such circumstances. The opening of the facilities to guests of members is a difference in degree rather than in character, and each constitutes a step beyond the limited area of immunity granted by the Human Relations Act.
Commonwealth Human Relations Comm’n v. Loyal Order of Moose, 448 Pa. 451, 458–59, 294 A.2d 594, 597–98 (1972).
Take a look at The Valley Club’s membership applications. There doesn’t appear to be any membership "eligibility" issues at all; at most, "membership" is simply paying one’s dues. There’s good odds a court would say the pool is always a public accommodation, regardless of the "membership."
But they’ve got a bigger problem than that: as the Pennsylvania Supreme Court held, "There is, of course, no question that when the lodge leases its facilities to nonmembers, a place of public accommodation exist."
That’s exactly what happened here: The Valley Club leased access to the pool to The Creative Steps Day Camp. There’s "no question" they were not permitted to discriminate on the basis of race.
See you in court, guys.
[UPDATE: Two issues have come up since the initial story.
First, the Camp apparently paid $1950 for memberships, so "leasing" isn’t the issue. However, as noted above, and unlike the fraternal organizations protected by the Act, the Swim Club doesn’t appear to have any "membership" requirements at all — pay your dues and you’re in. As such, they likely "compromised" any "interests of privacy and exclusiveness of association" they may have had as a "distinctly private" entity, and so are a "public accommodation" nonetheless.
Second, the Inquirer notes:
Several parents and the camp are looking into possible legal action against the club, said Staci Morgan, a Creative Steps board member and Philadelphia social worker.
Their options depend on whether the state Human Relations Commission has jurisdiction over the club’s operations, said Michael Hardiman, a lawyer with the commission. Organizations that are "distinctly private" do not fall under that jurisdiction.
Hardiman would not say whether the Valley Swim Club met the commission’s criteria for investigation.
The Pennsylvania Human Relations Commission has jurisdiction to investigate the club’s operations and to determine for itself if the swim club is "distinctly private." The primary case, ironically, also involves a swim club:
If the Swim Club is a ‘place of public accommodation,’ it is subject to the Act and within the jurisdiction of the Commission, and it may not deny membership to persons on the basis of their race, color or ancestry. Beyond this, the language of the statute provides little guidance. A swimming pool may be a ‘place of public accommodation’ if it ‘accepts . . . the patronage of the general public’ and is not in its nature ‘distinctly private.’ These references to the general concepts of ‘public’ and ‘private’ take on meaning only as applied to specific factual situations. The appropriate body to make such applications is the Commission, which is charged by the Legislature with administering the Act and is empowered not only to promulgate rules and regulations but also to formulate policies to effectuate the provisions and purposes of the Act.
Commonwealth, Pennsylvania Human Relations Comm’n v. Lansdowne Swim Club, 515 Pa. 1, 7–8, 526 A.2d 758, 761 (1987).
As I noted above, the Valley Swim Club has likely forfeited whatever interests it had in exclusivity by not actually being exclusive and by taking the Camp’s money in the first place.
A simple question that could settle the issue entirely is: does the Club permit members to bring nonmembers with them? If so, then Loyal Order of Moose would hold that, as a matter of law, the Club is a "public accommodation."]