F. OTHER ANECDOTAL EVIDENCE
I do not give any weight to the other anecdotal evidence offered by the government to support its contention that the Club engaged in a pattern or practice of intentional discrimination against blacks.
1. Domestic Help Rule
The Club prohibits the admission of domestic helpers unless they are members. See GX 56 (1962 Rules and Regs), 57 (1964 Regs), 58 (1978 Regs), 59 (1979 Regs), 60 (1986 Regs). The reason for this rule advanced by Club members, whose testimony I credit, was to prevent members and associates from leaving their children at the pool with a babysitter who did not have to pay a membership fee. Richards Testimony, Tr. 6/16/88, at 133-34; Weiss Testimony, 6/16/88, at 18. Domestic helpers may be admitted to the Club as guests if they are accompanied by a member. Weiss, at 18. I find that the Club's failure to drop this rule at the urging of certain Club members (see Biscontini Testimony, Tr. 6/15/88, at 136-37) was not motivated by racial animus.
2. Instruction of Boy Scouts at Nile Swim Club
Mr. Richards conducted lifesaving instruction for white Boy Scouts at LSC but gave this instruction to black Boy Scouts at the Nile Swim Club. Richards, at 134-35. The black Boy Scouts were neither invited to nor attended lifesaving instruction at LSC. Id. at 135. However, the government has not shown that the reason for this practice was discriminatory. Mr. Richards, whose testimony I credit, stated that he would have offered to instruct them at LSC, but they belonged to the Nile Swim Club. Id. at 131.
3. Janet Ariza Testimony
Janet Ariza testified that in 1971 she asked someone she believed to be an officer of the Club whether a black girl, who was going to be visiting her family for a month during the summer, would be permitted to use the pool as a guest. The purported officer said that she would not. Ariza Testimony, Tr. 6/15/88, at 97-99. This testimony is entitled to no weight because Ms. Ariza was unable to identify either the officer or the acquaintances who referred her to the officer. Id. at 96, 98.
4. 1976 Kidder Resolution
On November 17, 1976, Donald Kidder proposed to the Club's Board of Directors that it adopt a resolution instructing the Membership Committee "that no family shall be denied membership or consideration for membership solely on the basis of race." GX 39. The Board failed to adopt this resolution. Kidder Testimony, Tr. 6/15/88, at 109-10. The government has not shown that this inaction was motivated by racial animus. Mr. Kidder himself testified that the Board told him that the Club did not discriminate and therefore such a resolution was inappropriate and unnecessary. Id. at 110, 121.
5. Letters to Club
In the late 1970s and in 1984, Club members and area religious organizations wrote to the Club expressing their concern that the Club was engaging in racial discrimination and/or requesting that the Club take action against future discrimination. See GX 40, 42, 82, 83, 84, 85, 86. The fact that these letters were sent to the Club does not prove that it discriminated against blacks.
6. 1978 and 1984 Kidder Proposals
On November 15, 1978, Mr. Kidder proposed the following changes in the membership procedures: applicants must be approved by two-thirds of the voting membership and members unable to attend the annual special meeting may vote by mail. GX 41; Kidder, at 113-16. The Club did not approve this proposal; however, it did amend the Bylaws to provide that members be approved by 90% of those present and voting at the annual meeting. See supra p. slip op. at 28-29.
At the special meeting of the membership held on August 2, 1984, Mr. Kidder again proposed the resolution set forth above. Stip. 168-170; GX 41. The Club did not approve this proposal; however, it did amend the Bylaws to require that one sponsor of an applicant be present at the annual meeting. Stip. 171-175.
The reason or reasons for the Club's failure to approve Mr. Kidder's proposal are unknown. Therefore, the government has not shown that the Club's failure to approve Mr. Kidder's proposal was motivated by intentional discrimination.
7. Dyhan Cassie Testimony
In 1981, while the Cassie family was being interviewed for membership by John Boyd, Dyhan Cassie asked him if the Club was integrated. He responded, "oh no, . . . it was not integrated . . . it was only segregated because no black people had ever applied." Cassie Testimony, Tr. 6/15/88, at 103-04. Mr. Boyd had no specific recollection of this conversation with Ms. Cassie, although he testified that he usually tells prospective members that the Club is not integrated and not segregated. Boyd Testimony, Tr. 6/17/88, at 43-44. Assuming that Ms. Cassie's recollection of Mr. Boyd's statement is accurate, it is not sufficient to show intentional discrimination by the Club.
8. Racist Comments by Club Members
At one of the annual voting meetings, a Club member asked if there were any "niggers" applying that year. Kidder Testimony, Tr. 6/15/88, at 119. At the special meeting of the membership held on August 2, 1984 to discuss changes in membership policies because of concerns of discrimination in the Club, Ms. Biscontini, one of the members proposing these changes, was told by another member, "we don't need their kind and we don't need your kind either." Another member then said "nigger-lover". Biscontini Testimony, Tr. 6/15/88, at 135-37, 147-48. However offensive these statements may be, they express the views of the members who uttered them rather than a policy of the Club.
9. Proposal at 1984 Meeting
At the Club's Annual Meeting on November 15, 1984, a shareholder member suggested that the Club cure ill will by inviting qualified Lansdowne people of any race or religion to apply. GX 80, at 2. The Club's attorney advised that this action would jeopardize its private club status and that it should keep a low profile. Id. The rejection of this recommendation does not establish intentional discrimination, as it is consistent with the Club's belief that it was entitled to private club status and thus was not required to issue the proposed invitation.
G. ADDITIONAL REBUTTAL EVIDENCE
First, the Club offered evidence that black or dark-skinned guests have been admitted to the Club without incident. Cunningham Testimony, Tr. 6/16/88, at 6-9a; Johnson Testimony, Tr. 6/17/88, at 15-16; Kressley Testimony, Tr. 6/17/88, at 21-22, 25-27. The government does not contend that the Club discriminates in its guest policies and practices, but in its membership policies and practices United States' Post-Trial Supplemental Brief, at 6. Title II requires nondiscrimination in all of the privileges, advantages and accommodations provided by the Club, not simply the privilege of being a guest. See 42 U.S.C. § 2000a(a).
Second, the existence of other swim clubs in the area surrounding Lansdowne where black and part-black families could have obtained or did in fact obtain membership is irrelevant to whether LSC discriminated.
* * * *
In sum, I find that, upon consideration of all of the evidence and the applicable law, the government has sustained its burden of proving that the Lansdowne Swim Club has engaged in a widespread pattern or practice of discrimination against blacks from its inception to the present. When the Club was organized, it did not solicit blacks from the Lansdowne community and, when blacks inquired about membership, they were referred to the nearby "black" swim club. When black and part-black families requested or inquired about membership, the Club regularly failed to respond; the Club also had a reputation for discrimination, which deterred black and part-black families from applying. When black and part-black families satisfied the qualifications of Club membership, all but one were denied membership because of their race. "As [discriminatory] behavior has become more unfashionable, evidence of intent has become harder to find. But this does not mean that racial discrimination has disappeared." 12 Lofts Realty, 610 F.2d at 1043 (citation omitted). The evidence in this case convinces me that such discrimination has existed in LSC.
V. CONCLUSIONS OF LAW
1. The Lansdowne Swim Club is a place of public accommodation within the meaning of 42 U.S.C. § 2000a (b)(3), (b)(4).
2. The operations of the Club affect commerce within the meaning of 42 U.S.C. § 2000a (c)(3), (c)(4).
3. The Club is not a private club or other establishment not in fact open to the public within the meaning of 42 U.S.C. § 2000a (e).
4. The United States has sustained its burden of demonstrating that the Club has engaged in a pattern or practice of resistance to the full and equal enjoyment by black persons of the rights secured by 42 U.S.C. §§ 2000a -2000a-6, and that the pattern or practice is of such a nature and is intended to deny the full exercise of these rights.
I will defer entering a remedial order until the defendant responds to the Revised Proposed Remedial Order submitted by the government.
AND NOW, this 10th day of May, 1989, it is hereby
ORDERED that within twenty (20) days from the date of this Order, defendant will file a response to the government's Revised Proposed Remedial Order.