PHILADELPHIA – Counsel for the City of Philadelphia and Mayor Jim Kenney are seeking to dismiss a discrimination complaint from Philadelphia City Council member Mark Squilla and local Italian-American groups over Kenney’s removal of Columbus Day as an observed city holiday, arguing it lacks any factual basis.
The Conference of Presidents of Major Italian American Organizations, Inc. of Yonkers, N.Y., plus Squilla, the 1492 Society and Jody Della Barba, all of Philadelphia, first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on April 6 versus the City and Kenney.
The suit assailed the City and Kenney as having engaged in “continued, unrelenting, and intentionally discriminatory acts” against Italian-Americans – punctuated by Kenney’s Executive Order 2-21, which replaced Columbus Day as an official City holiday with Indigenous Peoples Day.
“While both groups’ ethnicity deserve recognition, Mayor Kenney may not take action that discriminates against Italian-Americans to exalt another ethnic group in its place,” the suit stated.
“Mayor Kenney made no proposal to City Council about canceling Columbus Day, nor ever sought its approval, never obtained approval from the Civil Service Commission, never provided the public with the requisite notice and opportunity to be heard, never considered (or explicitly ignored) Pennsylvania state law (which expressly designates Columbus Day as a holiday across the Commonwealth), and never engaged in activity integral to a functioning democracy.”
The plaintiffs argued that the City and Kenney violated the Home Rule Charter, through Kenney’s alleged unilateral decision to remove Columbus Day from the City’s list of observed holidays, without input and discussion from the City Council.
Besides criticizing Kenney’s executive order, the suit referred to a number of other incidents where the mayor is said to have made discriminatory remarks and taken discriminatory actions against Italian-Americans.
“Mayor Kenney previously took unilateral actions against two iconic Italian American statues prominently displayed for decades within the City of Philadelphia: First, the removal of the Frank L. Rizzo statue (in the middle of the night) from the plaza at the Municipal Services Building and, second, the attempted removal of the 140 year-old Christopher Columbus statue from its longtime home at Marconi Plaza,” the suit stated.
No other statues in the City (amongst the many hundreds) have been targeted by the Mayor. Both attempted seizures of Italian-American statues are the subject of separate lawsuits now pending against the City of Philadelphia and Mayor Kenney.”
The suit alluded to other examples of alleged discriminatory behavior, including where COVID-19 vaccines were distributed and the recent demotion of a Philadelphia police captain of Italian heritage.
“By way of further recent example, Mayor Kenney blatantly discriminated against Philadelphia’s First Councilmanic District (largely populated by Italian-Americans) by purposely depriving them of COVID relief vaccinations when making city-wide allocations,” the suit stated.
“Mayor Kenney also recently demoted Captain Louis Campione from his longtime assignment in Philadelphia’s First Police District, baselessly accusing him of sanctioning ‘vigilantism’ when South Philadelphia Italian American residents sought to protect the Columbus Statue located at Marconi Plaza from vandalism by protestors.”
Furthermore, the suit referenced part of a remark Kenney made in 2016, where the mayor was discussing his support for Philadelphia to remain a “Sanctuary City” for all immigrants and said, in part, “If this were Cousin Emilio or Cousin Guido, we wouldn’t have this problem because they’re white.”
[For clarity and in context, the full remark was, “This is about mayors buckling under the pressures of xenophobes and racists. This is undocumented brown and black people and that’s what drives the underlying source of anger…if this were Cousin Emilio or Cousin Guido, we wouldn’t have this problem because they’re white.”]
“Such actions collectively paint a picture of a mayor unmistakably bent on prejudicing Italian-Americans and governing the City of Philadelphia according to crude racial stereotypes and unconstitutional racial classifications,” the suit said.
UPDATE
The City’s attorneys filed a motion to dismiss the complaint on May 12, charging that it is legally unsupported and therefore, does not create a cause of action that can be brought in federal court.
“There is no precedent to support the plaintiffs’ theory that anti-discrimination law provides a remedy, when a political body like the City revisits and revises the words it will use to refer to a holiday. And this Court should dismiss plaintiffs’ claim as a matter of law,” the dismissal motion stated.
“The words our elected officials use to refer to a municipal holiday constitute speech protected by the First Amendment; indeed, other courts have rejected the rare cases in which a plaintiff has tried to bring an equal protection claim around the naming of holidays or changes to analogous symbols.”
The City further counters the allegations of discrimination leveled against it as “absurd, frivolous, and lacking in any factual basis.”
“The events plaintiffs use to try and craft this narrative are wholly unrelated to the City’s decision to acknowledge our deeply complicated heritage and therefore are of little relevance to this Court’s legal analysis. Each of the acts that plaintiffs reference as purported proof of discriminatory intent is either blatantly misrepresented or taken entirely out of context in the complaint,” the motion said.
In the eyes of the City, though it understands the plaintiffs “relate to Christopher Columbus as an important and heroic historical figure and symbol for their Italian American identity, and find the contemporary public discourse that views Columbus’ history and the ‘discovery’ of America as deeply complicated to be mistaken”, the City finds those views are not enough for action in federal court.
“Plaintiffs lack Article III standing because they have not alleged any discriminatory treatment or concrete direct harm that they have experienced or will experience as a result of the Executive Order. Plaintiffs’ claims are directed at government speech, which may not form the basis of an Equal Protection claim. In addition, the Executive Order does not cause any unequal treatment,” the motion stated.
For counts of declaratory judgment, violating federal law applicable to equal protection, Philadelphia’s Home Rule Charter, separation of powers, the Sunshine Act and the Home Rule Act, the plaintiffs are seeking an order:
• Declaring Executive Order 2-21 void and enjoining Mayor Kenney and the City of Philadelphia from taking any action to implement Executive Order 2-21 insofar as it seeks to cancel Columbus Day, in any way;
• Declaring Italian-Americans a protected class entitled to Equal Protection under the U.S. Constitution;
• Declaring Mayor James F. Kenney’s Executive Order 2-21 violates the Equal Protection Clause of the U.S. Constitution;
• Awarding them attorney’s fees, costs, and such other and further relief as the Court deems just and equitable.
The plaintiffs are represented by George Bochetto, John A. O’Connell, David P. Heim and Matthew L. Minsky of Bochetto & Lentz, in Philadelphia.
The defendants are represented by Meghan E. Claiborne, Benjamin H. Field and Lydia M. Furst of the City Solicitor's Office, also in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-01609
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com