PHILADELPHIA – After a federal judge dismissed a discrimination suit from Philadelphia City Council member Mark Squilla and local Italian-American groups over Mayor Jim Kenney’s removal of Columbus Day as an observed city holiday, the case has been appealed to the U.S. Court of Appeals for the Third Circuit.
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 of Philadelphia 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.
The City’s attorneys filed a motion to dismiss the complaint on May 12.
“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.
UPDATE
U.S. District Court for the Eastern District of Pennsylvania Judge C. Darnell Jones II dismissed the plaintiffs’ case on Jan. 12, finding that the plaintiffs could not demonstrate that Kenney’s order targeted and discriminated against them.
“Plaintiffs cannot claim that they have been prevented from celebrating either Christopher Columbus or Italian-American heritage with the renaming of the holiday, and plaintiffs can still, personally, refer to the holiday as Columbus Day. Though plaintiffs allege that defendants’ renaming of Columbus Day wipes away recognition of Italian-Americans in favor of Indigenous People, they fail to state any discriminatory impact that supports such a conclusion,” Jones said.
“Here, no ‘particular prejudice,’ nor much additional expense, would result from any additional delay because plaintiffs can easily file similar briefs in state court. Because plaintiffs raise many claims that closely impact the citizens of Philadelphia, state court is a more appropriate venue to address their supplemental state law claims.”
According to a spokesperson, the City was “grateful” for Jones’s ruling.
“The lawsuit lacked any legal merit and the Court recognized this by granting our motion to dismiss in its entirety. The City continues to proudly celebrate the second Monday of October as Indigenous Peoples’ Day, honoring the contributions and history of Native Americans. We remain committed to allowing residents to celebrate their heritage and culture in the manner they choose, while respecting the histories and circumstances of their fellow Philadelphians that come from different backgrounds,” the spokesperson said.
One week later, on Jan. 19, the plaintiffs filed an appeal of the case to the Third Circuit.
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. Court of Appeals for the Third Circuit case 22-01116
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