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Policing America's Swimming Pools -- an Old, Troubling Story

06/11/2015 05:11 pm ET | Updated Jun 11, 2016

The latest cannon fired in the ongoing controversy involving police misconduct and excessive force against unarmed African Americans landed this past weekend in McKinney, Texas, when video surfaced showing Eric Casebolt, an armed officer responding to a complaint about a pool party attended by Black teens at a community pool. The video captures a chaotic scene; teens forced to the ground, many seem confused by the officers' presence. Some teens flee, only to be forced body down or chased, others simply sit. One officer runs and trips; the kids help him, giving back the items he dropped. Other officers appear confused; they may wonder why were they called?

The hosts, Ms. Lashania Burkes and her daughter, Tatiana Rhodes, dispute accounts that the kids did not belong there -- as they claim, the teens were their guests, including the 14-year-old girl attacked by Officer Casebolt in the video. Others say that the invitation went viral and too many teens arrived at the pool, breaking community rules. Those who have seen the video emphasize that the girl wears a bikini and is clearly unarmed. She could not be more vulnerable. They explain that she isn't running -- she's sitting on the sidewalk before being yanked up by the officer and slammed to the ground, her neck pulled back as Officer Casebolt jerks her head back and heaves her onto the ground with the force of his body weight. He then places his knees on her back, while she screams in pain.

By all accounts, the video exposes a shocking display of excessive force and lack of professional discernment. No one would wish this on their daughter -- and shouldn't wish it on anyone else's child. At no time in the short video do other officers intervene to stop Casebolt, nor do white residents of this small upper-income community. At least one local resident claims that police were justified in their actions, generally, and Casebolt, particularly. In an interview the unidentified woman suggested that even more aggressive action would have been justified; she claims the officer is a hero and deserves a medal.

The drama of the swimming pool and claims that African Americans don't belong in such spaces occupy a historic narrative in the American psyche. Uniquely, when civil rights victories were secured in education, voting rights, jobs and even housing, swimming pools remained a segregated stronghold, permitted by the U.S. Supreme Court. To maintain segregation in swimming facilities, municipal governments threatened to shut down pools before they would allow them to be integrated. In Palmer v. Thompson, a 1971 case that reached the Supreme Court, the city council of Jackson, Mississippi argued that it could not safely nor economically operate pools if they were integrated. The city shut down its pools rather than to integrate them. The Supreme Court ruled that closed pools would impact all citizens equally and therefore was not unconstitutional -- this despite the fact that the city leased one pool to the YMCA, which allowed only whites to swim.

In defense of segregated pools, local governments and private clubs and hotels relied on stereotypes that Blacks were polluted and would contaminate the water, thereby risking white Americans' health. In fact, municipalities regularly drained the water and cleaned the pools after Blacks enjoyed their one day per week to swim. In an infamous photo, one motel manager is shown pouring acid on Black swimmers. Similar actions took place against Mexican Americans. Such rationales also justified segregated water fountains as well as banning interracial marriage. Prior to 1967, states prohibited interracial unions also on health grounds, claiming that "races" were not intended to mix, that mongoloid children would result and white racial purity would be sullied by exposure to biological contamination of an "inferior" race.

In our forthcoming Harvard Law Review article, Erwin Chemerinsky and I address the historical roots of public health serving as a proxy for racial discrimination. Dating back to the Plague, public health has been used as a proxy for not only state based discrimination, but even violence. In Europe, Jews were murdered during the Plague, accused of harming the water supply and otherwise infecting Germans.

In the U.S., fears about biological contamination contributed to the eugenics movement, which resulted in the sterilization of thousands of American men and women as well as boys and girls. In an infamous case, Buck v. Bell, Justice Oliver Wendell Holmes ruled, "[i]t is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. . . . Three generations of imbeciles are enough."

Justice Holmes claimed that the principle sustaining compulsory vaccination in states like Massachusetts "is broad enough to cover cutting the Fallopian tubes," because the public's health calls upon even "the best citizens for their lives." In that case, the person making the "sacrifice" to go without ever having children again was a poor, white teenager who had been raped at 16 by her employer's nephew. The Supreme Court ruled that she was biologically unfit. In our law review article we issue a warning about civil liberties in times of perceived health threat, because biased responses can lead to the erosion and abuse of civil liberties.

In our law review article, we also point to immigration policy, explaining that it was dictated in some measure by concern about those who might contaminate society either by their habits or health, and much of this was racialized, leading to the exclusion of Chinese in the first half of the 20th century and the close safeguarding of U.S. borders at Ellis and Angel Islands, which were actually quarantine stations.

The fears of contamination and contagions are stingingly felt in the context of swimming pools. In a compelling law review article, Professor Taunya Lovell Banks, a former civil rights attorney, writes about how many of the Blacks who drowned, during Hurricane Katrina, likely couldn't swim. Her law review article probes why. Her answer: They grew up in an era when Black Americans had no, or limited access to swimming facilities. Professor Banks recalled this discrimination first hand as a child. In her article, she explains, "[Blacks] lived their lives in communities that did not allow them to practice their swimming skills and engage in a life-long form of exercise."

These historic issues reemerged not long ago. In 2009, Creative Steps Day Camp paid the "Valley Swim Club, a private facility in Huntington Valley, Pennsylvania, a $1950 membership fee for weekly access by their campers" to use the club's pool. However, when the swimmers arrived, white children "immediately exited the pool." The African American campers were asked to leave and not come back. National news reports captured the incident and the club's response. The Valley Swim Club's president issued a statement, clarifying "there was concern that a lot of kids would change the complexion...and the atmosphere of the club." Professor Banks reminds us this was not 1959, but rather 2009.

In his passionate dissent in Palmer, Justice Douglas compared swimming pool access and segregation to schools, arguing that maintaining such systems "would dedicate the State to backwardness, ignorance and existence in a new Dark Age."

Most striking in his dissent, however, was Douglas' warning that:

[t]he closing of the [Jackson, Mississippi's] pools has done more than deprive a few thousand Negroes of the pleasures of swimming. It has taught Jackson's Negroes a lesson: In Jackson the price of protest is high. Negroes there now know that they risk losing even segregated public facilities if they dare to protest segregation. Negroes will now think twice before protesting segregated public parks, segregated public libraries or other segregated facilities. They must first decide whether they wish to risk living without the facility altogether, and at the same time engendering further animosity from a white community which has lost its public facilities also through the Negroes' attempts to desegregate these facilities.

Professor Goodwin's forthcoming article with Dean Erwin Chemerinsky: 'No Immunity: Race, Class, & Civil Liberties In Times of Health Crisis' will be published in the Harvard Law Review.