U.S. District Judge Susan Illston issued her long-awaited Warm Pool ruling Dec. 19, rejecting a request that she order the City of Berkeley and Berkeley Unified School District to keep the pool open and operating.
For all practical purposes, the ruling ends the Warm Pool lawsuit as a public policy matter. The lawsuit will continue its course to decide monetary damages for injuries sustained by the plaintiff, Terry Cochrell, in a July 2010 accident at the pool. But the ruling pours cold water on Cochrell's argument that the federal Americans with Disabilities Act obligates the City to provide a 92-degree Warm Pool for the City's disabled residents.
The Warm Pool, located in the Old Gym at Berkeley High School, ended nearly three decades of operations Dec. 15, when it closed for the last time after a mock funeral attended by its users and supporters. The pool will remain vacant and padlocked until the building's scheduled demolition in June 2012 to make way for new gym and classroom facilities for the overcrowded campus.
In her 13-page ruling, Illston made three principal findings. Here are direct excerpts:
- (...) as the City notes, ADA accessibility design guidelines do not mandate any particular temperature for pools, and the City argues, with some force, that if the Court granted plaintiff the injunctive relief he seeks -- a 92 degree graduated depth pool -- the Court would essentially be mandating a new access requirement for any public entity that provides an aquatics program.
- The record before the Court shows that if there was a significant earthquake in the Bay Area, the Old Gym would likely collapse. (...) given the risk to public safety in the event of an earthquake, the Court concludes that the requested injunction is not in the public interest.
- In evaluating the balance of the equities, the Court also finds that the availability of the Berkeley YMCA warm pools weighs in favor of denying the injunction. (...) Although the YMCA warm pools are not identical to the Warm Pool in configuration and temperature, they do provide an alternative warm swimming option to plaintiff.
The full ruling can be read here.
As we have stated publicly on frequent occasions, the Berkeley Pools Campaign takes a neutral position on the lawsuit. We were and remain strong supporters of the Warm Pool, and we now hope the City Council will approve a bond measure for all of Berkeley's municipal pools, including a new Warm Pool, for the November 2012 ballot. At the same time, we have always been and always will be strong supporters of Berkeley's public schools. We are all in this together -- pools and schools, young and old, able-bodied and disabled.
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