Asheville human relations lawsuit could become class-action case

Image of downtown Asheville, N.C., at night, via City of Asheville website.

Listen to this story (8 minutes)

  • Plaintiffs challenging race-based membership qualifications for Asheville's Human Relations Commission hope to pursue a class action suit.
  • They seek to represent "past, present, future, and deterred" commission applicants rejected because of their race.
  • A federal judge issued a Sept. 29 order rejecting the plaintiffs' request for a preliminary injunction. Asheville is scheduled to select new commission members Tuesday.

Asheville residents challenging membership requirements for the city’s Human Relations Commission hope to pursue a class-action case. Paperwork filed Friday in federal court seeks to extend the suit to anyone disqualified by race from serving on the advisory group.

Five plaintiffs initially filed suit against Asheville in September. US District Judge Martin Reidinger issued a Sept. 29 order rejecting their request to block Asheville from naming new commission members this week. A vote is scheduled Tuesday.

Now the plaintiffs, working with the Pacific Legal Foundation, seek to expand the number of people covered by the legal action.

“The proposed class consists of past, present, future, and deterred nonminority Asheville or Buncombe County applicants to the Human Relations Commission of Asheville (HRCA) that — but for their race — are qualified to apply and compete for an appointment to the HRCA on equal footing,” wrote the plaintiffs’ lawyers.

A memorandum supporting the class action suggests that courts tend to look for a class action to involve at least 40 people.

“Although it is difficult to determine the exact number of class members, any reasonable estimate would put the number of class members at well above 40,” according to the plaintiffs. “For one, Asheville has received at least 46 applications to the HRCA from nonminority applicants who were subjected to the City’s race-based preferences, and about 30 of those nonminority applicants were not appointed to the HRCA.”

“But these numbers do not account for all the would-be nonminority applicants to the HRCA — in the past and future — if not for the City’s advertisements of its race-based preferences for appointing individuals to the HRCA,” plaintiffs’ lawyers argued.

“Recent Census Bureau data estimates that 77.5% of Asheville’s 93,776 residents are white and non-Hispanic. Thus, it would be an impracticable, time-intensive endeavor to contact all eligible nonminority citizens of Asheville and Buncombe County to inquire if they would have applied for appointment to the HRCA but for the City’s policies of race-based preferences for appointments and would be willing to join this lawsuit,” according to a court memorandum.

When Reidinger rejected the plaintiffs’ request for a preliminary injunction last month, he also rejected Asheville’s motion to dismiss the lawsuit.

“The Plaintiffs’ applications to the HRCA are still pending,” Reidinger added. “To the extent that any of the Plaintiffs are not appointed by the HRCA at the October 10, 2023, City Council meeting, and such Plaintiffs are not appointed as a result of some unlawful action by the Defendants, then any such harm can be remedied by further order of this Court.”

The plaintiffs claim Asheville is using unconstitutional racial preferences as it decides who can serve on the city Human Relations Commission.

Residents who want to serve on the commission “are required to compete for an appointment on unequal grounds,” according to a court document. “In addition to demonstrating an interest in local government, prospective appointees must also meet a requirement that treats them differently on the basis of their race. Section 2-185.25(b)(2) of the Asheville Code of Ordinances requires the City Council to prefer minority applicants for appointment to the HRCA. The City must specifically favor applicants who are Black or African American, Latino/a or Hispanic individuals, Native American and Indigenous people, and Asian Americans.”

“Defendants’ race-based appointment preferences cannot survive constitutional scrutiny,” wrote lawyers working for five commission applicants. “Strict scrutiny demands that racial classification like these can only be upheld where they further a compelling interest and are narrowly tailored to that interest. Defendants cannot satisfy strict scrutiny. They have never asserted that the race-based appointment preferences remedy specific instances of discrimination against the favored groups, nor have they demonstrated why race-neutral criteria are inadequate for selecting members to the HRCA.”

The plaintiffs “do not identify as any of the races that the Asheville ordinance prefers. Yet each of them possesses unique backgrounds and a passion for making a difference in their community,” the memorandum continued.

“The City of Asheville deprives Plaintiffs equal consideration for an appointment to the HRCA because of their race in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution,” plaintiff’s lawyers wrote. “Since the Asheville City Council will appoint members to vacant positions on the HRCA on October 10, 2023, Plaintiffs require expedited preliminary relief to prevent Defendants from making appointments in a discriminatory manner before this Court can decide the merits of Plaintiffs’ claims.”

Carolina Journal first reported on the case, Miall v. Asheville, on Sept. 6.

Asheville’s Human Relations Commission, created in 2018, is a volunteer group designed to “promote and improve human relations and achieve equity among all citizens in the city by carrying out the city’s human relations program,” according to the original complaint.

The commission publicized at least four open positions in February 2023. All five plaintiffs applied.

“Plaintiffs did not meet Defendants’ racial criteria nor the other criteria of being disabled, living in public housing, between the ages of 25 and 18, a member of the LGBTQ community, nor were Plaintiffs ‘recognized community leaders’ as Defendants considered that term,” according to the original suit.

Asheville rejected the plaintiffs’ applications in June. “At no time prior to rejecting Plaintiffs’ applications did Defendants communicate with Plaintiffs regarding their interest in the HRCA; nor did they seek any further information from the Plaintiffs regarding their qualifications to serve on the HRCA,” the complaint explained.

“Rather than appoint Plaintiffs to the HRCA, Defendants elected to leave the open positions vacant and re-advertise the openings in the hopes of obtaining applicants who met Defendants’ criteria,” according to the suit.

“At all relevant times, Defendants excluded white persons from serving on the HRCA unless they could qualify under … additional criteria,” the plaintiffs argued. “In effect, white applicants must demonstrate a ‘plus factor’ (age, homosexual/ transgender, disability status, public housing resident, or community leader) before being qualified for service.”

“Defendants conspired with each other to organize and administer the HRCA in a way that was discriminatory on the basis of race and ethnicity,” the complaint argued. “At all relevant times, Defendants were, and continue to be, aware that its organization and administration of the HRCA which discriminated and will continue to discriminate against applicants on the basis of race and ethnicity was and continues to be a violation of the Equal Protection clause of the 14th Amendment to the U.S. Constitution and also a violation of Title VI of the 1964 Civil Rights Act.”

City officials disputed the plaintiffs’ argument that they were rejected from the group because of their race.

“[A]ll five of the Plaintiffs’ applications for appointment to the Human Relations Commission of Asheville … are still pending with the City,” according to the city’s motion to dismiss the case. “Applicants for advisory boards, like HRCA, are expressly told at the time of their applications that they will remain listed as active applicants for consideration for appointment for a period of one year after the date of their application.”