Asheville plaintiffs seek emergency order against human relations appointments

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

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  • Plaintiffs challenging appointments to Asheville's Human Relations Commission are seeking an emergency restraining order and injunction in federal court.
  • Asheville is scheduled to make appointments to the advisory group on Oct. 10.
  • Critics say the city is using unconstitutional racial preferences in deciding who can serve on the commission.

Plaintiffs challenging appointments to Asheville’s Human Relations Commission are seeking an emergency restraining order and injunction in federal court. They claim the city is using unconstitutional racial preferences in choosing members for the advisory board.

Asheville plans to make appointments to the board on Oct. 10.

Residents who want to serve on the commission “are required to compete for an appointment on unequal grounds,” according to a document filed Wednesday in US District Court. “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.”

“All four elements of the standard for obtaining preliminary relief are satisfied here: Plaintiffs are likely to succeed on the merits of their equal protection claim; they will suffer irreparable harm in the absence of preliminary relief; the balance of hardships tips in Plaintiffs’ favor; and an injunction is in the public interest,” according to the memorandum.

Pacific Legal Foundation joined the case on Tuesday, helping plaintiffs file an amended complaint in the case titled Miall v. Asheville.

“We’re involved because we want to vindicate the right of individuals to be treated equally,” said PLF attorney Jessica Thompson in an interview with Carolina Journal. “Race is but an arbitrary classification that Individuals do not choose. We are born with our race. We get to choose our affiliations. I’m affiliated with Pacific Legal Foundation. I chose to go to UNC Chapel Hill and be affiliated with that university. But I didn’t get to choose my race or my skin color.”

“We believe individuals should be treated as individuals,” Thompson added. “And their experiences and their unique perspectives should be valued as such.”

“The opportunity to serve your local community should not depend on your race,” said PLF attorney Andrew Quinio in a news release. “Asheville’s candidates for public service should be treated as individuals, instead of mere members of arbitrary racial groups. Asheville needs to stop making assumptions about people’s experiences and qualifications based on arbitrary and offensive racial classifications.”

Carolina Journal first reported on the legal fight 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 filed in US District Court.

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.”

“They never asked me a thing,” said plaintiff John Miall, in a news release from the Asheville-based group WNC Citizens for Equality. “They just took one look at my skin color and rejected me. I have a lot to offer, but that doesn’t matter, I guess.” 

Miall is a “lifelong resident” of Asheville, according to PLF’s Tuesday news release. He spent nearly 30 years working for the city. His service included work as Asheville’s director of risk management.  “He secured many historic firsts for the city’s health and benefits plans, and although John is now retired, his passion for public service has never diminished,” PLF explained.

“He felt his decades of municipal experience and continued service to his community would be a natural fit for the HRCA,” according to the release. “Nevertheless, when he applied for one of the vacant seats, Asheville passed on his application because of his race and readvertised the open positions.”

Asheville filed a motion on Sept. 14 to dismiss the lawsuit. 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 motion. “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.”