Judge rejects class-action status for race discrimination lawsuit against Asheville board

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

Listen to this story (9 minutes)

  • A federal judge has rejected class-action status for a lawsuit challenging race-based membership qualifications for Asheville's Human Relations Commission.
  • Judge Martin Reidinger ruled that plaintiffs had not presented evidence showing that potential plaintiffs had been injured by the city's policies.
  • "[S]imply concluding that additional white residents in the county might have considered applying for the HRCA is not" enough of a reason to turn the case into a class action, Reidinger wrote Monday.

A federal judge has denied class-action status in a lawsuit challenging race-based membership qualifications for an Asheville advisory board. Plaintiffs had argued that the rules discriminate against white applicants to the Human Relations Commission.

“Plaintiffs contend that the class can be certified based on the alleged 46 applications from nonminority applicants that were subjected to the race-based preferences, of which the Plaintiffs allege 30 were not appointed,” Judge Martin Reidinger wrote in an order signed Monday. “These 46 applicants, the Plaintiffs argue, put the estimated number of class members ‘well above 40.’”

“However, the Plaintiffs have not presented any evidence indicating why the 30 of those 46 alleged applicants were rejected from membership on the HRCA,” Reidinger wrote. “Given that the criteria included experience or interest in human relations and residence in Asheville or Buncombe County in addition to the demographic criteria, it is not clear whether these 30 applicants were rejected solely on the basis of their race. Therefore, the Plaintiffs assertion that they would all qualify for class membership is merely conjecture.”

“It is also unclear as to how all of these applicants would have standing to challenge the Defendants’ actions given that the HRCA ordinance and policy have been amended since many of these applicants applied,” the judge added. “A plaintiff does not have standing to challenge a statute that was never applied to him.”

Redinger noted that plaintiffs filed suit on Sept. 5, “almost a year after the HRCA membership policies were amended to remove the demographic quotas.”

“[T]he Plaintiffs have not adequately shown that even the 30 alleged applicants denied appointment belong in their class; the records provided by the Plaintiffs themselves instead indicate that only 11 applicants in total have applied for membership under the revised policy, at least two of whom have already been appointed for membership,” the judge explained. “Of the nine applicants remaining, four are already Plaintiffs in this matter.”

“In an effort to broaden their class membership, the Plaintiffs further argue that the proposed class includes not only any nonminority person who has applied for membership on the HRCA and was rejected, but all potential applicants within Buncombe County who might have been chilled from applying for membership because of the publicized demographic preferences,” Reidinger wrote. “The Plaintiffs, however, have not presented any evidence that such a class exists.”

“While speculative representations as to the size of the class can be sufficient, simply concluding that additional white residents in the county might have considered applying for the HRCA is not,” he explained.

“In essence, the Plaintiffs argue that the demographic criteria required for applicants to the HRCA has an adverse impact on potentially all nonminority residents of Asheville. However, the ‘”mere existence” of a potential harm is not enough to justify class certification; actual injury to each class member must be shown,’” Reidinger wrote. “The Plaintiffs have made no such showing.”

Plaintiffs claim Asheville is using unconstitutional racial preferences as it decides who can serve on the 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.”

As Reidinger noted, Asheville eventually appointed lead plaintiff John Miall to the board.