Magistrate judge would allow lawsuit targeting Asheville board to proceed

A federal magistrate judge recommends that plaintiffs be allowed to proceed with a lawsuit challenging Asheville’s rules for selecting its Human Relations Commission. The suit contends that the city violated constitutional bans on racial discrimination.

US Magistrate Judge Carleton Metcalf filed a memorandum Monday supporting the plaintiffs’ bid to move forward with a claim that Asheville violated their right to equal protection of the laws. At the same time, Metcalf recommended dismissing a separate claim under a federal law that specifically helps plaintiffs who are members of a “racial minority.”

Parties in the case who object to Metcalf’s recommendations must file paperwork in US District Court by Sept. 9.

In the case Miall v. City of Asheville, white applicants to the Asheville Human Relations Commission challenged city rules that offered preferences for commission membership to minority applicants.

Metcalf rejected Asheville’s claim that the lawsuit is moot. The original complaint targeted a 2022 city ordinance that was updated in 2023. Asheville also has appointed original lead plaintiff John Miall to the commission during the litigation.

“The 2023 Ordinance does not impose quotas, nor does it require the appointment of individuals who are members of a minority groups,” Metcalf wrote. “However, even if the language of the 2023 Ordinance, standing alone, is constitutionally permissible, the Amended Complaint, when read in the light most favorable to Plaintiffs, alleges that the 2023 Ordinance as it is applied and administered by the City continues to place non-minority applicants on unequal footing as compared to their minority counterparts.”

“Here, Plaintiffs (including Miall) seek an award of nominal damages. Therefore, Miall’s appointment to the Commission has not entirely mooted his claims,” Metcalf added.

Asheville has appointed white members to the commission, but that’s not the end of the judge’s inquiry, Metcalf explained.

“Plaintiffs allege that ‘the City Council will not endeavor to appoint white residents unless they also satisfy a separate category, such as being a member of the LGBTQ+ community, a youth member, disabled, living in public housing, or recognized as a community leader,’” he wrote. “’On the other hand, the City Council will automatically prefer minority applicants without requiring those applicants to satisfy a separate category.’”

“Under these circumstances, whether Plaintiffs have alleged adequately that they were treated differently from similarly situated applicants based on race presents a close call,” Metcalf wrote. “[C]onsidering Plaintiffs’ allegation that white applicants must ‘also satisfy a separate category’ to be on equal footing to ‘prefer[red] minority applicants,’ the undersigned will recommend that this claim be allowed to proceed.”

US District Judge Martin Reidinger is overseeing the case. He issued a ruling in January denying class-action status.

Residents who want to serve on the commission “are required to compete for an appointment on unequal grounds,” according to a court document filed by the plaintiffs. “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.”

“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.

Carolina Journal first reported on the case, Miall v. Asheville, in September 2023.

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.

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

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