Deal could end racial discrimination lawsuit challenging Asheville board

A federal lawsuit challenging the way Asheville chooses members of its Human Relations Commission could end with a deal. Parties in the case filed a proposed consent decree Friday.

If a judge approves the deal, plaintiffs will agree to dismiss the suit.

Five plaintiffs working with the Pacific Legal Foundation accused Asheville of rejecting them for the Human Relations Commission because they are white.

“The Complaint alleges that Defendants have discriminated and will discriminate against applicants, including Plaintiffs, to the Human Relations Commission of Asheville … on the basis of race in considering them for appointment to the HRCA, as set forth in Asheville Ordinance Sec. 2-185.25(b)(2)(b.), in violation of the Fourteenth Amendment to the United States Constitution,” Friday’s court filing explained.

The consent decree would “constitute a complete and final settlement of Plaintiffs’ claims.”

Asheville would amend its ordinance by Tuesday, removing the disputed section, according to the document.

“Defendants will administer Asheville Ordinance Sec. 2-185.25 without regard to the race, ethnicity, color, or national origin of any applicant for appointment to the HRCA,” the court filing added. “Defendants shall state on the HRCA website and any website informing about vacant positions on the HRCA that appointment to the HRCA is not restricted to individuals of any particular race, ethnicity, color, or national origin, nor do Defendants consider such traits in making appointments to the HRCA.”

The consent decree would not prevent the plaintiffs from filing future lawsuits related to appointments to “any board, commission, or committee for the City of Asheville.” The deal would not block the city “from implementing eligibility and appointment criteria for any board, commission, or committee for the City of Asheville that complies with the Fourteenth Amendment as construed by the courts.”

All five plaintiffs have signed the document, as has a city representative.

US Chief District Judge Martin Reidinger issued an October 2024 order rejecting Asheville’s motion to dismiss the case. Reidinger allowed both pieces of the original complaint to proceed. He reversed a magistrate judge’s recommendation to drop part of the suit.

“[T]he Defendants argue that the Magistrate Judge erred by concluding that the Amended Complaint contained sufficient factual allegations to state an equal protection claim under § 1983,” Reidinger wrote. “After careful review of the Magistrate Judge’s Memorandum, the Court finds that the proposed conclusions of law concerning the Plaintiffs’ equal protection claim under § 1983 are consistent with current case law.”

“Accordingly, the Court accepts the Magistrate Judge’s recommendation that the Defendants’ Motion to Dismiss should be denied with respect to the Plaintiffs’ § 1983 claim,” he added.

Section 1983 refers to a federal law cited when plaintiffs file suit against government officials for violation of legal or constitutional rights.

Reidinger also addressed a separate claim under Section 1981, which protects people from government discrimination.

“[T]he Plaintiffs argue that the Magistrate Judge erred by concluding that the Plaintiffs could not state a claim under § 1981 because none of the Plaintiffs are racial minorities,” the judge wrote. ”With respect to this claim, the Magistrate Judge concluded that the ‘Plaintiffs have alleged that they are not members of a racial minority, and therefore have failed to state a claim for violation of Section 1981 as a matter of law.’”

“However, it is well-established that white litigants, in addition to members of racial minorities, may bring actions for violations of § 1981,” Reidinger explained. “Therefore, the Plaintiffs’ § 1981 claim is ‘plausible on its face,’ and the Court declines to accept the Magistrate Judge’s recommendation to dismiss the Plaintiffs’ § 1981 claim.”

US Magistrate Judge Carleton Metcalf filed an August 2024 memorandum 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.”

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 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.”

Reidinger issued a ruling in January 2024 denying class-action status in the case.

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.

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.

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