5 white Asheville residents denied class action in racial bias lawsuit against city

ASHEVILLE — A federal judge signed an order denying class-action status for five white Asheville residents who filed a federal lawsuit against the city of Asheville alleging discriminatory policies on the basis of race.

The lawsuit, which was filed Sept. 5 and cites 14th Amendment rights, was brought after the plaintiffs were not appointed to the city’s Human Relations Commission, a volunteer advisory board dedicated to advancing issues of equity and to carry out the city’s human relations program.

On Oct. 6, plaintiffs John Miall, Robyn Hite, David Shaw, Danie Johnson and Willa Grant filed a motion through their attorneys that their lawsuit be certified as class action. Their proposed class would consist of “all past, present, future and deterred nonminority Asheville or Buncombe County applicants” to HRCA, their motion states.

The plaintiffs allege 46 applications from nonminority applicants were subjected to race-based preferences, 30 of which were not appointed, according to the judge’s order. They argue this creates a class of well above 40 members for a class-action lawsuit against the city.

Previous coverage: 5 white residents suing city of Asheville over allegations of racial bias

However, Chief U.S. District Judge Martin Reidinger ruled that it’s “merely conjecture” that the 30 would qualify for class membership because the plaintiffs have not presented evidence that all the applicants were rejected based only on their race.

“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.”

The judge also noted that the city ordinance and policy regarding HRCA membership has been amended since many of the 30 individuals applied, citing a U.S. Supreme Court ruling that states a plaintiff cannot challenge the constitutionality of a statute that never applied to them.

Who is eligible for HRCA membership?

In 2019, HRCA adopted criteria for membership, the order said. Among other qualifications such as interest and experience in human relations, the city ordinance outlined a specific numerical breakdown of how many people on the commission should be members of different demographic groups, including:

• Six African Americans.

• Two Latino/a or Hispanic individuals.

• Two members of the LGBTQ community.

• Two youth members between the ages of 18 and 25.

• Two to three individuals who live in public housing.

• Two individuals with a disability.

• Three individuals who are recognized as community leaders.

• At least one member from North Asheville, South Asheville, West Asheville, East Asheville, and the downtown area.

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However, in September 2022, the HRCA amended its policies to delete these numerical quotas on diversity and amended language in the city ordinance to say that membership appointment would provide equal access to serve on the HRCA to “all historically disadvantaged groups,” according to the judge’s order.

Previously, the HRCA was made up of 15 members, but was slimmed down to nine people, who should "reflect the groups of individuals that the human relations program is intended to protect," according to the commission's website. Those in the committee are eligible to serve two consecutive two-year terms.

“This action was filed on September 5, 2023, almost a year after the HRCA membership policies were amended to remove the demographic quotas,” Reidinger said in the order. “Therefore, to the extent the Plaintiffs are challenging the constitutionality of the HRCA policy on its face, the only appropriate class members would be those who have applied since the policy was amended.”

Based on records provided by the plaintiffs themselves, only 11 applicants have applied since the revised policy, of whom two have already been appointed and four of whom are already plaintiffs in the lawsuit, according to the order.

“Surely, joinder of these members does not require class certification, nor does this Court find that a class of, at the most, only nine members can meet the requirements of Rule 23,” Reidinger wrote, referencing Rule 23 of the Federal Rules of Civil Procedures that requires the members of a class-action lawsuit be “readily identifiable.”

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“The city of Asheville is pleased with the Court's order denying class action certification in the case,” City Attorney Brad Branham told the Citizen Times by email.

“The city remains firm in our commitment to equity and inclusion on all city boards and commissions, and we continue to deny the allegations of the lawsuit suggesting discrimination of any type. The city shall continue to vigorously defend its position and believe the Plaintiff's claims will ultimately fail."

One of the attorneys for the plaintiffs, Andrew Quinio, told the Citizen Times that he believes the changes in policy shows that “the city really hasn’t changed much” and the policy “continues to apply racially discriminatory criteria.”

“Every version of Asheville’s Human Relations Commission ordinance plainly discriminates against applicants based on race and the discriminatory policy has a real impact on citizens in Asheville and Buncombe County that wish to serve their community, including discouraging them from even applying to begin with,” Quinio said.

“Unfortunately, the court’s decision will not include those voices, so we are disappointed in the court’s decision on that.”

City's motion to dismiss

Now that the class action certification has been denied, both sides are waiting for a ruling on the city’s second motion to dismiss the claims in their entirety, which was filed on Nov. 6. The defendants, which include the city of Asheville as well as City Manager Debra Campbell and Mayor Esther Manheimer, previously filed a motion to dismiss on Sept. 14.

“We are hopeful that the court will deny that motion because there is a real injury here from the city’s discriminatory ordinance,” Quinio said.

Since the lawsuit began, one of the plaintiffs, John Miall, was appointed to the commission on Oct. 10, according to Quinio.

“He is currently serving on the commission, but the other four applicants who are plaintiffs have not been appointed yet,” Quino said. “Even with Mr. Miall’s appointment, the injury that he is filing suit for, which is being subject to the discriminatory criteria, still deserves to be addressed by the court.”

At its June 13 meeting, the suit alleges Asheville City Council "rejected" their applications. Plaintiffs said they were not communicated with regarding their interest or asked to provide further information about their applications.

"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," the lawsuit said.

But the city claims that all five of the plaintiffs’ applications for appointment to the Human Relations Commission of Asheville were still pending when they first filed the complaint, according to a motion to dismiss.

Ryley Ober is the Public Safety Reporter for Asheville Citizen Times, part of the USA Today Network. Email her at rober@gannett.com and follow her on Twitter @ryleyober

This article originally appeared on Asheville Citizen Times: White Asheville residents denied class action in racial bias suit