Federal judge narrows lawsuit over minority representation on Alabama state board

Edward Blum, a long-time opponent of affirmative action in higher education and founder of Students for Fair Admissions, leaves the U.S. Supreme Court after oral arguments in Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina on October 31, 2022 in Washington, DC. A group founded by Blum, the American Alliance for Equal Rights, is challenging a 1989 Alabama law requiring the Alabama Real Estate Appraisers Board to fill at least two of its nine seats with people from racial minorities. (Chip Somodevilla/Getty Images)

A federal court judge on Wednesday ordered discovery in a lawsuit challenging a statute requiring minority representation on a state board.

But U.S. District Judge R. Austin Huffaker dismissed the lawsuit’s challenge to language requiring state boards to reflect the diversity of the state.

The American Alliance for Equal Rights, an organization that challenges preferences made on the basis of race and ethnicity, sued on behalf of Laura Clark, an attorney currently defending restrictive circulation practices at the Autauga-Prattville Public Library.

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According to Reuters , the group was founded by anti-affirmative action activist Edward Blum, who brought the case that led to the U.S. Supreme Court striking down race-conscious college admissions last year. Blum did not return messages seeking comment.

Clark applied to join the Alabama Real Estate Appraisers Board but was declared ineligible under a 1989 law that requires at least two of its nine members to be members of a “minority race.”

The Alliance challenged both that section of the law and language requiring the membership of the board to be inclusive and “reflect the racial, gender, geographic, urban/rural, and economic diversity of the state.” The plaintiffs allege that the language, standard in most laws setting up boards, violates the equal protection clause of the Fourteenth Amendment and does not serve a compelling government interest.

Gov. Kay Ivey’s office declined to defend the requirement that two minority members be part of the board. But her office disputed the Alliance’s standing to challenge the inclusivity language. The Alabama Association of Real Estate Brokers, a nonprofit that represents Black real estate brokers, successfully petitioned the court to intervene in the case as the defendant to protect all diversity requirements in the law.

In a 10-page opinion on Wednesday, Huffaker rejected the Alliance’s challenge to the inclusivity language. Huffaker also rejected the Alliance’s request for a “judgment on the pleadings,” or a motion for a court to issue judgment due to no facts being in dispute. .

Huffaker wrote that both the governor and the association challenged Clark’s ability to bring the case and allow discovery on the validity of the law.

“The American Alliance for Equal Rights is on a sprint through a marathon,” the judge wrote. “It moves for judgment on the pleadings, a tricky shortcut to final judgment. In its haste, the Alliance has tripped over a technical legal standard, so now all here must endure some discovery.”

Ivey’s office did not return messages seeking comment. Joshua Thompson, director of equality and opportunity litigation with the Pacific Legal Foundation, the organization representing American Alliance for Equal Rights, said in an interview that treating “individuals as embodiments of their race is pernicious” and they wanted the government to “treat people in a race-neutral manner.”

“Not only is it wrong immorally, but it is also patently unconstitutional,” he said. “As even the governor, in this case, recognizes.”

The Alliance has also challenged diversity requirements on the Minnesota Board of Social Work and diversity fellowships offered by the law firm Perkins Coie LLP, with headquarters in Seattle, and Morrison & Foerster LLP, based in San Francisco, alleging discrimination.

The Pacific Legal Foundation, serving as the legal representative for the American Alliance for Equal Rights in this case, also filed a lawsuit in 2019 that challenged a law in California that requires publicly traded companies to have at least one woman on their boards.

“Alabama has not just the statue we are challenging but other statutes that require racial discrimination on public boards. We intend to eliminate racial classification on boards across the country and Alabama is in our crosshairs,” Thompson said.

Marcus Brown, chair of the Alabama Association of Real Estate Brokers, said that they wanted to ensure the appraisers board protects the public, citing the state’s long history of racial discrimination in the housing sector.

“Specifically, appraisals are foundational to mortgage lending and home-buying, which in turn create household wealth,” he said. “Discriminatory appraisals can prevent refinancing, lower sales prices, or even jeopardize the sale of a home. The Alabama minority homeownership gap is under the national average, with research showing that white homeownership at 77.9% and minority homeownership at 55.2% – a gap of nearly 23 percent.”

Chad Anderson, the chair of the Alabama Real Estate Appraisers Board, declined comment on Friday.

‘An important case’

The Alabama Legislature in 1989 established the Alabama Real Estate Appraisers Board, which oversees state real estate appraisals and works to ensure that appraisers who provide the service are qualified based on federal and state law.

Besides the diversity requirement, the law also requires seven of the board members to be real estate appraisers and one must be the manager of an appraisal management company. The final member may be someone from the public who does not provide real estate appraisal services.

A message seeking comment was sent to Clark. According to the Alliance’s complaint, filed in February, Clark is not a member of any racial minority group and does not identify as a racial minority but is a “staunch believer in and advocate for the importance of both public service and protecting constitutional rights, including property rights.”

A hearing was held Thursday last week in which the opposing parties, along with attorneys from the Attorney General’s Office representing the Governor’s Office, presented their views to the court.

“I realize this is an important case,” Huffaker said during last week’s hearing.

The Association of Real Estate Brokers and Democracy Forward, a national legal organization promoting democracy and social progress representing the association, said Alabama’s past history in housing justifies the law.

“It is really important and critical to helping address the long history of racial discrimination in housing and appraisals, specifically in Alabama,” said Brooke Menschel, senior counsel with Democracy Forward. “This particular law is critically important for that organization and many, many, other real estate professionals of color, and people of color in the state, who will suffer immensely if the law is struck down.”

She added that maintaining diversity is important because communities of color have been excluded from housing, along with opportunities to build wealth through housing to stabilize people across generations.

“State boards should reflect the communities they serve,” Menschel said. “This particular Alabama law promotes inclusion of a range of diverse views, and diverse racial and people from other backgrounds in the best interest of Alabamians to ensure that people have those opportunities. This particular law is really crucial to ensuring and maintaining a healthy democracy.”

Several Black lawmakers have expressed concerns about the potential fate of the law.

“I don’t care to speculate as to what would or would not be,” said Sen. Rodger Smitherman, D-Birmingham. “I am going to be optimistic, and I will say that we will continue to be able to have representation in the manner that it is provided at this time.”

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