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The American Alliance for Equal Rights made its case Thursday in federal court that a law requiring two racial minority members serve on the Alabama Real Estate Appraisers board violates the equal protections element of the Constitution.
The defendant, the State of Alabama, does not disagree with that assessment: instead, state counsel asked the judge to dismiss the case as moot as Gov. Kay Ivey and Attorney General Steve Marshall have said they won’t enforce the law and therefore would not injure the plaintiffs.
With the state not defending its own language, the Alabama Association of Real Estate Brokers, Alabama’s association for African American real estate brokers, have intervened to ask the court to keep the law in effect to prevent discrimination in the real estate industry.
“Working particularly in residential real estate, when we have homes that we’re representing sellers; it has gotten to point where we go through that entire process and go through the negotiations and all of those things … and once we get to that appraisal part, those sellers are now asking us questions like ‘do we have to take down our pictures and our art,'” said Marcus Brown, chairman of the AAREB.
The Legislature adopted the original statute creating the Real Estate Appraisers Board in the 90s with the language requiring two racial minorities included.
Glenn Roper, counsel for the plaintiffs, argued that rules out the idea that the inclusion is based on any past discrimination when it comes to this particular board, and that the state therefore has no compelling interest to enforce the law. The plaintiffs also argue that the statute is not properly “narrowly tailored” and for those reasons, the court can strike down the language without need for a trial.
Counsel for the intervenors countered that the government has a compelling interest to prevent discrimination in the overall real estate industry by retaining the minority representation requirement.
“Would we not be talking about societal discrimination,” asked Judge Austin Huffaker Jr.
Brooke Menschel, counsel for the intervenors, answered that the government at least has been a “passive participant” in the past history of racial discrimination.
Part of the conversation Thursday was whether Huffaker would allow discovery by the intervenors to help them flesh out their argument that the requirement of racial minorities on the board is in response to discrimination. Menschel said a main focus of discovery would be talking to experts about discrimination in the industry.
There is also a question of standing: the intervenors question whether the American Alliance for Equal Rights has standing to sue based on the qualifications for members on the real estate board.
The case originated when Laura Clark, interim director of the Alabama Center for Law and Liberty, applied for the board and was denied. Clark is also the attorney representing the Autauga-Prattville Public Library.
Huffaker questioned whether the question of standing comes from whether Clark truly wants to serve on the board. or merely filled out an application “in order to create standing in this case.”
Regardless, the qualifications under statute are minimal: to serve on the board, an applicant must be a citizen of Alabama and must have never served as a real estate appraiser. While there are potentially further qualifications listed on the application, Huffaker questioned whether it is the court’s place to consider those additional qualifications since they are not binding under law.
Huffaker has taken the motion under advisement, telling the parties that had given him “a lot to think about” and emphasizing how heavily he is weighing his considerations in this case.
“Each position will receive due consideration in a consequential dispute like this on a topic of great magnitude, especially when the result could impact public appointments well beyond the Alabama Real Estate Appraisers Board,” Huffaker wrote when allowing AAREB to intervene in the case.
There are approximately 20 state boards that include similar language requiring racial minorities to be represented.
