FASORP v. New York University ( 2021 )

20-1508
FASORP v. New York University
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2020
No. 20-1508-cv
FACULTY, ALUMNI, AND STUDENTS OPPOSED TO RACIAL PREFERENCES,
Plaintiff-Appellant,
v.
NEW YORK UNIVERSITY, and MIGUEL CARDONA, in his official capacity
as U.S. SECRETARY OF EDUCATION, UNITED STATES OF AMERICA,
Defendants-Appellees, *
NEW YORK UNIVERSITY LAW REVIEW, NEW YORK UNIVERSITY SCHOOL
OF LAW,
Defendants.
On Appeal from the United States District Court
for the Southern District of New York
*Under Fed. R. App. P. 43(c)(2), Miguel Cardona is, in his official capacity
as Secretary of Education, substituted for his predecessor Betsy DeVos. The Clerk
of Court is directed to amend the caption of this matter accordingly.
ARGUED: MARCH 5, 2021
DECIDED: AUGUST 25, 2021
Before: LEVAL, CABRANES, and MENASHI, Circuit Judges.
This appeal presents one threshold question: whether Plaintiff-
Appellant Faculty, Alumni, and Students Opposed to Racial
Preferences (“FASORP”), a membership association, has standing to
sue Defendant-Appellee New York University. We hold that FASORP
does not because it has failed to demonstrate injuries to its members.
Accordingly, we AFFIRM the judgment of the United States District
Court for the Southern District of New York (Edgardo Ramos, Judge).
Judge Menashi concurs in a separate opinion.
JONATHAN F. MITCHELL (Paul Niehaus,
Kirsch & Niehaus, New York, NY, on the
brief), Mitchell Law PLLC, Austin, TX, for
Plaintiff-Appellant.
TAMAR LUSZTIG (Arun S. Subramanian,
Jacob W. Buchdahl, Jillian S. Hewitt, on the
brief), Susman Godfrey LLP, New York, NY,
for Defendant-Appellee.
2
JOSÉ A. CABRANES, Circuit Judge:
This appeal presents one threshold question: whether Plaintiff-
Appellant Faculty, Alumni, and Students Opposed to Racial
Preferences (“FASORP”), a membership association, has standing to
sue Defendant-Appellee New York University (“NYU”). We hold that
FASORP does not, because it has failed to demonstrate injuries to its
members. Accordingly, we AFFIRM the judgment of the United States
District Court for the Southern District of New York (Edgardo Ramos,
Judge).
I. BACKGROUND
Where, as here, a defendant moves to dismiss for lack of
jurisdiction premised on the plaintiff’s lack of constitutional standing,
it is well settled that “we accept as true all material allegations of the
complaint[] and . . . construe the complaint in favor of the complaining
party.” 1 We therefore accept as true the following allegations, drawn
from FASORP’s amended complaint, and construe them in FASORP’s
favor.
FASORP is an “unincorporated nonprofit membership
association” whose members “include faculty, alumni, and students of
law schools who oppose the use of race and sex preferences in faculty
Cortlandt Street Recovery Corp. v. Hellas Telecomms., S.a.r.l., 790 F.3d 411, 417
1
(2d Cir. 2015) (internal quotation marks and citation omitted).
hiring, student admissions, law review membership decisions, and
law-review article selection.” 2
NYU is a private university located—as its name indicates—in
New York, NY. The NYU Law Review (the “Law Review”) is an
academic publication edited and operated by students at the NYU
School of Law (“the Law School”). 3
The Law School student editors of the Law Review, who select
articles for publication, also select Law School students who will serve
2 Plaintiff’s Br. at 6. FASORP is organized under the laws of Texas.
3 Scholars from other academic disciplines may be surprised to learn that
legal academic journals are almost universally “under total student control” and
have been since the founding of the first law review—the Harvard Law Review—
in 1887 and the second law review—the Yale Law Journal—in 1891. ROBERT
STEVENS, LAW SCHOOL: LEGAL EDUCATION IN AMERICA FROM THE 1850S TO THE
1980S 118 & 127 n.34 (1983). This has at times given rise to considerable angst and
merriment in the legal academy. See, e.g., Fred Rodell, Goodbye to Law Reviews, 23
VA. L. REV. 38 (1936-37) (“The students who write for the law reviews are egged on
by the comforting thought that they will be pretty sure to get jobs when they
graduate in return . . . and the super-students who do the editorial or dirty work
are egged on even harder by the knowledge they will get even better jobs.”); C.
Steven Bradford, As I Lay Writing: How to Write Law Review Articles for Fun and Profit:
A Law-and-Economics, Critical, Hermeneutical, Policy Approach and Lots of Other Stuff
That Thousands of Readers Will Find Really Interesting and Therefore You Ought to
Publish in Your Prestigious, Top-Ten, Totally Excellent Law Review, 44 J. LEGAL EDUC.
1, 13 (March 1994) (“Law Professor’s Editing Rule: Change back everything the law
review editors have done. After all, you’re the one being paid to write, not them.
Do you trust what a law student has to say about writing?” (emphasis in original)).
Terms such as “Law Review,” defined for the purpose of this opinion, are
substituted even into quoted material, where applicable, for consistency.
4
as future editors of the Law Review. The Law Review admissions
process is competitive, with just fifty spots available on the Law
Review each year.
Recently, the Law Review incorporated race and sex into its
editor-selection process. Of the fifty available spots, fifteen students
are selected based on their writing competition performance, fifteen
students are selected based on their first-year grades, and eight
students are selected based on a combination of the writing
competition and their first-year grades. The remaining twelve spots
are filled by the Law Review’s Diversity Committee (the
“Committee”).
To decide which students will fill those twelve spots, the Law
Review asks applicants to submit statements that describe personal
characteristics, background, experiences, or qualifications that they
would like to highlight for the Committee. The Committee then
evaluates these personal statements, considering factors that include
(but are not limited to) race, ethnicity, gender, sexual orientation,
national origin, religion, socio-economic background, ideological
viewpoint, disability, and age. In addition to these personal
statements, applicants are also instructed to submit an anonymized
version of their resume that does not include their name or address.
The Law Review uses these personal statements and anonymized
resumes to favor applicants who are women, racial minorities, and
members of the LGBTQ community.
5
Quite apart from the process to select its editors, the Law
Review also includes race and sex considerations in its article-selection
process. The Law Review’s website includes a statement that it is
committed to “publishing scholarship written by authors from
underrepresented backgrounds in the legal profession.” 4 Authors that
wish to submit their articles for consideration do so through a web-
based submission service called Scholastica. The Law Review’s
Scholastica portal has been configured by the Law Review to invite
(but not require) authors to provide certain demographic information
when they submit articles for consideration, including race, sexual
orientation, and gender identity.
On October 7, 2018, FASORP brought suit against NYU, the Law
Review, the Law School (together, the “NYU Defendants”), and the
United States of America and the Secretary of Education (the “Federal
Defendants”), seeking declaratory and injunctive relief pursuant to
Title VI of the Civil Rights Act of 1964 5 (“Title VI”) and Title IX of the
Education Amendments of 1972 6 (“Title IX”). 7
4 Am. Complaint ¶ 25.
5 42 U.S.C. § 2000d et seq.
6 20 U.S.C. § 1681 et seq.
7FASORP had previously filed a complaint with almost identical allegations
against Harvard Law School and the Harvard Law Review. That complaint was
dismissed by the United States District Court for the District of Massachusetts on
August 8, 2019. Faculty, Alumni, and Students Opposed to Racial Preferences v. Harvard
Law Review Ass’n, Civ. No. 18-12105-LTS, 2019 WL 3754023 (D. Mass. Aug. 8, 2019).
FASORP did not appeal the District Court’s decision.
6
In January 2019, the District Court granted FASORP leave to file
an amended complaint.
FASORP filed its amended complaint (the “Amended
Complaint”) on February 28, 2019. In the Amended Complaint,
FASORP pleads that its members have standing to challenge the Law
Review’s article-selection and editor-selection processes, as well as the
Law School’s faculty-hiring processes, all of which FASORP alleges
violated Title VI and Title IX by impermissibly considering sex and
race in its selection and hiring decisions.
Specifically, FASORP pleads in its Amended Complaint that its
members include “faculty members or legal scholars who have
submitted articles to the Law Review in the past, and who intend to
continue submitting their scholarship to the Law Review in the
future.” 8
With respect to article-selection, FASORP alleges in its
Amended Complaint that its “[f]aculty members . . . who submit
articles to the Law Review are being subjected to race and sex
discrimination because the Law Review gives preference to articles
written by women and racial minorities at the expense of articles
written by FASORP members who are white or male.” 9 As a result, its
members “will face discrimination on account of their race, sex, sexual
8 Am. Complaint ¶ 42.
9 Id. at ¶ 33.
7
orientation, or gender identity unless the Law Review is enjoined from
enforcing its discriminatory article-selection policies.” 10
With respect to editor-selection, FASORP alleges that it has
standing to challenge that process because “the articles that FASORP
members submit to the Law Review are judged by less-capable
students” because “the Law Review has subordinated academic merit
to diversity considerations when selecting its members and editors.” 11
That is, FASORP members will be injured by having “their
submissions judged and evaluated by less capable students who made
law review because of diversity criteria, and who leapfrogged students
with better grades and writing-competition scores.” 12 FASORP claims
this matters because “these are the students who will ultimately make
the career-altering decision of whether a professor’s article gets
accepted for publication or rejected.” 13 And, even if a FASORP
member’s article is accepted, “[t]hose who have their articles accepted
by the journal must submit to a student-run editing process, and the
Law Review’s use of sex and race preferences dilutes the quality of
students who edit an author’s piece.” 14
10 Id. at ¶ 42.
11 Id. at ¶ 34.
12 Id. at ¶ 43.
13 Id. at ¶ 34.
14 Id. at ¶ 35.
8
With respect to NYU’s faculty-hiring practices, FASORP pleads
that its members “include individuals who have sought and applied
for entry-level or lateral teaching positions at the Law School and
intend to do so again in the future,” or who “remain potential
candidates for visiting professorships and lateral faculty
appointments without any need to formally apply.” 15 According to
FASORP, “NYU Law School, along with nearly every other law school
in the United States, discriminates on account of race and sex when
hiring its faculty.” 16 As a result, FASORP claims that its members “face
or will face discrimination on account of their race and sex unless NYU
is enjoined from using race and sex preferences in faculty hiring.” 17
On March 21, 2019, the NYU Defendants filed a motion to
dismiss FASORP’s Amended Complaint pursuant to Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6), 18 alleging that FASORP did not
have standing to bring its suit. The Federal Defendants followed suit
on May 9, 2019, moving to dismiss FASORP’s Amended Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). On
March 31, 2020, the District Court granted both motions to dismiss
without prejudice, finding that FASORP lacked standing and that
15 Id. at ¶ 45.
16 Id. at ¶ 27.
17 Id. at ¶ 45.
18 In their motion to dismiss, the NYU Defendants asserted that the Law
School and the Law Review should be dismissed as named defendants in
FASORP’s suit pursuant to Fed R. Civ. P. 4(m), on the basis that they are not legal
entities amenable to service of process. FASORP did not object.
9
FASORP had failed to state a claim under Titles VI and IX. 19 FASORP
then opted to stand on its Amended Complaint and judgment entered
on May 4, 2020.
FASORP timely appealed. 20
II. DISCUSSION
We review a District Court’s dismissal of a complaint for lack of
standing de novo. 21
FASORP, “as the party invoking federal jurisdiction, bears the
burden of establishing” standing. 22 “Where, as here, a case is at the
pleading stage, the plaintiff must ‘clearly . . . allege facts
demonstrating’” each of the elements that make up the “‘irreducible
constitutional minimum’ of standing.” 23
Because we hold that FASORP has failed to establish Article III standing,
19
we need not decide whether it also failed to state a claim for relief under Title VI
and IX.
20 In its opening brief, FASORP states that it “is not contesting the dismissal
of the federal defendants, and it will no longer pursue claims or seek relief against
the federal defendants in this litigation.” Plaintiff’s Br. at 9 n.2. Accordingly, the
federal defendants did not file a brief in this appeal.
21 Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 79-80 (2d
Cir. 2005).
22 Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), as revised (May 24, 2016).
23 Id. (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975) and Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560 (1992)).
10
In determining whether a party has standing to sue, we ask
whether it “has alleged . . . a personal stake in the outcome of the
controversy, [so] as to ensure that the dispute sought to be adjudicated
will be presented in an adversary context and in a form historically
viewed as capable of judicial resolution.” 24 This limitation flows from
Article III, Section 2 of the Constitution, which limits our jurisdiction
to “Cases” and “Controversies.” 25 Standing doctrine operates “to
ensure that federal courts do not exceed their authority as it has been
traditionally understood.” 26
One species of standing doctrine is associational standing:
When does an organization, such as FASORP, have a personal stake in
the outcome of a litigation such that it is entitled to sue? Organizations
may have standing to challenge actions that cause them direct injury. 27
24Sierra Club v. Morton, 405 U.S. 727, 732 (1972) (internal quotation marks
and citation omitted).
25 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (citing U.S. CONST. art III,
§ 2).
26SM Kids, LLC v. Google LLC, 963 F.3d 206, 211 (2d Cir. 2020) (quoting
Spokeo, 136 S. Ct. at 1547).
27 Warth, 422 U.S. at 511 (An organization can “have standing in its own right
to seek judicial relief from injury to itself and to vindicate whatever rights and
immunities the association itself may enjoy”); Havens Realty Corp. v. Coleman, 455
U.S. 363, 379 n.19 (1982) (“[O]rganizations are entitled to sue on their own
behalf....”); New York C.L. Union v. New York City Transit Auth., 684 F.3d 286, 294 (2d
Cir. 2012) (“Under this theory of ‘organizational’ standing, the organization is just
another person—albeit a legal person—seeking to vindicate a right. To qualify, the
organization itself must meet the same standing test that applies to individuals.”
(internal quotation marks and alterations omitted)).
11
But an organization also has standing to bring suit on behalf of its
members when: “(a) its members would otherwise have standing to
sue in their own right; (b) the interests it seeks to protect are germane
to the organization’s purpose; and (c) neither the claim asserted nor
the relief requested requires the participation of individual members
in the lawsuit.” 28
To establish the first prong of this test, an organization must
satisfy the familiar three elements of standing under Article III. That
is, FASORP must show that one or more of its members has: (1)
“suffered an injury-in-fact—an invasion of a legally protected interest
which is (a) concrete and particularized, and (b) actual or imminent,
not conjectural or hypothetical”; (2) “there must be a causal connection
between the injury and the conduct complained of”; (3) “it must be
likely, as opposed to merely speculative, that the injury will be
redressed by a favorable decision.” 29
a. Identification of Members
As an initial matter, in asking whether FASORP has standing to
challenge the Law Review’s article-selection and editor-selection
processes and NYU’s faculty-hiring process on behalf of its members,
28 Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977); see, e.g.,
Warth, 422 U.S. 490, 511 (1975) (calling this approach “representational” standing);
Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 649 (2d Cir. 1998) (calling it
“associational” standing); see also New York C.L. Union, 684 F.3d at 294 (describing
the various terms referring to this approach).
LaFleur v. Whitman, 300 F.3d 256, 269 (2d Cir. 2002) (internal quotation
29
marks omitted).
12
we are mindful that “[s]tanding . . . is not an ingenious academic
exercise in the conceivable . . . but requires a factual showing of
perceptible harm.” 30 Accordingly, the Supreme Court “has required
plaintiffs claiming an organizational standing to identify members
who have suffered the requisite harm.” 31
Still, FASORP argues that it is not required to “name names” of
injured members in its standing allegations at the pleading stage.32
But, even if FASORP is not required to “name names,” standing
pleadings “must be supported in the same way as any other matter on
which the plaintiff bears the burden of proof, i.e., with the manner and
degree of evidence required at the successive stages of the litigation.”33
And, as relevant here, FASORP “must allege facts that affirmatively
and plausibly suggest that it has standing to sue.” 34
30 Summers v. Earth Island Institute, 555 U.S. 488, 499 (2009) (internal
quotation marks and alteration omitted).
31 Id.32 Here, FASORP relies on Bldg. & Const. Trades Council of Buffalo, N.Y. and
Vicinity v. Downtown Dev., Inc., 448 F.3d 138, 145 (2d Cir. 2006) (“An association
bringing suit on behalf of its members must allege that one or more of its members
has suffered a concrete and particularized injury, as the plaintiffs do. But the
defendants cite to no authority—nor are we aware of any—that supports the
proposition that an association must ‘name names’ in a complaint in order properly
to allege injury in fact to its members.” (internal citation omitted)).
33 Lujan, 504 U.S. at 561.
34 Amidax Trading Group v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011).
13
By way of identifying members who have suffered the requisite
harm, FASORP only asserts that its membership includes “faculty
members or legal scholars who have submitted articles to the Law
Review in the past, and who intend to continue submitting their
scholarship to the Law Review in the future” and “individuals who
have sought and applied for entry-level or lateral teaching positions at
the Law School and intend to do so again the future, or remain
potential candidates . . . .” 35 FASORP argues that “[i]t’s hard to get
more specific than that.” 36 We do not agree. It is possible to be more
specific—even if “naming names” and submitting individual
affidavits is not required. For example: When did FASORP’s members
submit articles or apply for jobs at NYU? Have those members drafted
articles they intend to submit? If so, when do they plan to submit?
Instead, FASORP effectively asks us to accept a “self-description of the
activities of its members” and to conclude that “there is a statistical
probability that some of those members are threatened with concrete
injury.” 37 Such allegations are plainly insufficient to show that
FASORP’s members have suffered the requisite harm here.
35 Am. Complaint ¶ 42, 45. Although FASORP alleges that its members who
are alumni or students will be injured, Am. Complaint ¶ 35-39, FASORP does not
specifically allege that its members actually include any alumni of the Law Review
or NYU students. Further, while FASORP contends that it has “never ‘admitted’
that it has no student or alumni members,” FASORP concedes that “it is simply not
asserting standing on their behalf in this particular lawsuit against NYU.” Plaintiff’s
Reply Br. at 21 n.17 (emphasis in original).
36 Plaintiff’s Br. at 13.
37 Summers, 555 U.S. at 497.
14
b. Injury-In-Fact
Even if FASORP’s pleadings were found to sufficiently “identify
members who have suffered the requisite harm,” 38 FASORP fails to
demonstrate that those members have experienced an “invasion of a
legally protected interest” 39 that is “‘certainly impending’” or that
“there is a ‘substantial risk’ that the harm will occur.” 40
With respect to its challenges of faculty-selection and article-
selection procedures, FASORP only alleges a “highly attenuated chain
of possibilities” 41 in its Amended Complaint, starting with its
allegations that its faculty or scholar members will be injured—i.e.,
discriminated against—because they “intend to continue submitting
their scholarship” and “intend” to apply for jobs at the Law School, or
remain candidates for recruitment to the faculty at the Law School. 42
With respect to FASORP’s challenge to the Law Review’s editor-
selection process, FASORP notably does not claim to have any Law
Review “alumni” or NYU “student” members. Nor does FASORP
plead that any of its members have applied for, or were rejected from,
the Law Review’s editorial board. To overcome this deficit, FASORP
38 Summers, 555 U.S. at 499.
39 Lujan, 504 U.S. at 560.
40Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (quoting Clapper
v. Amnesty Intern., 568 U.S. 398, 414 n.5).
41 Id.42 Am. Complaint ¶¶ 42, 45 (emphasis added).
15
instead argues that its faculty and scholar members have standing to
challenge the Law Review’s editor-selection process because the “use
of race and sex preferences [in the editor-selection process] affects the
composition of students who select and edit the articles submitted by
FASORP members.” 43
The primary defect in all these theories is that there is uncertain
future action that would need to occur before the plaintiffs could
arguably suffer the harm alleged. Without any “description of concrete
plans” to apply for employment, submit an article, or of having
submitted an article, that will or has been accepted for publication,
FASORP’s allegations exhibit the kind of “some day intentions” that
cannot “support a finding of [] actual or imminent injury.” 44
To avoid this problem specifically with regard to editor
selection, FASORP argues that its faculty or scholar members are
injured in the same way that a criminal defendant is injured when his
“juror-selection process [is] tainted by unlawful racial
discrimination”—that is, FASORP members are injured by virtue of
having their articles judged by student editors whose admissions
process was tainted by unlawful discrimination. 45 FASORP relies on
Powers v. Ohio 46—in which the Supreme Court held that a criminal
43 Plaintiff’s Br. at 27-28.
44 Summers, 555 U.S. at 496 (quotation marks and citation omitted).
45 Plaintiff’s Br. at 28.
46 499 U.S. 400 (1991).
16
defendant can contest peremptory challenges exercised to exclude
jurors based on race even if the defendant and the jurors share the
same race—to support this argument. But this reliance is inapposite
because Powers depended on special considerations relating to
criminal justice that are inapplicable here. In Powers, the Court held
that a criminal defendant is injured by a tainted process even if that
tainted process could inure to his benefit because racial discrimination
in the selection of jurors “casts doubt on the integrity of the judicial
process, [] places the fairness of a criminal proceeding in doubt,” and
“condones violations of the United States Constitution within the very
institution entrusted with its enforcement.” 47 That the state would
reinforce unlawful racial discrimination by sanctioning it in juror
selection is not a concern present in this case. Therefore, with respect
to the editor-selection process FASORP’s allegations still fall short of
suggesting an injury that is certainly impending or substantially likely
to occur so as to constitute an injury-in-fact.
***
In sum, we hold that FASORP’s pleadings in the Amended
Complaint do not suffice to show that its members have suffered an
injury-in-fact. 48 FASORP has thus not demonstrated it has standing
47 Id. at 411-12 (internal citation omitted).
48 Because we conclude that FASORP has not sufficiently pleaded an injury-
in-fact, we do not go on to examine the other elements of Article III standing:
causation and redressability.
17
based on injuries to its members, as would be required to maintain this
suit.
III. CONCLUSION
For the foregoing reasons, we hold that the District Court
properly dismissed FASORP’s Amended Complaint.
We have previously observed that “where a complaint is
dismissed for lack of Article III standing, the dismissal must be
without prejudice rather than with prejudice.” 49 After all, “[s]uch a
dismissal is one for lack of subject matter jurisdiction, and without
jurisdiction the district court lacks the power to adjudicate the merits
of the case.” 50
Accordingly, we AFFIRM the District Court’s judgment
dismissing the Amended Complaint without prejudice.
49 Carter v. HealthPort Techs., LLC, 822 F.3d 47, 54 (2d Cir. 2016).
Id. (internal quotation marks and citations omitted); see also Hernandez v.
50
Conriv Realty Assocs., 182 F.3d 121 (2d Cir. 1999) (“[I]t is our view that Article III
deprives federal courts of the power to dismiss a case with prejudice where federal
subject matter jurisdiction does not exist.”).
18
MENASHI, Circuit Judge, concurring:
The court correctly notes that FASORP has failed to establish
associational standing because associations asserting such standing
must “identify members who have suffered the requisite harm.”
Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009). FASORP has not
identified a member who has, or will, submit articles to the Law
Review or seek teaching positions at the law school. Accordingly,
FASORP has failed to establish that it has standing as an association
to bring suit on behalf of its unidentified members. Accord ante at 12-
14. That conclusion is enough to resolve this appeal. The court,
however, proceeds to consider whether, if FASORP had adequately
identified members, those hypothetical members would have been
able to allege an injury in fact. Ante at 15. I do not understand this
discussion to break new ground in our standing doctrine, and I write
separately to clarify the applicable principles with respect to the
alleged discrimination in article selection and faculty hiring.
A plaintiff association challenging an unlawfully
discriminatory process needs to allege that its members are “able and
ready” to participate in the process—in this case, by submitting
articles or seeking teaching positions—“and that a discriminatory
policy prevents [those members] from doing so on an equal basis.”
Gratz v. Bollinger, 539 U.S. 244, 262 (2003) (quoting Ne. Fla. Chapter of
Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656,
666 (1993)); see also id. (holding that a plaintiff established standing by
showing “that he was ‘able and ready’ to apply as a transfer student
should the University cease to use race in undergraduate
admissions”); Carney v. Adams, 141 S. Ct. 493, 501 (2020) (reiterating
that a plaintiff challenging an allegedly discriminatory process must
show that he “was ‘able and ready’ to apply … in the reasonably
foreseeable future”).
A plaintiff who alleges harm from a discriminatory barrier to
equal treatment “need not allege that he would have obtained the
benefit but for the barrier in order to establish standing.” Ne. Fla.
Chapter, 508 U.S. at 666; Adarand Constructors, Inc. v. Pena, 515 U.S. 200,
211 (1995). Rather, the “injury in fact” in such a case “is the denial of
equal treatment resulting from the imposition of the barrier, not the
ultimate inability to obtain the benefit.” Ne. Fla. Chapter, 508 U.S. at
666; Adarand, 515 U.S. at 211 (“The injury in cases of this kind is that
a discriminatory classification prevents the plaintiff from competing
on an equal footing.”) (internal quotation marks and alteration
omitted); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 281 n.14 (1978)
(identifying “an injury, apart from failure to be admitted, in the
University’s decision not to permit Bakke to compete for all 100 places
in the class, simply because of his race”). 1
FASORP therefore needed only to identify members who are
“able and ready” to submit articles or to seek faculty positions, not
members who have already done so. Gratz, 539 U.S. at 262. Because
FASORP does not identify members, however, it necessarily cannot
allege the sort of “concrete plans” necessary to “support a finding of
… ‘actual or imminent’ injury,” Summers, 555 U.S. at 496, and whether
1 These cases involved constitutional claims in addition to claims under
Title VI. See Gratz, 539 U.S. at 276 & n.23; Bakke, 438 U.S. at 284. That does
not affect the standing analysis. “Title VI’s protections are coextensive with
the Equal Protection Clause of the Fourteenth Amendment.” Students for
Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 980 F.3d 157, 185
(1st Cir. 2020); see also Bakke, 438 U.S. at 287 (“Title VI must be held to
proscribe only those racial classifications that would violate the Equal
Protection Clause or the Fifth Amendment.”).
2
its hypothetical members are able and ready to act is necessarily a
speculative question. Accordingly, I concur in the court’s opinion.
3