FASORP v. New York University, 11 F.4th 68

Background

Plaintiff FASORP is an unincorporated membership association of faculty, alumni, and students opposing racial/sex preferences; it sued NYU, the NYU Law Review, and NYU Law under Title VI and Title IX.
The Law Review admits 50 editors: 15 by writing competition, 15 by grades, 8 by combined metrics, and 12 chosen by a Diversity Committee that considers race, gender, sexual orientation, etc.; the Law Review also invites demographic data from article authors and says it seeks scholarship by authors from underrepresented backgrounds.
FASORP alleged its members (faculty/scholars) submit articles and seek NYU faculty jobs, and that NYU’s editor-selection, article-selection, and faculty-hiring uses race/sex preferences that injure those members.
Defendants moved to dismiss for lack of Article III standing; the district court dismissed without prejudice for lack of standing and failure to state a claim.
On appeal, the Second Circuit affirmed: FASORP failed to allege identifiable members who have suffered or imminently will suffer a concrete injury, so it lacks associational standing; the court did not reach causation or redressability.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether FASORP has associational standing by identifying injured members	FASORP need not "name names"; its membership description (members who have submitted/will submit articles and seek jobs) suffices	FASORP must identify members with concrete, particularized injuries or plausible facts showing such members	No — FASORP failed to identify members with required concrete injuries; pleadings insufficient
Whether members alleged injury-in-fact from article-selection and faculty-hiring policies	Members intend to submit articles or apply to NYU; a discriminatory policy will deny them equal treatment	Allegations are speculative “some day” intentions and a highly attenuated chain of contingencies	No — alleged intentions are too speculative to show imminent or certainly impending injury-in-fact
Whether members are injured by editor-selection composition (analogous to tainted jury selection)	Having articles judged by editors chosen using race/sex preferences injures authors’ ability to get fair review	The jury-selection analogy (Powers) is inapposite; no comparable integrity-of-adjudication concern here	No — Powers is distinguishable; allegations do not show a substantially likely injury from editor composition
Remedy / disposition	Sought declaratory and injunctive relief to enjoin discriminatory practices	Asserted lack of jurisdiction due to no Article III standing	Complaint dismissed without prejudice for lack of standing (district court lacked power to adjudicate merits)

Key Cases Cited

Summers v. Earth Island Inst., 555 U.S. 488 (2009) (association must identify members with concrete harm; mere programmatic objections are insufficient)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requires concrete, particularized, actual or imminent injury; plaintiff bears burden)
Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333 (1977) (test for associational/representational standing)
Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (plaintiff bears burden to allege injury that is concrete and particularized)
Ne. Fla. Chapter of Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656 (1993) (plaintiff challenging discriminatory process must be "able and ready" to participate)
Gratz v. Bollinger, 539 U.S. 244 (2003) (standing can be shown by demonstrating readiness to apply and being prevented from competing on equal footing)
Powers v. Ohio, 499 U.S. 400 (1991) (criminal-defendant standing to challenge discriminatory jury selection based on integrity-of-process concerns; distinguished here)
Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) (threatened enforcement standard: injury requires certainly impending or substantial risk)
Clapper v. Amnesty Int'l USA, 568 U.S. 398 (2013) (speculative chain of possibilities insufficient for injury)