FACULTY, ALUMNI, AND STUDENTS OPPOSED TO RACIAL PREFERENCES v. NEW YORK UNIVERSITY, and MIGUEL CARDONA, in his official capacity as U.S. SECRETARY OF EDUCATION, UNITED STATES OF AMERICA; NEW YORK UNIVERSITY LAW REVIEW, NEW YORK UNIVERSITY SCHOOL OF LAW
No. 20-1508-cv
United States Court of Appeals for the Second Circuit
August 25, 2021
LEVAL, CABRANES, and MENASHI, Circuit Judges.
AUGUST TERM 2020. Argued: March 5, 2021.
On Appeal from the United States District Court for the Southern District of New York
* Under
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.
JOSÉ A.
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 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
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.
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 19645 (“Title VI“) and Title IX of the Education Amendments of 19726 (“Title IX“).7
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 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
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 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 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
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
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
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, 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
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.
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
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 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. Ohio46—in which the Supreme Court held that a criminal 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
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.
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
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 its hypothetical members are able and ready to act is necessarily a speculative question. Accordingly, I concur in the court‘s opinion.