Notice & Comment

Associational Standing in the Affirmative Action Cases

This Term, the Supreme Court is set to hear argument in two cases on affirmative action in college admissions.  One of the cases is against Harvard, the other against the University of North Carolina. Both universities have policies that permit the consideration of race in making admissions decisions.  The question presented is whether considering race in this way violates the Equal Protection Clause or federal law. But beyond those questions, there are also issues of Article III standing lurking in the cases.  

Standing, as we all know, turns on the injury-in-fact test.  A plaintiff must show that he has suffered, or is imminently about to suffer, a concrete, particularized injury in fact that is traceable to the challenged conduct and is likely to be redressed by a favorable judicial decision.  

In light of these requirements, the obvious plaintiff to challenge the admissions policies would be an applicant who claims to have been denied admission because of his race or a prospective applicant who claims to face a disadvantage in admissions because of his race.  But neither an applicant nor a prospective applicant is a plaintiff in either case. Instead, the Students for Fair Admissions (SFFA)—a membership organization devoted to challenging the consideration of race in college admissions—has brought the suits.  SFFA does not claim that it has suffered or will suffer an injury.  It has invoked “associational standing,” asserting standing based on injuries suffered by a handful of its members.

Under the doctrine of associational standing, an organization that itself has not suffered an injury can maintain suit as a representative of its members.  The association must show that (1) one of its members has suffered an injury supporting standing, and (2) the interests that the organization seeks to protect are germane to its purpose.  (There is also a prudential third requirement.) 

Associational standing is an anomaly.  It does not comport with the injury in fact requirement of standing because it extends standing to a party that does not claim its own injury.  The injury is to another person—the member.  Associational standing also does not square with the redressability requirement.  The point of redressability is that the remedy awarded by the court will relieve the complaining party’s injury.  But that does not happen with associational standing.  The relief (such as an injunction) is awarded to the uninjured association.  The injured member gets nothing. 

Of course, associational standing may simply be an exception to the injury-in-fact test.  But it’s hard to see how.  The Court has insisted that the requirements of injury, traceability, and redressability are the “irreducible constitutional minimum of Article III standing” and are essential to maintaining the separation of powers.  If the injury-in-fact test plays such an important role, one would think that associations should have to satisfy the usual requirements of standing to maintain suit.

For those interested in more on the topic, I filed amicus briefs raising this issue in both the Harvard and UNC cases. 

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