FASORP v. New York University

Citation: Not availableDocket: 20-1508

Court: Court of Appeals for the Second Circuit; August 25, 2021; Federal Appellate Court

Original Court Document: View Document

Combined Opinion SummaryCombined Opinion Original

EnglishEspañolSimplified EnglishEspañol Fácil

In the case 20-1508 FASORP v. New York University, the United States Court of Appeals for the Second Circuit addressed whether the Faculty, Alumni, and Students Opposed to Racial Preferences (FASORP) had standing to sue New York University (NYU). The court held that FASORP lacked standing due to its failure to demonstrate injuries to its members, thereby affirming the judgment of the Southern District of New York. 

FASORP is an unincorporated nonprofit association opposing the use of race and sex preferences in various academic processes, including faculty hiring and student admissions. NYU Law Review, a competitive academic publication, recently incorporated race and sex into its editor-selection process, allocating spots based on writing competition performance, first-year grades, and a diversity committee that selects candidates based on personal characteristics and experiences. The court accepted FASORP’s allegations as true for the purposes of determining jurisdiction, but ultimately found no substantiated injuries to its members that would grant standing. Judge Menashi concurred in a separate opinion.

The Committee evaluates personal statements from applicants based on various factors, including race, ethnicity, gender, sexual orientation, national origin, religion, socio-economic background, ideological viewpoint, disability, and age. Applicants are required to submit anonymized resumes without personal identifiers. The Law Review prioritizes applicants who are women, racial minorities, and members of the LGBTQ community through these evaluations. Additionally, race and sex considerations are incorporated into the article-selection process. The Law Review’s website expresses a commitment to publishing work from underrepresented backgrounds. Authors can submit articles through a platform called Scholastica, which optionally collects demographic information.

On October 7, 2018, FASORP filed a lawsuit against NYU, the Law Review, the Law School, the United States, and the Secretary of Education, seeking relief under Title VI of the Civil Rights Act and Title IX of the Education Amendments. This followed a similar complaint against Harvard Law and its Review, which was dismissed in August 2019 without appeal. In January 2019, FASORP was granted leave to amend its complaint, which it filed on February 28, 2019. FASORP asserts that its members have standing to challenge the Law Review’s article-selection and editor-selection processes, alleging violations of Title VI and Title IX due to discriminatory practices favoring women and racial minorities. FASORP claims that its members face discrimination based on race and sex, as the Law Review’s preferences disadvantage white and male authors. Furthermore, FASORP contends that submissions from its members are evaluated by less capable students selected based on diversity criteria rather than merit, impacting the quality of editorial decisions regarding publication.

FASORP, an organization representing certain law school faculty candidates, alleges that the NYU Law School engages in discriminatory hiring practices based on race and sex, impacting its members' opportunities for employment. FASORP claims that its members, who have applied or intend to apply for teaching positions, will experience discrimination unless NYU is prohibited from using such preferences. In response, the NYU Defendants filed a motion to dismiss FASORP’s Amended Complaint on the grounds of lack of standing and failure to state a claim, which was echoed by the Federal Defendants. The District Court granted both motions to dismiss without prejudice on March 31, 2020, concluding that FASORP lacked standing and failed to establish a claim under Titles VI and IX. FASORP chose not to amend its complaint further, leading to a judgment on May 4, 2020, which it subsequently appealed.

The review of the dismissal is de novo, with FASORP bearing the burden to establish standing. The plaintiff must demonstrate an actual personal stake in the outcome, in line with Article III's requirements. Associational standing allows organizations to sue on behalf of members if those members would have standing individually, the interests are aligned with the organization's purpose, and individual member participation is not necessary. To prove standing, FASORP must show that its members have suffered a concrete, particularized injury that is actual or imminent, with a clear causal link between the injury and the alleged discriminatory conduct, and a likelihood that a favorable ruling would remedy the injury.

FASORP's standing to challenge the Law Review’s article-selection and editor-selection processes, as well as NYU’s faculty-hiring process, hinges on demonstrating specific harm to its members. The Supreme Court mandates that organizations claiming standing must identify members who have suffered the necessary harm, yet FASORP contends that it is not obligated to provide specific names at the pleading stage. However, while specific identification may not be required, FASORP must still present factual allegations that affirmatively suggest standing. FASORP claims its membership includes individuals who have submitted articles and applied for teaching positions, but these assertions lack specificity regarding timelines or intentions, rendering them inadequate for establishing concrete harm.

FASORP’s general claims do not sufficiently demonstrate that its members face an imminent invasion of legally protected interests or a substantial risk of harm. The organization’s allegations regarding potential discrimination against faculty or scholar members are described as a "highly attenuated chain of possibilities," with no direct claims that any members were injured. Additionally, FASORP does not assert that it has any members who are alumni of the Law Review or current NYU students, nor does it indicate that any of its members applied for or were rejected from the Law Review’s editorial board. Instead, FASORP argues that the use of race and sex preferences in the editor-selection process affects the composition of students who select and edit articles from its members, but this argument does not adequately establish standing.

FASORP’s allegations are fundamentally flawed due to the lack of concrete future actions that would lead to the claimed harm. Without specific plans to apply for employment or submit articles, the allegations reflect mere intentions, failing to establish actual or imminent injury required for standing. FASORP attempts to draw a parallel between its members' alleged injuries and the injury of a criminal defendant facing racial discrimination in juror selection, referencing Powers v. Ohio. However, this analogy is misplaced as the unique considerations of criminal justice do not apply to the context of editor selection. The court concludes that FASORP has not demonstrated an injury-in-fact with respect to the editor-selection process, thus lacking standing to pursue the lawsuit. The dismissal of FASORP’s Amended Complaint by the District Court is affirmed, and it is noted that such a dismissal for lack of Article III standing must be without prejudice, as it concerns subject matter jurisdiction. Additionally, it is emphasized that FASORP failed to identify members who have experienced the requisite harm, which is necessary for establishing associational standing. The court clarifies that for an association to claim standing based on discrimination, it must show that its members are ready to engage in the process negatively affected by discrimination, which FASORP did not do. Consequently, the failure to identify members who are prepared to submit articles or seek faculty positions precludes the establishment of the necessary injury.