Faculty v. N.Y. Univ.

11 F.4th 68

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.

No. 20-1508-cv

August Term 2020

United States Court of Appeals, Second Circuit.

Argued: March 5, 2021

Decided: August 25, 2021

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.

Before: Leval, Cabranes, and Menashi, Circuit Judges.

Judge Menashi concurs in a separate opinion.

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 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 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.

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

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 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 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 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 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...