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February 11, 2013 Articles

Article III's Injury Requirement and 2013's Most Anticipated Cases

Three cases with shaky foundations will go before the Supreme Court this year.

By Danielle Y. Conley, Robert N. Haferd, and Tiffany R. Wright

For nearly a century, since the Supreme Court’s decisions in Fairchild v. Hughes, 258 U.S. 126 (1922) and Frothingham v. Mellon, 262 U.S. 447 (1923), the doctrine of legal standing has served as a strict limitation on federal-court jurisdiction. The Court has held that Article III standing is an “irreducible constitutional minimum” that must be met for a plaintiff to bring suit in federal court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

This term, the Court will consider three landmark civil-rights cases that present serious standing issues: Fisher v. University of Texas at Austin, a challenge to the university’s race-conscious admissions policy; and the dual marriage-equality challenges to California’s ban on same-sex marriage in Hollingsworth v. Perry, and the federal Defense of Marriage Act (DOMA) in United States v. Windsor. All three cases present equal-protection challenges that have the potential to effect societal change. And, in all three cases, certain parties face daunting obstacles to satisfying the constitutional standing requirement for invoking the Court’s jurisdiction over their claims.

In Fisher, petitioner Abigail Fisher seeks to enjoin the university from considering race in its future admissions decisions, and she also requests the return of $100 in application fees. At oral argument, the justices engaged the petitioner’s counsel in a spirited debate regarding whether Ms. Fisher, who has since graduated from a different undergraduate institution and disavows any intention of reapplying to the university, can demonstrate a live case or controversy sufficient to establish constitutional standing. The justices also questioned whether Ms. Fisher would have been admitted in the absence of the race-conscious admissions program—an issue not examined by the courts below.

Last December, the Court decided to consider Perry and Windsor. In its order granting certiorari, the Court directed the parties in both cases to address whether the organizations defending the constitutionality of the laws have standing to do so. The petitioners in Perry are the original proponents of Proposition 8, the California ballot proposition that amended the state constitution to ban same-sex marriage. They do not assert a personalized injury distinct from that suffered by any other Californian opposed to same-sex marriage. Instead, they rely on a California law that permits official proponents of ballot initiatives to defend the validity of those measures where state officials have declined to do so. See Reply Brief of Petitioners at 10, Hollingsworth v. Perry, No. 12-144 (Sept. 4, 2012).

Similarly, the Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG), intervened in the Windsor case in response to the Obama administration’s February 2011 announcement that it would no longer defend DOMA’s constitutionality in court. Though its members do not claim a particularized injury or a direct interest in the outcome of the case, the BLAG maintains that it has standing as a “congressional entity” to defend the validity of the act. See Reply of the Bipartisan Legal Advisory Group of the U.S. House of Representatives to Defendant’s Response to the Motion to Intervene at 5, Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2011) (No. 10-cv-08435).

If the Court reaches the merits in Fisher or either of the marriage-equality cases, it seems that the Court will (at least implicitly) relax the traditional standing requirement that a party challenging or defending the constitutionality of a law must show a concrete and particularized injury-in-fact. Thus, a foreseeable—if unintended—consequence of the Roberts Court’s decision to grapple with these hot-button social issues may be an expansion of the class of plaintiffs eligible to bring suit for asserted constitutional violations.

The Constitutional Standing Doctrine
Article III, Section 2 of the Constitution limits the jurisdiction of federal courts to actual “cases” or “controversies.” The Supreme Court has historically required “strict compliance” with this limitation on judicial authority, Raines v. Byrd, 521 U.S. 811, 820 (1997), and it is therefore well established that litigants seeking redress for government violations of individual rights cannot invoke federal-court jurisdiction without first demonstrating that they have standing to sue. To establish constitutional standing, a plaintiff must show that the asserted injury is (1) both “concrete” and “imminent,” (2) fairly traceable to the defendant’s actions, and (3) capable of redress through a favorable decision by the court. Lujan, 504 U.S. at 560–61.

Significantly for petitioners such as Abigail Fisher, where a plaintiff seeks injunctive or declaratory relief, past exposure to illegal or discriminatory government conduct is insufficient. Rather, establishing standing requires showing “continuing, present adverse effects” or “a real and immediate threat of repeated injury.” Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (emphasis added). Further, Article III standing requires “a personal stake in the outcome” of litigation. Id. at 101 (emphasis added). Mere “ideological” objections are not sufficient—a plaintiff must show a direct personal injury.

Examples abound of the Court applying these principles to decline jurisdiction over claims involving alleged violations of constitutional rights. In Lyons, the Court found that Adolph Lyons, the victim of a choke hold by the Los Angeles Police Department, lacked standing to challenge the city’s policy because he failed to demonstrate a likelihood that he would be similarly injured in the future. Likewise, in Ashcroft v. Mattis, 431 U.S. 171 (1977), the Court dismissed for lack of standing the case of Robert Dean Mattis, the father of a boy killed by police who was seeking declaratory relief, because any future injury from the police department’s deadly-force policy was speculative and insufficient to satisfy Article III. And, in DeFunis v. Odegaard, 416 U.S. 312 (1974), Marco DeFunis’s challenge to the University of Washington Law School’s affirmative-action program was dismissed as moot—another Article III doctrine closely related to standing—because DeFunis, who had since been admitted to the law school and was nearing graduation, would “never again be required to run the gantlet of the Law School’s admission process.” 416 U.S. at 319.

In all of these cases, the Court embraced a “private rights” view of standing in which courts are restricted to adjudicating cases where the claimant first proves he or she has suffered a discrete and particularized “injury in fact.”

FisherPerry, and Windsor
When Abigail Fisher’s application was rejected by the University of Texas, she sued, claiming that the university’s race-conscious undergraduate admissions process violates the Equal Protection Clause. She sought an order that the university admit her and an injunction against the university’s consideration of race as a factor in future admissions.

Ms. Fisher’s claims are nearly identical to claims raised by the petitioners in Grutter v. Bollinger, 539 U.S. 306 (2003), a challenge to the University of Michigan law school’s race-conscious admissions program in which the Supreme Court held that a university’s pursuit of racial diversity does not violate the Equal Protection Clause when admissions procedures are narrowly tailored to achieve that compelling interest. See Grutter, 539 U.S. at 343. Unlike Grutter and its companion case, Gratz v. Bollinger, 539 U.S. 244 (2003), however, Ms. Fisher’s lawsuit was not brought as a class action. In Grutter, the named petitioner, Barbara Grutter, sued the University of Michigan’s law school on behalf of a class of similarly situated prospective applicants; moreover, Ms. Grutter averred that she still hoped to attend the law school. Likewise in Gratz, Jennifer Gratz represented a class of individuals who intended to seek admission to the University of Michigan “for all academic years from 1995 forward.” Gratz, 539 U.S. at 263.

In sharp contrast, Ms. Fisher no longer seeks admission to the University of Texas and has since graduated from Louisiana State University (LSU). Thus, it is difficult to see how Ms. Fisher can show anything more than past exposure to allegedly discriminatory conduct, which, under Lyons and its progeny, is insufficient to establish standing to seek injunctive or declaratory relief. The Supreme Court has repeatedly held that the emotional satisfaction gained from vindicating one’s loss is not enough to obtain declaratory relief. See, e.g., Ashcroft, 431 U.S. at 172.

The Fifth Circuit relied on Ms. Fisher’s ancillary-damages claim for the return of her application fees to establish standing before moving on to the merits. See Fisher v. University of Texas, 631 F.3d 213, 217 (5th Cir. 2011). During argument at the Supreme Court, however, multiple justices pressed Ms. Fisher’s counsel to demonstrate how her core alleged injury—the denial of equal treatment in admissions—is sufficiently concrete, particularly in light of her graduation from LSU. Although outside the scope of this article, it is notable that the one permissible remedy remaining in Fisher according to the Fifth Circuit—the damages claim for return of her application fees—may be barred by the Eleventh Amendment, which prohibits an award of retroactive relief against a state. See, e.g., Edelman v. Jordan, 415 U.S. 651, 674 (1974).

The justices also pressed counsel on a separate standing defect based upon the reasoning of Texas v. Lesage, 528 U.S. 18 (1999), where the Court found that the same injury asserted by Ms. Fisher—the inability to gain admission to a university allegedly because of the university’s consideration of race—was insufficient to support a claim for retroactive relief if the school would have denied the plaintiff’s admission even in the absence of the race-conscious evaluation process. See Lesage, 528 U.S. at 21. This issue was not considered in the district court or the Fifth Circuit, and it remains unclear whether Ms. Fisher would have been admitted to the university even without consideration of her race.

A decision to reach the merits of Ms. Fisher’s equal-protection claim is difficult to square with the Court’s jurisdictional holdings in LesageLyons, and DeFunis, all of which reinforced the well-established principle that a plaintiff must establish that he or she currently has a personal stake in the litigation to bring suit. If Ms. Fisher has standing to challenge the university’s admissions policy after graduating from a different institution—and without proof that she was qualified for guaranteed admission in the absence of the allegedly unconstitutional policy—then seemingly so would every other applicant that has ever been rejected under the current policy.

The intervening parties in Perry and Windsor face similarly steep standing challenges. In Perry, a federal district court invalidated Proposition 8, an amendment to the California constitution eliminating gay marriage, and state officials declined to appeal. The original proponents of Proposition 8 then intervened to appeal the decision.

The Ninth Circuit found that the proponents had standing by deferring to California law, which grants the official sponsors of an initiative the authority to defend the validity of an enacted measure when the state’s elected leaders refuse to do so. See Perry v. Brown, 671 F.3d 1052, 1072 (9th Cir. 2012). But constitutional standing derives its requirements from Article III. Consequently, the ability of state law to dictate the boundaries of federal jurisdiction over the claims is necessarily limited.

The standing issue in Windsor, the DOMA challenge, is similar. There, the question is whether the BLAG has standing to defend the constitutionality of DOMA where the United States has discontinued its defense of the law. The Court, by ordering briefing on the standing issues in both Perry and Windsor, has signaled an interest in resolving these questions.

Despite these potential jurisdictional imperfections, many commentators believe that the Court will reach the merits of FisherPerry, and WindsorSee, e.g., Adam D. Chandler, “How (Not) to Bring an Affirmative-Action Challenge,” 122 Yale L.J. Online 85, 106 (2012); Neal Devins and Tara Grove, “Commentary on Marriage Grants: Article III & Same-Sex Marriage,” SCOTUSblog (Dec. 8, 2012). If the Court does conclude that the parties in these cases have standing, we could witness not only the end of affirmative action in higher education, or the enshrining of a constitutional right to same-sex marriage in 2013, but also a retreat from the strict requirement that litigants establish that they personally have suffered a concrete and particularized injury to invoke federal jurisdiction.

The Court would struggle mightily to consider the substantive constitutional issues in these cases without simultaneously opening federal courthouses to plaintiffs alleging similar claims for violations of rights who were previously barred for lack of standing—plaintiffs such as Adolph Lyons, Robert Dean Mattis, and Marco DeFunis. Ironically, it may be the Court’s threshold decisions of whether and how it reaches the merits in these historic cases, rather than the substantive outcomes, that could be of the greatest significance to future litigants.

Keywords: civil rights litigation, Fisher v. University of Texas at Austin, Hollingsworth v. Perry, United States v. Windsor, DOMA


Danielle Y. Conley is a partner with WilmerHale in Washington, D.C., and cochairs the Subcommittee on Civil Procedure for the Civil Rights Litigation Committee. Robert N. Haferd is an associate at WilmerHale in Washington, D.C. Tiffany R. Wright is a law clerk at WilmerHale and a fourth-year evening student at Georgetown University Law Center in Washington, D.C.

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