20-1508

FASORP v. New York University

In the

United States Court of Appeals

for the Second Circuit

AUGUST TERM 2020

No. 20-1508-cv

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. 

On Appeal from the United States District Court

for the Southern District of New York

* Under Fed. R. App. P. 43(c)(2), Miguel Cardona is, in his official capacity 

as Secretary of Education, substituted for his predecessor Betsy DeVos. The Clerk 

of Court is directed to amend the caption of this matter accordingly.
2

ARGUED: MARCH 5, 2021

DECIDED: AUGUST 25, 2021

Before: LEVAL, CABRANES, and MENASHI, Circuit Judges.

This appeal presents one threshold question: whether PlaintiffAppellant 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. CABRANES, Circuit Judge:

This appeal presents one threshold question: whether PlaintiffAppellant 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 

1 Cortlandt Street Recovery Corp. v. Hellas Telecomms., S.a.r.l., 790 F.3d 411, 417 

(2d Cir. 2015) (internal quotation marks and citation omitted).
4

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 

2 Plaintiff’s Br. at 6. FASORP is organized under the laws of Texas. 

3 Scholars from other academic disciplines may be surprised to learn that 

legal academic journals are almost universally “under total student control” and 

have been since the founding of the first law review—the Harvard Law Review—

in 1887 and the second law review—the Yale Law Journal—in 1891. ROBERT 

STEVENS, LAW SCHOOL: LEGAL EDUCATION IN AMERICA FROM THE 1850S TO THE 

1980S 118 & 127 n.34 (1983). This has at times given rise to considerable angst and 

merriment in the legal academy. See, e.g., Fred Rodell, Goodbye to Law Reviews, 23 

VA. L. REV. 38 (1936-37) (“The students who write for the law reviews are egged on 

by the comforting thought that they will be pretty sure to get jobs when they 

graduate in return . . . and the super-students who do the editorial or dirty work 

are egged on even harder by the knowledge they will get even better jobs.”); C. 

Steven Bradford, As I Lay Writing: How to Write Law Review Articles for Fun and Profit: 

A Law-and-Economics, Critical, Hermeneutical, Policy Approach and Lots of Other Stuff 

That Thousands of Readers Will Find Really Interesting and Therefore You Ought to 

Publish in Your Prestigious, Top-Ten, Totally Excellent Law Review, 44 J. LEGAL EDUC.

1, 13 (March 1994) (“Law Professor’s Editing Rule: Change back everything the law 

review editors have done. After all, you’re the one being paid to write, not them. 

Do you trust what a law student has to say about writing?” (emphasis in original)).

Terms such as “Law Review,” defined for the purpose of this opinion, are 

substituted even into quoted material, where applicable, for consistency. 
5

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. 
6

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 webbased 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

4 Am. Complaint ¶ 25. 

5 42 U.S.C. § 2000d et seq.

6 20 U.S.C. § 1681 et seq.

7 FASORP had previously filed a complaint with almost identical allegations 

against Harvard Law School and the Harvard Law Review. That complaint was 

dismissed by the United States District Court for the District of Massachusetts on 

August 8, 2019. Faculty, Alumni, and Students Opposed to Racial Preferences v. Harvard 

Law Review Ass’n, Civ. No. 18-12105-LTS, 2019 WL 3754023 (D. Mass. Aug. 8, 2019). 

FASORP did not appeal the District Court’s decision. 
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 

8 Am. Complaint ¶ 42. 

9 Id. at ¶ 33. 
8

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

10 Id. at ¶ 42. 

11 Id. at ¶ 34. 

12 Id. at ¶ 43. 

13 Id. at ¶ 34. 

14 Id. at ¶ 35. 
9

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 

15 Id. at ¶ 45. 

16 Id. at ¶ 27. 

17 Id. at ¶ 45. 

18 In their motion to dismiss, the NYU Defendants asserted that the Law 

School and the Law Review should be dismissed as named defendants in 

FASORP’s suit pursuant to Fed R. Civ. P. 4(m), on the basis that they are not legal 

entities amenable to service of process. FASORP did not object. 
10

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

19 Because we hold that FASORP has failed to establish Article III standing, 

we need not decide whether it also failed to state a claim for relief under Title VI 

and IX.

20 In its opening brief, FASORP states that it “is not contesting the dismissal 

of the federal defendants, and it will no longer pursue claims or seek relief against 

the federal defendants in this litigation.” Plaintiff’s Br. at 9 n.2. Accordingly, the 

federal defendants did not file a brief in this appeal. 

21 Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 79-80 (2d 

Cir. 2005). 

22 Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), as revised (May 24, 2016).

23 Id. (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975) and Lujan v. Defenders 

of Wildlife, 504 U.S. 555, 560 (1992)).
11

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 injury.27

24 Sierra Club v. Morton, 405 U.S. 727, 732 (1972) (internal quotation marks 

and citation omitted).

25 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (citing U.S. CONST. art III, 

§ 2). 

26 SM Kids, LLC v. Google LLC, 963 F.3d 206, 211 (2d Cir. 2020) (quoting 

Spokeo, 136 S. Ct. at 1547).

27 Warth, 422 U.S. at 511 (An organization can “have standing in its own right 

to seek judicial relief from injury to itself and to vindicate whatever rights and 

immunities the association itself may enjoy”); Havens Realty Corp. v. Coleman, 455 

U.S. 363, 379 n.19 (1982) (“[O]rganizations are entitled to sue on their own 

behalf....”); New York C.L. Union v. New York City Transit Auth., 684 F.3d 286, 294 (2d 

Cir. 2012) (“Under this theory of ‘organizational’ standing, the organization is just 

another person—albeit a legal person—seeking to vindicate a right. To qualify, the 

organization itself must meet the same standing test that applies to individuals.” 

(internal quotation marks and alterations omitted)).
12

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, 

28 Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977); see, e.g., 

Warth, 422 U.S. 490, 511 (1975) (calling this approach “representational” standing); 

Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 649 (2d Cir. 1998) (calling it 

“associational” standing); see also New York C.L. Union, 684 F.3d at 294 (describing 

the various terms referring to this approach).

29 LaFleur v. Whitman, 300 F.3d 256, 269 (2d Cir. 2002) (internal quotation 

marks omitted). 
13

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 not required to “name names,” standing 

pleadings “must be supported in the same way as any other matter on 

which the plaintiff bears the burden of proof, i.e., with the manner and 

degree of evidence required at the successive stages of the litigation.”33

And, as relevant here, FASORP “must allege facts that affirmatively 

and plausibly suggest that it has standing to sue.”34

30 Summers v. Earth Island Institute, 555 U.S. 488, 499 (2009) (internal 

quotation marks and alteration omitted). 

31 Id. 

32 Here, FASORP relies on Bldg. & Const. Trades Council of Buffalo, N.Y. and 

Vicinity v. Downtown Dev., Inc., 448 F.3d 138, 145 (2d Cir. 2006) (“An association 

bringing suit on behalf of its members must allege that one or more of its members 

has suffered a concrete and particularized injury, as the plaintiffs do. But the 

defendants cite to no authority—nor are we aware of any—that supports the 

proposition that an association must ‘name names’ in a complaint in order properly 

to allege injury in fact to its members.” (internal citation omitted)). 

33 Lujan, 504 U.S. at 561. 

34 Amidax Trading Group v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011). 
14

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. 

35 Am. Complaint ¶ 42, 45. Although FASORP alleges that its members who 

are alumni or students will be injured, Am. Complaint ¶ 35-39, FASORP does not 

specifically allege that its members actually include any alumni of the Law Review

or NYU students. Further, while FASORP contends that it has “never ‘admitted’ 

that it has no student or alumni members,” FASORP concedes that “it is simply not 

asserting standing on their behalf in this particular lawsuit against NYU.” Plaintiff’s 

Reply Br. at 21 n.17 (emphasis in original). 

36 Plaintiff’s Br. at 13. 

37 Summers, 555 U.S. at 497. 
15

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 articleselection procedures, FASORP only alleges a “highly attenuated chain

of possibilities”41 in its Amended Complaint, starting with its 

allegations that its faculty or scholar members will be injured—i.e., 

discriminated against—because they “intend to continue submitting 

their scholarship” and “intend” to apply for jobs at the Law School, or 

remain candidates for recruitment to the faculty at the Law School.42 

With respect to FASORP’s challenge to the Law Review’s editorselection 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 

38 Summers, 555 U.S. at 499.

39 Lujan, 504 U.S. at 560.

40 Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (quoting Clapper 

v. Amnesty Intern., 568 U.S. 398, 414 n.5). 

41 Id.

42 Am. Complaint ¶¶ 42, 45 (emphasis added).
16

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 

43 Plaintiff’s Br. at 27-28. 

44 Summers, 555 U.S. at 496 (quotation marks and citation omitted). 

45 Plaintiff’s Br. at 28. 

46 499 U.S. 400 (1991). 
17

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 suffered an 

injury-in-fact.48 FASORP has thus not demonstrated it has standing 

47 Id. at 411-12 (internal citation omitted).

48 Because we conclude that FASORP has not sufficiently pleaded an injuryin-fact, we do not go on to examine the other elements of Article III standing: 

causation and redressability.
18

based on injuries to its members, as would be required to maintain this 

suit. 

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.

49 Carter v. HealthPort Techs., LLC, 822 F.3d 47, 54 (2d Cir. 2016). 

50 Id. (internal quotation marks and citations omitted); see also Hernandez v. 

Conriv Realty Assocs., 182 F.3d 121 (2d Cir. 1999) (“[I]t is our view that Article III 

deprives federal courts of the power to dismiss a case with prejudice where federal 

subject matter jurisdiction does not exist.”). 
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”).
2

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 order to establish standing.” Ne. Fla.

Chapter, 508 U.S. at 666; Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 

211 (1995). Rather, the “injury in fact” in such a case “is the denial of 

equal treatment resulting from the imposition of the barrier, not the 

ultimate inability to obtain the benefit.” Ne. Fla. Chapter, 508 U.S. at 

666; Adarand, 515 U.S. at 211 (“The injury in cases of this kind is that 

a discriminatory classification prevents the plaintiff from competing 

on an equal footing.”) (internal quotation marks and alteration 

omitted); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 281 n.14 (1978) 

(identifying “an injury, apart from failure to be admitted, in the 

University’s decision not to permit Bakke to compete for all 100 places 

in the class, simply because of his race”).1

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 

1 These cases involved constitutional claims in addition to claims under 

Title VI. See Gratz, 539 U.S. at 276 & n.23; Bakke, 438 U.S. at 284. That does 

not affect the standing analysis. “Title VI’s protections are coextensive with 

the Equal Protection Clause of the Fourteenth Amendment.” Students for 

Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 980 F.3d 157, 185 

(1st Cir. 2020); see also Bakke, 438 U.S. at 287 (“Title VI must be held to 

proscribe only those racial classifications that would violate the Equal 

Protection Clause or the Fifth Amendment.”).
3

its hypothetical members are able and ready to act is necessarily a 

speculative question. Accordingly, I concur in the court’s opinion.