August 23, 2016

Some Questions on Standing

As a lawyer who handles public interest cases and has worked pro bono for charitable and educational institutions, one of the questions I see arising from time to time is the question of standing.  Particularly when a friend or client is mad about a new law they’ve seen on the news, I’ll remind them that in order to challenge a law in federal court, one must have legal standing to bring the suit.

Standing begins with an examination of the Constitution.  Article III, section 2 of the Constitution sets out the power of the judiciary:

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

There’s a lot of (slightly confusing) verbiage in there, but due to the highlighted words, this has become known as the “case or controversy” requirement.  This language dates back to the founding of our country and the concept of separation of powers.  The Founding Fathers didn’t want the federal judiciary (and especially the Supreme Court) to be able to issue free-floating “advisory” opinions as to whether particular laws were valid or not; they only wanted the courts to be able to redress specific wrongs brought by individual people who had an actual “case” or “controversy.”  See, e.g., Valley Forge Christian College v. Americans United, 454 U.S. 464, 471-2 (1982).

So what does it mean to have an actual “case or controversy” for purposes of standing?  The Supreme Court defined it this way, in Allen v. Wright, 468 U.S. 737, 751 (1984):  “A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the alleged relief.”  In that case, the Supreme Court considered the standing to a nationwide class action brought on behalf of parents of African American school children in public schools who were challenging the lack of IRS guidelines to deny tax exempt status to privateschools that engaged in racially discriminatory admissions processes.  Id. at 739-40.

Although all of the plaintiffs were parents of children in public schools, they alleged that they had sufficient standing to bring the lawsuit in two ways:  first, because tax breaks to private schools effectively constitutes “tangible federal financial aid… for racially segregated educational institutions,” and second, because the lack of an IRS guideline allows “white children [to] avoid[] attendance in desegregating public school districts and thereby interferes with the efforts of federal courts… to desegregate public school districts….”  Id. at 745.

The Supreme Court held that these kind of injuries were too attenuated to constitute an actual “case or controversy” for purposes of standing under the Constitution.  Id. at 752-761.  With respect to the first claim, the Court held that although racial discrimination is the kind of injury that can convey standing, it applies only to those persons who themselves are personally denied equal treatment under the law.  Id. at 755.  With respect to the second argument, the Court held that although diminished educational opportunities is an actual injury that can convey standing, the “injury to respondents is highly indirect and results from the independent action of some third party not before the court.”  Id. at 757 (internal citations omitted).  In other words, because the plaintiffs weren’t actually denied admission to the schools that they claim were racially segregated, they couldn’t claim standing to argue on behalf of kids who were.

From the Allen decision, we can draw three guideposts that help us determine whether a party is likely to have standing to sue in federal court:

First, the plaintiff must have suffered or be in imminent danger of suffering a distinct and palpable injury, sometimes called an “injury-in-fact.”  This can be a traditional injury (such as being physically hurt or suffering a loss of money or the like), or it can be an injury to rights such as the equal opportunity to participate in the educational system, but it cannot be a merely “abstract” or hypothetical injury.  Id. at 755-56.

Second, the injury must be “fairly traced to the challenged action,” id. at 759, which is to say that there are clear links in the chain of causation between the defendant’s conduct and the injury suffered by the plaintiff.  Id. at 759.  If this chain of causal events is attenuated or interrupted by a third party, the Court will hold that the chain is too weak to sustain standing.  Id.

Third, the injury must be one that is capable of redress by the Court, meaning that if the Court were to grant the relief requested by the plaintiff, it would actually solve the problem raised by the plaintiff in the first place.  Id. at 753 & n.19.  (This requirement is sometimes considered another component of the causation requirement discussed immediately above.)

A few caveats:  this basic primer does not begin to discuss the nuances of complex standing doctrine, including specific cases in which standing can be conferred by statute, or cases in which standing has been conferred or presumed on behalf of “all taxpayers,” such as many First Amendment cases.  Finally, this Article III doctrine of “case or controversy” applies only to federalcourts, and not state courts.  Notwithstanding the above, I hope this blog post helps you make sense of current events and other news reports where “standing” is frequently an issue in cases involving Constitutional and civil rights.

August 23, 2016 Blog