United States District Court, D. Massachusetts
STUDENTS FOR FAIR ADMISSIONS, INC. Plaintiff,
PRESIDENT AND FELLOWS OF HARVARD COLLEGE (HARVARD CORPORATION), Defendant.
MEMORANDUM AND ORDER DENYING MOTION TO
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.
action, Students for Fair Admissions, Inc.
(“SFFA”) alleges that Harvard College
(“Harvard”) employs racially and ethnically
discriminatory policies and procedures in administering its
undergraduate admissions program, in violation of Title VI of
the Civil Rights Act of 1964 and the Equal Protection Clause
of the Fourteenth Amendment to the United States
Constitution. Presently pending before this Court is
Harvard's motion to dismiss for lack of standing pursuant
to Federal Rule of Civil Procedure 12(b)(1). [ECF No. 187].
Harvard filed the instant motion on September 23, 2016, and
SFFA opposed it on October 21, 2016 [ECF No.
204]. For the reasons stated below, the motion
filed its Complaint with this Court on November 17, 2014 [ECF
No. 1], and Harvard filed its Answer on February 18, 2015
[ECF No. 17]. SFFA's Complaint sets forth two types of
allegations. First, SFFA contends that the general manner in
which Harvard considers race in its undergraduate admissions
program violates the Equal Protection Clause. As opposed to
using race as a mere “plus” factor in admissions
decisions, SFFA claims that Harvard engages in prohibited
“racial balancing.” Second, SFFA alleges that
Harvard's policies invidiously discriminate against
Asian-American applicants in particular because, by admitting
only a limited number of Asian-American applicants each year,
Harvard, in effect, forces Asian-American applicants to
compete against each other for those spots. Consequently, a
large number of otherwise highly-qualified Asian-American
applicants are allegedly denied admission to Harvard on the
basis of their race or ethnicity.
an Internal Revenue Code Section 501(c)(3) organization whose
claimed mission is to defend human and civil rights secured
by law, including equal protection rights, through litigation
or other lawful means. SFFA brings this action on behalf of its
members. Its membership is composed of a coalition of
applicants and prospective applicants to institutions of
higher education, along with their parents and other
individuals, including at least one Asian-American student
member who applied for and was denied admission to
Harvard's 2014 entering class (the
“Applicant”). Complaint ¶¶
12-24. According to SFFA, this Applicant intends
to transfer to Harvard when the school stops using its
race-based discrimination admissions policy.
Complaint requests the following relief: declaratory
judgments that Harvard's admissions policies and
procedures violate Title VI of the Civil Rights Act of 1964
and that any use of race or ethnicity in the educational
setting violates the Fourteenth Amendment and Title VI;
permanent injunctions prohibiting Harvard from using race as
a factor in future undergraduate admission decisions and
requiring it to make its admissions decisions in a race-blind
manner; attorneys' fees and costs; and any other relief
this Court finds appropriate.
Harvard's Rule 12(b)(1) challenge to SFFA's
constitutional standing implicates this Court's subject
matter jurisdiction, see P.R. Tel. Co. v. T-Mobile P.R.
LLC, 678 F.3d 49, 57 (1st Cir. 2012), the Court is not
restricted to the four corners of the Complaint and
“may consider whatever evidence has been submitted,
such as the depositions and exhibits, ” Aversa v.
United States, 99 F.3d 1200, 1210 (1st Cir. 1996);
see also Torres-Negron v. J & N Records, LLC,
504 F.3d 151, 163 (1st Cir. 2007); Katz v. Pershing,
LLC, 806 F.Supp.2d 452, 456 (D. Mass. 2011),
aff'd, 672 F.3d 64 (1st Cir. 2012) (“A
court is permitted to look beyond the pleadings to determine
jurisdiction on a 12(b)(1) motion, hence the formality of
converting the motion to one for summary judgment need not be
Constitution gives the judiciary power to hear only
“Cases” and “Controversies.” U.S.
Const. art. III, § 2, cl. 1. The Supreme Court has
interpreted this requirement to mean that courts may decide
only “cases and controversies of the sort traditionally
amenable to, and resolved by, the judicial process.”
Steel Co. v. Citizens for a Better Env't, 523
U.S. 83, 102 (1998). A plaintiff's standing to sue is
“part of the common understanding of what it takes to
make a justiciable case.” Id. Therefore,
“the absence of standing sounds the death knell for a
case.” Microsystems Software, Inc.v. Scandinavia
Online AB, 226 F.3d 35, 39 (1st Cir. 2000). The standing
determination is “claim-specific, ” meaning that
an individual plaintiff “must have standing to bring
each and every claim that [he or] she asserts.”
Katz v. Pershing, LLC, 672 F.3d 64, 71 (1st Cir.
III standing requires that three conditions be satisfied.
“First and foremost, there must be alleged (and
ultimately proved) an ‘injury in fact.'”
Steel Co., 523 U.S. at 103 (quoting Whitmore v.
Arkansas, 495 U.S. 149, 155 (1990)). This injury
“must be concrete in both a qualitative and temporal
sense, ” “distinct and palpable” as opposed
to “abstract, ” and “actual or
imminent” as opposed to “conjectural or
hypothetical.” Whitmore, 495 U.S. at 155
(internal quotations and citations omitted). Second, standing
requires causation, defined as a “fairly traceable
connection between the plaintiff's injury and the
complained-of conduct of the defendant.” Steel
Co., 523 U.S. at 103. Finally, standing requires
“redressability-a likelihood that the requested relief
will redress the alleged injury.” Id.
association may have standing solely as the representative of
its members even in the absence of injury to itself, in
certain circumstances.” Camel Hair & Cashmere
Inst. of Am., Inc. v. Associated Dry Goods
Corp., 799 F.2d 6, 10 (1st Cir. 1986) (citing Warth
v. Seldin, 422 U.S. 490, 511 (1975)). Specifically,
“an association 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.” Hunt v. Wash. State Apple Advert.
Comm'n, 432 U.S. 333, 343 (1977). The first two
Hunt prongs are constitutional, and the third is
prudential. United Food & Com. Workers Union Local
751 v. Brown Grp., Inc., 517 U.S. 544, 555-57 (1996).
Only one member need have individual standing in order for an
organization to satisfy the first Hunt factor.
See Playboy Enters., Inc. v. Pub. Serv. Comm'n of
P.R., 906 F.2d 25, 34 (1st Cir. 1990) (“[T]he
Supreme Court has never required that every member
of an association have standing before it can sue on behalf
of its members. ‘The association must allege that its
members, or any one of them, are suffering immediate
or threatened injury as a result of the challenged action of
the sort that would make out a justiciable case had the
members themselves brought suit.'” (quoting
Warth, 422 U.S. at 511)).
Hunt Court also held that an organization that was
not “a traditional voluntary membership
organization” because it did not have any formal
members could still have associational standing if its
constituents “possess[ed] all of the indicia of
membership in an organization.” Hunt, 432 U.S.
at 344-45. Indicia of membership, as identified by
the Hunt Court, include that the purported members
“alone elect the members of the Commission; they alone
may serve on the Commission; they alone finance its
activities, including the costs of this lawsuit, through
assessments levied upon them.” Id. Ultimately,
the Hunt Court found that the Commission at issue in
that case had associational standing even though it was not a
typical membership organization, at least in part because
“[i]n a very real sense . . . the Commission represents
the State's [apple] growers and dealers and provides the
means by which they express their collective views and
protect their collective interests.” Id. at
345. Harvard argues that the indicia-of-membership test
articulated in Hunt should be applied to all
organizations, while SFFA argues that it is not applicable to
membership organizations, like the SFFA.
Nature of the SFFA
SFFA, a nonstock corporation, was formed under the laws of
Virginia on July 30, 2014. [ECF No. 188, Ex. A (“Blum
Tr.”) at 11:23-25]. According to SFFA's bylaws, as
amended on June 19, 2015 (hereinafter, the
“Bylaws”),  the organization's purpose is
“to defend human and civil rights secured by law,
including the right of individuals to equal protection under
the law, through litigation and other lawful means.”
[ECF No. 188, Ex. B (“Bylaws”), art. II]. The
Board of Directors, which manages the business and affairs of
SFFA, is composed of four Board-Elected Directors and one
Member-Elected Director. Bylaws, art. IV, §§ 4.01,
4.02. The Board-Elected Directors are elected by a majority
vote of the directors then in office, and the Member-Elected
Director is elected by a majority vote of ...