“Indicia of Membership” Test Does Not Apply to Traditional Voluntary Membership Organization to Assess Associational Standing, Holds First Circuit

In Students for Fair Admissions v. President & Fellows of Harvard, No. 19-2005 (1st Cir. Nov. 12, 2020), the First Circuit – in an opinion upholding Harvard College’s admissions policy against a civil rights challenge – addresses the associational standing of the organization that brought the lawsuit.

Students for Fair Admissions, Inc. (“SFFA”) filed suit against Harvard College’s “admittedly race-conscious undergraduate admissions process violates Title VI of the Civil Rights Act of 1964 … by discriminating against Asian American applicants in favor of white applicants.” SFFA at the time of suit “had forty-seven affiliate members … including Asian American members who had applied to and been rejected by Harvard.” The organization was avowedly formed to “defend human and civil rights secured by law, including the right of individuals to equal protection under the law, through litigation and any other lawful means.”

After a fifteen-day bench trial, “[t]he district court found that Harvard had met its burden of showing its admissions process did not violate Title VI.” It held that the use of race satisfied the strict scrutiny standard prescribed by Title VI and governing Supreme Court authority.

Below and on appeal, Harvard challenged SFFA’s standing in the case. The First Circuit nevertheless holds (as did the court below) that SFFA had associational standing to bring its claims. Harvard argued that while SFFA met the conventional requirements for associational standing – in that (1) at least one member possesses personal standing to sue, (2) the interests at stake in the suit “are pertinent to the objectives of the association; and (3) “neither the claim asserted nor the relief demanded necessitates the personal participation of affected individuals” – it was not a “genuine” membership organization under the standards of the leading decision, Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333 (1977).

Hunt introduced an alternative standard for organizations that were not strictly membership organizations (the plaintiff in Hunt, for instance, was a state agency). “Dubbed the ‘indicia of membership’ test … [it] requires courts to determine if organizations that are not voluntary membership organizations, ‘for all practical purposes, perform[] the functions of a traditional trade association.’” Such indicia might include “whether the organization’s purpose is to protect and promote the interests of its non-members, whether these non-members are ‘the primary beneficiar[ies] of its activities,’ and whether non-members elect its members, are the only people who may be members, or finance the organizations’ activities, including litigation costs, through assessments levied upon them.”

The First Circuit holds nevertheless that for SFFA, which “on [its] face” is a voluntary membership organization, the “indicia of membership” test does not apply. “When suit was filed in November 2014, SFFA was a validly incorporated 501(c)(3) nonprofit with forty-seven members who joined voluntarily to support its mission of ‘defend[ing] human and civil rights secured by law, including the right of individuals to equal protection under the law.’ We have already described its bylaws and membership structure and do not repeat this description. These facts are sufficient to conclude that SFFA is a valid membership organization and applying an indicia of membership test to SFFA is unwarranted.”

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