The Sins of Innocence in Standing Doctrine
Should reverse discrimination plaintiffs always be able to challenge race-conscious selection policies in court? Conventional standing doctrine requires plaintiffs to show that the contested policy or practice has caused a concrete, personal harm. Yet in affirmative action cases, courts seem to have quietly dispensed with this required showing. The Supreme Court’s decision in Fisher v. University of Texas is a prime example. The university illustrated that the white plaintiff would not have been admitted whatever her race. Yet the Court completely ignored the standing inquiry, reinforcing the significant confusion among courts and scholars alike about the cognizability of racial injury. Some scholars attribute these relaxed standing outcomes to inherent expressive or stigmatic harms associated with racial classifications. This Article contends that a more complex dynamic is at work. It identifies and critiques an “innocence paradigm” that presumes harm to white plaintiffs from affirmative action. Legal scholars have long criticized the instability of standing doctrine, but none has fully explored the role that racialized conceptions of innocence plays in structuring standing analysis. This Article fills that gap. It defines the elements of the innocence paradigm in equal protection and discusses its role as an agent of racial injury in affirmative action litigation. It then explains how innocence shifted from equal protection to the procedural realm of standing, enabling anti–affirmative action litigants to access federal courts in the absence of any concrete, personal harm. By demonstrating the substantive and procedural operation of the innocence paradigm, the Article highlights the role that standing doctrine plays as both an instrument and product of racial inequality.
Associate Professor of Law, Rutgers Law School-Newark. B.A., Yale College; M.P.P., John F. Kennedy School of Government, Harvard University; J.D. Harvard Law School.