Standing While Black: Distinguishing "Lyons" in Racial Profiling Cases

Abstract

nature of the injury all citizens share); United States v. Richardson, 418 U.S. 166, 167-70 (1974) (denying plaintiffs standing to challenge Central Intelligence Agency failure to disclose operating expenses for prudential reasons); Flast v. Cohen, 392 U.S. 83, 106 (1968) (permitting standing in taxpayer suit alleging violation of separation between church and state, but affirming the strict requirement of personal stake in the outcome of litigation); Perkins v. Lukens Steel Co., 310 U.S. 113, 125 (1940) (denying standing where plaintiffs could not show injury to a particular right of their own, as distinguished from the public's interest in the administration of the law). 78. For case distinguishing Lyons where group-based harm was not based on suspect classification, see Church v. City of Huntsville, 30 F.3d 1332, 1338 (11th Cir. 1994) (finding that homeless victims of police harassment campaign had standing, since due to the involuntary nature of their condition, the plaintiffs cannot avoid future 'exposure to the challenged course of conduct' in which the City allegedly engages (quoting O'Shea v. Littleton, 414 U.S. 488, 497 (1974))). 79. See Lyons, 461 U.S. at 110 n.9, 111. 80. See, e.g., Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, Injuries, and Article III, 91 Mich. L. Rev. 163, 203-05 (1992) (arguing that Bakke and other major equal protection decisions improperly find or deny standing based only on the Court's characterization of the opportunity denied to the plaintiff); see also Girardeau A. Spann, Color-Coded Standing, 80 Cornell L. Rev. 1422, 1465 (1995) ([I]t is difficult to imagine anyone seriously disputing the fact that the Court is much more likely to reject programmatic racial discrimination challenge on standing grounds when the plaintiff is minority plaintiff ....). This content downloaded from 157.55.39.124 on Wed, 20 Jul 2016 06:19:02 UTC All use subject to http://about.jstor.org/terms 1836 COLUMBIA LAW REVIEW [Vol. 100:1815 tunity to compete for ajob or some other benefit.81 There is no required additional showing that one would realistically or credibly obtain the benefit.82 Landmark equal protection decisions involving race or sex-based classifications brush over issues of future harm. For example, in Heckler v. Mathews, men had standing to challenge health benefit provided only to women, though they may not have tangibly benefited if the state remedied the inequality by eliminating the benefit altogether.83 The Court stated: [W] e have never suggested that the injuries caused by constitutionally underinclusive scheme can be remedied only by extending the program's benefits to the excluded class.... [W] e have frequently entertained attacks on discriminatory statutes or practices even when the government could deprive successful plaintiff of any monetary relief by withdrawing the statute's benefits from both the favored and the excluded class.84 Similarly, in Adarand Constructors, Inc. v. Pena, standing was satisfied given an allegation of racial classification, pattern of past participation in construction bidding, and bare statement of intention to participate in the future.85 While Lyons could not state an intention to violate traffic laws in the future, plaintiffs in racial profiling cases can allege racial classification and an intention to continue engaging in the innocent activity that leads to police stop. 81. See, e.g., Clements v. Fashing, 457 U.S. 957, 962 (1982) (finding standing in equal protection challenge to law requiring resignation upon announcing candidacy for another office, stating that discouraging potential candidacy was sufficient and no allegation of future candidacy was required); Orr v. Orr, 440 U.S. 268, 272 (1978) (standing found in husband's challenge to alimony scheme preferring dependent spouses, though remedy might deny benefit to both men and women); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 320 (1978) (addressing standing issues and concluding that the school policy denied Bakke an opportunity to compete for spot in the school, and that showing that he would be admitted without the policy was not necessary); Stanton v. Stanton, 421 U.S. 7, 17-18 (1975) (finding standing to challenge in which child support payments for women accrued at an age of majority of 18, but for men at 21, though the remedy might be to deny privileges to women until 21); Turner v. Fouche, 396 U.S. 346, 364 (1970) (concluding plaintiff had standing to challenge law limiting school board membership to property owners, though plaintiff did not own property); Smith v. City of Cleveland Heights, 760 F.2d 720, 722 (6th Cir. 1985) (finding standing because of stigmatic injury where racial steering denied minority plaintiffs an equal opportunity to apply for housing in that