Considering Standing, Sincerity, and Antidiscrimination

Abstract

This Article will establish that an unrecognized norm, the “norm of sincerity,” is an implicit factor in the standing analysis in a certain class of equal protection cases. That class of cases includes equal protection claims where 1) courts have applied the “able and ready to compete” test to determine a plaintiff’s injury in fact, and where 2) the plaintiff has complained about discriminatory access to limited government resources. In those cases, a plaintiff cannot demonstrate injury in fact sufficient to meet Article III standing unless she shows that she sincerely intends to use the benefits at stake in the litigation. Further, in these cases, the sincerity judgment is observable when a clear competitive process governs the competition for the resources. No commentator has recognized this developing trend. This Article will also establish that sincerity should play an increasingly visible role in what is sure to be a coming focus of this class of equal protection cases, which is the context of equal protection challenges to racial or ethnic minority preference programs outside of admissions in higher education. This context, referred to herein as the “tempting targets context,” includes, for example, programs such as minority-only or minority-preferred summer orientation and academic preparation programs, scholarships, fellowships, internships, and mentoring programs. The validity of any one of these programs has yet to be resolved by litigation on the merits in court, but those tests are surely coming. No commentator has yet considered the potential standing implications presented by these challenges. Finally, the Article concludes by identifying a proposed model for applying the able and ready standard and its inherent norm of sincerity to this specific and anticipated class of equal protection cases