Though it was not always so, the phrase "antidiscrimination" today refers equally to cases challenging affirmative action as to cases challenging "traditional" discrimination. We refer to cases challenging affirmative action as "reverse discrimination" cases, but they are antidiscrimination cases just the same.1 As such, the body of law that we call "antidiscrimination law" is developing and growing rapidly. One of these developments is that recently some federal courts have implicitly recognized that in a certain class of antidiscrimination cases, the "sincerity" with which the plaintiff brings the claim can affect the court's determination of standing to sue.
In this Article, I dub this developing principle "the norm of sincerity" and assert that the norm helps courts evaluate whether a plaintiffs claimed constitutional injury is sufficiently concrete and personal to invoke federal jurisdiction. Further, in this Article, I assert that because the norm of sincerity helps courts evaluate injury in fact, courts should recognize the norm of sincerity and give it a rightful place in the developing antidiscrimination jurisprudence.
At the outset, let me define terms. In all discrimination cases, a plaintiff complains that the government unconstitutionally denied her the ability to access a process or to compete for a benefit on the basis of race or national origin. In some of these cases, the alleged discrimination cuts off the plaintiff's access to benefits that are finite, or limited, in number. For instance, two common examples of limited-resources cases include cases challenging racial or ethnic preferences in municipal contracting and cases challenging racial or ethnic preferences in university admissions. In the municipal contracting context, there are typically a finite number of contracts to be awarded; in university admissions, there are a finite number of seats in a class. Because there are only a finite number of benefits to be awarded in these cases, I think of them as "limited-resources" cases, and will refer to them that way.
Another definition: by "sincerity" I mean that why a particular plaintiff is the one to bring an antidiscrimination claim matters to the injury-in-fact piece of the standing analysis. As will be shown infra, to state injury in fact in this class of discrimination cases, a plaintiff must show that she was, essentially, prepared to compete for the benefit at stake. A plaintiff meets this standard by offering objective evidence that she was "able and ready" to compete for the benefit.2 If the court suspects that the plaintiff has not met this showing, some courts have required that the plaintiff offer additional evidence. In my observation, what these courts are looking for in this more searching review is evidence that the plaintiff subjectively intended either to compete for or to use the benefits at stake. In other words, if and when a court suspects that the plaintiff was not, in fact, prepared to compete, the court then questions whether the plaintiff sincerely intended to compete at all. If she cannot demonstrate that she sincerely intended to compete, then she lacks injury in fact. If she lacks injury in fact, then she lacks standing to sue for the alleged discrimination.
Thus, in this Article, I will show that the norm of sincerity is an implicit norm that helps courts evaluate injury in fact in limitedresources discrimination cases. In other words, I will show that, for standing in this class of cases, a plaintiff may not merely aver that she has been discriminated against by a certain preference in a competitive process. Rather, she must be able to show the court, in some relevant and meaningful way, that she was in fact prepared to compete, which is in some cases an objective proxy for her subjective intent to compete. As I will demonstrate infra, the norm of sincerity is most observable when a transparent process governs the competition for the limited resources at stake. …