Injury without Harm: Texas v. Lesage and the Strange World of Article III Injuries

In Texas v. Lesage the Supreme Court held, in a unanimous, per curiam opinion, that a plaintiff denied admission at a state university whose admissions process make unconstitutional use of race may not recover monetary damages under 42 U.S.C. §1983 if the defendant school can demonstrate that the plaintiff would have been denied admission even if race had not been used as a criterion. Elsewhere in the opinion, however, the Court indicated that such a plaintiff is entitled to injunctive relief because the relevant injury in that situation is "the inability to compete on equal footing." The latter holding builds on other decisions recognizing that in the equal protection context, in order to establish injury in fact sufficient to establish Article III standing, a plaintiff need not allege the loss of a tangible benefit. Instead, the loss of opportunity to compete equally itself constituted a sufficient injury. This Essay examines this peculiar bifurcation, and notes the ways in which it highlights a broader debate and division within the Court about the fundamental nature of the "injury in fact" requirement of Article III standing.

Some justices argue that the concept of an injury has some natural definition independent of the legal claim at issue in a particular lawsuit. Others, along with many commentators, argue to the contrary that the nature of cognizable injuries is inextricably linked to the legal claim being litigated. This Essay argues that in Lesage and other affirmative action cases, the Court has implicitly chosen the latter view by holding that cognizable injuries will vary depending on substantive law relied upon, and relief sought by a particular plaintiff. This is significant because the debate over the nature of cognizable injuries has important implications for the power of Congress to define and expand the kinds of injuries actionable under Article III; and by adopting a legal rather than a natural definition of injury, in Lesage the Court has implicitly recognized broad power for Congress in this regard.