In my last blog I looked at why testers became embedded in the enforcement of civil rights laws from a practical standpoint. Now it’s time to look at the law of standing as it relates to testers.¹

The Supreme Court recognized long ago that Article III of the Constitution only gives federal courts the right to decide “cases” or “controversies.” Those words are in the text of Article III itself. By the 1960’s this requirement was interpreted to mean that the plaintiff had:

such a personal stake in the outcome of the controversy’ as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court’s remedial powers on his behalf.

Warth v. Seldin, 422 U.S. 490, 498–99 (1975) [citing earlier cases]. To have such personal stake required that the plaintiff have suffered or be threatened with an actual injury. The plaintiff could not merely “rest his claim to relief on the legal rights or interests of third parties.” Id. A plaintiff who met the requirements of Article III had “standing” to sue in federal court.

Hand in hand with the development of the idea of Article III standing came the idea of “prudential” limits on standing. Simply put, “prudential” meant that sometimes the federal courts would not hear a case where there was a real injury because enforcement of the law or constitutional provision in question was better left to federal agencies. Of course, it was a different matter when Congress itself gave someone the right to sue. If Congress gave an individual the right to sue then it was hard to say that prudence meant the courts should not hear the case.

That brings us to Havens Realty v. Coleman, the case often cited for the proposition that “testers have standing.” It was a classic tester case – a white tester and a black tester asked about the availability of an apartment. The white tester was told it was available. The black tester was told it was not. A crystal-clear case of racial discrimination in violation of the Fair Housing Act. However, neither tester really wanted to rent an apartment. The defendant claimed that without any desire to rent the black tester suffered no harm from being lied to and therefore lacked standing to sue. The Supreme Court disagreed. It pointed out that the FHA has a specific provision (Section 3604(d)) making it unlawful to give false information to someone based on their race. Because the black tester suffered exactly the injury the FHA was intended to prevent he had standing.

The key thing to notice here is that the Supreme Court said, in essence, if Congress gave someone the right to sue then their statutorily defined “injury” would enough to satisfy the Constitution. Congress could decide who met the requirements of Article III of the Constitution.

We’ll skip the next 36 years of legal developments to keep this blog a reasonable length. In 2021 the Supreme Court decided, in TransUnion that Congress could not create a right to sue and expect the statutory injury would automatically satisfy the requirements of Article III. Congress could create a statutory injury but only the Supreme Court could decide whether the statutory injury was good enough for Article III. In TransUnion the Court decided that some of the victims of the law concerning credit reporting had suffered an injury sufficient for Article III standing, but others who were also victims with a right to sue had not because they had not been affected in any way by the violation.

The problem for tester standing is obvious. If the black tester in Havens Realty had only suffered a statutory injury (being lied to) but that did not result in any real injury (because the truth didn’t matter) maybe tester standing was not enough to satisfy Article III of the Constitution. Soon there were soon both scholars and bloggers like me suggesting that Havens Realty might be dead and tester standing along with it. If testers didn’t want to rent an apartment, use a website, or buy from a business then being turned down because of race or disability didn’t matter and Article III was not satisfied.

This is why there is so much riding on Arpan Hotels v. Laufer. Laufer goes to hotel websites to see if they have the information about accessibility required by ADA regulations. She does not intend to go to the hotel, she wants the information for its own sake. If it is missing, she sues. That sounds very much like the black tester in Havens Realty, who was entitled to truthful information although he had no use for it. If Laufer does not have an injury that satisfies Article III then fair housing testers might not either and so a victory for the hotel could spell the end of FHA testing as well as ADA testing.

The case is in the Supreme Court because different courts of appeal have different views of whether a plaintiff like Laufer has standing after the TransUnion decision. The pro-Laufer courts of appeal say that she suffered either or both of an “informational injury” or a “dignitary harm.” The argument for an “informational injury” is simply that if Congress says you have a right to information then being deprived of that information is a real harm because you have a right to it. It doesn’t matter whether you needed it or not. The “dignitary harm” argument is that those with disabilities and others that have been discriminated against feel a special emotional distress when they see violations of the anti-discrimination laws even if the violation doesn’t make any difference to them other than making them feel bad.

These arguments are still possible because the Supreme Court found it hard to precisely define just what Article III requires. The conservative members of the Court look to the law as it existed in the late 18^th century when the Constitution was written as a guide what it means. The common law causes of action that existed at the time were the starting point for finding a sufficient injury for Article III. If an injury looked like an injury that you could sue for in 1789 then it was good enough for the Constitution. The Court recognized that there could be newer kinds of injury, but similarity to common law injuries was key. They also looked back to Warth v Seldin and the concern that if anyone could sue to vindicate the public interest, rather than their own private interests, you might get private law enforcement that interfered with the agencies charged to protect the public interest. Based on earlier cases like Spokeo Inc. v. Robins the Court found that a injury had to be “concrete” and “particularized” to satisfy Article III.

It isn’t hard to see how the arguments line up for and against standing for testers given these parameters. Those who believe Laufer should have standing argue that once she was given a right to information taking it away from her was very much like common law claims related to theft. This argument was aided by the Supreme Court’s recognition in cases like Fed. Election Commn. v. Akins that an informational injury could support standing. TransUnion suggested that informational injury could stem from being denied information that was required to be publicly available (good for the Laufer side) but insisted that it also had to “downstream consequences” or “adverse effects.” (not so good for the Laufer side).

There is also the argument that Laufer and other testers suffer a “dignitary harm” similar to that suffered by those who are defamed. The Supreme Court has often recognized that dignitary harms can be actionable, so they neatly fit the “like the common law” requirement. The Justices even glanced at the question of whether a dignitary harm was sufficient for standing in Trump v. Hawaii, but just long enough to say they didn’t have to answer that question. The problem here is that dignitary harm is usually actionable only when there is some other harm – for example to reputation. Equally important, if information is supposed to be available to all the dignitary harm suffered by a tester like Laufer is indistinguishable from the harm suffered by every other person who wants but cannot find the information. If invoking “dignitary harm” allows someone with no distinct interest in the information to have standing we are back to individuals who sue to enforce the public interest rather than their private interests.

So, does Laufer being offended by a statutory violation constitute a sufficient harm for Article III? The ultimate argument on the pro-Laufer side of the dispute about standing goes like this:

• Being subjected to discrimination (as in Havens Realty) is bad in a way that has been recognized in many cases. No one should be treated differently because of their race or disability, regardless of the circumstances.
• Not including accessibility information on a hotel website is defined as a kind of discrimination in the ADA. It may not be treating people differently, but it is “discrimination” because Congress said it is.
• Thus even though both the non-disabled and disabled are treated the same because neither gets the information, the “discrimination” is just as bad as if they were treated differently.

It is a tortured argument because, of course, treating people the same isn’t the same as treating them differently. The most important holding in TransUnion is that Congress cannot create an Article III injury just be defining a statutory violation as an actionable injury. The ADA and FHA both recognize that equality of treatment may not result in equality of opportunity and so in some cases they define “discrimination” as equal treatment when the law requires special kinds of unequal treatment. Nonetheless, defining equal treatment as “discrimination” does not make it the psychological or dignitary equivalent of differential treatment. In some respects claiming Laufer suffered the same harm from knowing there was a technical violation of a DOJ regulation that a young black person suffered when refused service in a diner is offensive. Defining equal treatment as discrimination does not make it so; indeed, one of the reasons Congress had to put in place standards that require special treatment for the disabled is that there is no historical precedent for equal treatment being actionable.

I don’t know how the Supreme Court will come down on these arguments, but there is an obvious way to preserve tester standing without supporting the current litigation industry based on testing. Simply hold, consistent with earlier precedent, that differential treatment causes a concrete and particularized harm to those who experience it. At the same time being exposed to some failure to satisfy the thousands of pages of technical regulations that define the inequality of treatment required to give those with disabilities equal opportunity only constitutes an injury to those who have a reason to care. Those who suffer from differential treatment suffer a concrete and particularized harm; those who merely see a violation of a highly technical regulation suffer no harm at all.

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¹  This very abbreviated explanation is bound to miss all the subtleties, but those interested can download all the briefs in the Acheson Hotels case from the Supreme Court’s website.