Parents Defending Education Files Petition for Initial Hearing En Banc in Croton-Harmon Union Free School District Lawsuit

Associational standing is good. Allowing associations to sue on their members’ behalf is “advantageous both to the individuals represented and to the judicial system as a whole.” UAW v. Brock, 477 U.S. 274, 289 (1986). Associations can draw on “a preexisting reservoir of expertise and capital” and “‘specialized expertise and research,’” all of which “assist[s] both courts and plaintiffs.” Id. And without the help of these “representative[s],” the “constitutional rights” of many—especially the unpopular and underresourced—“ could not be effectively vindicated.” NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 459 (1958).

But this Court’s precedent is uniquely hostile to associational standing. Two of its decisions, Pfizer and Aguayo, make it virtually impossible for associations to vindicate their members’ rights—especially when quick relief is needed. Pfizer holds that an association loses standing if it moves for a preliminary injunction without volunteering its members’ real names. Do No Harm v. Pfizer, 96 F.4th 106, 118-19 (2d Cir. 2024). And Aguayo holds that associations never have standing to bring §1983 claims on behalf of their members. Aguayo v. Richardson, 473 F.2d 1090, 1099-100 (2d Cir. 1973).

Both decisions should be overruled en banc. Pfizer’s ban on anonymity splits with at least three circuits. Am. All. for Equal Rts. v. Fearless Fund Mgmt., 103 F.4th 765, 773 (11th Cir. 2024); Speech First v. Shrum, 92 F.4th 947, 952 (10th Cir. 2024); Advocs. for Highway & Auto Safety v. FMCSA, 41 F.4th 586, 594 & n.2 (D.C. Cir. 2022). It also misreads Supreme Court cases that didn’t involve pseudonyms, e.g., Summers v. Earth Island Inst., 555 U.S. 488 (2009), and contradicts high-profile cases that allowed anonymity, e.g., SFFA v. Harvard, 600 U.S. 181 (2023). And it needlessly “constrict[s] access to the courts.” Pfizer, 96 F.4th at 126 (Wesley, J., concurring).

Aguayo’s ban on associational standing under §1983 is even less defensible. It puts this Court at odds with every circuit. And it contradicts many landmark cases where the Supreme Court allowed associations to sue under §1983. Aguayo predates the doctrine of associational standing and guessed wrong about how it would work; yet later panels have felt constrained to follow Aguayo. Panels have tried to make up for Aguayo’s error by letting associations assert “increasingly tenuous and pretextual claims of injury to … themselves,” like diversions of resources. Centro de la Comunidad Hispana v. Oyster Bay, 868 F.3d 104, 123 (2d Cir. 2017) (Jacobs, J., dissenting). But the Supreme Court just upended that compromise in FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367, 395-96 (2024), where it severely curtailed (if not eliminated) the diversion-of-resources theory of standing. The time to finally overrule Aguayo en banc has thus arrived.

Petitioner, Parents Defending Education, lost below under Pfizer and Aguayo. Because those precedents cannot be overruled by any panel, this Court should grant initial hearing en banc to decide two questions:

1. Whether Pfizer should be overruled because an association seeking a preliminary injunction does not lose Article III standing when it refers to its members with pseudonyms.
2. Whether Aguayo should be overruled because an association can assert claims under 42 U.S.C. §1983 on behalf of its members.