Bench Memos

Can a For-Profit Corporation Have a Racial Identity?

Yes, says a unanimous Fourth Circuit panel in a ruling (written by an Obama appointee) yesterday: “We hold that a corporation can acquire a racial identity and establish standing to seek a remedy for alleged race discrimination under Title VI.” Among other things, the panel cites seven other circuit courts that “have concluded that corporations have standing to assert race discrimination claims,” and it quotes with approval the observation by one of those courts that it is

hard to believe that the Supreme Court would deny standing to the corporation because it “has no racial identity and cannot be the direct target” of the discrimination, while at the same time it would be obliged to deny standing to the stockholders on the sound ground that the injury was suffered by the corporation and not by them.

If that “hard to believe” proposition sounds familiar, that’s because the Obama administration is arguing in the HHS mandate cases that closely held, for-profit corporations aren’t persons capable of exercising religion under RFRA and that the corporate owners also don’t have any RFRA claims because the HHS mandate applies directly only against the corporations.

Will those who (wrongly) think that for-profit corporations are incapable of exercising religion for purposes of RFRA object as vigorously to the concept that for-profit corporations can have a racial identity for purposes of Title VI? If not, why not?

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