For an example excerpt, see the Schwake v. Arizona case, page 15:

The University contends that the allegations of genderbased decisionmaking are conclusory because they lack the detail of the allegations in Doe v. Miami University, 882 F.3d 579 (6th Cir. 2018). The plaintiff’s allegations there included: (1) “every male student accused of sexual misconduct in the Fall 2013 and Spring 2014 semesters was found responsible for the alleged violation,” (2) “nearly ninety percent of students found responsible for sexual misconduct between 2011 and 2014 have male first-names,” (3) an affidavit from an attorney who represented “many students in Miami University’s disciplinary proceedings” who “describe[d] a pattern of the University pursuing investigations concerning male students, but not female students,” and (4) the plaintiff’s allegation that the university investigated him rather than the complainant. Id. at 593–94.

Also on page 15, Schwake alleged that "male repondents in the student disciplinary proceedings involving alleged sexual harassment and misconduct cases at Arizona Univ are invariably found guilty regardless of the evidence or lack thereof."

I am not a law student so I am assuming that, as the allegation is "plausible" (see the last page of the document), the statistics cited in those allegations must be objectively correct or well-supported?

  • 2
    You have quote marks around the word "plausible", indicating that you are quoting someone saying it, but I don't see the word in the quote you present. Also, "versus" is abbreviated v. or vs., not v.s. Aug 27, 2020 at 22:24
  • @Acccumulation Edited. Please correct me if I was wrong but in the last page of the link, the court seems to conclude that the allegation is plausible.
    – High GPA
    Aug 27, 2020 at 22:27
  • 4
    As far as I know, there is basically no situation in which any court ruling can be taken as an affirmation by the court that every single statement in a party's claim is true. The court only rules on whether the overall claim is justified to an appropriate legal standard, not whether it is literally correct in every detail. Aug 27, 2020 at 23:22
  • 3
    The alternative would be a system in which the slightest inaccuracy in a party's claims would cause them to automatically lose their case, even if the error was not significant or if the same conclusion could be reached on other grounds. Such a system would not be reasonable. Aug 27, 2020 at 23:25
  • @NateEldredge Not really. Let me explain. The court prepares the final document which could point out mistakes in those statistics. In the discussion, the court can also clarify that is it a minor mistake that won't shape the result. I think it is very important because in US concluded court cases are the Laws. Other trials will use these documents as reliable references, and if the reference include mistakes, it is definitely inappropriate.
    – High GPA
    Aug 28, 2020 at 4:04

4 Answers 4


Not in this case

First, we are having an appeals court case that is filed against the dismissal of the real case - there had been no trial. It's a research into if there was a clear error of the court, not who would have won. The Appeals court decided to send it back to the district court with pretty much a direct order to have a trial and solve the issiue, as the very last paragraph of the file shows:

We conclude that Schwake stated a Title IX claim against the University because he plausibly alleged gender bias. Accordingly, we reverse and vacate the district court’s order and judgment dismissing the claim with prejudice, and remand for further proceedings.

Now, back to your quote. As this is an appeal case, the standard is different than in the district court. In this case, it tries to see if there might have been a case, which was dismissed erroneously. Page 15 and 16, where you cite, states (emphasis mine):

Schwake’s allegations of a pattern of gender-based decisionmaking against male respondents in sexual misconduct disciplinary proceedings make that inference plausible. He alleged that “[m]ale respondents in student disciplinary proceedings involving alleged sexual harassment and misconduct cases at [the University]” “are invariably found guilty, regardless of the evidence or lack thereof.” Schwake further alleged that he was “aware of recent [University] disciplinary cases against male respondents in alleged sexual misconduct cases who were all found guilty regardless of the evidence or lack thereof.” The district court was not free to ignore this non-conclusory and relevant factual allegation.

[your quote]

The absence of this level of detail from Schwake’s complaint does not render Schwake’s allegation conclusory or insufficient. There is no heightened pleading standard for Title IX claims. See Austin, 925 F.3d at 1137 n.4. That point is particularly apt here. It may be difficult for a plaintiff to know the full extent of alleged discrimination in decisionmaking before discovery allows a plaintiff to unearth information controlled by the defendant.

This sheds much more light upon the situation of the case: Schwacke sued and alleged something. The University alleges the contrary in their reply brief and asks the court to dismiss the claim. The court dismissed in March 2018. This was before any discovery has taken place: nobody was subpoenaed, nobody had to testify in court, nobody had to turn over any documents. We have only statements from either side. As the next step, Schwacke appealed the dismissal, and the 9th Circuit Court of Appeals reversed and remanded, as it found clear error in the handling in dismissal, as one can see in the last paragraphs from each claim's section:

Here, we are satisfied that Schwake’s allegations of contemporaneous pressure and gender-based decisionmaking establish background indicia of sex discrimination relevant to his Title IX claim.

Considering the combination of Schwake’s allegations of background indicia of sex discrimination along with the allegations concerning his particular disciplinary case, we conclude that sex discrimination is a plausible explanation for the University’s handling of the sexual misconduct disciplinary case against Schwake. This is sufficient for Schwake’s Title IX claim to proceed beyond the motion to dismiss stage.

Now it is up to Schwacke to get into discovery, subpoena the information from the university and go into the courtroom trial... Unless the parties settles.


By the way, the quote of the university refers to a different case from the 6th Circuit (where Ohio is), which they try to pull up as a model standard. This case is not binding for the 9th Circuit (where Arizona is) but could have been used as a model. Doe v. Miami University, 882 F.3d 579 (6th Cir. 2018) is somewhat similar to Schwacke, as it had been previously dismissed. However, the Title IX was restored by the Court of Appeals for the 6th Circuit and it was sent back to the lower court to have a trial. Here too, the standard was reasonable expectation or plausibility:

Plaintiff “allege[d] facts showing a potential pattern of gender-based decision-making that ‘raise a reasonable expectation that discovery will reveal’ circumstantial evidence of gender discrimination.”

  • Conclusory in this context usually means an allegation like "the University engaged in discrimination" which has only a legal conclusion and not a specific fact as its basis.
    – ohwilleke
    Aug 27, 2020 at 23:03
  • Sweet title. It says it all.
    – Just a guy
    Aug 28, 2020 at 5:17

You are right. If this was what you call a "concluded court case," the court would have to say whether Schwake's allegations were "objectively correct or well-supported." But: this is not a "concluded court case." This is only a "preliminary court case." In this case, the court is not deciding whether Schwake is right. It is only deciding whether Schwake's allegations are plausible enough to justify giving him a chance to prove they are true.

To decide whether Schwake gets a trial, the judge does not ask: Did ASU violate Title IX by discriminating against male students? Instead, the judge asks: Are Schwake's allegation "plausible"? Because the court decided his allegation are plausible, Schwake's case "will go to trial" It is only at that trial that Scwake will get a chance to argue that ASU violated Title IX. At the end of the trial, there will be the sort of "concluded court case," you are thinking about.

Bottom Line: Judicial decisions are tricky things. In order to understand what the judge is saying, you need to know the question they are answering. In this case, because you misunderstood the question, you've misunderstood the answer.


It is best to include all relevant information in your question, rather than referring readers to an outside link. Looking at the link, the following paragraph is what I infer happened (note the word "infer"; I'm not saying this is definitely what happened, just that this is what it looks to me what happened):

Schwake filed a lawsuit against Arizona State University alleging sex discrimination. ASU filed for summary judgment, and their motion succeeded. Schwake then appealed the summary judgment to a district court, which dismissed the summary judgment. ASU then appealed that decision to a panel, and the panel reversed the dismissal of the summary judgment. Schwake then appealed that to the Court of Appeals. The Court of Appeals then was deciding whether to reverse the reversal of the dismissal of a summary judgment dismissing Schwake lawsuit. When you get through all the double negatives, this means the Appeals Court was being asked to rule on whether summary judgment was appropriate.

The standard for the moving party (in this case, ASU) in a summary judgment motion is extremely high. ASU must show that Schwake has not presented a claim that has any reasonable chance of succeeding. Schwake, on the other hand, needs only show that his allegations might be true, and he that might be able to prove that at trial. In this context, saying that Schwake's allegations are "plausible" means "If all evidence is evaluated in the light most favorable to the respondent [in this case, Schwake], a reasonable finder of fact could conclude that the allegations are true". The Appeals Court is not being asked to decided whether his allegations are true, or even whether he has strong evidence to support his allegations.

  • 3
    If the standard being used is plausibility, it was almost certainly a motion to dismiss on the pleadings pursuant to FRCP 12(b)(6) rather than a motion for summary judgment under FRCP 56 (in which affidavits and other evidence that is undisputed can be considered).
    – ohwilleke
    Aug 27, 2020 at 23:02
  • The court even says that it reversed the district court's dismissal, not it's summary judgement, and that there had not been discovery.
    – Trish
    Aug 28, 2020 at 4:24

A court decides the legal controversy

For example, if a court convicts me of murdering Joe then, legally, I murdered Joe and all the required elements have been proved:

  • Joe is dead
  • I killed him
  • Intentionally
  • Without legal excuse

For the second element only, let’s say the evidence of the prosecution has my DNA at the scene, the bullet that killed Joe was fired from my gun, 7 people saw me go into and out of the room where it happened at the time etc. It was certainly me.

Now, the evidence from the defence has me in a bar in Moscow 4,000km away at the time, my credit card has charges from that bar, I was drinking with 4 people who all testified to that etc. It couldn’t have been me.

Now the finder of fact (jury or judge) has to decide if the prosecution has proved the element “I killed Joe” beyond reasonable doubt. In doing that they have to weigh the conflicting evidence and decide how much weight to give it. Based on that they make a decision - guilty or not guilty. If they are a jury that’s all we get. If they are a judge they have to explain their reasons why they accepted or rejected some evidence and why they preferred this evidence over that.

No one decides that the evidence is factual: they just decide if they believe it and if they are persuaded by it

  • Well, proving that a piece of evidence is factual is one of the best way to make people believe it, and disproving a piece of evidence is one of the best way to make people disbelieve it.
    – High GPA
    Aug 29, 2020 at 0:18
  • 1
    @HighGPA oh, if only evidence was so uncontroversial - what you usually have is 4 people who clearly remember the same event if 4 mutually inconsistent ways. None of them are lying but they can’t all (or any) be correct.
    – Dale M
    Aug 29, 2020 at 1:58
  • Of course you are right in your case. The example "evidences" in the question are summary statistics, which can be easily verified by anyone with high-school training, well, with dozens hours of work.
    – High GPA
    Aug 29, 2020 at 2:00
  • @HighGPA if you have the data set, you can check that the summary statistics are correct - that is just high school math. High school math won’t tell you if the data is correct or was correctly corrected or is complete or is not just out and out made up (although University math can give you clues about the last one).
    – Dale M
    Aug 29, 2020 at 7:39
  • The case asked about is an appeal against a motion to dismiss. While true for a full trial, this doesn't apply in the reference case.
    – Trish
    Aug 30, 2020 at 7:35

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