The Supreme Court changed the game in 2009 when it decided the Iqbal case, which says that federal complaints have to allege plausible allegations. Plausibility (and not simply possibility) is the new standard, and it makes it more difficult to survive a motion to dismiss. The issue raised here is one that will receive more attention over the next few years, I am sure: what if the defendant's explanation for the plaintiff's plight is more plausible than the plaintiff's theory of liability?
The case is Kajoshaj v. New York City Department of Education, a summary order decided on October 15. The plaintiffs sued the school system, claiming that it failed to promote their son to sixth grade because of national origin discrimination.They advance a variety of reasons in alleging discrimination, i.e., meritless reports of child abuse/neglect in 2003 and 2010, the child's suspension in 2004 for failure to receive vaccinations, the school's promotion of non-Muslim students from families of non-Albanian origin who had similar test scores and grades to plaintiffs' son and defendants' failure to meet with plaintiffs about the failure to promote their son.
The Second Circuit (Sack, Parker and Raggi) says these allegations may be consistent with a Title VI violation, but they "stop short of the line between possibility and plausibility." So here we have a real-life example of the possibility-plausibility distinction.There is not enough to make the claim plausible. For instance, no decisionnmakers made biased statements or made reference to plaintiffs' national origin, and their "naked allegation" that they were treated differently than non-Muslim, non-Albanian students is silent on the details.
The defendants have a more plausible explanation for not promoting plaintiffs' son. The complaint alleges that defendants gave them reports of the student's poor ELA scores. "These reports provide a more plausible explanation for the Academy's decision not to promote Abedin than animus based upon national origin and religion."
The Second Circuit has held in other cases that the fact that defendants have a more plausible reason for the adverse decision than the plaintiff is not enough to support dismissal under Iqbal. In this case, that rule does not apply because the Court of Appeals says there is nothing plausible about the plaintiffs' claim.