pass or will face discrimination sex sexual orientation and gender identity in the absence of judicial relief paragraph forty three alleges necessary back to challenge for law or abuse membership selection policies and paragraph forty five contains the facts of the stablished standing to challenge the law school faculty hiring practice the complaint says that its members future injuries are certain not speculative at all events certainty is not required to be alleged in a pleading in order to establish standing a substantial risk of future injury is enough and why use brief suggests that we're relying somehow on past injury to establish the risk of future injury but that's not at all what we're doing we do describe past injury alleged individual members past but that is done only  the possibility of our source at these individual factory members will continue to submit their articles in the future because they have done so in the past and most significantly the factual allegations are actually supported by evidence which we don't even need at this stage of the litigation which may be included in our complaint for good measure and why use only website that it uses diversity set and when opera submit their articles they are specifically asked to identify their race and their sexual orientation and their gender identity when they submit their manuscripts the large publication and then why use loss and why use website boasts that it is committed to quote publishing scholarship written by authors from under represented backgrounds in the legal profession and that's right there on pages forty three and forty four of the appendix clearly this is not a race blind and sex neutral article selection practice at the n y u law but none of this is even needed at this stage of the litigation a factual allegation in the complaint is intitled to the presumption of the evidence that we have attached show these factual allegations are at the very least possible under the standard trombley an example which unlocks the doors o is insisting upon and that the district court insisted upon in its opinion is simply not required by the federal rules or by any decision of the supreme court or this cour bold nine big but this court has specifically held that standing is not subject to a heightened pleading requirement and nothing other than part of it be subjected to a regime in which the facts must be created with detail and with particularity the district court relied on sponsors the decision of the u s supreme court that reversed a final judgment because a plane that had failed to standard for treating association will stand some are concerned only the amount of proof that is required to support a final judgment for the point after discovery and after practice about that sort has also alleged a violation of federal law not just standing but also a violation on the merits of title x and title nine this complaint specifically alleges that the la litigation is to show that it is somehow per se lawful to use race and sex preferences in the way that the complaint describes they cannot make that showing given the text the title and the text but past even that one were to somehow assume that rather extends beyond the realm of student missions and covers faculty hiring and the selection of articles published least a question of material facts and if the motion dismissed as you need to allege it so if you are conceding that at some point later you will have to prove that there are individual members who are injured why doesn't it just follow that you have to allege that to survive a motion to dismiss we have alleged that there are individual members who are injured just mashing that's right there on page forty two paragraph two i'm sorry page thirty of the appendix we don't identify the rule twelve the specs page and nothing so you're saying that's the same thing that's not that doesn't different than saying we have a particular member who's published some articles and plans to submit other articles in the future wouldn't that be different is a law professor for seven years and has published five articles and intends to write another one in the next year that will be submitted to the n y u larby why couldn't you provide allegations like that we don't need to go into that level of detail simply because we're not wired relevant facts that will ultimately need to be proven in detail to prevail on a promise of the pandered it is acceptable at the pleadings things that lead them to generalities even on the understanding that when the time for proof com ask about the membership selection question so you know this question about the injury is a possible that's just versity selection policy might help somebody who's submitting an article so if the diversity selection policy results in more student members who are interested in constitutional law as opposed to torts and the person submitting an article as a common law scholar what does that make it more likely that there article would be excepted was it wasn't necessarily it or even that it will be edited better because somebody would be more familiar with the subject matter why is it necessarily a form that's even criminal defendant can challenge the fact that joran was selected pursuant to racially discriminatory criteria even if it turns out that the racial discrimination lot of helping him and jury pool in some way it's it's certainly possible for in court and is now i mean what are what are the limits of that i mean i can understand you know in that case right a criminal defendant there's a public interest in the fair process but i'm not sure that there's such a public interest in the quality of editing i mean if i as a reader of the n y u law review think that it's lower quality because of their student retention policy could i too would i be injured that's a harder question that seems a little more atten helped by it you're saying that it's a per se violation because it involves racial discrimination in the process and so the reader is affected by the problem everybody like everybody down the chain is affected by the process right with  the cause of action question is that the cause of action was already created by the courts rather than in normal situations there's a statute that actually declines to somebody even when we haven't even we haven't applied you know we have an implied cause of action that's created by the courts we still do little interest in alice as to whether the person suing is among the people who are supposed to like intended to be protected by that statute right prior to lexmark maybe that was the case i don't think would have wanted to sue doesn't what it is an exercise in imagination which is just makes a great difficult to make a principled legal argument where i was asked maybe just quickly so if if in fact there is a lot of interest requirement are professors but when it comes to the authors who actually are being judged by the students who are selected but just but just to back up a nd your injury you keep saying that the reader is too far removed but but you're saying that even the article author is not necessarily only alleged that discrimination was merely possible and plausible possible versus possible it's really hard to know where exactly that line is my view of tom's going to fall and i know these are very opaque speculation something that is totally unsupported by any evidence or any basis in reason you can't just go on a fishing expedition and drag a defendant through three or four years of coverage and find out of the something there what we have to get over the possibility contested in the bridgeport litigation so the plaintiffs in that case was content to concede the point and that the not established upright or no i mean my recollection i don't have it in front of me right now though my recollection of the opinion is the court  plausibility so i get the answer your question i would say certainly has not been over it still is good law i think it does take the general principle of notice pleading very elegantly and in a way allegations even if accepted as true don't meet the standard of cases like summaries of them now in this case judge ramos save face or chance to allege further details about its purported members and their injur that they sort of used to do that even though it would have been easy if a perp actually had members who face imminent injuries now they start to liberate decision to commit these facts can only be because it doesn't have that they didn't allege it didn't include more specific allegations about their members because they seem not to have to be capable of it the lack of specificity and identifying affected members was one of the important grounds with a district court relied on so it would be pretty obvious thing to remember the complaint to considering allegations of the standing to challenge environmental regulation it was pretty clear that just being a member of an environmental organization didn't mean that you used a particular far wrist or a particular leak or saw a particular wildlife and so you needed more allegations but when you're talking about law professors who submit articles to law journals member what is that just a difference between them alleging we have members who submit articles on the one hand and on the other hand saying we have a particular member who is forest we do it all the time we're going to do that in the future and those questions weren't concrete enough the spending day when they would be if it wasn't identified and then i think so you're saying you're saying the allegations would have to be there is this particular law professor who's already working a legal scholar who's already working on an article that he intends to submit to the n y u law review within the next six months and that would that would be sufficient if it's certainly be a much closer call than this complain discriminatory process right so you're not saying that they would need to allege that and why you would want to would hire them or you know i agree with your honor ok but you're saying that that there aren't even allegations that right for the little white isn't it enough to say there is somebody who's interested in being a law professor they're going to submit an application to n y u and that there was new legal entitlement to to have your journal article edited by a higher quality student editor but we're talking about injury in  fact you have to show that you're entitled to to avoid with that there's a there's a there's a legal entitlement isn't that more of a marriage questions do we actually just ask whether the person has been harmed such as there's  isn't a law that entitle somebody to high quality ending yes ok why isn't it a reasonable insurance to say that when you move from criteria based on academic performance to nonacademic performance criteria there's going to be a reduction in quality you don't think that that is a reasonable inference to make especially if we have to draw inferences and cheever of  injury so you're saying that there are other factors but but in general just holding everything else equal if you're moving from academic qualifications to nonacademic qualifications  admitted on its website that it thinks gauging in racial considerations with respect to not only the selection of members but also the selection of its articles and n y u is one of the few law or things that explicitly solicit the demographic information from authors when it's right so let's hold it right there let's assume all of that to be accurate what's wrong with that who cares and one violent isn't then defined by the race or sex as the as the as the subject of greatest interest to its editors i don't quite understand you suggesting that any such journals would be painted in some way assume for the argument only that there is a lab teano law review which presumably with specialized articles by for and about latino or latina x if you like but if you don't care for the language you might say latino x so what's wrong with that there's nothing wrong with having a journal that specializes in a certain subject matter there is a right frontal it's the journal is discriminating in the selection of its members and if they're discriminating in the selection of articles based on the race or so they're going to hold it right there the example i gave you was one of them which it would indeed be quote discriminating unquote on the basis of identity or interest in matters relating to so called tino's otherwise known as hispanics what exactly is wrong with that that's wrong and i'm sorry for not understanding your honor celestion i'm not well i know i'm not understanding your argument does that mean you're  preoccupied with the n y u law review which is interesting but yeah but this law school can and many law schools have law review is which are devoted to the work  concerns etc of the screed are insular minorities what what is wrong with that there's nothing there's your honor there's nothing wrong with that if you're talking about the potion to a certain subject matter you can lot of attention not jewish to anything wrong with that there's nothing wrong with that because i mean i don't i'm not i'm not aware of any federal statute i mean they're not discriminating on the basis of which if they're allowing non jewish office to write about children if they take a page as a threshold matter they take their articles from precious who are both jewish and interested in matters jewish i'm not following why this topic it's only a problem if they're discriminating based on race x the author they can discriminate based on the subject matter of the article that's perfectly legal and we're not accusing n doing that we're not complaining about the subject matter of the articles they say what they can't do is have the authors who submit articles in the journal check off oxes that identify their race and their sexual orientation and their gender identity and then use that criteria to decide whether or not an article will be published in the n y t or that's what we're challenging nothing else and i can't speak for the other journals at n y u because i haven't looked into what their practices  so the program or activity receiving federal funds the university and the larvae was part of the program or activity so yes the short answer the question you asked what the larger does is attributable to n y u university which is the entity that receives federal funds and many of these law schools well after my own time in law school organized on the basis of race or ethnicity i can think of instances that the law school where  ethnicity of a hispanic student shows up for the latino organization is questioned for some reason has where they often  the student who shows up for the meeting is questioned by the others with something like that being a problem in your view it depends on how involved the university is in recognizing or supporting the group it's certainly possible for a student group to have no official connection with the university once a student group is recognized by the university and my understanding based on christian legal society against martinez the supreme court case in two thousand and ten is many universities today both public and private require the recognized and groups to abide by a nondiscrimination policy that basically tracks the requirements of title sex and title mind but even goes beyond think that you can't discriminate based on religion that would be a shoo in c l s against martinez the supreme court upheld that restrictions comes to tional now a student group can still exists without university recognition and in that situation they can do whatever they want review is operated at the university using university offices having university paid employees service support staff that is part of the program or activity and