Free Speech

Parents Challenging "Anti-Racism" Curriculum Can Litigate Pseudonymously, to Shield Their Children

"The extreme emotions on both sides of this debate make likely the risk of ridicule and mental or physical harm to the parents in this suit—but more concerning—to their minor children."

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From Menders v. Loudoun County School Bd., decided Wednesday by Judge Theresa Carroll Buchanan (E.D. Va.) (and you can also read the Complaint):

Plaintiffs Patti H. Menders, Scott Mineo, Jane Doe #1, Jane Doe #2, and Jane Doe #3 … are parents of children enrolled in Loudoun County schools suing Defendant Loudoun County School Board … on behalf of themselves and their minor children. Specifically, Plaintiffs challenge Defendant's Action Plan to Combat Systemic Racism, which provides for the creation of a Student Equity Ambassador Program designed to identify incidents of racial bias. Plaintiffs allege this program violates their Fourteenth Amendment right to equal protection and First Amendment right to freedom of speech….

[The Doe] Plaintiffs request to proceed anonymously to protect themselves and their schoolchildren from harassment and retaliation. In support of this request, Plaintiffs cite a myriad of news articles from sources ranging from Fox News to the New York Post, which they argue the Court should judicially notice as evidence of the politically charged nature of this dispute….

It is well-established that the public has a right to know the identities of the parties in a lawsuit. This notion, however, "operates only as a presumption and not as an absolute, unreviewable license to deny [a request to proceed anonymously]." Rather, courts, in their discretion, may determine "privacy or confidentiality concerns are sometimes sufficiently critical that parties or witnesses should be allowed this rare dispensation." Moreover, the Fourth Circuit has identified the following factors that the Court should consider when determining whether to permit a party to proceed anonymously:

  1. Whether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of sensitive and highly personal nature;
  2. Whether identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties;
  3. The ages of the persons whose privacy interests are sought to be protected;
  4. Whether the action is against a governmental or private party; and
  5. The risk of unfairness to the opposing party from allowing an action against it to proceed

These non-exhaustive factors are meant only to guide a court's review and the Court need not address every factor in making its determination.

Considering the above standards, the Court … finds that Plaintiffs may proceed anonymously in this case….. [I]t is abundantly evident that the issues in this case are a matter of highly charged political debate. The extreme emotions on both sides of this debate make likely the risk of ridicule and mental or physical harm to the parents in this suit—but more concerning—to their minor children.

Although parents' names may not always be protected in similar politically charged cases, in this instance, publishing their names will automatically lead to identification of their children's identities….

Finally, there is little risk of unfairness to Defendant in allowing Plaintiff to proceed anonymously. Defendant knows Plaintiffs are parents of children in their schools. If Defendant believes in good faith that it needs to dispute whether Plaintiffs have standing, they can address that in a separate motion, which the court will determine without disclosing Plaintiffs' identities….

Courts are indeed generally more willing to allow varying degrees of anonymity and pseudonymity (sometimes including for parents) in order to shield minors. UPDATE: For a particularly prominent example, see the football prayer Establishment Clause case, Santa Fe Indep. School Dist. v. Doe (2000); the Court noted that "The District Court permitted respondents (Does) to litigate anonymously to protect them from intimidation or harassment," though it wasn't asked to decide whether such anonymous litigation was permissible.

NEXT: Prof. Nadine Strossen (Former ACLU President) on "Threat of Big Tech and Big Gov Collusion Against the First Amendment"

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  1. So some parents are trying to use the Courts to change a public school policy and would like to remain completely anonymous while doing so? That strikes me as disastrously wrong…

    1. So some parents are trying to use the Courts to change a public school policy

      Maybe take at least 10 seconds to read the post first. They’re challenging the institution of a brand-new policy — i.e., suing to maintain the status quo:

      Specifically, Plaintiffs challenge Defendant’s Action Plan to Combat Systemic Racism, which provides for the creation of a Student Equity Ambassador Program designed to identify incidents of racial bias.

      The excerpts from the opinion in the post should also address your broader concern re the give and take of anonymity in litigation.

      1. Challenging the institution of a brand new policy means they are trying to change the policy back to something the preferred. through a judicial forum.

        The court order is four pages with a bare-bones analysis of the factors. It doesn’t grapple with the fact that plaintiffs in other politically charged cases often have children and aren’t kept anonymous. It also doesn’t grapple with kids themselves being named in much more sensitive cases: Savana Redding was a 13 year old girl who was strip-searched at her school and she wasn’t anonymous when she brought her complaint…

        1. Did Savana Redding have a motion to proceed anonymously denied? Maybe she never sought to proceed anonymously (but would have had a strong argument to do so).

          1. Looking at Pacer, no. But it is notable that she chose to sue the school she attended about an extremely sensitive and personal topic without even trying to remain anonymous.

            1. It’s a different situation. “Not wanting to be strip searched” is not a complaint that’s likely to inspire retaliation from her teachers and/or classmates. The same isn’t true with the current case.

              1. Exposing the fact you were strip searched and suing the school and potentially popular teachers/administrators while revealing unflattering facts about the accusing student is extremely likely to invite retaliation.

            2. It may be that all the kids at school, their parents and teachers already knew Savana was stripped search. That embarrassment couldn’t be erased by any decision on the part of the court. Having her identify concealed in court documents might have been irrelevant.
              She and her parents may not have seen any possible further harm in her being named.

    2. They are alleging Unconstitutional actions by a local government. I guess you think their kids should be doxxed and subject to antifa brownshirt action.

      1. I think the parents should have the same courage that Gavin Grimm or Savana Redding (minors suing their school) did and stick their name on an attempt to change school policy.

      2. I think the parents should have the same courage that Gavin Grimm or Savana Redding (minors suing their school) did and stick their name on an attempt to change school policy.

        1. Woke lefties have killed people in the last year over this kind of politics — including one young lady who believed that All Lives Matter. Exposing your children to that kind of violence isn’t bravery.

          1. Trans people are routinely the targets of violence but Gavin Grimm still put his name on his suit.

          2. “including one young lady who believed that All Lives Matter”

            ?

            1. Jessica Doty-Whitaker. 24 years old, mother of a young son. Shot to death in Indianapolis a year ago for saying “All Lives Matter”. Surveillance video exists, but no suspects have been identified.

              1. That’s her family’s story — and her family seems to be trying to milk a situation in which her group’s use of a racial slur precipitated a confrontation with another group at 3 a.m., generating shots fired from both sides. Ascribing the casualty caused by the side with better aim to “woke lefties” seems stupid.

                Carry on, bigoted clingers.

    3. To expand on this a bit more, there is zero limiting principle to this analysis. Parents of students can apparently always sue the school anonymously in any “politically charged” case, something that can encompass a lot of things.

      1. So? The claim is about civil rights. Either the new policy violates them or not. If it does, the new policy should be excluded. I don’t see how the identities of the specific parents materially affect the analysis of whether this policy violates civil rights.

        This isn’t like a criminal case where the school board or members might want to be able to confront their accusers. They aren’t accused. No one is moving to oust them from the board, or to punish or fine them. It’s the policy that is accused of violating civil rights.

        1. Then why shouldn’t everyone in every civil case about anything should be anonymous?

          1. There could be many reasons. In some civil cases, it’s not about a policy but ruling or action. So for example, the recent potty mouth cheerleader case was a specific school board and teacher making a ruling about a specific cheerleaders action. It wasn’t setting aside a policy. So, the ruling was very specifically about what happened to that cheerleader and all the evidence and allegations revolved around her. Anonymity wasn’t even possible and wasn’t asked for.

            But beyond that, you can just look to the rules for anonymity and tell us what you think is wrong with them

            1. Whether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of sensitive and highly personal nature;
            2. Whether identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties;
            3. The ages of the persons whose privacy interests are sought to be protected;
            4. Whether the action is against a governmental or private party; and
            5. The risk of unfairness to the opposing party from allowing an action against it to proceed

            In this case, the goal is to prevent retaliatory harm to innocent non-parties it’s not merely to avoid annoyance. The parties whose privacy interest is being considered and who might be harmed are children. The action is against the government, not a private party. And there is no risk to the government in not revealing the litigants names.

            You listed cases that meet similar criteria. I have no problem with granting anonymity there. Perhaps you do. But in which case, perhaps you can explain what problem you see under these circumstances.

            1. “It wasn’t setting aside a policy.”

              Uh it actually was challenging the schools policy of punishing off campus speech. And if it wasn’t policy when the admin suspended her, it certainly became school policy when the board endorsed it all the way to SCOTUS.

              “ But in which case, perhaps you can explain what problem you see under these circumstances.”

              It’s right there in number 1: “Whether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation.” This is exactly that type of case. They’re trying to escape public scrutiny and criticism! Notably they don’t actually articulate any specific harm that might befall them, it’s mere speculation.

              “The action is against the government, not a private party.”

              That’s exactly the reason it should be public. It’s trying to affect public policy using judicial power without public scrutiny. Private suits don’t always have these stakes, and indeed involve some very private matters like financial condition or health matters, but nonetheless the names are published and searchable.

              And from a basic fairness prospective it’s absurd that the people who are the individual targets of school action often involving very private facts have to be known, but someone trying to influence a matter of public policy through the courts instead of political channels get to keep themselves secret.

              1. *perspective. Wish this had an edit function.

              2. Uh it actually was challenging the schools policy of punishing off campus speech.

                Uhh… as implemented against a specific kid and so a ruling. It was not a case against a published policy in the abstract.

                This is exactly that type of case.

                Nope.

                The have stated the harm. It’s true the harm is anticipated. Yes, that speculative. But obviously, the kids can’t be protected from harm if they first must be harmed.

                to protect themselves and their schoolchildren from harassment and retaliation

                It’s trying to affect public policy using judicial power without public scrutiny.

                Nonesense. There is plenty of public scrutiny. Among other thigns, you, I and many are discussing it here!

                that the people who are the individual targets of school action often involving very private facts have to be known

                I have absolutely no objection to the courts protecting their privacy under using the same rules as used here.

            2. Anonymity wasn’t even possible and wasn’t asked for.

              You cannot possibly be this stupid.

      2. At this point I declare all of your arguments invalid because you are posting anonymously.

        1. That was supposed to be in reply to LawTalkingGuy.

        2. You think this is clever but:

          1. Last time I checked the VC comments are not a forum that can exercise judicial or any other type of political power, and I am not attempting to overrule an elected body here.

          2. You weren’t going to listen to them anyway.

    4. LawTalkingGuy: What do you think of the football prayer Establishment Clause case, Santa Fe Indep. School Dist. v. Doe (2000); the Supreme Court noted that “The District Court permitted respondents (Does) to litigate anonymously to protect them from intimidation or harassment,” though it wasn’t asked to decide whether such anonymous litigation was permissible.

      1. Not a huge fan of keeping that anonymous. Particularly when it’s not clear whether the person really driving the suit is the parent or the student themselves.

        1. I’m not sure I really understand your argument. What is the benefit of identifying the minor, other than the general principle that “the public has a right to know?” Does that really outweigh possible harm to the minor through identification? Even if it is indeed the parents that are driving the suit, the threat of harm to the minor seems just as real.

    5. The Left has weaponized (both digital and physical) lynch mobs to go after their political opponents (including children).

      Further, DAs have been selectively prosecuting people based upon their political activity. So, the people that “peacefully protest” are given a free pass when the mob threatens you and your family, and vandalizes your property. But, if you try to defend yourself or show yourself willing to defend your life/property, the DA will have you arrested and subject to the full power of the government (which at a minimum includes an arrest record and money you have to spend on a defense).

      Seems to me, that not being subject to that treatment is eminently correct.

      1. So you’d be okay with the parents off trans kids trying to get on sports teams remaining anonymous? Or trying to get rid of a school Christmas function? Or challenging intelligent design/creationist teaching? Or anything related to the Pledge? You’d be cool with not knowing who’s doing that?

        1. I’d be cool with the court allowing all those people filing anonymously. I don’t think their specific identities matter to the ruling.

          That said, I don’t think a court ruling would result in the parents of the trans kid remaining anonymous. In fact, it’s almost certain the identity of trans kid who had been required to use a separate bathroom all year was almost certainly well known to all the kids, teachers and parents of kids in the school long before there was any court case. But I think allowing a judge them to file anonymously to avoid further embarrassment would be fine.

          1. That’s a cool system: the groundbreakers haven’t to be known and exposed but the reactionaries pushing back get to remain anonymous. You say it’s about civil rights, but Ruby Bridges y’all ain’t.

            1. White Christian Americans don’t think they should be subjected to what people like MLK and John Lewis were subjected to when they fought injustice. So white Christian Americans like the Masterpiece Bakery believe civil disobedience should have no negative repercussions because they are white Christian Americans.

              1. Actually, I’d suggest many of them think they are in fact being subjected to what MLK, John Lewis, etc. went through, despite overwhelming evidence to the contrary.

              2. “White Christian Americans don’t think they should be subject to what people like MLK and John Lewis were subjected to when they fought injustice”.

                Holy shit, generalize much? The word “they” in your post and “many” in law talkingguy’s post are gonna get a triple hernia from all the weight they’re carrying.

                Literally like half a percent of WCAs might think that. I personally don’t know any that do.

                But taking the most outrageous positions of your outgroup and applying them to the whole is a classic technique of zealots. Ain’t worth hatin’ if you can’t hate them all.

                1. You should pay attention to some of the commenters on this blog more. Heck there are a few on this thread that evidence that view.

                  1. “A few”. On an obscure message board. Thanks for making my point.

            2. *have to. Dammit.

            3. As far as I can tell, the situation regarding the trans-kids anonymity is simply reality. If the world already knows something, a court order can’t actually cause anyone to forget. Recognizing that is like recognizing that if you drop a rock in motionless air it will fall down. It doesn’t fall if you are a reactionary but magically rise if you are a ground breaker. No court order or legal principle is going to change facts that exist beyond the reach of law.

              As for this being about civil rights: On another thread, I said the case the parents is bringing alleges a policy violates their civil rights. The courts may rule the parents are mistaken in their claim, but the case is still about civil rights. It also happens to be about a policy.

              No one has to be Ruby Bridges for a case to be about civil rights. The potty mouth cheerleader was also not Ruby Bridges. That was still about civil rights.

      2. Citation for these physical lynchings?

        1. The thing about physical lynching is absolutely ridiculous, but we’ve all seen the many many internet mobs over the last several years. These people’s kids are gonna catch a metric shit ton of crap if anybody finds out their names.

          I can’t really blame the parents for asking. You or I would ask it if we were in that circumstance.

  2. “…From Fox News to the New York Post.”

    Is that really a wide range of sources?

  3. Most of the arguments against anonymity offered in this thread don’t seem (to me) to reflect a concern that the school board won’t be able to defend its policy on the merits if some of the plaintiffs are anonymous. Rather, commenters seem to demand that those who challenge that policy display the guts to take whatever abuse the defenders of the policy can throw at them.
    Am I wrong? Is there some aspect of the proposed school policy that would be valid or not depending on the characteristics of the individual plaintiffs?

    1. That is basically my question as well. What is the upside to identifying these kids that outweighs the threat of harm to them? How does identification vs. anonymity have any effect on the quality of the arguments? Simply arguing that minors in other circumstances were in fact identified doesn’t seem very persuasive.

      1. Well I think basic fairness is important: some adult and minor plaintiffs, in some of the most sensitive circumstances, end up being identified but people doing the extremely public act of taking on a public policy, something they could also do through public campaigns get to be anonymous. It’s fundamentally backwards.

        1. That makes sense. But perhaps the better solution is that minor plaintiffs in sensitive circumstances should stop being identified.

          1. Perhaps. I’ve seen minor plaintiffs identified in med mals for instance and I don’t know why there is a presumption in favor of that. But, I’m still concerned about what is essentially politics by another means being conducted anonymously.

          2. But we also have this problem here of using the kids to shield the identities of the parents because something is “politically charged.” Why wouldn’t this reasoning apply to say, King in King v Burwell, assuming he had kids?

  4. I thought only capitol police officers involved in shooting unarmed women were allowed anonymity.

    1. So-called progressives are failing when it comes to the police shooting of Ashli Babbit. Police use of deadly force always needs to be scrutinized and investigated no matter the circumstances. Shouldn’t be washed over.

      And not for nothing, but it’s interesting how the “exonerative tense” gets used even when the person is skeptical of the use of force!

  5. Given the presumption of a community small enough that individuals risk being personally targeted, how does anonymity protect the public at large. Omitting to disclose the plaintiffs accurately will inevitably lead, in such a small community, to guessing and potential misidentification as plaintiffs of people who have nothing to do with the proceedings. There is a risk that the very public outrage from which the court intends to shield the plaintiffs will fall instead on parties who are not involved at all. If that happens, will the court disclose the plaintiffs’ identities then?

  6. We appear to have encountered another flip-flop among right-wingers on the issue of pseudonymous litigation. Conservatives will be back to eschewing pseudonymity soon enough, we may expect (when litigants less inclined toward backwardness and bigotry are involved).

  7. “Plaintiffs challenge Defendant’s Action Plan to Combat Systemic Racism, which provides for the creation of a Student Equity Ambassador Program designed to identify incidents of racial bias. Plaintiffs allege this program violates their Fourteenth Amendment right to equal protection and First Amendment right to freedom of speech”

    Because if the Student Equity Ambassador Program identifies incidents of racial bias, that would violate someone’s freedom of speech somehow?
    How about if racist people identify themselves by engaging in incidents of racial bias?

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