The Volokh Conspiracy

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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."


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.