Wisc. S. Ct. (4-3): Plaintiffs Challenging School Transgender Policy Can't Conceal Identities from Defendants' Counsel

From Doe 1 v. Madison Metro. School Dist., decided Thursday by the Wisconsin Supreme Court, in an opinion by Justice Brian Hagedorn joined by Justices Ann Walsh Bradley, Rebecca Frank Dallet, and Jill Karofsky:

This case involves a constitutional challenge by parents to a school district policy. The substantive issues, however, remain pending before the circuit court and are not properly before us. This is an appeal contesting the circuit court's decision to seal and protect the parents' identities from the public and the school district, but not from the attorneys defending the school district's policy…. Applying Wisconsin law, we determine the circuit court did not erroneously exercise its discretion by requiring disclosure of the parents' identities to opposing attorneys, while allowing the parents to keep their names sealed and confidential as to the public and the district….

In April 2018, the Madison Metropolitan School District (the District) adopted a document entitled, "Guidance & Policies to Support Transgender, Non-binary & Gender Expansive Students" (the Policy). The Policy contains multiple provisions that animate the parents' claims in this case. We highlight several for context.

• "Students will be called by their affirmed name and pronouns regardless of parent/guardian permission to change their name and gender in [District] systems." …
• "School staff shall not disclose any information that may reveal a student's gender identity to others, including parents or guardians and other school staff, unless legally required to do so or unless the student has authorized such disclosure."
• "All staff correspondence and communication to families in regard to students shall reflect the name and gender documented in [the District system] unless the student has specifically given permission to do otherwise. (This might involve using the student's affirmed name and pronouns in the school setting and their legal name and pronouns with family)." …

In February 2020, a group of parents sued the District alleging the Policy violated their right to parent their children, citing Article I, Section 1 of the Wisconsin Constitution, and their right to exercise their religious beliefs under Article I, Section 18 of the Wisconsin Constitution. Contemporaneous with filing their complaint, the parents moved to proceed using pseudonyms….

The ordinary rule in Wisconsin and everywhere is that those availing themselves of the legal system should do so openly. While we protect certain vulnerable legal participants, such as children and crime victims, the business of courts is public business, and as such is presumed to remain open and available to the public. Openness is the rule; confidentiality is the exception…. [Nonetheless,] "when the administration of justice requires it," a court may employ its inherent power under the constitution "to preserve and protect the exercise of its judicial function of presiding over the conduct of judicial proceedings." …

Here, the circuit court concluded the parents may file their complaint under seal protecting their names and identities from the public. {The court concluded the parents made a "demonstrable factual showing that … would their names be disclosed,  they would likely be subject to threats and intimidation, which would be wholly inappropriate and frustrate the orderly functioning of the court case."} … The court also ordered that the sealed, unredacted complaint would be accessible only to the circuit court and to defense counsel following the adoption of a signed protective order.

Essentially, the narrow question in this case centers on the parents' argument that granting defense counsel access to the sealed complaint should be reversed. They assert that they and their children face a serious risk of harm, their identities are irrelevant to their legal claims, and disclosing their identities to opposing counsel could result in that information being leaked. At bottom, the parents want to litigate with total anonymity, except with respect to the circuit court, or alternatively, with respect to the circuit court and a small subset of attorneys at one of the firms defending the District's policy….

In this case, the circuit court's decision to withhold the parents' identities from the public and the District, but not the District's attorneys, was well within its discretion. As the District identified, resolving the parents' claims through the courts could depend on a number of significant legal questions which can be evaluated only if the District's attorneys know the parents' identities.

Of no minor importance, the District's attorneys stressed their independent ethical responsibilities under our rules. For example, attorneys must avoid conflicts of interest. Among other circumstances, a conflict of interest arises if "the representation of one client will be directly adverse to another client," or if the representation involves "the assertion of a claim by one client against another client represented by the lawyer." At oral argument, the District expressed concern that its attorneys cannot know if their representation of the District creates a conflict of interest with any of the parents without knowing who the parents are.

Already in this case two of the parents voluntarily withdrew from the suit because the parents' counsel determined their participation created a conflict of interest for the District's attorneys. The parents suggest they can police any potential conflicts, but our rules of ethics place that independent responsibility on the attorneys representing the At the very least, this is a significant consideration regarding the parents' request to proceed without revealing their identities to opposing counsel. The circuit court exercised its discretion in this case in a way that facilitates the District's attorneys' ability to follow their ethical duties.

The parents' identities may also have implications for the substantive issues in this case. Although the parents' bring a facial challenge against the Policy, arguing it is unconstitutional in every circumstance, facts specific to the parents or their children could influence the availability and scope of judicial relief.

For example, the parents raise a free exercise of religion claim under Article I, Section 18 of the Wisconsin Constitution. But without knowing the parents' identities, how can the District's attorneys inquire whether the parents have a sincerely held religious belief regarding this aspect of their children's upbringing? Individual parents in this case might also have differing beliefs which could affect the evaluation of their claims.

Additionally, it could be that various factual wrinkles alter the nature of the alleged violation of the right to parent one's child as well as the scope of relief the parents could be entitled to. For example, it is unclear if the constitutional right asserted would apply in the same way to a parent whose child has turned 18 but is still attending District schools. The same could be true of a parent whose parental rights have been terminated by a court or a parent who has ceded certain decisions to another parent pursuant to a custody arrangement.

If there is an Individualized Educational Program in place for the child, that could again complicate whether a particular parent is entitled to relief. Finally, the District noted other legal defenses——including ripeness, mootness, and lack of standing——which it asserts it cannot advance without knowing the parents' identities. Each of these variables may influence whether the parents are entitled to judicial relief, or how far such relief should extend….

[T]he crux of the parent's continued worry is their fear that the attorneys on the other side will intentionally or unintentionally violate the court's protective order and expose them to the risks they identify. Attorneys are duty-bound to follow court orders, however. We have no evidence that any of the law firms defending the District's policy have violated a protective order in the past or that there is any risk of them doing so now. In fact, counsel for the parents conceded to the circuit court that there was "no reason to doubt that the lawyers in this case will make every effort to preserve the plaintiffs' anonymity and follow a court order."

Nevertheless, the parents essentially make an unfounded accusation that the attorneys on the other side will risk their law licenses, through carelessness or otherwise. This pure speculation lacks merit. Each attorney is an officer of the court subject to strict ethical rules in the maintenance of confidential information. Each would need to agree to a protective order——the specifics of which have not yet been negotiated. The parents present no reason to think the order to keep their identities private as to the District and the general public will not be followed….

Justice Patience Drake Roggensack, joined by Chief Justice Annette Kingsland Ziegler and Justice Rebecca Grassl Bradley, dissented:

The parents do not object to filing an amended complaint that discloses their names for review by the circuit court. However, they do object to permitting review by the parties' attorneys. They contend that a leak of their identities is multiplied by the number of people who have that information. Once the parents' identities are disclosed, there is no way of undoing that disclosure, and as the circuit court found, harassment of the parents and their children and disruption of this litigation likely will follow.

The circuit court concluded that allowing the parties' attorneys to view the amended complaint was acceptable because the attorneys could be expected to keep the parents' identities confidential. The circuit court did not assess whether any remedy could be provided to the parents and their children when their identities were disclosed….

The circuit court … appear[s] not to have realistically considered what likely will occur with regard to the parents' identities in today's tell-all world. Even the United States Supreme Court, an institution that has historically demanded the highest levels of integrity and confidentiality, has been subject to unauthorized leaks. These leaks have consequences. One need look no further than this case for examples. Following the leak of the Supreme Court's draft opinion in regard to abortion, Wisconsin Family Action, an amicus in this case, had its offices vandalized and attacked with Molotov cocktails. Here, the circuit court found that the parents and their children likely would be subjected to harassment if parental identities were disclosed.

The judicial system has no remedy for a violation of the confidentiality of an amended complaint that identifies the parents when filed under seal as the circuit court ordered. Unnecessary harm will be inflicted on parents and minor children. There is no compelling reason to ignore the very real possibility of a leak of the parents' identities and the inability of the court to fashion a remedy for the disclosure. In the interests of the administration of justice, the circuit court should have permitted the use of pseudonyms.

As best I could tell, the dissent didn't respond to the majority's argument about defendants' need to know the plaintiffs' identities for purposes of checking conflicts, investigating the religious freedom claims, and the like. Generally speaking, even when pseudonymity has been allowed in other cases (to be sure, almost all in other jurisdictions), it only shields the plaintiff's identity from the public, not from defendants' counsel.

The Justices also disagreed on the separate question whether the merits of the case (having to do with parents' constitutional rights) should be resolved, but I set that aside for this post.