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Free Speech

No Pseudonymity for Plaintiff in Action Claiming Florida Discriminates Based on Race in Funding Universities

Plaintiff "has alleged nothing suggesting he has any greater basis to fear retaliation than the plaintiffs in most discrimination cases."


From Judge Robert Hinkle (N.D. Fla.) a couple of weeks ago in Denton v. Board of Governors for the State Univ. Sys. of Florida:

In this action six plaintiffs assert the State of Florida has engaged in a pattern of racial discrimination—a pattern of providing lower funding for historically black universities than for traditionally white comparators. One of the six plaintiffs has moved for leave to proceed under a pseudonym. He would disclose his identity to the defendants and the court but only on condition that the identity not be publicly disclosed.

Lawsuits are public events. Under the law of the circuit, anonymity—the ability to proceed under a pseudonym—should be granted "only in those exceptional cases involving [1] matters of a highly sensitive and personal nature, [2] real danger of physical harm, or [3] where the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity."

This case does not come close. The plaintiff asserts this case has generated substantial publicity and he fears retaliation if his identity is disclosed. But he has alleged nothing suggesting he has any greater basis to fear retaliation than the plaintiffs in most discrimination cases. That a case has attracted public interest is not a reason to withhold information about the case from the public.

The Frank factors uniformly cut against allowing the plaintiff to proceed anonymously.

First, there is nothing "highly sensitive and personal" about this claim as that term is used in Frank. Quite the contrary. This is a claim about alleged discrimination by a state against a large public university—discrimination that, if it occurred as alleged, affected every student at the university. This is far less

"sensitive and personal" than the discrimination alleged in any garden-variety employment-discrimination case. It is possible—though it seems unlikely—that personal information about the plaintiff that should not become public will become relevant. If that happens, the information can be sealed. That is not good cause to allow the plaintiff to proceed anonymously.

Second, while bigotry is out there, the plaintiff has alleged no facts suggesting he faces a danger of physical harm greater than faced by the plaintiffs in many garden-variety employment-discrimination cases, let alone in cases asserting constitutional rights. The risk from filing this lawsuit is no more substantial—indeed, probably significantly less substantial—than the risk faced by many other plaintiffs in many other kinds of cases. If a risk this small were sufficient to allow a plaintiff to proceed anonymously, many of the most significant cases in the history of the federal courts would be known not by names like Brown, Korematsu, or Obergefell, but instead by pseudonyms. This would cut too deeply into the fundamental principle that ours is a public court system.

Third, the harm litigated against—discriminatory underfunding of a major university—will not be incurred as a result of disclosing the plaintiff's identity. That harm allegedly already has occurred. Disclosure of the plaintiff's identity will have nothing to do with it.

Under all the circumstances, the appropriate exercise of discretion is to deny this plaintiff the ability to proceed under a pseudonym. The plaintiff can pursue the claim or not—but he cannot do it while withholding his identity from the public record….

This seems quite consistent with the general patterns I describe in The Law of Pseudonymity in Litigation. Here's an excerpt from the plaintiff's argument in support of pseudonymity:

John believes, given the history of racial discrimination in this country, as well as the personal nature of the discrimination at issue in this Action, that proceeding with this lawsuit under his real name will have an immediate and irreparable effect on his reputation, educational and employment opportunities, and personal relationships. John's public identification with this Action will also interfere with his efforts to process, cope with, and recover from the conduct described in the Complaint.

This Action has already and will continue to draw public scrutiny of FAMU [Florida Agricultural & Mechanical University] faculty and administration. In that vein, this Action has already generated media interest from several national publications, including CNN, the Washington Post, CBS News, Forbes, Bloomberg News and Politico. The public disclosure of John's involvement in this Action will likely subject him to retaliation or other harmful treatment by FAMU employees and staff, other students and/or alumni of FAMU, and from the community at large. …

As a FAMU student, John is involved in various student-run organizations, including performance troupes and a fraternity. During the academic year, John volunteers in community service events, leads on-campus fundraising events for his organizations, and performs with his troupe for the FAMU student body. John fears an impact to the student organizations that he is a member of simply by his involvement in this Action.

As a student, John receives federal and state financial aid, as well as FAMU grants, to assist in paying his FAMU tuition, all of which are determined by the financial aid office at FAMU. John fears that public disclosure of his involvement in this Action may adversely impact his receipt of financial aid. As a current fourth year student at FAMU, John is in the process of applying for jobs in Florida. After graduation from FAMU, John hopes to obtain his teaching certificate to teach music in the State of Florida. John fears that public disclosure of his involvement in this lawsuit will affect these applications and prospective employment.

In addition to being a full-time student, John works part-time as a barber in the greater Tallahassee area to financially support himself. John further fears that he may suffer reputational harm and retaliation from community members if his true identity is revealed, especially because this Action concerns and alleges disproportionate funding received by FAMU as compared to that of other Tallahassee public universities, including Florida State University which has a student population in excess of 33,000 students and many faculty and alumni in Tallahassee.

John also worries that his family will suffer emotional distress if his name is publicly disclosed in relation to this Action, which will in turn cause John to suffer further emotional distress. John has four cousins who are currently high school students and who have plans to attend FAMU after graduation. John reasonably fears that his public involvement with this Action is likely to impact his family's reputation in the community and his cousins' ability to seek higher education at FAMU or in the State of Florida….

The court gave the pseudonymous plaintiff until Dec. 7 to identify himself or withdraw from the case, and he chose to indeed identify himself.