The Volokh Conspiracy
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No Pseudonymity for Parent and Now-Adult Child Challenging School District's Supposedly Anti-White Curriculum
From B.L. v. Fetherman, decided last Wednesday by Magistrate Judge Jessica Allen (D.N.J.):
This case arises out of Plaintiffs' legal challenge to portions of Mountain Lakes School District's ("MLSD") public-school curriculum on the basis that it is discriminatory against white students…. [A]ccording to Plaintiffs, Defendants have unlawfully discriminated against [B.L.'s child] J.L., have violated his constitutional rights and have subjected him to a hostile educational environment. B.L. also brings his own claims, alleging that Defendants' responses to his concerns violated his constitutional rights….
Plaintiffs … seek leave to proceed under pseudonyms …. In support of their motion, B.L. claims that he has been portrayed as a "villain" for challenging MLSD's curriculum, and that he has received threats, causing him to fear for his and J.L.'s safety….
"[O]ne of the essential qualities of a Court of Justice [is] that its proceedings should be public," an "important dimension" of which is that the person using the court identify themselves. The use of pseudonyms "runs afoul of the public's common law right of access to judicial proceedings …." Federal Rule of Civil Procedure 10(a) reflects those principles, stating "[t]he title of the complaint must name all the parties …."
"While not expressly permitted under Federal Rule of Civil Procedure 10(a), in exceptional cases courts have allowed a party to proceed anonymously." To that end, courts have found such exceptional circumstances in cases involving subjects such as "abortion, birth control, transsexuality, mental illness, welfare rights of illegitimate children, AIDS, and homosexuality." The fact that a litigant may "suffer embarrassment or economic harm is not enough" to justify proceeding by pseudonym. "Instead, a plaintiff must show 'both (1) a fear of severe harm, and (2) that the fear of severe harm is reasonable.'"
The court concluded that plaintiff's case for pseudonymity was undermined by their having identified themselves to some other people in the community:
[T]he Amended Complaint details instances, occurring over the course of months, where B.L. personally contacted individual defendants regarding MLSD's curriculum. This includes B.L.'s coordination with another parent, identified in the Amended Complaint as "Objector 2," to engage in dialogue with the MLSD about the school curriculum. Since the Amended Complaint details events that identify B.L. as a parent, it appears that both B.L. and J.L.'s identities are already known to members of the MLSD and Objector 2, which weighs against proceeding by pseudonym. More important, B.L. does not specify how many people, friends, associates, or others know that he is one of the Plaintiffs in this case. The failure to provide the Court with this specific information weighs against B.L.'s claim of confidentiality.
B.L. also does not even attempt to address J.L.'s efforts to remain confidential under the first factor, and the Court has not been provided with any information from B.L. or J.L. that details the steps taken by J.L. to preserve his identity from members of the public, friends, and others. Thus, Plaintiffs have failed to meet their burden of showing that their identities have been kept confidential.
The court also noted that this isn't one of the cases where the presence of a minor litigant would justify pseudonymity, because it appears that J.L., who is now in college, is no longer a minor. And the court concluded that there was no sufficient evidence of serious threats to B.L. or J.L.:
The court's analysis in Doe v. Felician University (D.N.J. 2019) is instructive. There, the plaintiff sought to proceed anonymously due to alleged stalking, cyberbullying, and perceived online threats of violence and exposure of the plaintiff's identity. The plaintiff, a Muslim woman of Palestinian descent, filed a complaint against Felician University alleging, among other things, religious discrimination. After she filed the lawsuit, the complaint's details were published on a news website and an online blog that was alleged to contain "harsh, hateful and bigoted rhetoric against Muslims[,]" and which allegedly advocated for violence. Plaintiff identified the blog post that mentioned her and sought to expose her identity. The court concluded that "disapproval and frustration voiced by some members of the public" do not amount to threats or create a risk of "retaliatory harm." The court further noted that the online posts did not specify a credible risk of harm and that the threat to expose plaintiff's identity did "not qualify as a substantial threat warranting protection."
Likewise, in Kamehameha, the Ninth Circuit affirmed the district court's denial of four minor students' request to proceed by pseudonym. The plaintiffs, who challenged an allegedly race-based school admission policy, were the subject of express online threats. However, the Ninth Circuit found these statements amounted to online frustration with the plaintiffs, but that "many times people say things anonymously on the internet that they would never say in another context and have no intention of carrying out … [,]" and the statements did not provide a basis for a reasonable fear of physical harm….
B.L. relies on the following incidents to support his fear of potential harm:
- B.L. has received "a lot of pushback" from within and outside the Mountain Lakes School District.;
- People have reached out to B.L. in "anger" for filing this action;
- B.L. received a third-party message on LinkedIn from a person he does not know who identified him as the Plaintiff in this lawsuit and made "alarming comments" about his professional life;
- A newspaper has identified a person as the plaintiff and placed this person's spouse on the front page;
- Someone has identified a person who they assert is the plaintiff and his family on Twitter;
- A woman created an online post purporting to identify J.L. and the college he attends and encouraged people to contact the school to pressure the school to rescind its offer of acceptance;
- B.L. is aware that people have posted a residential address of the person they suspect to be the plaintiff online and perhaps have encouraged vandalism….
The use of a pseudonym is an extraordinary measure reserved for unique cases..L.'s vague reference to some members of the public's "pushback" and "anger" with Plaintiffs for filing this lawsuit amounts to mere frustration rather than a credible risk of harm. Indeed, B.L. refers only to some vague possibility of physical harm….
The Court further rejects B.L.'s position that the controversy created by this lawsuit, the need for J.L. to attend college without threats, and the possibility of "economic destruction," support his request to proceed anonymously. Megless [the binding Third Circuit precedent] makes clear that fear of negative public reaction or economic harm are insufficient to warrant proceeding anonymously. See also Doe v. Princeton (D.N.J. 2019) (noting that alleged harm in the form of possible "loss of a job, stigmatization, and ridicule" are insufficient to support use of a pseudonym)….
B.L. [also] claims that revealing his identity would instill fear in potential witnesses, who would reasonably fear for their safety if they were publicly identified after opposing school policies. B.L. has not submitted any factual support for his claim…. [And] any party who is a minor would be permitted to proceed using his or initials pursuant to Rule 5.2, and therefore, are not at risk of being publicly identified. Accordingly, as B.L. has not established that other litigants would be deterred from prosecuting similar claims, this third factor does not favor proceeding by pseudonyms….
The court also noted that,
Plaintiffs challenge the MLSD's public-school curriculum, and B.L. has brought a putative class action on behalf of the interests of minor students in the school district. To that end, it is quite plausible that parents of students in the MLSD would like to know—and perhaps would be entitled to know—the name and identity of the proposed class representative purporting to challenge the curriculum on behalf of their children. For those reasons, this factor weighs against the use of pseudonyms.
The result seems largely consistent with most cases that have considered such questions, and that haven't involved express threats of violence; but the law in this area is unsettled, as I lay out in my The Law of Pseudonymous Litigation.