The Volokh Conspiracy
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No Pseudonymity for Plaintiffs Seeking to Respond to School's "Black Lives Matter" Posters
From yesterday's decision in Cajune v. Indep. School Dist. 194, by Judge Jerry Blackwell (D. Minn.) (for more on the First Amendment issue raised in the case, see this post):
Believing the posters carried political messages, some parents and students objected to [a Minnesota school board's] hanging "Black Lives Matter" posters without also displaying posters offering various other viewpoints.
Some plaintiffs sought to sue pseudonymously, "for fear of reprisal from political activists in the southern suburban Minneapolis metropolitan community," but the court said no:
Federal Rule of Civil Procedure 10(a) requires that the complaint "must name all the parties." It is fundamental that "the public has a right to know who is using [its] courts." Accordingly, "[t]here is a strong presumption against allowing parties to use a pseudonym." …
"The threat of hostile public reaction to a lawsuit, standing alone, will only with great rarity warrant public anonymity." The Unnamed Plaintiffs have not presented such a rare case.
The Unnamed Plaintiffs vaguely reference "cancel culture" and two incidents that occurred outside of the District as evidence that they reasonably fear "reprisal from political activists" for participating in this case: interference with a bakery's business in Eagan, and a Shakopee bank employee who lost their job after criticizing a school district superintendent online. But the two alleged incidents lack any connection to the phrase "Black Lives Matter" and bear no similarity to the Inclusive Poster Series at issue here. The Unnamed Plaintiffs also claim that Plaintiffs had been physically blocked from entering school board meetings, but the alleged misbehavior stopped after Plaintiffs complained. Finally, the named Plaintiffs in this case have litigated two federal lawsuits asserting their viewpoints for nearly two years without apparent incident. The motion to proceed pseudonymously is denied.
The precedents on this are a mix. For a contrary result on similar facts, see Menders v. Loudoun Cty. School Bd. (E.D. Va. 2021), which allowed a pseudonymous challenge to a school board's policies on teaching views associated with Critical Race Theory:
[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.
See also Doe 1 v. Madison Metro. Sch. Dist., 963 N.W.2d 823, 826 (Wisc. Ct. App. 2021) (allowing a pseudonymous challenge to a school district's policy "allowing students to 'change gender identity' and select new names and pronouns for themselves 'regardless of parent/guardian permission'"). This is especially so where the plaintiffs' challenge focuses on the legal issue and not on who said or did what to whom; in such cases, the plaintiffs' credibility, and therefore their identity, is seen as less important.
Likewise, courts have split on whether to allow challenges to vaccine mandates to proceed pseudonymously, because of concern about public hostility to such challenges. And courts have split on whether to allow challenges to university discipline based on a plaintiff's supposedly racist statements. Compare Doe #1 v. Syracuse Univ., No. 5:18-cv-0496-FJS-DEP, 2018 WL 7079489, at *6 (N.D.N.Y. Sept. 10, 2018), report & recommendation adopted, No. 5:18-cv-00496-BKS-ML, 2020 WL 2028285 (N.D.N.Y. Apr. 28, 2020) (allowing pseudonymity where university students sued over having been disciplined for engaging in actions that were supposedly "racist, anti-Semitic, homophobic, sexist, and hostile to people with disabilities"), with Doe v. Rhodes College, No. 2:21-cv-02811 (W.D. Tenn. Feb. 15, 2022) (denying pseudonymity for a university student suing over having been disciplined for an alleged racist statement). As in so many other corners of the law of pseudonymous litigation, whether you win seems to depend a great deal on the judge you draw, and the judge's views about the relative merits of privacy and publicity.
