Court Rejects Pseudonymity in Lawsuit Over "Liberated Ethnic Studies Model Curriculum"

From Concerned Jewish Parents & Teachers of L.A. v. Liberated Ethnic Studies Model Curriculum Consortium, decided yesterday by Judge Fernando Olguin (C.D. Cal.).

An unincorporated association, the Concerned Jewish Parents and Teachers of Los Angeles, along with six individuals using the pseudonyms Jane or John Doe ("Doe plaintiffs") initiated this action …. [Their] claims revolve around the Liberated Ethnic Studies Model Curriculum ("LESMC"), which plaintiffs allege is taught in Los Angeles public schools. According to plaintiffs, the LESMC "denounces capitalism, the nuclear family, and the territorial integrity of the lower 48 states of the United States[,]" and is designed "to expunge the idea of Zionism, and the legitimacy of the existence of the State of Israel, from the public square[.]" … With the instant Motion, the Doe plaintiffs seek leave to proceed anonymously….

A party's "use of fictitious names runs afoul of the public's common law right of access to judicial proceedings … and Rule 10(a)'s command that the title of every complaint 'include the names of all the parties[.]'" Nonetheless, the Ninth Circuit has "permitted parties to proceed anonymously when special circumstances justify secrecy." In particular, courts may "allow parties to use pseudonyms in the 'unusual case' when nondisclosure of the party's identity 'is necessary … to protect a person from harassment, injury, ridicule or personal embarrassment.'" See also Roe v. Skillz, Inc. (9th Cir. 2021) ("[T]his Court has made clear that use of a pseudonym should only be permitted occasionally and in 'unusual' cases."). Given the "presumption that parties' identities are public information, anonymity is only proper under special circumstances when the party's need for anonymity outweighs prejudice to the opposing party and the public's interest in knowing the party's identity." …

As an initial matter, the Doe plaintiffs have not established that they personally fear harm of any kind. None of them filed any declarations in support of the Motion. Nor does the Declaration of Lori Lowenthal Marcus, counsel for plaintiffs, provide any basis, let alone an admissible basis, for the court to credit the Doe plaintiffs' purported fears. The Marcus Decl. states that "[e]ach of the persons who is an individual Plaintiff in this case … is willing to serve as a plaintiff only if they are allowed to proceed anonymously[,]"and recounts three examples of non-plaintiffs who are alleged to have suffered harm as a result of their beliefs. But a desire to proceed anonymously is not tantamount to a fear of severe harm; nor will the court presume the existence of such a fear simply from a party's desire to use a pseudonym. Similarly, plaintiffs offer no basis for the court to impute the alleged experiences of non-plaintiffs to the Doe plaintiffs.

Nevertheless, even assuming there is some valid basis for the Doe plaintiffs to fear some sort of harm, such fear—especially one as unsubstantiated and unsupported as the one before the court—is plainly unreasonable. As to the Doe plaintiffs who are parents, they contend that the "[d]anger of harassment is particularly great here because the objects of the harassment … include children[.]"But plaintiffs provide only one example—of a non- plaintiff child—who allegedly felt "humiliated and embarrassed" after being told, "that's not what this is for[,]" when the non-plaintiff child raised the topic of anti-Jewish discrimination during a class discussion about discrimination against ethnic groups. This one example is plainly insufficient. For one, plaintiffs provide no argument or evidence that this student's experience is likely to be shared by the children of the Doe plaintiffs; nor is there any evidence or argument as to whether any of the Doe plaintiffs' children have (or had) the same teacher or even went to the same school as this alleged non-plaintiff student. For another, none of the Doe plaintiffs' children are themselves plaintiffs.

{The court is troubled by the lack and/or insufficiency of the evidence offered in support of plaintiffs' Motion. Plaintiffs rely only on a single, three-page declaration from counsel, as well as citations to various national news articles that report general trends in anti-Jewish violence. Plaintiffs do not offer any declarations from any of the Doe plaintiffs—anonymously or not—and do not make any attempt to identify any specific harm that the Doe plaintiffs might suffer were the Motion to be denied.}

Crucially, though, "[c]ommunity disagreement which results in embarrassment is not enough to support the use of pseudonyms." … "[E]vidence that a party may face social ostracization, without more, does not establish that the threatened harm is severe." … Thus, the court is not persuaded that the Doe plaintiffs' fears of community disapproval or social ostracization reasonably constitutes severe harm.

As for the remaining Doe plaintiffs who are teachers or former teachers, plaintiffs argue that "there has been retaliation by defendant [union] UTLA against teachers because of their views on the issues at stake in this case." In support of this contention, plaintiffs state that their attorney was consulted by a non-plaintiff who "made public statements evidencing this person's opposition to UTLA's attack on Israel during the Gaza war in 2021[,]" and who was asked to meet with the Los Angeles Unified School District ("LAUSD") regarding the statements.

Given that the investigation was ultimately dropped and the teacher was not punished—and putting aside the fact that the statement in the Marcus Decl. is inadmissible hearsay—the investigation cannot reasonably be relied upon as evidence of risk of a severe harm. This is particularly true where the specific conduct that incited the investigation—here, the statements and the forum in which they were made—are not before the court and, so, the court cannot gauge whether the substance of this lawsuit is meaningfully comparable to the substance of these statements.

But even assuming, as plaintiffs seem to urge, that the Doe plaintiffs might face some risk to their jobs if the Motion were denied, the Ninth Circuit has "distinguished 'perhaps typical' fears of termination and blacklisting, which many plaintiffs face, from the 'extraordinary' harm required to justify granting anonymity." In short, plaintiffs have not demonstrated a risk of severe harm to the Doe plaintiffs who are current or former teachers.

Finally, the court cannot credit plaintiffs' citations to various news articles that report general examples of physical violence against Jewish people, as these citations do nothing to show a particularized risk of physical harm to the Doe plaintiffs…. See Doe v. Kamehameha School (9th Cir. 2010) ("[P]hysical harm presents the paradigmatic case for allowing anonymity."); see, e.g., Doe v. Lloyd (C.D. Cal. 2022) ("[The] type of case without more particularized concerns and evidence is not enough to conclude that there is a fear of physical harm that rises to the necessary level to warrant maintaining the action with a pseudonym."); Doe v. NFL Enterprises, LLC (N.D. Cal. 2017) ("Plaintiff cites no actual threat of any harm against her specifically.").

In short, the court is not persuaded that plaintiffs have established that the Doe plaintiffs fear severe harm, or that such a fear would be reasonable if it did exist….

Given that the Doe plaintiffs' identities and interests are central to the questions of standing and mootness, permitting the Doe plaintiffs to proceed pseudonymously would hamstring defendants' ability to litigate the case, and require the court to expend limited judicial resources on a case over which it may lack jurisdiction. Thus, defendants would suffer prejudice were the Doe plaintiffs permitted to proceed anonymously.

Finally, plaintiffs argue that denial of the Motion would run counter to the public's interest, because the Doe plaintiffs would decline to pursue the case if they were not permitted to proceed anonymously. However, were the court to credit such an argument, almost every case in which a plaintiff threatens to drop their lawsuit if not permitted to proceed anonymously would require a finding that the public interest favors anonymity. See U.S. v. Stoterau (9th Cir. 2008) ("Such a significant broadening of the circumstances in which we have permitted pseudonymity is contrary to our long-established policy of upholding the public's common law right of access to judicial proceedings, and contrary to our requirement that pseudonymity be limited to the unusual case.") "Federal courts are courts of public record, and the strong presumption is that the public has a right to know who is seeking what in court and whether he or she is entitled to the relief sought." Under the circumstances here, the Doe plaintiffs have not shown that their need for anonymity outweighs "the public's interest in knowing the party's identity." …

Courts have generally been somewhat more open to pseudonymous litigation in predominantly legal challenges, where the plaintiff's personal credibility is largely not at stake. But even there, the strong presumption is that plaintiffs must sue in their own names, in the absence of a pretty concrete showing of threatened harm. And, as the court noted, courts insist that this threatened harm go beyond the normal risk of social ostracism (or even professional or economic retaliation) that many plaintiffs and defendants routinely face. For more, see The Law of Pseudonymous Litigation.