Challenge to NYU Law Review's Race and Sex Preferences May Proceed Pseudonymously, at Least for Now

[UPDATE: Added a brief discussion of pseudonymity and class actions.]

Doe v. NYU (S.D.N.Y.), filed Oct. 27, is a challenge to the NYU Law Review's alleged race- and sex-based preferences in selecting its editors; it alleges,

Even after Students for Fair Admission, the NYU Law Review continues to give unlawful and discriminatory preferences to women, non-Asian racial minorities, and homosexual and transgender individuals when selecting its members and editors. And it intends to continue these unlawful and discriminatory practices until it is enjoined from doing so.

The defendant is NYU, since the NYU Law Review apparently doesn't have a separate corporate identity (unlike many other law journals). The plaintiff is John Doe, "is a first-year law student at NYU [Law School]," who would be representing a class "of all present and future students at NYU Law School who: (a) intend to apply for membership on the NYU Law Review; and (b) are white, heterosexual men who identify as men, consistent with their biologically assigned sex." And today, Judge Victor Marrero allowed Doe to proceed pseudonymously, though "without prejudice to New York University's right to move the Court to direct Plaintiff to disclose his identity, or any other appropriate relief, once the Clerk of Court assigns this case to a District Judge."

This strikes me as unusual, though perhaps it's explicable by the desire to preserve the status quo until the case is taken over by the judge who will be permanently assigned to the case.

The motion for leave to proceed under pseudonym is itself sealed, so I'm not sure just what arguments persuaded the judge. I take it, though, that the likeliest rationale is that the plaintiff is worried that suing would lead to social ostracism, possible loss of job opportunities, and perhaps possible rejection by the NYU Law Review itself (not based on plaintiff's race, sex, and sexual orientation, but based on his having sued).

Yet as a general matter, such concerns, which are present in many cases (especially in employment cases), don't justify pseudonymity. To quote Doe v. Delta Airlines, Inc. (2d Cir. 2016) (not binding precedent, but still likely persuasive in N.Y. federal courts and consistent with many other cases),

The public interest in scrutinizing judicial proceedings combined with the prejudice [defendant] would face from defending against claims prosecuted by an anonymous person at trial far outweigh Doe's interest in not suffering professional embarrassment and any concomitant financial harm.

Likewise, the leading case on the subject, SMU Ass'n of Women Law Students v. Wynne & Jaffe (5th Cir. 1979) (which also involved discrimination claims in the legal field), rejected pseudonymity, concluding:

Plaintiffs argue that disclosure of A-D's identities will leave them vulnerable to retaliation from their current employers, prospective future employers and an organized bar that does "not like lawyers who sue lawyers." In our view, A-D face no greater threat of retaliation than the typical plaintiff alleging Title VII violations, including the other women who, under their real names and not anonymously, have filed sex discrimination suits against large law firms.

Or to quote a S.D.N.Y. decision from two months ago, Doe v. Telemundo Network Grp.:

Furthermore, while Plaintiff fears that revealing her identity risks harm from other companies and individuals in media known for "blacklisting," courts in this Circuit have repeatedly held that a plaintiff's "desire to avoid … economic loss is insufficient to permit h[er] to appear without disclosing h[er] identity." Free Mkt. Comp. v. Commodity Exch., Inc., 98 F.R.D. 311, 313 (S.D.N.Y. 1983); see also Townes, 2020 WL 2395159, at *4 ("[C]ourts have consistently rejected anonymity requests predicated on harm to a party's reputational or economic interests." (quoting Abdel-Razeq v. Alvarez & Marsal, Inc., No. 14 Civ. 5601 (HBP), 2015 WL 7017431, at *4 (S.D.N.Y. Nov. 12, 2015), and collecting cases)); see also Abdel-Razeq, 2015 WL 7017431, at *4 (collecting additional cases); Guerrilla Girls, Inc. v. Kaz, 224 F.R.D. 571, 573 (S.D.N.Y. 2004) ("Courts should not permit parties to proceed pseudonymously just to protect the parties' professional or economic life.").

This having been said, cases are split about whether plaintiffs could proceed pseudonymously in especially politically controversial disputes, on the theory that they would face unusually high risk of retaliation because of the controversy (see the cases canvassed in this post). And courts also sometimes allow pseudonymity in cases that are both controversial and involve purely legal challenges, on the theory that the plaintiff's identity is irrelevant to those cases; these have generally been lawsuits against the government, often challenging statutes on their face, but perhaps a court might adapt this reasoning to what seems to be a facial challenge to the NYU Law Review's policy. I look forward to following the case, to see if NYU or others challenge the pseudonymity here.

For more on the general rules of pseudonymity in litigation—and how unsettled they tend to be in many areas—see here.

UPDATE: Adam Schulman (Hamilton Lincoln Law Institute & Center for Class Action Fairness) tweets:

Due process doesn't permit pseudonymous class litigation. In regular litig, the only injury is to public access to courts—a weighty 1A interest itself. But a class rep jeopardizes the claims of other people, who have the right to vet that rep's adequacy. https://t.co/KbdNIhhgOn

— Adam Schulman (@aeschulman) November 23, 2023

I neglected to note this, but this indeed could be a factor—though, as with so many things related to pseudonymity, courts are split on it. Some courts have rejected pseudonymity for would-be class representatives on the grounds that it "may … preclude potential class members from properly evaluating the qualifications of the class representative." See Michael v. Bloomberg L.P., No. 14-cv-2657, 2015 WL 585592, at *4 (S.D.N.Y. Feb. 11, 2015); In re Ashley Madison Customer Data Security Breach Litig., MDL No. 2669, 2016 WL 1366616, at *4 (E.D. Mo. Apr. 6, 2016); Doe v. City of Indianapolis, No. 1:06-cv-865, 2006 WL 2289187, at *3 (S.D. Ind. Aug. 7, 2006); Sherman v. Trinity Teen Sols., Inc., 339 F.R.D. 203, 206 (D. Wyo. 2021); Doe v. U.S. Healthworks Inc., No. 15-cv-05689, 2016 WL 11745513, at *6 (C.D. Cal. Feb. 4, 2016). Others have disagreed. See Doe v. City of Apple Valley, No. 20-cv-499, 2020 WL 1061442, at *3 (D. Minn. Mar. 5, 2020); Roe v. Operation Rescue, 123 F.R.D. 500, 505 (E.D. Pa. 1988); Doe v. Mundy, 514 F.2d 1179, 1181–82 (7th Cir. 1975).