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 To quote Doe v. Delta Airlines, Inc. (2d Cir. 2016) (not binding precedent, but still likely persuasive in N.Y. federal courts and consistent with many other cases),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).

Comments

[John F. Carr]

Are unincorporated student activities generally treated as part of the school? In my experience recognized student activities are subject to a formal antidiscrimination policy. Having a policy and enforcing it are not the same.

[Rev. Arthur L. Kirkland]

I believe NYU is a private institution. Is this the case in which the mainstream asserts a religious claim regarding response to longstanding, invidious discrimination (the mirror to conservative-controlled schools' claims of entitlement to be bigots)?

[The Margrave of Azilia]

Could you translate that from Angry Old Man Rant into English?

[Rev. Arthur L. Kirkland]

Certain institutions claim entitlement to discriminate against people for religious reasons. So far, religion has been used mostly to discriminate against gays, transgender people, Muslims, pregnant employees, women, and others. Perhaps NYU could argue that its strongly held beliefs -- spiritual, one might say -- compel it to discriminate in favor of certain historically disfavored people.

Would a court conclude religious claims are effective solely when advanced by gay-bashers, the Christian right, misogynists, transphobes, and other right-wingers?

[The Margrave of Azilia]

Perform your RFRA analysis and let me know what you come up with.

[Rev. Arthur L. Kirkland]

I expect Republican judges to continue to come up with decisions both highly selective and, with respect to the flavors of superstition they prefer, highly flattering toward conservative bigotry.

Until the modern American mainstream casts those conservative preferences aside as part of our continuing national progress.

[rloquitur]

Why would the law school care if suit is brought pseudonymously? Law review should be merit alone.

[Social Justice is neither]

Have you seen the clown world we're living in and that college is an incubator for?

[SimonP]

This kid seriously just started at NYU, and is already suing it over the law review. He probably hasn't even learned about "standing" yet. No wonder this piece of shit wants to proceed anonymously.

[SomeGuy 2]

He might be naive, but people suing to hold up their civil rights aren't typically considered a piece of shit. The law review is engaging in obviously discriminatory practices, flouting their obligations not to do so. They're just going to keep doing it if nobody stands up to them.

[Dr. Ed 2]

And as to standing, a 1L isn't technically eligible?
I'm technically eligible to be POTUS....

[SomeGuy 2]

By that logic it will always be either moot or unripe-- to the extent this guy doesn't have standing, then fine, wait for somebody who can plausibly say they were discriminated against, then they'll keep litigating long after that person graduates law school, kind of like a Roe situation.

[SimonP]

Tell that to the factually innocent Black guy on death row who can't get his execution stayed pending appeal.

The Supreme Court has been telling us for decades that, look, sometimes life isn't fair. You don't get standing just because litigation after you've actually been harmed is likely to take too long to meaningfully address your injury. That's life. The Constitution doesn't give a shit.

[Rev. Arthur L. Kirkland]

Bingo. The people who will get highly lathered over this NYU snowflake's plight will continue to be just as serious about disregarding justice in the context of people like innocent Blacks fighting convictions or other injustice.

Which is a large part of the reason they are our culture war's deplorable, obsolete losers.

[SimonP]

Read the complaint. It essentially admits they have no evidence that NYU will discriminate against white, male, straight cisgender men, in the coming years and avers no evidence that it ever has.

This is a first-semester law student being used by conservative activists to target a big, liberal institution as part of their own culture war agenda, suing because he isn't confident he can get onto law review either using the write-on or grades-only paths, and is too chickenshit to want future employers to be able to choose not to hire someone liable to sue them at the very first opportunity. He's a piece of shit, and you are too.

[SomeGuy 2]

I don't know why you're lying about this. The complaint avers that ith used to be that 12 of the 50 slots are handled by the "diversity committee." It's less transparent now, but they're making their intent to discriminate clear by soliciting diversity statements. There's no point in asking about a client's diversity unless you intend to discriminate against people deemed non-diverse. This is Civil Rights legislation that strikes at the core of the right not to be discriminated against for accidental, irrelevant characteristics. NYU Law Review is blatantly engaging in discrimination and not even really hiding it that well.

https://media.aflegal.org/wp-content/uploads/2023/10/19165448/1-FILED-Complaint.pdf

[SimonP]

I'm not lying about anything; you just repeat the ruse. They're trying to lead the reader to a particular conclusion by framing current practices (which are innocuous) in light of past practices (which are less so). Nothing about what they've averred is inconsistent with a contrary interpretation, which is that NYU just changed their diversity practices in response to the Supreme Court's cases.

[SomeGuy 2]

Uh huh. So they were doing odious discrimination before the Supreme Court decision, they made the process more opaque, and the conclusion is that they decided to stop with their long-standing discriminatory pattern? And they're collecting "diversity statements" where those of the favorable demographics can reveal their anointed status for, what, funsies? This will all come out in discovery, but it's overwhelmingly likely that they're still discriminating rather than doing the right thing. The complaint has certainly stated enough to survive an MTD.

[SimonP]

Are you the shitbag in question?

To survive a MTD, you need to do more than simply wave your hands and assert that the defendant is probably going to injure you. You need to state a set of facts that at least plausibly form the basis of the claim. A requirement that students provide "diversity statements," along with a completely unsupported assertion that NYU hasn't changed anything about their practices is not going to be sufficient.

[Bwaaah]

"shitbag"

Is the principle of non-discrimination so offensive, so useless, so unattainable to you that a person who advocates for it is worthy of such contempt? That's just nasty, and it colors your argument with the taint of your hateful soul.

I get your legal argument. But it's effectively negated by your contempt. You appear to clearly favor forms of discrimination that are illegal in the U.S. (and contrary to what my parents taught me).

I assume I am a shitbag. (And I assume my parents were shitbags too.)

[SimonP]

Is the principle of non-discrimination so offensive,…

I don’t care one way or another about performative “diversity” on the law review of an extremely expensive private law school at an institution known to serve primarily the hyper-wealthy and hyper-elite, nor about mediocre white men whose systemic privilege is still not enough to earn spots on such a law review through actual merit and so must sue for “discrimination.”

This kid is a shitbag because (1) he just started classes at NYU, (2) is months away from even trying to get onto the law review, (3) is suing the law school that he chose to attend, surely knowing its “woke” reputation and the environment he was bound to land in, and (4) is apparently aware of how his lawsuit – whatever its underlying merits – is likely to make him a pariah among his classmates and potential future employers. Like a typical conservative, he wants to be an ass but evade the consequences of doing so. That is why he’s a “shitbag.”

That aside – I don’t know whether the law review’s previous selection process – where some seats were set aside for “diversity” purposes – would fly under current law. But it remains conceded in the complaint itself that the selection policy was changed to require only a “diversity statement.” Nothing about the recent changes in law should make such “diversity statements” presumptively illegal, notwithstanding the fact that conservatives remain very upset about them. All that is disallowed is using the information provided in “diversity statements” in order to discriminate on the basis of race.

All that Shitbag, Esq. really needed to do is duplicate whatever it is he put in his personal statement for law school admission. Perhaps the problem is that Shitbag, Esq. is a K-JD with wealthy parents, an econ degree, and zero interesting things to say about himself despite being an annoying, unathletic contrarian ever since he discovered Ayn Rand in junior high. Call it the “Stephen Miller” syndrome.

I get your legal argument. But it’s effectively negated by your contempt. You appear to clearly favor forms of discrimination that are illegal in the U.S. (and contrary to what my parents taught me).

Is it? Let’s look at what you’re doing. You wrongly assume that my contempt is rooted in support for “illegal” forms of discrimination (a non sequitur), despite my never saying anything of the sort (a strawman), and then point to that contempt as undermining a legal argument whose validity you do not deny (an ad hominem).

I may not be extending Shitbag, Esq. much respect or benefit of the doubt. But at least I can string an valid argument together.

[Bwaaah]

You are quite correct about the weakness of my complaint. I inferred, based on your hostility toward this lawsuit, that you are not opposed to discrimination on the basis of classifications that are prohibited in some laws. I don't know how to say this correctly, and though you somewhat successfully skewer my remarks, your careful wording tends to indicate to me that I did not misunderstand your sentiment. (I could still be wrong, but that seems unlikely.)

[SimonP]

...your careful wording tends to indicate to me that I did not misunderstand your sentiment.

I suppose there's an irony in that you continue to believe whatever you like, absent evidence, in much the same way that Shitbag, Esq. is asserting that NYU will discriminate against him on the basis of race and sex, absent evidence.

To be clear, I sometimes refuse to address red herrings presented by frustrating VC commenters, even when addressing them can help to focus the discussion, because it is amusing to me when they continue to expound on their errors. It doesn't necessarily mean that I am trying to avoid admitting something I'd prefer not to admit.

[Don Nico]

Who knows why Simon is on the rag today (or any other day for that matter).

[The Margrave of Azilia]

"admits they have no evidence that NYU will discriminate against white, male, straight cisgender men"

I thought that *failing* to discriminate on those bases was racist? Are you calling the law review racist?

[Rev. Arthur L. Kirkland]

.

This is a first-semester law student being used by conservative activists to target a big, liberal institution as part of their own culture war agenda, suing because he isn’t confident he can get onto law review either using the write-on or grades-only paths,

Or maybe the student is just a big ol' bigot looking to establish street cred at Federalist Society events in hopes of landing a clerkship from a Federalist Society judge or a job from a Republican administration?

[SimonP]

He'd have no reason to pursue anonymity, if that were the case.

No, this shitbag is hedging his bets. He doesn't want a wash-out at OCI; he wants to have biglaw as a fallback option. A clerkship isn't a given even if he establishes a reputation as a conservative celebrity, and no one wants to work for the government forever. (Most Trump officials rotate in and out of law firms and Republican administrations, or in and out of banking.)

[Rev. Arthur L. Kirkland]

He doesn't want to be known now. He doesn't want his classmates to know what a dick he is. He doesn't want to be shunned at lunch tables, at Friday keggers in the student lounge, or by study groups.

Some day he'll have his chest out at Federalist Society meetings, though, and there are plenty of right-wing judges who would hire this jackass precisely because he is a disaffected white grievance whiner who became a clinger celebrity with this litigation.

[Dr. Ed 2]

Simon, this is exactly what minorities do to prove housing discrimination.

So are they pieces of shit too?

[Mitch]

All this does is render law review less important. As an employer, I expect that law review editors earned their position through superior scholarship, not a diversity statement that hit all the right buzzwords.

[ReaderY]

The plaintiff is making a concrete claim, that the NYU law review administration is continuing an explicit quota of 12 set-aside slots, but has merely stopped advertising doing so on its web site and in its literature.

That’s a concrete claim. SimonP seems to be arguing it’s insufficiently plausible to give standing. He seems to be accusing the plaintiff of lying. But there’s nothing inherently implausible about the claim. It may be false. The plaintiff may be going on a fishing expedition and have no personal knowledge of its truth (and this may be what SimonP is annoyed about). But it’s not inherently implausible.

[SimonP]

SimonP seems to be arguing it’s insufficiently plausible to give standing. He seems to be accusing the plaintiff of lying.

Nope. I am talking about the pleading standard. It is not sufficient to plead just facts that would be consistent with the allegedly wrongful conduct. You need to plead facts - and not conclusory legal assertions - that would give the trier of fact grounds to reasonably infer that the wrongful conduct occurred.

Nothing in the complaint provides a factual basis for the assertion that NYU intends to continue race-discriminatory set-asides or some other discriminatory practice under the guise of evaluating "statements of interest." Nothing in the complaint provides a factual basis for inferring that the law review's commitment to "diversity" will include discriminating on the basis of race. More is required.

[The Margrave of Azilia]

Are you insinuating that some group accused of racism has the presumption of innocence?

Now there's a concept for you.

[SimonP]

No, I'm not insinuating anything or saying that anyone is entitled to any kind of "presumption of innocence."

Again, I am talking about pleading standards.

[The Margrave of Azilia]

…which by a curious coincidence protect the presumption of innocence, in the sense that the accuser must at least initially provide *some* basis for his accusation.

Maybe he could have claimed disparate impact and shifted the burden of proof?