Court Rejects Attempt to Block Media from Reporting Name of Pseudonymous Litigant

The court required the university defendants to keep plaintiff's identity confidential (common in pseudonymous Title IX cases), but refused to extend this to media, students, and others.

In Doe v. U.N.C. Sys., decided Tuesday by Chief Judge Martin Reidinger (W.D.N.C.), the court allowed plaintiff to proceed pseudonymously (in a case challenging a Title-IX-based expulsion), and ordered the university to keep Doe's name and records confidential (and thus barred it from responding to a state public records request).

[1. T]he Plaintiff has presented evidence in the form of his Verified Complaint that UNC-CH's investigatory and adjudicatory processes were procedurally flawed, and that he was found responsible for sexual misconduct based on insufficient and unreliable evidence. Moreover, the Plaintiff has presented evidence suggesting that the investigation involved significant procedural irregularities, some of which violated UNC-CH's own Title IX policy. While these procedural deficiencies "may appear insignificant in isolation, taken together they warrant concern that Doe was denied a full and fair hearing." The Plaintiff further has presented evidence that UNC-CH lacked sufficient evidence to find him responsible for sexual misconduct, and that the evidence that UNC-CH did have was unreliable. This evidence, when coupled with procedural irregularities, cast significant doubt on the accuracy of UNC-CH's determination that the Plaintiff engaged in sexual misconduct. The Defendants have not produced any evidence at this stage to the contrary….

[2.] As to … [evidence of] circumstances suggesting gender bias motivated the erroneous outcome[,] the Plaintiff's Verified Complaint establishes that UNC-CH has faced significant public pressure over its handling of sexual misconduct complaints, has been found to have violated Title IX by the Department of Education, and has responded by changing its policies and creating new staff positions. This evidence tends to show that UNC-CH was aware of, and responding to, public pressure regarding its handling of sexual misconduct. Additionally, the Plaintiff has presented evidence that the actions of Defendants Enlow and Hall, in investigating and adjudicating the complaints, evidenced gender bias. This evidence is sufficient for a factfinder to determine that UNC-CH reached an erroneous outcome in the Plaintiff's matter because of gender bias. Accordingly, this Court concludes that the Plaintiff's evidence is sufficient to show a likelihood of success on the merits of at least a portion of his Title IX claim.

[T]he Plaintiff contends that the premature disclosure of his name and disciplinary record would be "devastating and incurable[,]" as it would forever link him to acts of sexual misconduct that he claims he did not commit. This association would undoubtedly damage the Plaintiff's reputation in the community and hamper his job prospects. Indeed, as this Court noted in its order allowing the Plaintiff to proceed pseudonymously, "the mere accusation of [sexual misconduct], if disclosed, can invite harassment and ridicule." This Court cannot remedy these harms after litigation with a monetary award. As such, Plaintiff has established that he is likely to suffer irreparable harm absent injunctive relief.

But the court refused to extend the injunction to students, the media, and others:

The Plaintiff's requested injunction, however, seeks relief broader than what [Fed. R. Civ. Proc.] 65 allows, as the Plaintiff seeks to enjoin students at UNC-CH, third parties, and media outlets from disclosing information pertaining to the Plaintiff's disciplinary proceedings. These individuals and entities cannot be classified as parties; the officers, agents, servants, employees, or attorneys of parties; or as other persons who are in active concert or participation with the parties…. As such, this Court will limit its injunction to the University of North Carolina System, UNC-CH, the UNC-CH Board of Trustees, the Board of Governors of the University of North Carolina, including their agents, servants, employees, attorneys, and other persons who are in active concert with those aforementioned, which would include all of the Defendants named herein.

For more on this issue, and my role in the challenge to the sealing of documents related to an earlier gag order in the case, see here and here.