The Volokh Conspiracy
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Unsealed Arguments for Pseudonymity in Challenge to NYU Law Review's Race/Sex/Etc. Preferences
I wrote in November about the court decision allowing the challenge to NYU Law Review's race, sex, sexual orientation, and gender identity preferences to proceed pseudonymously; 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." But the judge's order didn't give any reasons; and Doe's memorandum, which must have provided various reasons that did sway the judge (whether or not he endorsed them all), had been filed under seal.
With the help of UCLA law student Maria Cafferata, I filed a motion to unseal that memorandum, and on Thursday the judge granted it. It's an interesting and forceful argument, which I think some of our readers will agree with and still more will find interesting—it's signed by, among other lawyers, conservative star lawyer Jonathan Mitchell (as well as Gene Hamilton of America First Legal Foundation, Ronald Berutti of Murray-Nolan Berutti LLC, and Christopher Mills of Spero Law LLC) [UPDATE: just to be clear, as my comments following the long block quote below indicate, I disagree with much of the argument, but just thought it was well-crafted and worth passing along]:
Plaintiff John Doe, a first-year law student at New York University, should be permitted to proceed under pseudonym. This lawsuit pertains to his personal beliefs and characteristics, and he risks significant retaliation from the NYU Law Review, his peers, his professors, NYU administrators, and potential employers if his identity is exposed. NYU faces no prejudice from Doe's proceeding under a pseudonym, particularly at this early stage of litigation involving legal claims that do not focus on Doe's own facts or credibility. Likewise, the public has little interest in knowing which specific student challenged the NYU Law Review's generally applicable practices. Because the plaintiff's interest in remaining anonymous significantly outweighs any competing interests, the Court should grant the motion and permit Doe to proceed under pseudonym….
[1.] First, this litigation involves matters that are highly sensitive and of a personal nature. They pertain to Doe's personal characteristics — his race, sex, gender identity, and sexual orientation. See Doe #1 v. Syracuse University, No. 18-cv-0496, 2018 WL 7079489, at *4 (N.D.N.Y. Sept. 10, 2018), adopted, 2020 WL 2028285 (N.D.N.Y. Apr. 28, 2020) ("[C]laims involving sexual orientation … are examples of matters that qualify as being highly sensitive and of a personal nature.").
The claims also implicate Doe's personal beliefs in a matter of great controversy, particularly his belief that academic honors such as law-review members be awarded based on merit without any regard to an applicant's race, sex, gender identity, or sexual orientation. Cf. Doe v. Porter, 370 F.3d 558, 560 (6th Cir. 2004) ("This suit … forces Plaintiffs to reveal their beliefs about a particularly sensitive topic that could subject them to considerable harassment."); Doe v. Stegall, 653 F.2d 180, 185–86 (5th Cir. 1981) (permitting plaintiffs to proceed pseudonymously because the lawsuit revealed their unpopular personal beliefs); Choice, Inc. of Tex. v. Graham, 226 F.R.D. 545, 548 (E.D. La. 2005) (granting plaintiffs' motion to proceed pseudonymously after finding that they "made revelations about their personal beliefs").
Most people at NYU and at NYU Law School do not share Doe's beliefs. And there is no question how the University—including its professors and administrators—will respond to the plaintiff's lawsuit.
The law school and the university have fully embraced the tenets of "anti-racism" that call for discrimination against white men such as Doe to achieve the university's goals of racial balancing and equity. In May, shortly before the Supreme Court's decision in Students for Fair Admission v. President and Fellows of Harvard College (2023), NYU's President issued a university-wide communiqué bemoaning the "shadow hanging over higher education" from that case. He pledged that whatever "this ruling may change, it will not alter NYU's" "core values" of "diversity and inclusion." On the day that the Court's decision dropped, the President sent another letter lamenting the "difficult day" that "[w]e" "see" "as a step backwards." He declared that: "At NYU, diversity is a core part of our identity," and defiantly announced that "we will not forsake [that] commitment."
The university even quoted a dissenting opinion complaining about "a superficial rule of color-evasiveness." A university website about the decision promotes statements from professors that are all opposed to colorblindness in higher education. And the theme of the materials on NYU's official "Anti-Racism Education Resource List" is that white students like the plaintiff are inherently oppressors who should be discriminated against in the name of equity. One of those resources boasts that most people "involved in antiracist endeavors generally assume that all whites have a racist perspective unless demonstrated otherwise." Filing a lawsuit to ensure equal educational opportunities regardless of race would solidify these people's assumptions about Doe.
In short, the beliefs that Doe seeks to advance in this lawsuit "constitute a 'modern day Scarlet Letter.'" They "involve timely 'hotbutton' issues that are frequently discussed and debated in many different settings across the country" and "implicate the highly sensitive and personal matters of racism[ and] sexism." Courts in similar cases have granted anonymity to individual Plaintiffs, reasoning that "it is abundantly evident that the[se] issues" "are a matter of highly charged political debate" and "[t]he extreme emotions on both sides of this debate make likely the risk of ridicule and mental or physical harm." See Menders v. Loudon County School Board (E.D. Va. 2021) (involving similar anti-racism concepts); see also Does 1– 2 v. Hochul (E.D.N.Y. 2022) (relying on "the unique sensitivities that exist within the current political climate and social context" in granting anonymity); Does 1 through 11 v. Board of Regents of University of Colorado (D. Colo. 2022) (because "neither the court nor the litigants undertake litigation in a vacuum," "the political climate and public attitudes concerning [the underlying issue] exist and must be considered by the court"); Publius v. Boyer-Vine (E.D. Cal. 2017) (granting anonymity and reasoning that "[a]s a matter of common sense and knowledge, political opinions, like religious beliefs, especially if they are controversial and in the minority, can certainly be a source of social ostracization").
[2.] This litigation also poses a risk of retaliation, which is exacerbated by the plaintiff's status as a student and the defendant's control over his education. The university environment is characterized by an "inherent power asymmetry between" the school and its students. Courts properly recognize the realities of this environment by granting anonymity in university-student cases in circumstances that, in other environments, may not warrant it. See Doe v. Colgate University (N.D.N.Y. 2016) (collecting cases); see also Doe v. New York University (S.D.N.Y. 2021) (granting anonymity because "revealing [the plaintiff's identity in a lawsuit pertaining to her violations of COVID-19 protocols could impede her progress" toward "her stated career goals").
Most obviously, Doe faces a risk of retaliation from the NYU Law Review, whose selection process presents ample opportunities for applicant names to be discovered as it requires personal statements, grades, and résumés. Even if the Law Review purports to anonymize documents, it would still be easy for someone to match a résumé with publicly available information about a student. So even if Doe were to obtain timely relief, he faces an obvious threat that the Law Review and its student leaders who adopted these discriminatory policies will blackball his future application. Cf. Dep't of Commerce v. New York (2019) (noting that courts are "not required to exhibit a naiveté from which ordinary citizens are free"). Maintaining anonymity is the only way to ensure Doe to have an honest opportunity to compete for law-review membership based on his own merit. In other words, absent anonymity, "the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity."
Doe also faces a risk of retaliation from law-school professors, staff, and his fellow students. As discussed, Doe faces a "community hostile to the viewpoint reflected in [his] complaint." Given the coercive environment of the university and the extreme, often violent protests directed at those with disfavored viewpoints on university campuses, Doe's lawsuit "invite[s] an opprobrium analogous to the infamy associated with criminal behavior." {E.g., Protesters Screaming 'Nazi' Shut Down Virginia Anti-Abortion Campus Lecture, Washington Examiner (violent protest at an anti-abortion event at Virginia Commonwealth University); College Free Speech Rankings, FIRE ("Administrators and student governments routinely punish dissenting students … and visiting campus speakers are shouted down, blocked from entering lecture halls, or disinvited from speaking."); Riley Gaines Assaulted by Trans Activists at San Francisco State University, Yahoo News (describing how protesters harassed and attacked a speaker on campus); Charlie Kirk Event at UC Davis Prompts Violent Protest, Foundation for Individual Rights & Expression (campus event "was met with violent protests at University of California, Davis, with some protesters shattering windows and breaking down the doors of the event venue"); I Was Literally Attacked for Holding A Conservative Political Event On My Campus, Washington Examiner (describing how protesters violently disrupted a speaking event and forced the speaker to leave campus under police protection).}
"We live in an era in which elected public officials are openly calling for harassment of persons with opposing views, and speakers on college campuses"—and law-school campuses—"are being threatened with violence by students and others who do not share their opinions." As Professor Volokh has explained, "many students … are finding themselves facing ideological discrimination based on their beliefs and statements" in law schools. "[T]hings in law school have been getting worse," as "they encourage people to try to build intellectual and emotional divides" and "encourage or tolerate [students] shouting down those" they disagree with. "[T]he cause of the problem" is "cultural both among students and among the administrators," and "there are lots of levers short of formal punishment that administrators have if they do want to suppress speech." The official "message to students" who ascribe to or even listen politely to dissenting views is that "they themselves are hateful people who may merit being shunned."
Many concrete examples show what follows from this pervasive university pressure: individuals being "condemned," "threatened," "doxed," "physically intimidated or assaulted," and investigated for "harassment" or "engaging in hateful behavior." These threats are exacerbated here because "local and national media outlets have reported concerning the relevant events and could publish [the plaintiff's] name[] in an update to their ongoing coverage." Doe #1; see, e.g., Conservative group sues NYU, claiming law journal student staffing discriminates against straight, white applicants, NBC News.
One specific potential method of retaliation is via NYU's Bias Response Line, which urges students to report their classmates for perceived "bias" incidents. Such reporting can lead to "formal investigation," referral, and "appropriate" "disciplinary action." NYU's "Non-Discrimination and Anti-Harassment Policy" for students contains a sweeping definition of "prohibited harassment," which includes "unwelcome verbal … conduct" that might "create[] an intimidating, hostile, or offensive academic" environment. Alleged violations of this policy are investigated by the Office of Equal Opportunity, with violators referred to the Dean for "sanctions." Even "incidents" that violate no policy can trigger "refer[ral] [of] the matter to the appropriate BRL partner or Global Inclusion Officer" and unspecified "mechanism[s]" for resolution. At schools with similar regimes, one of the issues involving "the largest numbers of reported complaints" has been "affirmative action." And courts have concluded that students reasonably fear enforcement of these open-ended bias response policies.
All of these threats of retaliation support anonymity here. See Doe v. Del Rio (S.D.N.Y. 2006) ("Where litigants risk public scorn or even retaliation if their identities are made public, unpopular but valid complaints may not be pursued."); Does 1–2 (relying on "chilling effect" and "potentially adverse implications for Plaintiffs' future employment"); see also EW v. New York Blood Center (E.D.N.Y. 2003) (granting anonymity without a "particularized showing of any specific harm or stigma to [the plaintiff] caused by prosecuting the case under her own name").
[3.] Next, this suit relates to the Defendant's receipt of government funds for use in higher education, so the university's status as a private party matters little. Generally, "the government is viewed as having a less significant interest in protecting its reputation from damaging allegations than the ordinary individual defendant." But "Defendant is not an ordinary private party, with interests relating solely to its personal life and business reputation—rather, [NYU] is organized solely to perform an important, public service," namely, "to be a top quality international center of scholarship, teaching and research." "Thus, this case is analogous to one involving a government defendant, where personal anonymity is more readily granted because of the existence of a public interest in the action and a lesser interest in personal reputation." Further, as noted, NYU proudly and publicly proclaims its desire to discriminate in favor of women and non-Asian racial minorities, so it can hardly claim that this suit causes it reputational damage.
[4.] NYU is not prejudiced by allowing the plaintiff to press his claims anonymously, especially at this early stage of litigation. This suit challenges the legality of a discriminatory law-review policy, and the identity of the plaintiff makes no difference to NYU's defense. The plaintiff's factual knowledge or credibility is not at issue. Instead, the issue is whether the law review is discriminating on the basis of race or sex, and NYU has no need to know the plaintiff's identity to address that question or defend itself in this litigation. See Yacovelli v. Moeser (M.D.N.C. 2004); Board of Regents of University of Colorado ("the identity of each of the Plaintiffs is of little-to-no value to the underlying allegations of the complaint").
That is especially true at this "early stage in litigation." Should some situation arise later that would require reconsideration of the plaintiff's anonymity, the parties can address the issue at that time, but there is no reason now to force the plaintiff to reveal his identity now.
[5.] The public has only a weak interest in the plaintiff's identity because of the nature of the claims. The plaintiff's identity matters little to these claims, as they relate entirely to the law review's generally applicable practices. This lawsuit "seeks to raise an abstract question of law" that plausibly "affects many similarly situated individuals." Because "the public will know that a group of people in the [p]laintiffs' position were" allegedly discriminated against "and are seeking to vindicate what they believe to be their constitutional rights," there is a "uniquely weak public interest in knowing the litigants' identities." Does 1–2 (summarizing and quoting Board of Regents of University of Colorado); see Doe v. Cuomo (N.D.N.Y. 2013) (similar, and collecting cases); Free Speech v. Reno (S.D.N.Y. 1999) ("[B]ecause the particular plaintiffs in this … challenge are essentially interchangeable with similarly situated persons, there appears little public interest in which particular persons have actually sued.").
[6.] Last, the plaintiff's identity has thus far been kept confidential, and there are no alternative mechanisms for protecting his confidentiality. The plaintiff's identity is not known to either NYU or the public, and "[t]here are no other mechanisms currently in place to protect [the plaintiff's] identit[y] if [he] cannot proceed with this litigation anonymously."
In sum, "in comparison to the [P]laintiff's interest in h[is] privacy, the First Amendment interest in access to the [P]laintiff's name in the course of these proceedings appears to be primarily theoretical" at this juncture.
My tentative view, which I also passed along in the original post: Plaintiff is understandably 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, where many plaintiffs reasonably fear being identified as litigious employees—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 an 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).
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 the motion plausibly argues that this reasoning can be adapted to what seems to be a facial challenge to the NYU Law Review's policy. Again, it's not clear whether the judge here accepted all these rationales, just some of them, or yet another rationale that he himself came up with.
Note that it does seem likely that at some point Doe will have to disclose his identity to someone on NYU's side. Even in a purely legal challenge, there may be collateral questions related, for instance, to the plaintiff's standing, that would require the defendant to know plaintiff's identity. But such a disclosure might be done on an attorneys'-eyes-only basis—or (perhaps more likely) subject to a protective order that would let some NYU administrators know defendant's identity but bar broader disclosure, for instance disclosure to the NYU Law Review editors, other students, and professors. (The NYU Law Review, unlike some other journals, doesn't have an independent legal structure, so it's NYU that is being sued and that is having to defend the case.)
There are often difficult questions about when a party's identity can be concealed from the public at large (the subject on which my pseudonymity posts have focused). The plaintiff's identity can only very rarely be concealed even from the defendant's lawyers.
