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No Pseudonymity in Title IX Wrongful-Discipline Lawsuits, Holds Seventh Circuit

The decision departs from what most courts have done in such Title IX cases—but tracks what most courts do in the many other cases where disclosing a plaintiff’s name might damage the plaintiff’s reputation and professional prospects.


From Friday's Seventh Circuit opinion in Doe v. Trustees of Ind. Univ., written by Judge Frank Easterbrook and joined by Judge Kenneth Ripple and Diane Wood:

While John Doe was a medical student at Indiana University–Purdue University Indianapolis, he had a romantic relationship with Jane Roe, a fellow student, who accused him of physical abuse. The University's Office of Student Conduct investigated and found Doe culpable. It suspended Doe for one year and imposed conditions on his return to school. The medical school's Student Promotions Committee recommended that Doe be expelled. Dean Jay Hess of the medical school rejected the Committee's recommendation. So, as of March 2020, Doe was under suspension with a right to return in a year, after satisfying the conditions.

Doe then applied to the University's MBA program at the Kelley School of Business. His application disclosed his suspension but described the Dean's decision as an exoneration. This led to investigation by the University's Prior Misconduct Review Committee, which told Dean Hess that Doe had "withheld pertinent information and gave false or incomplete information" to the business school. Dean Hess concluded, without inviting further response from Doe, that he is unfit to practice medicine and expelled him from the medical school, effective June 16, 2020.

That decision led to this litigation, in which Doe accuses the University of violating both the Due Process Clause of the Constitution's Fourteenth Amendment and Title IX of the Education Amendments Act of 1972, 20 U.S.C. §§ 1681–88….

Substantive details omitted (see here for more), but here's the pseudonymity analysis:

The norm in federal litigation is that all parties' names are public. Judicial proceedings are open to the public, which has an interest in knowing the who and the how about the behavior of both judges and those who call on the large subsidy of the legal system.

One justification for anonymity is youth. Fed. R. Civ. P. 5.2(a)(3) requires the use of initials rather than names for minors. Otherwise "the complaint must name all the parties." Doe is well into his adult years (recall that the events in question occurred while he was a medical student). A substantial risk of harm—either physical harm or retaliation by third parties, beyond the reaction legitimately attached to the truth of events as determined in court—may justify anonymity…. But "we have refused to allow plaintiffs to proceed anonymously merely to avoid embarrassment." Doe does not contend that he is at risk of physical harm; his asserted interest lies in protecting his reputation—even though the University found that Doe committed physical violence against Roe.

Consider what happens if someone is charged with crime, as Doe could have been charged with assault and battery. Proceedings before a grand jury are secret, but every indicted defendant's name is open to the public, despite the reputational harm to a person who is presumed innocent. Someone charged with a felony may be shunned or encounter trouble finding a job, but a court would not call that "retaliation" that justifies anonymity. Knowing that a potential student or employee has been charged with a crime legitimately justifies steps for self-protection.

Or suppose Roe had sued Doe for the tort of battery. Again his name would have been on the public record. Doe's own suit illustrates how litigation can harm reputations. In addition to the institutional defendants, the complaint names three natural persons, including Dean Hess. Doe wants to protect his own reputation but did not hesitate to expose Dean Hess to the reputational injury that would follow from a judicial conclusion that he violated Title IX or the Constitution.

Why should a plaintiff be able to shield himself from public knowledge of his acts when throwing a harsh light on identified defendants? If there should be a difference, it ought to run the other way—as plaintiffs enjoy an absolute privilege against claims of defamation for what they say in their complaints and briefs. Why should plaintiffs be free to inflict reputational harm while sheltering themselves from loss if it turns out that their charges are unfounded? Especially not when the defendants believe that the pseudonymous plaintiff already has used secrecy to attempt to deceive another entity (the Kelley School) about what happened. (We do not say that Dean Hess was right about this; the possibility of error is why the Constitution requires some kind of hearing.)

Our decisions, like those in other circuits, have afforded district judges discretion to permit pseudonymous litigation when the balance of harms justifies it. In this case a magistrate judge permitted Doe to keep his name out of the public eye even before the defendants had an opportunity to take a position. The magistrate judge's brief opinion mentions a multifactor approach drawn from opinions of a few district judges, an approach that has not been adopted by this circuit.

For example, the first factor was whether the defendant is an educational institution. We don't see how this consideration is pertinent. Suits by or against educational institutions are litigated in the public view all the time. The magistrate judge also wrote that disclosure would reveal "information of the utmost intimacy," which is an odd way to describe the University's finding that Doe engaged in assault and battery. This suit is not about what happened during sexual relations. It presents a claim of sex discrimination, certainly, but the defendants rather than Doe are the accused discriminators. Federal courts adjudicate thousands of sex-discrimination suits annually without concealing the plaintiffs' names.

The magistrate judge found that Doe faces a risk of "stigmatization from the community and the public at large," yet this circuit has held that embarrassment does not justify anonymity. The magistrate judge did not find that Doe faces a risk of physical harm or retaliation (and could not properly have done so without an evidentiary hearing). For his part, the district judge said only what we have already quoted: that pseudonyms enable anonymity. That will not do. "It is important that a reviewing court be confident that the [district] court actually engaged in the careful and demanding balancing of interests required in making this determination." That cannot be said of the events in this case.

At oral argument we directed the parties to file supplemental briefs addressing the propriety of anonymity. Defendants contended Doe's name must be revealed. Doe, unsurprisingly, took the contrary position. His submission tells us that plaintiffs in Title IX suits regularly are allowed to conceal their identities. But the assertion "this is how things have been done" is not a justification for doing them that way. It says more about the litigation tactics used by plaintiffs' lawyers (such as inducing a magistrate judge to make a decision before defendants even have time to reply) than about legal entitlements….

Neither Doe nor the district court relied on 20 U.S.C. § 1232g(b), which restricts institutions that receive federal funds from releasing educational records under certain circumstances. (Doe mentions § 1232g but does not develop an argument.) The statute does not apply directly; after all, Doe is not an educational institution and is free to disclose his own records. We need not and do not consider when, if ever, this statute may limit public access to students' identities—for example, whether it offers nonparties such as Roe greater protection than what is available to someone such as Doe who sets litigation in motion.

The district judge abused his discretion when permitting "John Doe" to conceal his name without finding that he is a minor, is at risk of physical harm, or faces improper retaliation (that is, private responses unjustified by the facts as determined in court). Title IX litigation is not an exception to the norm that adult litigants are identified by name.

But it does not follow that we should immediately put the real name in the public record. The magistrate judge's ex parte order allowed Doe to prosecute this suit in secret. Now that we have found the assurance to be an abuse of discretion, Doe is entitled to an opportunity to dismiss the suit under Fed. R. Civ. P. 41(a)(2)…. Plaintiff may choose to withdraw the suit and keep his name secret, just as he could have withdrawn the suit had the magistrate judge ruled against him.

The judgment is vacated and the case remanded to the district court. If Doe elects to continue with the suit, his true name must be disclosed to the public, and the district court must decide what remedy is appropriate for Dean Hess's failure to allow Doe an opportunity to present his position before expelling him. If Doe elects not to reveal his name, the complaint must be dismissed….

For more on the question, and citations to cases that have held both ways on the subject, see The Law of Pseudonymous Litigation.