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.

Comments

[Rigelsen]

Evil, or just extremely callous?

“Your life is only mostly destroyed. We demand you destroy it further before you may obtain any modicum of justice.”

[Krayt]

Constructing powers they don't have, from other powers, which they aren't supposed to do. In this case, tax away a lot, hand it back with strings attached, demand civil behaviors among students, with punishments that would be considered massive fines as criminal punishment. Difficulties in finding a job as a non-criminal but declared rapist, lifetime loss of earnings from better jobs because of that, and having to go to a lesser school.

"Focus on the victim!" sayeth the lawyers, who may funnel massive amounts into their pockets from auxillary lawsuits. "Ignore violating the spirit of the Constitution, and maybe the law. Funnel me baybee!"

[Eugene Volokh]

Or maybe, "If you want to use the coercive power of the public court system, you need to recognize that the facts of the case will be open to the public"?

To be sure, maybe on balance the interests in transparency should be outweighed by the interests in privacy -- or maybe not. But my point is that different people can reach different decisions about how to balance such concerns without being either "evil" or "extremely callous."

[NvEric]

The initial offending behavior was off campus and is therefore irrelevant and immaterial to the workings of Indiana University.

Seems the University had no business officially investigating, however, they could have provided both parties to lectures on interpersonal relationships and the effect those relationships can and do have on both themselves and to those around them in the present and the future.

If the abuse of one student onto another student is a concern, then local police should be contacted, not the University.

Currently, Hess's later action was normal but callous - get rid of a problem - however, we see that even his decision has consequences. Doe must proceed with his real name if he so chooses to continue or suck it up and move on.

Wrong decisions prevail in this case from the start. The University acted wrongly by its course of action. Police action was called for if seriousness of a crime occurred, otherwise, no official acts by the University were valid.

Many situations can be resolved by 'judicious contemplation' by the parties of conflict. Judicious contemplation was employed long ago, the 1600s, where one was shown the progression for a continuation of wrong doing.

[David Welker]

To the extent that denying pseudonymity causes people to abandon lawsuits, that is a very bad result. Yet the decision suggests a quid pro quo; the plaintiff may now protect his anonymity by abandoning the litigation. This is an awful quid pro quo that suggests that reputation harm due to uninformed prejudice should be a legitimate factor in deciding whether to litigate.

Why do I say uninformed prejudice? Because a person who makes a judgment about another based merely on the existence of a lawsuit involving a person or unverified allegations in court papers without fully understanding the situation themselves is not engaged in making a thoughtful judgment, but is instead basing their decision on prejudice.

And there is a problem with that, because prejudice might be economically rational. Take the instance of an employee who sues their employer who has broken the law, or a renter who sues a landlord.

It might be economically rational to discriminate against such people. First, because they are more likely to be the kind of person that stands up for their legal rights. Second, because they are more likely to be the kind of person who turns to the legal system to abuse others with frivolous allegations.

Note, that we NEED the first type of person for society to function properly. If we lived in a society in which people were not willing to enforce their rights, those rights would be mere paper promises. As for the second type of person, their existence is regrettable, but the solution to such people is not creating informal reputational damage that hits those who make legitimate and illegitimate accusations alike, but to try to sanction them in the litigation itself or to dismiss their lawsuits early or to label them vexatious litigants within the system itself. We already have mechanisms within the legal system for dealing with frivolous claims. Prejudice from the general public is no substitute for those mechanisms.

The more I see the quid pro quo being suggested here. “Abandon the litigation whether you are right or wrong to avoid unthoughtful prejudice from the public” the more I disagree with the view that pseudonymity ought to be disfavored. The courts ought to be seen as a safe place to adjudicate a person’s rights, not an abyss where one is made to fear a scarlet letter regardless of the merits of their claim.

Ultimately, this is a problem with the internet age. In the past, it would be expensive and impractical to determine whether a person you were dealing with has ever been involved in litigation. Now, it is all too easy. But the problem is, while mere involvement in the legal system might be an economically rational basis for discrimination, actual knowledge of underlying circumstances is necessary to make a fair choice.

[ReaderY]

While not exactly the facts of this case, I think in general the courts, not to mention the schools, have just gone too far and created a body of very bad law by turning a law against sex employer and school sex discrimination into rules requiring employers and schools to police individual employee and student personal relationships.

Every time a personal relationship goes bad and one or more of the parties feels bad about having entered imto it and feels, after the fact, that they didn’t want and couldn’t have really wanted to from the beginning, as so often seems to be the case among the bad feelings that can happen when these things end, it becomes a high-stakes federal case. This isn’t justice. This has nothing to do with sex discrimination on the employers’ or schools’ part. This just shouldn’t be.

The courts need to clarify the law and cabin its abuse.