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More from the Seventh Circuit on Pseudonymity in Title IX Wrongful Discipline Lawsuits


From Judge Frank Easterbrook's opinion Friday in Doe v. Loyola Univ. Chicago, joined by Judges Ilana Rovner and Amy St. Eve, following up on an opinion from a week before in Doe v. Indiana Univ.:

Loyola University Chicago expelled John Doe after concluding that he had engaged in sexual activity with Jane Roe, a fellow student, without her properly obtained consent. Contending that the University discriminates against men, Doe sued under Title IX of the Education Amendments Act of 1972, 20 U.S.C. §§ 1681–88, plus Illinois contract law….

[1.] [A]lthough anonymity may be common in Title IX suits, it must be justified in each case. "Title IX [does not create an] easement across the norm of using litigants' names." Doe v. Indiana University (7th Cir. 2024). Complaints normally must name all parties. Fed. R. Civ. P. 10(a). Exceptions such as the use of initials for minors, Fed. R. Civ. P. 5.2(a)(3), may apply to some first-year college students, but Doe was an adult when he filed this suit. "[J]udicial proceedings, civil as well as criminal, are to be conducted in public." "Identifying the parties to the proceeding is an important dimension of publicness. The people have a right to know who is using their courts." "Secrecy makes it difficult for the public (including the bar) to understand the grounds and motivations of a decision, why the case was brought (and fought), and what exactly was at stake in it." … [O]nly "exceptional circumstances" justify the use of a fictitious name for an adult ….

Educational institutions that receive federal funds must not disclose students' records except under specified circumstances. 20 U.S.C. § 1232g(b). But this statute does not apply to plaintiff, who is not an educational institution and may disclose his own records. More: a federal regulation, 34 C.F.R. § 99.31(a)(9)(iii)(B), authorizes educational institutions to disclose student records in the course of litigation once a student sues the educational institution.

[2.] [A]lthough plaintiff understandably prefers to keep the public from learning that Loyola has found that he committed misconduct, we have held that a desire to keep embarrassing information secret does not justify anonymity.

Doe's supplemental memorandum contends that disclosure may lead to "retaliation" against him, but all he seems to mean by this is that many people prefer to avoid dealing with wrongdoers. We observed in Indiana University that the sort of retaliation that might warrant secrecy is a kind that is unjustified by the facts—such as animus toward people with unpopular religious beliefs.

Although we recognize that no one wants a college's finding of misconduct broadcast in the pages of the Federal Reporter, a desire to keep bad news confidential, if adequate to justify secrecy, would lead to a norm of anonymity across swaths of civil and criminal litigation. Take a worker who files an age-discrimination suit, only to be met by the response that he had been fired as incompetent. Or consider a criminal defendant charged with crossing state lines to have a sexual encounter with a teenager. If those charges and defenses are made in public, why should college students enjoy a privilege to keep misdeeds secret?

[3.] [T]he district judge [was] concern[ed] that identifying Doe would enable some people to infer Roe's identity. Loyola's supplemental memo contends that it is "unlikely that there are observers of this case who know enough about [Doe's] past romantic relationships and disciplinary history to discover the identity of the nonparties involved simply from having [Doe's] name made public." There is another possibility: that everyone who could put two and two together already has done so. The people who might be able to identify Roe after learning Doe's identity are those who knew they had been dating before Doe's expulsion. These people also likely learned about the expulsion. If they did not put two and two together then, why would they do so now?

Still, maybe there is a reason why the litigation could provide that information, even when the expulsion did not. An evidentiary hearing could explore the subject, perhaps with input from Roe about the possible effect of disclosing Doe's identity; a court of appeals is not the right forum for factual findings.

Then there is the question whether Roe has a legal entitlement to concealment. Courts often extend the protection of anonymity to victims of sex crimes, and perhaps that is the best analogy for Roe. There is also a question whether 20 U.S.C. § 1232g(b) offers some protection to Roe. This issue was flagged but not resolved in Indiana University. We do not resolve it here either. We lack the benefit of an adversarial exchange in either the briefs or the post-argument memos and think it best to postpone decision until the issue has been joined.

[4.] Indiana University remanded to the district court so that the plaintiff could decide whether to dismiss the suit rather than reveal his name. That course is appropriate here as well. If Doe wants to continue the suit—and if it is not moot—then the district judge must decide whether Roe is entitled to anonymity and, if she is, whether putting Doe's name in the public record would be equivalent to revealing Roe's identity as well. If after the proceedings on remand a live controversy remains, any appeal will return to this panel, with new briefs limited to newly arising issues.