No Pseudonymity for Plaintiff Challenging Suspension Under Title IX

So holds the Eleventh Circuit, upholding the district court's decision—but the court's standard of review suggests that the exact oppose district court decision might have been upheld, too.

Yesterday's Eleventh Circuit decision in Doe v. Florida Gulf Coast Univ. Bd. of Trustees (by Eleventh Circuit Judges Robert Luck, Andrew Brasher, and Nancy Abudu) involved a plaintiff who was suing under Title IX, challenging the University's decision to suspend him for allegedly having sex with his ex-girlfriend "when she was too intoxicated to consent." Plaintiff sought to proceed under a pseudonym—quite routine in such cases. But the district court said no, and the Eleventh Circuit held that the district court's decision wasn't an abuse of discretion:

We have laid out several considerations relevant to determining whether a district court should allow a litigant to proceed anonymously[:] … "whether the party seeking anonymity (1) is challenging government activity; (2) would be compelled, absent anonymity, to disclose information of utmost intimacy; or (3) would be compelled, absent anonymity, to admit an intent to engage in illegal conduct and thus risk criminal prosecution." "The 'information of utmost intimacy' standard" generally relates to topics like "abortion" as well as "prayer and personal religious beliefs." "On the other hand, courts have often denied the protection of anonymity in cases where plaintiffs allege sexual assault, even when revealing the plaintiff's identity may cause her to 'suffer some personal embarrassment.'" … We have [also] considered, for example, [4] whether "the party seeking anonymity is a minor," [5] whether the person "faces a real threat of physical harm absent anonymity," and [6] whether the movant would face "social stigma" if forced to proceed under the movant's true name.

The appellate court held that the district court didn't abuse its discretion as to the utmost intimacy and stigma factors:

As to Doe and Roe's sexual history, and any accompanying information related to Roe's potential infection, we have recognized that "courts have often denied the protection of anonymity in cases where plaintiffs allege sexual assault, even when revealing the plaintiff's identity may cause her to 'suffer some personal embarrassment.'" And here, Doe contends that his complaint and supporting materials reveal—at most, in his view—consensual encounters, so the district court did not make a clear error in judgment when finding this information did not warrant granting the motion.

We also can't say that the district court abused its discretion in determining that the information about Roe did not compel granting anonymity. [This seems to refer to her "potential [sexually transmitted] infection, mental health and medication … [and] alcohol and drug use." -EV] The information related to her is similar to the information Doe relies on as to himself, which we've already determined did not require granting the motion. And we've never held that medical information alone establishes grounds for anonymity…. "[T]he fact that a case involves a medical issue is not a sufficient reason for allowing the use of a fictitious name, even though many people are understandably secretive about their medical problems." …

Next, to the extent Doe argues that information about his alcohol and drug use is of the utmost intimacy, that position finds no support in our precedent, and this information isn't anything like what we have previously held falls into this category.

Doe also hasn't demonstrated the district court abused its discretion when it found that any alleged social stigma Doe will face didn't outweigh the presumption that his proceeding should be a public one. Put simply, he does not cite any evidence of these harms, and instead only asserts in briefing that they are "near[ly] certain[ ]" to occur.

And the court likewise held the district court didn't abuse its discretion as to factors 1, 3, and 4:

[T]he district court did not abuse its discretion in concluding that, even though Doe's lawsuit was against a public entity (the University), this did not necessarily weigh in favor of anonymity….

We also see no error in how the district court addressed Doe's concerns over an alleged fear of prosecution …. The district court found that any statute of limitations related to Doe's drug and alcohol use had already run by the time of its order, and Doe doesn't challenge that determination…. And as it relates to his sexual harassment determination, Doe's lawsuit will not force him to admit an intent to engage in illegal conduct. To the contrary, Doe alleges that the University reached the wrong result because it violated his constitutional rights and refused to follow its established procedures for handling sexual harassment allegations.

Doe tries to rely on his "age and status" as a college student to support his argument that his motion should have been granted. Our precedent has considered "whether the plaintiffs were minors." But Doe is not a minor, and he wasn't a minor at any time relevant to this lawsuit. So this, like Doe's other arguments, does not demonstrate the district court abused its discretion. We are satisfied that the district court adequately considered the totality of the circumstances and made a determination well within the zone of choices available to it.

Doe ends by cautioning that affirming the district court would "likely result in no Title IX litigant being able to proceed anonymously," citing a case from the First Circuit he believes supports reversal here. But we agree with the First Circuit "that the confidentiality of a Title IX disciplinary proceeding may sometimes—but not always—furnish grounds for finding an exceptional case warranting pseudonymity." As shown here, the district courts in our circuit are more than capable of balancing plaintiffs' privacy interests against the constitutional right to access judicial proceedings and exercising their broad discretion to grant anonymity in appropriate cases.

So here's the problem, as I see it: Because the Eleventh Circuit reviewed the district court's decision for "abuse of discretion," and held only that "Doe … hasn't demonstrated the district court abused its discretion," this gives virtually no guidance on how district courts actually should exercise their discretion. A court could have reached the opposite result on the same facts, and it too likely wouldn't have been seen as abusing its discretion. (This might be why the Eleventh Circuit released this case as a nonbinding memorandum, rather than a binding precedent—it actually decides very little that could be binding on future district courts.)

Indeed, the great majority of courts considering such Title IX wrongful discipline cases have allowed pseudonymity (see pp. 1441-48 of The Law of Pseudonymous Litigation), often on facts very close to these. Among district courts in the Eleventh Circuit, the split in the cases I found in my 2022 research was 3 to 3. So it just looks like the plaintiff had the bad luck to come before a public-access-friendly judge rather than a privacy-friendly judge. I'm not sure what the right rule is in cases such as this; but luck of the draw seems like a poor solution.

Sacha Dyson and Kevin M. Sullivan (Bush Graziano Rice & Hearing) represent the university.