The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Black Student Expelled for Sexual Assault of White Classmate Seeks Pseudonymity Partly Because "Interracial Sexual Relationships …
between White women and Black men are the subject of heightened prejudice and violent responses that create a tangible risk of retaliation and animus against him."
No, says the Seventh Circuit, in yesterday's Doe v. Young, decided by Judges Michael Brennan, Amy St. Eve, and Nancy Maldonado:
After the University of Illinois investigated and dismissed him for sexually assaulting another student [Jane Roe], John Doe sued, arguing that the University's investigation was discriminatory and violated his right to due process…. The University … charged [Doe] with sexual assault, as well as drug manufacturing, sale, and distribution. Both Doe and Roe reportedly ingested "molly" (a synthetic drug) prior to the events at issue….
Doe alleged that the University—throughout its investigation—subjected him to race, gender, and disability-based discrimination, and failed to provide sufficient due process. He further alleged that his dismissal from the University was a breach of contract….
[T]he [district] court reviewed {two recent decisions from this court addressing the use of pseudonyms by litigants in Title IX student litigation[,] Doe v. Trs. of Ind. Univ (7th Cir. 2024) and Doe v. Loyola Univ. Chi. (7th Cir. 2024)} …. The court rejected Doe's suggestion that his alleged disabilities (a visual impairment and learning disability) justified proceeding anonymously or that the allegations against him in this case would subject him to acts of violence and harassment….
District judges have the discretion to permit pseudonymous litigation when the balance of harms justifies it. Anonymity can be justified by a minor's status, a substantial risk of harm, or improper retaliation from a third party. However, plaintiffs may not proceed anonymously merely to avoid reputational damage or embarrassment. And while anonymity has been common in Title IX litigation, these cases are "not an exception to the norm that adult litigants are identified by name." We uphold a district court's anonymity decision so long as the correct legal standard was applied, and the decision was based on facts supported by the record….
[Doe] argues, first, that the court ignored the risk of substantial harm he faces if he cannot proceed anonymously. He elaborates that interracial sexual relationships between White women and Black men are the subject of heightened prejudice and violent responses that create a tangible risk of retaliation and animus against him. In support, he cites the dissenting opinion from Thomas v. Lumpkin (2022) (Sotomayor J., dissenting from the denial of certiorari), which discusses the history of racism and prejudice evoked by interracial intimacy between Black men and White women.
But Doe does little to connect his current circumstances to the historic injustices addressed in the Thomas dissent—a nonbinding opinion in an entirely different context. Nor does he explain how national statistics of on-campus violence show that he, specifically, faces a substantial risk of harm from retaliation.
We have recognized that anonymity can be justified by a substantial risk of retaliation beyond the reaction legitimately attached to the facts—such as animus toward certain religious groups. Doe v. Elmbrook Sch. Dist. (7th Cir. 2011). But to support a retaliation justification Doe needed to present specific facts showing that he is a potential subject of the racial animus he describes.
For example, the plaintiffs in Elmbrook pointed to more than religious animus on a national scale—they submitted sworn affidavits showing that they had previously suffered reprisals for airing their views on religion, supported by posts from online forums that included anonymous direct threats to their safety. While we credit the history of racial violence and prejudice that Doe describes, the existence of this racial animus alone—without facts particularizing a threat to Doe—is not enough to show that Doe faces a tangible risk of retaliation.
Doe next points to other potential harms—namely loss of job prospects, reputational harm and loss of privacy—that, he thinks, justify the use of a pseudonym. But in Doe v. Trustees of Indiana University, a similar case where the plaintiff sued his university for sex discrimination during its investigation of his alleged sexual assault of another student, we held that fear of stigmatization and a desire not to reveal intimate details were not enough to justify anonymity for the plaintiff.
Plaintiffs suing in this context are not "free to inflict reputational harm while sheltering themselves from loss." And anonymity is not justified simply because Doe prefers to keep the public from learning that the University found that he committed misconduct.
Lastly, Doe relies on an out-of-circuit and a district court decision to advocate for a multifactor approach for anonymity decisions. See, e.g., James v. Jacobson (4th Cir. 1993) (highlighting factors relevant to anonymity decisions, including whether the matter is of a sensitive and highly personal nature); Doe v. Trs. of Ind. Univ. (S.D. Ind. 2022) (recognizing similar multifactor approach). But we have already rejected this approach and held that many of the factors are irrelevant to the determination whether anonymity is appropriate….
The Seventh Circuit has indeed become a dissenter from the general (though not uniform) trend of district courts allowing pseudonymity to plaintiffs challenging Title IX discipline (see pp. 1441-48 of The Law of Pseudonymous Litigation). It has also seemingly adopted a more generally skeptical approach to pseudonymous litigation, which would extend outside Title IX cases as well; and this is just one facet of how badly split lower courts are on when litigants should be allowed to proceed pseudonymity.
