No Pseudonymity for Plaintiff Claiming Bar Exam "Has a Disparate Impact on African Americans"

From Thursday's decision by Magistrate Judge Elizabeth Preston Deavers in Doe v. Ohio Supreme Court:

Plaintiff alleges that the Universal Bar Examination score required by Defendant Ohio Board of Bar Examiners has a disparate impact on African Americans; Defendants'  conduct exhibits a pattern, or practice of intentional discrimination, or a deliberate indifference to the rights of African American Bar Candidates as well as unequal treatment"; Defendant Supreme Court of Ohio's licensing standards for attorneys are not equally applied; Defendants' scoring of Plaintiff's three bar exams was racially discriminatory; Defendant Supreme Court of Ohio's adoption of "Rule I Section 1(E) of the Supreme Court Rules for the Government of the Bar of Ohio" violates the Fourteenth Amendment; Defendant Supreme Court of Ohio permitted "its employees to participate in a pattern, or practice of intentional discrimination, or allowed its employees" to violate the Fourteenth Amendment and federal and state laws; and Defendants behavior regarding Rule I Section 1(E) negligently caused Plaintiff emotional distress….

Plaintiff argues [in support of her request to proceed pseudonymously] that her "suit challenge [sic] governmental activity, [her] claim involves sensitive topics including Bar licensing failures, racial discrimination and Civil Rights violations, and an affirmative ruling does not force the Defendants to proceed with insufficient information to present their arguments against Plaintiff's claim." Plaintiff further asserts that public announcement of her multiple unsuccessful attempts to pass the bar exam "may place Plaintiff at risk of failing to obtain future employment, and it may affect Plaintiff's ability to attract future clients …."

Plaintiff provides nothing more than conclusory statements about her generalized fears of embarrassment, inconvenience, unfairness, humiliation, and failing to obtain employment and attract clients. As Defendants note, "[u]nsubstantiated fears of speculative harm are insufficient to outweigh the presumption of open judicial proceedings." … The Court also notes Plaintiff's failure to cite a single case wherein a litigant was permitted to proceed anonymously under similar circumstances and her failure to distinguish her situation from the multitude of similar cases in which current and former law students litigate under their own names….

Comments

[Michael Ejercito]

Is the plaintiff claiming only disparate impact?

[Brett Bellmore]

If that's it, the court should dismiss for lack of any claim. Disparate impact, by itself, is legally meaningless.

[David Nieporent]

Disparate impact, by itself, is legally meaningless.

As is so often the case, you are incorrect. (However, I don't think her theory works in this particular situation.)

[LexAquilia]

I love disparate impact theory.

Watch:

1.) "Plaintiff alleges that the curriculum imposed by Defendant Public School District have a disparate impact on all students, contributing to plummeting education rates across the board; Defendants' conduct exhibits a pattern or practice of intentional discrimination, or a deliberate indifference to the rights of all students, as well as unequal treatment."

2.) "Plaintiff alleges that the mandates, subsidies, and regulatory requirements imposed by Defendant Affordable Care Act (Obamacare) and its architects have a disparate impact on all Americans, contributing to skyrocketing health insurance premiums across the board; Defendants' conduct exhibits a pattern or practice of intentional discrimination, or a deliberate indifference to the rights of all consumers, as well as unequal treatment."

3.) "Plaintiff alleges that the curriculum, policies, and programs regarding diversity, equity, inclusion, and gender/sexuality education imposed by Defendant Public School District have a disparate impact on all school children, contributing to skyrocketing rates of LGBT identification among students; Defendants' conduct exhibits a pattern or practice of intentional discrimination, or a deliberate indifference to the rights of all students, as well as unequal treatment."

4.) "Plaintiff alleges that the public health policies, dietary guidelines, drug regulation frameworks, and funding priorities imposed by Defendants Centers for Disease Control and Prevention (CDC) and Department of Health and Human Services (HHS) have a disparate impact on all Americans, contributing to multiple current health crises including the obesity epidemic, youth mental health crisis, opioid overdose epidemic, and rising rates of chronic diseases such as diabetes and heart disease; Defendants' conduct exhibits a pattern or practice of intentional discrimination, or a deliberate indifference to the rights of all Americans, as well as unequal treatment."

The only difference? The racial discrimination one is a lie. The rest I've outlined are actually true and point to intentional acts taken by public servants to harm citizens for evil, subversive goals.

[David Nieporent]

Pro tip: "A disparate impact on all Americans" is gibberish. HTH.

[Brett Bellmore]

All it would really require is that it have an impact on all Americans, and that impact be different for different Americans.

[Stupid Government Tricks]

That's too complicated an answer for David Nieporent. He likes the simple ones.

[Stupid Government Tricks]

That's too simple an answer. You like the complicated ones.

[emanate in my penumbra]

its not, and there is nothing in title vii or the CRA of 1991 that would preclude such a theory

[Michael P]

It is gibberish. Disparate impact means the impact is different for some people (or person) than others. Civil rights laws are normally only relevant when the impact is disparate based on some protected class(es). It's not even meaningful English to say "disparate impact on all Americans", much less legally meaningful.

[emanate in my penumbra]

Ah, i skimmed the comment and thought it was arguing that there could be disparate impact suits based on. a DI on american nationals, citizens (as compared to foreign nationals etc). That would be cognizable.

What you described ofc is not I agree

[TextFirst]

First full paragraph of page 5 leaves us hanging, "Instead plaintiff spends" what? In any event, the bar exam is easy. It's not really a good simulation of practicing the law, but I wouldn't trust somebody who can't hack it with anything important. I do understand how flukes happen and an otherwise competent person could fail it once. Maybe-- maybe-- even twice. But three times, as this plaintiff did? It sounds like the bar exam is doing its job, protecting the public from hiring somebody who is flat out not capable of legal reasoning. If this person is a graduate of an accredited law school, then that accreditation needs to be looked at.

[David Nieporent]

By the way, she's proceeding pro se here.

[not guilty]

Is anyone surprised?

[emanate in my penumbra]

Disparate impact amounts to a veto on all functioning institutions, it is a drag on a productive first world country.

In light of the diversity-validity dilemma (the finding in industrial organizational psychology that there is an inverse relationship btwn the validity of job-selection devices and the NAM diversity they yield) virtually every minimally validated exam should meet the disparate impact standard. But some judges will fault tests for minor things that have no direct bearing on validity.

Disparate impact violates the equal protection clause and it is incompatible with having a first world country that achieves continued technological progress. Basta.

[Brett Bellmore]

Disparate impact is an attempt to force the use of quotas by rendering any failure to achieve quotas presumptive evidence of illegal discrimination, where rebutting the presumption, even if possible, is too expensive to risk.

[emanate in my penumbra]

yup

[TextFirst]

You can't have quotas, quotas are illegal. But if you don't meet your quotas, you're civilly liable.

[emanate in my penumbra]

*meet the business necessity standard