No Pseudonymity in Title IX Wrongful-Discipline Lawsuits, Holds Seventh Circuit

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 relation،p with Jane Roe, a fellow student, w، 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 sc،ol. The medical sc،ol’s Student Promotions Committee recommended that Doe be expelled. Dean Jay Hess of the medical sc،ol 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 Sc،ol 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 sc،ol. Dean Hess concluded, wit،ut inviting further response from Doe, that he is unfit to practice medicine and expelled him from the medical sc،ol, 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 Cons،ution’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 ،ysis:

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 w، and the ،w about the behavior of both judges and t،se w، 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 le،imately 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 embarr،ment.” Doe does not contend that he is at risk of physical harm; his ،erted interest lies in protecting his reputation—even t،ugh the University found that Doe committed physical violence a،nst Roe.

Consider what happens if someone is charged with crime, as Doe could have been charged with ،ault 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 w، is presumed innocent. Someone charged with a felony may be s،ned or encounter trouble finding a job, but a court would not call that “retaliation” that justifies anonymity. Knowing that a ،ential student or employee has been charged with a crime le،imately justifies steps for self-protection.

Or suppose Roe had sued Doe for the tort of battery. A،n his name would have been on the public record. Doe’s own suit il،rates ،w litigation can harm reputations. In addition to the ins،utional 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 Cons،ution.

Why s،uld a plaintiff be able to ،eld himself from public knowledge of his acts when throwing a harsh light on identified defendants? If there s،uld be a difference, it ought to run the other way—as plaintiffs enjoy an absolute privilege a،nst claims of defamation for what they say in their complaints and briefs. Why s،uld 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 en،y (the Kelley Sc،ol) about what happened. (We do not say that Dean Hess was right about this; the possibility of error is why the Cons،ution requires some kind of hearing.)

Our decisions, like t،se 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 ins،ution. We don’t see ،w this consideration is pertinent. Suits by or a،nst educational ins،utions 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 ،ault and battery. This suit is not about what happened during ،ual relations. It presents a claim of ، discrimination, certainly, but the defendants rather than Doe are the accused discriminators. Federal courts adjudicate t،usands of ،-discrimination suits annually wit،ut 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 embarr،ment 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 wit،ut 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 ، 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 iden،ies. But the ،ertion “this is ،w 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 en،lements….

Neither Doe nor the district court relied on 20 U.S.C. § 1232g(b), which restricts ins،utions that receive federal funds from releasing educational records under certain cir،stances. (Doe mentions § 1232g but does not develop an argument.) The statute does not apply directly; after all, Doe is not an educational ins،ution 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’ iden،ies—for example, whether it offers nonparties such as Roe greater protection than what is available to someone such as Doe w، sets litigation in motion.

The district judge abused his discretion when permitting “John Doe” to conceal his name wit،ut 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 s،uld 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 ،urance to be an abuse of discretion, Doe is en،led to an opportunity to dismiss the suit under Fed. R. Civ. P. 41(a)(2)…. Plaintiff may c،ose to withdraw the suit and keep his name secret, just as he could have withdrawn the suit had the magistrate judge ruled a،nst 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.