Doe v. NYU (S.D.N.Y.), filed Oct. 27, is a challenge to the NYU Law Review’s alleged race- and sex-based preferences in selecting its editors; it alleges,
The defendant is NYU, since the NYU Law Review apparently doesn’t have a separate corporate identity (unlike many other law journals). The plaintiff is John Doe, “is a first-year law student at NYU [Law School],” who would be representing a class “of all present and future students at NYU Law School who: (a) intend to apply for membership on the NYU Law Review; and (b) are white, heterosexual men who identify as men, consistent with their biologically assigned sex.” And today, Judge Victor Marrero allowed Doe to proceed pseudonymously, though “without prejudice to New York University’s right to move the Court to direct Plaintiff to disclose his identity, or any other appropriate relief, once the Clerk of Court assigns this case to a District Judge.”
This strikes me as unusual, though perhaps it’s explicable by the desire to preserve the status quo until the case is taken over by the judge who will be permanently assigned to the case.
The motion for leave to proceed under pseudonym is itself sealed, so I’m not sure just what arguments persuaded the judge. I take it, though, that the likeliest rationale is that the plaintiff is worried that suing would lead to social ostracism, possible loss of job opportunities, and perhaps possible rejection by the NYU Law Review itself (not based on plaintiff’s race, sex, and sexual orientation, but based on his having sued).
Yet as a general matter, such concerns, which are present in many cases (especially in employment cases), don’t justify pseudonymity. To quote Doe v. Delta Airlines, Inc. (2d Cir. 2016) (not binding precedent, but still likely persuasive in N.Y. federal courts and consistent with many other cases),
Likewise, the leading case on the subject, SMU Ass’n of Women Law Students v. Wynne & Jaffe (5th Cir. 1979) (which also involved discrimination claims in the legal field), rejected pseudonymity, concluding:
Or to quote a S.D.N.Y. decision from two months ago, Doe v. Telemundo Network Grp.:
This having been said, cases are split about whether plaintiffs could proceed pseudonymously in especially politically controversial disputes, on the theory that they would face unusually high risk of retaliation because of the controversy (see the cases canvassed in this post). And courts also sometimes allow pseudonymity in cases that are both controversial and involve purely legal challenges, on the theory that the plaintiff’s identity is irrelevant to those cases; these have generally been lawsuits against the government, often challenging statutes on their face, but perhaps a court might adapt this reasoning to what seems to be a facial challenge to the NYU Law Review’s policy. I look forward to following the case, to see if NYU or others challenge the pseudonymity here.
For more on the general rules of pseudonymity in litigation—and how unsettled they tend to be in many areas—see here.