Unveiling the Case for Pseudonymity: Challenging NYU Law Review’s Race, Sex, and Other Preferences

I wrote in November about the court decision allowing the challenge to NYU Law Review’s race, sex, sexual orientation, and gender identity preferences to proceed pseudonymously; 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.” But the judge’s order didn’t give any reasons; and Doe’s memorandum, which must have provided various reasons that did sway the judge (whether or not he endorsed them all), had been filed under seal.

With the help of UCLA law student Maria Cafferata, I filed a motion to unseal that memorandum, and on Thursday the judge granted it. It’s an interesting and forceful argument, which I think some of our readers will agree with and still more will find interesting—it’s signed by, among other lawyers, conservative star lawyer Jonathan Mitchell (as well as Gene Hamilton of America First Legal Foundation, Ronald Berutti of Murray-Nolan Berutti LLC, and Christopher Mills of Spero Law LLC):

My tentative view, which I also passed along in the original post: Plaintiff is understandably 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, where many plaintiffs reasonably fear being identified as litigious employees—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 To quote Doe v. Delta Airlines, Inc. (2d Cir. 2016) (not binding precedent, but still likely persuasive in N.Y. federal courts and consistent with many other cases),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 an 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).

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 the motion plausibly argues that this reasoning can be adapted to what seems to be a facial challenge to the NYU Law Review’s policy. Again, it’s not clear whether the judge here accepted all these rationales, just some of them, or yet another rationale that he himself came up with.

Note that it does seem likely that at some point Doe will have to disclose his identity to someone on NYU’s side. Even in a purely legal challenge, there may be collateral questions related, for instance, to the plaintiff’s standing, that would require the defendant to know plaintiff’s identity.  But such a disclosure might be done on an attorneys’-eyes-only basis—or (perhaps more likely) subject to a protective order that would let some NYU administrators know defendant’s identity but bar broader disclosure, for instance disclosure to the NYU Law Review editors, other students, and professors. (The NYU Law Review, unlike some other journals, doesn’t have an independent legal structure, so it’s NYU that is being sued and that is having to defend the case.)

There are often difficult questions about when a party’s identity can be concealed from the public at large (the subject on which my pseudonymity posts have focused). The plaintiff’s identity can only very rarely be concealed even from the defendant’s lawyers.