First Circuit Upholds Student Anonymity In Title IX Challenge

In the scheme of Title IX suits brought in federal courts to challenge the outcomes of campus sex tribunals, pseudonymity has largely been the norm other than the few cases where the identity of the accused is so well and widely known that there’s no putting the toothpaste back in the tube. And, indeed, that was the analogy drawn by Judge Bruce Selya writing for the court in Doe v. MIT.

While the underlying facts of the case really aren’t relevant to the holding, the only issue being whether the plaintiff could proceed under the Doe ‘nym rather than in his true name, it’s helpful to briefly take note of the facts only to appreciate what’s at stake in these cases, and at risk of being turned into an untenable challenge because the accused would be burned at the stake once his name became known, and any eventual ruling in his favor would do little to unring the accused death knell.

John Doe formed a relationship with a classmate whom we shall call “Jane Roe.” This relationship included episodic sexual intercourse and lasted until the summer of 2014. But even after the couple broke up, they occasionally had consensual sex during the fall 2014 semester.

On the evening of February 26, 2015, Jane went to John’s residence for help repairing her computer and agreed to spend the night in his bed. The pair fell asleep. At some point in the early morning hours on February 27, they had sexual intercourse. John says that he observed Jane “fully conscious, alert, and with wide open eyes” and that she provided a variety of nonverbal cues throughout the interaction, thus signaling her effective consent. Afterward, though, Jane asked John what had happened. John replied that sexual intercourse had taken place. A few months later, Jane told John that “the sex they had when she was asleep was not okay.”

Was this the fact pattern of an act so heinous that it compelled the ruin of an MIT student? It was as far as MIT was concerned, which expelled John right before graduation.

In suing, plaintiff moved to proceed pseudonymously, which the district court denied, finding that he offered “speculative conjecture”* and failed to demonstrate sufficiently severe harm from his identity being disclosed. Doe appealed, and Eugene Volokh appeared as amicus to argue against pseudonymous treatment.

One distinguished academic — who appears as an amicus here — has commented that “the factors are often so vague or ambiguous that, by themselves, they provide relatively little guidance.” Eugene Volokh, The Law of Pseudonymous Litigation, 73 Hastings L.J. 1353, 1426 (2022). Professor Volokh’s amicus brief invites us to eschew a multi-factor balancing test in favor of identifying “narrow categorical limitations or exceptions . . ., tailored to unusual categories of cases that sufficiently distinguish themselves from the norm.” In support, he notes (among  other things) that the Civil Rules already provide a categorical exception with respect to minors.

We decline to accept this invitation to try our hand at crafting sharp, categorical exceptions to the strong presumption against pseudonymity in civil litigation.

Plaintiff, represented by Andrew Miltenberg and Phil Buyler, and amici Josh Engel and Justin Dillon, were up against severe opposition on an issue that was foundational to the  ability of aggrieved male students to challenge their colleges for discriminating against them as male and finding them responsible for offenses that never happened and destroying their futures.

Rejecting the test proposed by Volokh, Judge Selya came up with four general paradigms of cases where the need for pseudonymity would likely overcome the presumption against it. And Title IX cases, in particular, fell within.

  1. The first paradigm involves a would-be Doe who reasonably fears that coming out of the shadows will cause him unusually severe harm (either physical or psychological).
  2. The second paradigm involves cases in which identifying the would-be Doe would harm “innocent non-parties.”
  3. The third paradigm involves cases in which anonymity is necessary to forestall a chilling effect on future litigants who may be similarly situated.
  4. The fourth paradigm involves suits that are bound up with a prior proceeding made confidential by law.

These four paradigms are singularly relevant to suits against universities challenging  the inquisitorial proceedings and discriminatory finding of sex offenses under Title IX. Most notably is that universities are bound by FERPA to maintain the confidentiality of students. So while the college (but not the accuser, to whom FERPA doesn’t apply) is prohibited from identifying the accused during the campus inquisition, requiring the accused to expose his identity when challenging the college’s action undermines the interests of confidentiality FERPA exists to serve.

MIT sought to circumvent the reasoning by pointing to an exception in FERPA.

Both at oral argument and in a post-argument letter, see Fed. R. App. P. 28(j), MIT contended that plaintiffs such as John automatically forfeit the confidentiality protections of both FERPA and Title IX by bringing suit. Under the FERPA regulations, when a student “initiates legal action against” a school, the school “may disclose to the court, without a court order or subpoena, the student’s education records that are relevant for the [school] to defend itself.”

Why MIT was so determined to do as much harm to its now-expelled student is unclear, but the court saw though its sophistry.

It takes rose-colored glasses to read this regulation so expansively, and we reject such a reading. The provision at issue is addressed to the plight of a school trying “to defend itself” against a student lawsuit with its hands tied by FERPA. The regulation thus allows the school to submit “relevant” documents “to the court.” 34 C.F.R. § 99.31(a)(9)(iii)(B). That exception does not defenestrate the student’s privacy interests simply because he has sued the  school.

Judge Selya recognized both the impact and irony of using the revelation of the wrongfully convicted male student’s true identity as a wedge to prevent male students from challenging their wrongful expulsions.

After all, “[i]t makes little sense to lift the veil of pseudonymity that — for good reason — would otherwise cover these proceedings simply because the university erred and left the accused with no redress other than a resort to federal litigation.” Doe v. Rector & Visitors of George Mason Univ.

The Catch-22 nature of these arguments would have wreaked havoc with ability to challenge campus sex “convictions” and expulsions by revealing the identity of the “rapist” for challenging the wrongful campus action. This was a huge and critical win if there is to be any meaningful way to challenge campus inquisitions.

*While the First Circuit took no position on this finding, one wonders how an argument predicated on harm anticipated to happen in the future could be anything other than speculative conjecture? No matter how reasonable, obvious or common the harm may be, it remains speculative until it, in fact, happens. That’s the nature of future predictions.

4 thoughts on “First Circuit Upholds Student Anonymity In Title IX Challenge

  1. Derek S Wilson

    Surely anticipating reasonable, obvious, or common future harm is more than speculation, because most people consider lessons from history, more than speculation, especially to avoid repeating the bad ones. Leaves me pondering why schools such as MIT go so readily out of their way to ruin male students when it suits them.

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