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) [UPDATE: just to be clear, as my comments following the long block quote below indicate, I disagree with much of the argument, but just thought it was well-crafted and worth passing along]:
Plaintiff John Doe, a first-year law student at New York University, should be permitted to proceed under pseudonym. This lawsuit pertains to his personal beliefs and characteristics, and he risks significant retaliation from the NYU Law Review, his peers, his professors, NYU administrators, and potential employers if his identity is exposed. NYU faces no prejudice from Doe's proceeding under a pseudonym, particularly at this early stage of litigation involving legal claims that do not focus on Doe's own facts or credibility. Likewise, the public has little interest in knowing which specific student challenged the NYU Law Review's generally applicable practices. Because the plaintiff's interest in remaining anonymous significantly outweighs any competing interests, the Court should grant the motion and permit Doe to proceed under pseudonym….
[1.] First, this litigation involves matters that are highly sensitive and of a personal nature. They pertain to Doe's personal characteristics — his race, sex, gender identity, and sexual orientation. See Doe #1 v. Syracuse University, No. 18-cv-0496, 2018 WL 7079489, at *4 (N.D.N.Y. Sept. 10, 2018), adopted, 2020 WL 2028285 (N.D.N.Y. Apr. 28, 2020) ("[C]laims involving sexual orientation … are examples of matters that qualify as being highly sensitive and of a personal nature.").
The claims also implicate Doe's personal beliefs in a matter of great controversy, particularly his belief that academic honors such as law-review members be awarded based on merit without any regard to an applicant's race, sex, gender identity, or sexual orientation. Cf. Doe v. Porter, 370 F.3d 558, 560 (6th Cir. 2004) ("This suit … forces Plaintiffs to reveal their beliefs about a particularly sensitive topic that could subject them to considerable harassment."); Doe v. Stegall, 653 F.2d 180, 185–86 (5th Cir. 1981) (permitting plaintiffs to proceed pseudonymously because the lawsuit revealed their unpopular personal beliefs); Choice, Inc. of Tex. v. Graham, 226 F.R.D. 545, 548 (E.D. La. 2005) (granting plaintiffs' motion to proceed pseudonymously after finding that they "made revelations about their personal beliefs").
Most people at NYU and at NYU Law School do not share Doe's beliefs. And there is no question how the University—including its professors and administrators—will respond to the plaintiff's lawsuit.
