Accused Students Proceeding Under a Pseudonym in Title IX Litigation

The use of pseudonyms has been a significant issue in Title IX litigation recently, with some courts denying accused students the ability to proceed in litigation against their school under a pseudonym.  The First Circuit, however, has recently vacated an order denying an accused student the use of a pseudonym and provided a new standard for evaluating this issue.

According to the First Circuit’s opinion, the plaintiff was found responsible for nonconsensual sexual contact and intercourse and sexual harassment by a three-member panel following a Title IX investigation and hearing.  He was notified he would be expelled. The university denied his appeal and expelled him shortly before he was to graduate.

The plaintiff sued the university, alleging breach of contract, promissory estoppel, and denial of basic fairness.  He alleged the investigation’s “[r]adical feminist anti-male bias” led to a presumption the complainant’s allegations were true.  He also moved to proceed by pseudonym because he would be significantly harmed by being required to reveal his identity.  The district court denied the motion and the plaintiff ultimately appealed.

The First Circuit recently held there is a “strong presumption against the use of pseudonyms in civil litigation.” The Federal Rules of Civil Procedure require the title of a complaint to name all parties. They also require an action to “be prosecuted in the name of the real party in interest.” The First Circuit also noted, however, that it is not clear that a party’s “name” under the Rules must be their true name. Additionally, courts treat use of the party’s true name as a rebuttable presumption, not a requirement.

Although the public has a right to access certain litigation records, the First Circuit has never held that right prevents the use of pseudonyms in civil litigation.

Several other circuits have developed multi-factor tests to determine if the use of pseudonyms is warranted, but the First Circuit concluded these tests did not create a clear standard. It instead applied a totality of the circumstances standard, but provided some general guidelines for the district courts. The court identified four “categories of exceptional cases,” or “paradigms,” that generally warrant anonymity. The first category is a party who reasonably fears using their name would cause them unusually severe psychological or physical harm.  The second category is a situation wherein naming the party would cause harm to “innocent non-parties.”  The third category is a situation where the party’s anonymity is necessary to prevent a chilling effect on similarly-situated future litigants. The fourth category is a case tied to previous proceedings that are made confidential under the law.

The district court should balance the party’s privacy interest against the public interest in transparency, in light of all relevant circumstances, and focusing on the extent to which the facts align with one of the four paradigms. The court has broad discretion in making the determination.

The trial court had applied a two-prong test, requiring the plaintiff to show a fear of severe harm and that the fear was reasonable.  The First Circuit found this test was insufficient.  A showing of reasonable fear of severe harm is only necessary under the first paradigm.  The plaintiff had made arguments that could fall under the other paradigms.

The First Circuit agreed that a Title IX disciplinary proceeding could but would not always support a finding that the case is exceptional and warrants anonymity.  It pointed to the requirements of confidentiality under the Family Educational Rights and Privacy Act of 1974 and the Title IX regulations.  The university argued that those requirements apply only to the schools and not to the participants, but the court rejected this argument.

The university also argued that the plaintiff waived his right to confidentiality by filing suit, citing a regulation allowing a school to disclose to the court relevant educational records of a student who has initiated a legal action against it.  This regulation, however, is intended to allow a school to submit relevant educational records to the court in defending itself.  The First Circuit noted this exception was grounded in a theory of implied consent, but such consent would be limited in a situation where the student moved to use a pseudonym after filing suit.  Additionally, the regulation allows the school to disclose the records only to the court.

Courts should consider the public interest in light of the limitations on schools to disclose information such as the accused student’s name. The First Circuit also noted that it would not make sense for the accused student to lose the right to anonymity because the university had made a mistake that led to the student filing suit.  The court also pointed to case law stating compelled disclosure of an accused student’s identity could discourage victims from reporting and language from the Department of Education suggesting unauthorized disclosure of Title IX proceedings could chill reporting.  The public, therefore, also has an interest in the confidentiality protections.

The First Circuit vacated the order and remanded the case to the district court to re-evaluate the plaintiff’s motion under the new standard.

The First Circuit did raise concerns that neither it nor the district court knew the plaintiff’s true identity.  Not knowing the identity of the parties prevents a meaningful recusal check and also makes it difficult to give the judgment preclusive effect.  The First Circuit therefore instructed district courts in the circuit to obtain the anonymous party’s name under seal.

Although this case is only binding in the First Circuit, it provides a new approach for the use of pseudonyms in cases filed by students accused of Title IX violations.  If you have been accused of sexual misconduct or harassment, an experienced Seattle Title IX defense attorney can help you protect your rights throughout the process.  Set up a consultation with Blair & Kim, PLLC, at (206) 622-6562.


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