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A federal judge this week barred Texas Gov. Greg Abbott from enforcing his ban on face mask mandates in public schools. U.S. District Judge Lee Yeakel ruled that Abbott’s policy violated federal laws prohibiting discrimination against people with disabilities.

Yeakel’s decision ostensibly leaves Texas school districts free to decide for themselves whether students and staff should be required to wear masks as a safeguard against COVID-19. But if school districts decide not to require masks, his logic suggests they could themselves be vulnerable to anti-discrimination lawsuits, which would effectively make federal advice on the subject mandatory.

The plaintiffs in this case are seven public school students who are 12 or younger and have various disabilities, including asthma, immune deficiency, Down syndrome, cerebral palsy, spina bifida, a heart defect, chronic respiratory failure, and underlying reactive airway disease. Those disabilities, the students’ parents said, make them especially likely to catch COVID-19 or especially likely to suffer severe symptoms.

The parents argued that the executive order Abbott issued on July 29, which said “no governmental entity” may “require any person to wear a face covering,” violated the Americans With Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 because it prevented school districts from accommodating their children by requiring masks. The ADA prohibits discrimination against people with disabilities by state or local governments, including “all programs, services, and regulatory activities relating to the operation of elementary and secondary education systems.” Section 504 prohibits such discrimination in programs that receive federal assistance.

The plaintiffs argued that Abbott’s order had the effect of “placing children with disabilities in imminent danger or unlawfully forcing those children out of the public school system.” Under the ADA, “no qualified individual with a disability shall,
by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”

Yeakel notes that ADA regulations address various forms of discrimination, “including discrimination that results from a public entity’s implementation of facially neutral policies.” He adds that “discrimination against individuals with disabilities results not just from intentional exclusion, but also from segregation; the failure to make modifications to existing practices; relegation to lesser services, programs, activities, benefits, or other opportunities; and exclusionary qualification standards and criteria.”

The ADA prohibits “denying students with disabilities the ‘opportunity to participate in or benefit from’ a school’s aid, benefits, or services that is ‘equal to that afforded others’; denying students with disabilities ‘the opportunity to participate in services, programs, or activities that are not separate or different’ from those provided to non-disabled students; and denying students with disabilities the opportunity to receive a school’s ‘services, programs, and activities in the most integrated setting appropriate to the needs’ of students with disabilities.”

Yeakel notes that Abbott’s order “prohibits school districts from adopting a mask mandate of any kind, even if a school district determines after an individual assessment that mask wearing is necessary to allow disabled students equal access to the benefits that in-person learning provides to other students.” In his view, that amounts to “denying students with disabilities the equal opportunity to participate in in-person learning with their non-disabled peers,” which “means that they are being ‘excluded from participation in or be[ing] denied the benefits of the services, programs, or activities of a public entity.'” Abbott’s policy, Yeakel says, “prevents local school districts from satisfying their ADA obligations to provide students with disabilities the ‘opportunity to participate in or benefit from’ in-person instruction that is ‘equal to that afforded others,’ that is ‘not separate or different’ from that provided to non-disabled students, and that is ‘in the most integrated setting appropriate.'”

Does that mean the ADA requires school districts to enforce “universal masking,” as recommended by the Centers for Disease Control and Prevention (CDC)? Maybe, although Yeakel leaves open the possibility that a narrower policy might be enough to comply with the ADA. He notes that Abbott’s order “not only prohibits school districts from implementing universal masking in schools in accordance with CDC guidelines, but also from imposing limited mask requirements, such as in one wing of a school building or in one classroom, or by requiring an individual aide to wear a mask while working one-on-one with a student who is at heightened risk of serious illness or death from COVID-19.”

Yeakel does not address the question of whether the plaintiffs’ COVID-19 fears are reasonable. He mentions this year’s “surge” in pediatric COVID-19 cases and “the emergence of the Delta variant of COVID-19, which is more than twice as contagious as previous variants.” As of November 4, he notes, “6,503,629 total child COVID-19 cases have been reported in the United States, representing more than 16.7% of the total cases in the United States.”

Yeakel does not mention that such cases are typically mild and almost never fatal. As of November 10, according to the CDC’s tally, 595 Americans younger than 18 had died from COVID-19 since the beginning of the pandemic, which represents 0.08 percent of all COVID-19 deaths in the United States. By comparison, the CDC estimated that 486 minors died from the seasonal flu in 2019–20. The CDC estimates that the COVID-19 infection fatality rate for this age group is 0.002 percent.

The whole premise of this lawsuit, of course, is that children with certain disabilities face a higher-than-average risk of life-threatening COVID-19 symptoms. But even if their risk of death were 10 or 100 times as high, it would still be very, very small.

The availability of vaccines also should figure into this risk assessment. When Yeakel heard this case last month, all but one of the students was younger than 12, meaning they were not yet eligible for vaccination. But on October 29, the Food and Drug Administration approved the Pfizer vaccine for 5-to-11-year-olds. Even if some of the plaintiffs are medically disqualified from vaccination, which provides very effective protection from the worst consequences of COVID-19, vaccination of their fellow students will reduce the risk of in-school transmission.

Yeakel not only did not consider the magnitude of the danger that COVID-19 poses to children; he did not consider whether school mask mandates are a cost-effective response to that danger. “Plaintiffs here have alleged that the use of masks by those around them is a measure that would lower their risk of contracting the virus and thus make it safer for them to return to and remain in an in-person learning environment,” he writes. “The evidence here supports that the use of masks may decrease the risk of COVID infection in group settings.”

That is not exactly a ringing endorsement of school mask mandates, which are controversial in the United States and eschewed by many other developed countries. The evidence that the benefits of such policies outweigh the substantial burdens they impose is in fact quite limited and equivocal. But if making masks optional leaves school districts open to discrimination claims like these, local officials may be inclined to ignore the paucity of empirical support for that policy and impose mandates they otherwise would reject.

Yeakel frames his decision as one that favors local autonomy and flexibility—just as Education Secretary Miguel Cardona did when he announced that his department was investigating states that ban school mask mandates for possible violations of the ADA and the Rehabilitation Act. But the threat of litigation could mean that local school officials will be free to make their own decisions only if they settle on the policy that Cardona and the CDC favor.

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Yellowjackets. Showtime. Sunday, November 14, 10 p.m. 

Life is full of surprises, and not just about narwhals and the severed heads of sea slugs. You sit down to watch a TV show about a plane carrying a girls’ soccer team that crashes in the middle of nowhere and—wait a second—this is not another Lord of the Flies remake at all. Well, not totally, anyway, or maybe even mostly. Showtime’s new drama Yellowjackets is a lot of things, and the quickness with which the veneer of civilization rips away from teenagers is only one of them.

It’s a murder mystery. It’s a feminist fable. It’s a political drama.  It’s a coming-of-middle-age story. It’s a ghost story. (Maybe.) And it’s a lot of fun to watch, no maybes about that.

The show simultaneously pursues two timelines. One is in 1996, when the Yellowjackets—New Jersey high school champs flying to a distant tournament—go down in a grisly plane crash that kills or cripples much of the team (and all the adults) and will leave the rest of the girls wandering in the wilderness for 19 months. The other is 25 years in the future, when a handful of the taciturn survivors learn somebody is stalking them through their self-imposed obscurity, seeking to learn what really happened after the plane went down.

The crash, of course, was regarded as a tragedy—not just for the loss of life, but the quality of the lives. “Some of these kids, no big loss, if we’re honest,” the principal, looking around his hallways, tells a reporter. “But those girls were special. They were champions.” Not that everybody agrees. “Not one of those girls gave a good goddam about trigonometry,” sniffs their math teacher.

The trig teacher may be closer to the truth. The hijinks at a party the night before the departure reveal the team is riven by cliques, rivalries, jealousies and excess affection for drugs and drinking. “Don’t you have a bong to hit, or a dick to suck?” one of the model-student types snaps at the team punk during an argument.

The situation in their homes is not much better. One girl is being medicated for schizophrenia; another has to slap her drunken mother awake for a ride to the airport. When the plane goes down, it doesn’t take long for these cracks to turn into crevices, bloody ones. Some of the girls survive the ordeal, but in the 2021 timeline, they all clearly have scars. They’ve changed names, fled to Unabomber-style shacks or otherwise gone to ground, buried in frumpy, joyless marriages or repetitive stints in rehab. None of them are the champions their principal predicted.

Shauna (Melanie Lynskey, Castle Rock), Brown-bound before the crash, wound up with a daughter who despises her and a husband whose idea of a sexual fantasy is for her to pretend to be one of his furniture customers. Team punk Natalie (Juliette Lewis), though out of the hospital at the moment, is still determinedly Amy Winehousing herself. Misty (Christina Ricci), the dorky and dateless team manager, is as clueless and needy about men as ever—but to compensate, she has a talking bird named Caligula and a job as the Nurse Ratched of a nursing home.

The only middle-aged Yellowjacket whose life has any of those championship qualities their principal foresaw is Taissa (Tawny Cypress, The Blacklist), a smooth operator both on and off the field. She’s now a gay icon who’s running for the state senate—and, not coincidentally, the mastermind of the plan, all those years back, for the girls to keep their mouths shut about what happened out in the woods.

But that plan seems to be going awry. Breaking her own rule by vaguely suggesting she was the hero of the crash (her ads boast that she’ll “lead New Jersey out of the wilderness”), Taissa has run into an opponent who isn’t afraid to exploit ancient and tawdry rumors about the aftermath: His ads warn a Taissa victory will result in “cannibalizing your tax dollars” and pile on lots of creepy images of roasting meat. While she prepares a counterattack, Taissa must also contemplate the difficulties of her troubled young son, whose disturbing and sometimes macabre drawings at school have alarmed his teachers.

Perhaps coincidentally (or perhaps not), somebody—or maybe two somebodies—is trying to contact the survivors and get them to talk. A counterfeit newspaper reporter is waving around a million-dollar book offer while anonymous but suggestive postcards turn up in the Yellowjackets’ mailboxes.

That sounds like a lot of balls to keep in the air. But writer-producers Ashley Lyle and Bart Nickerson, who previously collaborated on the hardball Narcos shows about Latin American traffickers, do a good job of juggling their storylines and, even more importantly, keeping their characters consistent over a quarter of a century of story. Both scripts and actresses flow seamlessly through the different timelines. Lewis morphs from a cynic into a burnout, Ricci from a victim to a victimizer; Cypress turns from detestable student pol to dangerous professional while Lynskey finds the resolve to stop being a middle-aged punching bag for her family.

And the dialogue cuts like a knife. Says one girl, dismissing a prospective teenage suitor: “I once saw him get outsmarted by an escalator.” Glad she wasn’t around when I was in high school.

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I’m putting up some excerpts from my new draft article, The Law of Pseudonymous Litigation, hoping to get some feedback. This one is on why some courts view pseudonymity as burdening the judicial process; I’ll have more soon on reasons that support pseudonymity.

Pseudonymity can also cause difficulties in the fact-finding process, especially as the case gets closer to trial.

[1.] Encouraging party honesty in testimony or affidavits

A nonanonymous witness, including a party witness, “may feel more inhibited than a pseudonymous witness from fabricating or embellishing an account.”[1] And if the party witness is not telling the truth, “there is certainly a countervailing public interest in knowing the [witness’s] identity.”[2] It’s hard to tell the extent of this tendency, but it probably exists in some measure.

[2.] Drawing in witnesses

When the Court recognized a public right of access to criminal trials, in Richmond Newspapers, Inc. v. Virginia, it noted the possibility that such publicity can cause otherwise unknown witnesses to come forward.[3] Witnesses might likewise come forward in a civil case: “It is conceivable that witnesses, upon the disclosure of Doe’s name, will ‘step forward [at trial] with valuable information about the events or the credibility of witnesses.'”[4] And if only one side is pseudonymous, “information about only [the other] side may thus come to light.”[5] At the same time, such claims are by their nature hypothetical, and some judges view them as too speculative.[6]

[3.] Avoiding alienating prospective witnesses through gag orders

A party will often need to disclose a pseudonymous adversary’s identity in conducting discovery.[7] If you want to ask a witness questions about the plaintiff, you have to mention the plaintiff’s name. But if the court really wants to keep the plaintiff’s identity secret, then the witness would have to be put under some sort of protective order to remain quiet about that identity as well.[8]

Many people are likely to resist becoming witnesses if that means agreeing to a protective order, at least if they have no personal stake in the matter. Legally enforceable confidentiality obligations are a burden, especially when the obligation relates to an acquaintance. If you learn your colleague Mary Jones has accused your mutual employer of sexual harassment, you may not want to be legally bound to indefinitely keep that secret fact segregated from all the other things you know about Jones, and all the other things you might say about her to coworkers or friends.

We lawyers have to keep such secrets about people as part of our jobs, but we’re used to it, and we’re handsomely compensated for it. Not so with prospective witnesses, who may already be skittish about the justice system. And having to incur such an unpaid-for obligation may be enough to deter some witnesses from testifying.[9]

This concern has discouraged some courts from allowing pseudonymity. In one of the sexual assault lawsuits against Harvey Weinstein, for instance, the court reasoned:

The Court cannot accept Plaintiff’s “mere speculation” that Weinstein’s defense would not be prejudiced by the condition that he “not disclose her name to the public,” with no clear definition of what would constitute disclosure to “the public.” Plaintiff implicitly concedes that Weinstein might need to disclose her name to at least some third parties, since she appears to suggests that he redact her name from witness depositions.[10]

[4.] Allowing class members to evaluate class representative

Some courts have rejected pseudonymity for would-be class representative on the grounds that it “may … preclude potential class members from properly evaluating the qualifications of the class representative.”[11] Others have disagreed.[12]

[5.] Preventing jury prejudice

Letting a party testify pseudonymously might also prejudice the jury, by “risk[ing] … giving [the party’s] claim greater stature or dignity,”[13] or by implicitly “tarnish[ing]” a defendant by conveying to the jury “the unsupported contention that the [defendant] will seek to retaliate against [the plaintiff].”[14] And it could also make “witnesses, who know Plaintiff by her true name, … come across as less credible if they are struggling to remember to use Plaintiff’s pseudonym.”[15] Query whether these risks could be minimized through suitable jury instructions.[16]

[6.] Preventing confusion and lack of witness credibility

Especially in oral testimony, pseudonyms can be confusing to the witnesses and thus to jurors. To quote one such case,

[E]vidence submitted to the Court highlights the problems pseudonyms may pose at trial and the confusion it will undoubtably produce, despite counsel’s best efforts to adequately prepare their respective clients. This was apparent from the parties’ depositions: “Moira Hathaway” could not recall her pseudonym’s first name, and “Hillary Lawson” could not recall her close friend and co-plaintiff’s pseudonym. As one court in this circuit has already recognized, “conduct[ing] a trial in such an atmosphere, all the while using pseudonyms, promises trouble and confusion.” In the event a witness inadvertently testified to a plaintiff’s real name, the Court would have to immediately excuse the jury in the middle of critical testimony, admonish the witness, and provide a limiting instruction, which may signal to the jury that either the attorney or the witness acted improperly.[17]

Likewise, in a student lawsuit over a medical school’s disciplinary actions:

[Defendant] argues that witnesses, who know Plaintiff by her true name, may come across as less credible if they are struggling to remember to use Plaintiff’s pseudonym. Plaintiff retorts that this argument “just does not make sense” because the witnesses are medical professionals—or medical students—who often use the name “Jane Doe” to refer to unidentified female patients. But unlike in the treatment context, these witnesses do know Plaintiff’s true name and have used that name in all their previous interactions. The Court agrees that there is a risk of prejudice to Defendant.[18]

[7.] Protecting parties’ abilities to research each other’s past cases

If you are sued, one of the first things you might want to do is to look up any other lawsuits the plaintiff had filed, to see if they may reveal some facts that might be relevant to this case. Have they made similar allegations in other cases? Have they made allegations arising out of the same fact pattern, which might bear on the allegations against you? For instance, if the plaintiff claims that your product injured him, might he have sued someone else before over the same injury (e.g., claiming that it was the result of an accident or of medical malpractice)?

Were there some findings in those lawsuits that might have collateral estoppel effects? Did the plaintiff make some statements that could be viewed as judicial admissions,[19] or could in any event undermine the plaintiff’s case? Did the plaintiff say something about his domicile, for instance, that might be relevant to whether his citizenship is diverse from yours?[20] Has the plaintiff filed so many losing cases in the past that you might be able to have him declared a frivolous litigant?[21]

Conversely, if you’re a plaintiff, you might want to research the defendant: Have there been past verdicts against the defendant in similar past cases? Has the defendant you’re suing for malpractice or sexual harassment, for instance, been found liable in similar cases before? You might be able to check the records of the cases to see what relevant facts might have emerged, or consult with other plaintiffs to see if they are at liberty to tell you anything helpful.

But if the plaintiff’s or defendant’s past cases have been pseudonymous, that information may be largely unavailable (at least until you ask for information about the party’s past cases in discovery, and the party accurately answers). “[W]ithout [a party’s] identity in the public record, it is difficult to apply legal principles of res judicata and collateral estoppel”[22]—or to apply judicial estoppel, or to similarly check whether the party’s past factual assertions and legal positions are consistent with their current ones.[23]

[8.] Pseudonymity only at early stages of litigation

Note that some courts deal with some of these problems by offering pseudonymity only at the early stages of litigation, on the theory that “the balance between a party’s need for anonymity and the interests weighing in favor of open judicial proceedings may change as the litigation progresses.”[24] This is particularly so with regard to pseudonymity at trial, which many courts view with skepticism:

Allowing Plaintiff to proceed via a pseudonym at trial could impermissibly prejudice the jury against Defendant. The risk of harm to Plaintiff is not so severe that it outweighs the prejudice and unfairness to Defendant. The Court therefore will not allow Plaintiff to proceed under a pseudonym should this case reach trial.

But the Court will allow Plaintiff to proceed under a pseudonym at any other pretrial hearings. Because the Court, not the jury, is the factfinder at pretrial hearings, the risk of prejudice is far reduced…. The Court determines that the potential harm to Plaintiff outweighs the prejudice to Defendant and the public interest for pretrial hearings.[25]

Likewise, courts might allow pseudonymity while a settlement seems to be looming, but saying “[t]his is subject to change if the settlement craters.”[26] To be sure, such pseudonymity isn’t as valuable to the party as permanent pseudonymity—but it can still be quite valuable, given that over 98% of all cases are terminated before trial.

 

[1] Doe v. Delta Airlines Inc., 310 F.R.D. 222, 225 (S.D.N.Y. 2015), aff’d, 672 F. App’x 48 (2d Cir. 2016); Roe v. Does 1-11, No. 20-CV-3788-MKB-SJB, 2020 WL 6152174, *3 (E.D.N.Y. Oct. 14, 2020); Lawson v. Rubin, No. 17CV6404BMCSMG, 2019 WL 5291205 (E.D.N.Y. Oct. 18, 2019); Doe v. Zinsou, No. 19 CIV. 7025 (ER), 2019 WL 3564582, *7 (S.D.N.Y. Aug. 6, 2019); San Bernardino County Dep’t of Pub. Soc. Servs. v. Superior Court, 232 Cal. App. 3d 188 (1991) (“open proceedings discourage perjury”); see also Doe v. McLellan, No. CV205997GRBAYS, 2020 WL 7321377, *3 (E.D.N.Y. Dec. 10, 2020) (“defendants would not be able to fully and adequately cross-examine the plaintiff” because of plaintiff’s anonymity).

[2] Roe v. Does 1–11, No. 20-CV-3788-MKB-SJB, at 11 (E.D.N.Y. Oct. 14, 2020).

[3] Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 596–97, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (Brennan, J., concurring).

[4] Doe v. Delta Airlines, Inc., 310 F.R.D. 222, 225 (S.D.N.Y. 2015), aff’d, 672 F. App’x 48 (2d Cir. 2016); see also Rapp v. Fowler, No. 20-CV-9586 (LAK), 2021 WL 1738349, *7 (S.D.N.Y. May 3, 2021); Roe v. Does 1-11, No. 20-CV-3788-MKB-SJB, 2020 WL 6152174, *3 (E.D.N.Y. Oct. 14, 2020); Doe v. Del Rio, 241 F.R.D. 154, 159 (S.D.N.Y. 2006); San Bernardino County Dep’t of Pub. Soc. Servs. v. Superior Court, 232 Cal. App. 3d 188 (1991); Steinman, supra note 7, at 19.

[5] Id.

[6] Doe v. Purdue Univ., No. 4:18-CV-72-JVB-JEM, 2019 WL 1960261 (N.D. Ind. Apr. 30, 2019) (“The hypothetical witness suggested by Duerfahrd’s argument is unknown to both parties, but knows relevant information as to Plaintiff’s specific claims against Duerfahrd, and would come forward on his or her own when Plaintiff’s name is released (but not if Duerfahrd’s name is the only one released). The scenario appears unlikely, and Duerfahrd offers no argument as to why he would expect such a witness.”).

[7] See Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118, 1125 (10th Cir. 1979) (noting that pseudonymity “may cause problems to defendants engaging in discovery and establishing their defenses”); Doe v. McLellan, No. CV205997GRBAYS, 2020 WL 7321377, *3 (E.D.N.Y. Dec. 10, 2020) (“Plaintiff’s anonymity would make it more difficult to obtain witnesses and witness testimony”); De Angelis v. Nat’l Ent. Grp. LLC, No. 2:17-CV-00924, 2019 WL 1071575, *4 n.1 (S.D. Ohio Mar. 7, 2019).

[8] See, e.g., Rapp v. Fowler, No. 20-CV-9586 (LAK), 2021 WL 1738349, *7 (S.D.N.Y. May 3, 2021) (discussing would-be pseudonymous plaintiff’s suggestion that defendant be allowed “to use and disclose [plaintiff]’s name for discovery purposes on the condition that anyone who becomes privy to his identity would be obliged to keep it confidential”); C.S. v. Choice Hotels Int’l, Inc., No. 2:20-CV-635-JES-MRM, 2021 WL 2792166, at *13 (M.D. Fla. June 11, 2021) (approving of such an order), report & recommendations rejected, id. (M.D. Fla. Sept. 14, 2021) (rejecting such an order because “requiring the written agreement of potential witnesses before any disclosures can be made would significantly hamper defendants’ ability to investigate”); J.C. v. Choice Hotels Int’l, Inc., No. 20-cv-00155-WHO, 2021 WL 1146406, at *6 (N.D. Cal. Mar. 4, 2021) (approving of such an order); Doe v. PreCheck Inc., No. CV-21-01129-PHX-DLR, at 1–2 (D. Ariz. Sept. 30, 2021) (issuing such an order); Doe No. 2. v. Kolko, 242 F.R.D. 193, 199 (E.D.N.Y. 2006) (issuing such an order); Ressler, #WorstPlaintiffEver, supra note 7, at 829 (advocating for such orders).

[9] See, e.g., C.S., 2021 WL 2792166, at *19 (noting, as examples, “a situation where an acquaintance or family member of plaintiff would need to sign an agreement prohibiting them from ever revealing information related to plaintiff’s identity, thus making it impracticable and likely to deter witnesses,” or “a potential witness [being] asked to agree to be bound by a Court order without knowing what information he or she was agreeing to maintain confidential or even whether he or she had knowledge of information that should be maintained as confidential”); Doe v. Weinstein, 484 F. Supp. 3d 90, 96-97 (S.D.N.Y. 2020) (refusing to allow plaintiff to be pseudonymous in part because this would make it harder for defendant to depose witnesses).

[10] See id. at 97 (citing Michael v. Bloomberg L.P., No. 14-cv-2657, 2015 WL 585592, at *4 (S.D.N.Y. Feb. 11, 2015)).

[11] Michael v. Bloomberg L.P., No. 14-cv-2657, 2015 WL 585592, at *4 (S.D.N.Y. Feb. 11, 2015); In re Ashley Madison Customer Data Security Breach Litig., MDL No. 2669, 2016 WL 1366616, at *4 (E.D. Mo. Apr. 6, 2016); Doe v. City of Indianapolis, No. 1:06-cv-865-RLY-WTL, 2006 WL 2289187, at *3 (S.D. Ind. Aug. 7, 2006) (“In addition, Plaintiffs brought this action as a class action. They therefore represent not only themselves, but the thousands of sex offenders subject to the ordinance. The public interest is not in being able to identify any one Plaintiff, but in being able to follow the case to determine how the constitutional issues are resolved.”); Sherman v. Trinity Teen Solutions, Inc., No. 20-CV-00215-SWS, 2021 WL 3720131 (Feb. 11, 2021) (likewise); Doe v. U.S. Healthworks Inc., No. CV1505689SJOAFMX, 2016 WL 11745513, *5 (C.D. Cal. Feb. 4, 2016) (likewise).

[12] But see Doe v. City of Apple Valley, No. 20-cv-499, at 4 (D. Minn. Mar. 5, 2020) (“[T}he District Court will still hear any motion for class certification in this matter and is more than capable of ensuring the Plaintiffs are fair representatives of the proposed classes”); Roe v. Operation Rescue, 123 F.R.D. 500, 505 (E.D. Pa. 1988) (allowing pseudonymous class representatives); Doe v. Mundy, 514 F.2d 1179, 1182 (7th Cir. 1975) (likewise).

[13] Lawson v. Rubin, No. 17CV6404BMCSMG, 2019 WL 5291205 (E.D.N.Y. Oct. 18, 2019); Doe v. Ayers, 789 F.3d 944, 946 (9th Cir. 2015); James v. Jacobson, 6 F.3d 233, 240–41 (4th Cir. 1993); Doe v. Delta Airlines, Inc., 310 F.R.D. 222, 225 (S.D.N.Y. 2015) (“As many jurors and any reader of New York area newspapers surely would be aware, parties to lawsuits routinely contend, at trial, with disclosure of embarrassing incidents such as public intoxication—indeed, trials commonly bring to light far more prejudicial, damning, and colorful episodes. Were Doe permitted to proceed on a no-name basis, one or more jurors might conclude that she, for unknown reasons, merited extra-solicitous treatment. This might skew the jury’s assessment of Doe’s credibility and her claims.”), aff’d, 672 F. App’x 48 (2d Cir. 2016); Doe v. Rose, No. CV-15-07503-MWF-JCX, 2016 WL 9150620 (C.D. Cal. Sept. 22, 2016); Doe v. Cabrera, 307 F.R.D. 1, 10 (D.D.C. 2014) ;EEOC v. Spoa, LLC, 2013 WL 5634337, at *3 (D. Md. Oct. 15, 2013).

[14] Tolton v. Day, No. CV 19-945 (RDM), 2019 WL 4305789 (D.D.C. Sept. 11, 2019); A.B.C. v. XYZ Corp., 282 N.J. Super. 494, 504 (App. Div. 1995) (“Defendant might well be prejudiced in defending against a complaint by being perceived as a wrongdoer by the very fact of anonymity alone.”).

[15] Doe v. Elson S Floyd Coll. of Med. at Washington State Univ., No. 2:20-CV-00145-SMJ, 2021 WL 4197366 (E.D. Wash. Mar. 24, 2021).

[16] See James, 6 F.3d at 242 (reasoning that they could be).

[17] Lawson v. Rubin, No. 17CV6404BMCSMG, 2019 WL 5291205 (E.D.N.Y. Oct. 18, 2019); see also Guerrilla Girls, Inc. v. Kaz, 224 F.R.D. 571, 572, 575 (S.D.N.Y. 2004).

[18] Doe v. Elson S Floyd Coll. of Med. at Washington State Univ., No. 2:20-CV-00145-SMJ, 2021 WL 4197366 (E.D. Wash. Mar. 24, 2021).

[19] Cf. Ergo Science, Inc. v. Martin, 73 F.3d 595, 598 (5th Cir. 1996) (“The doctrine of judicial estoppel prevents a party from asserting a position in a legal proceeding that is contrary to a position taken in the same or some earlier proceeding,” when “a court has relied on the position urged”).

[20] See, e.g., Ceglia v. Zuckerberg, 772 F. Supp. 2d 453 (W.D.N.Y. 2011) (“Having successfully persuaded a different federal district court that his domicile as of September 2004 was New York, [Facebook founder Mark] Zuckerberg would be judicially estopped from denying otherwise now.”); Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983, 1000 (9th Cir. 2012) (“This is a textbook case for applying judicial estoppel. Monroe’s representatives took one position on Monroe’s domicile at death for forty years, and then changed their position when it was to their great financial advantage ….”); Techno-TM, LLC v. Fireaway, Inc., 928 F. Supp. 2d 694, 698 (S.D.N.Y. 2013) (“The representation to the Washington federal court that they had not yet established a state of permanent residence is in complete conflict with the representation to this court that the Huhses had changed their domicile from Costa Rica to Washington.”); Sarauw v. Fawkes, 66 V.I. 253, 268–69 (2017) (citing other such cases).

[21] Cf. Part IV, which describes a vexatious litigant’s attempt to seal or pseudonymize many of his past cases; see also Chaker v. San Diego Superior Ct., No. D075494, 2021 WL 1523009, *3 (Cal. Ct. App. Apr. 19, 2021) (declining to take the litigant’s name off the vexatious litigant list, in part based on the court’s own search for Chaker’s past nonpseudonymous cases, beyond the ones he had disclosed to the court).

[22] Femedeer v. Haun, 227 F.3d 1244, 1246 (10th Cir. 2000); Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118, 1125 (10th Cir. 1979); Roe v. Ingraham, 364 F. Supp. 536, 541 n.7 (S.D.N.Y. 1973); see also Doe v. Univ. of Louisville, No. 3:17-CV-00638-RGJ, 2018 WL 3313019, *3 (W.D. Ky. July 5, 2018); Doe v. Kentucky Cmty. & Tech. Coll. Sys., No. CV 20-6-DLB, 2020 WL 495513, *2 (E.D. Ky. Jan. 30, 2020), reconsideration denied, No. CV 20-6-DLB, 2020 WL 998809 (E.D. Ky. Mar. 2, 2020); Free Mkt. Comp. v. Commodity Exch., Inc., 98 F.R.D. 311, 313 (S.D.N.Y. 1983); EW v. New York Blood Ctr., 213 F.R.D. 108, 110 (E.D.N.Y. 2003).

[23] Cf. Michael v. Bloomberg L.P., 14-cv-2657, 2015 WL 585592, at *4 (S.D.N.Y. Feb. 11, 2015) (rejecting pseudonymity for a proposed class representative, because pseudonymity “may … preclude potential class members from properly evaluating the qualifications of the class representative”).

[24] Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1069 (9th Cir. 2000); see also Steinman, supra note 7, at 36.

[25] Doe v. Elson S Floyd Coll. of Med. at Washington State Univ., No. 2:20-CV-00145-SMJ, 2021 WL 4197366 (E.D. Wash. Mar. 24, 2021); see also, e.g., Doe v. MacFarland, 117 N.Y.S.3d 476, 498 (Sup. Ct. 2019) (“For example, if a jury trial is requested, will plaintiff seek to conceal her true identity from the jurors? Will plaintiff seek permission to testify as ‘Jane Doe’? If so, the Court will have to consider whether the grant of pseudonymity to plaintiff can be mitigated by an appropriate jury charge or whether allowing plaintiff to do so visits other prejudice to defendant…. Those issues await later determination.”); Doe v. Rose, No. CV-15-07503-MWF-JCX, 2016 WL 9150620 (C.D. Cal. Sept. 22, 2016) (“while not discounting the public’s strong interest in encouraging victims of sexual assault to pursue their rights in court, the Court finds that, for purposes of the trial itself, the balance of the public interest has shifted to favor public access and disclosure”); Doe 1 v. Ogden City School Dist., 120CV00048HCNDAO, 2021 WL 4923728, *3 n.2 (D. Utah Oct. 21, 2021); see also S.Y. v. Uomini & Kudai, LLC, No. 2:20-CV-602-JES-MRM, 2021 WL 3054871, *6 (M.D. Fla. June 11, 2021); Al Otro Lado, Inc. v. Nielsen, No. 17-CV-02366-BAS-KSC, 2017 WL 6541446, *8 (S.D. Cal. Dec. 20, 2017). But see Doe v. Neverson, 820 F. App’x 984, 987–88 (11th Cir. 2020) (suggesting that pseudonymity could be allow at trial as well).

[26] SEB Inv. Mgmt. AB v. Symantec Corp., No. C 18-02902 WHA, 2021 WL 3487124, *2 (N.D. Cal. Aug. 9, 2021).

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From the Foundation for Individual Rights’ letter sent Wednesday to Emerson College President William Gilligan, which I think is generally quite right:

FIRE is disappointed that Emerson College failed to respond to our letter of October 5, 2021, concerning its suspension and institution of misconduct charges against a student organization for distributing stickers that—as Emerson now recognizes—were intended to criticize China’s government. Our concerns have only grown in light of the finding of responsibility by Emerson’s Conduct Board, which the group is appealing.

The Conduct Board found the Emerson chapter of Turning Point USA (TPUSA) responsible for violating the school’s Bias Related Behavior policy. Despite finding that the group “did not intend to target anyone other than China’s government,” Emerson issued a “Formal Warning”—a formal sanction under Emerson’s policies. That warning letter additionally stipulates that “[a]dditional behavior that violates Emerson’s Community Standards”—that is, engaging in the same or similar speech—”will likely result in additional disciplinary action.”

The Conduct Board found, in particular, that:

[B]y disseminating the Stickers[, TPUSA] engaged in discriminatory conduct on the basis of national origin, that had the effect of “unreasonably interfering with” the Complainant’s enrollment and/or had the effect of creating a hostile, intimidating or offensive working, living or learning environment. Although the Board found that the members of the Emerson chapter did not intend to target anyone other than China’s government, handing out the sticker nonetheless had a discriminatory effect given the pervasive environment of anti- Asian discrimination that has developed over the past several years particularly in the wake of the COVID pandemic.

Deeming the distribution of a sticker critical of a foreign government to be “discriminatory conduct on the basis of national origin” on these grounds is inconsistent with Emerson’s erstwhile commitments to its students’ freedom of expression. At core, Emerson concludes that its campus is subject to “pervasive” anti-Asian discrimination and that the burden of redressing this discrimination falls on the shoulder of a student group Emerson concedes did not (and did not intend to) engage in discriminatory conduct. The result is that Emerson students—and presumably faculty—cannot criticize China’s government.

That is an astounding result at an institution of higher education. Campus speech on domestic or international political affairs will inevitably involve criticism of foreign governments. That criticism will inevitably be upsetting to those who support or identify with those states. Emerson’s decision to sanction TPUSA for its criticism of the Chinese government is a violation of the university’s commitments to free expression.

The precedent that Emerson has established here will not be limited to critics of China. For example, there has been an increase in anti-Semitic incidents in recent years, with visible situations of threats and violence occurring after clashes in the Israeli-Palestinian conflict this past May. Emerson’s interpretation of its obligations and policy would lead to sanctions against a Palestinian student advocacy group for distributing flyers critical of the Israeli government or promoting boycotts against it.

Colleges and universities pride themselves on being environments that draw from a great diversity of students from rich and varied backgrounds. That speech critical of foreign governments causes unintentional—and unavoidable—offense to others is not a basis to retreat from these principles. Whether speech is protected is “a legal, not moral, analysis.” The Supreme Court has repeatedly, consistently, and clearly held that expression may not be restricted on the basis that others find it to be offensive, and this principle applies with particular strength to universities, dedicated to open debate and discussion.

As FIRE wrote in our previous letter:

Although private institutions like Emerson are not bound by the First Amendment, Emerson has adopted policies guaranteeing students “certain rights,” including the “right to freedom of speech, … freedom of political belief and affiliation,” and “freedom of peaceful assembly.” Emerson reinforces these commitments with a statement on students’ expressive rights, laudably highlighting the “high importance” of the First Amendment and urging that this “right to freedom of speech” is “not only a right but a community responsibility.”

Emerson can doubtlessly penalize discriminatory conduct or speech amounting to discriminatory harassment. As Emerson concedes, the stickers were not intended to be discriminatory. Even if they were, their offensive nature is not sufficient to amount to hostile environment harassment under the law, and Emerson’s obligations to remedy harassment do not require—or authorize—it to censor particular instances of otherwise protected expression. As FIRE previously noted in its October 5 letter, the Office of Civil Rights (OCR) of the United States Department of Education has established that discriminatory harassment “must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive.”

Whatever steps Emerson must take to remedy its “pervasive” anti-Asian discrimination, those steps cannot justify censorship of speech critical of foreign states. Accordingly, we call on you to lift the disciplinary sanctions in this matter. FIRE will ensure that punishing this protected speech will have continued effects on Emerson’s reputation as a college that purports to protect open inquiry and expression.

And here’s the main part of the original October 5 letter:

FIRE is concerned by Emerson College’s suspension, investigation, and initiation of misconduct charges against a student organization and its members due to its distribution of stickers critical of the government of the People’s Republic of China. Criticism of governments is core political expression protected by principles of free expression that Emerson pledges to uphold.

Emerson College Charges TPUSA Over Distribution of “China Kinda Sus” Sticker

The following is our understanding of the pertinent facts. We appreciate that you may have additional information to offer and invite you to share it with us.

On September 29, 2021, members of Turning Point USA at Emerson College (“TPUSA”), a recognized student organization, set up a table in an outdoor area to engage with other students and solicit new members. The table included written materials for those interested.

Among these were stickers depicting a character from an online multiplayer game, “Among Us,” the object of which is to identify the imposter crewmate on a spaceship. The depicted character is red and superimposed with the emblem of the Communist Party of China, the hammer and sickle. The sticker includes the words “China kinda sus,” invoking a slang term “sus”—short for suspicious—used by “Among Us” players to identify suspected imposters. TPUSA chapters frequently distribute stickers on this theme, including a variation critical of domestic politics, which reads: “Big gov sus.” This is the version criticizing China:

… On September 30, 2021, you sent an email to the Emerson community announcing that the “Office of Community Standards and Student Conduct and the College will initiate an investigation,” as it had “come to [your] attention that several individuals were distributing stickers yesterday that included anti-Chinese messaging that is inconsistent with the College’s values[. ]”That email was followed by a joint statement by a consortium of administrative departments, including Emerson’s Office of International Student Affairs, criticizing the stickers as “anti-China hate.”

On October 1, 2021, Emerson’s Director of Community Standards sent a formal letter to TPUSA Emerson President Sammi Neves and Vice President Kjersten Lynum, notifying them of alleged violations of Emerson’s policies against “Bias Related Behavior” and “Invasion of Privacy.” The letter also imposed interim restrictions, prohibiting the chapter from “hosting programs, meetings and/or tabling,” violations of which “could result in additional sanctions, up to and including dismissal from the College.” The letter announced that “interviews will be conducted” and that a “meeting will be held with your organization’s leadership[.]” The letter warned that members of the organization are required to “keep what is discussed during our conversations confidential” and may “not talk about the statements you make during the interview, with anyone” except a “personal representative.”

The “China Kinda Sus” Sticker is Protected by Freedom of Speech, Which Emerson Promises to its Students

Emerson’s initiation of an investigation and imposition of interim measures is a serious departure from the college’s policies guaranteeing students the right to freedom of expression, which includes the right to criticize foreign governments. Even if criticism of China were synonymous with criticism of its citizens or those of Chinese descent, the speech at issue here does not rise to the level of unprotected harassment.

Emerson Guarantees its Students the Right to Freedom of Speech

Although private institutions like Emerson are not bound by the First Amendment, Emerson has adopted policies guaranteeing students “certain rights,” including the “right to freedom of speech, … freedom of political belief and affiliation,” and “freedom of peaceful assembly.” Emerson reinforces these commitments with a statement on students’ expressive rights, laudably highlighting the “high importance” of the First Amendment and urging that this “right to freedom of speech” is “not only a right but a community responsibility.”

Having made these commitments, Emerson is obligated to keep them, as both a moral duty and legal obligation.

Criticism of Foreign Governments is Protected Speech, Even if it is Offensive to Others

The stickers distributed at Emerson and elsewhere are critical of China’s government. They follow a long tradition of student protests on American college campuses criticizing foreign nations, whether those opposing South Africa’s apartheidor, more recently, the government of Israel.

Freedom of expression entails the right to criticize not only our own government, but those of foreign nations, even when that criticism is offensive to the “dignity” of those states or threatens to upend “vital national interest[s. ]”

In Boos v. Barry, the Supreme Court of the United States struck down a prohibition on displays within 500 feet of an embassy if the display would bring the embassy’s government “into public odium.” The regulation, intended to “shield diplomats from speech that offends their dignity,” was supported by weighty interests: protecting the dignity of foreign embassies had “a long history and noble purpose,” served the “Nation’s important interest in international relations” by supporting cordial discourse, and was required by international law.

Despite these interests, the regulation violated the First Amendment:

[I]n public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate “breathing space” to the freedoms protected by the First Amendment. A “dignity” standard, like the “outrageousness” standard that we rejected in [Hustler Magazine, Inc. v. Falwell], is so inherently subjective that it would be inconsistent with “our longstanding refusal to [punish speech] because the speech in question may have an adverse emotional impact on the audience.”

That others find speech deeply offensive is not a permissible basis to curtail it. The Supreme Court has repeatedly, consistently, and clearly held that expression may not be restricted on the basis that others find it to be offensive. This core principle is why the authorities cannot outlaw burning the American flag, punish the wearing of a jacket emblazoned with the words “Fuck the Draft,” penalize cartoons depicting a pastor losing his virginity to his mother in an outhouse, or disperse civil rights marchers out of fear that “muttering” and “grumbling” white onlookers might resort to violence.

This principle applies with particular strength to universities and colleges dedicated to open debate and discussion. Take, for example, a student newspaper’s front-page uses of a vulgar headline (“Motherfucker Acquitted”) and a “political cartoon depicting policemen raping the Statue of Liberty and the Goddess of Justice.” These words and images—published at the height of the Vietnam War—were no doubt deeply offensive to many at a time of deep polarization and unrest. So, too, were “offensive and sophomoric” skits depicting derogatory stereotypes, and student organizations that the public viewed as “shocking and offensive.” Yet, “the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency. ‘”

The “China” Stickers Are Criticism of China’s Government and Do Not Amount to Unprotected Harassment

While Emerson has important obligations to respond to and remedy hostile educational environments under Title VII, those obligations are not implicated here.

First, the speech is not based on race, ethnicity, or national origin. The stickers do not invoke or traffic in stereotypes associated with people of Chinese descent or origin. Instead, the stickers are speech critical of China’s government. The stickers utilize the familiar emblem of the sole governing party of the country, superimposed over a video game character bearing the same red color of China’s flag. The sticker’s text (“China kinda sus”) refers to the name of the country, not its people. Criticism of a foreign government is not inherently criticism of the people it purports to represent, even if people who hail from, descend from, or support that particular nation find that criticism personally offensive.

Second, even assuming the stickers’ message was capable of being construed as speech based on race, ethnicity, or national origin, it does not rise to the level of peer-on-peer harassment as properly defined under the law.

Speech that others find offensive is not alone sufficient to constitute harassment. In the context of enforcing prohibitions against racially discriminatory harassment, the Office for Civil Rights (OCR) of the United States Department of Education has made clear that its regulations “are not intended to restrict the exercise of any expressive activities protected under the U. S. Constitution” and, therefore, discriminatory harassment “must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive.”

Instead, speech is unprotected as harassment only where it amounts to conduct “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” Distributing a sticker which others are free to take or leave, and which makes no reference to a protected class, falls short of this standard… .

Conclusion

Emerson makes laudable commitments to its students’ freedom of expression. Yet, in response to criticism of a foreign government, Emerson has abandoned these laudable commitments, imposing interim restrictions—which are reserved for an “imminent” threat to the “physical, social, or emotional well-being”31 of others—and initiating an investigation… .

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Law students are often asked to consider what constitutes a “vehicle,” as in what sorts of things are covered by a law prohibiting “Vehicles in the Park.” Today, the U.S. Court of Appeals for the D.C. Circuit resolved a somewhat similar question in reviewing a recent Environmental Protection Agency regulation.

In Truck Trailer Manufacturer Association v. Environmental Protection Agency, a partially divided panel considered whether trailers can be regulated as “motor vehicles” under federal law. In the view of the court, the tractors pulling trailers may constitute vehicles, but the trailers themselves are not.

Judge Walker wrote the opinion for the court, joined by Judge Katsas. His opinion begins:

In 2016, the Environmental Protection Agency issued a rule for trailers pulled by tractors based on a statute enabling the EPA to regulate “motor vehicles.” In that same rule, the National Highway Traffic Safety Administration issued fuel efficiency standards for trailers based on a statute enabling NHTSA to regulate “commercial medium-duty or heavy-duty on-highway vehicles.”

Trailers, however, have no motor. They are therefore not “motor vehicles.” Nor are they “vehicles” when that term is used in the context of a vehicle’s fuel economy, since motorless vehicles use no fuel.

We therefore grant the petition and vacate all portions of the rule that apply to trailers.

In addressing the relevant statutory text, Judge Walker writes:

The Act defines “motor vehicle” to exclude anything that does not propel itself. Id. § 7550(2). For the purposes of § 202, a “motor vehicle” is “any self-propelled vehicle designed for transporting persons or property on a street or highway.” Id. (emphases added).

Because trailers are not “self-propelled,” they are not motor vehicles under § 202. Therefore, the EPA cannot rely on §202 to regulate trailers’ effects on greenhouse gas emissions.

The court also considered whether NHTSA could regulate trailers for purposes of federal fuel economy regulations, again rejecting the agency’s claim of authority.

Because a trailer uses no fuel, it doesn’t have fuel economy. And in the statutory context of § 32902, nothing is a vehicle unless it has fuel economy — a measure of miles traveled per gallon of fuel used.

NHTSA therefore lacked the authority to regulate trailers.

Judge Millett wrote separately, concurring in the judgment in part and dissenting in part. Here is a summary of her differences with the majority:

Because the trailers are tractor-propelled rather than self- propelled, I agree with the majority opinion’s judgment that the Clean Air Act’s text precludes the particular EPA regulations at issue here. I further agree with the majority opinion that, in seeking to reduce emissions, the EPA could instead regulate the tractors, including the types of trailers they are allowed to pull. Majority Op. 19 (“To be sure, NHTSA can regulate tractors based on the trailers they pull, as can the EPA.”); see also Oral Arg. Tr. 10:16–11:1 (Association counsel answering “probably, yes” when asked if the EPA could “pass a regulation that says tractors are banned * * * from traveling on roads and highways if they’re pulling loads that cause the tractor’s emissions to increase by XX amount”). And nothing in today’s decision forecloses the EPA from regulating the assembler of the tractor-trailer to ensure that the assembled tractor-trailers meet specified emission standards. See Oral Arg. Tr. 9:16–17 (Association counsel explaining that the EPA “definitely can regulate an assembler” that connects a tractor and a trailer).

But when it comes to the question of NHTSA’s authority to issue its separate fuel economy regulations, I part ways with the majority opinion. NHTSA acted under a provision of the Energy Independence and Security Act of 2007 (“Energy Independence Act”) that directed NHTSA to establish fuel efficiency standards for commercial medium- and heavy-duty “on-highway vehicles[.]” 49 U.S.C. § 32902(k)(2). Unlike the Clean Air Act, the Energy Independence Act contains no definition of the term “vehicle” other than regulating it in its on-highway operation and status. Given that focal point, NHTSA quite reasonably applied a long-established definition of vehicles that includes commercial trailers. The majority opinion’s view that NHTSA’s interpretation somehow runs afoul of “plain” non-existent text does not stand up.

Expect this case to be a new addition to Legislation & Regulation syllabi in law schools nationwide.

 

 

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