No Pseudonymity in Race Discrimination Lawsuit over Academic Dishonesty Finding

From Doe v. Univ. of Pennsylvania, decided Friday by the Third Circuit, in an opinion by Judge Tamika Montgomery-Reeves, joined by Judges David Porter and Jane Roth:

In 2020, Doe enrolled as a student in UPenn’s Pre-Med Post-Baccalaureate Program …. She planned to complete the Program in Spring 2021 and apply to medical school. Doe alleges that a chemistry professor in the Program discriminated against her based on her race by denying her extensions, grading her unfairly, and reporting her for academic dishonesty. She reported this discrimination to UPenn. According to Doe, UPenn retaliated by launching a deficient academic integrity investigation, finding she committed academic dishonesty, and suspending her for one and a half years. Doe further contends that

[b]y improperly suspending Plaintiff and placing a notation on her transcript and disciplinary record, UPenn has damaged Plaintiff’s future educational and career prospects. Specifically, as a result of UPenn’s actions, Plaintiff will be forced to disclose and explain to medical schools and potential employers to which she may opt to apply that she was disciplined at UPenn for academic dishonesty….

As a result, Plaintiff has suffered and will continue to suffer reputational damage, economic losses, and damages to her future educational and career prospects.

The District Court refused to let Doe sue pseudonymously (under Title VI and state contract law), and the Third Circuit held that this was not an abuse of discretion:

The ability to proceed anonymously is reserved for exceptional cases. In Doe v. Megless, this Court articulated a two-step test to determine whether a litigant presents an exceptional case. First, a litigant must allege a “reasonable fear of severe harm” that will result “from litigating without a pseudonym.”  Second, if a litigant sufficiently alleges such a harm, then the court employs a balancing test to determine whether the party’s reasonable fear of severe harm “outweighs the public’s interest in open litigation.”

Doe fails at step one, because she has not alleged a reasonable fear of severe harm. “That a plaintiff may suffer embarrassment or economic harm” is not sufficient to allege severe harm under Megless.  Instead, severe harm has been found in “cases involving ‘abortion, birth control, transexuality [sic], mental illness, welfare rights of illegitimate children, AIDS, and homosexuality.’”

Doe alleges that she must proceed anonymously to avoid damaging her ability to be accepted to medical school or to secure future employment in the medical profession. But this Court has held that type of harm—embarrassment and economic harm—cannot serve as a basis to proceed under a pseudonym.

{The cases that Doe cites in her opening brief as support for her proposition that “courts throughout the United States have routinely granted pseudonym treatment in cases involving university misconduct,” are all materially distinguishable from the present case. All but one of the cases cited by Doe involved allegations of intimate partner violence, sexual assault, sexual misconduct, or an analogous topic. The final case she cites did not take place in the university context and involved allegations of a prisoner being shackled during childbirth. None of these cases support Doe’s argument that the facts underlying her claims are “centered on a private and intimate moment.”}

The decision is not binding precedent, but it can be used as persuasive precedent, and I expect it will be.

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