A former Rider University student expelled over an alleged sexual assault may not bring his due process suit against the school anonymously, a federal judge has ruled.
The plaintiff’s fear of social stigma fails to outweigh the general interest in favor of open judicial proceedings, U.S. Magistrate Judge Tonianne Bongiovanni ruled Tuesday in Doe v. Rider University.
And a statement to the media by Doe’s lawyer in connection with the case also weighs against granting permission to proceed anonymously, the judge ruled.
Bongiovanni ruled, however, that three nonparty witnesses in the case, the alleged victim and two other Rider students, may continue to proceed anonymously.
The plaintiff identified himself as John Doe in a 2016 suit claiming Rider’s disciplinary process was “unabashedly pro-complainant” and “replete with due process violations.” A fellow student accused him of sexual assault in a dormitory room encounter that he claims was consensual. The Mercer County Prosecutor’s Office investigated the incident and found insufficient evidence to sustain criminal charges. But the suit claims Rider tarnished his academic and career prospects by labeling him a sexual predator in disciplinary proceedings that failed to adhere to methodology detailed in the student handbook.
Doe filed suit in August 2016, bringing claims under Title IX of the Educational Amendments of 1972, and alleging breach of contract, breach of the implied covenant of good faith and fair dealing, intentional infliction of emotional distress, and violation of the New Jersey Consumer Fraud Act. He seeks to reverse and expunge from his record Rider’s findings that he was culpable and its sanction of expulsion. He also seeks a dean’s certification, made available to third parties, that Rider reversed its findings.
Doe filed a motion to proceed anonymously, and Rider opposed the motion.
Bongiovanni in Tuesday’s decision noted that the issue of whether Doe committed sexual assault is not before the court, but instead the issue is whether Rider subjected him to an unfair disciplinary proceeding.
On the question of whether he may proceed anonymously, the judge applied a test from Doe v. Provident Life Accident Insurance, a 1977 case from the Eastern District of Pennsylvania. The Provident Life case, which concerned an insurance broker who sought disability benefits for various psychological disorders, laid out nine factors for evaluating whether a litigant can use a pseudonym.
The totality of those factors weigh against allowing the plaintiff to proceed with a pseudonym, Bongiovanni found. She found that Doe’s fears of social stigma attached to sex offenders, and potential difficulty being admitted to other colleges if his identity is revealed, do not amount to reasonable fears of severe harm.
In addition, the judge found that Doe’s “decision to engage with the media” further supports the denial of his request to proceed anonymously. It is “unfair to allow a plaintiff to hurl accusations at [a defendant] from behind a cloak of anonymity,” Bongiovanni said, citing Rose v. Beaumont Indep. Sch. Dist., a 2007 case from the Eastern District of Texas.
The judge was referring to a statement made by the plaintiff’s attorney, Lee Vartan, to the Law Journal in a 2016 article about the suit. Vartan, then with Holland & Knight in New York, said in that statement, “Like so many other colleges and universities across the country, Rider University changed its Title IX disciplinary process in response to the U.S. Department of Education’s ‘Dear Colleague’ Letter to be unabashedly pro-complainant. Sexual assault allegations on campus should be treated seriously, but not at the expense of convicting the innocent and denying them basic due process rights. That is what this lawsuit is about.”
Vartan, now with Chiesa, Shahinian & Giantomasi in West Orange, said he is no longer on the case, and declined to comment.
A lawyer for Rider, Angelo Stio III of Pepper Hamilton in Princeton, didn’t return a call about the case Wednesday but said in court papers that Vartan’s statement to the media “ironically called public attention to the very case in which plaintiff wants to remain anonymous.” Stio added that, “under the most basic principles of equity, plaintiff cannot be permitted to publicly levy serious and baseless allegations against Rider and its employees, without being required to reveal his name in the same open forum.”
Patricia Hamill of Conrad O’Brien in Philadelphia, now lead counsel for Doe, also didn’t return a call about the case.
A Rider spokeswoman, Kristine Brown, said in a statement, “We are aware of the judge’s decision, however we do not comment publicly on pending litigation.”