Three plaintiffs will be allowed to proceed anonymously in their suit against a western Pennsylvania school district that maintains a monument to the Ten Commandments in front of a public high school, a federal judge ruled.

The New Kensington-Arnold School District didn’t oppose the use of pseudonyms in this case, but it did move to strike from the record evidence that the plaintiffs had submitted to the court in support of their motion for anonymity, including screenshots from Facebook pages and emails to the plaintiffs’ lawyers with threats to those bringing the suit. Two of the anonymous plaintiffs are students at Valley High School.

Applying a test to weigh the prudence of granting three plaintiffs anonymity, U.S. District Judge Terrence McVerry of the Western District of Pennsylvania said, “An independent consideration of these factors lead the court to conclude that this particular case necessitates that the plaintiffs presently designated as ‘Doe’ may continue to proceed anonymously with the use of pseudonyms.”

The test was developed in the Eastern District of Pennsylvania and was recently endorsed by the U.S. Court of Appeals for the Third Circuit, according to McVerry’s opinion in Freedom From Religion Foundation v. New Kensington-Arnold School District.

The Freedom From Religion Foundation is a nonprofit organization based in Madison, Wis., that advocates for the separation of church and state. It recently brought a suit against Pennsylvania legislators who declared that 2012 would be the Year of the Bible. A federal judge in the Middle District of Pennsylvania ruled against the organization in October, finding that the lawmakers were shielded by legislative immunity.

Pseudonyms pursued

Last month, McVerry granted the plaintiffs unopposed motion to use pseudonyms but vacated the order this month so that he could address the school district’s motion to strike much of the evidence entered in support of the plaintiffs’ initial motion to use pseudonyms.

The school district argued that the Facebook screenshots and emails that plaintiffs submitted were only “immaterial and inflammatory allegations” that the court should strike, according to the opinion. It argued that allowing the “inflammatory” material to stay in the public record could pollute a future trial and isn’t necessary for the court to rule on the use of pseudonyms, according to the opinion.

The plaintiffs, however, argued that the relief they seek, an injunction requiring the school to move the monument, wouldn’t lead to a jury trial and that the exhibits were necessary to prove to the court that there existed “exceptional circumstances” and that they had a reasonable fear of harm if they were identified.

Some of the exhibits include posts from a Facebook group, which has over 1,200 members, called “KEEP THE TEN COMMANDMENTS AT VALLEY HIGH SCHOOL,” according to court filings. One post on the page from Vincent Miller said, “Have the families involved in the lawsuit been identified? I cannot believe anyone living in the community would participate in such a worthless cause. Someone needs to send that group back to Wisconsin with several black eyes!” Miller later posted, “It was not a threat of violence but a figure of speech.”

McVerry, though, found that there had been significant threats made to the suit’s only named plaintiff, Marie Schaub. “A number of threats referenced in her affidavit have extended beyond ad hominem rhetoric, although they certainly appear to include threats of violence and ostracism,” McVerry said.

He agreed with the plaintiffs that the as-yet-unnamed plaintiffs should be able to proceed anonymously in order to avoid any danger of harm.

“The court finds that this basis upon which the Does fear disclosure is substantial and that there is a substantial public interest in ensuring that litigants not face such retribution in their attempt to seek redress for what they view as a constitutional violation, a pure legal issue.”

Name disclosures

In applying the test developed by the Eastern District of Pennsylvania in its 1997 opinion in Doe v. Provident Life and Accident Insurance and adopted by the Third Circuit in its 2011 opinion in Doe v. Megless, McVerry held that the scale clearly tipped in favor of anonymity. “The factors militating against the use of pseudonyms are relatively weak in comparison to the heavy weight of those supporting its use,” he said. The only factor in favor of disclosing the plaintiffs’ names is the public’s right to know, he said. Because the use of pseudonyms won’t inhibit the public’s ability to follow the case, it could be set aside.

Likewise, McVerry found in favor of the plaintiffs on the inclusion of the material they submitted in support of their motion.

This information is beyond the reach of a properly filed motion to strike,” McVerry said, since Federal Rule of Civil Procedure 12(f) allows courts to strike material from a pleading, not from motions or briefs, which is where the plaintiffs attached the material.

Neither Marcus Schneider of Steele Schneider in Pittsburgh, who represented the plaintiffs, nor Anthony Sanchez of Andrews & Price in Pittsburgh, who represented the school district, could be reached for comment.

Saranac Hale Spencer writes for The Legal Intelligencer, a Daily Report affiliate.