A student may sue her school district anonymously, a federal judge has ruled in the second case to challenge the placement of a monument displaying the Ten Commandments at a public school within the last year.
U.S. District Judge Terrence McVerry of the Western District of Pennsylvania ruled that the as-yet-unnamed student and her mother can proceed under the Doe pseudonyms with which they brought the suit against the Connellsville Area School District in Southwest Pennsylvania.
McVerry, who is presiding over a similar case against the New Kensington-Arnold School District outside of Pittsburgh, granted anonymity to the students in that case late last year.
"The factors militating against the use of pseudonyms are relatively weak in comparison to the heavy weight of those supporting its use," McVerry said in Freedom From Religion Foundation v. Connellsville Area 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 brought the related suit as well as 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 last October, finding that the lawmakers were shielded by legislative immunity.
The school district didn’t oppose the motion for anonymity, which was accompanied by exhibits featuring screenshots from Facebook pages, newspaper websites and emails that demonstrate backlash following the filing of the suit.
The New Kensington-Arnold School District didn’t oppose the use of pseudonyms either, 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.
Both school districts are represented by Amie Thompson of Andrews & Price in Pittsburgh, who didn’t return calls for comment.
McVerry noted that the U.S. Court of Appeals for the Third Circuit only recently gave guidance to the district courts tasked with determining when to grant anonymity when it adopted a balancing test originally developed in the Eastern District of Pennsylvania. The appeals court did so in a case called Doe v. Megless in 2011.
"Although not expressly addressed in Megless, the standards in other circuits illustrate that district courts have ‘an independent duty to determine whether "exceptional circumstances" warrant a departure from the normal method of proceeding’ in federal litigation," McVerry said, quoting from the Seventh Circuit’s 2004 opinion in Doe v. City of Chicago.
"Where, as here, a litigant files an unopposed motion to proceed pseudonymously, that alone may not be sufficient justification to permit anonymous litigation, as the court cannot weigh the factors by only looking to whether a defendant filed something of record," McVerry said.
He found that four factors in favor of anonymity outweighed the single factor tipping against it.
The anonymity of the Doe plaintiffs up to this point, the evidence of statements and threats against the plaintiffs, the apparently legitimate reasons that the plaintiffs are seeking to remain anonymous, and the public’s interest in ensuring that the plaintiffs can bring a challenge to what they see as a constitutional violation without facing retribution all counsel in favor of granting anonymity, McVerry said.
"On the other side of the scale, only one factor is against the use of anonymous litigation: the public’s general interest in having access to the identity of litigants," McVerry said. "However, the issue in this case does not turn on the identity of the plaintiff, and the court presently does not see how denying plaintiffs’ request will interfere with the public’s right to follow the proceedings, which will be kept open to the public while maintaining the confidentiality of the Does’ identities."
The suit alleges that the school district is violating the First Amendment by displaying a monument featuring the Ten Commandments in front of the Connellsville Area Junior High School. It has been there since 1957, when the building housed a high school, according to the complaint.
The plaintiffs are seeking an injunction that would require the monument to be removed from public school property.
McVerry issued a protective order to maintain the anonymity of the plaintiffs in the suit against New-Kensington Arnold in March and issued a similar order about two months later in the Connellsville case. Both prohibit the defense from presenting any identifying information in open court and require anybody who receives such information over the course of the case to destroy it — in both physical and electronic form — at the conclusion of the case.
Marcus Schneider of Steele Schneider in Pittsburgh is representing the plaintiffs in both suits and didn’t respond to requests for comment.
(Copies of the six-page opinion in Freedom From Religion Foundation v. Connellsville Area School District, PICS No. 13-1193, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •