Two U.S. Court of Appeals in San Francisco (9th Cir.) judges voiced strong dissenting opinions in the court’s recent decision not to rehear an appeal made by juvenile plaintiffs who wished to proceed anonymously in their civil rights lawsuit against a Hawaii school.
The case, Doe v. Kamehameha Schools, pits the public’s right to know the names of four juvenile students seeking to contest what they allege to be the Hawaii schools' race-based admissions policy against those students’ rights to privacy and protection from harassment. The plaintiffs' lawsuit accuses the Kamehameha Schools' admissions process of improperly favoring applicants with native Hawaiian ancestry.
In March, the circuit court affirmed the trial courts' decision that the plaintiffs, dubbed the Doe children, would need to publicly use their names when pursuing their lawsuit.
The Doe children argued that they should be permitted to act anonymously because publicizing their names would expose them to physical and emotional harassment. But the court held that although it is “sympathetic to the concerns of the Doe children and their parents,” it recognizes “the paramount importance of open courts,” according to its ruling.
The ruling also stated that it was constrained only to evaluate the application of law in the lower court’s decision. “Had the district court found that anonymity was appropriate, we likely would have concluded that the district court did not abuse its discretion," it said.
On Nov. 8, the court denied a request for the full appellate court to rehear the case. Two judges dissented, saying that threats to the students’ safety outweighed the need for disclosure.
“They agreed on the importance, regardless of the merits of the claim or from what side of the spectrum it comes, that litigants and especially children should be able to have their claims resolved on the merits without fear of violence or other harassment or retaliation,” said Eric Grant, counsel for the Doe children. The names of the plaintiffs were provided under a protective order to the defendants for their defense of the lawsuit, he said.
Chief Judge Alex Kozinski wrote, “No litigant should fear for his safety, or that of his family, as a condition of seeking justice.”
Judge Stephen Reinhardt cited Internet threats such as “4 kids … will need 10 bodyguards lol," “Sacrifice them!!!!!!!!,” and that they “would have to watch their backs for the rest of their lives!” when disagreeing with the court’s decision to require disclosure of the students’ names.
Grant said that he plans to appeal the ruling to the U.S. Supreme Court.
The Doe children’s civil rights lawsuit against Kamehameha Schools is not the first instance in which the school’s admission policy has been the target of a lawsuit. In 2007, a challenge brought by a non-native student was settled while pending before the U.S. Supreme Court, according to court documents.