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Julie Hilden

Should Juvenile Plaintiffs Who Fear Reprisals Be Able to Keep Their Identities Secret? The Question Divides the U.S. Court of Appeals for the Ninth Circuit


Tuesday, November 23, 2010

On March 2d of this year, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit affirmed a district court judge's ruling that juvenile plaintiffs in a controversial lawsuit could not remain anonymous.  The juveniles' attorney then sought en banc rehearing (that is, review by a larger panel of the Circuit's judges). 

On November 8th, en banc rehearing was denied.  But there were two dissents to the denial of en banc rehearing-- penned by two of the Circuit's most well-respected judges, Chief Judge Alex Kozinski and Judge Stephen Reinhardt.  These dissents opined that the juveniles' identities should have been kept secret, as they had asked.

Interestingly -- and ironically -- anonymous Internet threats against the young plaintiffs were among the pieces of evidence that convinced Kozinski and Reinhardt that the plaintiffs' names should not be disclosed.  The verbal attacks against the juvenile plaintiffs were -- and have remained -- anonymous, but the juvenile plaintiffs themselves cannot continue to hide their identities, according to the courts' rulings.

In this column, I'll consider the arguments of both the original appellate panel, and Judges Kozinski and Reinhardt, and contend that the anonymity issue should have been reheard en banc.

The Underlying Case

The underlying case here is a challenge to what is pretty clearly a race-based admissions policy at a group of private schools, the Kamehameha Schools, in Hawaii.  The Schools are unique, a product of Hawaii's idiosyncratic history.  They respond to a history of overt and despicable racism against -- and, at one point in history, the near-disappearance of -- the Hawaiian people.   

The Schools attempt to preserve Hawaiian language and culture by offering ample classes on both subjects.  And very controversially, in practice the Schools only admit Native Hawaiians (with a mere two students serving as exceptions, over the Schools' history). 

The trust instrument for the Schools' massive endowment (now totaling $9.1 billion) -- which was originally granted via a bequest by a Native Hawaiian princess -- states that Native Hawaiians will be preferred in admissions only to the extent the law allows.  However, thus far, the Schools have acted as if the law (and thus the trust) allows completely race-based admissions, given the unique historical circumstances that gave rise to the Schools. 

The practical reason that the Kamehameha Schools' admissions policy is so controversial is that the Schools offer a strong education; enjoy a massive endowment; and charge tuition that is quite reasonable, compared to that of other Hawaii private schools.  Moreover, for children whose families are of modest means, full tuition can be covered. 

Thus, many of Hawaii's parents, of a wide variety of ethnic backgrounds, would love to be able to send their kids to the Schools -- particularly since Hawaii generally has weak public schools.  As a result, feelings run high when it comes to the topic of the Schools -- both in defense of, and against, the current admissions policy.

The Panel Decision Rejecting the Juveniles' Request for Anonymity

As noted above, the juveniles who are challenging the Schools' admissions policy sought anonymity, but a three-judge appellate panel rejected their request. 

In reaching this conclusion, the panel made clear that it was deferring substantially to the fact-findings that had been made by the district court regarding the juveniles' fear, and whether that fear was reasonable.  (Those findings had also, in some cases, initially been made by a magistrate judge from whom the district court judge had sought recommendations.)

With respect to the reasonableness of the juveniles' fear of reprisals, the appellate panel noted some very disturbing evidence that was adduced:  (1) The U.S. Attorney's Office in Hawaii had reported a growing sense of anger and rage, and some threats, after the court-ordered admission of one of the two non-Native Hawaiians who had ever attended the Schools; (2) Threats were made to the juveniles who had been plaintiffs in a prior case challenging the Schools' race-based admissions policies;  (3) There had been a spate of race-based crimes in Hawaii, by Native Hawaiians, against those of other ethnic backgrounds; (4) In Hawaiian public schools, Caucasian kids often fear (and stay home on) “Kill Haole Day” when some Native Hawaiian kids target “haoles” (a slur for Caucasian kids);  (5) Internet comments had predicted or threatened that the juveniles in the case before the district court would be the subject of physical attacks if they were to be admitted to the Schools.

The magistrate judge who made recommendations to the district judge noted that the evidence at issue largely did not consist of threats directed to the juveniles themselves.  But much of the law depends on analogy and prediction -- so it surely should have mattered that closely-analogous persons in closely-analogous circumstances had received threats of violence.  To require direct threats to these juveniles themselves be made (when they were still anonymous!) is to require too much, and to ignore any kind of evidence but the very most direct kind, no matter how probative, is foolish. 

After the magistrate judge's recommendation to strip the juveniles of anonymity was made, still more evidence that the juveniles could be in genuine danger arose:  (6) News of the magistrate judge's recommendation generated more predictions -- and veiled and not-so-veiled threats -- of violence toward the juveniles; and (7) the juveniles' lawyer received a threatening phone call.

On this factual record, the three-judge appellate panel decided that the evidence showed that the juveniles genuinely feared severe harm.  However, it deferred to the district court's conclusion that the juveniles' fear was not reasonable -- even though other credible parties (such as the U.S. Attorney) believed that it was. 

Thus, the panel ruled that, despite the juveniles' fears, they still had to reveal their identities.

The Arguments for Anonymity that the En Banc Rehearing Dissenters Presented

In dissenting from the order denying en banc rehearing, Judge Kozinski argued that the panel had taken the threats at issue too lightly.  He recounted the threats in detail, and he candidly admitted,  “If threats like that were made against me or my family, I'd be worried.  I'd call the U.S. Marshals, as federal judges are repeatedly cautioned to do when targeted by a threat…. I doubt I'm alone.”  

Judge Kozinski then objected having a double standard for judge safety and litigant safety.  Of course, judges cannot be protected by being allowed to remain anonymous, but on the other side of the equation, litigants cannot enjoy the protection of the U.S. Marshals.  Thus, Judge Kozinski's point is that the threshold for a threat's being taken seriously and protected against, by whatever means are feasible given the context, ought to be much the same in both cases. 

Judge Kozinski also pointed to Federal Rule of Civil Procedure 5.2(a), which directs parties to redact the names of minor children from their complaints, and reminded the parties to comply with that Rule.  (Initials can be used instead of names under the Rule.)

Judge Reinhardt, too, found the threats at issue disturbing, and the juveniles' fears reasonable.  He pointed to additional evidence of tensions and bullying between Native Hawaiians and others in Hawaii's schools -- and noted that the issue was investigated in 2008 by the Department of Justice's Office of Civil Rights.  The investigation, he explained, ended with a requirement that Hawaii take a number of corrective actions.   Moreover, like Judge Kozinski, Judge Reinhardt also invoked Rule 5.2(a).  

Finally, Judge Reinhardt noted that by refusing en banc rehearing, the Circuit was leaving young plaintiffs in a civil-rights suit unprotected, and thus deterring such suits from being brought in the future.  He is surely right.  

Granted, the suit against the Schools is not the kind of civil-rights suit that some observers find most sympathetic.  But the rule that the panel decision established will also apply to suits where the plaintiffs are young members of racial minorities who are being subjected to threats not because they are trying to attend fancy private schools, but because they are trying to exercise very basic rights.  Under the appellate panels' holding, and thanks to the denial of rehearing, they too may be denied anonymity even when they have genuine fears of reprisal.

In sum, Judges Kozinski and Reinhardt's arguments are weighty, and they are right that -- at the very minimum -- this case was well worth an en banc rehearing.  

Dismissing threats of bodily harm that are made against minors is hardly something that should be done lightly.  This case surely deserved another level of review.

Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for a decade. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website,, includes free MP3 and text downloads of the novel's first chapter.

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