Two ways to read the story
- Quick Read
- Deep Read ( 6 Min. )
When students come forward to report sexual assault, they expect some level of privacy. But two colleges have recently taken the position that privacy shouldn’t always extend to students who are suing them.
Both schools are accused of violating an anti-discrimination law known as Title IX by not responding adequately to sexual harassment and violence. The student plaintiffs say they fear irreparable harm if their names are exposed, while the schools say that hiding the names hampers their defense.
The cases, involving Dartmouth College and Florida A&M University, raise the question of whether people can seek both justice and privacy under Title IX – or whether they may in some instances have to choose. The debate hinges on how to balance fairness and compassion in the legal system and in educational settings nationwide.
Peter Lake, a professor at Stetson University College of Law, expects such battles to continue. Preserving some level of privacy or confidentiality “has been a persistent question that’s been coming up in Title IX work,” he says, adding, “the fear being that if you don’t, it may chill people from going forward.”
“Jane Doe 2.” “Jane Doe 3.” “S.B.” This is how three women are known in court documents. All three say they suffered sexual violence and that their colleges knew enough to better protect them. They feel betrayed.
The women want to maintain privacy while asking for monetary damages and better accountability for how the campuses address sexual misconduct and assault.
The schools facing these federal Title IX lawsuits – Dartmouth College in New Hampshire, and Florida A&M University – deny that they responded inadequately, and have asked the courts to not allow the women to use pseudonyms. They know the women’s identities but say that having to keep them confidential would hamper their defense.
Such cases raise the question of whether people can seek both justice and privacy under Title IX – or whether they may in some instances have to choose. The debate hinges on how to balance fairness and compassion in the legal system and in educational settings nationwide.
The colleges’ legal tactics are gaining national attention because “it certainly has been more common to let cases proceed on pseudonyms,” says Peter Lake, a professor at Stetson University College of Law in Gulfport, Florida.
But he also expects such battles to continue. “This has been a persistent question that’s been coming up in Title IX work – preserving some level of privacy or confidentiality ... the fear being that if you don’t, it may chill people from going forward,” he says.
Among more than 500 people who have signed a petition calling for Dartmouth to withdraw its opposition to the women’s privacy are Sen. Kirsten Gillibrand of New York and Rep. Annie Kuster of New Hampshire, both Dartmouth alumnae, and Sen. Elizabeth Warren of Massachusetts.
Even in the #MeToo era, when many have opted to go public to raise awareness, doing so can come at immense personal costs, and survivor advocates say it should always be their choice.
“Survivors who find the courage to report what they endured must be empowered, at all times, to control their privacy in the interest of their mental health,” wrote S.B.’s lawyers, Michael Dolce and Takisha Richardson of Cohen Milstein Sellers & Toll, in a May 29 letter about the public university to more than 40 Florida legislators.
Judge Mark Walker in the U.S. District Court for the Northern District of Florida has denied multiple motions by Florida A&M University (FAMU) to reveal S.B. – who alleges rapes and retaliation for reporting. “There is absolutely no legitimate public interest in outing a rape victim in a Title IX case,” he wrote in a 2018 decision.
FAMU recently asked the 11th U.S. Circuit Court of Appeals to consider the issue.
The university has bolstered staffing and policies to support students reporting sexual misconduct and is “merely asking for a fair and open trial,” FAMU says in an emailed statement. “The plaintiff is an adult demanding monetary damages under Title IX and the University has asked that her legal name be provided to jurors at trial.”
To Mr. Dolce, that statement suggests a worrisome “shift away from due respect for those who report these crimes,” he says in a phone interview.
While not commenting on the specifics of either case, Professor Lake notes that some universities may think they don’t have a level playing field when stories about a lawsuit with an unnamed plaintiff are swirling in the media. “If you are trying to combat a narrative about your institution, you can only fight with a ghost,” he says.
If the 11th Circuit agrees to hear the matter, it could have “huge implications” for Title IX lawsuits, says Teri Mastando, an attorney in Alabama.
A decision would be “binding on Georgia, Florida, and Alabama in the federal court system,” she says. If the court were to rule generally against filing anonymously, the decision might also be considered by other circuits.
Ms. Mastando once represented a girl who was sexually assaulted in middle school. Her parent sued on her behalf, using only her initials. By the time of appeal, she was 19 and wanted to become the proper plaintiff, and the school defendants moved for the court to require her to reveal her identity.
Just because her client was older didn’t mean she should have to give up her privacy, Ms. Mastando argued before a three-judge panel on the 11the Circuit. The judges agreed and the plaintiff won the appeal.
If the name becomes public online, she adds, the sexual assault “becomes fodder for the world. People shouldn’t be able to search for this information.”
Why Dartmouth objects
In November 2018, six named women and one Jane Doe filed a $70 million class-action lawsuit against the Dartmouth Trustees on behalf of female undergraduate and graduate students in the Department of Psychological and Brain Sciences, alleging that the college did not intervene sufficiently after reports of sexual harassment, assault, and retaliation by three male faculty members.
One plaintiff says she was raped several weeks after reports were made in 2017. The other two Jane Does joined the suit last month.
Dartmouth says in a press statement that it promptly investigated reports in April 2017 and sought to fire the men for misconduct, but two resigned and one retired before that process was complete.
“[W]e want to encourage reporting of sexual misconduct so that we can address it,” Dartmouth says in a separate statement emailed to the Monitor. “However, Dartmouth believes that the law is clear that individuals wishing to be class representatives in a class action law suit, which their case is, cannot be anonymous.”
Lawyers for Jane Does 2 and 3 question in their court response why the school objected to their pseudonyms but not to the first Jane Doe’s. They also cite cases in which plaintiffs have been allowed to use pseudonyms in class-action lawsuits.
Dartmouth may opt to challenge Jane Doe 1’s pseudonym at a future time, writes Justin Anderson, vice president for communications, in an email.
“It is extraordinarily unusual for a class action [lawsuit] to proceed with an anonymous class representative,” writes Joshua Richards, a partner at Saul Ewing Arnstein & Lehr in Philadelphia, in an email. He notes he is speaking about cases generally, not just in the Title IX context.
Jane Doe 3 asserts in a court document that the trauma from sexual assault by her professor continues to affect her, but that she has built a professional life in a new location. In addition to hampering her recovery, she says, “I fear that public identification would wrongly and irreparably tarnish my scientific career.”
Dartmouth’s objection “says to us, ‘be fully exposed, risk everything, or be silent,’” Jane Doe 3 notes.
Another of Dartmouth’s objections is that it would be difficult to investigate potential witnesses without revealing plaintiffs’ names. The plaintiffs argue that judges can issue protective orders to set up fair terms for investigating without revealing the name publicly.
These arguments are now on hold while the parties try mediation. If that fails, the court will pick up where it left off.
‘The tide is starting to turn’
Diana Whitney decided not to wait to see if mediation falls through. As a member of the Dartmouth Community Against Gender Harassment and Sexual Violence, she helped lead a coalition of student, faculty, and alumni groups in urging Dartmouth to withdraw its objections to the pseudonyms.
Dartmouth is “paying lip service to their ‘support’ of survivors, but this is legal massaging to cover up that what they are doing is institutional bullying,” Ms. Whitney says.
Still, big institutions can mean many things to many people, often at the same time. Ms. Whitney received a strong liberal arts education at Dartmouth, graduating in 1995. But it’s also the place where she was sexually assaulted by another student her freshman year, she says.
She sought counseling but did not report it. She found “kindred spirits” who helped her “push back against the dominant culture” on a campus where women were first admitted just two decades before she arrived.
The three male faculty are now banned from campus, but Ms. Whitney applauds the plaintiffs for their “call to action for the community to go beyond individual perpetrators” and “look at the institutional accountability.”
Dozens of comments have come in response to the petition. Some urge Dartmouth to “be better,” “keep your integrity.” Others are more sharp: “Shame on you for a campus culture of silence.”
The outpouring has given Ms. Whitney glimmers of hope that much of the public wants to help eliminate sexual violence.
“I believe the tide is starting to turn,” she says.