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Freedom From Religion, Foundation, Inc. v. Emanuel County School System

United States District Court, S.D. Georgia, Statesboro Division

June 18, 2015

FREEDOM FROM RELIGION, FOUNDATION, INC., JANE DOE, individually, JOHN DOE, individually, JESSE DOE, individually, JAMIE DOE, individually, Plaintiffs,
EMANUEL COUNTY SCHOOL SYSTEM (a/k/a/ Emanuel County Schools), KEVIN JUDY, individually and in his official capacity as superintendent of Emanuel County School System; VALORIE WATKINS, individually and in her official capacity as principal of Swainsboro Primary School; KAYTRENE BRIGHT, individually and in her official capacity as a Swainsboro Primary School teacher; and CEL THOMPSON, individually and in her official capacity as a Swainsboro Primary School teacher, Defendants.


G.R. SMITH, Magistrate Judge.

The plaintiffs have filed suit under 42 U.S.C. ยง 1983 alleging that defendants have violated the Establishment Clause of the First Amendment by endorsing prayer in a public school classroom located in Emanuel County, Georgia. Doe. 22 (amended complaint). Plaintiffs seek both declaratory and injunctive relief, as well as an award of compensatory and punitive damages, attorneys fees, and court costs. Id. at 2, 12-13.

Two days after filing their initial complaint, the four individual plaintiffs - the parents of children enrolled in kindergarten and the first grade at the Swainsboro Primary School, and the two students themselves - sought leave of court to proceed using pseudonyms rather than their actual names in this litigation.[1] Doe. 17. The plaintiffs contend that even though they informed the Superintendent of the Emanuel County School System ("ECS") that the prayer and proselytizing practices of certain teachers at the primary school violated the Constitution, the practices did not cease. Instead, the teachers not only continued to lead prayer in the classroom, they began to punish the "Doe" children for not participating by making them sit in the hallway while the rest of the class prayed, trying to persuade them to ignore their parents and join in the class prayers, and assuring one child that her mother was "a bad person for not believing in God." Doc. 22 at 9; doe. 17-2 (Jane Doe's declaration) at 2. Given the "bullying and unwanted proselytization" of the Doe children, doe. 17-1 at 15, and the documented history of retaliation against those who challenge government-endorsed prayer in the public schools or other public institutions, plaintiffs contend that this is the type of exceptional case where they must remain anonymous or else suffer reprisal from the broader community, a reprisal that they fear will be far worse than what these young children have already experienced. Id. at 16.

Three of the five defendants oppose plaintiffs' motion. Doc. 37 (defendant Ce! Thompson's response); doe. 38 (Thompson response adopted by the defendant ECS and its Superintendent, Kevin Judy). They contend that the relevant considerations for determining whether to grant a plaintiff "Doe" status all militate against plaintiffs' request to proceed anonymously. Plaintiffs, on the other hand, argue that the relevant factors all "weigh heavily in favor of pseudonymity." Doe. 17-1 at 4,


"Lawsuits are public events, " and the public has a presumptive right to know the identity of the litigants who use the courts to resolve their disputes. Doe v. Frank, 951 F.2d 320, 324 (11th Cir. 1992) (per curiam); Doe v. Blue Cross & Blue Shield United, 112 F.3d 869, 872 (7th Cir. 1997) ("The people have a right to know who is using their courts."). The Federal Rules of Civil Procedure specifically provide that "the complaint must name all the parties" to the suit. Fed.R.Civ.P. 10 (a). But "[p]ublic access to this information is more than a customary procedural formality; First Amendment guarantees are implicated when a court decides to restrict public scrutiny of judicial proceedings." Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. Unit A Aug. 1981). Generally, therefore, a plaintiff may not remain anonymous and proceed under a fictitious name simply because the litigation may expose plaintiff to "some personal embarrassment." Frank, 951 F.2d at 324 (denying Doe status to a plaintiff alleging unlawful discrimination because of his handicap, alcoholism).

This general rule "is not absolute, however." Plaintiff B v. Francis, 631 F.3d 1310, 1315 (11th Cir. 2011). In some "exceptional" cases, the public interest in knowing the identity of all the parties must yield "to a policy of protecting privacy in a very private matter.'" Stegall, 653 F.2d at 185. There is "no hard and fast formula for ascertaining whether a party may sue anonymously." Id. at 186. "The ultimate test... is whether the plaintiff has a substantial privacy right which outweighs the customary and constitutionally-imbedded presumption of openness in judicial proceedings.'" Frank, 951 F.2d at 323 (quoting Stegall, 653 F.2d at 186). The Eleventh Circuit, like most federal courts, has developed "a multi-factor balancing test" for weighing these competing interests.[2] Francis, 631 F.3d at 1315; Frank, 951 F.2d at 323 (noting that circuit precedent had "isolated and catalogued" some of the considerations that its prior decisions have taken into account in deciding whether to grant "Doe" status) (citing Stegall, 653 F.2d at 185 and SMU, 599 F.2d at 712). No one factor is "meant to be dispositive;" rather, it is the court's task to "review all the circumstances of a given case and then decide whether the customary practice of disclosing the plaintiff's identity should yield to the plaintiffs privacy concerns." Francis, 631 F.3d at 1316 (citing Frank, 951 F.2d at 323).

In this circuit, the "first step" in the analysis is to look at the three factors identified in the Fifth Circuit's seminal decision in SMU and restated in Stegall. Francis, 631 F.3d at 1316. The Court must ask (1) whether the plaintiffs who seek anonymity are challenging governmental activity; (2) whether the prosecution of their suit compels them to disclose information of the "utmost intimacy;" and (3) whether plaintiffs will be compelled to admit their intention to engage in illegal conduct, thus risking criminal prosecution. Id. The SMU factors are not "prerequisites to bringing an anonymous suit, " Stegall, 653 F.2d at 185, for no rigid formula can hope to incorporate all the considerations that may inform the analysis of the individual case. Id. (noting that SMU was a "fact-sensitive holding"). Thus, the Eleventh Circuit has identified such additional factors "as whether the plaintiffs [are] minors, Stegall, 653 F.2d at 186, whether they [are] threatened with violence or physical harm by proceeding in their own names, id., and whether their anonymity pose[s] a unique threat of fundamental unfairness to the defendant." Francis, 631 F.3d at 1316 (citing SMU, 599 F.2d at 713).

Two of the three factors identified in SMU and Stegall apply here. First, plaintiffs clearly challenge governmental activity - defendants' alleged policy of allowing teacher-led prayer in a public school classroom. "But of course, in only a very few cases challenging governmental activity can anonymity be justified." Stegall, 653 F.2d at 186. Indeed, the Eleventh Circuit has rejected the notion "that there is more reason to grant a plaintiff's request for anonymity if the plaintiff is suing the government." Frank, 951 F.2d at 324. It is not that suing the government weighs in favor of granting a request for anonymity; rather, the operative principle is that a suit against a private party weighs against a plaintiff's request for anonymity. Id. (noting that in SMU it was "because the plaintiffs were suing private individuals rather than a government agency [, which can suffer no injury to its good name and reputation, that] the court found more reason not to grant the plaintiffs' request for anonymity"). Here, plaintiffs sue not only a governmental entity but also the individual administrators and teachers who allegedly punished their children for refusing to participate in classroom prayer. So, the fact that plaintiffs have named a governmental entity as a defendant does not establish their right to anonymity. Indeed, because plaintiffs are suing the school officials in their individual capacities, this factor weighs against their request for anonymity.[3]

The second SMU/Stegall factor - whether plaintiffs will be compelled to disclose information of the "utmost intimacy" - also applies, for plaintiffs' suit touches upon their beliefs about religion, a topic deemed by this circuit to be "the quintessentially private matter." Stegall, 653 F.2d at 186. The fact that religion is an intensely private concern does not inevitably require that an Establishment Clause plaintiff be given Doe status, however. While religion is certainly an individual matter of conscience that is constitutionally shielded from government intervention, Santa Fe Indep. School Dist. v. Doe, 530 U.S. 290, 301-02 (2000), it is generally practiced openly and communally, and no court from this or any other circuit has considered a plaintiff's religious beliefs to be a matter of such sensitivity as to automatically entitle the plaintiff to Doe status.[4] See Stegall, 653 F.2d at 185-86 (emphasizing that there were other factors, not just the fundamental privateness of plaintiffs' views on religion, that warranted plaintiff anonymity in that case). In Establishment Clause cases, therefore, something more is required than just an intrusion into a plaintiff's religious privacy before a court will allow the plaintiff to proceed using a pseudonym. Where the plaintiff is unable to make that additional showing, courts have denied anonymity. See, e.g., Doe v. Pittsylvania County, 844 F.Supp.2d 724, 729 (W.D. Va. 2012) (adult plaintiff challenging the legality of opening school board meetings with Christian prayer denied leave to proceed pseudonymously); Freedom From Religion Found., Inc. v. Cherry Creek Sch. Dist., 2009 WL 2176624 (D. Co. July 22, 2009) (denying parties' unopposed motion to allow adult and minor plaintiffs to remain anonymous in a suit challenging public school district's listing of religious attendance as one of "forty developmental assets" that would reflect positively on a student's future success); Doe v. Beaumont Indep. Sch. Dist., 172 F.R.D. 215 (E.D. Tex. 1997) (minor plaintiffs challenging school district's policy of inviting members of the clergy to counsel with students who volunteered to meet with them would not be allowed to proceed anonymously).[5]

In Stegall, the court granted anonymity to a mother and two children challenging the constitutionality of prayer and bible reading exercises in the Mississippi public schools. 653 F.2d at 181. In addition to noting the intensely private nature of religion, the court emphasized "the special vulnerability" of the child litigants and the fact that they might "expect extensive harassment or perhaps even violent reprisals if their identities are disclosed to a... community hostile to the viewpoint reflected in [their] complaint." Id. at 186. Although the court did not point to any compelling evidence of significant threats of violence or harassment, [6] it emphasized that "[t]he gravity of the danger posed" by revealing plaintiffs' identities need not be as great where children are at risk. Id. (viewing "the youth of these plaintiffs as a significant factor in the matrix of considerations arguing for anonymity"). So, even where the evidence of retaliatory violence is not particularly strong, the balance can tip in favor of anonymity in a case involving child litigants seeking to prevent the state from intruding into a matter of the "utmost intimacy."

Defendants concede, as they must, that this case touches upon plaintiffs' intensely personal beliefs about religion, and that the law's special solicitude for children must be taken into account when assessing the seriousness of the risk posed by the denial of their motion to proceed pseudonymously. Defendants argue, however, that these critical factors do not weigh in favor of granting plaintiffs' motion under the particular circumstances of this case.

First, defendants note (and correctly) that plaintiffs have presented no evidence of any "concrete threats of physical harm or extreme harassment directed toward them... in response to [the] filing of this lawsuit. " Doe. 37 at 2, 9 (emphasis in original). Defendants argue that neither plaintiffs' "vague, unsubstantiated" fears of a hostile community reaction, id. at 11, nor their reference to "horror stories of harassment" in other Establishment Clause cases, id. at 15, overcomes the public's interest in open judicial proceedings. Second, defendants contend (again, correctly) that the mere fact that two of the individual plaintiffs are minors does not automatically entitle them to Doe status. Id. at 17-19; see Stegall, 653 F.2d at 186 (not "all civil rights suits mounted in the name of children may be prosecuted anonymously"). Finally, defendants claim that they will suffer "prejudicial and fundamental unfairness" if the plaintiffs are allowed to proceed anonymously. Id. at 21. The Court is not convinced by these arguments.

It is difficult, if not impossible, to quantify the risk of harm a plaintiff faces when litigating such a socially-charged issue as the constitutionality of teacher-led prayer in a public school setting. In this case, however, the Court does not have to speculate whether plaintiffs will suffer any harm, for they have stated in an unrebutted declaration that such harm has already occurred. According to Jane Doe's Declaration, the Doe children were pressured to ignore their parents and adopt a theistic belief system, and made to suffer when they failed to do so. Doe. 17-2[7]. Defendants' assertion that this evidence is simply a hash" of the complaint's allegations, and therefore of little or no importance, is not persuasive. Doc. 37 at 9. Other courts have given great weight to plaintiff declarations about pre-filing reprisals re-sulting from "airing their views on religion." Doe v. Elmbrook Sch. Dist., 658 F.3d 710, 723 (7th Cir. 2000), rev'd in part on other grounds, 687 F.3d 840 (7th Cir. 2012) (specifically adopting the panel opinion's anonymity analysis).[8] That the evidence of retaliatory harm relates to defendants' own actions rather than the post-filing behavior of other members of the community does not diminish its significance. The defendants, after all, are themselves members of that small community, [9] and it is not unreasonable to assume that their views are shared by many others who reside in the local area. If these defendants - who are educated professionals charged with the welfare and protection of very young children - are willing to pressure those children to ignore their parents and join in classroom prayer, and then ...

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