Harvard Objects to Protective Order for Anonymous Students in Sanctions Lawsuit

Harvard is arguing that plaintiffs in the federal lawsuit opposing the College’s social group sanctions are “premature” in requesting an order to protect anonymous undergraduates’ identities from public disclosure, the University’s attorneys wrote in a court filing Monday.

“There is no exigency that justifies rushing this request to the Court,” the document reads. “Harvard requests that the Plaintiffs’ motion for a protective order be denied.”

Three unidentified College students — members of all-male social clubs at Harvard — are plaintiffs in the lawsuit, along with the Harvard chapter of Sigma Alpha Epsilon and the parent organizations of two sororities and two fraternities. They allege the University's sanctions on social groups are unconstitutional and discriminatory on the basis of sex. The penalties bar members of single-gender social organizations from selection to varsity athletic captaincies, campus leadership positions, and College endorsement for prestigious fellowships like the Rhodes.

The plaintiffs’ Dec. 3 complaint includes a request that the students, called “the John Doe Plaintiffs” in court documents, remain unnamed out of concern about “the very reputational and professional harm that this lawsuit seeks to remedy.”

The plaintiffs moved to use pseudonyms to refer to the students and asked the judge for a protective order mandating the redaction of personally identifying information in filings.

“John Doe 1, John Doe 2, and John Doe 3 fear they will suffer harassment and threats for bringing this lawsuit,” the attorneys wrote. “They also fear retribution from Defendants for bringing the lawsuit.”

Harvard’s lawyers disputed the relevance of a protective order on the grounds that they have neither received a request to confer with the plaintiffs — a legal requirement for such an order — nor sought information about the students’ identities, according to the Monday filing. But they did not object to anonymity for the students, though they wrote that they might do so in future filings.

Harvard wrote in the Monday filing that it intends to file a “rule 12 motion,” which legal experts say would argue that even if the plaintiffs’ factual allegations are completely true, they do not show that the sanctions are discriminatory under the law. If Chief Judge Patti B. Saris ’73 of the United States District Court in Boston — the federal judge assigned to the case — agrees with this motion, she will dismiss the case and protecting the students' identities will be a moot point. Saris is a former member of the Harvard Board of Overseers, the University’s second-highest governing body, and was Associate Managing Editor of The Crimson.

CUNY law professor Merrick T. Rossein said he thinks the court will likely deny the plaintiffs’ request for a protective order, noting that a “strong presumption” in favor of public disclosure raises a high bar for plaintiffs seeking anonymity.

“Anonymous lawsuits are the rare exception,” Rossein said. “There’s a strong public interest in disclosure, that the citizenry should understand what’s going on in the courts and the people have a right to know what’s going on.”

Some legal experts said they thought the request for anonymity should also not succeed.

Attorney Douglas E. Fierberg, whose legal practice specializes in school violence and fraternity-related assault, said he sees “no circumstance” where these motions should be granted.

“The plaintiffs’ request to proceed by pseudonym and pursue a protective order protecting their identity is, to me, unwarranted by law,” Fierberg said. “That’s just not going to happen.”

Even if the plaintiffs’ request for a protective order does not succeed, Harvard’s decision not to object to pseudonyms now may “allay the concerns of the plaintiffs,” according to attorney Sean P. Callan, whose firm advises fraternities and sororities.

When Saris ultimately decides whether to grant the undergraduates anonymity, her ruling could affect their involvement in the suit. In court declarations filed by the anonymous students, each one stated “I will not go forward with the lawsuit” if “it is determined that my identity must be disclosed in order to participate.”

Andrew Tutt, a lawyer at the D.C.-based firm Arnold & Porter who represents the plaintiffs, wrote in an email that the motion is “ripe for resolution” and that it would “not be surprising” for the judge to rule within the next few weeks.

Harvard has retained the services of international legal firm Goodwin Procter LLP to defend it in federal court. Its legal team includes former federal prosecutor Roberto M. Braceras and William M. Jay, an assistant to the Solicitor General with extensive experience arguing before the Supreme Court. Legal experts say the defense is likely to be a lengthy fight that will cost the University millions of dollars.

Harvard’s sanctions policy, which debuted in 2016 and first applied to the Class of 2021, was the outcome of a years-long committee review and a formal vote of the Harvard Corporation, the University’s highest governing body. Final clubs in Harvard Square — which have actively lobbied against the policies — are not yet formally involved in the litigation.

Harvard has until Feb. 4 to respond to the plaintiffs’ complaint in federal court. The University also faces another discrimination suit in Massachusetts state court; it must respond to that complaint by Feb. 8.

—Staff writer Samuel W. Zwickel can be reached at samuel.zwickel@thecrimson.com. Follow him on Twitter @samuel_zwickel.