Jim Dey: Appeals court rules a rose by any other name would not pass sniff test

May 1—What's in a name?

Juliet raised that philosophical question in William Shakespeare's "Romeo and Juliet," the Bard's classic about the two star-crossed lovers caught in the middle of the famous feud between two families — the Montagues and the Capulets.

"What's in a name? That which we call a rose by any other name would smell as sweet," she ponders.

Well, that's one way of looking at it. Considering the same question involving a much more practical issue, a Chicago federal appeals court concluded that names matter in civil litigation and should be withheld under only the most special of circumstances.

"Why should a plaintiff be able to shield himself from public knowledge of his acts when throwing a harsh light on identified defendants? If there should be a difference, it ought to run the other way — as plaintiffs enjoy an absolute privilege against claims of defamation for what they say in their complaints and briefs," appellate Justice Frank Easterbrook recently wrote for a unanimous three-judge panel.

The ruling stems from a lawsuit filed by John Doe — his identification for the moment — against Indiana University alleging IU violated his rights when it suspended him from medical school for one year.

The suspension grew out of a physical dispute between Doe and a female IU student that occurred off campus.

The incident's locale raised — but did not resolve — an issue as to whether the university's disciplinary process has any jurisdiction in those kinds of cases.

Easterbrook wrote there is "some doubt about how, if at all, Title IX applies to student-against-student misconduct that appears to be unrelated to a university or its facilities." But he said "this case does not require" the court to address the issue.

University disciplinary officials, who too often assert vast jurisdiction and abuse their authority, ought to keep that issue in mind.

In this case, Doe alleged the university discriminated against him because he's a male who was caught up in an anti-male disciplinary process.

While acknowledging the university overstepped its bounds in its disciplinary action against Doe, the court said that in this case, IU did not discriminate against him because of sex.

Easterbrook wrote "the training materials that the (trial) judge examined support a conclusion that the university's personnel were trained to favor complainants," most of whom are women. But he said that inherent institutional bias "can't be described as sex discrimination" by IU.

Ultimately, the judges decided to send the case back to the trial judge, but with a caveat.

"If Doe elects to continue with the suit, his true name must be disclosed to the public. ... If Doe elects not to reveal his name, the complaint must be dismissed," Easterbrook wrote.

The law requires that a legal complaint "must name all parties," but there are limited exceptions.

Minors are identified by their initials. Those who credibly argue they will be physically harmed or retaliated against can obtain anonymity.

That adverse reaction, however, must be "beyond the reaction legitimately attached to the truth of events as determined in court."

Because mere embarrassment doesn't cut it, the appeals court ruled the trial judge erred when he granted Doe anonymity based on how others might view him.

"Title IX litigation is not an exception to the norm that adult litigants are identified by name," Easterbrook wrote.

In other words, a litigant identified by any name other than his own almost always would leave a foul odor in the courtroom.