Doe v. Kamehameha Schools/Bernice Pauahi Bishop Estate ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACOB DOE, a minor, by parents 
and next friends, James and Joyce
Doe; JANET DOE, a minor, by
parents and next friends James and
Joyce Doe; KARL DOE, a minor, by
parents and next friends, Kirk and
Kate Doe; LISA DOE, a minor, by
mother and next friend, Laura
Doe,
No. 09-15448
Plaintiffs-Appellants,
D.C. No.
v.
 1:08-cv-00359-JMS-
KAMEHAMEHA SCHOOLS/BERNICE BMK
PAUAHI BISHOP ESTATE; NAINOA
OPINION
THOMPSON, in his capacity as
Trustee; DIANE J. PLOTTS, in her
capacity as Trustee; CORBETT A.K.
KALAMA, in his capacity as
Trustee; ROBERT K.U. KIHUNE, in
his capacity as Trustee; J.
DOUGLAS ING, in his capacity as
Trustee,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, District Judge, Presiding
Argued and Submitted
October 13, 2009—Honolulu, Hawaii
Filed March 2, 2010
3311
3312 DOE v. KAMEHAMEHA SCHOOLS
Before: Robert R. Beezer, Susan P. Graber and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Beezer
3314 DOE v. KAMEHAMEHA SCHOOLS
COUNSEL
Eric Grant, Sacramento, California, for the plaintiffs-
appellants.
DOE v. KAMEHAMEHA SCHOOLS 3315
Kathleen M. Sullivan, Quinn Emanuel Urquhart Oliver &
Hedges LLP, New York, New York, for the defendants-
appellees.
OPINION
BEEZER, Circuit Judge:
Few tenets of the United States justice system rank above
the conflicting principles presented in this case: the transpar-
ency and openness of this nation’s court proceedings and the
ability of private individuals to seek redress in the courts
without fear for their safety. The plaintiffs, four minor chil-
dren (“the Doe children”), seek to proceed anonymously in
their suit against Kamehameha Schools’ allegedly race-based
admissions policy. The plaintiffs’ parents fear for the chil-
dren’s safety if their identities are revealed. After carefully
considering the issue, the magistrate judge and district judge
decided that the prejudice to the defendants and the public’s
interest in open courts outweigh plaintiffs’ fears of harm.
Rather than disclose their names, the Doe children suffered
dismissal with prejudice with leave to appeal, giving us juris-
diction under 28 U.S.C. § 1291. We affirm.
I
The Hawaiian monarchy was overthrown in 1893, and
Hawaii was annexed as a territory of the United States in
1897. Doe v. Kamehameha Sch./Bernice Pauahi Bishop
Estate (Doe I), 470 F.3d 827, 831 (9th Cir. 2006) (en banc).
By that time, U.S. and foreign settlement had brought eco-
nomic distress, mortality and disease; the Native Hawaiian
population had dwindled to 22,600 in 1919, from a population
10 to 50 times larger a century and a half earlier. See id. at
830.
3316 DOE v. KAMEHAMEHA SCHOOLS
It was in this context that in 1884, Princess Bernice Pauahi
Bishop, the last descendant of the Hawaiian monarchy, estab-
lished two schools and a testamentary trust to fund them. See
Leigh Caroline Case, Note, Hawaiian Eth(n)ics: Race and
Religion in Kamehameha Schools, 1 Wm. & Mary Bill Rts.
J. 131, 131 (1992). The Kamehameha Schools have sought to
preserve the Hawaiian culture and identity by providing
classes on Hawaiian culture and teaching classes in the
Hawaiian language. The teaching and use of the Hawaiian
language were banned in public schools from 1896 to 1986.
U.S. Dep’t of Justice & U.S. Dep’t of Interior, From Mauka
to Makai: The River of Justice Must Flow Freely 29 (2000).
The schools have since expanded to three K-12 campuses,
and the trust totaled $9.1 billion in 2008—a private educa-
tional endowment surpassed in the United States by very few
universities. See Rick Daysog, Kamehameha Assets Approach
$9.1 Billion, Honolulu Advertiser, Feb. 9, 2008; Donald A.
Thompson, Note, Brown v. Kamehameha Schools: An Instru-
mental Critique of Remedial Self-Segregation in Private Edu-
cation, 81 S. Cal. L. Rev. 831, 833-34 (2008). But the board
of trustees has interpreted the trust instrument to require the
admission of Native Hawaiians to the near exclusion of appli-
cants of other racial backgrounds. Doe I, 470 F.3d at 832. The
Schools’ publicly acknowledged policy is to grant admission
to any applicant with any amount of Native Hawaiian blood
before admitting other applicants. Id. Indeed, since 1966, only
two non-Native Hawaiians have been admitted. David M.
Forman, The Hawaiian Usage Exception to the Common
Law: An Inoculation Against the Effects of Western Influence,
30 U. Haw. L. Rev. 319, 331 (2008).1
The schools voluntarily admitted one non-Native applicant,
Kalani Rosell, in 2002, after determining that all qualified
1
In the 1960s, Kamehameha Schools reversed its previous policy of
allowing children of faculty members to attend the schools. Doe I, 470
F.3d at 870 (Bybee, J., dissenting).
DOE v. KAMEHAMEHA SCHOOLS 3317
Native Hawaiian applicants had been admitted. See id.;
Thompson, supra, at 833. The ensuing protests prompted
Kamehameha to amend its admissions policy. Thompson,
supra, at 833. Kamehameha waived the application fee and
the minimum-test-score requirement, effectively ensuring that
there would never again be an insufficient number of quali-
fied Native-Hawaiian applicants. Id.
Another non-Native Hawaiian was admitted in 2003.
Kamehameha Schools admitted Brayden Mohica-Cummings,
who applied as a Native Hawaiian because his mother was
adopted by a Native Hawaiian. Forman, supra, at 332. After
determining that Mohica-Cummings was not of Native
Hawaiian ancestry, Kamehameha rescinded his admission. Id.
Mohica-Cummings sued for an injunction admitting him to
the Schools. Id. The District of Hawaii granted a temporary
injunction admitting the boy, and he was eventually allowed
to matriculate as part of the settlement with Kamehameha. Id.
In 2003, a non-Native applicant to Kamehameha, chal-
lenged the Schools’ admissions policy under 42 U.S.C.
§ 1981. See Doe I, 470 F.3d at 829. The district court upheld
the admissions policy. Id. A panel of this Court reversed, but
the en banc court reversed again, concluding that the admis-
sions policy was a valid affirmative action plan. See id. The
suit settled while the petition for certiorari was pending before
the Supreme Court. Thompson, supra, at 835. The next day,
the attorney in Doe I announced his intention to bring this suit
in order to seek Supreme Court review of the Ninth Circuit’s
en banc decision. See id.
This case, however, quickly became mired in procedural
conflict. In Doe I, Kamehameha never objected to the fact that
the plaintiff proceeded anonymously, but the school objected
to the Doe children’s request for anonymity in this case. The
Doe children moved for leave to proceed anonymously.2
2
Plaintiffs’ names were told to Kamehameha’s counsel and some staff
under a protective order.
3318 DOE v. KAMEHAMEHA SCHOOLS
In their motion, the Doe children argued that they reason-
ably fear physical injury if their identities are revealed. First,
the Doe children pointed to public reactions to the District of
Hawaii’s injunction provisionally admitting Mohica-
Cummings to Kamehameha. After the district court’s order,
the U.S. Attorney for Hawaii noted a “growing sense of anger
and rage” and threats of “kill haole day everyday,” prompting
him to warn the public that violence or threats of violence
based on race are federal offenses.3
Second, the plaintiffs referred to an affidavit executed by
the Doe I plaintiff’s mother. She recounted that after the
amount of the Doe I settlement was leaked to the Honolulu
press, there were calls to “break [the plaintiff’s and his attor-
ney’s] every bone and make [those] bastards suffer.” Others
stated that “now the boy will have to pay” because they knew
people “who want to kick this boys [sic] ****.” Still others
urged that the identities of the Doe I plaintiff and his mother
be exposed to force them “to stand up and face those that they
are robbing.” She stated that because of these threats, she and
her son would “fear for [their] safety if [their] identities
[were] made public” and that they were “prepared to move
and go into hiding” if their identities were revealed.
Third, the Doe children referred to various internet postings
regarding their lawsuit. One posting predicted that if the
plaintiffs were admitted to Kamehameha, they were “jus
gonna get lickins everyday.” Another posting warned that if
plaintiffs’ “haole attorneys continue doing this, one day
they’re gonna be targeted by some crazy Hawaiian or group
of Hawaiians armed with baseball bats or guns.”
3
“Haole” is a term in the Native Hawaiian language denoting a for-
eigner, especially a White or Caucasian person. Webster’s Third New
International Dictionary of the English Language, Unabridged 1030
(1981). “Kill haole day” is an unofficial tradition in Hawaiian public
schools when some Native Hawaiian children “beat[ ] up Caucasian stu-
dents on the last day of school.” Craig Gima, ‘Kill Haole Day’ Linked to
Hate-Crime Bill, Honolulu Star Bulletin, Mar. 24, 1999.
DOE v. KAMEHAMEHA SCHOOLS 3319
Finally, the plaintiffs called the court’s attention to violent
crimes with racial overtones committed by Native Hawaiians
against non-Natives. In some of these crimes, young children
severely injured their non-Native classmates, calling the vic-
tims derogatory names related to their skin color, especially
“f------ haole.”
Magistrate Judge Kurren found that the threats against
plaintiffs in previous lawsuits and the attorneys were not
directed toward the Doe children. The magistrate judge also
found that other internet “comments [were] not threats but
[did] voice the commentators’ frustration with this lawsuit.”
Likewise, the magistrate judge discounted the anonymous
internet comments suggesting that the Doe children would be
injured at Kamehameha Schools, relying on the plaintiffs’
statement that they “are fearful of public harassment and
retaliation, as reflected in public threats and other vitriol, not
with possible retaliation and ostracism at KS if and when they
are admitted.” Although the plaintiffs’ parents’ affidavits
showed “subjective fear” of retaliation, the court found that,
“[a]t most, Plaintiffs’ evidence suggests they may be socially
ostracized.” The magistrate judge denied the motion to pro-
ceed anonymously.
Later that afternoon, two Hawaiian newspapers published
stories reporting on the magistrate judge’s order. The online
forums of each newspaper generated myriad comments. The
Doe children moved to reconsider based on this newly discov-
ered evidence, highlighting comments such as, “Good that the
judge ordered them to make these little brats [sic] names
known to the public, so they can be tormented by their fellow
students and general public.” Another posting stated that these
“4 kids . . . will need 10 bodyguards lol.” Another read, “Sac-
rifice them!!!!!!!!,” and another: “And I’d say the majority of
‘us’ don’t want anything bad to happen to the kids. We all
realize that they are mere pawns in this mess caused by
‘adults.’ Now stringing up those scum lawyers is not such a
bad idea. (Don’t be scared, it’s in the Halloween spirit).”
3320 DOE v. KAMEHAMEHA SCHOOLS
Another predicted that if their names were revealed, the plain-
tiffs “would have to watch their backs for the rest of their
lives!”
Plaintiffs also introduced threatening comments made to
their attorney, David Rosen. Rosen received a phone call on
the afternoon the magistrate judge’s decision was filed. The
caller warned that “everyone is going to know who your cli-
ents are. Now, both you and your haole clients can get the
lickins’ you deserve. Why do you f------ haoles even come to
Hawaii?” He also received an email:
You are a son of a bitch . . . I know so many kids
that did not get into kamehameha schools with
Hawaiian blood and you are trying to take that away
. . . I am tired of haoles like you. yOU JEWISH
SHITHEAD!!!! if i see you ever in public..no wor-
ries . . . I will SPIT on you . . . and YOU will throw
the first punch . . . and believe me . . . it will be my
pleasure to beat the crap out of you . . . by the way
. . . i am a NON Hawaiian . . . .
The magistrate judge found the additional comments “no
more probative of a threat of harm to Plaintiffs than evidence
this Court previously considered” and denied the motion to
reconsider.
On review, the district court concluded that the motion to
proceed anonymously was a nondispositive matter under Fed-
eral Rule of Civil Procedure 72(a) and upheld the magistrate
judge’s findings as neither clearly erroneous nor contrary to
law. The district court determined that the Doe children had
committed two fatal procedural flaws in their briefing.4 In the
4
The district court ruled against the Doe children’s motion to proceed
anonymously on two procedural grounds, which we reject. The district
court correctly determined that the Doe children’s motion was nondisposi-
tive under Federal Rule of Civil Procedure 72(a) and Local Rule 74.1 and
DOE v. KAMEHAMEHA SCHOOLS 3321
alternative, the district judge ruled against the Doe children on
the merits. The court found that the Doe children only
appealed two of the relevant factors—whether the threatened
harm is sufficiently severe and whether reasonable persons in
the plaintiffs’ position would believe that they might actually
be harmed.5 The court concluded that, “[g]iven the absence of
threats directed to Plaintiffs, no reasonable person in any posi-
tion would believe a threat would be carried out.”
II
We review the district court’s denial of plaintiffs’ motion
for leave to proceed anonymously for an abuse of discretion.
that the standard of review was whether the magistrate judge’s findings
were “clearly erroneous or contrary to law.” See 28 U.S.C. § 636(b)(1)(A);
Maisonville v. F2 Am., Inc., 902 F.2d 746, 747-48 (9th Cir. 1990). None-
theless, the Doe children’s failure to argue under the correct standard of
review did not constitute procedural default.
Second, the district court affirmed the magistrate judge’s report on the
ground that the Doe children offered no arguments for reversal but just
incorporated by reference arguments made before the magistrate judge.
Plaintiffs argue that Local Rule 74.1 requires only that the “appealing
party [file and serve] a written statement of appeal [on the district court]
which shall specifically designate the order, or part thereof, appealed
from.” Kamehameha Schools argues that Federal Rule of Civil Procedure
10(c) does not allow a party to incorporate earlier briefing by reference.
See Swanson v. U.S. Forest Serv., 87 F.3d 339, 345 (9th Cir. 1996)). Yet
the Doe children justify their incorporation by reference under Local Rule
74.1, not Federal Rule 10(c). Rule 74.1 must be interpreted in light of
Local Rule 74.2, which requires a party appealing a magistrate judge’s
case dispositive order to file “written objections that specifically identify
the portions of the order, findings, or recommendations to which objection
is made and the basis for such objections.” The absence of such specific
requirements in Rule 74.1 is telling. Therefore, the Doe children did not
default by merely appealing the magistrate judge’s order and incorporating
the arguments fully briefed before the magistrate judge.
5
Given that we hold that the Doe children did not procedurally default,
we also hold that they properly appealed consideration of all the factors
relevant to a motion to proceed anonymously.
3322 DOE v. KAMEHAMEHA SCHOOLS
Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058,
1069 (9th Cir. 2000). We must affirm the district court unless
the district court “relied on an erroneous view of the law,
made a clearly erroneous assessment of the evidence, or
struck an unreasonable balance of the relevant factors.” Id.
III
[1] To determine whether to allow a party to proceed anon-
ymously when the opposing party has objected, a district
court must balance five factors: “(1) the severity of the threat-
ened harm, (2) the reasonableness of the anonymous party’s
fears, . . . (3) the anonymous party’s vulnerability to such
retaliation,” (4) the prejudice to the opposing party, and (5)
the public interest. Id. at 1068 (internal citations omitted).
[2] The Advanced Textile analysis here is quite difficult,
particularly in light of the controversy surrounding the case,
the recognized tension between some Native Hawaiians and
non-Natives in Hawaii and the threats against the anonymous
plaintiffs. Still, the district court did not abuse its discretion
in refusing to allow anonymity because the district court did
not clearly err in its conclusion that the Doe children do not
reasonably fear severe harm. Thus, the district court did not
unreasonably conclude that the public interest and possible
prejudice to the defendants outweigh the plaintiffs’ interest in
anonymity.
A
[3] The Advanced Textile factor concerning the public
interest sets the stage for our debate, so it is where we begin.
The normal presumption in litigation is that parties must use
their real names. See id. at 1067-68; Fed. R. Civ. P. 10(a).
This presumption is loosely related to the public’s right to
open courts, see Advanced Textile, 214 F.3d at 1067, and the
right of private individuals to confront their accusers, see S.
DOE v. KAMEHAMEHA SCHOOLS 3323
Methodist Univ. Ass’n of Women Law Students v. Wynne &
Jaffe, 599 F.2d 707, 713 (5th Cir. 1979).
[4] In this circuit, the common law rights of access to the
courts and judicial records are not taken lightly. We recognize
that there is a “general right to inspect and copy public
records and documents, including judicial records and docu-
ments.” Kamakana v. City of Honolulu, 447 F.3d 1172, 1178
(9th Cir. 2006) (internal quotation marks and citations omit-
ted). The “public interest in understanding the judicial pro-
cess” has supported our “general history of access.” Id. at
1178-79 (internal quotation marks omitted).
[5] But, on the other side of the public-interest debate, it is
difficult to see “how disguising plaintiffs’ identities will
obstruct public scrutiny of the important issues in this case.”
Advanced Textile, 214 F.3d at 1072. The Doe children bring
claims of widespread discrimination. Neither the district
court, the Ninth Circuit panel nor the en banc court in Doe I
placed any reliance on the plaintiff’s identity. There is no rea-
son to believe these issues will play a greater role here.
The district court concluded that the public scrutiny of the
Doe children’s standing would be impaired by anonymity.
Defendants proclaim that “the standing issue is of critical (in
fact, constitutional) significance to the litigation.” Although
standing is indeed of paramount importance to the plaintiffs’
ability to sue, it is certainly not the main issue in the public’s
eye. And, with such a large applicant pool, the court will most
likely be able to discuss most aspects of an individual’s appli-
cation without revealing the individual plaintiff’s identity.
[6] Similarly, we recognize that the fact that the “public
. . . has an interest in seeing this case decided on the merits”
weighs in favor of allowing anonymity. Id. at 1073. Indeed,
the district court’s finding that “this case presents extremely
controversial and very important issues in Hawaii” weighs in
favor of allowing the Doe children to proceed anonymously.
3324 DOE v. KAMEHAMEHA SCHOOLS
See id. at 1072. Because the case was dismissed for failure to
include the plaintiffs’ names in the complaint, “permitting the
plaintiffs to use pseudonyms [would] serve the public’s inter-
est in this lawsuit by enabling it to go forward.” Id. at 1062,
1073.
[7] The district court properly weighed the arguments
under the public-interest factor both for and against anonym-
ity. Given the strong general presumption that plaintiffs will
conduct litigation under their own names, we cannot say that
the district court abused its discretion by concluding that this
factor favors defendants.
B
[8] The important public-interest factors on both sides of
the issue lay the foundation for our debate, but the outcome
of this case comes down to the two most important factors—
severity of the threatened harm and the reasonableness of the
plaintiffs’ fears. As the district court recognized, these two
Advanced Textile factors are intricately related and should be
addressed together. In order to proceed anonymously, a plain-
tiff must show both (1) a fear of severe harm, and (2) that the
fear of severe harm is reasonable. The district court did not
clearly err in concluding that the Doe children do not reason-
ably fear severe harm.
First, the district court must identify the harm that the
plaintiffs fear. Here, the Doe children primarily fear physical
harm if their identities are revealed. The Doe children point
to threats that they were “jus gonna get lickins everyday” and
that these “4 kids . . . will need 10 bodyguards lol.” The chil-
dren likewise point to the phone call to their attorney threaten-
ing that now “both you and your haole clients can get the
lickins’ you deserve.” They also point to the vitriolic threats
of “kill haole day everyday” after Mohica-Cummings was
admitted to Kamehameha.
DOE v. KAMEHAMEHA SCHOOLS 3325
[9] These threats of physical retaliation are undoubtedly
severe. In Advanced Textile, we recognized that physical harm
presents the paradigmatic case for allowing anonymity. In that
case, the non-resident plaintiffs faced the severe threats of
deportation, arrest, and imprisonment, such that they did “not
need to prove that they face[d] a danger of physical injury.”
Id. at 1071.
[10] But, as the district court recognized, fear of severe
harm is irrelevant if the plaintiffs do not reasonably fear
severe harm. The district court did not abuse its discretion in
concluding that the Doe children’s fears of severe harm are
not reasonable. Advanced Textile instructs that “plaintiffs are
not required to prove that the defendants intend to carry out
the threatened retaliation. What is relevant is [whether] plain-
tiffs were threatened, and [whether] a reasonable person
would believe that the threat might actually be carried out.”
Id.
To judge the reasonableness of the plaintiffs’ fears, we
must consider the surrounding context and other listeners’
reactions to the threats. Cf., e.g., Planned Parenthood of the
Columbia/Willamette, Inc. v. Am. Coal. of Life Activists, 290
F.3d 1058, 1079-80 (9th Cir. 2002) (en banc) (taking into
account the context of the “random acts of violence” of oth-
ers); United States v. Prochaska, 222 F.2d 1, 2 (7th Cir. 1955)
(finding in criminal speech case that “[w]ritten words or
phrases take their character as threatening or harmless from
the context in which they are used, measured by the common
experience of the society in which they are published”).6 In
6
These First Amendment cases discussing the concept of a “true threat”
are helpful, but the analysis here is not identical. The First Amendment
cases pose a higher bar to finding a reasonable fear. In those cases, one
party’s fear of the threat must be weighed against the opposing party’s
First Amendment right to speak freely because the threatened party seeks
to prevent the other party’s speech (the alleged threats). See, e.g., Planned
Parenthood, 290 F.3d at 1071-72 (noting that the definition of “threat” is
strict in First Amendment cases because advocating violence is protected
but threatening violence is not). In this case, no one is arguing that the
courts should enjoin the internet posters or other speakers.
3326 DOE v. KAMEHAMEHA SCHOOLS
context, a plaintiff might reasonably fear a veiled threat of
violence. See Doe v. Stegall, 653 F.2d 180, 183 n.6 (5th Cir.
1981) (holding that the plaintiffs reasonably feared harm and
could proceed pseudonymously where locals reacted to a law-
suit about school prayer at a meeting by saying things like
“God is fixing to come back. He’ll show them,” “Christians
must beat the evil out of these people,” and “We have got to
band together and whop this evil thing”). On the other hand,
a court may disregard a comment, which is a threat on its
face, because the context demonstrates frustration, a joke, or
political commentary instead of a true intent to harm. See
Watts v. United States, 394 U.S. 705, 706-07 (1969) (per
curiam) (concluding that speech against military draft that
“[i]f they ever make me carry a rifle the first man I want to
get in my sights is L.B.J.” was protected political speech in
part because listeners laughed). It is in the particular purview
of the district court to view alleged threats in context and
determine what the “reasonable” person in the plaintiffs’ situ-
ation would fear.
Here, there are several facts militating in favor of a finding
that the Doe children’s fears are reasonable. In context, the
threats on the internet become much more frightening. The
context no doubt includes random acts of racial violence
against non-Native Hawaiian children. This is amplified by
calls for “kill haole day everyday,” when a non-Native was
recently admitted to Kamehameha.
And as for evaluating the effect on other listeners, the U.S.
Attorney for Hawaii did not laugh or dismiss the calls for “kill
haole day” as the listeners laughed at the “threat” against
President Johnson in the Watts case. Instead, the U.S. Attor-
ney issued a strongly worded warning, reminding the public
that threats based on race are a federal felony. Likewise, many
of the “listeners” responding to the internet postings took the
comments very seriously. One internet poster accused the oth-
ers of “just want[ing] to persecute these kids,” and another
poster responded that “the majority of ‘us’ don’t want any-
DOE v. KAMEHAMEHA SCHOOLS 3327
thing bad to happen to the kids,” implying that others did wish
the children harm.
[11] Nonetheless, the district court did not abuse its discre-
tion in concluding that the plaintiffs’ fears were unreasonable.
The magistrate judge correctly recognized that many times
people say things anonymously on the internet that they
would never say in another context and have no intention of
carrying out. See Mark Plate, Online Abuses Spur Policy
Changes, Honolulu Advertiser, Nov. 24, 2008 (message from
Senior Vice President/Editor of The Honolulu Advertiser, not-
ing the problems the newspaper had with internet postings on
many stories: “Since we opened up the option . . . for readers
to comment on every story, . . . . [u]nfortunately, we have
seen a steady rise of hateful name-calling, innuendo and inane
drivel, all of it anonymous”). The magistrate judge noted that
plaintiffs had culled only a few comments out of hundreds of
anonymous comments regarding this case. And he recognized
that many of the “threats” were accompanied by statements
supporting non-violence. One poster the Doe children cite as
making threatening comments later stated that “No one wants
to see any of the kids hurt by this. The people I know would
fight to the death to save these kids if anyone tries to harm
them.” The district court also correctly evaluated the Doe
children’s concession “that they are not fearful of ‘retaliation
and ostracism at [Kamehameha] if and when they are admit-
ted’ ” in discounting the threats that the children would get
“lickins” everyday at school. Likewise, Rosell and Mohica-
Cummings both attended Kamehameha with no reported
incidents—either at school or outside the school setting.
Mohica-Cummings used his real name in litigation against
Kamehameha, and his counsel specifically stated that the U.S.
Attorney’s warnings to the public were unnecessary. The dis-
trict court did not abuse its discretion in determining that the
plaintiffs’ fears were unreasonable.
3328 DOE v. KAMEHAMEHA SCHOOLS
C
[12] Because the district court did not abuse its discretion
by determining that the public interest weighs against ano-
nymity and that the Doe children do not reasonably fear
severe harm, the remaining two factors do not tip the balance.
The district court correctly concluded that the third factor, the
vulnerability of plaintiffs, weighs in favor of anonymity.
Although the “youth of these plaintiffs [is] a significant factor
in the matrix of considerations arguing for anonymity,” Ste-
gall, 653 F.2d at 186, the district court concluded that the Doe
children do not reasonably fear severe harm despite this vul-
nerability. Likewise, the district court did not abuse its discre-
tion in determining that plaintiffs’ fears do not outweigh
possible prejudice to defendants—however minimal that prej-
udice might be—in light of the district court’s conclusion that
these fears are unreasonable.7
7
The district court did not discuss this element because it found that the
plaintiffs had not sufficiently objected to the magistrate judge’s resolution
of this factor. We conclude that the plaintiffs raised this argument before
the district court, see supra notes 4-5, but hold that this factor does not
sway our analysis.
The magistrate judge found that the defendants would be prejudiced if
the Doe children were to proceed anonymously due to standing-related
discovery. The magistrate judge found that obtaining records regarding the
Doe children, such as applications, would be burdened by the limited
number of employees allowed to know the plaintiffs’ names. The Doe
children counter that thousands of pages of discovery, including plaintiffs’
application packages, have already been produced.
We doubt that anonymity would hinder the defendants’ standing
defense. The Doe children have revealed their names under a protective
order, and the parties could refer in general terms to the Doe children’s
relevant characteristics, such as whether they completed their applications
or met the school’s requirements in terms of test scores and grades. Like-
wise, the Doe children’s actual applications could be used simply by
redacting the children’s names and any particular identifying information.
However, the district court did not abuse its discretion by finding that
defendants would have been hindered in their efforts to gather third-party
discovery concerning standing and in defending the high-profile case in
the media, if not in the courts.
DOE v. KAMEHAMEHA SCHOOLS 3329
We are sympathetic to the concerns of the Doe children and
their parents, but we recognize the paramount importance of
open courts. For this reason, the default presumption is that
the plaintiffs will use their true names. We also emphasize
that, as an appellate court, we are constrained by the applica-
ble standard of review. Had the district court found that ano-
nymity was appropriate, we likely would have concluded that
the district court did not abuse its discretion. Or, were we per-
mitted to make findings and weigh the factors anew, we might
have held that anonymity here was appropriate. As it is, how-
ever, we review the district court’s decision only for abuse of
discretion. Because the district court did not abuse its discre-
tion in determining that the Doe children do not reasonably
fear severe harm, we affirm the district court’s order dismiss-
ing the case based on plaintiffs’ failure to disclose their identi-
ties.
AFFIRMED.