I recognize that it's often difficult for appellate courts to let something go forward that they think is wrong. But that difficulty only makes faithful adherence to the appropriate standard of review all the more essential.
In short, I'm a big believer in deference.
That said, with all due respect to the unanimous panel in this case, and with full recognition that we're talking about an intensely factual finding of the district court, I could not disagree more strongly with the holding in this case.
This is the latest installment in the longstanding judicial debate about whether the Bishop's Trust in Hawaii can continue to exclude all non-Native Hawaiians from the Kamehameha Schools. For those unfamiliar with the saga, I won't attempt to summarize it, but will instead simply refer to Judge Beezer's very good (and very concise) description in the first several pages of the opinion. Suffice it to say that there have been multiple prior lawsuits, two -- but only two -- non-Native Hawaiians admitted to the schools in the past, and that the latest litigation is a follow-on to a prior lawsuit that was settled at the Supreme Court certiorari stage.
But here's the rub. In the latest lawsuit, the plaintiffs want to file anonymously. And for darn good reason.
For anyone who's not hip to the racial politics of Hawaii, let's just say it's very, very polarized. Perhaps for (again) darn good reason, given the history of the place. But for our purposes, that polarization takes place in a very specific context, particularly when it involves non-Native Hawaiians requesting admission to schools currently reserved for Native Hawaiians. A context replete with both pervasive threats and potential and actual violence.
None of what Judge Beezer recounts is new to me, but it might be new to some readers. So I'll give a snippet of some of what transpires below. Which is important, because the whole appeal is about whether the plaintiffs are able to sue anonymously -- albeit with their identities revealed to counsel for defendants -- rather than being subjected to retaliation for filing the lawsuit:
"After the district court’s order [admitting a prior non-Native Hawaiian to the Kamehama Schools], the U.S. Attorney for Hawaii noted a 'growing sense of anger and rage' and threats of 'kill haole day everyday' [Ed - 'haole' is a derisive term for non-Native Hawaiians] . . . . [A]fter the amount of the Doe I settlement was leaked to the Honolulu press, there were calls to 'break [the plaintiff’s and his attorney’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.' . . . [T]he 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 victims derogatory names related to their skin color, especially 'f------ haole.' . . . [When the magistrate judge denied the plaintiffs' request to sue anonymously,] the online forums of each [Hawaiian] newspaper generated myriad 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.'
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 clients 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 worries . . . I will SPIT on you . . . . it will be my pleasure to beat the crap out of you.'"
To give context to these comments: As Judge Beezer notes in one of the footnotes, “'Kill haole day' is an unofficial tradition in Hawaiian public schools when some Native Hawaiian children 'beat[ ] up Caucasian students on the last day of school.'"
Notwithstanding all of this, the Ninth Circuit holds that the district court could properly refuse to allow the plaintiffs to sue anonymously because it did not abuse its discretion when it found that the plaintiffs' fear of harm was unreasonable. It's not that the panel thought that this conclusion was clearly right; indeed, Judge Beezer expressly says that "were we permitted to make findings and weigh the factors anew, we might have held that anonymity here was appropriate." But the standard of review, the panel concluded, was determinative. It was reasonable to conclude on the evidence that plaintiffs' fear of harm was unreasonable.
Again, I care about the standard of review, and admire both the practice and implementation of deference. But this is the exceptionally rare case in which, in my view, the evidence is crystal clear, and in which the plaintiffs' fear of harm was indisputably entirely legitimate and as well as reasonable.
I'm not at all surprised that once they were not permitted to sue anonymously, the plaintiffs elected to dismiss their lawsuit entirely. I'd have done the same. Precisely because their fear was both palpable and infinitely reasonable.
I understand and appreciate that other people might perhaps disagree, and I agree with Judge Beezer that it's a lot easier to make anonymous threats on the internet than to actually beat people up.
But let me make just three simple points.
(1) People are actually beat up. Already. Young children. For simply being Caucasian (or of another non-Hawaiian race); that's the whole point of "Kill Haole Day." And this all happens to kids who haven't forced their way into the Kamehameha Schools. To think that at least that (or worse) might well happen to plaintiffs seems more than reasonable. This is not merely random fantasy stuff on the internet. It happens. It's real.
(2) Maybe it's my own sense of history. But does anyone else's mind, upon hearing the issue here, harken back to this photograph? Mine does. Change the colors. Make Elizabeth Eckard white (rather than black) and Hazel Bryan native Hawaiian (rather than white). That's what I think we're talking about. Would the Ninth Circuit's ruling really be the same as it is here if we were talking about Little Rock in 1957? Would the Ninth Circuit really say that a district court could legitimately have found that the Little Rock Seven unreasonably feared for their safety? I think not. And, in this regard, the colors may have changed, as well as the reasons (and perhaps even the legitimacy of the opposition). But as far as safety is concerned, the analogy -- sadly -- still holds.
(3) I'd ask the panel, which I sincerely respect, this question: What if it was your own child? Assume you wanted the best education for your child, and thought -- rightly or wrongly -- that s/he was illegally excluded therefrom, and wanted to bring a lawsuit. You saw the exact same things the district court saw. The routinized, race-based beatings. The internet threats. The letters and e-mails to your lawyers. The overarching racial polarization. Do you think that any reasonable observer could rationally call your fear for your child unreasonable in this setting?
For me, all of those points come together, but the last point seems dispositive. One of the express factors in the anonymity test -- a "significant" one -- is the youth and vulnerability of the plaintiffs. Here, the plaintiffs are young students. They are alone and isolated at school, in a racial milieu that's already extremely polarized.
To reveal their identities will unquestionably cause them harm. They'll unquestionably, in my mind, be insulted, picked on, harassed, and otherwise abused by various classmates. Will such abuse also include physical assault? Maybe. But all together, I have no doubt whatsoever that the harm here is sufficiently concrete to justify anonymous litigation. Particularly in the context of a lawsuit in which the identity of the plaintiffs is largely irrelevant to the merits, and which is brought on behalf of pretty much everyone similarly situated.
So I've often opined as to the need for deference. But there are limits. With respect, this is one of them. And, in my view, clearly so.