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-JMSKAMEHAMEHA 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
Before: Robert R. Beezer, Susan P. Graber and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Beezer

3312 DOE v. KAMEHAMEHA SCHOOLS
COUNSEL

Eric Grant, Sacramento, California, for the plaintiffsappellants.

3314 DOE v. KAMEHAMEHA SCHOOLS
Kathleen M. Sullivan, Quinn Emanuel Urquhart Oliver &

Hedges LLP, New York, New York, for the defendantsappellees.

OPINION

BEEZER, Circuit Judge:

Few tenets of the United States justice system rank above

the conflicting principles presented in this case: the transparency 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 children (“the Doe children”), seek to proceed anonymously in

their suit against Kamehameha Schools’ allegedly race-based

admissions policy. The plaintiffs’ parents fear for the children’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 jurisdiction 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 economic 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.

DOE v. KAMEHAMEHA SCHOOLS 3315
It was in this context that in 1884, Princess Bernice Pauahi

Bishop, the last descendant of the Hawaiian monarchy, established 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 educational 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 Instrumental Critique of Remedial Self-Segregation in Private Education, 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 applicants 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). 

3316 DOE v. KAMEHAMEHA SCHOOLS
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 qualified 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, challenged 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 admissions 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

2Plaintiffs’ names were told to Kamehameha’s counsel and some staff

under a protective order. 

DOE v. KAMEHAMEHA SCHOOLS 3317
In their motion, the Doe children argued that they reasonably 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 MohicaCummings 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 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.” 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 foreigner, 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 students on the last day of school.” Craig Gima, ‘Kill Haole Day’ Linked to

Hate-Crime Bill, Honolulu Star Bulletin, Mar. 24, 1999. 

3318 DOE v. KAMEHAMEHA SCHOOLS
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 victims 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 proceed 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 discovered 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, “Sacrifice 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).”

DOE v. KAMEHAMEHA SCHOOLS 3319
Another predicted that if their names were revealed, the plaintiffs “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 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 . . . 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 Federal 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

4The 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 nondispositive under Federal Rule of Civil Procedure 72(a) and Local Rule 74.1 and

3320 DOE v. KAMEHAMEHA SCHOOLS
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 position 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). Nonetheless, 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. 

5Given 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. 

DOE v. KAMEHAMEHA SCHOOLS 3321
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 anonymously when the opposing party has objected, a district

court must balance five factors: “(1) the severity of the threatened 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.

3322 DOE v. KAMEHAMEHA SCHOOLS
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 documents.” Kamakana v. City of Honolulu, 447 F.3d 1172, 1178

(9th Cir. 2006) (internal quotation marks and citations omitted). The “public interest in understanding the judicial process” 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 reason 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 application 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.

DOE v. KAMEHAMEHA SCHOOLS 3323
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 interest 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 anonymity. 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 plaintiff 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 reasonably 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 children likewise point to the phone call to their attorney threatening 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. 

3324 DOE v. KAMEHAMEHA SCHOOLS
[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] plaintiffs 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 others); 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

6These 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. 

DOE v. KAMEHAMEHA SCHOOLS 3325
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 lawsuit 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’ situation 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. Attorney 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 others of “just want[ing] to persecute these kids,” and another

poster responded that “the majority of ‘us’ don’t want any3326 DOE v. KAMEHAMEHA SCHOOLS
thing bad to happen to the kids,” implying that others did wish

the children harm. 

[11] Nonetheless, the district court did not abuse its discretion 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, noting 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 admitted’ ” in discounting the threats that the children would get

“lickins” everyday at school. Likewise, Rosell and MohicaCummings 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 district court did not abuse its discretion in determining that the

plaintiffs’ fears were unreasonable.

DOE v. KAMEHAMEHA SCHOOLS 3327
C

[12] Because the district court did not abuse its discretion

by determining that the public interest weighs against anonymity 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,” Stegall, 653 F.2d at 186, the district court concluded that the Doe

children do not reasonably fear severe harm despite this vulnerability. Likewise, the district court did not abuse its discretion in determining that plaintiffs’ fears do not outweigh

possible prejudice to defendants—however minimal that prejudice might be—in light of the district court’s conclusion that

these fears are unreasonable.7

7The 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. Likewise, 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.

3328 DOE v. KAMEHAMEHA SCHOOLS
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 applicable standard of review. Had the district court found that anonymity was appropriate, we likely would have concluded that

the district court did not abuse its discretion. Or, were we permitted to make findings and weigh the factors anew, we might

have held that anonymity here was appropriate. As it is, however, we review the district court’s decision only for abuse of

discretion. Because the district court did not abuse its discretion in determining that the Doe children do not reasonably

fear severe harm, we affirm the district court’s order dismissing the case based on plaintiffs’ failure to disclose their identities.

AFFIRMED.

DOE v. KAMEHAMEHA SCHOOLS 3329