(The opinions expressed here are those of the author, a

columnist for Reuters.)

By Alison Frankel

April 1 (Reuters) - Six right-leaning nonprofits have

called on a U.S. appeals court to reconsider its decision that

organizations must name their affected members in lawsuits

seeking to block alleged discrimination.

The American Alliance for Equal Rights, the Manhattan

Institute, Speech First and other conservative groups cited the

U.S. Supreme Court's 1958 decision allowing the NAACP to shield

its membership information from the state of Alabama in briefs

arguing that the new rule - adopted last month by the 2nd U.S.

Circuit Court of Appeals in a lawsuit challenging a Pfizer ( PFE )

diversity fellowship - will chill civil rights

litigation because plaintiffs fear harassment and retaliation if

their identities are revealed.

"If the cost of joining a civil rights organization that

litigates controversial claims is disclosure of members'

identities, the organizations will cease to exist," argued the

American Alliance for Equal Rights, which was founded by

anti-affirmative action activist Edward Blum and last year

brought lawsuits challenging diversity programs at Perkins Coie,

Morrison & Foerster and Winston Strawn after the Supreme Court

barred racial consideration in college admissions.

"Individuals join such groups precisely because the groups

litigate for them so they do not have to endure the harassment

and threats that accompany positions that challenge orthodox

thinking," the Blum group said.

American Alliance and the other organizations urged the 2nd

Circuit to grant a March 20 en banc petition by Do No Harm, a

conservative group opposed to diversity initiatives in the

healthcare industry. Do No Harm's petition asked the full

appeals court to ditch a three-judge panel decision that upheld

the dismissal of its lawsuit to block a Pfizer ( PFE ) fellowship

program for Black, Latino and Native American college students.

Neither Pfizer ( PFE ) nor its outside lawyers from Dechert and

Paul, Weiss, Rifkind, Wharton & Garrison responded to my email

query on the amicus filings. The company has until April 8 to

respond to the en banc petition. As Reuters has reported, Pfizer ( PFE )

altered the fellowship's criteria while the case was pending and

now anyone can apply.

All three of the judges on the 2nd Circuit panel agreed that

Do No Harm failed to establish its constitutional right to seek

a preliminary injunction on behalf of two members who claimed

they would have applied for the Pfizer ( PFE ) fellowship had they not

been excluded by its racial criteria. But as I told you at the

time, the panel split on whether organizations must provide the

court with the names of allegedly affected members in order to

meet standing requirements.

Judges Beth Robinson and Dennis Jacobs held that

organizations seeking a preliminary injunction must disclose the

name of at least one allegedly injured member to the court as a

"demonstration of the sincerity of the member's interest." In

dissent, Judge Richard Wesley said the rule was unnecessary,

ungrounded in precedent and potentially "troubling" for civil

rights groups across the ideological spectrum.

Do No Harm argued in its en banc petition that the 2nd

Circuit's "naming" rule splits with recent decisions from the

10th and D.C. Circuits. Both of those appellate courts rejected

arguments that organizations suing on behalf of anonymous

members did not meet constitutional standing requirements.

In its ruling last month, the 2nd Circuit majority

distinguished the 10th Circuit case because it said the standing

inquiry is more rigorous when plaintiffs are seeking a

preliminary injunction. But the plaintiff in the 10th Circuit

case, Speech First, argued in an amicus brief backing Do No

Harm's en banc request that its case against Oklahoma State

University and Do No Harm's Pfizer ( PFE ) lawsuit were postured

similarly.

Both Speech First and the Manhattan Institute (whose brief

was co-signed by Young America's Foundation and the Southeastern

Legal Foundation), argued that students, in particular, are

afraid of reprisal for challenging majority views on such

controversial issues as abortion and gender identity. The

Manhattan Institute and its fellow amici posited that the 2nd

Circuit's naming requirement in the Pfizer ( PFE ) case violates the 1st

Amendment rights of Do No Harm's student members who said they

were excluded from the fellowship.

All of the amicus briefs asserted that the 2nd Circuit's

naming requirement will deter cutting-edge civil rights

litigation by organizations that sue on behalf of their members.

"Given the contentious issues and high visibility of public

interest litigation, injured people are rightly hesitant to come

forward as individual plaintiffs," Pacific Legal Group said in

its brief. "Associational representation ensures important legal

questions are not abandoned for lack of individual plaintiffs

willing to risk the public exposure gauntlet."

The American Alliance argued that Blum's experience as the

architect of several challenges to affirmative action -

including the successful student lawsuit challenging Harvard's

admissions policies - shows why groups must be allowed to

preserve their members' anonymity. Blum has received all manner

of death threats and other threats of violence, the brief said.

The Blum group's brief also questioned whether judges in the

Pfizer ( PFE ) case have been more skeptical of Do No Harm than of

traditional civil rights organizations, even though Do No Harm

provided affidavits from the student members who said they would

have applied for the Pfizer ( PFE ) gig.

"AAER is gravely concerned that a group challenging racial

preferences is presumed to be lying, whereas other groups making

different sorts of civil rights challenges get the benefit of

the doubt," the brief said.

Do No Harm and its amici, as I mentioned, echoed Wesley's

dissent to argue that all kinds of organizations will be

affected by the 2nd Circuit's naming rule, pointing to precedent

from cases brought by the NAACP, the ACLU, labor unions and

environmental activists.

Do No Harm repeated that point in an email statement

responding to my query on the amicus filings: "This issue is

crucial for associations of all stripes," the group said.

That may be, but only conservative outfits filed briefs

backing Do No Harm. No progressive group, union or minority

organization - nor even a business organization - called on the

2nd Circuit to rehear the case.

Read more:

Pfizer ( PFE ) diversity case splits appeals court over 'naming

names' to establish a right to sue

Group suing over Pfizer ( PFE ) diversity fellowship program loses

US appeal

Activist behind US affirmative action cases sues major law

firms