Cross appeals from a judgment of the Southern District, Motley, Judge, which declared that defendants could prohibit distribution of a sex questionnaire to ninth and tenthgrade students at Stuyvesant High School but enjoined defendants from restraining distribution to eleventh and twelfth-grade students on First Amendment grounds. The judgment is reversed insofar as it enjoins defendants from prohibiting distribution of the questionnaire to eleventh and twelfth-grade students, with directions to dismiss the complaint.
Lumbard, Mansfield, and Gurfein, Circuit Judges. Gurfein, Circuit Judge, concurring. Mansfield, Circuit Judge, dissenting.
These are cross appeals from a judgment of the Southern District, Constance Baker Motley, Judge, entered on December 16, 1976, which enjoined defendants from restraining plaintiffs' attempts to distribute a sex questionnaire to eleventh and twelfth-grade students at Stuyvesant High School in New York City and to publish the results in the student publication, "The Stuyvesant Voice." Plaintiffs Jeff Trachtman, then a senior student at Stuyvesant and editor-in-chief of the "Voice,"*fn1 and his father, Gilbert M. Trachtman, appeal from so much of the court's decision that allows defendants to prohibit distribution of the questionnaire to ninth and tenth-grade students at Stuyvesant. Defendants, Chancellor of the New York City Public Schools and officials of the New York City school system, contend that the district court erred in holding that their prohibition of the distribution of the questionnaire to any students at Stuyvesant violated the First Amendment. We conclude that defendants' actions in prohibiting the proposed sexual survey did not violate any constitutional right of the plaintiffs; accordingly, the order of the district court is reversed insofar as it restrains defendants from prohibiting distribution of the questionnaire to eleventh and twelfth-grade students at Stuyvesant.
This controversy began when Jeff Trachtman and Robert Marks, a staff member of the "Voice," submitted a plan to survey the sexual attitudes of Stuyvesant students and publish the results in the "Voice" to the school's principal, defendant Fabricante. Initially, the plan contemplated oral interviews of a "cross section" of the student population to be conducted by a group of student researchers. Mr. Fabricante denied the students permission to conduct the survey and, on December 4, 1975, Marks wrote to defendant Gelernter, Administrator of Student Affairs, seeking approval of the project. Gelernter responded by letter, dated December 17, 1975, stating that the proposed survey could not be conducted.
The students sought review of Gelernter's decision by Chancellor Anker. By this time the focus of the proposed survey had shifted from oral interviews to a questionnaire. Thus, in their letter to Anker, dated December 24, 1975, Trachtman and Marks submitted for review a questionnaire consisting of twenty-five questions, which, they advised, was to be used as a means for obtaining information for an article on "Sexuality in Stuyvesant" to appear in the "Voice." The questions, which the district court described as "requiring rather personal and frank information about the student's sexual attitudes, preferences, knowledge and experience," covered such topics as pre-marital sex, contraception, homosexuality, masturbation and the extent of students' "sexual experience." The questionnaire included a proposed cover letter which described the nature and purpose of the survey; it stressed the importance of honest and open answers but advised the student that, "you are not required to answer any of the questions and if you feel particularly uncomfortable - don't push yourself. "
The students sought permission to distribute the questionnaire on school grounds on a random basis. The answers were to be returned anonymously and were to be kept "confidential." The students were to tabulate the results and publish them in an article in the "Voice," which would also attempt to interpret the results.
Having received no reply from Chancellor Anker, on January 13, 1976 Marks and Trachtman wrote to Harold Siegel, Secretary of the Board of Education, and requested approval of their plan. Siegel responded in a letter dated February 27, 1976, to which he attached the decision of the Board. The decision advised the students that the survey could not be conducted stating, "Freedom of the press must be affirmed; however no inquiry should invade the rights of other persons." The decision indicated that the type of survey proposed could be conducted only by professional researchers, with the consent of the students' parents. The decision noted that "matters dealing with sexuality could have serious consequences for the well being of the individual," and pointed out that the students lacked the requisite expertise to conduct such a survey and that the survey proposed made no provision for parental consent and did not guarantee the anonymity of those who answered.
Mr. Siegel responded to a request for reconsideration by indicating that the Board believed that many students would be harmed if confronted with the questions propounded by the questionnaire.
Plaintiffs commenced this action on August 26, 1976, seeking declaratory and injunctive relief under 42 U.S.C. § 1983, on the ground that the defendants' actions in prohibiting the dissemination of the questionnaire and publication of its results violated the First Amendment.
At a hearing on plaintiffs' motion for a preliminary injunction on September 23, 1976, the court decided to consolidate the motion with trial on the merits. See Fed. R. Civ. P. 65(a)(2). Thereafter, the parties agreed that the court should decide the issues on the basis of affidavits. Accordingly, the district court's decision was based upon the briefs, and affidavits of the parties and their expert witnesses.
Judge Motley found that permission to distribute the questionnaire could be denied consistently with the First Amendment only if defendants could prove that "there is a strong possibility the distribution of the questionnaire would result in significant psychological harm to members of Stuyvesant High School." She found that the "thrust" of defendants' evidence was that many high school students were only beginning to develop sexual identities and that the questionnaire would force emotionally immature individuals to confront difficult issues prematurely and become "quite apprehensive or even unstable as a result of answering this questionnaire." The court found this argument convincing with respect to thirteen and fourteen year old students; however, as to older students, the court found the claims of potential emotional damage unconvincing and concluded that the psychological and educational benefits to be gained from distribution of the questionnaire to this group of students outweighed any potential harm. Accordingly, the court held that defendants could not prohibit the students from distributing the questionnaire to eleventh and twelfth-grade students and from publishing the results in the "Voice." The court also found that certain safeguards should guide distribution of the questionnaire and ordered that the students and school officials should negotiate a plan to implement distribution and to provide for "both confidential and public discussion groups for students who would like to talk with school personnel after the distribution of the survey and publication of the results in the Voice."
On appeal both parties agree that the defendants' restraint of the students' efforts to collect and disseminate information and ideas involves rights protected by the First Amendment. See Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 21 L. Ed. 2d 731, 89 S. Ct. 733 (1969); cf. Kleindienst v. Mandel, 408 U.S. 753, 762-63, 33 L. Ed. 2d 683, 92 S. Ct. 2576 (1972). Essentially, resolution of the issues here turns upon a narrow question: What was it necessary for the defendants to prove to justify the prohibition of the distribution of the questionnaire and did the defendants meet this burden of proof?
Our inquiry must begin with Tinker, where the Supreme Court stated:
The principal use to which the schools are dedicated is to accommodate students during prescribed hours for the purpose of certain types of activities. Among those activities is personal intercommunication among the students. This is not only an inevitable part of the process of attending school; it is also an important part of the educational process. A student's rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects . . ., if he does so without "materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school" and without colliding with the rights of others. But conduct by the student, in class or out of it, which for any reason - whether it stems from time, place, or type of behavior - materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.
393 U.S. at 512-13 (citations and footnotes omitted).
Essentially, the defendants' position is that the students here seek not only to communicate an idea but to utilize school facilities to solicit a response that will invade the rights of other students by subjecting them to psychological pressures which may engender significant emotional harm.*fn2 Plaintiffs do not question defendants' authority to protect the physical and psychological well being of students while they are on school grounds, see, e.g., Ginsberg v. New York, 390 U.S. 629, 640-41, 20 L. Ed. 2d 195, 88 S. Ct. 1274 (1968); Prince v. Massachusetts, 321 U.S. 158, 165, 88 L. Ed. 645, 64 S. Ct. 438 (1944); Kampmeier v. Nyquist, 553 F.2d 296, (2d Cir. 1977); rather, they contend that defendants have not made a sufficient showing to justify infringement of the students' rights to speech and expression.*fn3
In interpreting the standard laid down in Tinker, this court has held that in order to justify restraints on secondary school publications, which are to be distributed within the confines of school property, school officials must bear the burden of demonstrating "a reasonable basis for interference with student speech, and . . . courts will not rest content with officials bare allegation that such a basis existed." Eisner v. Stamford Board of Education, 440 F.2d 803, 810 (2d Cir. 1971).*fn4 At the same time, it is clear that school authorities need not wait for a potential harm to occur before taking protective action. See Tinker v. Des Moines Independent Community School District, supra, 393 U.S. at 514; Russo v. Central School District No. 1, Towns of Rush, 469 F.2d 623, 632 (2d Cir. 1972), cert. denied, 411 U.S. 932, 36 L. Ed. 2d 391, 93 S. Ct. 1899 (1973); Quarterman v. Byrd, 453 F.2d 54, 58-59 (4th Cir. 1971). Although this case involves a situation where the potential disruption is psychological rather than physical, Tinker and its progeny hold that the burden is on the school officials to demonstrate that there was reasonable cause to believe that distribution of the questionnaire would have caused significant psychological harm to some of the Stuyvesant students.*fn5
In support of their argument that students confronted with the questionnaire could suffer serious emotional harm, defendants submitted affidavits from four experts in the fields of psychology and psychiatry. Florence Halpern, professor of psychology at the New York University School of Medicine, stated that many adolescents are anxious about the "whole area of sex" and that attempts to answer the questionnaire by such students "would be very likely" to create anxiety and feelings of self-doubt; further, she stated that there were almost certainly some students with a "brittle" sexual adjustment and that for "such adolescents, the questionnaire might well be the force that pushes them into a panic state or even a psychosis." She concluded that distribution of the questionnaire was a "potentially dangerous" act that was "likely to result in serious injury to at least some of the students."
Dr. Aaron H. Esman, chief psychiatrist at the Jewish Board of Guardians (an organization providing mental health treatment to emotionally disturbed children) and an associate in psychiatry at the Columbia University College of Physicians and Surgeons, indicated that a number of the questions (particularly those dealing with homosexuality, masturbation, and "sexual experience") were "highly inappropriate," particularly for children ages twelve through fourteen; such questions, in Dr. Esman's opinion, were "likely to arouse considerable anxiety and tension," which "might well lead to serious emotional difficulties."
Vera S. Paster, a psychologist and assistant director of the Bureau of Child Guidance (the mental health agency for the New York City school system) asserted that there were a "large number" of high school students who would need help dealing with the anxiety reactions caused by confronting the questionnaire and that the proposed methodology of the ...