John Doe v. John L. McMillan

442 F.2d 879, 143 U.S. App. D.C. 157, 1971 U.S. App. LEXIS 11425

• Court: Court of Appeals for the D.C. Circuit
• Decided: March 11, 1971
• Docket: 71-1027_1
• Status: Published

Opinions

PER CURIAM:

Plaintiff-appellants in this case are students at Jefferson Junior High School and their parents. Defendant-appellees are (1) the Chairman and Members of the Committee on the District of Columbia of the House of Representatives, (2) the Clerk, Staff Director, Counsel and a consultant to the Committee, (3) the Superintendent of Public Documents and the Public Printer, i. e., the Government Printing Office, (4) the President and Members of the Board of Education of the District of Columbia, (5) the Superintendent of the Public Schools of the District of Columbia, (6) the Principal of Jefferson Junior High School, (7) a teacher at Jefferson Junior High School, (8) a District of Columbia Police Officer acting as an investigator for the Committee, and (9) the United States.

Appellants brought a class action in the District Court for damages and for an injunction against further publication and distribution of certain school documents identifying them personally. Notably, they sought to enjoin further publication and distribution of a House District Committee Report on the District of Columbia school system containing copies of (1) student absentee lists, (2) letters, memoranda, and other papers regarding student disciplinary problems, and (3) student test papers, because these documents included their names and addresses.¹ Appellants allege that such publication violates their constitutional right to privacy.

The District Court denied appellants’ motion for temporary relief and dismissed their complaint. This appeal followed. Appellants moved for summary reversal or an injunction pending appeal. On January 14, 1971, this Court issued an injunction to preserve the status quo until responses were filed. The order did not enjoin members of the Committee or the United States, but did prohibit the other defendants from any further publication and distribution of such papers, in the Report or otherwise, as long as the papers contained the names and addresses of pupils and parents. The appellees have now responded, and moved for summary affirmance.

This appeal raises difficult questions concerning appellants’ claimed right of privacy and the immunity claimed by appellees acting pursuant to the authority of the House District Committee. Summary treatment of these issues would be inappropriate. We therefore deny appellants’ motion for summary reversal and appellees’ motions for summary affirmance. Instead, we order that the case be set for argument on an expedited basis as soon as possible after the briefs are filed.

With regard to appellants’ request for continuation of the injunction pending appeal, the Court is sensitive to the importance of avoiding “needless friction” between the judiciary and the legislature.² However, our constitutional obligations require us to take into account the claim of irreparable harm caused by continued publication and distribution of the Report containing names and addresses of pupils and parents. Appellants’ claim that they will be publicly stigmatized is substantial, and their claim of invasion of constitutional privacy, and lack of proper legislative purpose to warrant such invasion to the extent of broadcasting names and identities, is worthy of serious consideration on the merits. The dimensions of the constitutional issue have been heightened by a recent Supreme Court decision that official publication of a list of names stigmatizing individuals, without notice or hearing, violates due process of law; two Justices concluded that the list eon-stituted a bill of attainder, a point not reached by the majority.³

In one respect, we conclude that the injunction previously entered should be modified. The simple fact of a student’s absence from public school, like his presence there, is less significant in terms of protected privacy than his performance on a particular test or his disciplinary difficulties. We modify the injunction to permit the publication of names of students absent from school.

The injunction as so modified will be continued in effect pending the expedited litigation. We reiterate that this order does not apply to the Congressmen, and we further stress that it permits the Committee staff and other defendants to participate in publication and distribution of the Report following excision of the names and addresses of particular individuals from test papers and from any references to disciplinary problems. If this Court ultimately upholds the authority to publish the identities of individuals, they could be added in a supplemental report. The Court has not been advised of an imminent legislative need for the enjoined defendants to participate in immediate publication and distribution of names and addresses. Under the present circumstances, we conclude that continuation of the injunction as modified, pending determination of an expedited appeal, is a responsible exercise of our duties.

So ordered.

1 . Investigation and Study of the Public School System of the District of Columbia, Report of the Committee on the District of Columbia, House of Representatives, H.R.Rep.No.91-1681, 91st Cong., 2d Sess. (Dec. 8, 1970).

2 . Ansara v, Eastland, 142 U.S.App.D.C. -, 442 F.2d 751 (1971) (at 752). See also Railroad Comm’n v. Pullman Co., 312 U.S. 496, 500, 61 S.Ct. 643, 85 L.Ed. 971 (1941); Cole v. McClellan,-U.S. App.D.C. -, 439 F.2d 534 (1970) (at 535); Davis v. Ichord, 142 U.S.App.D.C. -, 442 F.2d 1207 (1970) (at 1217-1220) (Leventhal, J., concurring).

3 . Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971).