Trachtman v. Anker

563 F.2d 512, 3 Media L. Rep. (BNA) 1041

• Court: Court of Appeals for the Second Circuit
• Decided: August 31, 1977
• Docket: Nos. 989, 990, Dockets 77-7011, 77-7033
• Status: Published

Opinions

LUMBARD, Circuit Judge:

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,” ¹ 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. Fabri-cante 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-mari-tal 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, “[y]ou 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 “[mjatters 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 in-junctive 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, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); cf. Kleindienst v. Mandel, 408 U.S. 753, 762-63, 92 S.Ct. 2576, 33 L.Ed.2d 683 (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 interfering] 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, 89 S.Ct. at 739-40 (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.² 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, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968); Prince v. Massachusetts, 321 U.S. 158, 165, 64 S.Ct. 438, 88 L.Ed. 645 (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.³

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).⁴ 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, 89 S.Ct. 733; Russo v. Central School District No. 1, Towns of Rush, 469 F.2d 623, 632 (2d Cir. 1972), cert. denied, 411 U.S. 932, 93 S.Ct. 1899, 36 L.Ed.2d 391 (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.⁵

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 survey would make it impossible to provide “back up support or protection” for such students.

Dr. Ingram Cohen, chief school psychiatrist of the Bureau of Child Guidance, indicated that there are wide discrepancies in the physical and psychological development of adolescent students, even among students of the same age. Dr. Cohen also pointed out that the survey made no provision for assistance to students who reacted adversely to it and concluded that it had a sufficient potential for harm to justify prohibiting its dissemination.

The record shows that the curriculum at Stuyvesant includes various courses on sex and sexuality and that professionally supervised peer-group discussions are sponsored by the school. The defendants have consistently treated the topic of sexuality as an important part of students’ lives, which requires special treatment because of its sensitive nature. Thus, the school system has provided several courses on the physical and emotional aspects of sex; such courses are taught by teachers with special qualifications and administrative materials emphasize the sensitive nature of the topic.⁶ Further, the Board has consistently taken the position that even professional researchers may not conduct “sexual surveys” of students without meeting certain specific requirements.⁷

Plaintiffs offered statements from five experts, including Gilbert Trachtman, who is a professor of educational psychology at New York University. Plaintiffs’ experts questioned the possibility that any emotional harm could be caused by students’ attempts to answer the questionnaire, pointed out that the survey might be of substantial benefit to many students, and expressed the opinion that “squelching” the survey could have deleterious effects. They indicated that the topics covered in the questionnaire are of normal interest to adolescents and are common subjects of conversation; further, some of these experts emphasized that students in Manhattan are bombarded with sexually explicit materials and that it was highly unlikely that any student could be harmed by answering the questionnaire. It is noteworthy, however, that at least two of plaintiffs’ experts, one of whom was Gilbert Trachtman, recognized that there was some possibility that some students would suffer emotional damage as a result of answering the questionnaire.⁸

The district court evidently found that there was a “strong possibility” that distribution of the questionnaire would result in significant psychological harm to ninth and tenth-grade students at Stuyvesant. The court did not find that there was no possibility of harm to eleventh and twelfth-grade students; rather, it concluded that any harm was outweighed by psychological and educational benefits to be gained from the questionnaire’s distribution. This observation is substantiated by the fact that the court ordered the parties to provide for “confidential and public discussion groups” for students who wished to talk with school personnel after the survey; apparently, this was in response to defendants’ contention that the survey as proposed failed to make any provision for counseling students who were disturbed by the questionnaire.

In determining the constitutionality of restrictions on student expression such as are involved here, it is not the function of the courts to reevaluate the wisdom of the actions of state officials charged with protecting the health and welfare of public school students. The inquiry of the district court should have been limited to determining whether defendants had demonstrated a substantial basis for their conclusion that distribution of the questionnaire would result in significant harm to some Stuyvesant students. In this regard, we must keep in mind the repeated emphasis of the Supreme Court that,

Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. ... By and large, public education in our Nation is committed to the control of state and local authorities.

Goss v. Lopez, 419 U.S. 565, 578, 95 S.Ct. 729, 738, 42 L.Ed.2d 725 (1975), quoting Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968). See Ingra-ham v. Wright, 430 U.S. 651, 680, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977); Tinker v. Des Moines Independent Community School District, supra, 393 U.S. at 507, 89 S.Ct. 733; Buck v. Board of Education of the City of New York, 553 F.2d 315, 320 (2d Cir. 1977).

We believe that the school authorities did not act unreasonably in deciding that the proposed questionnaire should not be distributed because of the probability that it would result in psychological harm to some students. The district court found this to be so with respect to ninth and tenth-grade students. We see no reason why the conclusion of the defendants that this was also true of eleventh and twelfth-grade students was not within their competence. Although psychological diagnoses of the type involved here are by their nature difficult of precision, cf. Cruz v. Ward, 558 F.2d 659, 662 (2d Cir. 1977), we do not think defendants’ inability to predict with certainty that a certain number of students in all grades would be harmed should mean that defendants are without power to protect students against a foreseen harm. We believe that the school authorities are sufficiently experienced and knowledgeable concerning these matters, which have been entrusted to them by the community; a federal court ought not impose its own views in such matters where there is a rational basis for the decisions and actions of the school authorities. See Eisner v. Stamford Board of Education, supra, 440 F.2d 810; Butts v. Dallas Independent School District, 436 F.2d 728, 732 (5th Cir. 1971). Their action here is not so much a curtailment of any First Amendment rights; it is principally a measure to protect the students committed to their care, who are compelled by law to attend the school, from peer contacts and pressures which may result in emotional disturbance to some of those students whose responses are sought. The First Amendment right to express one’s views does not include the right to importune others to respond to questions when there is reason to believe that such importuning may result in harmful consequences.⁹ Consequently where school authorities have reason to believe that harmful consequences might result to students, while they are on the school premises, from solicitation of answers to questions, then prohibition of such solicitation is not a violation of any constitutional rights of those who seek to solicit.

In sum, we conclude that the record established a substantial basis for defendants’ belief that distribution of the questionnaire would result in significant emotional harm to a number of students throughout the Stuyvesant population. Accordingly, the judgment is reversed insofar as it restrains defendants from prohibiting distribution of the questionnaire to eleventh and twelfth-grade students at Stuyvesant and the case is remanded with instructions to dismiss the complaint.

1 . We note that the senior class at Stuyvesant was scheduled to graduate on June 22, 1977 and, thus, Jeff Trachtman may no longer be a member of the student body. However, assuming Trachtman has graduated, we do not think that the case has thereby become moot. See, e.g., DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974). In bringing this suit Trachtman was acting not only as a student but in a representational capacity as editor-in-chief of “The Stuyvesant Voice.” Thus, plaintiffs’ complaint states that Tracht-man is the editor-in-chief of the “Voice” and that the proposed survey was prepared by members of the “Voice” staff in preparation for an article to appear in a March 1976 issue of the “Voice.” The record indicates that the questionnaire at issue and the proposed article were approved by the entire editorial board of the “Voice.” The complaint requests relief on behalf of “plaintiffs and other [sic] similarly situated” and asks that the defendants be enjoined from prohibiting the publication and interpretation of the results of the questionnaire in the “Voice.” Further, Judge Motley specifically noted that in seeking permission to conduct the survey Trachtman was acting “in his capacity as editor-in-chief of the Voice.”

Although the complaint did not formally so assert, Trachtman was litigating in a representational capacity. Cf. Richardson v. Ramirez, 418 U.S. 24, 36-40, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974). Plaintiffs seek to vindicate not only Trachtman’s rights as an individual student, but the right of the “Voice” and its staff to conduct the survey. Accordingly, we think the fact that Trachtman may no longer be a student at Stuyvesant does not moot the case as we have no doubt that there is a proper adversary relationship here to assure proper presentation of the issues (plaintiffs are represented by an attorney affiliated with the New York Civil Liberties Union), see Franks v. Bowman Transportation Co., 424 U.S. 747, 752-57, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976), and plaintiffs may be considered as acting on behalf of a student association and its members who have a continuing stake in this litigation. Cf. Hunt v. Washington State Apple Advertising Commission, -U.S.-,-, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977).

2 . Plaintiffs’ desire to use Stuyvesant students as research subjects distinguishes this case from such cases as Shanley v. Northeast Independent School District, 462 F.2d 960 (5th Cir. 1972) and Bayer v. Kinzler, 383 F.Supp. 1164 (E.D.N.Y.1974), affd, 515 F.2d 504 (2d Cir. 1975), which held that school officials could not restrain the distribution of school newspapers containing information about birth control. The questionnaire does not seek to convey information but to obtain it in a manner that school officials contend may result in psychological damage. The fact that some students may read the proposed cover letter and decide not to answer the questionnaire does not diminish the legitimate concern of school officials. for those students who decide to answer it.

Further, we cannot ignore the fact that plaintiffs intend to present a report on .“Sexuality in Stuyvesant,” which will attempt to interpret the results of the questionnaire and make conclusions based thereon. We think the school officials may legitimately be concerned that the proposed article will attempt to make “scientific” conclusions about the sexual habits of Stuyvesant students that may be misleading.

3 . Plaintiffs do not challenge the procedure by which the Board’s decision was reached and this case does not involve any administrative regulation placing a per se ban on all student surveys. Compare Eisner v. Siam-ford Board of Education, 440 F.2d 803 (2d Cir. 1971). It is clear that defendants have not tried to suppress all forms of student expression on sex-related matters. Indeed, the curriculum at Stuyvesant includes both formal courses on sex education and peer-group discussion sessions. See discussion, infra. Further, the record shows that defendants would not have attempted to prevent distribution of the questionnaire off school grounds. In addition, this entire controversy has been reported in an article in the school newspaper, which included one of the questions in the questionnaire. See Record, affidavit of Sanford Gelernter, exhibit K. Thus, this case involves restriction of only one among many methods of communication between students on sex-related matters, which the Supreme Court has noted, “is not without significance to First Amendment analysis, since laws regulating the time, place or manner of speech stand on a different footing than laws prohibiting speech altogether.” Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85, 93, 97 S.Ct. 1614, 1618, 52 L.Ed.2d 155 (1977).

4 . Similarly, in Katz v. McAulay, 438 F.2d 1058 (2d Cir. 1971), cert. denied, 405 U.S. 933, 92 S.Ct. 930, 30 L.Ed.2d 809 (1972), we upheld the denial of a preliminary injunction against high school officials’ refusal to allow the distribution of leaflets soliciting funds for a political cause on public school grounds noting that, “The Board’s regulation appears to be reasonable and proper and has a rational relationship to the orderly operation of the school system.” Id. at 1061. See Tinker v. Des Moines Independent Community School District, supra, 393 U.S. at 513, 89 S.Ct. 733. Nitzberg v. Parks, 525 F.2d 378, 382-83 (4th Cir. 1975); Butts v. Dallas Independent School District, 436 F.2d 728, 732 (5th Cir. 1971); Scoville v. Board of Education, Joilet Township, 425 F.2d 10, 13-15 (7th Cir.), cert. denied, 400 U.S. 826, 91 S.Ct. 51, 27 L.Ed.2d 55 (1970). See also, Presidents Council, District 25 v. Community School Board No. 25, 457 F.2d 289 (2d Cir.), cert. denied, 409 U.S. 998, 93 S.Ct. 308, 34 L.Ed.2d 260 (1972).

5 . Although Tinker provides that “undifferentiated fear or apprehension” of a disturbance is not sufficient cause to justify interference with students’ freedom of speech, 393 U.S. at 508, 89 S.Ct. 733, school authorities need only demonstrate that the basis of their belief in a potential disruption is reasonable and not based upon speculation. See Eisner v. Stamford Board of Education, supra, 440 F.2d at 810; note 3, supra.

6 . For example, the Board of Education has promulgated “Guidelines for Implementation of Family Living/Sex Education Programs.” The guidelines provide that teachers desiring to teach such courses must have special training and “all teachers must possess sensitivities about adolescents and sex, their parents, the value system of families, and have a sense of propriety in their classroom behavior.”

7 . Thus, the Board guidelines, see note 6, supra, which were promulgated in May, 1974, provide, “Teachers, college students, agencies shall neither administer nor participate in surveys eliciting responses about personal sexual behavior from students. Such sex-behavior inventories, as all other health-related surveys, must receive approval from the Board of Education through its Coordinating Council on School Health.”

The Board has also promulgated a handbook for research applicants, which provides for certain requirements and safeguards before research involving student subjects may be conducted. The district court rejected the argument that the survey could not go forward because it did not comply with the handbook, which the court found did not apply to student projects, and this issue has not been raised on appeal. However, defendants point out that the handbook and other administrative regulations demonstrate the Board’s concern in protecting the well being of students.

8 . See affidavits of Gilbert Trachtman and Harry B. Gilbert. See also affidavit of Max Siegel.

9 . We find no merit in plaintiffs’ argument that defendants’ concern is for only a minority of students and amounts to a “heckler’s veto.” See Eisner v. Stamford Board of Education, supra, 440 F.2d at 809 n.6. The issue here is not to what extent school authorities are obligated to protect the dissemination of unpopular views. There is a clear distinction between the speaker’s right not to be shouted down and the listener’s right to be protected against the importunities of those who seek answers to questions.

Further, we cannot ignore that the district court not only restrained defendants from prohibiting the survey but ordered them to take steps to oversee the distribution of the questionnaire and provide counseling for those students who were disturbed by it; in effect, defendants were told to expend time and money to provide “safeguards” for a survey they insisted could not be made safe. The student’s right to speech and expression simply does not extend so far.