Tachtman v. Anker
3 Media L. Rep. (BNA) 1041, 563 F.2d 512, 1977 U.S. App. LEXIS 11740 (1977)
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Rule of Law:
School authorities may prohibit student expression on school property when they can demonstrate a substantial and reasonable basis for their conclusion that such expression would result in significant psychological harm to students. The First Amendment right to express one's views does not include the right to solicit responses from others when there is reason to believe it may cause harmful consequences.
Facts:
- Jeff Trachtman, editor-in-chief of the Stuyvesant High School newspaper, 'The Stuyvesant Voice,' and a staff member developed a plan to survey student sexual attitudes.
- They created a 25-question written questionnaire seeking frank information on topics like pre-marital sex, contraception, homosexuality, and masturbation.
- The students sought permission from school principal Gaspar Fabricante to distribute the questionnaire to students on school grounds.
- A proposed cover letter stated that answering was voluntary and anonymous, advising students not to answer if they felt uncomfortable.
- The students intended to tabulate the anonymous results and publish an article interpreting them in 'The Stuyvesant Voice.'
- Principal Fabricante, Administrator of Student Affairs Sanford Gelernter, and ultimately the Board of Education denied permission to distribute the questionnaire.
- The Board of Education reasoned that the inquiry could invade the rights of other persons and that matters of sexuality could have serious consequences for student well-being, noting the student researchers' lack of expertise.
Procedural Posture:
- Jeff Trachtman and his father filed a lawsuit against Chancellor Irving Anker and other New York City school officials in the U.S. District Court for the Southern District of New York.
- The plaintiffs sought declaratory and injunctive relief, claiming the prohibition of their sex questionnaire violated the First Amendment.
- The district court consolidated the preliminary injunction motion with a trial on the merits, deciding the case on the basis of affidavits submitted by the parties.
- The district court issued a partial injunction, allowing the questionnaire to be distributed to 11th and 12th-grade students but upholding the school's ban for 9th and 10th-grade students.
- Both the plaintiffs (Trachtman) and the defendants (Anker, et al.) filed cross-appeals to the United States Court of Appeals for the Second Circuit.
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Issue:
Does a public high school's prohibition on the distribution of a student-created sexual attitude questionnaire on school grounds violate the students' First Amendment rights when school officials reasonably believe the questionnaire could cause significant psychological harm to some students?
Opinions:
Majority - Lumbard, J.
No, the prohibition does not violate the students' First Amendment rights. While students retain First Amendment rights in school, school authorities may restrict speech that invades the rights of others. Here, the issue is not just expression, but the solicitation of responses that could cause psychological harm. The school officials presented expert testimony from psychologists and psychiatrists who stated that the questionnaire was 'potentially dangerous' and could create significant anxiety and emotional harm, particularly for emotionally immature students. The court must give deference to the judgment of school officials when they present a substantial, rational basis for their actions. The officials demonstrated a reasonable cause to believe the questionnaire would cause significant psychological harm, and the court's role is not to second-guess the wisdom of that decision. Therefore, the prohibition was a constitutional measure to protect the well-being of students.
Concurring - Gurfein, J.
No. Psychological harm can be more damaging than physical harm, and the 'invasion of the rights of others' language from Tinker v. Des Moines supports the school's action to prevent it. When qualified experts disagree on the potential for such harm, the dispute is better resolved by professional educators than by federal judges. This case is distinct from the simple distribution of reading material about sex; it involves soliciting personal responses, which presents a different and more direct risk of harm.
Dissenting - Mansfield, J.
Yes, the prohibition does violate the students' First Amendment rights. The school officials failed to meet their heavy burden to justify a prior restraint on speech. A general, undifferentiated fear of potential 'psychological harm' is too vague and nebulous a standard to justify censorship and could be used to suppress any controversial topic. The defendants' expert opinions were conclusory, speculative, and flatly contradicted by the plaintiffs' equally or more qualified experts. Furthermore, the school's position is inconsistent with its own sponsorship of face-to-face 'rap sessions' on sexuality and ignores the reality that students are already exposed to these topics in their daily lives. The court should have protected the students' right to survey and publish, which is the quintessence of First Amendment activity.
Analysis:
This case significantly clarifies the 'invasion of the rights of others' prong of the Tinker v. Des Moines standard, extending it beyond physical disruption to encompass the risk of significant psychological harm. The ruling grants substantial deference to the judgment of school administrators in matters of student welfare, provided they can articulate a reasonable, evidence-based fear of harm. This decision distinguishes between the passive distribution of information, which receives greater protection, and the active solicitation of personal responses from a captive student audience, which may be more easily regulated to protect vulnerable students.
