school can prohibit student newspaper’s attempt to distribute sex questionnaire to 9th and 10th graders, because substantial basis exists for concluding that they will be subjected to “peer contacts and pressures which may result in emotional disturbance”
How later courts described this case
- school can prohibit student newspaper’s attempt to distribute sex questionnaire to 9th and 10th graders, because substantial basis exists for concluding that they will be subjected to “peer contacts and pressures which may result in emotional disturbance”
- observing in applying Tinker in a high-school setting that "a blow to the psyche may do more permanent damage than a blow to the chin"
- plaintiff was editor-in-chief of student newspaper and sought to vindicate publication's right to conduct a survey
- "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."
Written by the judges who cited it.
The opinion
GURFEIN, Circuit Judge,
concurring:
In view of Judge Mansfield’s dissent, I would simply add to Judge Lumbard’s persuasive opinion the following comments.
First, while the passing out of the several questionnaires might not provoke a breach of the peace, a blow to the psyche may do more permanent damage than a blow to the chin. “Invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.” Tinker v. Des Moines School Disk, 393 U.S. 503, 513 , 89 S.Ct. 733, 740 , 21 L.Ed.2d 731 (1969).
Second, whether such a traumatic effect can be foreseen is the subject of dispute among recognized psychiatrists, as Judge Mansfield notes. I think such dispute is better resolved by professional educators than by federal judges even when they find the credentials of plaintiffs’ experts “more impressive”. This is not a case where there is no evidence to support the school officials.
Lastly, this is not a case involving “distribution of sexual material in school.” It is, as Judge Lumbard states, a case that involves individual responses to various aspects of sex from the point of view of personal history, a matter different from the simple dissemination of reading matter dealing with sex, which the majority opinion does not purport to ban. See footnote 2. That deserves further emphasis in response to the dissenting opinion, lest the majority decision serve as an unintended precedent in derogation of First Amendment right.