Appendix — Doe v. McMillan

Supreme Court brief1973

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Supreme Court of the United States

OCTOBER TERM, 1972

No. 71-6356

JOHN DOE, ET AL.,

Petitioners,

—vV.—

JOHN L. MCMILLAN, ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

INDEX

Page

Docket Entries, United States District Court for the District

of Columbia, C.A. No. 56-71 _.... ..... - 1

semnpenint, fled January 6, 197) 222 sa 4

~ Certificate of Service, January 6 and 7, 1971... _._........ 13

E: Plaintiff’s Motion for a deracaeiosan cadmas Order, filed

January 8, 1971 - ie ee 16

Plaintiff’s Motion for a eA esas filed Janu-

ary 8, 1971 - siecle chk ee Rte SOE SEMPRE ROIS. 18

ae Transcript of Proceedings on Motion for a epee Re-

- straining Order, January 8, 1971 - on Sererrneey, 20

-. Policy Statement Regarding Congressional Inquiries, De-

cember 23, 1970, District of Columbia Defendant’s Ex-

hibit “A”, tendered during proceedings on January 8,

Page

ii INDEX

House Report No. 91-1681, of the Committee on the District

of Columbia, House of Representatives, Ninety-first Con-

gress, Second Session, entitled “Investigation and Study

of the Public School System of the District of Columbia,”

tendered during proceedings on January 8, 1971 as a Plain-

tiffs’ exhibit. Cover only; pertinent provisions of this

Report (pages 210-257) have been submitted to the Clerk

of the Supreme Court together with a written request that

it be made available for inspection only by Court per-

sonnel - 44

H.Res. 76, 91st Cong., 1st Sess., agreed to February 5, 1969- 45 4

Letter of Transmittal, December 8, 1970 * 47\

Order Denying Motion for Temporary Restraining Order

and Dismissing Action, January 11, 1971, Sirica, J. —-.---.---- 48

Notice of Appeal, January 11, 1971 _- 51

Joint Statement, December 23, 1971, of the Superintendent of

the District of Columbia Public Schools and the President

of the Board of Education. Submitted to the United States

Court of Appeals for the District of Columbia Circuit dur-

ing Oral Argument on Motions for Summary Reversal and

Summary Affirmance _.. _ 52

Order of the United States Court of Appeals for the District

of Columbia Circuit, January 14, 1971, to preserve the

status quo pending consideration of appellants’ Motion

for Summary Reversal en ERE ee Renee ane 54

Opinion and Order of the United States Court of Appeals for

the District of Columbia Circuit on Summary Proceedings,

March‘11, 1971 ~..—-—-—--—-—--—------------- = 57

Opinion and Judgment of the United States Court of Appeals

for the District of Columbia Circuit, January 20, 1972 _.. 67

Order of the United States Court of Appeals for the District

of Columbia Circuit, March 10, 1972, continuing in effect

its injunction entered on January 14, 1971, as modified on

March 11, 1971, until final action by the Supreme Court . 116

Order granting motion for leave to proceed in forma pau-

peris and granting petition for writ of certiorari ——-------—- 117

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA ‘

Civil Docket 00055

56-71

SmRIcA, J.

JOHN DOE, ET AL

Vs.

JOHN L. MCMILLAN, ET AL

DECLARATORY JUDGMENT, INJUNCTIVE RELIEF

AND DAMAGES

Jury Demanded ~ *

Civil Docket 00056

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

DATE PROCEEDING

Deposit for cost by Without prepayment of costs.

Robinson, J.

Jan. 8 Complaint, appearance; jury demand; filed +46

serv. 1-28-71

Jan. 8 Summons, copies (34) and copies (34) of Com-

plaint issued Defts. #1, 2, 3, 4, 5, 6, 7, 8, 9, 10,

11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, Za, Dos

24, 25, 26, 27, 28, 29, 30, 31, 46 & #47; #1, 2, 5,

6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 serv. 1-19;

#3 NF 1-19 (deceased); #17 serv. 1-20; #18,

19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31sv.

1-19; #47 serv. 1-19

PROCEEDING

DATE

1971

Jan. 8

*Jan. 8

*Jan. 11

Jan. 12

Summons, copies (14) & copies (14) of Complaint

issued Defts. #32, 33, #34, 35, 36, 37, 38, 39, 40,

41, 42, 43, 44 & #45; all but #41 serv. 1-18

Order denying Plaintiffs’ motion to proceed under

Fictitious Names and setting for hearing in Mo-

tions II; Clerk to notify U.S. Attorney forthwith.

(signed 1/7/71) McGuire, J.

Motion of pltffs. for leave to proceed under ficti-

tious names and for immediate consideration of

this motion; P & A’s. filed

Motion of pltffs. for leave to proceed without pre-

payment of costs or fees; P & A’s. filed

Order granting pltffs’ motion to proceed in Fic-

titious Names. (N) Robinson, J.

Order granting pltffs’ motion to proceed without

prepayment of costs. (N) Robinson, J.

Motion of pltffs’ for Temporary Restraining Order;

Memorandum. filed

Motion of pltffs’ for Preliminary Injunction; cert.

of ser. filed

Order denying pltfs. application for Temporary

Restraining Order and dismissing complaint. (N)

Sirica, J.

Notice of appeal in forma pauperis from order of

1-11-71 submitted to Judge Sirica; copies mailed

to Joseph Hannon and Thomas Nedrich. filed

Leave to proceed on appeal without prepayment of

costs, granted. Sirica, J.

Transcript of proceedings, 1-8-71, pages 1-32;

Nicholas Sokal, Reporter. (Court’s copy) filed

Exhibit “A” by pltfs. filed

2 ee ae ay

DATE

PROCEEDING

1971

Jan. 12

*Jan. 11

. il

. 12

Exhibit “A” by defts. filed ar

Application of pltf. for transcript of hearing for

Temporary Restraining Order at the expense of

the United States. filed

Application of pltfs. for a Temporary Restraining

Order heard, denied, and complaint dismissed.

(OTBP) (Reporter N. Sokal) Sirica, J.

Order denying application of pltfs for a tempor-

ary restraining order and dismissing complaint

as to all defts. (N) Sirica, J.

Record on Appeal delivered to USCA; In Forma

Pauperis (Clerk’s fee $1.40)

Receipt from USCA for Original Record. filed

Authorization for transcript at expense of U. S.

(N) Sirica, J.

Bg T

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 56-71

JoHN DoE, BY HIS GUARDIAN Mary DoE; RICHARD ROE,

BY HIS GUARDIAN MARY ROE; on their own behalf and

, on behalf of all others similarly situated, PLAINTIFFS

Vv.

JoHN L. McMILLAN, THOMAS G. ABERNETHY, WILLIAM

L. DAWSON, JOHN Dowpy, CHARLES C. DiaGGs, G.

ELLIOTT HAGAN, DON FUuQUA, DoNALD M. FRASER,

Brock ADAMS, ANDREW JACOBS, PETER N. KYROS,

WILLIAM L. HUNGATE, EARLE CABELL, RAY BLANTON,

ANCHER NELSEN, WILLIAM L. SPRINGER, ALVIN E.

O’KonskKI, WILLIAM H. HARSHA, JoEL T. BROYHILL,

LARRY WINN, GILBERT GUDE, LAWRENCE J. HOGAN,

VERNON W. THOMSON, HENRY P. SmitTH III, EARL F.

LANDGREBE, as chairman and members of the Com-

mittee of the District of Columbia of the United States

House of Representatives, 1310 Longworth House Office

Building, Washington, D.C. 20515:

James T. CLARK, clerk, CLAYTON S. GASQUE, staff di-

rector; HAYDEN S. GARBER, counsel; Committee on the

District of Columbia of the United States House of

Representative, 1310 Longworth House Office Build-

ing, Washington, D.C. 20515: ~

PauL YATES LITTLE, individually, and as consultant,

Committee on the District of Columbia of the United

States House of Representatives, 1310 Longworth

House Office Building, Washington, D.C. 20515:

RopertT E. KING, Superintendent of Documents, and

NicHoLas A. SPENCE, Public Printer, United States

Government Printing Office, North Capitol and H

Streets, Washington, D.C. 20401:

ANITA ForD ALLEN, President Board of Education of the

District of Columbia, Presidential Building 415 Twelfth

Street, N.W., Washington, D.C. 20004:

2 EASE RETREAT BENE I OIE IELTS SEYLER $y

JAMES E. COATES, MURIEL M. ALEXANDER, CHARLES I.

CASSELL, EDWARD L. HANcocK, NELSON C. Roots,

ALBERT A. ROSENFIELD, MARTHA A. SWAIM, MATTIE

G. TAYLOR, BARDYL R. TIRANA, EviIE M. WASHINGTON,

Members of the Board of Education of the District of

Columbia, Presidential Building, 415 Twelfth Street,

N.W., Washington, D.C. 20004:

HuGuH Scott, Superintendent Public Schools of the Dis-

trict of Columbia, Presidential Building, 415 Twelfth

Street, N.W., Washington, D.C. 20004:

OTHIELLO SAVOID, Individually and as Principal of Jef-

ferson Junior High School, Eighth Street and H Street,

§$.W., Washington, D.C. 20024:

VIOLA M. IRVEN, Individually and as Teacher at Jeffer-

son Junior High School, Eighth and H Streets, S.W.,

Washington, D.C. 20024:

Louis E. MARTIN, Individually and as Investigator, Com-

mittee on the District of Columbia of the United States

House of Representatives 8244 Pennsylvania Avenue,

S.E., Washington, D.C. 20020:

UNITED STATES OF AMERICA, U.S. Attorney General, De-

partment of Justice, Washington, D.C., DEFENDANTS

COMPLAINT FOR DECLARATORY JUDGMENT, INJUNCTIVE

RELIEF AND DAMAGES—Filed January 8, 1971

a Preliminary Statement and Jurisdiction

(1) This is a class action for declaratory judgment

and injunctive relief to enjoin defendants from publish-

ing certain information regarding school children at the

Jefferson Junior High School and other District of Colum-

bia Schools, which violates their statutory, regulatory,

administrative, common law, and Constitutional rights

and for damages for tortious violation of plaintiffs’ and

plaintiffs’ children’s right to privacy.

(2) As a result of publication of information regard-

ing members of the class, plaintiffs and plaintiffs’ chil-

dren have suffered and will continue to suffer irreparable

injury. There exists between plaintiffs and defendants

an actual controversy justiciable in character, in respect

to which this Court can render an adequate and effective

judgment which will advance the interests of justice.

The relief plaintiffs seek is a declaratory judgment that

certain actions by defendants are unlawful, for unjunc-

tive relief to compel defendants to refrain from violating

plaintiffs’ rights, and for damages. This suit raises

questions under the Constitution and laws of the United

* States and the amount in controversy, exclusive of in-

; terests and costs, exceeds $10,000. This Court has juris-

4 diction pursuant to 11 D.C. Code § 521; 1 D.C. Code

* § 1501 et. seq. 28 U.S.C. § 1331, 1848, 1346, 1361, 2201,

2202, and 42 U.S.C. § 1988; 28 U.S.C. 1651.

, =oill. Plaintiffs—Class Action

Plaintiffs are citizens of the United States and resi-

dents of the District of Columbia. Plaintiffs’ children

have been referred to by name in the Report of the Com-

mittee on the District of Columbia of the U.S. House of

Representatives entitled “Investigation and Study of the

Public School System of the District of Columbia” (here-

) inafter, the Report). Plaintiffs sue on their own behalf,

‘ on behalf of their minor children, and on behalf of a class

composed of all students in the District of Columbia

* schools and their parents. Upon information and belief,

? all plaintiffs are Black and are of low or moderate in-

come. Plaintiffs bring this action pursuant to Rule 23

of the Federal Procedure on behalf of themselves an all

' persons constituting the above class who are similarly

; situated. The persons in the class are so numerous that

* joinder of all members is impractical; there are questions

3 of law or fact comomn to the class, the claims of the

* representative parties will fairly and adequately protect

: the interest of the class; the prosecution of separate ac-

i tions by individual members of the class would create

a risk of inconsistent or varying adjudications with

regard to individual members of the class and would

as a practical matter be dispositive of the similar claims

of other members not parties to the adjudication; the

questions of law or fact are common to the members;

Caithness

and a class action is superior to other available methods

to the fair and efficient adjudication of the controversy.

III. Defendants

(4) The defendants in this action are:

(a) John L. McMillan, who, as Chairman of the Com-

mittee on the District of Columbia of the United States

House of Representatives, (hereinafter, the Committee),

is responsible for all activities of the committee and its

staff.

(b) Thomas G. Abernethy, William L. Dawson, John

Dowdy, Chatles C. Diggs, Jr., G. Elliott Hagan, Don

Fuqua, Donald M. Fraser, Brock Adams, Andrew Jacobs,

Peter N. Kyros, William L. Hungate, Earle Cabell, Ray

Blanton, Ancher Nelsen, William L. Springer, Alvin E.

O’Konski, William H. Harsha, Joel T. Broyhill, Larry

Winn, Gilbert Gude, Lawrence J. Hogan, Vernon W.

Thompson, Henry P. Smith, Earl F. Landgrebe, who are

members of the committee. .

is in charge of its staff operations.

(d) Clayton S. Gasque, who, as Staff Director of the

Committee, is also responsible for its operations.

(e) Hayden S. Garber, who, as Counsel to the Com-

mittee, is responsible for legal advice to the Committee.

(f) Paul Yates Little, who, as consultant to the Com-

mittee, is responsible for the investigation which led to

the report complained of herein and prepared said report.

(g) Louis Martin, who, as a sargent of the D.C.

Metropolitan Police Department, and, as an investigator

of the Committee, conducted the investigations which

were used in the report complained of herein.

(h) Robert E. King, who, as Superintent of Docu-

ments, is responsible for the printing and distribution

of Congressional reports.

(i) Nicholas A. Spence, who, as Public Printer, is re-

sponsible for the printing and distribution of Congres-

sional reports.

(j) Anita Ford Allen, who, as President of the Béard

of Education of the District of Columbia, is responsible

for the operations of said Board.

—

(k) James C. Coates, Muriel M. Alexander, Charles

I. Cassell, Edward Hancock, Nelson C. Roots, Albert

Rosenfield, Martha S. Swaim, Mattie G. Taylor, Bardyl

R. Tirana and Evie M. Washington, who, as members

of the Board of Education of the District of Columbia,

participate in the decisions of the School Board establish-

ing school policy and governing the conduct of all em-

ployees of the school system.

(1) Hugh Scott, who, as Superintendent of the public

schools of the District of Columbia is responsivle for the

operations of such schools and for the conduct of school

employees. ;

(m) Othiello Savoid,-who, as Principal of Jefferson

* Junior High School, is responsible for the supervision of

3 all teachers and for the maintenance and preservation

* of records of said school, and for certain actions com-

plained of herein.

(n) Viola M. Irven, who, as a teacher at Jefferson

Junior High School, is responsible for certain actions

complained of herein.

IV. Allegations,

(5) On or about December 16, 1970, defendant mem-

bers of the United States House of Representatives,

authorized to be published and did publish a report en-

titled “Investigation and Study of the Public School Sys-

tem of the District of Columbia” (House Report No. 9-

1681). Said defendants also caused the report to be dis-

tributed to members of the public.

(6) The report included: (1) copies of attendance

records of Jefferson Junior High School for several days

during 1970 (pages 213 to 223) ; these lists included the

names of numerous students at Jefferson Junior High

School whose parents are plaintiffs herein; (2) various

test papers carrying the names and grades of students

at the Jefferson Junior High School whose parents are

plaintiffs herein (pages 224 to 252); and (8) various

letters and memoranda regarding alleged disciplinary

problems of students at the Jefferson Junior High School,

whose parents are plaintiffs herein (pages 256 to 258).

(7) Upon information and belief, on or about April

14, 1970, defendant Savoid gave defendant Martin copies

of the disciplinary letters printed in the report and other

materials and on or about May 6, 1970, defendant Irven

gave defendant Martin copies of the attendance lists, the

school test papers also printed in the report and other

materials. Upon information and belief, defendants Sa-

void and Irven were not authorized to release these

documents.

(8) Upon information and belief, defendant Martin

delivered copies of the said attendance lists, disciplinary

letters, test papers and other materials bearing the names

of and information about the plaintiffs and their children

to defendant Little, who, as a contract consultant to the

Committee, was responsible for the preparation of the

report. Defendant Little then caused the copies of the

papers referred to above to be included in a draft of the

report; defendant members of the United States House

of Representatives approved said report for publication;

defendants Harrison and Buckley and others acting under

their supervision, printed the report and caused the re-

port to be distributed to the public; distribution of the

report continues to the present. “

(9) Upon information and belief, defendant members

of the Board of Education and defendant Scott have

failed to promulgate and enforce for the District of

Columbia School System rules and regulations governing

the confidentiality of such school papers as attendance

lists, disciplinary letters and memoranda, school test

papers and other such school documents, with the result

that, depending upon the uncontrolled exercise of discre-

tion by individual members of the school administrative

staff and teachers, information regarding students of the

District of Columbia schools is, or may be, distributed

to members of the public in violation of the students’

constitutional rights and their right of privacy.

V. Causes of Action

(10) By disclosing, disseminating and publishing the

information complained of herein, defendants violated

REE

plaintiffs’ rights to confidentiality of information regard-

ing their children and the parent-teacher privilege. Said

disclosure and publication has had and will continue to

have an immediate and serious detrimental impact upon

the psychological make-up and education of the plaintiffs’

children, causing said children to lose trust in their

teachers and their schools and creating, through a na-

tion-wide disclosure of adverse information about them,

a chilling effect upon the exercise of plaintiffs’ children’s

rights to freedom of speech and association. Said dis-

closure of information regarding plaintiffs’ children by

Congressional defendants was wholly devoid of any valid

legislative purpose. '

(11) Plaintiffs incorporate the foregoing allegations

contained in paragraphs one through nine and allege that

defendants’ publication of attendance or absentee lists

bearing plaintiffs’ children’s names, letters and memo-

randa bearing plaintiffs’ names and plaintiff’s children’s

names regarding alleged disciplinary problems caused by

them, and test papers bearing their children’s names and

grades, has caused and will continue to cause grave dam-

age to plaintiffs’ and their children’s mental and physical

health, their reputations and good name, and their chil-

dren’s future careers so as to damage their education

and future employment.

(12) By their conduct, defendants have unjustly caused

plaintiffs and their children, to suffer grave damage to

their mental and physical health, their reputations and

good name, and their future careers; defendants com-

mitted the above acts intentionally and with knowledge

that the publication of the information referred to above

would have an adverse impact upon the mental and physi-

cal health, reputations, and careers of the plaintiffs and

their families.

(13) By their conduct leading to the publication of

the items referred to above, defendants Scott, Savoid and

Irven violated Section 6 of Chapter XVI of the Rules

for the Public Schools of the District of Columbia by the

Board of Education for the District of Columbia govern-

ing disclosure of school lists and all defendants violated

the plaintiffs’ and their children’s Constitutional rights

SPO A DORIS Regt Agrees = z

and common law rights to privacy and the confidentiality

of their school papers; defendants acted willfully, inten-

tionally, and maliciously, with utter disregard for plain-

tiffs’ and their children’s rights and with the intention

to cause them mental anguish and to damage their repu-

tations and good name and future careers; at no time

did plaintiffs or their children authorize or consent to

said publications, directly or indirectly.

(14) By their conduct leading to the publication of

the items referred to above, defendants Savoid, Irven,

Martin, and Little have violated the Civil Rights of the

plaintiffs and their children, as guaranteed by the Civil

Rights Act of 1871.

(15) Upon information and belief, unless restrained,

defendants will continue to distribute and publish infor-

mation concerning plaintiffs, their children and other

students of the District of Columbia schools in a tortuous

and illegal manner and will, thereby, cause direct and

material irreparable injury to plaintiffs’ and their chil-

dren’s mental and physical health, reputation, good name,

property, future careers, and relations with other stu-

dents and their teachers.

(16) Plaintiffs incorporate the foregoing allegations

contained in paragraphs one through fourteen and allege

that defendants’ conduct, as herein alleged, caused them

and will continue to cause them to suffer grievious con-

Sequences to their mental and physical health, their

reputations and good name, and future careers, and,

thereby damaged each plaintiff in the amount of $50,000.

(17) Plaintiffs have no remedy as practical and ef-

ficient to the ends of justice as injunctive relief, and,

unless such relief is granted plaintiffs will suffer ir-

reparable injury.

VI. Prayer for Relief

WHEREFORE, plaintiffs respectfully pray that this

honorable Court:

1. Declare, adjudge and hold that the publication of

the matters complained of above violated plaintiffs’ and

their children’s statutory, regulatory, administrative,

common law, and Constitutional rights.

. iat

9. Enter an order enjoining the defendants from fur-

ther publication, dissemination and distribution of said

report, containing the information complained of above,

and further order said defendants to call back or other-

wise obtain copies of previously issued report, to such

extent as may be practical, so that the matters complained

of may be deleted.

3. Enter an order prohibiting any future disclosure

or publication of confidential information regarding at-

tendance or absentee records, disciplinary reports and

letters, school test papers and other matters pertaining

to, and specifically mentioning plaintiffs and their chil-

dren by name.

4, Enjoin the defendant members of the District of

Columbia School Board to establish rules and regulations

regarding the confidentiality of school papers and the

right of privacy of students in the schools of the District

of Columbia and, pendente lite, order the defendant mem-

bers of the School Board and defendants Scott, Savoid

and Irven from disclosing any further information which

identifies by name any student of the Jefferson Junior

High School, and any other students of the District: of

Columbia.

5. Award judgment for the plaintiffs individually in

the sum of $50,000 as compensatory damages and award

judgment for the plaintiffs individually in the sum of

$50,000 as punitive damages.

6. Grant such other and further relief as the Court

deems just and proper under the circumstances.

—

PLAINTIFFS DEMAND TRIAL BY JURY.

Respectfully submitted,

/s/ Jean Camper Cahn

/s/ J. Kirkwood White

/s/ Dennis Dutterer

Attorneys for Plaintiffs

Suite 509

1145-19th Street, N.W.

Washington, D.C. 20036

(202) 833-1700

January 6, 1971

OF COUNSEL:

Jeffrey Fornaciari*

1145 -19th Street, N.W.

Washington, D.C. 20036

(202) 833-1700

CERTIFICATE OF SERVICE

I hereby certify that at approximately 4:00 p.m.,

Wednesday, January 6, 1971, I telephoned and spoke with

Joseph Hannon, Assistant U. S. Attorney, U. S. Court-

house and described the nature of the complaint herein

and our intention to seek a temporary restraining order

on Thursday, January 7, 1971. Mr. Hannon indicated

that he was not authorized to represent the named de-

fendants and that notice to him was not notice to any

defendant.

/s/ Dennis A. Dutterer

DENNIS A. DUTTERER

Suite 509

1145 19th Street, NW

Washington, D.C, 20036

833-1700

Attorney for Plaintiffs

* A member of the Bar of the State of New Mexico.

I hereby certify that at approximately 9:15 a.m., on

| Thursday, January 7, 1971, I telephoned the office of

John A. Earnest, Esquire, Assistant Corporation Counsel,

D.C., District Building and on learning that he was in

conference was transferred to and spoke with his chief

assistant, Lymann Umstead, Esquire, Assistant Corpora-

tion Counsel, D.C.; I explained the nature of the com-

plaint to Mr. Umstead and indicated that we would file

the complaint and seek a temporary restraining order in

the late morning, Thursday, January 7, 1971; I caused

a copy of the complaint and other papers to be delivered

to the Office of Mr. Earnest, Room 310, District Build-

ing, at approximately 11:00 a.m., on Thursday, January

7, 1971.

I further certify that at approximately 9:45 a.m., on

Thursday, January 7, 1971, I telephoned and spoke with

Hayden Garber, Esquire, Counsel of the House Com-

mittee on the District of Columbia, Longworth Building,

and explained the nature of the complaint, the relief

sought against the Congressional Defendants and our

intention to seek a temporary restraining order on Thurs-

day, January 7, 1971; Mr. Garber stated that he was

not authorized to represent the Committee members in

the absence of instructions from the Chairman.

I further certify that at approximately 10:00 a.m., on

Thursday, January 7, 1971, I ealled the office of the

Honorable John L. McMillan in Florence, South Carolina,

and spoke with Mr. McMillan’s secretary, explaining the |

nature of the complaint, the relief sought against the |

Congressional Defendants and our intention to seek a

temporary restraining order on Thursday, January 1,

1971; I suggested to Mr. McMillan’s secretary that if the

Congressman wished to be represented at any Court hear-

ing herein that he might wish to call the U.S. Attorney’s

Office in Washington, D.C.

I further certify that at approximately 10:15 a.m.,

I called and spoke with Joseph Hannon, Esquire, Assist-

ant U. S. Attorney and repeated our intention to seek

a temporary restraining order on Thursday, January 7,

1971 and I further indicated that I had called Mr. Gar-

ber and Congressman MeMillian’s office in Florence, South

—

Carolina. Mr. Hannon stated that he was not authorized

to represent any of the defendants; I caused a courtsey

copy of the complaint and supporting papers to be hand

delivered to Mr. Hannon’s office, Room 2439, U. S. Court

House at approximately 11:30 a.m., Thursday, January

7, 1971.

/s/ J. Kirkwood White

Suite 509

1145 19th Street, NW

Washington, D.C, 20036

833-1700

Attorney for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

[Title Omitted ]

PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING

OrDER—Filed January 8, 1971

Plaintiffs respectfully move the Court for a temporary

restraining order enjoining defendants and their agents,

servants, employees and attorneys, and any persons act-

ing in active concert with them, from directly or indi-

rectly (a) seeking or permitting further distribution of

a report entitled “Investigation and Study of the Public

School System of the District of Columbia” so long as

said report includes the names of Plaintiffs’ children

and other school children of the Jefferson Junior High

School and other schools of the District of Columbia on

attendance sheets, letters and other memoranda regard-

ing disciplinary matters and test papers and other confi-

dential information; and (b) from seeking or permitting

further public dissemination or publication of informa- ,

tion regarding the attendance records, disciplinary rec-

ords and letters and other memoranda regarding dis-

ciplinary matters and school test papers of students of

the Jefferson Junior High School and other schools of the

District of Columbia. Plaintiffs respectfully request that

the temporary restraining order specifically include all

Defendants including the named members of Congress

except to the extent that Article I, Section 6 of the

United States Constitution confers immunity to said

Members with respect to their speeches on the floor of

the House of Representatives and extension of their re-

marks in the Congressional Record.

hae» Pe ee ae ae

The grounds for this Motion are set forth in the Memo-

randum filed herewith in support of this Motion.

Respectfully submitted,

/s/ Jean Camper Cahn

/s/ J. Kirkwood White

/s/ Dennis Dutterer

Attorneys for Plaintiffs

Suite 509

1145 -19th Street, N.W.

Washington, D.C. 20036

(202) 833-1700

OF COUNSEL:

Jeffrey Fornaciari*

Suite 509

1145 - 19th Street, N.W.

Washington, D.C. 20036

(202) 833-1700

* A member of the Bar of the State of New Mexico.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

[Title Omitted }

PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION—

Filed January 8, 1971

Plaintiffs respectfully move the Court for a prelimi-

nary injunction enjoining Defendants and their agents,

servants, employees and attorneys, and any persons act-

ing in active. concert with them, from directly or indi-

rectly (a) seeking or permitting further distribution of

a report entitled “Investigation and Study of the Public

School System of the District of Columbia” so long as

said report includes the names of Plaintiffs’ children and

other school children of the Jefferson Junior High School

and other schools of the District of Columbia on attend-

ance sheets, letters and other memoranda regarding dis-

ciplinary matters and test papers and other confidential

information; and (b) from seeking or permitting further

public dissemination or publication of information re-

garding the attendance records, disciplinary records and

letters and other memoranda regarding disciplinary mat-

ters and school test papers of students of the Jefferson

Junior High School and other schools of the District of

Columbia. Plaintiffs respectfully request that the pre-

liminary injunction specifically include all Defendants

including the named members of Congress except to the

extent that Article I, Section 6 of the United States

Constitution confers immunity to said Members with

respect to their speeches on the floor of the House of

Representatives and extension of their remarks in the

Congressional Record.

aa he hele ede hte ah nel oie ee

The grounds for this Motion are set forth in the Memo-

randum filed herewith in support of this Motion.

Respectfully submitted,

/s/ Jean Camper Cahn

/s/ J. Kirkwood White

/s/ Dennis Dutterer

Attorneys for Plaintiffs

Suite 509

1145-19th Street, N.W.

Washington, D.C. 20036

(202) 833-1700

OF COUNSEL:

Jeffrey Fornaciari*

Suite 509

1145 - 19th Street, N.W.

Washington, D.C. 20036

(202) 833-1700

* A member of the Bar of the State of New Mexico.

ra ae a —E———EeEIE:srst

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 56-71

JOHN DOE, BY HIS GUARDIAN Mary DOE, ET AL,

PLAINTIFFS

JoHN L. MCMILLAN, ET AL, DEFENDANTS

| Friday, January 8, 1971

The above-entitled cause came on for hearing on Mo-

tion for Temporary Restraining Order, before THE

HONORABLE JOHN J. SIRICA, at 4:30 pm.

APPEARANCES:

On Behalf of the Plaintiffs:

J. KIRKWOOD WHITE, Esq.

DENNIS DUTTERER, Esq.

On Behalf of the Defendants:

JOSEPH M. HANNON, Ass’t. U.S. Attorney

THOMAS NEDRICH, Esq., Ass’t. Corp. Counsel,

District of Columbia

[fol. 2]

PROCEEDINGS

THE COURT: Is counsel for the government present?

MR. HANNON: Your Honor, I note the United States

of America is named a party defendant in this action.

Up until now I had not noticed that, I thought I was

here merely as amicus and am now here in the capacity

as representing the United States.

THE COURT: Anyone else representing the parties?

I think the Corporation Counsel knew about this case,

didn’t he?

MR. WHITE: Yes, Your Honor.

—

THE COURT: We waited since 3:00 o’clock for him,

haven’t we? I think we ought to proceed.

MR. WHITE: Thank you, Your Honor. I appreciate

your scheduling this this afternoon.

Your Honor, this is plaintiffs’ application for a tem-

porary restraining order. The matter complained of in

the suit and one of the matters sought to be restrained

is a Report of the House District Committee which in-

cludes in it three categories of material which we submit

in the complaint injure the plaintiffs and continues to

injure them.

First of all, the report is entitled Investigation and

Study of the Public School System of the District of

Columbia.

In the report—and I have a copy of the report for the

Court (handed to the Court)—the page numbers are

(fol. 3] referred to in the complaint.

THE COURT: This report, I think, is a result of a

hearing conducted by this committee involved in this

case?

MR. WHITE: That is correct, Your Honor.

THE COURT: Testimony was taken in open session?

MR. WHITE: The testimony was taken in open ses-

sion. As a matter of fact, however, the materials that

we complain of which run from page 213 through to page

252, and on page 256 through page 258 were obtained

by the committee by an investigation.

THE COURT: What was the purpose of the investi-

gation?

MR. WHITE: Your Honor, the purpose as stated in

the text of the report and in the letter of transmittal

from Congressman McMillan to Congressman McCormack

was to study and investigate the organization, manage-

ment, and operations of any department of the District

of Columbia government, and in this case was the District

of Columbia school system.

As we allege in the complaint, the matters that I re-

fer to, the page numbers, were obtained by a District

police officer on assignment to the House District Com-

mittee from personnel of the District of Columbia schools

and was caused to be included in the report by the

committee.

We seek to enjoin further publication of the report with

those matters in it.

THE COURT: Hasn’t there been some publication of

this report, or these reports?

[fol.4] MR. WHITE: Yes, sir, there has.

THE COURT: How many reports have been pub-

lished?

MR. WHITE: We don’t know.

THE COURT: Many I suppose.

MR. WHITE: Probably so. We don’t know the num-

ber.

THE COURT: What you are seeking to do is prevent

further publication of this report?

MR. WHITE: That is correct, Your Honor, so long

as it retains within it the matters which we explain—

THE COURT: —I might save you time. I read your

complaint in this case, and memorandum of authorities,

and I understand what the issue is.

You want this Court to enjoin the Public Printer, I

suppose?

MR. WHITE: That is correct, sir.

THE COURT: From publishing this report.

MR. WHITE: Yes, sir. :

THE COURT: Under what authority does this Court

have the right to do that?

MR. WHITE: Your Honor, we allege a breach of

Constitutional right in this case. The right being the

right of privacy as enumerated in Griswald vs Connecti-

cut. The right of privacy having been invaded, the

Constitutional right of plaintiffs having been damaged,

would give the Court authority to enjoin further injury

to plaintiffs under this abridgement of Constitutional

(fol. 5] right, particularly also the Civil Rights Act of

1871, which is 42 U.S.C. 1983.

THE COURT: Excuse me. Let the record show a

representative is here from the Corporation Counsel’s Of-

fice. Will you give your name for the record, please?

(entered courtroom )

MR. NEDRICH: Thomas R. Nedrich, Assistant Cor-

poration Counsel for the District of Columbia.

THE COURT: Thank you, sir.

MR. WHITE: In our memorandum, Your Honor, on

page 4, we include a discussion of the obviously troubling

issue of whether or not the Speech and Debate Clause,

Article I, Section 6 of the Constitution reaches the issue

we present.

We run through the cases of Powell vs McCormack,

and one coming since then, Stamler vs. Willis, et cetera.

We refer Your Honor to the decision of J udge Gesell

in Nat Hentoff vs Ichord which that Court enjoined the

Public Printer and Superintendent of Documents from

printing and distributing the list of alleged radicals.

The discussion by Judge Gesell of the issues in that

case indicate that this Court has the power to reach those

officials and enjoin them from actions which would in-

vade the rights, particularly the First Amendment rights

in that case, of the plaintiffs.

The cases we believe to be controlling in addition to

Powell vs McCormack are Dombrowski vs Pfister; Dom-

browski vs Eastland, and a case—

[fol.6] THE COURT: —that case against Senator

Eastland involved issuance of subpoenas.

MR. WHITE: Yes, Your Honor.

THE COURT: Why is that analogous to this case?

MR. WHITE: That case involved as a matter addi-

tionally a tort claim against the respondent, chief counsel

of the committee Mr. Sourwine, for tort allegedly com-

mitted against the plaintiff. The Court was very careful

to point out that although the doctrine of congressional

immunity is less absolute, although applicable when ap-

_plied to officers who are employees of the legislative body

rather than legislators themselves. The Court was very

careful to indicate the dismissal of that action was

wrong and it should be returned for a hearing on the

merits. So the Court carved out a distinction between

the congressional members and persons serving under

them who are employees of the Legislative Branch which

presumably would include the Public Printer and Super-

intendent of Documents.

I believe the rule of law that governs here, the test

which appears to be emerging from the cases is whether

—T

or not the congressional activity, and we are not talking

here about debates on the floor or Congressional Record,

is personally valid to legislative purpose. And if it is

not, and there is infringement of Constitutional rights,

First Amendment, then it would be appropriate for the

Court to enter this area and enjoin the activity which

is complained of.

[fol.7] We allege in our memorandum that there is no

valid legislative purpose for the inclusion of, these ma-

terials in the Report. Let me discuss that briefly, if I

It is not our contention that any of the conclusionary

matters stated in the Report, text of the Report, as to

anything the Report found as 4 result of its investiga-

tions and hearings it conducted that we have any right

or interest in enjoining those matters. It is not for us

to be concerned with that. It is purely a legislative func-

tion. It is only where, and I have given the Court the

page numbers we are concerned with, particularly where

the committees included within the document actual test

papers of students, actual absentee lists of students, and

actual letters of disciplinary allegations to the parents,

or memoranda within the school system. We submit in

the brief and memorandum of authorities those matters

are confidential and that their spreading upon the record

is likely to and will have a chilling effect in the exercise

of First Amendment rights of students, and I don’t mean

to be facetious, but it may sound somewhat odd to be

talking about Fifth Amendment rights of students be-

cause it is a much different thing when we are talking

about the Nat Hentoff and other people. But you see,

mentioning now the way the case arose, but the parents

took the child, following the publication without her

knowledge of it, to a social worker in southwest which

is interesting in itself in the sense the parent was suffi-

(fol. 8] ciently concerned with the student’s mental bal-

ance as a result of that publication to seek counseling

service, and as a matter of fact we allege this would

impinge on their ability to speak out in class, to perform

the things a student should have the right to do without

being harassed or intimidate.

So we submit the inclusion of those matters is not a

matter of valid legislative purpose. Certainly Congress

can review and perhaps even see such documents. We

don’t for a moment concede that point, but assuming

they could see them and extrapolate from them and write

a report and summarize findings. We do challenge the

case. That is what it is all about. The inclusion of those

matters in the record.

As I say, the analogy to the case of Hentoff.vs Ichord

I believe is very clear. It is a very similar kind of case,

although in Ichord the matter had not been printed. In

this case it has been and we merely seek to hold it back.

I would suggest we meet the criteria for a Temporary

Restraining Order set forth in the Green case in our

memorandum and I needn’t belabor those points since

Your Honor has been over the papers. The issue is ob-

viously very substantial in terms of the injuries of the

parents and the children.

THE COURT: I take it you have a similar issue to

the issue involved in the case which was decided by

Judge Gesell?

MR. WHITE: That is correct, Your Honor. It does

[fol.9] involve an injunction of the Printer and Super-

intendent of Documents from distributing materials. We

are not, as I said previously, concerned to enjoin the

full report, merely that report with the complained of

matters in it. If they excise those matters at this point

we would be satisfied and have nothing further to seek

as to relief as to those defendants.

The probability of success of the other matters we

briefed, and I don’t see any need to burden the Court

with discussion of those cases, the common law right to

privacy, the parent, the teacher and student privilege

which is not a judicial recognized privilege but one we

believe requires some protection. We see little, if any,

permanent injury done to defendants if Your Honor

is to grant preliminary relief in the temporary restrain-

ing order. Simply, they’d be held back from distributing

that in the. public domain. They of course have copies

for their own use, we do not seek the Court holding

them back from reading their own report but simply to

not let it go out further so there is further damages.

We also submit that there is a clear public interest

involved here and that is the interest of the parents and

students and I need not belabor that.

I might refer again as the power of the Court to

protect the Constitutional rights of the citizens and en-

join the legislative official, not the congressman neces-

sarily, but the operatives of the Congress.

(fol. 10] The case of Stamler vs Willis notes in the

text of the opinion, which is at 1370 of the Federal

Reporter:

“Congress has no more right, whether through

legislation or investigations conducted under an over-

broadening . . . to abridge the First Amendment

freedoms of the people than do other branches of

government for free expansion of transcendant value

to all society and not merely to those exercising those

rights might be the loser.”

Quotes from Dombrowski vs Pfister.

THE COURT: Let me ask you a question. If the

Court decides that this committee has a valid and proper

legislative purpose in conducting this hearing, even as-

suming for the purpose of argument that by publishing

these names it might cause some embarrassment or dam-

age to the persons mentioned, does this Court have the

right to enjoin the Public Printer, or the Printer rather,

from publishing and distributing this record which is

based upon open hearings in the House? Do I have that

right?

MR. WHITE: Yes, Your Honor.

THE COURT: By what authority? What law?

MR. WHITE: Let me clear up a factual issue, if I

may.

The matters complained of, those reports, school papers,

letters and lists were not obtained through hearings, they

were obtained through an investigation which involved

sending people to the schools and talking to the teachers,

etc., so it didn’t come out at hearings. These were sub-

(fol. 11] mitted and included in the record. These were

obtained through investigation and not through use of

subpoena power, so it is not a question of whether this

matter came voluntarily from the students or parents,

or even an authorized overall school official, or District

officer. They came apparently through, we would allege,

clandestine or semi-clandestine ways. There is, of course,

no statute that says the United States District Court

Judge may enjoin the committee, or any officer of the

Legislative Branch. Certainly not. We submit it is the

inherent powers of the Court to protect the Constitutional

right of the citizens, and the cases I believe support us

on this matter, that that is where the power derives

and I believe that is where Judge Gesell saw the power.

As I say, we allege in our complaint in this jurisdic-

tion, the Civil Rights Act of 1871, that no person shall

deprive another under color of state law of a civil right

or right under the Constitution or statutes of the United

States.

So it is not a matter of statute, of course, that grants

the Court jurisdiction. The only statute on the subject

in this jurisdiction would be our local jurisdiction on

equity which is 11 D.C. Code 521, I think it is.

THE COURT: As I understand your argument, you

are asking this Court to do precisely the same thing

Judge Gesell did?

(fol. 12] MR. WHITE: I believe I’d have to say that

is correct, Your Honor, because the effect of the order

would be to enjoin the Printer and the Superintendent

of Documents from further distribution of the report

with the matters complained of in it.

THE COURT: Suppose this Court doesn’t agree with

Judge Gesell? I am not bound by his decision, I am

only bound by the Court of Appeals decision and the

Supreme Court.

MR. WHITE: I agree, Your Honor. I say simply that

the authorities that Judge Gesell relied upon appear to

be in support of his position. I only submit his position

as persuasive as Your Honor points out does not bind

you.

THE COURT: I understand your point. Who wants

to speak next?

—ay

MR. HANNON: If the Court please, up until a few

moments ago I had been under the impression that my

appearance in this case was solely as amicus, but I see

that my brothers, counsel for plaintiffs, named the United

States of America as defendant to this action and I would

conclude that the United States of America as defendant

is sufficiently broad to encompass the Legislative Branch

of our government.

If Your Honor please, I recall a number of years ago

where plaintiffs came into this court and sought a tem-

porary restraining order against the then House Un-

American Activities Committee which is now the House

Internal Security Committee, and was argued before

one of your brother judges. I represented the Committee

[fol. 13] at that time and argued as vigorously as I

could the case law then in existence, and tried to persuade

him this Court had no jurisdiction to enjoin legislative

functions and he differed with me and granted the re-

straining order, and we were in the Court of Appeals

that night, Your Honor, about 11:30, and by 8:00 o’clock

in the morning had overturned his ruling.

I often asked myself subsequent to that time whether

it was because of some remission in my part that some-

thing I did not tell that judge, some failure on my part

that caused him to do what he did do.

I recently had the experience of appearing before Judge

Gesell in connection with this Hentoff case which my

brothers rely, and I argued against the temporary re-

straining order that issued in that case, Your Honor,

and I wondered after he granted the temporary restrain-

ing order whether again by virtue of some failure on my

part I failed to persuade him this Court had no juris-

diction whatsoever to do what he did in that casé. And

now I find myself again before Your Honor represent-

ing the United States of America and the Legislative

Branch, compelled to argue once again that the funda-

mental doctrine of separation of powers prohibits this

Court from doing what you are asked to do here.

I want to talk, if Your Honor please, about Judge

Gesell’s case because I differ with him. I have great

respect for him but I differ strongly with what he did

in that case.

[fol.14] The argument before Judge Gesell was made

that publication of this list of speakers that have been

going throughout the campuses of the United States and

speaking, that the publication of that list identifying

those speakers in some respect would chill their First

Amendment rights, and that a chilling effect on the

exercise of First Amendment rights purportedly is suf-

ficient to give a Court of equity jurisdiction to enjoin

a congressional function and that is not so. And Dom-

browski vs. Pfister, the Supreme Court case, does not

stand for that because the Supreme Court made it clear

the chilling effect together with the course of conduct

on the part of state officials which clearly indicated those

people involved in that case could not get a fair trial in

a criminal case, that that was the irreparable injury,

the two coupled together.

Judge Gesell was of the view that chilling effect alone

was enough to warrant equity intervention. He did it in

two cases. He did it in another case involving the Post

Office Department in which he sat as one of a three-

judge court.

I say with all due deference to him, if Your Honor

please, that even Judge Bazelon in the case involving

Selective Service and General Hershey has said chilling

effect alone is not enough, you have to look to see what

the impact of that chilling effect is before you décide

whether or not equity should intervene.

[fol. 15] Now there were two cases argued to Judge

Gesell, both of them in this jurisdiction and both of which

say this Court may not do what he did, and one of them

is Methodist Federation vs Senator Eastland, and the

other is Black vs Hirst.

Judge Gesell for reasons best known to him concluded

since they were old cases, albeit one of them was de-

cided by our Court of Appeals and the other was a

three-judge court, that since they were old cases the

passage of time had somehow overturned the ruling in

those cases. And I respectfully say to Your Honor that

that is not so, those cases are the law today in this

circuit just as they were when written.

I want to tell Your Honor if I may, please, with

respect to Methodist Federation—it is reported at 141

F.Supp. 729. And in that case, if Your Honor please,

that was a three-judge court case, Methodist Federation

social acts against Eastland, the three-judge court said:

“Nothing in the Constitution authorizes anyone to pre-

vent the President of the United States from publishing

any statement. This is equally true whether it is de-

matory or not and whether or not it is made after fair

hearing. Similarly nothing in the Constitution author-

izes anyone to prevent the Supreme Court from publish-

ing any statement. We think it equally clear that noth-

ing authorizes anyone to prevent Congress from publish-

ing any statement.”

Then the Court continued and said: “We have no au-

thority to prevent Congress or any committee or public

[fol. 16] officer acting in the express direction of Congress

from publishing a document than to prevent them from

publishing the Congressional Record.”

That is still the law in this jurisdiction, if Your |

Honor please.

The Supreme Court said in Kilburn vs Thompson, an

old case, 1880, but still the law:

“Jt would be a narrow view of the Constitutional

provision,” —relating to the Speech and Debate

Clause— “to limit it to words spoken in debate.

The reason of the rule is as forceable in its ap-

plication to written reports presented in that body

by its committees to resolutions offered which

though in writing must be reproduced in speech,

and to the act of voting whether it is done vocally

or by passage between the tellers. In short, to

things generally done in the House by one of its

members in relation to the business before it.”

Then again in Kilburn the Court said:

“Tt would be a narrow view to confine the protec-

tion of the Speech and Debate Clause to words

spoken in debate, committee reports, resolutions, any

act of voting are equally covered as ‘things generally

done in session of the House by one of its members

in relation to the business before it.’ ”

{fol.17] If Your. Honor please, in Hirst vs Black,

which was the United States Conrt of Appeals for this

circuit, 66 App. D.C. 318, 87 F.2d 68, the Court there

said, if Your Honor please:

“The universal rule so far as we know it is that

the legislative discretion and discharge of its con-

stitutional functions, whether rightfully or wrong-

fully exercised, is not a subject for judicial inter-

ference. The Constitution has lodge the legislative

power in the Congress. If a Court can say to the

Congress that it could use or could not use informa-

tion in its possession the independence of the legisla-

tion would be destroyed and the constitutional sepa-

ration of powers of government invaded. Nother is

better settled than that each of the three great

departments of government shall be independent and

not subject to the control directly or indirectly by

either of the others. This separation and consequent

exclusive character of the powers conferred upon

each of the three departments is basic and vital,

not merely a matter of government mechanism.”

Now, if Your Honor please, I argued these cases to

Judge Gesell and they were argued again when the mo-

tion for preliminary injunction was heard and the case

disposed of on the merits. And when I argued before

him I told him, Your Honor, as I tell you, that one of

the great responsibilities of the three branches of this

government is to avoid confrontation in issues spelled

(fol. 18] out in Separation of Powers Doctrine. And I

told him that if he granted the restraining order in that

case because of socalled chilling effect on First Amend-

ment rights, he would bring about this confrontation.

Now I have submitted to Your Honor—I should say

more appropriately, the House Internal Securities Com-

mittee has filed with the Clerk of this Court a copy of

House Resolution 1306. And in that House Resolution .

the House of Representative ordered the Public Printer

to do what Judge Gesell ordered him not to do. He has

done it. He has printed the Report that the Judge

ordered not be printed, and it has been distributed.

The House of Representatives in that House Resolu-

tion has in effect said to Judge Gesell: We now enjoin

you from arresting the Public Printer in order to en-

force your decree that you entered against him.

And so for the first time to my knowledge in the

history of American jurisprudence, if Your Honor please,

we have confrontation between the Judiciary and the

Congress of the United States, a terribly, terribly un-

fortunate circumstance, in my judgment.

Now, what is it that impelled Judge Gesell to do

what he did in that case? I read his opinion, if Your

Honor please. Judge Gesell was of the view that the

House Internal Security Committee in the Hentoff case

was publishing the list of speakers that has gone around

to the nation’s campuses speaking, publishing the list

[fol. 19] for no legitimate, legislative purpose. Query?

Does he have a right in the first instance to determine

whether for example it is necessary and proper in ac-

cordance with the Speech and Debate Clause for the

Congress to inform itself as to who the speakers are

when it puts their names in this Report? I respectfully

suggest he does not. But nonetheless, he was of the view

that there was no legitimate legislative purpose involved

in the issuance of that House Committee Report, and he

said in effect, that the list of names were being pub-

‘lished for the sake of exposure and intimidation, and

that purpose only. And for that reason he said he was

going to enter a restraining order enjoining the pub-

lication of the list of names which has since been pub-

lished and republished.

So where are we, if Your Honor please, in connection

with this case? Judge Gesell said in the Hentoff case:

no legitimate legislative purpose; he could discern none.

But any student of constitutional law, if Your Honor

please, has no difficulty in understanding that the Con-

gress of the United States has the exclusive Constitu-

tional power to legislate for the District of Columbia

government; they are the exclusive legislative body for

the District of Columbia.

To say the Congress of the United States cannot con-

duct a hearing into how the school system in the District

of Columbia is being operated is a fabrication on its

face, if Your Honor please. The legislative purpose in

[fol. 20] conducting this hearing by this committee is

obvious on its face,

And so as contrasted from the Hentoff case where

Judge Gesell said no legislative purpose, my brothers

can’t represent to this Court that this committee, the

House District Committee, had no legislative purpose in

mind when it conducted its inquiry with respect to the

District of Columbia school system because obviously it

did.

And so there was a genuine legitimate, legislative

purpose the responsibility of this Court ends at that line.

You go no farther, Your Honor, if you are satisfied

legitimate, legislative purpose, you stop there.

And I suggest what they are saying to the Court, and

they are free to say it if that is their opinion, that

they are quarreling with the prudence, the wisdom, and

judgment of the committee in identifying students by

name. But that is all they are doing. That is not

illegality, that is prudence. They are challenging the

prudence of the committee in doing what it does, and it

hardly give this Court jurisdiction to enter the type

of restraining order that they are asking here.

So I respectfully urge Your Honor to deny the tem-

porary restraining order that they seek here.

THE COURT: Counsel, do you want to say anything

on behalf of the District?

MR. NEDRICH: Very briefly, Your Honor.

If Your Honor would take a moment to look at this

(fol. 21] matter which I hand up (handed to the Court).

Your Honor, this is a resolution proposed by the Super-

intendent of Schools of the District of Columbia to the

Board of Education of the District of Columbia Rules

Committee.

I was in attendance of the Rules Committee meeting

Monday night when this document was proposed, and is

being modified now and the Rules Committee already

adopted the substance of the document.

~ Commenting briefly on it, I do not think at this point

really local legal matters anyone has aroused so much

controversy over the last several months as the one

involving the publication of these children’s names. The

School Board and the school administration are most

concerned about this.

THE COURT: Excuse me. Make this part of the

record. (referring to document handed to the Court)

MR. NEDRICH: Your Honor, I will offer it as Dis-

trict Defendant’s Exhibit “A”.

THE COURT: Very well.

MR. NEDRICH: The School Board and school ad-

ministration are most concerned about this matter and

are taking appropriate steps to cure the matter. There

is already in the board rules, rules of the Board of Educa-

tion of the District of Coluntbia, a prohibition against

releasing what is deemed to be confidential information

to members of the public.

[fol. 22] As Mr. Hannon so well pointed out, however,

there is very little choice which the District of Columbia

school system has with regard to withholding information

from members of Congress. Once they get that informa-

tion we really cannot control what they do with it.

Now, directing myself to point “a” of plaintiffs’ mo-

tion with regard to this report entitled Investigation

and Study of the Public School System of the District

of Columbia, I think it seems clear we have nothing

to do with that report since we didn’t prepare it.

Point “b”, from seeking or permitting further public

dissemination or publication of information regarding

the attendance records, disciplinary records and letters

and other memoranda regarding disciplinary matters and

school test papers of students of the Jefferson Junior

High School and other schools of the District of Co-

lumbia.

Your Honor, this is entirely too broad, it is terribly

inappropriate. The School Board and school administra-

tion are taking steps to insure what they deem to be

confidential records of children are not abused. I think

it would have done plaintiff a great deal more credit

rather than run immediately to this Court to approach

the School Board, or approach the administration and ask

them what they intended to do about this rather than

try to use a judicial club. They do have responsibilities,

{fol. 23] they are aware of their responsibilities, there

are other matters of public record, the test scores which

were published earlier this week in the Washington Post,

are clearly matters of public record; they involve no

students’ names, however they do classify scores of

achivement for reading and mathematics for each of the

elementary and secondary schools of the District of

Columbia, and the public are entitled to know this in-

formation.

I think plaintiffs at least ought to direct itself to a

specific point as to what they want to enjoin with regard

to the District defendants and see whether or not the

District defendants have not through this document in-

dicated that they are already proceeding to do this.

I do not think any relief is necessary from the Court

to the plaintiffs at this time, Your Honor.

Thank you.

THE COURT: Do you wish to reply?

MR, WHITE: May I, Your Honor? Thank you.

As to one of the points that counsel for—Federal

counsel made, we, contrary to what he says, do not allege

there is no legislative purpose to conduct the hearing.

Nor that there is no legislative purpose to the publica-

tion of the Report. Those are matters within Congress’

discretion. We do not seek to have the Court invade that

at all. “

However, it is the names of the students. It is their

test papers. Johnnie Jones got an “F”; Mary Smith got

[fol. 24] an “f’’, ete. We submit has absolutely nothing

to do with legislation, absolutely nothing to do. It is just

a simple question: Does the Congress have the right to

publish a test_paper of a student for apparently no

reason other than to highlight the fact he or she failed

in school? The facet. perhaps that other students are

failing, or that the level of reading is down—

THE COURT: —wasn’t that all part of the investiga-

tion to inquire into these matters? Didn’t Congress have

a right to inquire into these matters you are speaking

about through its lawful committee?

MR. WHITE: Certainly. It has every right as Mr.

Hannon points out to investigate the District of Colum-

bia schools we have no quibble with that. They may

investigate, they may go into the schools and talk to

people, perfectly legitimate. We don’t question it; it

would be fruitless and facetious of us to do that. How-

ever, once they have done that we submit they just

simply cannot reproduce deflamatory, inflamatory, con-

fidential materials. Letters for instance, from a principal

to a parent, saying Mrs. Smith, your daughter today

broke a window. No one has adjudicated whether it is

true or not. It doesn’t really matter whether it is true

or not, it is just simply a private matter.

THE COURT: Tell me something: what was the com-

[fol. 25] mittee trying to determine as a result of the

resolution that authorized the Committee to act? What

were they looking into?

MR. WHITE: It is unclear, Your Honor, but let me

read—as I understand, the House Resolution that au-

thorized the investigation—

THE COURT: —read the resolution.

MR. WHITE: The special subcommittee—it autho-

rizes the D.C. Committee to conduct a full and complete

investigation and study of any department of the Dis-

trict Government. That of course gives the authority—

THE COURT: —that is not the full resolution. You

didn’t read the whole resolution, the resolution upon

which the Committee acted or was organized.

Here is the resolution, I will read it into the record

and you correct me if I am in error.

“Resolved, That the Committee on the District of

Columbia, acting as a whole or by subcommittee,

is authorized to conduct a full and complete investi-

gation and study of the following:

“(1) the organization, management, operation,

and administration of any department or agency of

the government of the District of Columbia.

“(2) the organization, management, operation,

and administration of any independent agency or

instrumentality of government operating solely in

the District of Columbia; and

[fol. 26] ‘‘(3) those operations or activities directly af-

fecting the District of Columbia, of any govern-

mental agency or instrumentality operating on a

regional basis entirely within the Washington metro-

politan area: provided, That the committee shall not

undertake any investigation of any subject which

is being investigated by any other committee of the

House. -

“For the purpose of carrying out this resolution the

committee or subcommittee is authorized to sit and

act during the present Congress at such times and

places within the United States, whether the House

is in session, has recessed, or has adjourned, to hold

such hearings, and to require, by subpoena or other-

wise, the attendance and testimony of such witnesses

and the production of such books, records, corre-

spondence, memorandums, papers, and documents as

it deems necessary .. .”

So it has pretty broad powers, I think.

MR. WHITE: I agree, Your Honor, but if Your

Honor would take a look, for instance, at page 228 of

the Report. I submit, and this is my opinion, that there

is absolutely no legislative purpose in having that page

included in that report. I won’t mention the names since

we are proceeding under fictitious names but for the

sake of argument, it is Marie Doe got an “F” on a school

paper that apparently had to do with history, had to do

something about history of slaves. And date on it is the

(fol. 27] 6th of May 1970. I see nothing in that that is

in any way related to the resolution you just read. That

resolution indicates the Committee can investigate, can

subpoena documents, it can compel witnesses, it can go

around to the schools as it did. We have no quibble with

that, and this is where I disagree with Mr. Hannon,

where I agree with Judge Gesell and submit his view is

the correct one. He says that nothing that nothing that

they do can be enjoined, basically. Nothing that the Con-

gress does can be enjoined. Judge Gesell says where

they invade the Constitutional right they can be en-

joined.

Let me make a couple of comments about what Mr.

Nedrich mentioned. As Your Honor noted we are also

seeking preliminary relief against the District defend-

ants, the School Board and principals involved.

We firmly believe that the breaches of privacy that

occurred in connection with this report are so severe

that no professions of after-the-fact willingness to take

corrective action can protect the rights of these plaintiffs

and others in a similar position.

Very simply, Your Honor, it is that school test papers

and school disciplinary matters and lists involving ab-

sentees have been spread upon the public record. Who

is to say that they won’t spread upon the public record

through newspapers, through whatever now, it is because

they say Congress told us to do so but I submit failure

[fol. 28] to have rules that tells their personnel what

sort of matters are confidential and what not. Failure

of this clause of what injury presently exist... willing-

ness to change, I think is fine; simply doesn’t cure the

evil and pernicious nature of the injury that has oc-

curred heretofore, and we submit unless we enjoin it

may continue.

THE COURT: All right. Now the Court is ready to

rule in this case.

The Plaintiffs in this case seek this Court’s determina-

tion that the printing of Plaintiffs’ names are violation

of the Plaintiffs’ Constitutional and Common Law rights

of privacy. Plaintiffs contend that knowledge of their

identity in this case should not be available to the public

at large, and were the public record to identify the plain-

tiffs would no doubt invade the right of privacy that

the Plaintiffs are seeking to protect and aggravate the

damage of Plaintiffs’ reputations already caused by the

publication of the report in question.

This is taken verbatim from Plaintiffs’ motion for

leave to proceed under fictitious names.

The Court in this case finds that the hearings of the

Committee had a legitimate and proper legislative pur-

pose, and the publication of the matters complained of

did not violate the Plaintiffs’ and their children’s statu-

tory, regulatory, administrative, Common Law or Con-

stitutional rights.

The Court further finds that there is not a reasonable

probability of success on its merits.

(fol. 29] As counsel for the government pointed out,

there is involved here a question regarding the separa-

tion of powers, and this Court in this Court’s opinion

has no jurisdiction whatsoever to interfere with the re-

port which is being circulated, published by the Congress,

circulated, disseminated by the Printer.

This Court regrets, of course, it has to differ with the

Court’s colleague, Judge Gesell, a great judge, a trial

judge for whom I have the greatest respect and admira-

tion and affection. I do not agree with him. I agree

with the arguments advanced by Mr. Hannon represent-

ing the government in this case, and also the Corporation

Counsel’s representative.

We have here three independent, separate parties:

Legislative, Executive and Judicial. And this Court, to

repeat again, has absolutely no right under the facts in

this case to interfere with the functions of the Legisla-

tive Branch of the government.

This Court, fortunately, is not bound by the opinion

or decision of any District Judge on this Court or any

District Judge in this country, and is only bound to fol-

low, and must follow, and I do follow to the best of my

ability, the opinions of this Court of Appeals and from

time to time other Courts of Appeals of the Federal

Judiciary, and of course including the Supreme Court

of the United States.

(fol. 30] I find that the issues of the questions raised in

this case are frivolous and not substantial. Therefore,

the motion for Temporary Restraining Order is denied.

I also call attention to the Resolution that was men-

tioned by Mr. Hannon which was passed by the House

—has not as yet been passed by the Senate, and I will

read it, pages 17 and 18 state—this is known as House

Resolution 1306:

“NOW THEREFORE BE IT RESOLVED, That—

(1) In accordance with the Rules of the House

of Representatives and the acts of Congress made

and provided, the Public Printer and the Superin-

tendent of Documents shall forthwith print, publish,

and distribute, and they are hereby ordered forth-

with to print, publish, and distribute to and for the

use of the House of Representatives, the Committee

on Internal Security of said House, and those en-

titled to receive them, the usual number of copies

of the report (No. 91-1732) of said Committee on

Internal Security titled, ‘Report of Inquiry Concern-

ing Speakers’ Honoraria at Colleges and Universi-

ties, which has this day been duly reported to the

House.

(2) All persons, whether or not acting under

color of office, are hereby advised, ordered, and en-

joined to refrain from doing any act, or causing

any act to be done, which restrains, delays, inter-

[fol. 31] feres with, obstructs, or prevents the perform-

~ ance of the work ordered to be done by paragraph

numbered (1) hereof; and all such persons are fur-

ther advised, ordered, and enjoined to refrain from

molesting, intimidating, damaging, arresting, im-

prisoning, or punishing any person because of his

participation in, or performance of, such work.

(3) Copies of this resolution shall be forthwith

furnished by the Clerk of the House to the Public

Printer, Superintendent of Documents, and the clerks

of the United States District Court and of the United

ag Court of Appeals for the District of Colum-

ia.

Even though this Resolution has not been enacted into

law this Court agrees wholeheartedly with the statements

contained therein.

oo motion for Temporary Restraining Order is de-

nied.

MR. WHITE: May I ask a question, Your Honor?

THE COURT: Will you please prepare an appropri-

ate order?

MR. HANNON: Yes, sir.

MR. WHITE: Does Your Honor’s ruling cover the

preliminary injunction?

THE COURT: The complaint is dismissed as being

frivolous.

MR. WHITE: The entire case?

(fol. 32] THE COURT: Yes. I thought I covered

everything in my oral opinion.

You are all set to now take this case to the Court of

Appeals.

MR. WHITE: Thank you, sir. I just wanted to clear

it up.

(Adjourned at 5:20 p.m.)

CERTIFICATE

It is certified the foregoing is the official transcript

of proceedings indicated.

/s/ Nicholas Sokal

NICHOLAS SOKAL

Official Reporter

PoLicy STATEMENT REGARDING CONGRESSIONAL INQUIRIES

Due to the numerous Congressional inquiries related

to the Public Schools of the District of Columbia, the

Board of Education has determined the need to establish

certain policies in order to prevent the disclosure of

confidential information and reports regarding students

and school personnel. It is the view of the Board that

there are aspects of the professional relationships of

school personnel with students, parents, and community

which must be considered privileged and remain confi-

dential. At the same time, the Board recognizes its re-

sponsibility to provide the Congress with the informa-

tion about the conduct of school affairs to which it is

legally entitled.

The Board of Education in an effort to provide for

the protection of the confidentiality of certain informa-

tion related to school affairs and to respond appropriately

to Congressional inquiries into the conduct of school

affairs in the Public Schools of the District of Columbia

establishes the following policies with regard to the re-

lease of information to the Congress.

1. The names, addresses and other identifying infor-

mation related to students are not to be released

under any circumstances by school personnel with-

out prior approval by the Superintendent. The

Superintendent and the Board of Education shall

take all necessary steps to insure that the confi-

dentiality of such privileged information is pro-

tected when its release may be demeaning or dis-

crediting to a student or group of students.

2. The names, addresses and other identifying infor-

mation related to teachers or any other school per-

sonnel are not to be released under any circum-

stances by school personnel without prior approval

by the Superintendent. The Superintendent and the

Board of Education shall take every necessary step

to protect the confidentiality of such information

when there is any reason to believe that its release

_ thay be injurious to any individual or group.

3. The Board of Education and the Superintendent or

his designee shall be the only persons authorized to

trarismit information officially requested by the Con-

gress pertaining to the conduct of school affairs.

. The Board of Education and the Superintendent or

his designee are the only persons authorized to pro-

vide official interpretations of Board of Education

policy with regard to the release of information to

the Congress.

December 23, 1970

[Tendered to the District Court as District

Defendants’ Exhibit A on January 8, 1971]

a .

UNION CALENDAR No. 812

91st Congress, 2d Session — — House Report No. 91-1681

INVESTIGATION AND STUDY OF THE

PUBLIC SCHOOL SYSTEM

OF THE

DISTRICT OF COLUMBIA

/ fs

REPORT

OF THE

COMMITTEE ON THE DISTRICT OF COLUMBIA

HOUSE OF REPRESENTATIVES

NINETY-FIRST CONGRESS

SECOND SESSION

PURSUANT TO

THE LEGISLATIVE REORGANIZATION ACT OF 1946

[Congressional Emblem]

December 8, 1970.—Committed to the Committee of the

Whole House on the State of the Union and ordered

to be printed

Counsels’ Note:

[Pertinent provisions of this Report have been sub-

mitted to the Clerk of the Supreme Court with a

written request that it be made available for in-

spection only by Court personnel. ]

[H. Res. 76, 91st Cong., 1st sess., agreed to

February 5, 1969]

RESOLUTION

Resolved, That the Committee on the District of Co-

lumbia, acting as a whole or by subcommittee, is author-

ized to conduct a full and complete investigation and

study of the following:

(1) the organization, management, operation, and

administration of any department or agency of the

government of the District of Columbia;

(2) the organization, management, operation, and

administration of any independent agency or instru-

mentality of government operating solely in the Dis-

trict of Columbia; and

(3) those operations or activities directly affect-

ing the District of Columbia, of any governmental

agency or instrumentality operating on a regional

basis entirely within the Washington metropolitan

area: Provided, That the committee shall not under-

take any investigation of any subject which is being

investigated by any other committee of the House.

For the purpose of carrying out this resolution the

committee or subcommittee is authorized to sit and act

during the present Congress at such times and places

within the United States, whether the House is in session,

has recessed, or has adjourned, to hold such hearings,

and to require, by subpena or otherwise, the attendance

and testimony of such witnesses and the production of

such books, records, correspondence, memorandums, pa-

pers, and documents; as it deems necessary; except that

neither the committee nor any subcommittee thereof may

sit while the House is meeting unless special leave to sit

shall have been obtained from the House. Subpenas may

be issued under the signature of the chairman of the

committee or any member of the committee designated

by him, and may be served by any person designated by

such chairman or member.

The committee shall report to the House as soon as

practicable during the present Congress the results of

its investigation and study together with such recom-

mendations as it deems advisable. Any such report which

is made when the House is not in session shall be filed

with the Clerk of the House.

_ Funds authorized are for expenses incurred in the

committee’s activities within the United States; and, not-

withstanding section 1754 of title 22, United States Code,

or any other provision of law, local currencies owned by

the United States in foreign countries shall not be made

available to the Committee on the District of Columbia

for expenses of its members or other Members or em-

ployees traveling abroad.

LETTER OF TRANSMITTAL

HOUSE OF REPRESENTATIVES,

COMMITTEE ON THE DISTRICT OF COLUMBIA,

Washington, D.C., December 8, 1970.

Hon. JOHN W. McCORMACK,

Speaker, House of Representatives,

Washington, D.C.

DEAR MR. SPEAKER: There is herewith submitted

pursuant tothe Legislative Reorganization Act of 1946,

an interim report of the Committee on the District of

Columbia which was authorized and directed to con-

duct a full and complete investigation and study of—

(1) the organization, management, operations and

administration of any department or agency of the

government of the District of Columbia; and

(2) the organization, management, operation, and

administration of any independent agency or instru-

mentality of government operating solely in the Dis-

trict of Columbia,

pursuant to the terms of House Resolution 76, 91st

Congress, 1st session.

The enclosed report is based upon the hearings and

investigations of the Special Select Subcommittee of the

Committee on the District of Columbia, which was au-

thorized and directed to devote itself to some of the prob-

lems extant in the operations of the Government of the

District of Columbia.

This report is a summary of that Subcommittee’s in-

vestigations and hearings particularly devoted to the pub-

lic school system of the District of Columbia.

Sincerely yours,

JOHN L. McMILLAN

Member of Congress, Chairman

— an

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

[Filed Jan. 11, 1971, James F. Davey, Clerk]

[Title Omitted] '

ORDER

This cause came on for hearing on January 8, 1971

upon plaintiffs’ application for a temporary restraining

order and upon consideration of the application, plead-

ings, exhibits and argument of counsel for plaintiffs, the

District of Columbia defendants and the defendant

United States of America made in open Court the fol-

lowing appears to the Court:

1. Plaintiffs seek an injunction from this Court that

would enjoin the further printing and distribution of

the minor plaintiffs’ names in a report issued by Com-

mittee of the District of Columbia of the United States

House of Representatives entitled “Investigation and

Study of the Public School System of the District of

Columbia” (House Report No. 9-1681). Further, they

seek a declaration that this Committee report is viola-

tive of their statutory, regulatory, administrative, com-

mon law, and constitutional rights.

The Court has examined the Committee report which

was furnished as an exhibit. Pursuant to Article I, Sec-

tion 8, Clause 17 of the United States Constitution Con-

gress has exclusive legislative jurisdiction over the Dis-

trict of Columbia. Under the circumstances the House

Committee report as shown by the Committee resolution

has a legitimate and proper legislative purpose. This

being so, this Court lacks jurisdiction to afford plaintiffs

the injunctive relief sought against the Committee of the

District of Columbia and its subordinates. The funda-

mental principle of separation of powers compels this

conclusion. .

2. With respect to plaintiffs’ request for a declaratory

judgment that the Committee report violates certain

rights of plaintiffs the Court observes that this action as

brought by plaintiffs includes tort claims made against

the named federal government defendants, District of

Columbia government authorities and the United States

of America. Discussing these defendants seriatim, it is

clear that the complained of actions alleged against the

federal-officer defendants were performed by them in the

course of their employment as members of the legislative

branch of the United States government and under the

official immunity doctrine of Barr v. Matteo, 360 U.S.

564 the acts complained of are absolutely privileged. For

this reason the complaint fails to state a claim against

the named defendants of the legislative branch of the

federal government, and must be dismissed.

8. The named defendants of the District of Columbia

government are the individual members of the Board of

Education of the District of Columbia government, the

Superintendent of the District of Columbia Public Schools,

the principal and one teacher of the Jefferson Junior

High School. Assuming that the alleged acts set forth

in the complaint were in fact committed by the named

District of Columbia officials, then it is clear that the

acts were discretionary ones and not ministerial. Since

a public officer cannot be liable in money damages, even

if he acted negligently, so long as the act was discre-

tionary, Kendall v. Stokes, 1845, 3 How. 87, 98, 44 U.S.

87, 98; Cooper v. O’Connor, 1938, 66 U.S. App. D.C.

100, 102, 99 F.2d 185, 187; Tucker v. Duke, 107 USS.

App. D.C. 253, 276 F.2d 499 (1960) the complaint fails

to state a claim against these public officials upon which

relief can be granted.

4. The last named defendant in the complaint is the

United States of America and since plaintiffs cite~ 28

U.S.C. 1846 in their jurisdictional statement it would

appear that the United States is being sued under the

Federal Tort Claims Act. Plaintiffs however have not

alleged in their complaint as required by Rule 8(a) (1)

of the Federal Rules of Civil Procedure exhaustion of

the administrative remedy which according to 28 U.S.C.

2675(a) must be asserted against the appropriate fed-

eral agency and finally denied before this Court can exer-

cise its jurisdiction over the United States in the context

of this action. Since this Court does not now have juris-

diction over the United States the complaint should be

dismissed. |

In view of the foregoing it is by the Court this 11th

day of January, 1971,

ORDERED that plaintiffs’ application for a tempo-

rary restraining order be and the same hereby is de-

nied; and it is

FURTHER ORDERED that the complaint be and the

same hereby is dismissed as to all defendants.

/s/ John J. Sirica

United States District Judge

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that service of the foregoing

proposed Order has been made upon plaintiffs by mailing

a copy thereof to their attorney, J. Kirkwood White,

Esquire, Suite 509, 1145 19th Street, N.W., Washington,

D.C. 20036, on this 11th day of January, 1971.

/s/ Joseph M. Hannon

JOSEPH M. HANNON

Assistant United States

Attorney

, i aa v7

aL Sa ———————— Pes pt

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

[Title Omitted]

NOTICE OF APPEAL—Filed January 12, 1971

Notice is hereby given that John Doe, by his Guardian

Mary Doe, and Richard Roe, by his Guardian Mary Roe,

on their own behalf and on behalf of all others similarly

situated, hereby appeal to the United States Court of

Appeals for the District of Columbia Circuit from the

order denying preliminary relief and dismissing their

Complaint entered in this action on the llth day of

January, 1971, by the Honorable John J. Sirica, United

States District Judge.

Date: 11 January, 1971

/s/ Jean Camper Cahn

JEAN CAMPER CAHN

/s/ J. Kirkwood White

J. KIRKWOOD WHITE

/s/ Dennis Dutterer

DENNIS DUTTERER

Attorneys for Plaintiffs

Suite 509

1145 - 19th Street, N.W.

Washington, D.C. 20036

(202) 833-1700

ek ba oral nese ly ay hae et ne Go ne eae ene ee

—-

December 23, 1970

JOINT STATEMENT:

Superintendent of D. C. Public Schools, Dr. Hugh J. Scott

/s/ Hugh J. Scott

President of the Board of Education, Mrs. Anita F. Allen

/s/ Anita F. Allen

The District of Columbia Board of Education and the

school administration find it difficult to reconcile the re-

cently released Report of the Special Select Subcommit-

tee of the House Committee on the District of Columbia

with its avowed intention to hold hearings in an effort

to “help” the D. C. Public Schools. We find it totally

incomprehensible that a Committee of the Congress of

the United States would include in its public report con-

fidential and detrimental material about school children

who are named in that report. It is also unbelievable

that the Committee would publish reports about pupils

without giving these pupils or their parents the right to

speak in their own defense.

In terms of the harmful effects of publicity, the Juve-

nile Courts protect youths charged with serious crimes

better than the District Committee protects innocent and

conscientious students who attempted to pass a 15-ques-

tion test and failed.

Both the policy of the Board of Education and. admin-

istrative practice require that personnel matters related

to staff and confidential matters related to pupils be dis-

cussed only in closed sessions of the Board. This require-

ment is based on the law which established the Board

of Education, a law enacted by the Congress, which now

finds one of its Committees in violation of the letter and

spirit of the law providing for an elected Board of Edu-

cation.

The D.C. Public School System through the Board of

Education ‘and administration reaffirms its commitment

to protect the confidentiality of personnel matters and to

guard against the disclosure of confidential reports about

students. In this respect the Board of Education will

= ee ONS ;

adopt necessary amendments to its Rules and the Super-

intendent will establish corresponding administrative pro-

cedures to assure that the unfortunate disclosures do not

re-occur.

It is confident that the attitudes toward pupils and

personnel which are reflected in the Committee’s report

are not indicative of the attitude of the total Congress.

The Committee requested the Board of Education to

provide legislative recommendations to the Committee

which would assist the Board of Education and the school

administration in better serving the education needs of

our students. A number of legislative recommendations

were furnished the Committee during the public hearings.

To date we are unaware of a single legislative recom-

mendation being introduced in the House of Representa-

tives, let alone the enactment of any legislation. If the

Committee sincerely wants to be helpful, we would urge

it to have the legislative recommendations introduced in

Congress in January, and promptly enacted.

[Submitted to the United States Court of Appeals for

the District of Columbia Circuit during Oral Arguments

on Motions for Summary Reversal and

Summary Affirmance. ]

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 71-1027 September Term, 1970

Civil Action 56-71

[Filed Jan. 14, 1971, United States Court of Appeals

for the District of Columbia Circuit,

/s/ Nathan J. Paulson, Clerk]

JOHN DOE, ET AL., APPELLANTS

Vv.

JOHN L. MCMILLAN, ET AL.

Before: Wright and Tamm, Circuit Judges, in Chambers.

ORDER

On consideration of appellants’ motion for summary

reversal of the District Court’s order denying a tempo-

rary restraining order and dismissing the complaint, or

for injunction pending appeal, and for expedited hearing

and consideration thereof, and in order to provide an

opportunity for the Court to more fully consider appel-

lants’ motion and appellees’ response thereto, which is

due on or before January 19, 1971, it is

ORDERED by the Court that appellees Robert E. King,

Superintendent of Public Documents, and Nicholas A.

Spence, Public Printer, be enjoined from further print-

ing and distribution of 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), unless references to the names and

addresses of students or their parents or guardians, con-

tained in student absentee lists, letters, memoranda and

other papers regarding student disciplinary problems and

—

student test papers which are incorporated in said re-

port, are deleted, until further order of this Court, and

it is

FURTHER ORDERED by this Court that appellees

Clark, Gasque, Garber and Little, agents of the Commit-

tee on the District of Columbia of the House of Repre-

sentatives, appellees Allen, Coates, Alexander, Cassell,

Hancock, Roots, Rosenfield, Swaim, Taylor, Tirana and

Washington, President and Members of the Board of

Education of the District of Columbia, appellee Scott,

Superintendent of the Public Schools of the District of

Columbia, appellee Savoid, Principal of Jefferson Junior

High School, appellee,leyen, teacher at Jefferson Junior

High School, and apf Martin be enjoined from pub-

lication and distribution of student absentee lists, letters,

memoranda and other papers regarding student discipli-

nary problems and student test papers, unless such ma-

terials contain no reference to the names or addresses

of students or their parents or guardians, until further

order of this Court.

The foregoing action does not reflect any consideration

by this Court of the merits of appellants’ motion, but is

only intended to preserve the status quo pending the

filing of appellees’ response to the aforesaid motion and

consideration on its merits.

Per Curiam

) . :

Notice: This opinion is subject to formal revision before publication in the

Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify the

Clerk of any formal errors in order that corrections may be made before the

bound volumes go to press.

‘4

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 71-1027

Joun Dok, ET AL.

Joun L. McMmay, ET AL.

On Appellants’ Motion for Summary Reversal (or for in-

junction pending appeal) and on Appellees’ Motions

for Summary Affirmance

Decided March 11, 1971

Messrs. J. Kirkwood White and Dennis Dutterer, with

whom Mrs. Jean Camper Cahn was on the pleadings, for

appellants.

Mr. David P. Sutton, Assistant Corporation Counsel,

D.C., with whom Messrs. C. Francis Murphy, Acting Cor-

poration Counsel, and Richard W. Barton, Assistant Cor-

poration Counsel, were on the pleadings, for the District

of Columbia appellees.

Mr. John A. Terry, Assistant United States Attorney,

with whom Messrs. Thomas A. Flannery, United States

Attorney, and Joseph M. Hannon, Assistant United States

Attorney, were on the pleadings, for the Federal appel-

lees.

Before: Fany, Senior Circuit Judge, Tamm and Leven-

THAL, Circuit Judges.

Opinion per curiam.

Dissenting opinion filed by TAMM, Circuit Judge.

”

Per CunmaM: Plaintiff-appellants in this case are stu-

dents 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 Mem-

bers of the Board of Education of the District of Colum-

bia, (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 pub-

lication 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 regard-

ing student disciplinary problems, and (3) student test

papers, because these documents included their names

and addresses.' Appellants allege that such publication

violates their constitutional right to privacy.

The District Court denied appellants’ motion for tem-

porary 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 other-

wise, 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 ap-

pellants’ 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.” However, our consti-

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).

* Ansara v. Eastland, No. 24,816 (D.C. Cir., Jan. 11, 1971) |

(slip opinion at 3). See also Railroad Comm’n v. Pullman

Co., 312 U.S. 496, 500 (1941); Cole v. McClellan, No. 23,424

tutional obligations require us to take into account the

claim of irreparable harm caused by continued publica-

tion 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 constituted a bill of attainder, a point not reached

hy the majority.’

In one respect, we conclude that the injunction pre-

viously 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 digiplinary

difficulties. We modify the injunction to permit the pub-

lication 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

(D.C. Cir., Nov. 6, 1970) (slip opinion at 4); Davis V.

Ichord, No. 23,426 (D.C. Cir., Aug. 20, 1970) (slip opinion

at 19-26) (Leventhal, J., concurring).

8 Wisconsin v. Constantineau, 39 U.S.L.W. 4128 (Jan. 19,

1971).

Court ultimately upholds the authority to publish the

identities of individuals, they could be added in a supple-

mental 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 modi-

fied, pending determination of an expedited appeal, is a

responsible exercise of our duties.

So Ordered.

Tamm, Circuit Judge, dissenting: I would deny appel-

lant’s motion for summary reversal and grant appellee’s

motion for summary affirmance. In my view, no purpose

is served by further delaying a disposition of this cause,

albeit it nominally permits the filing of additional briefs

which in actuality can only contain material which is repe-

titious of what is now hefore us. I see no purpose in now

cautiously walking around the quicksand of a separation-

of-powers question by delaying a head-on confrontation of

the problem. No number of additional briefs or argu-

ments can erase or hide the nature of the problem already

briefed and argued before us.

Challenged herein is the publication by thé House Com-

mittee on the District of Columbia of a report on the

school system of the District of Columbia which was

issued on December 8, 1970, as “INVESTIGATION AND STupy

‘ OF THE PusLic ScHoo. SystEM OF THE District or CoLuM-

BIA, REPORT OF THE COMMITTEE ON THE District oF CoLuM-

BIA, House or RepresentaTIveEs, H.R. Rep. No. 91 1681, 91st _

Cong., 2d Sess.” The District-Judge properly found that

this report had a valid legislative purpose growing out of

the legislative power of Congress over the District of Co-

lumbia. U.S. Const. art. J, § 8, cl. 17. The self-stated ob-

ject of the report is “to give a realistic view of this

troubled school, and the lack of administrative efforts to

rectify the multitudinous problems there.” Certainly a

conscientious Congress, called upon to authorize the ex-

penditure of more than $150,000,000 a year’ of the tax- q

payers’ money for the operation of a public school system,

is justified and required to determine if the school popula-

tion is receiving full value from this investment.

The challenged report does set out attendance lists, his-

tory test papers, and correspondence on disciplinary

problems all of which contain the names of students.

Certainly these documents constitute the best available

evidence of the facts which they portray. Also contained

in the report are the oral answers of witnesses before the

committee who furnished the names of students partici-

pating in and creating disciplinary problems (see page

212 of the report), and yet there appears to be no question

raised as te.the legality or propriety of this testimony.

As a matter of evidentiary appraisal I see no difference in |

the status of documents coritaining names of individuals

and oral testimony of the same type.

Of major concern t@& me, however, is the question of

what, if any, authority this court has to pass upon the

action of Congress in this situation. While I may doubt

both the necessity and wisdom of the inclusion of data iden-

tifying individual students, I am required by time-tested

law to recognize the legality, if not the virginity, of con-

gressional power. My judicial responsibility requires me

to validate, when called upon to do so, the legality of con-

gressional action which is within the legislative power as

defined by the Constitution and case law. This recogni-

tion of the limitations upon judicial interference with the

legal actions of the legislative branch has been recognized

1 The current press indicates the requested budget for the

next fiscal year’s operation of the public school system of the

District of Columbia exceeds $150,000,000.

cee

. 63

since 1805, when Chief Justice Marshall, speaking for the

Court in United States v. Fisher, 6 U.S. (2 Cranch) 358,

395 (1805), stated: “Congress must possess the choice of

means, and must be empowered to use any means which

are in fact conducive to the exercise of a power granted

by the Constitution.” It is my view that the majority

opinion ignores the mandate expressed by Marshall that

“to undertake here to inquire into the decree of its neces-

sity would be to pass the line which cireumscribes the

judicial department and to tread on legislative ground.

This Court disclaims all pretensions to such a power.”

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 315, 422

(1819). I recognize that “[t]he Government which

has the right to do an act, and has imposed on it, the

duty of performing that act, must, according to the dic-

tates of reason, be allowed to select the means; and those

who contend that it may not select any appropriate means,

that one particular mode of effectin® the object is ex-.

cepted, take upon themselves the burden of establishing

that exception.” McCulloch v. Maryland, supra at 409. (Em-

phasis added.) I do not believe the majority opinion estab-

lishes any exception applicable to this case. The line. of

cases supporting this doctrine is too well established to re-

quire lengthy citation.

I am, in addition, concerned that the majority predicates

its action on an appellant’s claimed “right of privacy.” It

does seem to me that the vagaries created in this area

since New York Times v. Sullivan, 376 U.S. 254 (1964),

establish an emblem of identity as the legal measure of

not only the breadth and depth of this “right” but even of

its existence in individual cases. A licensed physician and

the medical director of a Planned Parenthood League have

a right to privacy (Griswold v. Connecticut, 381 U.S. 479

(1965)), but an elected county official has no such right.

New York Times v. Sullivan, supra. I am unable by any

amount of legal engineering to perform such a task of con-

stitutional alchemy as to find a legal “right to privacy” in

truant school children, but no such right in a United States

Senator. Pearson v. Dodd, 188 U.S.App.D.C. 279, 410

F.2d 701, cert. denied, 395 U.S. 947 (1969).

I respectfully dissent.

UNITED STATES\COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 71-1027 September Term, 1970

Civil 56-71

[Filed Mar. 11, 1971, United States Court of Appeals

for the District of Columbia Circuit,

/s/ Nathan J. Paulson, Clerk]

JOHN DOE, ET AL.

JoHN L. McMILLAN, ET AL.

Before: Fahy, Senior Circuit Judge, and Tamm and

Leventhal, Circuit Judges

ORDER

This cause came on for consideration on appellants’

motion for summary reversal (or for injunction pending

appeal) and on appellees’ motions for summary affirm- .

ance, and the Court heard argument of counsel. On con-

sideration of the foregoing, it is

ORDERED by the Court that the aforesaid motions

are denied, and it is

FURTHER ORDERED by the Court that this Court’s

injunction of January 14, 1971, is modified to permit

the publication of names of students absent from school,

and the injunction as so modified will be continued in

effect pending the expedited litigation, and it is

FURTHER ORDERED by the Court that appellants’

brief shall be filed on or before April 12, 1971, appel-

lees’ brief and the appendix of the parties shall be filed

any, shall be filed on or before May 14, 1971. Ten copies

RAEI SPAN TRNAS UBT FEN RMI FEE LE AO LE Epa “MR

on or before May 7, 1971, and appellants’ reply brief, if .

TUE

of the briefs and seven copies of the appendix of the

parties may be filed in Xeroxed form. No extensions

of time for the filing of the briefs or appendix will be

granted.

The Clerk is directed to schedule this case for argu-

ment on the merits as soon after the briefs are filed as

the business of the Court will permit.

Per Curiam

Opinion per curiam.

Dissenting opinion by Circuit Judge Tamm.

—-.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 71-1027

JoHN Dog, ET AL., APPELLANTS

Joun L. McMitian, eT aL

Appeal from the United States District Court

for the District of Columbia

Decided January 20, 1972

Mr. Dennis Dutterer, with whom Mrs. Jean Camper

Cahn and Mr. J. Kirkwood White were on the brief, for

appellants.

Mr. David P. Sutton, Assistant Corporation Counsel

for District of Columbia, for District of Columbia ap-

pellees. Messrs. C. Francis Murphy, Corporation Counsel,

and Richard W. Barton, Assistant Corporation Counsel,

also entered appearances for District of Columbia ap-

pellees.

Mr. John A. Terry, Assistant United States Attorney,

with whom Messrs. Thomas A. Flannery, United States

Attorney at the time the brief was filed, Joseph M. Han-

non, Assistant United States Attorney, Fred M. Vinson,

Jr., William C. Cramer, Michael P. Bentzen, Sheldon S.

Gilbert and James M. Robin wére on the brief, for Federal

appellees.

Before Witpur K. Muuer, Senior Circuit Judge, and

Wricut and MacKinnon, Circuit Judges.

Opinion for the Court filed by MACKINNON, Circuit

Judge.

Dissenting opinion filed by WRIGHT, Circuit Judge, at

p. 29.

MacKinnon, Circuit Judge: Plaintiff-appellants in this

case are a class of persons composed of students at Jef-

ferson Junior High School in the District of Columbia

and their parents and guardians. Defendant-appellees

are: (1) The Chairman and Members of the House of

Representatives Committee on the District of Columbia’;

(2) the Clerk, Staff Director, Counsel and a consultant

to the Committee; (3) the Superintendent of Public Docu-

ments and the Public Printer, i.e., the Government Print-

ing Office; (4) the President and Members of the Board

of Education of the District of Columbia; (5) the Super-

intendent of the Public Schools of the District of Colum-

bia; (6) the Principal of Jefferson Junior High School;

(7) a teacher at Jefferson Junior High School; (8) a

1 Although the complaint initially named all of the Members

of the House District Committee as defendants, we subse-

quently granted appellants’ motion to sever Congressmen

Brock Adams, Charles C. Diggs, Jr., Donald M. Fraser, Gil-

bert Gude, and. Andrew Jacobs, Jr., and to dismiss this

appeal with respect to them. June 7, 1971. The stipulation

upon which such dismissal was based, indicated that the

above-named Congressmen oppose the distribution of the

House Committee Report, so long as the names complained

of remain therein, and that they would have voted against

the publication thereof had they been given the opportunity

to do so.

District of Columbia Police Officer acting as an investi-

gator for the Committee; and (9) the United States

of America.

Appellants, proceeding in forma pauperis and under

fictitious names to preserve their anonymity, commenced

this action in the District Court for damages, a declara-

tory judgment and for an injunction against further

publication and distribution of a report of the House of

Representatives Committee on the District of Columbia

on the District of Columbia School System? unless 45

2 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. (December 8, 1970). This

report was prepared pursuant to a House Resolution, H. Res.

76, 91st Cong., Ist Sess. (February 5, 1969), which provides:

Resolved, That the Committee on the District of

Columbia, acting as a’ whole or by subcommittee, is

authorized to conduct a full and complete investigation

and study of the following:

(1) the organization, management, operation, and

administration of any department or agency of the

government of the District of Columbia;

(2) the organization, management, operation, and

administration of any independent agency or in-

strumentality of*government operating solely in the

District of Columbia; and

(3) those operations or activities directly affect-

ing the District of Columbia, of any governmental

agency or instrumentality operating on a regional

basis entirely within the Washington metropolitan

area: Provided, That the Committee shall not un-

dertake any investigation of any subject which is

being investigated by any other committee of the

House.

For the purpose of carrying out this resolution the

committee or subcommittee is authorized . . . to hold

such hearings, and to require, by subpoena or otherwise,

pages thereof were altered to delete certain names of

students. The pages in question contain copies of: (1)

student absentee lists; (2) letters, memoranda, and other

papers regarding student disciplinary problems; and (3)

student test papers.’ These documents, which include the

true names and addresses of appellants, identify the stu-

dents in contexts that are, at least partially, derogatory.

Appellants contend, inter alia, that the disclosure, dis-

semination, and publication of the House Committee Re-

port, so long as it contains the names of said students,

violate their constitutional and common law right to

privacy, constitute an impermissible bill of attainder, deny

the attendance and testimony of such witnesses and

the production of such books, records, correspondence,

memorandums, papers, and documents, as it deems

necessary...

The committee shall report to the House as soon as

practicable during the present Congress the results of its

investigation and study together with such recommenda-

tions as it deems advisable. Any such report which is

made when the House is not in session shall be filed

with the Clerk of the House. ~

* * * * * *

Counsel for ap nts indicated at oral argument in the

District Court that he does not contend that the House Dis-

trict Committee pursuant to an invalid legislative

purpose in investigating the District of Columbia Public

School System and publishing the Report (Tr. 23, 24, 27),

but he does seek declaratory and injunctive relief against the

Committee as well as others. Art. I, § 8, cl. 17, ofthe U.S.

Constitution vests Congress with the power of “exclusive

legislation” over the District of Columbia. See note 6, infra.

3 This information was obtained voluntarily from District

of Columbia school personnel by House District Committee

investigators. Before the District Court below, appellants

unsuccessfully sought an injunction against further dis-

closure of such “confidential information” by District of Co-

lumbia school officials.

_ ana

them due process of law, violate the Civil Rights Act $f

1871, 42 U.S.C. § 1983 (1970), are devoid of any~y#lid

legislative purpose, and will cause severe damage to

their mental and physical health, their reputations, and

appellant-students’ future careers. They also make a

contention on appeal which was not raised below, namely,

that the House Committee Report was published and

distributed in violation of House rules.

The District Court denied appellants’ motion for tem-

porary relief and dismissed their complaint. It found

that the House Committee Report had a “legitimate and

proper legislative purpose,” as demonstrated by the un-

derlying enabling resolution,‘ and it held that it was with-

out jurisdiction to grant the requested injunctive relief

by reason of the doctrine of separation of powers. It

further determined that since the acts of the Legisla-

tive Branch employees named as defendants were per-

formed by them in the course of their employment, they

were absolutely privileged under the doctrine of official

immunity. The District of Columbia defendants were

found to be protected by the doctrine that a public of-

ficer cannot be liable in money damages, even if he has

acted negligently, so long as his act was discretionary.

Finally, the District Court concluded that it lacked juris-

diction over any claim against the United States, since

appellants had not exhausted their other remedies as

required by 28 U.S.C. § 2675(a) (1970). This appeal

followed.

‘H.R. Res. 76, supra note 2.

528 U.S.C. § 2675(a) provides:

An action shall not be instituted upon a claim against

the United States for money damages for injury or loss

of property or personal injury or death caused by the

negligent or wrongful act of omission of any employee

of the Government while acting within the scope of his

office or employment, unless the claimant shall have first

SEELEY OA LEL LI LIEGE ONE oS IIE TELLER LENO SE BEE TOOL LE YT! TETAS te aE SEG

Appellants moved this court for summary reversal or

an injunction pending appeal. On January 14, 1971, we

issued an injunction to preserve the status quo until

responses were filed. Such order did not enjoin the Mem-

bers of the House Distriet Committee or the United

States, but it did prohibit the other defendant-appellees

from any further publication and distribution of the House

Committee Report, so long as it contained the names and

addresses of pupils and parents. On March 11, 1971,

this court denied appellants’ motion for summary reversal,

and appellees’ motion for summary affirmance, and it

modified the injunctive order of January 14, 1971, to

permit the publication of names of students absent from

school. It otherwise continued the injunction and ordered

the case set for argument on an expedited basis.

The issues have now, been briefed and argued, and we

hold that the District Court’s dismissal was proper. For

the reasons set out below, we have concluded that the

District Court was without jurisdiction with respect to

the defendant-appellees. Therefore, we have not found

it necessary to consider the merits of the constitutional,

statutory, administrative, and common law claims which

appellants have asserted.

Under Article I, Section 8 of the Constitution, Congress

is provided with exclusive legislative authority over the

presented the claim to the appropriate Federal agency

and his claim shall have been finally denied by the agency

in writing and sent by certified or registered mail. The

failure of an agency to make final disposition of a claim

within six months after it is filed shall, at the option

of the claimant any time thereafter, be deemed a final

denial of the claim for purposes of this section. The

provisions of this subsection shall not apply to such

claims as may be asserted under the Federal Rules of

District of Columbia.* This pervasive power is accom-

panied by inherently broad investigatory authority.

Preliminary inquiry has from the earliest times

been considered an essential of the legislative process.

By it are to be determined both the advisability for

and the content of legislation. So that even as to

ordinary subjects, the power of inquiry by the legis-

lature is coextensive with the power of legislation

and is not limited to the scope or the content of con-

templated legislation. Constitutional legislation might

ensue from information derived by an inquiry upon

the Subject described in the [investigating body’s

legislative authorization.] That potentiality is the

measure of the power of inquiry.

Barsky v. United States, 83 U.S.App.D.C. 127, 131, 167

F.2d 241, 245, cert. denied, 334 U.S. 843 (1948). See

Fields v. United States, 82 U.S.App.D.C. 354, 164 F.2d

97 (1947), and authorities cited therein; McGrain v.

Daugherty, 273 U.S. 135, 177-179 (1927). “The scope

of the power of inquiry, in short, is as penetrating and

farreaching as the potential power to enact and appro-

priate under the Constitution.” Barenblatt v. United

States, 360 U.S. 109, 111 (1959). See Watkins v. United

States, 354 U.S. 178, 187, 198 (1957).

Civil Procedure by third party complaint, cross-claim, or

counterclaim.

Appellants have not challenged the District Court’s dismissal

of the suit against the United States on appeal.

* U.S. Const. art. I, § 8 provides:

“The Congress shall have Power .. . [t]o exercise exclusive

Legislation in all Cases whatsoever, over such District (not

exceeding ten Miles square) as may, by Cession of particular

States, and the Acceptance of Congress, become the Seat of

the Government of the United States, ...” See S.R.A., Inc.

v. State of Minn., 327 U.S. 558 (1946) ; Gudmundson v. Car-

dillio, 75 U.S.App.D.C. 230, 126 F.2d 521 ( 1942); La Forest

v. Board of Commissioners of District of Columbia, 67 App.

D.C. 396, 92 F.2d 547, cert. denied, 302 U.S. 760 (1937).

The instant case concerns an investigation of the Dis-

trict of Columbia Public School System which was con-

ducted on behalf of the Committee on the District of i

Columbia of the House of Representatives, by a Special

Select Subcommittee of that House District Committee,

under the authority of H.R. Res. 76, 91st Congress, lst

Session.’ The study probed deeply into a great many

problems of the District of Columbia School System. In-

cluded were: Administrative Problems, Board of Educa-

tion of the District of Columbia, Crime in the Schools,

D.C. School’s Answer to Special Select Subcommittee

Questions, Pornography, Revolutionary and other Inflam-

matory Materials, Damage to Property, Drug Abuse in

the Schools, School Budget, Washington Teachers Union,

Student Bussing, Student Suspension Policy, Schools with-

out Walls, Open Class Rooms, Open Class Room Concept,

Freedom School, Vocational Schools, Student Bill of Rights

and Responsibilities and Teacher Comments. A portion

of the study related to absenteeism, student discipline,

and educational quality. On these matters, the 45 pages

from 213-258 set forth for Jefferson Junior High School

various absence sheets, lists of class eutters and certain

reports and information concerning breaches of discipline

and suspension problems. Also included were 19 pages

of student test papers for a history examination taken

from a fifth grade textbook but given to seventh graders.

The average score was “F” and the report was sub-

mitted by the teacher to show the poor reading ability

of most of her students.

At the conclusion of the investigation, the House Com-

mittee issued a 450-page Report, both for the benefit

and use of Congress and for the information of the

public. The material to which appellants object is only

a small part of the entire Report. The Report in its

7 See note 2, supra.

—,

entirety discloses a truly deplorable state of affairs in

the public schools of the District.of Columbia and obvi-

ously one of tremendous congressional concern.’ Ap-

pellants do not challenge the propriety of the investiga-

tion or the issuance of the Report generally—i.e., absent

the use of their names—nor could they.® They only as-

sert a statutory, common law, and constitutional right

to anonymity. We need not discuss the merits of appel-

lants’ innovative claims, however, since we conclude that

all of the defendant-appellees named in the complaint

are immune from the suit brought against them.’

§ For the fiscal year ending June 30, 1970, Congress appro-

priated $140,386,000 for public education in the District of

Columbia (83 Stat. 429). Further evidence of the vital

interest of Congress.in the current District school situation

can be deduced from a letter of the President of the Board

of Education appearing at pp. 16-19 of the Report which

indicates that a grand total of $10,022,041 in additional

appropriations will be needed “to create a safe learning

environment for its students as determined by the school

administration and the Board of Education.”

* In light of the vast amount of tax dollars spent annually

on public education in the District of Columbia, the great

interest of the public in the effectiveness of the District

schools is apparent. .It must be emphasized that “[t]he

effective functioning of a free government like ours depends

largely on the force of an informed public opinion. This calls

for ‘the widest possible understanding of the quality°of gov-

ernment service rendered by all elective or appointed public

officials or employees.” Barr v. Matteo, 360 U.S. 564, 577

(1959) (concurring opinion of Black, J.). “The informing

function of Congress should be preferred even to its legisla-

tive function.” Watkins v. United States, 354 U.S. 178, 200

& n.83 (1957). The fact that an educational institution was

being investigated did not detract from Congress’ general

authority. See Barenblatt v. United States, 360 U.S. 109,

112, 129 (1959).

10 Appellants have raised an issue, concerning alleged vio-

Article I, Section 6 of the Constitution provides that “for

any Speech or Debate in either House, they [Senators

and Representatives] shall not be questioned in any other

place.” This provision, which was adopted by the Con-

lations of House Rules, in their appeal brief which was never

raised in the District Court. We dismiss this portion of the

appeal on the ground that it was not properly asserted below.

' Miller v. Avirom, 127 U.S.App.D.C. 367, 384 F.2d 319

(1967) ; United States v. Atkinson, 297 U.S. 157, 159 (1936) ;

Johnson v. Reily, 82 U.S.App.D.C. 6, 7, 160 F.2d 249, 250

(1947) ; United States v. U. S. Fidelity & Guaranty Co., 236

U.S. 512, 529 (1915); Williams v. Union Pacific Ry. Co.,

286 F.2d 50, 55 (9th Cir. 1960) ; Burns v. United States, 274

U.S. 328, 336 (1927). We do not believe that appellants have

demonstrated the existence of any exceptional circumstances

which might warrant divergence from this general principle.

Compare Hormel v. Helvering, 312 U.S. 552, 557 (1941) ;

Morgan v. Garris, 113 U.S.App.D.C. 222, 223, 307 F.2d 179,

180 (1962) (en banc). “This is not a mere technicality but is

of substance in the administration of the business of the

courts. Enormous confusion and interminable delay would

result if counsel were permitted to appeal upon points not

presented to the court below. Almost every case would in

effect be tried twice under any such practice. While the rule

may work hardship in individual cases, it is necessary that

its integrity be preserved.” Johnson v. Reily, supra, 82 US.

App.D.C. at 7, 160 F.2d at 250.

A large part of appellants’ argument, which is raised here

for the first time, is devoted to the claim that they were

entitled under Rule XI, 27(m) of the Rules of the House of

Representatives, to have the evidence with respect to them

received in executive session. Their argument further assumes

that such procedure would have resulted in suppressing dis-

closure of the statements. However, an express determina-

tion by the “Committee” is required before it is necssary to

convene an executive session of the Committee and no such

determination was here made. Also, it is implicit from a

reading of Rule XI, 27(0) that the taking ef testimony in

; ‘

stitutional Convention without debate or opposition,"

found its roots in the conflict between Parliament and

the Crown culminating in the Glorious Revolution of 1688

and the English Bill of Rights of 1689.2 In light of this

executive session does not automatically result in its suppres-

sion. It provides:

“(0) No evidence or testimony taken in executive

session may be released or used in public sessions with-

out the consent of the committee.”

Jefferson’s Manual and Rules of the House of Representatives,

p. 387, 92nd Cong. It thus appears that the Committee may

still consent to the release of any such evidence or testimony

and to its use in public sessions.

Appellants also contend that under the Rules of the House

the Report was improperly released without allowing certain

Congressmen to express a minority view. It does appear,

however, that some of the Congressmen were orally informed.

In any event, the delivery of the Report to the Clerk for print-

ing and reference to the proper calendar under Cl. 2 of Rule

XIII were reported in the Congressional Record for December

8, 1970 and the Report was on that date referred to the whole

House on the State of the Union and ordered to be printed

(116 CONG. REC. 40311). Such points of order must be raised

by a member in the House of Representatives and unless done

so in timely manner are waived. Appellants thus do not

furnish a basis that justifies ordinary judicial intervention.

1t See 5 DEBATES ON THE FEDERAL CONSTITUTION 406 (J.

Elliot ed. 1876) ; 2 RECORDS OF THE FEDERAL CONVENTION OF

1787, p. 246 (M. Farrand rev. ed. 1966).

12 See Cella, The Doctrine of Legislative Privilege of

Freedom of Speech and Debate: Its Past, Present and Fu-

ture as a Bar to Criminal Prosecutions in the Courts, 2

SUFFOLK U. L. REV. 1, 3-16 (1968); Yankwich, The Jm-

munity of Congressional Speech—Its Origin, Meaning and

Scope, 99 U. PA. L. REV. 960, 961-966 (1951).

It is significant that legislative freedom was so care-

fully protected by constitutional framers at a time

when even Jefferson expressed fear of legislative ex-

cess. [See Jefferson, Notes on the State of Virginia

history, the Supreme Court concluded in United States

v. Johnson, 383 U.S. 169, 181 (1966), that the purpose

of the Speech or Debate Clause was “to prevent intimida-

tion [of legislators] by the executive and accountability

before a possibly hostile judiciary.”

“In order to enable and encourage & representative of

the public to discharge his Bablic trust with firmness and

success, it is indispensably necessary, that he should en-

joy the fullest liberty of speech, and that he should be

protected from the resentment of every one, however

powerful, to whom the exercise of that liberty may occa-

sion offense.” '* To accomplish this important objective,

the Supreme Court has recognized the necessity for con-

struing the Speech or Debate Clause protection in a

broad fashion. Kilbourn v. Thompson, 103 U.S. 168, 204

(1881); United States v. Johnson, 383 U.S. 169, 179-180

(1966). “{I]t would be a ‘narrow view’ to confine [its]

protection . . . to words spoken in debate. Committee

reports, resolutions, and the act of voting are equally »

covered, as are ‘things generally done in a session of the

House by one of its members in relation to the business

before it.’ Kilbourn v. Thompson, supra, at 204.” Powell

v. McCormack, 395 U.S. 486, 502 (1969) (emphasis sup-

plied).

(3rd Am. ed. 1801), 174-175.] For the loyalist execu-

tive and judiciary had been deposed, and the legis-

lature was supreme in most States during and after

the Revolution. “The legislative department is’ every

where extending the sphere of its activity, and drawing

all power into its impetuous vortex.” Madison, The

Federalist, No. XLVIII.

Tenney v. Brandhove, 341 U.S. 367, 375 (1951).

132 Works of James Wilson (Andrews ed. 1896) 38, as

quoted in Tenny v. Brandhove, supra, 341 U.S. at 373.

14 The Supreme Court has frequently cited the language

of Chief Justice Parsons, of the Massachusetts Supreme

Court, in Coffin v. Coffin, 4 Mass. 1, 27 (1808), interpreting

—

The Speech or Debate Clause not only. provides a de-

fense on the merits, but it generally protects a legislator

from the annoyance of having to devote his time and ef-

forts to defending himself in court. Powell v. McCormack,

supra, 395 U.S. at 502-503. See Dombrowski v. Eastland,

387 U.S. 82, 85 (1967)."* The only question which a trial

the Massachusetts speech and debate clause, in support of

its expansive interpretation rule:

These privileges are thus secured, not with the in-

tention of protecting the members against prosecutions

for their own benefit, but to support the rights of the

people, by enabling their representatives to execute the

functions of their office without fear of prosecutions,

civil or criminal. I therefore think that the article

ought not to be construed strictly, but liberally, that

the full design of it may be answered. I will not

confine it to delivering an opinion, uttering a speech,

or haranguing in debate; but will extend it to the

giving of a vote, to the making of a written report, and

to every other act resulting from the nature, and in

the execution, of the office; and I would define the

article as securing to every member exemption from

prosecution, for every thing said or done by him, as a

representative, in the exercise of the functions of

that office, without inquiring whether the exercise was

regular according to the rules of the house, or irregu-

lar and against their rules. [emphasis supplied]

Tenney v. Brandhove, supra, 367 U.S. at 373-374; Kilbourn

v. Thompson, supra, 108 U.S. at 203.

The claim of an unworthy purpose does not destroy

the privilege. Legislators are immune from deterrents

to the uninhibited discharge of their legislative duty,

not for their private indulgence but for the public

good. One must not expect uncommon courage even

in legislators. .The privilege would be of little value

if they could be subjected to the cost and inconvenience

and distractions of a trial upon a conclusion of the

pleader, or to the hazard of a judgment against them

based upon a jury’s speculation as to motives. The

holding of this Court in Fletcher v. Peck, 6 Cranch

court should consider is “whether from the pleadings it

appears that the [legislators] were acting in the sphere

of legitimate legislative acitvity.” Tenney v. Brandhove,

341 U.S. 367, 376 (1951). Since we believe that the ac-

tivities of the defendant-members of the Committee on

the District of Columbia of the House of Representatives

“may fairly be deemed within [the Committee’s] province,”

it is clear that the District Court properly dismissed the

suit as to them. Id., at 378. See United States v. Doe, ——

F.2d ——, ——, Nos. 71-1331, -1332, -1335, slip op. at 5-9

(1st Cir. January 7, 1972).

As has been noted, appellants concede the authority of

the House District Committee to investigate and report

to Congress on the District of Columbia Public School

System. They have only questioned the propriety of

that small portion of the Committee Report which uses

their names in somewhat derogatory contexts. “That the

protection of private rights upon oceasion involves an

invasion of those rights is in theory a paradox, but, in

the world as it happens to be, is a realistic problem re-

quiring a practical answer.” Barsky v. United States,

supra, 83 U.S.App.D.C. at 135, 167 F.2d at 249. It is

apparent that the House District Committee was faced

with a great dilemma. In its effort to expose the vexing

problems which adversely affect the District of Columbia

School System, with a view toward the alleviation of such

problems to the benefit of all school children, the Com-

mittee obviously believed that some disclosure which might

possibly injure a few pupils was necessary. While there

may or may not be any substantial public interest in

the test papers, discipline memoranda, or absentee lists

87, 130, that it was not consonant with our scheme of

government for a court to inquire into the motives of

legislators, has remained unquestioned. See cases cited

in Arizona v. California, 283 U.S. 423, 455.

Tenney v. Brandhove, supra, 341 U.S. at 377.

—

themselves, the inclusion of such material in the Com-

mittee Report clearly increased its credibility. While

some might consider that it was unnecessary to include

the names, at a time such as this when “credibility gaps”

are frequently mentioned, it was entirely reasonable for

the House District Committee to include what it consid-

ered to be sufficient factual data to support its findings

concerning a controversial and complex area. Delinquency

in the District of Columbia Schools is such a problem

and in connection with its investigation of the Student

Suspension Policy, which it was investigating, Congress

had a right to know the precise details of a few particular

disciplinary: problems involving the discipline of particu-

lar students for particular acts committed in the class

rooms of the public schools of the District. All the de-

tails of such circumstances, including the names of the

students involved and their acts were relevant and nec-

essary for a full and proper consideration of the matter.

Many of the instances of student delinquency which one

hears daily are considered by many to be unbelievable.

Others assert they are untrue. Under such circumstances

the desire of the Committee to present specific evidence

to support its findings is understandable. And the dis-

cretion is vested in Congress, not the courts. We must

be careful to remember that under such circumstances,

“every reasonable indulgence of legality must be accorded

to the actions of [the] coordinate branch of our Govern-

ment” by the judiciary. Watkins v. United States, supra,

354 U.S. at 204.'*

16“TI]t does not lie with this Court to say when a con-

gressional committee should be deemed to have acquired

sufficient information for its legislative purposes.” Hutche-

son v. United States, 369 U.S. 599, 619 (1962). Similarly,

this court should not interpose its judgment for that of a

congressional committee with respect to the amount of data

required to bolster the credibility and effectiveness of a

committee report.

What is really involved here is Congress functioning,

as it must with respect to the District of Columbia, as

a combination state legislature and education committee

that is concerned with a grass roots problem. As with any

local school board problem, this involves individuals, ad-

ministraters, teachers, employees, parents, students and

taxpayers. The Report recognizes this and to make its

study complete and to give it the maximum credibility,

the Report throughout, in hundreds of situations in ad-

dition to the students involved in disciplinary problems,

has named the persons involved. The Report is replete

with names of individuals, groups and organizations, many

of which are discussed in connection with highly derogatory

conduct. For instance, in reporting on the narcotics situa-

tion, names and incidents are recited of employees who

were furnishing narcotics to drivers employed by the

schools. H.R. Rep. No. 91-1681, 91st Cong., 2d Sess. 109-110

(1970). Appellants are not singled out. They are a minor

part of the Report. However, it must be noted that the use

of specific names throughout the Report does add con-

siderably to its credibility in an area where reliability

is necessary.

“Our function, at this point, is . . . not to pass judg-

ment upon the general wisdom or efficacy of the activities

of this Committee in a vexing and complicated field.”

Barenblatt v. United States, supra, 360 U.S. at: 125. It

is merely to determine whether the defendant-legislators

were acting within the sphere of their legitimate activity

when they collected the information in question and is-

sued the House Committee Report in its present form.

Since it is readily apparent that their actions were within

the discretionary area of their constitutional authority,

the defendant-Representatives are absolutely protected by

the Speech or Debate Clause.

‘

Ill

The legislative immunity provided by the Speech or

Debate Clause is not limited to Congressmen, although

the doctrine’s protection “is less absolute . . . when ap-

plied to officers or employees of a legislative body, rather

than to legislators themselves.” Dombrowski v. Eastland,

supra, 387 U.S. at 85. See Tenney v. Brandhove, supra,

341 U.S. at 378. Therefore, when congressional employees

or officers are acting pursuant to valid’ legislative au-

thorization, in furtherance of a proper legislative purpose,

they also come within the scope of the Speech or Debate

Clause protection. See United States v. Doe, —— F.2d

—, , Nos. 71-1331, -1332, -1335, slip op. at 11-13 (1st

Cir. January 7, 1972).

There“is no contention by appellants that any of the

Federal legislative employees named as defendants '* were

acting outside the sphere of their official duties. They

merely performed the incidental functions which were

necessary to insure the full accomplishment of the House

District Committee’s appropriate legislative objective. In

this day of complex public problems, where assignment of

17Compare Kilbourn v. Thompson, 103 U.S. 168 (1881);

Powell v. McCormack, 395 U.S. 486 (1969); and Bond v.

Floyd, 385 U.S. 116 (1966), where the underlying author-

izations were invalid. Since the House District Committee’s

enabling resolution was clearly valid, as appellants have

conceded, the holdings in these cases are inapposite to the

present situation. The scope of the House District Com-

mittee’s inquiry into the District of Columbia Public School

System was properly limited and defined, and no compul-

sory process was utilized. Thus the rationale of Watkins

v. United States, 354 U.S. 178 (1957), is not relevant here.

See Hutcheson v. United States, 369 U.S. 599, 613 n.16,

616 (1962). 3

18 These include the Clerk, Staff Director, Counsel, and

consultant to the Committee, its investigator, the Super-

intendent of Public Documents and the Public Printer.

authority by legislators to legislative assistants is an ab-

solute necessity if Congress is to be able to perform its

constitutional functions, it would indeed be hollow to

afford immunity to the Congressmen, but not to their

assistants, for these aides might be hesitant to undertake

the full performance of their lawful duties if they had

to face the threat of possible lawsuits. Such an incon-

sistent result would impossibly hinder congressional ac-

tivities, and effectively prevent the attainment of the

objectives underlying the Speech or Debate Clause. We

therefore must conclude that the suit against the Federal

legislative employees '® was properly dismissed due to

their legislative immunity.

Although we could base our decision regarding the

Federal legislative employees wholly on the protection

afforded them by the Speech or Debate Clause, an addi-

tional consideration further demonstrates why the District

Court properly refused to enjoin the publication and dis-

tribution of the House Committee Report by them. “If:

a court could say to the Congress [, and we might add

to its authorized agents,] that it could or could not use

information in its possession, the independence of the

Legislature would be destroyed and the constitutional

separation of the powers of government invaded. Nothing

is better settled than that each of the three great de-

partments of government shall be independent and not

subject to be controlled directly or indirectly by either

19 Although it might be possible to extend the protection

of the Speech or Debate Clause to cover the District of

Columbia officials and employees who cooperated with the

House District Committee’s investigation, we need not

reach this complex issue, due to the official immunity doc-

trine discussed in Part IV of this opinion. The parties

have not argued this point, and we believe that its resolu-

tion is best left to another time. Compare United States v.

Doe, —— F.2d ——, ——, Nos. 71-1331, -1332, -1335, slip op.

at 12-13 (1st Cir. January 7, 1972).

| ss 85

of the others.” Hearst v. Black, 66 App.D.C. 313, 316-317,

87 F.2d 68, 71-72 (1936). In Methodist Federation for

Social Action v. Eastland, 141 F. Supp. 729 (D.D.C.

1956), a decision of a three-judge court, Judge Edgerton

speaking for himself and Judge Prettyman said:

Nothing in the Constitution authorizes anyone, to

prevent the President of the United States from

publishing any statement. This is equally true whether

the statement is correct or not, whether it is defama-

tory or not, and whether it is or is not made after

a fair hearing. Similarly, nothing in the Constitution

authorizes’ anyone to prevent the Supreme Court

from publishing any statement. We think it equally

clear that nothing authorizes anyone to prevent Con-

gress from publishing any statement.

bad . d * * *

[Courts] have no more authority to prevent Congress,

or a committee or public officer acting at the express

direction of Congress, from publishing a document

than to prevent them from publishing the Congres-

sional Record. If it unfortunately happens that a

document which Congress has ordered published con-

tains statements that are erroneous and defamatory,

and are made without allowing the persons affected

an opportunity to be heard, this adds nothing to

our authority. Only Congress can deal with such a

problem.

141 F. Supp. at 731-732. See Hobson v. Tobriner, 255 F.

Supp. 295 (D.D.C. 1966).

In light of the assurance provided this court by the

Federal appellees that the Chairman and Members of

the House District Committee, as presently constituted in

the 92d Congress, have no intention of seeking republica-

tion or further distribution of the House Committee Re-

port,” we believe that the admonition provided by this

court in Cole v. McClellan, 142 U.S.App.D.C. 24, 26, 439

F.2d 534, 536 (1970), is highly relevant:

20 Brief for Federal Appellants at 20 n.44.

Judicial restraint is certainly proper in a case like

the one before us, where the salient factors, taken in

conjunction with each other, reveal (a) information

delivered to the committee without objection or pro-

test, (b) only the vaguest allegations of anticipated

harm—a hypothetical speculation that at some in-

determinate future occasion [appellants might suffer

some injury] . . .; and (c) a lack of any showing

of current activity by the committee staffs which

constitute, as to the class of , laintiffs, an actual

threat ‘along such lines, or which otherwise give im-

mediacy to the claim that constitutional freedoms are

being infringed or jeopardized.

It is clear that the information in question was provided

the legislative investigators by the District of Columbia

school officials without objection or protest. In view of

the fact that the Report had already been published and

distributed before this action was instituted and that ap-

pellants have only asserted vague allegations of antici-

pated harm at some indefinable future time, we believe

that the court below exercised appropriate judicial re-

straint in dismissing that part of appellants’ complaint

which sought the enjoining of the publication and dissem-

ination of the House Committee Report. Any other deter-

mination would have caused needless friction between sep-

arate and independent departments of the Federal Gov-

ernment. :

We also decide that all of the District of Columbia

defendant-appellees,”"_as well as the Federal legislative

employees named in the complaint,2 are protected from

21 These include the President and Members of the Board

of Education, the Superintendent of the Public School

System, and the Principal and teacher at Jefferson Junior

High School. ee

22 Although we concluded in Part II of this opinion that

the Federal legislative employees are protected by the Speech

or Debate Clause coverage, it is apparent that they are

liability * in the instant case by the doctrine of official

immunity.

Unlike the constitutionally based Speech or Debate

Clause protection, the law of privilege as a defense by

gove tal officials to civil suits has in large part been

of judicial\ making. Barr v. Matteo, 360 U.S. 564, 569

(1959). The courts have recognized that “officials of

government should be free to exercise their duties un-

embarrassed by the fear of damage suits in respect of

acts done in the course of those duties—suits which would

consume time and energies which would otherwise be

devoted to governmental service and the threat of which

might appreciably inhibit the fearless, vigorous and effec-

tive administration of policies of government.” Id., at

also protected by the official immunity doctrine. There-

fore, we have included them in the discussion pertaining

to this area.

23In light of events which have transpired subsequent

to the occurrences of which appellants have complained,

concerning the District of Columbia officials, we do not be-

lieve that a decision on the injunctive relief sought against

these defendant-appellees would be appropriate. On Feb-

ruary 17, 1971, the Board of Education of the District of

Columbia adopted a revised “Policy Statement Regarding

Confidential Information” [see Appendix to this opinion],

which appears to fully protect the rights of students, in-

cluding appellant-pupils herein. There is no reason to think

that this new policy will not be fully implemented by

all school personnel, thus we are forced to conclude that

there is no substantial threat of future injury to appellants

which would necessitate a decision on their request for an

injunction against the District of Columbia appellees. Dulles

v. Nathan, 96 U.S.App.D.C. 190, 225 F.2d 29 (1955);

Spreckels Sugar Co. v. Wickard, 75 U.S.App.D.C. 44, 131

F.2d 12 (1941). See Golden v. Zwickler, 394 U.S. 103

(1969) ; Davis v. Ichord, —— U.S.App.D.C. ——, 442 F.2d

1207 (1970); Reiss v. Richardson, —— U.S.App.D.C. ——,

— F.2d —— (No. 24,509, decided January 13, 1971).

571. The basic rationale for this doctrinal approach was

excellently expressed by Judge Learned Hand in Gregoire

v. Biddle, 177 F.2d 579, 581 (2nd Cir. 1949) :

It does indeed go without saying that an official,

who is in fact guilty of using his powers to vent his

spleen upon others, or for any other personal motive

not connected with the public good, should not escape

liability for the injuries he may so cause; and, if it

were possible in practice to confine such complaints to

the guilty, it would be monstrous to deny recovery.

The justification for doing so is that it is impossible

to know whether the claim is well founded until the

case has been tried, and that to submit all officials,

the innocent as well as the guilty, to the burden of

a trial and to the inevitable danger of its outcome,

would dampen the ardor of all but the most reso-

lute, or the most irresponsible, in the unflinching

discharge of their duties. Again and again the public

interest calls for action which may turn out to be

founded on a mistake, in the face of which an offi-

cial may later find himself hard put to it to satisfy

a jury.of his good faith. There must indeed be

means of punishing public officers who have been

truant to their duties; but that is quite another mat-

ter from. exposing such as have been honestly mis-

taken to suit by anyone who has suffered from their

errors. As is so often the case, the answer must he

found in a balance between the evils inevitable in

either alternative. In this instance it has been thought

in the end better to leave unredressed the wrongs

done by dishonest officers than to subject those who ~

try to do their duty to the constant dread of retalia-

See Barsky v. United States, supra, 83 U.S.App.D.C. at

136, 167 F.2d at 250; Spalding v. Vilas, 161 U.S. 483, 498-

499 (1896); David v. Cohen, 132 U.S.App.D.C. 333, 336,

407 F.2d 1268, 1271 (1969).

Official immunity has not been restricted to those in

high government positions. “The privilege is not a badge

or emolument of exalted office, but an expression of a

policy designed to aid in the effective funetioning of

government. The complexities and magnitude of govern-

mental activity have become so great that there must

of necessity be a delegation and redelegation of authority

as to many functions, and we cannot say that these

functions become less important simply because they are

exercised by officers of lower rank in the executive hier-

_ archy.” Barr v. Matteo, supra, 360 U.S. at 573. See

Cooper v. O’Connor, 66 App.D.C. 100, 107, 99 F.2d 135,

142 (1938) ; Farr v. Valentine, 38 App.D.C. 413, 420 (1912).

Therefore, it. is clear that this immunity doctrine is

applicable with respect to both the District of Columbia

and the Federal officials and employees with whom we

are herein concerned.

**e

‘

It has been recognized that, to achieve the desired re-

sult, official immunity need not be applied to all actions

engaged in by any governmental official. Immunity is

only afforded in those instances where the official in

question has performed a discretionary *—as opposed to

a ministerial—act, within the scope of his official duties.

Kendall v. Stokes, 44 U.S. (3 How.) 87, 98 (1845);

Cooper v. O’Connor, supra, 66 App.D.C. at 103, 99 F.2d

at 138; Howard v. Lyons, 360 U.S. 593 (1959). Cf.

Wheeldin v. Wheeler, 373 U.S. 647, 651 (1963). Thus a

two-part analysis is required: (1) was the individual per-

forming acts within the scope of his official duties, and

(2) did the action undertaken require the exercise of

discretion.

It is not necessary—in order that acts may be done

within the scope of official authority—that they should

be prescribed by statute (United States v. Birdsall,

“Where [discretion and judgment] are important, it

is desirable that they operate freely and without the in-

hibiting influence of potential legal liability asserted with

the advantage of hindsight.” Elgin v. District of Columbia,

119 U.S.App.D.C. 116, 119, 337 F.2d 152, 155 (1964).

PGE BERLE BROIL PINE ENE IB LL OR BA: L8G LENIN Sg BD SASH LT IAs IT a

233 U.S. 223, 230-231, ...); or even that they should

be specifically directed or requested by a superior

officer. Mellon v. Brewer, 57 App.D.C. 126, 129, 18

F.2d 168, 171, . . . , certiorari denied, 275 U.S. 530,

. It is sufficient if they are done by an officer

“in relation to matters committed by law to his con-

trol or supervision.” [Italics supplied] (Standard

Nut Margarine Co. v. Mellon, 63 App.D.C. 339, 341,

72 F.2d 557, 559, certiorari denied, 293 U.S.. 605,

» Sq) 3 OF that they have “more or less connection with

the general matters committed by law to his control

or supervision.” [Italics supplied ] (Spalding v. Vilas,

161 U.S. 483, 498, ... - and see Lang v. Wood, 67

App.D.C. 287, 288, “92 F.2d 211, 212); or that they

are governed ‘by a lawhal requirement of the depart-

ment under whose authority the officer is acting.

Cooper v. O'Connor, supra, 66 App.D.C. at 104, 99 F.2d

at 139. See Barr.v. Matteo, supra, 360 U.S. at 575; Gregoire

v. Biddle, supra, 177 F.2d at 581. All of the District of

Columbia and Federal officials named as defendants have

only engaged in official conduct in furtherance of a duly

authorized congressional investigation. “It is unquestion-

ably the duty of all citizens to cooperate with the Congress

in its efforts to obtain the facts needed for intelligent

legislative action.” Watkins v. United States, supra, 354

U.S. -at 187. This obligation is even more compelling

where the citizen involved is a governmental official.

Pearson v. Wright, 156 F. Supp. 136, 137 (D.D.C. 1957).

See Farr vy. Valentine, 38 App.D.C. 413, 419 (1912).

Clearly the failure of an official to cooperate when mat-

ters under his control are being examined by a congres-

sional committee would amount to malfeasance in office.

See Cooper v. O’Connor, supra, 66 App.D.C. at 105, 99

F.d at 140. We must therefore conclude that all the com-

plained of actions were. undertaken by the defendant-

officials within the scope of their official authority.

“The test of whether a challenged action is ministerial

or non-ministerial is not the office per se or its height,

—

ee .

but whether the function itself was of such discretionary

nature that the threat of litigation would impede the

official to whom it was assigned.” David v. Cohen, supra,

132 U.S.App.D.C. at 337, 407 F.2d at 1272. All of’ the

pertinent actions undertaken by the officials in question

here were non-ministerial. The District of Columbia school

officials were required to exercise judgment in deciding

what information they should provide the House District

Committee investigators, who in turn, had to exercise

clear discretion in determining what data to seek.> For

these reasons, we are forced to conclude that the District

Court properly dismissed the suit against the District

of Columbia school officials,?* as well as against the Fed-

eral officials.2"

25 Appellants have in no way challenged these facts, nor

could they.

76 Unlike the situation which was present in Spencer v.

General Hospital of the District of Columbia, 1388 USS.

App.D.C. 48, 425 F.2d 479 (1969) (en banc), we believe

that the present case is one where “wise considerations

of public policy ... suggest the undesirability of subject-

ing the [District of Columbia Officials] to suit.” 1388 U.S.

App.D.C. at 52, 425 F.2d at 483.

*? Without intimating any opinion concerning the merits

.of appellants’ substantive claims of official abuse of power,

we should note that their remedy—if one is in fact called

for—lies not with the courts, as we have indicated, but

rather with Congress and the general public.

“It is, of course, true,” as was said in McCray v.

United States, 195 U.S. 27, 55, “that if there be no

authority in the judiciary to restrain a lawful exer-

cise of power by another department of the government,

where a wrong motive or purpose has impelled to the

exertion of the power, that abuses of a power con-

ferred may be temporarily effectual. The remedy for

this, however, lies, not in the abuse by the judicial

authority of its functions, but in the people, upon whom,

: _

For the foregoing reasons, the decision of the District

Court must be

Affirmed.

after all, under our institutions, reliance must be

placed for the correction of abuses committed in the

exercise of a lawful power.”

Barenblatt v. United States, 360 U.S. 109, 132-133 (1959).

See Tenney v. Brandhove, supra, 341 U.S. at 378; Barsky

v. United States, supra, 83 U.S.App.D.C. at 136, 167 F.2d

= at 250.

: It ‘appears from oral argument before the District Court

that appellants elected to come immediately to court rather

than to approach the School Board or the administration

} (Tr. 22). By so doing they may have given more publicity

to the information they seek to suppress than would have —

otherwise resulted. This lawsuit thus may not serve the

best interests of appellants. We have not explored the

question as to whether appellants were required to request

the relief they seek from defendants before bringing this

lawsuit.

APPENDIX

POLICY STATEMENT REGARDING CONFIDENTIAL

INQUIRIES

The Board of Education has determined the need to

establish certain policies. in order to prevent the disclosure

of confidential information and reports regarding students

and school personnel. It is the view of the Board that

there are aspects of the professional relationships of

school personnel with students, parents, and community

which must be considered privileged and remain confi-

dential.

The Board of Education in an effort to provide for

the protection of the confidentiality of certain information

related to school affairs and to respond appropriately to

inquiries into the conduct of school affairs in the Public

Schools of the District of Columbia establishes the fol-

lowing policies with regard to the release of such infor-

mation:

1. Formal requests for confidential information re-

garding students and school personnel, shall be

addressed to the Board of Education or its desig-

nee and the Superintendent or his designee for

appropriate action.

. The names, addresses and other identifying infor-

mation related to students are not to be released

under any circumstances by school personnel with-

out prior written approval by the Superintendent

and President of the Board of Edueation. The

Superintendent and the Board of Education shall

ensure that the confidentiality of privileged infor-

mation is protected.

3. The names, addresses and other identifying

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.