# Appendix — Doe v. McMillan

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0156%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1973
- **Citation:** 412 U.S. 306

## Text

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,

oO

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
ad

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. 8
Jan. 8
Jan. 8
Jan. 8
Jan. 8
*Jan. 8
*Jan. 11
Jan. 12
Jan. 12
Jan. 12
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

. 12
. 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

4

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

ww
5

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

6

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

7

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. .

(c) James T. Clark, who, as Clerk 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).

*

9

(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

dl

(10) By disclosing, disseminating and publishing the
information complained of herein, defendants violated

REE

10

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

oe
11

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

12

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.

—

13
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.

14

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

as

—

15

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

16

[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

17

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.

18

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

19

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

20

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Civil Action No. 56-71

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

vs
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.

—

-_

21

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.

a

22

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.

23

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

24

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.

-_

25

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

26

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

27

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

28

wa

29

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.

Ny

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.”

30

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

31

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

32

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

33

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

34

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

85

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—

36

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.

eM

37

“(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

Be

38

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.

39

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

i

40

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.

we

41

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

42

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.

43

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
A

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

46

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

a

— an

48

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

a

wa

49

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.

50

/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

51

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

—-

52

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 ;

53

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.

55

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.

57

‘4

i

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 71-1027
Joun Dok, ET AL.
v.

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,

58

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

59

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

60

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).

oe

»

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.

61

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

62

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-

64

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.

B.

65

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.
v.
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

66

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
v.

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-

68

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,

70

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
71

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

72

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.

I

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

x

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).

73

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).

74

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 iss

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0156%3A1. Public record. Not legal advice.