Doe v. McMillan
| Decision Date | 11 March 1971 |
| Docket Number | No. 71-1027.,71-1027. |
| Citation | 442 F.2d 879 |
| Parties | John DOE et al., v. John L. McMILLAN et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Messrs. J. Kirkwood White, and Dennis Dutterer, Washington, D. C., with whom Mrs. Jean Camper Cahn, Washington, D. C., was on the pleadings, for appellants.
Mr. David P. Sutton, Asst. Corporation Counsel, D. C., with whom Messrs. C. Francis Murphy, Acting Corporation Counsel, and Richard W. Barton, Asst. Corporation Counsel, were on the pleadings, for the District of Columbia appellees.
Mr. John A. Terry, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and Joseph M. Hannon, Asst. U. S. Atty., were on the pleadings, for the Federal appellees.
Before FAHY, Senior Circuit Judge, and TAMM and LEVENTHAL, Circuit Judges.
Plaintiff-appellants in this case are students 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 Members of the Board of Education of the District of Columbia, (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 publication 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 regarding student disciplinary problems, and (3) student test papers, because these documents included their names and addresses.1 Appellants allege that such publication violates their constitutional right to privacy.
The District Court denied appellants' motion for temporary 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 otherwise, 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 appellants' 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.2 However, our constitutional obligations require us to take into account the claim of irreparable harm caused by continued publication 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 by the majority.3
In one respect, we conclude that the injunction previously 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 disciplinary difficulties. We modify the injunction to permit the publication 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 Court ultimately upholds the authority to publish the identities of individuals, they could be added in a supplemental 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 modified, pending determination of an expedited appeal, is a responsible exercise of our duties.
So ordered.
I would deny appellant'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 repetitious of what is now before 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 arguments can erase or hide the nature of the problem already briefed and argued before us.
Challenged herein is the publication by the House Committee 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 ...
To continue reading
Request your trial
-
Stark v. Connally
...that anyone who refuses to so report does so upon peril of criminal prosecution under Section 1058. 1a See also, Doe v. McMillan, 143 U.S. App.D.C. 157, 442 F.2d 879 (1971); York v. Story, 324 F.2d 250 (9th Cir. 1963); Zimmermann v. Wilson, 81 F.2d 847, 849 (3d Cir. 1936). But see, 25 F.Sup......
-
Sanders v. McClellan
...the immediate chill to the dissent from national policies. 7 For earlier history of John Doe v. Mc-Millan, see Doe v. McMillan, 143 U.S. App.D.C. 157, 442 F.2d 879 (1971). 8 Plaintiff does not suggest that the more summary power of Congress directly to hold a relcalcitrant witness in contem......
-
Doe v. McMillan
...their complaint. This court granted an injunction pending appeal, but denied appellants' motion for summary reversal, 143 U.S.App.D.C. 157, 442 F.2d 879 (1971). We subsequently affirmed the district court's dismissal of the complaint against all defendants, holding that in compiling and pub......
-
Doe v. McMillan, Civ. A. No. 56-71.
...1971, the Court of Appeals issued an order granting some injunctive relief pending disposition of plaintiffs' appeal. Doe v. McMillan, 143 U.S.App.D.C. 157, 442 F. 2d 879. On January 20, 1972, the Court of Appeals affirmed the decision of the District Court. Doe v. McMillan, 148 U.S.App.D.C......