Kaplan v. Board of Educ. of City School Dist. of City of New York, 637

• Decision Date: 08 April 1985
• Docket Number: No. 637,D,637
• Citation: 759 F.2d 256
• Parties: 24 Ed. Law Rep. 39 Philip KAPLAN, Dennis Coleman, Hyman Cohen, Marjorie Matthews, Francie Goldman, Ralph Giordano, "Jane Doe", on behalf of themselves and all others similarly situated, Elsie Mott, and the New York City School Boards Association, Plaintiffs-Appellants, v. The BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF NEW YORK; James F. Regan, individually and as President of the Board of Education of the City School District of the City of New York; Miguel O. Martinez, individually and as Vice President of the Board of Education of the City School District of the City of New York; Amelia Ashe, Joseph G. Barkan, Stephen R. Franse, Irene Impellizzeri, and Margorie A. Lewis, individually and as members of the Board of Education of the City School District of the City of New York; Nathan Quinones, Chancellor of the City School District of the City of New York; John R. Nolan, Secretary, Board of Education of the City School District of the City of New York; Michael P. Sofarelli, Inspector General of the Board of Education of the City School District of the City of New York, Defendants-Appellees. ocket 84-7919.
• Court: U.S. Court of Appeals — Second Circuit

Page 256

759 F.2d 256

24 Ed. Law Rep. 39

Philip KAPLAN, Dennis Coleman, Hyman Cohen, Marjorie Matthews, Francie Goldman, Ralph Giordano, "Jane Doe", on behalf of themselves and all others similarly situated Elsie Mott, and the New York City School Boards Association Plaintiffs-Appellants, v. The BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF NEW YORK; James F. Regan, individually and as President of the Board of Education of the City School District of the City of New York; Miguel O. Martinez individually and as Vice President of the Board of Education of the City School District of the City of New York; Amelia Ashe, Joseph G. Barkan, Stephen R. Franse, Irene Impellizzeri, and Margorie A. Lewis, individually and as members of the Board of Education of the City School District of the City of New York; Nathan Quinones Chancellor of the City School District of the City of New York; John R. Nolan, Secretary, Board of Education of the City School District of the City of New York; Michael P. Sofarelli, Inspector General of the Board of Education of the City School District of the City of New York, Defendants-Appellees.

No. 637, Docket 84-7919.

United States Court of Appeals, Second Circuit.

Argued Dec. 13, 1984.

Decided April 8, 1985.

Michael A. Rebell, New York City (Roberta G. Koenigsberg, and Rebell & Krieger, New York City, on brief), for plaintiffs-appellants.

Francis F. Caputo, New York City (Frederick A.O. Schwarz, Jr., Corp. Counsel, Beth G. Schwartz and Susan D. Wagner, New York City, on brief), for defendants-appellees.

Before TIMBERS, CARDAMONE and ROSENN, ^* Circuit Judges.

TIMBERS, Circuit Judge:

This is an appeal pursuant to 28 U.S.C. Sec. 1292 (1982) from an order entered in the Eastern District of New York denying appellants' motion for a preliminary injunction. The district court refused to grant appellants the relief requested on the ground that they had failed to demonstrate either probable success on the merits or the existence of a sufficiently serious question going to the merits to make it a fair ground for litigation. The district court also found that appellants had failed to show irreparable harm should the injunction not be granted.

For the reasons stated below, we affirm.

I.

Appellants, members of certain local community school boards of New York City's decentralized school system, ¹ commenced this action pursuant to 42 U.S.C. Sec. 1983 (1982) contending that recently adopted Regulation C-120 of the Chancellor of the New York City Board of Education (hereinafter "Board" or "Central Board") which requires the filing of financial disclosure forms by appellants and their spouses, is an unconstitutional invasion of privacy. The challenged regulation was adopted by the Board pursuant to the express statutory authority of New York Education Law Sec. 2590-g (McKinney 1981), which was amended by the legislature in 1975 to include provisions requiring the filing of disclosure of interest forms and financial disclosure forms by various school system personnel. ² Appellants, and all other community school board members, routinely have filed disclosure of interest forms since 1976. Appellants have never challenged, and do not now challenge, this filing requirement. The Board, however, did not adopt procedures for the implementation of the financial disclosure requirement until 1984, following the much publicized investigation into the circumstances surrounding the resignation of former Chancellor Anthony Alvarado. Regulation C-120 will now require community school board members and their spouses to file the following information in addition to that called for on the disclosure of interest forms:

(a) amount and source of all income of $1,000 or more with a description of the service performed;

(b) amount and source of all gifts and honoraria of $500 or more;

(c) amount and source of all capital gains and reimbursements for expenditures of $1,000 or more;

(d) investments in any securities and ownership of real property worth $20,000 or more; any indebtedness to any creditor in an amount of $5,000 or more for a period of at least 90 consecutive days, including the name of the creditor; and

(e) any beneficial interest in a trust or fiduciary relationship valued at $20,000 or more.

The forms are required to be filed with the Secretary of the Board and a duplicate copy sent to the files of the community school board itself. Penalties for failure to file the forms may include dismissal from office. In addition to adopting a regulation requiring the filing of such forms, the Board has enacted procedures designed to prevent the disclosure of highly personal information contained in the forms which is unrelated to the board members' performance of their duties. We shall discuss these procedures in more detail below as they relate to the instant appeal.

In their complaint, appellants alleged (1) that Regulation C-120 was an invasion of their right to privacy; (2) that the privacy protection procedures established by the Board were inadequate; and (3) that the Board had failed to justify these additional filing requirements as substantially related to the stated objective of deterring corruption among school system personnel. To avoid having to file these forms pending a determination of the merits of the action, appellants sought a preliminary injunction. From the district court's order denying this requested relief, the instant appeal has been taken.

II.

Under the well settled law of this Circuit, to succeed on a motion for a preliminary injunction, the moving party has the burden of establishing: (a) irreparable harm; and (b) either (1) probable success on the merits, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary injunctive relief. E.g., Sperry International Trade, Inc. v. Government of Israel, 670 F.2d 8, 11 (2 Cir.1982); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2 Cir.1979). Appellants having failed to satisfy either prong of this requirement, we hold that their motion for a preliminary injunction was properly denied.

(A)

On the issue of irreparable harm, appellants have asserted two types of injury that they claim will result in the absence of preliminary injunctive relief. First, they claim that, if the Board is not enjoined from requiring the filing of the financial disclosure forms, they and "numerous other community board members" will either resign or face dismissal rather than comply with the regulation. As a result, appellants argue that there will be chaos throughout the New York City school system, as well as "demonstrations and political confrontations". This argument fails in several respects. Initially it should be noted that appellants have not shown that they even speak for a majority of community school board members, or are in a position accurately to predict what course others may take if the injunction is denied. Furthermore, not only are these predictions of havoc and unrest too speculative to constitute a clear showing of immediate irreparable harm, Worthington Pump and Machinery Corp. v. Douds, 97 F.Supp. 656, 661 (S.D.N.Y.1951), but, as the district court held, it would be the acts of non-compliance and not the implementation of the regulation which would be the cause of any such chaos. We decline to permit appellants' threats of harm to the school system to serve as a predicate for granting a preliminary injunction.

Appellants' second claim of irreparable harm is based on their fear that forced disclosure will allow personal and confidential information to be released to the public and the press; and, further, that, in the case of school board members who are professionals, even the threat of disclosure will have an injurious effect on their relationships with clients and patients. While we are not insensitive to the valid concern of appellants that unwarranted intrusions into their private lives should be avoided, we are satisfied that the privacy protection procedures adopted by the Board will limit the public's inspection of material contained in the forms to only those items that directly relate to a member's performance of his or her duties. As summarized by the district court in its opinion, these privacy procedures provide

"that only the Secretary [of the Board of Education] and the Inspector General [of the Board of Education] will have access to the disclosure forms. Moreover, if a request is made for the release of disclosed information, notification is first given to the community school board member who is then permitted to request the confidentiality of any item. A determination to release information is appealable to the New York City Board [of] Ethics and then to the courts."

We recently have indicated our approval of a nearly identical privacy mechanism as it pertains to financial disclosure by employees of the New York City Police and Fire Departments. Barry v. City of New York, 712 F.2d 1554 (2 Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 548 (1984). We believe that such procedures are adequate to prevent wholesale invasion of the private lives of community school board members.

Appellants do not necessarily challenge the efficacy of these procedures as they relate to filings at the Central Board; rather, they contend that these procedures do not apply to the required duplicate community board filings. The Board has countered this argument by stating that the local boards are free to adopt any "common sense security measures" that they deem appropriate. Considering the vociferousness with which appellants have argued to protect their privacy rights, there is every reason to assume that adequate steps will be taken. The Board also has stated that, while duplicate filings are required, the local boards may designate the Central Board as the repository for...