The Supreme Court has been asked to decide whether freedom of the press is guaranteed to a high school newspaper that wants to make and report a confidential survey of students' sexual attitudes.
The case involves New York City, where, said Judge Walter J. Mansfield of the 2nd U.S. Circuit Court of Appeals, the schools drew a "so unreal" picture of high school students "as fragile, budding egos flushed with the delicate rose of sexual naivete. . ."
Terming the picture "out of touch with contemporary facts of life," he said the students "are literally bombarded with explicit sexual materials on public newsstands on the way to and from schools."
Moreover, he wrote, students are encouraged to discuss sex topics in "rap sessions" sponsored by the schools, read about adolescent sexuality in daily newspapers, and send 2,000 of their number annually to a special high school for pregnant teenagers.
The constitutional issue arose at Stuyvesant High School, where Jeff Trachtman, editor-in-chief of The Stuyvesant Voice, and his staff devised a list of 25 questions for distribution on a random basis. A cover letter asked students to respond anonymously - or not to respond at all if doing so would make them uncomfortable.
Following standard procedures, Tracthman submitted the questionnaire to school authorities. They turned it down, and were supported by the Board of Education.
A student confronted by the questionnaire might "become anxious or even depressed," and so it must be regarded as "potentially harmful," said Ingram Cohen, chief school psychiatrist of the board's Bureau of Child Guidance.
The New York Civil Liberties Union took the case to federal court, where Judge Constance Baker Motley found the information sought to be "rather personal and frank," covering "sexual attitudes, preferences, knowledge and experience." It dealth with topics including pre-marital sex, sexual experience, contraception, homosexuality and masturbation.
Four psychologists who filed affidavits for the schools - three of them school employes - said that some of the questions were inappropriate, and, particularly in children ages 12 to 14, would likely incite anxieties leading to emotional difficulties.
But five experts for the other side - four of them independent - said that suppressing the survey would be detrimental, while permitting it might be benefical. One of these experts was Trachtman's father, Gilbert, professor of educational psychology at New York University.
Judge Motley made a judgement that Circuit Judge Walter J. Mansfield later would term "Solomonic." She said the survey could go to students in the 11th and 12th grades, but not to those in the ninth and tenth grades.
She took into account the school board's contention that ninth- and tenth-graders are emotionally immature, just starting to develop sexual identities and, if confronted by the questionnaire, at risk of becoming "quite apprehensive or even unstable . . ."
The 2nd Circuit revered 2 to 1. It held that the schools could ban the survey for all students, whethere seniors or freshmen; that the ban is less a curtailment of First Amendment rights than a protection of students entrusted to the schools' care, and that the rights of expression is not a right "to importune others to respond to questions when there is reason to believe that harmful consequences might result to students . . ."
One of the majority judges said that "a blow to the psychemay do more permanent damage than a blow to the chin."
Judge Mansfield dissented. The schools "filed completely to demonstrate any reasonable likelihood that the questionnaire poses any [WORD ILLEGIBLE] of high school students," he wrote.
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