(dissenting):
With due respect I must dissent for the reason that in my view the defendants have completely failed to sustain their burden of showing that they are justified in depriving plaintiffs of their First Amendment right to engage in constitutionally protected freedom of expression by distributing to students the questionnaire regarding sex attitudes.
There is no suggestion of any danger that the questionnaire would disrupt school activities or lead to a breach of the peace, which are the type of “substantive evils” that might justify a prior restraint, see Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470 (1919). Instead the majority, relying upon dicta in Tinker v. *521Des Moines School District, 393 U.S. 503, 508, 513, 89 S.Ct. 733, 737, 740, 21 L.Ed.2d 731 (1969), to the effect that school authorities may prohibit speech “that intrudes upon ... the rights of other students,” or “involves ... an invasion of the rights of others” would include in these amorphous terms the dissemination to others of non-disruptive, non-defamatory and non-obscene material because it might cause some kind of “psychological” harm to an undefined number of students. With this I disagree. It represents an entirely too vague and nebulous extension of the concept of “rights” to support the drastic type of censorship and prior restraint sought by the defendants.
As we said in Eisner v. Stamford Board of Education, 440 F.2d 803, 808 (2d Cir. 1971), “The phrase ‘invasion of the rights of others’ is not a model of clarity or preciseness.” The Tinker test makes sense as a standard designed to insure that school officials will be permitted, even at the expense of some freedom of expression, to maintain order on the school premises, particularly in the classroom, and it has been construed by ourselves and other circuits as permitting an abridgement of free speech toward that end. See Eisner v. Stamford Board of Education, supra; Katz v. McAulay, 438 F.2d 1058 (2d Cir. 1971), cert. denied, 405 U.S. 933, 92 S.Ct. 930, 30 L.Ed.2d 809 (1972); James v. Board of Education, 461 F.2d 566 (2d Cir.), cert. denied, 409 U.S. 1042, 93 S.Ct. 529, 34 L.Ed.2d 491 (1972); Quarterman v. Byrd, 453 F.2d 54 (4th Cir. 1971); Nitzberg v. Parks, 525 F.2d 378 (4th Cir. 1975); Burnside v. Byars, 363 F.2d 744 (5th Cir. 1968); Butts v. Dallas Independent School Dist., 436 F.2d 728 (5th Cir. 1971); Scoville v. Board of Education, 425 F.2d 10 (7th Cir.), cert. denied, 400 U.S. 826, 91 S.Ct. 51, 27 L.Ed.2d 55 (1970). Where physical disruption or violence is threatened, some inroads on free expression are tolerable because the interests of students and school officials are relatively specific and lend themselves to concrete evaluation. But a general undifferentiated fear of emotional disturbance on the part of some student readers strikes me as too nebulous and as posing too dangerous a potential for unjustifiable destruction of constitutionally protected free speech rights to support a prior restraint. A public school’s premises are the very “marketplace of ideas” where personal intercommunication between students, in or out of the classroom, is “an important part of the educational process” even though some students may experience a degree of mental trauma in that process, Tinker v. Des Moines School Dist., 393 U.S. at 512, 89 S.Ct. at 740. If school officials are permitted to ban a questionnaire of the type here at issue because of possible “psychological” harm, they could prohibit the dissemination of a broad range of other articles on school premises on the same theory, even though the publications were readily available elsewhere and the information in them was instructive. Within the last few years, for instance, the New York Times, which represents that it publishes “All the News That’s Fit to Print,” has published numerous articles on the very matters that are the subject of plaintiffs’ questionnaire, including items regarding the number of pregnant girls in public schools, the operation by New York City of a separate school for pregnant schoolgirls attended by up to 2,000 students annually, sexual activity among American teenagers, and the results of a nationwide study of adolescent sexuality.1 Under the majority’s decision, distribution of these items among students would be prohibited as posing a psychological danger to some. The possibilities for harmful censorship under the guise of “protecting” the rights of students against emotional strain are sufficiently numerous to be frightening.
Even accepting arguendo the majority’s thesis to the effect that other students’ rights include the right to be free of any emotional stress, defendants have failed to sustain their burden of showing that the *522First Amendment values in the present case are outweighed by the risk of psychological harm. The right of a newspaper to conduct a survey on a controversial topic and to publish the results represents the very quintessence of activity protected by the First Amendment. In a school environment, moreover, there is a positive value in the students’ exercise of responsibilities associated with the publication of a newspaper, which gives them a greater appreciation for the true meaning and value of the Bill of Rights than they might otherwise possess.
The majority’s holding that the values inherent in these basic rights are outweighed by the potential psychological harm which the questionnaire might cause to some students is based on conclusory and speculative opinions of a few psychologists, which are expressed in short affidavits, hypothetical rather than supported by any factual bases, untested by cross-examination, and flatly controverted by contrary affidavit opinions of other experts who possess equal if not superior qualifications as psychologists. All of the affidavits submitted by defendants, moreover, assume that a student possessed of fragile sensibilities would not only read the questionnaire but make an intensive effort to answer it, notwithstanding the statement on its face that “The survey is random and completely confidential. — You are not required to answer any of the questions and if you feel particularly uncomfortable — don’t push yourself.”2 Some of the defendants’ affidavits appear to be concerned principally with an issue not before the court — the methodology used by the questionnaire and its invalidity from a scientific statistical viewpoint, — rather than its psychological impact on students.
The conclusory and factually unsupported nature of the affidavit opinions relied on by the majority may be gathered from a brief summary of their contents. A IV2 page affidavit of Ingram Cohen, Chief School Psychiatrist of the Bureau of Child Guidance of the defendant Board of Education, offers his view that “a” student “may become anxious or even depressed” when he is asked for a judgment about himself and has doubts concerning sexual orientation, and that the “administration” of the questionnaire to immature high school youths, “still in the throes of resolving personal identity,” would be sufficiently “provocative” to be “potentially harmful and arouse concern.” The two page affidavit of Vera S. Paster, Assistant Director of the same Bureau, states that dissemination of the questionnaire “constitutes a potentially harmful exposure to some students” because, in attempting to answer it they would experience an “up-churning of anxiety, conflict, self-doubt and other symptoms of stress” arising out of “conflicts about their own sexuality issues.” Defendant’s official in charge of evaluating research, Dr. Anthony J. Polemeni, who “was asked to apply professionally accepted research standards to [the] proposed research study,” states that it does not meet such standards because it “presented significant possibility of violating the privacy of students and having harmful consequences to students.” In reviewing the questionnaire at issue, his standard was that “one does not undertake a non-critical survey which may, even remotely, create psychological trauma for even one person.” In my view this is error. The standard should not be the effect of the questionnaire upon one or even a few exceptionally immature and impressionable students but its effect on the average. Cf., Roth v. United States, 354 U.S. 476, 489, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Butler v. Michigan, 352 U.S. 380, 383-84, 77 S.Ct. 524, 1 L.Ed.2d 412 (1957).
Defendant also presented two affidavits from persons outside its own staff. One is Aaron H. Esman, Chief Psychiatrist at the Jewish Board of Guardians, which provides mental health services to emotionally disturbed children, a Director of Psychiatric Training at Madeleine Borg Child Guidance *523Institute, and Associate in Psychiatry at Columbia. He states that the survey may arouse “considerable anxiety and tension in a significant number of students” because of “bald” questions about sex. He concludes that while “it might be possible to devise a valid study of the sexual beliefs and attitudes . . . [It] is my view that this survey is poorly designed, unlikely to yield valid, verifiable or useful information and is potentially dangerous to the group for whom it was intended.” Finally, Florence Halpern, a Clinical Professor at New York University School of Medicine and a former project director at HEW in charge of developing mental health guidelines for certain programs, states that “emotional and psychological harm is likely to occur and the chance of this happening is far greater than the possibility that no children will be injured.” She continues: “Reading the questionnaire and thinking of answers to many of the queries would be very likely to stir up questions, doubts, fantasies and anxiety, resulting in impaired school performance because of sexual preoccupation, sleeplessness, heightened feelings of self-doubt, depression, and in some instances, even more disturbing reactions.” For some students, she concludes, “the questionnaire might well be the force that pushes them into a panic state or even a psychosis.”
The foregoing affidavits are flatly controverted by five eminently well-qualified experts who have worked extensively in the field of school psychology. Dr. Adam Munz, Chief Psychologist at St. Luke’s Hospital, Assistant Professor of Clinical Psychiatry at Columbia University, Consultant to the Columbia University Health Services (where he actively works with students) and to the Cathedral School of St. John the Divine, swears in part:
“I have had the opportunity to peruse the material presented in connection with the ‘Sexuality in Stuyvesant’ questionnaire, including the questionnaire itself and the various affidavits submitted by all concerned with said questionnaire.
I would like to state, by way of a summary of my opinion in this matter, that in the more than 25 years of active experience as a clinical psychologist I have never encountered a situation in which a child, adolescent or adult has been adversely affected by a questionnaire! — the statement that ‘in some cases confrontation of this sort might lead to serious emotional difficulties’ is totally unfounded and speculative.
The realities of life, the rawness of the world around us to which these youngsters are exposed daily on their way to and from school, are undoubtedly far more eroding of their development than a questionnaire could ever be.” (Appendix, p. 148)
A detailed nine-page affidavit was furnished by plaintiff Gilbert M. Trachtman, professor of educational psychology, director of a school psychology program and of the NYU children’s consultation service, president of the School Psychology Educators Council of New York State, past-president of the Nassau County Psychological Association and of the School Division of New York Psychological Association and a consultant to numerous public and private schools. He swore in part:
“3. I have objectively reviewed the questionnaire proposed for the article on ‘Sexuality in Stuyvesant’. I emphasize that it is not only relevant and germane to the interests and concerns of the students in the 13-18 year age range, but can affirm from personal and professional experience that every question listed [in the questionnaire] touches upon topics frequently occurring in day to day conversations among students in this age group and no question could be unexpected, arcane or upsetting to students who associate in any manner with their peers, whose discussions will perforce include adversions to sexual issues.
4. The administration of Stuyvesant High School has, in the past, offered rap groups on sexuality to its students and encouraged participation in these open-ended, face to face verbal discussions. While these groups may have been led by trained teachers, they nevertheless ex-
*524posed students to a degree of peer pressure and verbal confrontation far in excess of any impact created by a voluntary and anonymous written questionnaire. This statement in no way constitutes a criticism of peer rap groups, which are to be applauded, but is meant to place in proper perspective the mild impact of the projected questionnaire, which is considerably less invasive of personal privacy and much less likely to arouse anxiety.
5. For those youngsters who have already discussed sexual matters freely with peers, the questionnaire will have little or no impact. Those youngsters who have not participated freely in such discussion are quite likely to be reserved, shy or already anxious about sexual matters and therefore unwilling to share information and attitudes with peers. Such youngsters are likely to be less informed, to have less access to current relevant peer group norms and attitudes and to be anxious about themselves on the basis of misinformation, distortion or fantasy. For such youngsters the questionnaire may serve as an outlet for private communication, and a reassurance that others are concerned about similar matters, and the projected article based on this questionnaire may well serve a valuable educational purpose in reducing fantasy and distortion and relieving anxiety.
6. Youngsters of this age, living and travelling in an urban environment are constantly bombarded by sexually-laden stimuli. The media — advertising, newspaper reports, TV drama, film, theatre— are constantly dealing with homosexuality, unisexuality, bisexuality, premarital sex and all of the other topics covered in this questionnaire. Walking to and from school, youngsters meet prostitutes, are handed advertisements for massage parlors, and witness homosexual courtships. The defendants seem to assert that some of the questions in this questionnaire may arouse undue anxiety in some youngsters who are less well defended or whose personality adjustment is somewhat precarious. I would suggest that any youngster sufficiently fragile to suffer serious anxiety or depression upon reading questions which (s)he may ignore with impunity or respond to anonymously, is a youngster too fragile to have survived the trip from home to school. There is absolutely no evidence that the impact of this questionnaire will even remotely approximate the impact of all the sexually laden environmental stimuli already imposed upon these youngsters. .
9. The environment in the context in which the questionnaire at issue will be used, is an urban (New York City) high school in 1976. A school, as noted, situated in a city which bombards its inhabitants with sexual stimuli. Sexual stimuli, which include all topics covered in the proposed survey and extending quite beyond it. Indeed, recent research, ‘Adolescent Sexuality in Contemporary America’, Sorensen, R. C., 1973, N.Y.: World Publishing Co., indicates that sexual behavior is on the upswing among adolescents and that young people are increasingly explicit about sex.
The proposed survey is not only projected within this environmental context but, in turn, is an additional component within the environment. It is pertinent, therefore, to note the relevant characteristics of the questionnaire, and the manner of distribution of the proposed survey:
(1) It is voluntary; (2) it requires a written (and therefore private) communication, rather than a verbal (and public) communication; (3) it is anonymous; (4) a proposed cover letter outlines all of the above and further encourages the volunteer respondents to ignore any specific questions which make them uncomfortable.” (Appendix, pp. 93-95, 96-97).
Harry B. Gilbert, Professor of Education at Fordham and Coordinator of the Urban School Psychology Program, was from 1955 to 1966 in charge of the examination for licensing of all school psychiatrists, psychologists, and guidance personnel for defendant, and prior to that served as supervisor of psychologists at defendant’s Bureau of
*525Child Guidance. He stated, among other things:
“I see the survey project and questionnaire here at issue as a classic example of adolescents reaching out for information and relief of concern in an area of great developmental moment to them. Adolescents are most interested in their newly developed sexual abilities and their inability to achieve expression of their interests and desires. Quite appropriately, there are legitimate reasons why sexual expression is difficult to achieve for' young adolescents. But society makes the problem even more difficult by its failure to explore the extent of sexual knowledge, attitudes, practices and concerns among teenagers and to make provision for the sharing of such findings among teenagers in order to allow alleviation of anxiety that is prevalent. .
5. The danger that some students might be exposed to anxiety arousal exists. But it is so minute compared with the enormous benefit to be derived from students learning that their concerns are common and developmentally normal. Moreover, this would provide opportunity for genuine information to be shared and not leave sexual information to be gained solely from furtive peer whisperings or pornographic literature which does abound.
6. An effect of squelching this student proposal can only serve to drive sexual feelings further underground and to provide adolescents with a cause to do battle with authority figures who treat students as children, not budding adults.” (Appendix, pp. 102, 103)
Professor Max Siegel (A104), President of the Division of Clinical Psychology of the American Psychological Association, past-president of the New York State Psychological Association and program head of the Graduate Program of School Psychology at Brooklyn College, states in part:
“Given that the questionnaire is voluntary and anonymous so that a student may choose not to participate without embarrassment [sic] or concern for peer pressure, there seems to be no basis for any expectation of emotional harm to individual students.
Indeed, I would conclude that the questionnaire and the resultant article may prove a valuable service and fill an important need for the students of Stuyvesant High School, providing them as it does with normative and demographic information which can play a valuable role in providing reality based contexts for discussion in areas of sexuality. Most adolescents discuss sexual issues frequently, and those who do not enter such discussions frequently are nevertheless quite likely to obsess and ruminate privately about these same issues, but with less facts and less information about their fellow students, and with consequent possibilities of more fantasy and more distortion, and, as a consequence, irrational anxiety. It is much more likely that collection and dissemination of relevant facts and attitudes from peers will prove to be constructive and useful than in any way harmful.” (Appendix, pp. 105-106)
Victor B. Elkin (A107), Director of the National Institute of Mental Health Project — Psychology in the schools, and for 20 years director of psychological services for the Long Beach City School District, swears:
“As a result of my 25 years of direct service to public school children, I have become sensitive and aware of the need to appropriately respect and effectively relate to the children in our schools. Not only do I not find this questionnaire objectionable or dangerous, but actually I find it to have positive mental health implications. In today’s day and age, with sexuality ramptantly [sic] used in advertising, entertainment, in literature, the questions presented in this questionnaire are actually benign.
4. For many young boys or girls of high school age, such a questionnaire could serve as a positive impetus for facing and coming to grips with many issues *526regarding their own personal thoughts and feelings about themselves, within a sexual context. Very much like the cliche, that it is healthier for the child to learn about sexuality from a parent rather than ‘in the street,’ it is although healthier for a child to learn about or become in touch with his or her own thoughts and feelings, and even anxieties from a questionnaire which might stimulate thinking, rather than from headlines and various magazines, newspapers, or the screaming announcements of theater marquees.” (Appendix, pp. 108, 109)
If the issue before us were to be decided on the credentials and independence of the experts offered by both sides, plaintiffs would probably have the edge. Without denigrating the standing of defendants’ experts, the credentials and experience of plaintiffs’ experts are more impressive. Moreover, four of the five experts offered by the plaintiffs (Munz, Gilbert, Siegel and Berger) are independent, whereas a majority of the defendants’ psychologists (Cohen, Paster, and Polemeni) are employed by the defendants. More important, however, is the failure of the defendants, who have the burden, to provide any factual foundation for the conclusions voiced by them and their experts. In this day and age, when children in New York City are literally bombarded with explicit sex materials on public newsstands on the way to and from school, when they are encouraged openly and frankly to discuss sex topics and problems in “rap sessions” sponsored by their schools (which, unlike the questionnaire at issue are face-to-face and not anonymous), when the children actually do discuss sex with their peers at school, when the number of teenage pregnancies in New York City’s public high schools such as Stuyvesant is so high that the City has operated a special high school for pregnant high school girls attended by up to 2,000 pregnant teenagers annually, when adolescent sexuality is openly discussed in New York newspapers, I believe the defendants have failed completely to demonstrate any reasonable likelihood that the questionnaire poses any substantial harm to any appreciable number of high school students.
The picture drawn by the defendants of high school freshmen and sophomores (to say nothing of juniors and seniors) as fragile, budding egos flushed with the delicate rose of sexual naivety, is so unreal and out of touch with contemporary facts of life as to lead one to wonder whether there has been a communications breakdown between them and the next generation. Yet the defendants’ sponsorship of “rap sessions” among students to discuss these very matters indicates not only an awareness of the high school student’s knowledge and insight into sex matters but a strange inconsistency with the defendants’ attitude toward the questionnaire. If face-to-face, non-anonymous discussions between students of the very matters that are the subject of the questionnaire causes no psychological harm to those involved, I cannot believe that an anonymous questionnaire, which states right on its face that the recipient need not answer it but is free to throw it away, would do so, I can only conclude that the defendants are more concerned about the structure and methodology of the questionnaire than about its alleged psychological impact.
Other courts, when faced with substantially the same problem, have not hesitated to find that distribution of sexual material in school to students is protected by the First Amendment and that school authorities failed to sustain their heavy burden of demonstrating that prohibition of such distribution was reasonably necessary to guard against harm to the students’ rights. See, e. g., Shanley v. Northeast Independent School Dist., 462 F.2d 960 (5th Cir. 1972) (school newspaper article discussing birth control). Indeed, in Bayer v. Kinzler, 388 F.Supp. 1164 (E.D.N.Y.), aff’d, 515 F.2d 504 (2d Cir. 1974), we affirmed a district court decision finding that the distribution of a sex information supplement to a school newspaper was constitutionally protected. I fail to find any significant legal distinction between these holdings and the present case.
I do agree with the majority that Judge Motley’s Solomonic judgment, which would *527cut the baby in half by permitting distribution of the questionnaire to juniors and seniors while denying it to freshmen and sophomores, cannot stand, in view of the failure of the record to reveal any substantial evidentiary basis for the distinction other than the surmise that the younger students would be more vulnerable to possible psychological trauma than the older ones. However, for the reasons stated, the defendants have failed to sustain their burden as to either group.
Accordingly I would affirm the district court’s holding that the questionnaire may be distributed to juniors and seniors, reverse its holding that the questionnaire may not be distributed to freshmen and sophomores and direct the court to retain jurisdiction for the purpose of resolving any dispute that might arise with respect to distribution of any resulting school newspaper article that might be written.
. A few recent New York Times articles or editorials pertaining to the subject are summarized in its index: ■
E. g., New York Times, March 21, 1976, at p. 29, col. 1; id., Oct. 16, 1976, at p. 27, col. 2; id., June 28, 1974, at p. 17, col. 4.
. I would have no objection to our conditioning distribution of the questionnaire upon the same or similar language being printed in bold type and given an even more prominent position either on the face of the letter covering the questionnaire or on the questionnaire itself.