Judges at the 11th U.S. Circuit Court of Appeals have sided with college students who complained that they were ordered to undergo invasive ultrasounds for a training course, and if they declined to be subjected to the medical procedure, school officials would “browbeat them and threaten their academic standing as well as their future careers.”
The decision comes in a case that developed last winter when students at Florida’s Valencia College sonography course complained they were being publicly pressured to undergo transvaginal ultrasound tests at the hands of their classmates, who included men.
“Students don’t surrender their bodily privacy rights when they walk into a public college classroom,” said David Hacker, senior counsel for the Alliance Defending Freedom, which filed a friend-of-the-court brief on behalf of the students.
A district court judge had dismissed a suit brought by Melissa Milward, Elyse Ugalde and Ashley Rose against Florida’s Valencia College, its officials and board. Individual defendants are program chair Barbara Ball, clinic and laboratory coordinator Linda Shaheen, lab tech Maureen Bugnacki and instructor Suda Amodt.
The students then called on the 11th U.S. Circuit Court of Appeals to review and revive their complaints, and a panel from that court reversed the dismissal and ordered the case revived at the district court level.
“Although the transvaginal ultrasounds were purportedly voluntary, in practice, the employees [of the school] required students to perform them on each other. At the orientation for new students, a second-year student explained that the employees believed female students should undergo the procedure to become better technicians,” the judges wrote.
“If students refused, the employees would browbeat them and threaten their academic standing as well as their future careers.
“For example, when Milward and Ugalde complained to Ball about the ultrasounds, Ball told them they could find another school if they did not wish to be probed,” the judges wrote. “When Milward complained to Shaheen about the ultrasounds, Shaheen responded that she would suffer academically and professionally if she reufsed the participate.”
The appeals court ruling continued, “The employees also threatened to lower the students’ grades, and Bugnacki threatened to blacklist them at the local hospitals. Milward and Ugalde eventually submitted to the transvaginal ultrasounds. But Rose refused. As punishment, the employees did not allow Rose to watch the other students perform the ultrasounds. Amodt also threatened to bar Rose from a local hospital, gave Rose two failing grades, and yelled at Rose for an hour until she had a panic attack.”
The 11th Circuit sent the case back to the lower court because of the claims for “compensatory damages, punitive damages, injunctive relief, and fees and costs.”
The judges noted that “shortly after” the fight developed, the school’s employees “ended peer-to-peer transvaginal ultrasounds.”
“Inserting a probe into a woman’s vagina is plainly a search when performed by the government,” the judges wrote. “Where the government physically intrudes on a subject enumerated within the Fourth Amendment, such as a person, a search ‘has undoubtedly occurred.'”
At the lower court, the judge reasoned that complaining about orders to surrender one’s bodily privacy and undergo a vaginal probe is not protected speech.
The students all quit the program over the dispute.
Judge William Pryor rejected the lower court’s suggestion that the students’ complaints were “school-sponsored expression.”
“Even under the broader test that a ‘search’ is ‘any governmental act that violates a reasonable expectation of privacy,’ each ultrasound clearly constituted a search,” Pryor wrote. “‘It is obvious’ that the ‘compelled intrusion into the body…infringes an expectation of privacy that society is prepared to recognize as reasonable.'”
