FIRE and Allies Defend Students’ Right to Complain About Mandatory Transvaginal Ultrasounds

Three former students of Valencia College’s sonography program have filed an appeal in their lawsuit against the college after a federal judge in Florida ruled against them last fall—a ruling that has very troubling implications for students’ First Amendment rights. FIRE, the Student Press Law Center (SPLC), the American Society of Journalists and Authors, and the Woodhull Freedom Foundation filed an amici curiae (“friends of the court”) brief with the U.S. Court of Appeals for the Eleventh Circuit yesterday in support of the students.

As we wrote on The Torch last year, the case—Milward v. Shaheen—arises out of the sonography program’s requirement that female students undergo multiple transvaginal ultrasounds at the hands of their classmates. According to the complaint, after the student-plaintiffs objected to this requirement, administrators and staff threatened to lower the students’ grades and blacklist them at local hospitals. Having been effectively forced out of the program, the three women filed suit against three employees of the public Florida college for violations of their First Amendment right to free speech and their Fourth Amendment right to be free from illegal search and seizure, and for conspiracy to commit those violations. The complaint also included a claim against the board of trustees for reckless indifference to the students’ clearly established rights.

The district court’s First Amendment analysis was brief, and its holding startlingly broad. It concluded that the plaintiffs’ speech—the students' complaints directly to administrators that they did not want their peers putting probes into their vaginas—was not protected under the First Amendment. FIRE’s brief relays the holding with respect to the free speech claim:

Dismissing Plaintiffs’ First Amendment claim, the district court wrote: “Plaintiffs allege that they ‘expressed concern to Defendant Ball’ about undergoing the vaginal probes and that Milward ‘complained to Defendant Shaheen’ about the probes. This is not protected speech.”

To support this conclusion, the district court cited Hazelwood v. Kuhlmeier, 484 U.S. 260; 108 S. Ct. 562 (1988). The court reasoned that because “Defendants are tasked with inculcating [Plaintiffs with] the necessary knowledge, values, and experience,” and because students’ “practicing on each other” furthers that goal, Defendants’ punishment of Plaintiffs for their complaints about the ultrasounds was “reasonably related to legitimate pedagogical concerns” and therefore permissible under Hazelwood. This reliance is misplaced.

Longtime supporters of FIRE and SPLC will recall that Hazelwood dealt with the question of whether a high school (not a college, as in this case) could censor (not punish, as in this case) articles in a student newspaper produced as part of the journalism curriculum. In holding that such censorship did not violate the First Amendment, the Supreme Court in Hazelwood relied on the ideas that (a) young students are likely to read newspaper articles that may be inappropriate for their maturity level and (b) readers might view the newspaper as bearing the school’s imprimatur—that is, its official approval—since it was produced with school resources and under the guidance of teachers. As we explain in our brief, neither of those concerns is relevant here, where adult students are speaking directly to adult administrators.

SPLC’s “Cure Hazelwood” campaign urges students to push back against broader application of the ruling, particularly against university newspapers—a serious problem in some jurisdictions. The Milward ruling, however, takes Hazelwood to a new level by applying it to facts not even remotely comparable to those of Hazelwood itself.

Our amici brief explains the disastrous ramifications of the district court’s ruling, if it is upheld by the Eleventh Circuit:

[T]he district court’s ruling would allow punishment for any criticism of an institution’s curriculum, no matter how appropriate. Students being asked to perform surgery on each other with no anesthetic, for example, would be prohibited from complaining. Forcing Valencia students to choose between silently accepting any program activities no matter how dangerous or immoral or leaving school is wildly inconsistent with both basic considerations of public policy and the Court’s declaration in Sweezy v. New Hampshire, 354 U.S. 234, 250; 77 S. Ct. 1203, 1212 (1957) that “[t]eachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.”

You can read the brief in full, the district court’s disturbing opinion, and the original complaint all on our website.

FIRE is deeply grateful to Lawrence G. Walters of Walters Law Group for helping to prepare and file the brief as legal counsel.