Wednesday, October 5, 2016

Court sides with Valencia students in ultrasound dispute, calling required sonograms 'unconstitutional search'

Posted By on Wed, Oct 5, 2016 at 1:36 PM

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A federal appeals court has sided with three former Valencia College students who allege their constitutional rights were violated in a training program that included students performing invasive ultrasound procedures on each other.

A three-judge panel of the 11th U.S. Circuit Court of Appeals on Tuesday overturned a lower-court judge's decision to dismiss the case. The panel's ruling sent the case back to the lower court, with the dispute focused on whether the former students' First Amendment rights were violated and whether two of them were subjected to unconstitutional searches.

The plaintiffs, Melissa Milward, Elyse Ugalde and Ashley Rose, quit the Orlando state college's sonography program because instructors had students perform what are known as "transvaginal ultrasounds" on each other. The former students also allege they faced retaliation after objecting to the practice.
A transvaginal ultrasound involves inserting a probe into a woman's vagina, allowing the sonographer to see the woman's cervix and other reproductive organs, Tuesday's ruling said.

The lawsuit, which seeks compensatory and punitive damages, was filed in May 2015 against the college's Board of Trustees and program employees Barbara Ball, Linda Shaheen, Maureen Bugnacki and Suda Amodt. The appeals court ruling said the Board of Trustees is no longer a party in the case.

U.S. District Judge Gregory Presnell last October dismissed the case, ruling in part that students were not subject to unconstitutional searches under the Fourth Amendment. Presnell wrote that the program employees "did not have the intent to elicit a benefit for the government in its investigatory or administrative capacity."

But the appeals court rejected Presnell's position, saying that while "the employees did not conduct the transvaginal ultrasounds to discover violations of the law, the word 'search' in the Fourth Amendment does not contain a purpose requirement." Milward and Ugalde, who submitted to the ultrasounds, raised the unconstitutional-search arguments. Rose refused to submit to an ultrasound.

"Inserting a probe into a woman's vagina is plainly a search when performed by the government," said the ruling, written by appeals-court Judge William Pryor and joined by judges Stanley Marcus and Hugh Lawson. "Where the government physically intrudes on a subject enumerated within the Fourth Amendment, such as a person, a search has undoubtedly occurred."

Presnell also dismissed the three former students' First Amendment arguments, finding that their complaints about the ultrasound procedures did not constitute protected speech. He wrote that the college employees were "tasked with inculcating the necessary knowledge, values, and experience, so that their sonography students can become valued and reliable members of the medical community upon graduation. It is with this purpose that they allowed students to participate in clinical exercises intended to increase their competency in performing transvaginal ultrasounds by practicing on each other."

But the appeals court said the students' complaints should have been viewed as "pure student expression," which would be protected by the First Amendment, rather than "school-sponsored" expression.

"In this appeal, the students' objections did not bear the imprimatur of the school, were not supervised by faculty, and were not designed to impart particular knowledge or skills," the ruling said. "Instead of assessing the students' speech as school-sponsored expression … the district court should have evaluated it as pure student expression."

The ruling said Valencia ended the practice of students giving transvaginal ultrasounds to each other after the lawsuit was filed.

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