Federal judge throws out Valencia College lawsuit over transvaginal ultrasounds

Federal judge throws out Valencia College lawsuit over transvaginal ultrasounds

When female sonography students filed a lawsuit in May against Valencia College for allegedly browbeating them to undergo weekly transvaginal ultrasounds, the news made national headlines. The school came under fire after students said if they didn't volunteer for the procedure, which involves inserting a probe into the vagina to look at reproductive organs, they would have to leave the program or be "blacklisted" from working at local hospitals.

To many, the case appeared an easy win for the students against the college, but five months and multiple court proceedings later, the controversy surrounding the school died down — and so did the case. Late last month, U.S. District Judge Gregory Presnell quietly dismissed the lawsuit against Valencia College with prejudice, which means students can't file again, and ordered the clerk to close the file.

"We appreciate the court's thoughtful review and well-reasoned decision," says Carol Traynor, spokeswoman for the college.

And while Valencia College permanently discontinued the use of student volunteers for transvaginal ultrasounds and moved on from the incident, the students involved say in court documents they are still dealing with the aftermaths of a procedure that routinely violated them and upended their lives.

The final complaint filed on behalf of three students by their attorney, Winter Park lawyer Christopher Dillingham alleged that during a 2013 orientation for the sonography program, another student nicknamed the "TransVag Queen" told students that a faculty member told her "she could go somewhere else" if she didn't want to undergo the probes, but ultimately became comfortable with the procedure, hence the nickname.

Despite taking a questionnaire, in which all three women said they were uncomfortable with the procedure, a faculty member sent each of them an email saying students who did not agree to volunteer as patients for their classmates would not be allowed to participate or practice transvaginal scanning in the lab.  The students said faculty told them if they didn't undergo the ultrasound, some hospitals would not allow them to perform it on patients. Later on, the students did go to local hospital to practice on actual patients.

After the orientation, the students were given a waiver to sign, which two of the students in the complaint signed.  In their affidavits, the women said no one gave them the option of practicing on anatomically correct sensor dummies, which were available at the school and which are commonly used at other colleges.

The first student refused to undergo the ultrasound, but the two other students underwent the procedure routinely, which they said often hurt, and were "discouraged" from using their menstrual cycles as an excuse not to be probed. There was also a male student allowed to practice transvaginal ultrasounds on women in the class, the affidavits say.

The three students say after being harassed by faculty and their complaints ignored by Valencia College, all three dropped out, losing thousands of dollars in tuition, books and other expenses. In affidavits, they say the procedures affected their psychological health and strained their personal relationships, and some even took medication. All three are going to mental health counselors.

"I cannot return to Valencia College's Medical Sonography Program knowing I could be forced to undergo more transvaginal probes," the third student says. "It was the worst academic experience of my life."

Valencia College asked U.S. District Judge Gregory Presnell to dismiss the lawsuit in September, saying the students withdrew from the program before any actual harm, like a "specific course grade reduction or lost job opportunity" could happen and were now seeking damages by "artificially sensationalizing and inappropriately sexualizing their voluntary participation in clinical exercise."

Dillingham, who declined to comment for this story, argued that Valencia College had violated students' First Amendment right to free speech and Fourth Amendment right against illegal search and seizure. Part of the relief students sought was for the school to permanently cease and desist its policy of forced vaginal probing of students, but they also wanted the right to be reinstated at the college.

"Valencia College's official and unofficial policies and customs encouraged, caused, allowed and/or enabled the individual Defendants to violate Plaintiff's constitutional rights without fear of discipline for those violations," Dillingham writes in the amended complaint form. "All Plaintiffs suffered psychological damages as a result of Valencia's policies and procedures." But it was precisely this argument, that Valencia College had violated students' First and Fourth Amendment rights that may have led to the case's end.

In a 10-page order signed Oct. 28, Judge Presnell dismissed the lawsuit with prejudice, arguing that the college is protected under Florida's "qualified immunity," which "protects municipal officers from liability as long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

Furthermore, Presnell writes that the students' complaints about the program did not amount to protected speech because "it is the role of teachers, and not federal judges, to define a school's educational curriculum – the courts may only step in when the decision to censor ... student expression has no valid educational purpose." Regarding the alleged violation against students' Fourth Amendment rights, Presnell says Valencia College wasn't benefitting the government when administrators probed students.

"Their intent to help Valencia maintain its unique program and educate students on how to perform transvaginal ultrasounds does not implicate the Fourth Amendment," the decision says.

Professor Lyrissa Lidsky, who specializes in First Amendment law at the University of Florida, agrees with Presnell's arguments.

She says that although asking students to submit to transvaginal exams is an "unreasonable request," it's not a free speech violation because if the students' allegations are true, faculty retaliated against students for refusing to submit to the probe, not for protesting about the probe.

Lidsky says it appeared that the students' lawyer was trying to force the case into a constitutional tort in order to bring action against the state and pursue damages. Because the case was dismissed with prejudice, the students will have to appeal that designation first if they want to go forward, which can be difficult.

"Obviously, just because the lawsuit was dismissed, it doesn't mean the behavior of the college, if it's what was asserted, is acceptable," she says. "If the college is browbeating students to force them to accept transvaginal sonograms, that's highly problematic and should be stopped immediately. Bad behavior can still be bad behavior even if it's not a violation of the First and Fourth Amendment."


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