By Michelle Ball, California Education Attorney for Students since 1995
California is within the Ninth Circuit Court of Appeals, but often sister jurisdiction decisions impact and influence decisions here. The decision is noteworthy for its facts, which college students may want to be aware of, and for the definitive ruling that this conduct did involve a search for purposes of Fourth Amendment analysis.
The basics are that students who entered the state run Valencia College Sonography program were allegedly asked to "volunteer" for transvaginal ultrasounds to be performed on them by other students in the program (male and female). Three students refused. Two were allegedly thereafter badgered into allowing this invasive procedure to be done on them. The third student did not agree and was as a result excluded from the ultrasound procedures, given "two failing grades and yelled at... for an hour until she had a panic attack," according to the decision in Doe v. Valencia College Board of Trustees (11th Circuit, October 4, 2016). Per Judge William Pryor, these transvaginal ultrasounds involve insertion of a sonogram device into the student's vagina and can be painful and embarrassing.
The students filed suit in federal court alleging breach of their Fourth Amendment right to be free from unreasonable searches, breach of their First Amendment speech rights and other bases. They requested damages, injunctive relief, and attorney fees and costs.
The lower court (District Court) dismissed the students' complaint alleging that their communications on the procedure to the college were "school-sponsored" speech and that there was no search. An appeal of this dismissal was made to the Eleventh Circuit, where the court, taking the students' assertions as fact for the proceeding, found that the speech was not "school-sponsored" and that the insertion of the objects into a student's vaginal area was indeed a search under the Fourth Amendment.
The matter now returns to the District Court for proceedings and presumably a trial.
This case shows the extent to which some colleges may breach students' rights: by forcefully leveraging the power of a potential degree to get students to submit to invasive procedures. More shocking for most may be the fact of how the college treated the student who refused this intrusive search of her body- with reported degradation and failing grades.
Just another day in the life of a college student at the mercy of government run educational institutions.
Best,
Michelle Ball
Education Law Attorney
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