ADF, CWA: College can't punish students who complained about mandatory transvaginal ultrasounds by classmates

ATLANTA – Alliance Defending Freedom and Concerned Women for America filed a friend-of-the-court brief Wednesday that asks the U.S. Court of Appeals for the 11th Circuit to rule in favor of three female sonography students told by Valencia College in Orlando, Florida, that they must undergo transvaginal ultrasounds at the hands of their classmates. When they objected, college employees verbally abused them, penalized them academically, and threatened to “blacklist” them from future employment.

“Students don’t surrender their bodily privacy rights when they walk into a public college classroom,” said ADF Senior Counsel David Hacker. “The fact that we are even discussing whether female students should have to undergo this at the hands of their classmates is bad enough, but the fact that the college retaliated against the students—not just once, but multiple times—for expressing concern about it only makes it more reprehensible. The district court’s dismissal of the students’ lawsuit on the grounds that their complaints are school-sponsored speech instead of their own speech is illogical.”

The three female students appealed the case, Milward v. Shaheen, to the 11th Circuit after the district judge’s dismissal of their suit. The judge said that expressing concern about an assignment—being required to surrender one’s bodily privacy and undergo a vaginal probe—and then complaining to faculty about it was “not protected speech.” The judge reasoned that a complaint about curriculum is school-sponsored speech, that a student’s speech is not protected when it threatens a school’s academic and curricular system, and that courts cannot interfere with educational decisions.

As the ADF-CWA brief explains, “asserting that the Students’ complaints constitute school-sponsored speech is equivalent to saying that the College is complaining to itself. The student complaints about college activities, whether curricular or extracurricular, are not school-sponsored speech.”

“Surely, the College would not contend that every time a student complains, whether it be about the curriculum or the ineptitude of the athletic program, he or she is engaged in speech sponsored by the College…,” the brief continues. “Indeed, no one would think that student complaints about the curriculum are school-sponsored speech any more than they would think that student complaints about cafeteria food are school-sponsored. Thus, the District Court’s conclusion that the Students’ speech was school-sponsored is not only illogical, but flat wrong based on the facts and law.”

The brief explains that the primary way the district court went wrong is that it erroneously based its conclusion on a U.S. Supreme Court decision that did not apply to the speech of college students, let alone college students registering legitimate complaints.

Alliance Defending Freedom is an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith.