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Victory! In Milward v. Shaheen, The Eleventh Circuit Upholds First Amendment Rights Of Students Who Objected To Forced Transvaginal Ultrasounds

October 7, 2016

Students in the sonography program at Valencia College were asked to volunteer to undergo transvaginal ultrasound examinations by other students in the program. It quickly became clear that this request was a demand when instructors, including the program manager, retaliated against students who objected and refused to “volunteer”, berating them, threatening to give them bad grades and to have them blacklisted at local hospitals that hired graduates of the program. The objecting students sued under the first amendment, and two women who had submitted to the procedure brought a claim for violating their fourth amendment right to be free from unreasonable search and seizure.  (The students also sued the college’s Board of Directors, but Circuit Court noted that the Board was no longer part of the suit.)

The District Court dismissed the students’ case in its entirety.  The breadth of the District Court’s dismissal of the students’ first amendment claims was breathtaking, given that college students objections and protests have long been recognized as protected speech.  The decision, had it been allowed to stand, would have encouraged colleges and university to broadly censor student speech.  Given the content of the speech at issue — objections to a school’s  policy of forcing students to undergo vaginal penetration — future censorship would likely focus on speech about sexuality, intimacy and the requirement for consent.  

The Milward students appealed, and the Woodhull Freedom Foundation filed an Amici Curiae brief, along with the Foundation for Individual Rights in Education, the Student Press Law Center (SPLC), the American Society of Journalists and Authors.

The District Court based its decision to dismiss the students’ first amendment claims on Hazelwood School District v. Kuhlmeier, a US Supreme Court case that found that a high school principal’s censorship of a student newspaper did not violate the first amendment rights of the student staff. The court treated the Milward students’ complaints as “school-sponsored speech”, not protected by the first amendment, writing “where a student’s speech threatens a school’s pedagogical and curricular system, it is not subject to the expansive protections applied to student political speech.”

The Eleventh Circuit rejected the District Court’s determination that student complaints about forced tranvaginal ultrasound exams recieve no more protection under the first amendment than the content of a student-run school paper. The Circuit Court reasoned that the student newspaper that was the subject of Hazelwood was a teacher-supervised part of the school curriculum, and that those reading the paper might reasonably believe that the school approved of the content. The complaints by the Milward students, on the other hand, were not themselves part of the curriculum, and no one could reasonably believe the student’s views were supported the school. The Eleventh Circuit held that the students objections in Milward were pure student expression, protected by the first amendment.

The Woodhull Freedom Foundation salutes our allies in defense of free speech, and thanks Lawrence G. Walters of Walters Law Group, counsel for the Woodhull Freedom Foundation, for his excellent work on this case.


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