explaining that the reasoning in Attson that “no ‘search’ had occurred because the doctor [who took an unconsented-to blood sample to see if the individual was too intoxicated to receive pain medication] was not ‘motivated by investigatory or administrative purposes[,]’ . . . flies in the face of [the Supreme Court’s decision in] Soldal”
How later courts described this case
- explaining that the reasoning in Attson that “no ‘search’ had occurred because the doctor [who took an unconsented-to blood sample to see if the individual was too intoxicated to receive pain medication] was not ‘motivated by investigatory or administrative purposes[,]’ . . . flies in the face of [the Supreme Court’s decision in] Soldal”
- vacating dismissal and finding student complaints should have been treated as “pure student expression” and were protected unless substantially disruptive or could reasonably lead to “material interference with school activities”
- recognizing 6 “Attson is not good law” in light of the reasoning in Soldal
Written by the judges who cited it.
The opinion
Case: 15-15240 Date Filed: 10/04/2016 Page: 1 of 14
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-15240
________________________
D.C. Docket No. 6:15-cv-00785-GAP-TBS
JANE DOE I,
JANE DOE II, et al.,
Plaintiffs,
MELISSA MILWARD,
ELYSE UGALDE, et al.,
Plaintiffs - Appellants,
versus
VALENCIA COLLEGE BOARD OF TRUSTEES,
in its official capacity,
Defendant,
LINDA SHAHEEN,
in her individual capacity,
BARBARA BALL,
in her individual capacity, et al.,
Defendants - Appellees.
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________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(October 4, 2016)
Before MARCUS and WILIAM PRYOR, Circuit Judges, and LAWSON, * District
Judge.
WILLIAM PRYOR, Circuit Judge:
This appeal requires us to decide two issues: whether student speech that
objects to the pedagogy of officials of a public college is “school-sponsored”
expression under the First Amendment and whether an invasive ultrasound
constitutes a “search” under the Fourth Amendment when performed for
instructional reasons instead of investigative or administrative reasons. After
several employees of Valencia College encouraged students to submit voluntarily
to invasive ultrasounds performed by peers as part of a training program in
sonography, some students objected. The employees then allegedly retaliated
against the objecting students and successfully pressured two students to undergo
the procedure. The students filed a complaint against the employees, which the
district court dismissed for failure to state a claim. Because the district court
erroneously classified the students’ speech as school-sponsored expression and the
*
Honorable Hugh Lawson, United States District Judge for the Middle District of Georgia,
sitting by designation.
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district court erroneously ruled that the ultrasound was not a search under the
Fourth Amendment, we vacate the order dismissing the complaint and remand for
further proceedings.
I. BACKGROUND
When reviewing an appeal from a dismissal for failure to state a claim, we
accept all allegations in the complaint as true. The students—Melissa Milward,
Elyse Ugalde, and Ashley Rose—are former sonography students at Valencia
College, a public college in Florida. The sonography program at Valencia is highly
competitive and admits only 12 students per year. At the time, Barbara Ball was
the chair of the program, Linda Shaheen was the clinical and laboratory
coordinator, Maureen Bugnacki was a laboratory technician, and Suda Amodt was
a laboratory and physics instructor. Each employee is a defendant in this appeal.
All three students quit the program because the employees had their students
perform transvaginal ultrasounds on each other and retaliated against the students
for objecting.
A transvaginal ultrasound is used to detect problems with a woman’s
fertility, among other uses. It requires inserting a probe into the vagina, which
allows the sonographer to see the woman’s cervix and other reproductive organs.
Receiving a transvaginal ultrasound is invasive and can be embarrassing. One of
the students who would perform the procedure was male. The probe is also rather
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large and can be painful for some women. It requires heavy lubrication, and
sometimes the technician will stimulate the patient to help insert the probe.
Although the transvaginal ultrasounds were purportedly voluntary, in
practice, the employees required students to perform them on each other. At the
orientation for new students, a second-year student explained that the employees
believed female students should undergo the procedure to become better
technicians. If students refused, the employees would browbeat them and threaten
their academic standing as well as their future careers. For example, when Milward
and Ugalde complained to Ball about the ultrasounds, Ball told them they could
find another school if they did not wish to be probed. When Milward complained
to Shaheen about the ultrasounds, Shaheen responded that she would suffer
academically and professionally if she refused to participate. The employees also
threatened to lower the students’ grades, and Bugnacki threatened to blacklist them
at the local hospitals. Milward and Ugalde eventually submitted to the transvaginal
ultrasounds. But Rose refused. As punishment, the employees did not allow Rose
to watch the other students perform the ultrasounds. Amodt also threatened to bar
Rose from a local hospital, gave Rose two failing grades, and yelled at Rose for an
hour until she had a panic attack.
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In May 2015, the students sued Ball, Shaheen, Bugnacki, Amodt, and the
Board of Trustees of Valencia College. The Board is no longer a party. In their
second amended complaint, the students allege that the employees violated their
rights under the First and Fourth Amendments, 42 U.S.C. § 1983. Specifically, all
three students allege that the employees retaliated against them for speaking out
against the ultrasounds, and Milward and Ugalde also allege that the ultrasounds
were an unconstitutional search. The students also allege that the employees
conspired to violate their rights, 42 U.S.C. § 1983. The students seek compensatory
damages, punitive damages, injunctive relief, and fees and costs. Shortly after the
students filed their complaint, the employees ended peer-to-peer transvaginal
ultrasounds.
The district court dismissed the students’ complaint for failure to state a
claim. The district court rejected the students’ claim under the First Amendment
because they had not engaged in protected speech. The district court concluded that
under the test from Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988),
the students’ speech enjoyed only limited protection and could be overridden by
the employees’ legitimate pedagogical choices. The district court also rejected the
students’ claim under the Fourth Amendment because the transvaginal ultrasounds
were not a search. A search must be “motivated by investigatory or administrative
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purposes,” according to the district court, and the transvaginal ultrasounds were
done for educational purposes only. Milward v. Shaheen, 148 F. Supp. 3d 1341,
1348 (M.D. Fla. 2015). Because the district court ruled that the employees did not
violate the students’ constitutional rights, the district court also rejected the
conspiracy claim and held that the employees were entitled to qualified immunity.
Id.
II. STANDARD OF REVIEW
“We review de novo the dismissal of a complaint for failure to state a claim,
and we accept all plausible factual allegations in the complaint.” Evanto v. Fed.
Nat’l Mortg. Ass’n, 814 F.3d 1295, 1297 (11th Cir. 2016).
III. DISCUSSION
We divide our discussion into two parts. First, we explain why the district
court erroneously classified the students’ speech as “school-sponsored” expression.
Second, we explain why the district court erroneously concluded that an invasive
ultrasound conducted for instructional reasons is not a search under the Fourth
Amendment.
A. The District Court Erroneously Classified the Speech As School-Sponsored
Expression.
The students argue that the employees violated the First Amendment by
retaliating against them for speaking out against the transvaginal ultrasounds. “To
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establish a First Amendment retaliation claim, the plaintiff must show ‘first, that
his speech or act was constitutionally protected; second, that the defendant’s
retaliatory conduct adversely affected the protected speech; and third, that there is
a causal connection between the retaliatory actions and the adverse effect on
speech.’” Keeton v. Anderson-Wiley, 664 F.3d 865, 878 (11th Cir. 2011) (quoting
Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005)). The employees argue,
and the district court agreed, that the students’ speech is not protected under the
First Amendment.
The parties primarily disagree about how to classify the students’ speech. In
evaluating student speech, we consider “the special characteristics of the school
environment.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506
(1969). We identify four classifications of student speech in the classroom: “vulgar
expression, pure student expression, government expression, and school-sponsored
expression.” Bannon v. Sch. Dist. of Palm Beach Cty., 387 F.3d 1208, 1213 (11th
Cir. 2004). Pure student expression is “student expression that merely happens to
occur on the school premises.” Id. It is governed by the standard in Tinker. That is,
“schools must tolerate such expression unless they can reasonably forecast that the
expression will lead to ‘substantial disruption of or material interference with
school activities.’” Id. (quoting Tinker, 393 U.S. at 514). School-sponsored
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expression, by contrast, includes only expressive activities that meet three
qualifications: 1) “students, parents, and members of the public might reasonably
perceive [the activity] to bear the imprimatur of the school”; 2) the faculty
supervises the activity; and 3) the activity, by design, imparts knowledge or skills
to students or audiences. Hazelwood, 484 U.S. at 271. It is governed by the
standard in Hazelwood: “schools may censor [it] so long as their actions are
reasonably related to legitimate pedagogical concerns.” Bannon, 387 F.3d at 1213–
14.
The district court assessed the students’ speech under Hazelwood, but that
framework does not apply to this appeal. The speech at issue—the students’
complaints to the employees about the transvaginal ultrasounds—is not school-
sponsored expression. Private complaints from individual students do not “bear the
imprimatur of the school.” See id. at 1214. The employees rely on our decision in
Keeton, which applied Hazelwood to a college student who wanted to counsel
students that “it was not okay to be gay” during the college’s training program for
future counselors. 664 F.3d at 868. But counseling by a student-counselor during a
college’s training program bears the imprimatur of the school. See id. at 875
(“[T]he clinical practicum, which Keeton seeks to participate in, is a ‘school-
sponsored expressive activit[y],’ as those who receive counseling in the program
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and members of the general public ‘might reasonably perceive [it] to bear the
imprimatur of the school.’” (second and third alterations in original) (quoting
Hazelwood, 484 U.S. at 271)). Additionally, a student-counselor’s participation in
a college training program is both “supervised by faculty members and designed to
impart particular knowledge or skills.” Id. 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.
Instead of assessing the students’ speech as school-sponsored expression
under Hazelwood, the district court should have evaluated it as pure student
expression under Tinker because it “merely happen[ed] to occur on the school
premises.” Bannon, 387 F.3d at 1213. Accordingly, the employees must tolerate
the students’ complaints about the transvaginal ultrasounds “unless they can
reasonably forecast that the expression will lead to ‘substantial disruption of or
material interference with school activities.’” Id. (quoting Tinker, 393 U.S. at 514).
We vacate the order dismissing the students’ claim under the First Amendment.
B. The Ultrasounds Were Searches Under the Fourth Amendment.
Milward and Ugalde argue that the transvaginal ultrasounds were an
unconstitutional search under the Fourth Amendment. The employees argue, and
the district court agreed, that no search occurred because the transvaginal
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ultrasounds had no “investigative” or “administrative” purpose. The district court
erred.
Inserting a probe into a woman’s vagina is plainly a search when performed
by the government. Where the government physically intrudes on a subject
enumerated within the Fourth Amendment, such as a person, a search “has
undoubtedly occurred.” United States v. Jones, 132 S. Ct. 945, 950–51 & n.3
(2012). The Supreme Court has long recognized that compelled blood and urine
tests implicate the Fourth Amendment. Skinner v. Ry. Labor Executives’ Ass’n, 489
U.S. 602, 616 (1989) (citing Winston v. Lee, 470 U.S. 753, 760 (1985); Schmerber
v. California, 384 U.S. 757, 767–68 (1966)). Even under the broader test that a
“search” is “any governmental act that violates a reasonable expectation of
privacy,” O’Rourke v. Hayes, 378 F.3d 1201, 1207 (11th Cir. 2004), each
ultrasound clearly constituted a search. “[I]t is obvious” that the “compelled
intrusio[n] into the body . . . infringes an expectation of privacy that society is
prepared to recognize as reasonable.” Skinner, 489 U.S. at 616 (internal quotation
marks and citations omitted).
Although the employees did not conduct the transvaginal ultrasounds to
discover violations of the law, the word “search” in the Fourth Amendment does
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not contain a purpose requirement. The Supreme Court explained in Soldal v. Cook
County why such a requirement would be anomalous:
[T]he reason why an officer might enter a house or effectuate a
seizure is wholly irrelevant to the threshold question whether the
[Fourth] Amendment applies. What matters is the intrusion on the
people’s security from governmental interference. Therefore, the right
against unreasonable seizures would be no less transgressed if the
seizure of the house was undertaken to collect evidence, verify
compliance with a housing regulation, effect an eviction by the police,
or on a whim, for no reason at all. As we have observed on more than
one occasion, it would be “anomalous to say that the individual and
his private property are fully protected by the Fourth Amendment only
when the individual is suspected of criminal behavior.”
506 U.S. 56, 69 (1992) (emphases added) (quoting Camara v. Mun. Court of San
Francisco, 387 U.S. 523, 530 (1967)).
The employees, like the district court, rely on the decision of the Ninth
Circuit in United States v. Attson, 900 F.2d 1427 (9th Cir. 1990), but Attson is not
good law. In Attson, a drunk driver crashed his car, killing one of his passengers.
Id. at 1429. At the hospital, a doctor (who was employed by the federal
government) took a sample of the driver’s blood. Id. The doctor took the sample
“for medical reasons alone”: he wanted to ensure the driver was not too intoxicated
to receive pain medication. Id. The driver consented to having his blood taken for
medical purposes, but not police purposes. Id. The driver was eventually charged
with manslaughter, and a grand jury subpoenaed the results of the blood test. Id.
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When the driver filed a motion to suppress, the Ninth Circuit concluded that no
“search” had occurred because the doctor was not “motivated by investigatory or
administrative purposes.” Id. at 1430–31, 1433. This reasoning flies in the face of
Soldal, which the Supreme Court decided two years after Attson. And the
reasoning in Attson contradicts our decision in Lenz v. Winburn, where we held
that a “search” occurred when a guardian ad litem went through a closet to find
clothes for a child that she was removing from the home. 51 F.3d 1540 (11th Cir.
1995). Citing Soldal, we expressly rejected the argument that a search must be
“motivated by an investigative purpose.” Id. at 1547. We held that “even though
[the guardian] looked through [the child’s] clothes out of concern for [the child’s]
comfort and not as part of any investigation, the search falls within the ambit of the
Fourth Amendment.” Id. at 1548. And later, the Ninth Circuit held, without citing
Attson, that people “have a legitimate expectation of privacy in being free from an
unwanted medical examination, whether or not that examination entails any
particularly intrusive procedures.” Yin v. California, 95 F.3d 864, 871 (9th Cir.
1996).
We acknowledge that several of our sister circuits require an investigative or
administrative purpose even after Soldal in decisions involving “peeping Toms,”
but we find their reasoning unpersuasive. See, e.g., Doe v. Luzerne Cty., 660 F.3d
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169, 179 (3d Cir. 2011) (concluding no search occurred when a male police officer
filmed a female police officer in the shower); Poe v. Leonard, 282 F.3d 123, 137
(2d Cir. 2002) (similar). For instance, the decision in Luzerne County did not even
cite Soldal. The decision in Poe did, but it confined Soldal to disputes arising from
an investigation by the government as an employer or in the course of an official
performing a traditional governmental function. Poe, 282 F.3d at 136–37. In
support, the court in Poe relied on five Supreme Court decisions, including Soldal,
that it interpreted as arising in those circumstances. Id. We think the decision in
Poe reads Soldal too narrowly. The Supreme Court did not suggest its holding was
limited to instances involving a government employer-driven investigation or an
officer performing a traditional governmental function. Instead, it held broadly,
“What matters is the intrusion on the people’s security from governmental
interference.” Soldal, 506 U.S. at 69. Moreover, even if we found these decisions
persuasive, we must follow our decisions until they are overruled by the Supreme
Court or an en banc decision of this Court. United States v. Vega-Castillo, 540
F.3d 1235, 1236 (11th Cir. 2008). The holding of Lenz squarely forecloses the
ruling by the district court. We vacate the order dismissing the students’ claim
under the Fourth Amendment.
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IV. CONCLUSION
We VACATE the dismissal of the students’ complaint and REMAND for
further proceedings.
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