not giving preclusive effect to a state administrative determination because the claimant had not “cross[ed] the line between state agency and state judicial proceedings”; citing Keyse v. California Texas Oil Corp., 590 F.2d 45, 47 n. 1 (2d Cir.1978)
How later courts described this case
- not giving preclusive effect to a state administrative determination because the claimant had not “cross[ed] the line between state agency and state judicial proceedings”; citing Keyse v. California Texas Oil Corp., 590 F.2d 45, 47 n. 1 (2d Cir.1978)
- “If [the plaintiffs] lengthy suspension without pay resulted from an arbitrary or capricious exercise of the Board’s power, her due process rights were violated.”
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Gargiul v. Tompkins, 790 F.2d 265 (1986)
Where a government employer has reason to question whether an employee is medically fit to work, the employer may direct the employee to undergo a medical examination, see Gargiul v. Tompkins, 704 F.2d 661, 668 (2d Cir.1983), overruled on other grounds, Gargiul v. Tompkins, 790 F.2d 265 (2d Cir.1986), and to provide the examining doctor with relevant medical records, see Strong, 902 F.2d at 212-13.
The opinion
OAKES, Circuit Judge
(concurring in the judgment):
While I concur with Judge Tenney in the result his opinion reaches, I do so on a different ground. I would not reach the substantive due process question but would hold that the plaintiff’s complaint that she was suspended for refusal to be examined by a male doctor alleges a violation of her constitutional right to privacy, a right I believe is part of a larger constitutional right of “personhood.” 1 The right of privacy, first recognized by the Supreme Court in Griswold v. Connecticut, 381 U.S. 479 , 85 S.Ct. 1678 , 14 L.Ed.2d 510 (1965), has been fleshed out to some extent on an ad hoc basis, 1 N. Dorsen, P. Bender, & B. Neuborne, Political and Civil Rights in the United States 1008-23 (1976), with the result that its borders are not well defined. See Henkin, Privacy and Autonomy, 74 Colum.L.Rev. 1410, 1430 (1974). But while the contours of this protected sphere can be defined only with time and trial, the Constitution as we prize it is unthinkable without a right of privacy — a right to be let alone— and its entailments. And all our powers of privacy, whether they be our Fourth Amendment control over our property, control over the informational portrait of us available to the government and others, see, e.g., Whalen v. Roe, 429 U.S. 589 , 97 S.Ct. 869 , 51 L.Ed.2d 64 (1977), or control over the thoughts we may have, see, e.g., Sobell v. Reed, 327 F.Supp. 1294, 1305 (S.D.N.Y. 1971), doubtless have their origin in experience and in law in the person’s control over her own body.
This right — to the dignity of one’s bodily integrity — is as old as the common law and has been mentioned as being incorporated in the right of personal security identified in the 39th Article of Magna Charta. See Davis v. Hubbard, 506 F.Supp. 915, 931 (N.D.Ohio 1980). And the doctrine of informed consent, see generally, W. Prosser, The Law of Torts § 18, at 104-05 (4th ed. 1971), is an entire field of tort law that is related to the right to bodily integrity in the doctor’s office. 2
Although compulsory vaccinations, Jacobson v. Massachusetts, 197 U.S. 11 , 25 S.Ct. 358 , 49 L.Ed. 643 (1905), compelled blood tests, Schmerber v. California, 384 U.S. 757 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966), and rectal cavity searches, Rivas v. United States, 368 F.2d 703 (9th Cir.1966), cert. denied, 386 U.S. 945 , 87 S.Ct. 980 , 17 *670 L.Ed.2d 875 (1967), have from time to time been upheld where there is clear necessity, procedural regularity, and little or no physical risk, see L. Tribe, American Constitutional Law 914-15 (1978), “in each case ... [the] government’s burden was to provide more than minimal justification for its action.” Id. at 915.
Yet, even in prison, the social context where the government’s prerogatives are most routinely upheld and the individual’s liberties and decencies most routinely neglected, we have assumed that inmates have a right not to be viewed unclothed by guards of the opposite sex. See Forts v. Ward, 471 F.Supp. 1095 (S.D.N.Y.1978), rev’d on other grounds, 621 F.2d 1210 , 1214 & n. 6 (2d Cir.1980) (female inmates). Hudson v. Goodlander, 494 F.Supp. 890, 893 (D.Md.1980) (male inmates). A fortiori, complainants at a police station have been held to enjoy bodily privacy rights. York v. Story, 324 F.2d 450, 455 (9th Cir.1963), cert. denied, 376 U.S. 939 , 84 S.Ct. 794 , 11 L.Ed.2d 659 (1964). Here, the State’s reasons for disregarding Gargiul’s rights are far less persuasive than in these other contexts, and I fail to see how a right shared by prisoners and arrestees cannot be enjoyed by a schoolteacher. It is true that the Supreme Court has never held whether a person has a constitutionally protected right to decline a physical examination by a member of the opposite sex. But the Court has spoken broadly of the “protected intimate relationship” which “extends to the doctor’s office.” See Paris Adult Theatre I v. Slaton, 413 U.S. 49 , 66 n. 13, 93 S.Ct. 2628 , 2640 n. 13, 37 L.Ed.2d 446 (1973). Moreover, there would be naked irony in the Court’s protection of those who disrobe publicly to express themselves, see Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66 , 101 S.Ct. 2176, 2181 , 68 L.Ed.2d 671 (1981), alongside a refusal to protect those who express a desire to keep their clothes on. Even the Second Circuit’s decision in East Hartford Education Association v. Board of Education, 562 F.2d 838, 856 (2d Cir.1977) (en banc), permitting a school board to force teachers to adhere to a dress code, said nothing of a power to compel teachers to submit to examinations by physicians of the opposite sex.
Here the State’s interests in a teacher’s physical well-being primarily involve safeguarding the health and welfare of students, which can readily be served by an examination by a physician of the teacher’s own sex. Uniform or consistent application of standards might be a reason for having examination of all teachers by one physician but surely the standards of the medical profession are sufficiently uniform that this interest does not outweigh the individual teacher’s above-minimal interest in bodily integrity. And, interestingly, the alternative solutions suggested by appellant Gargiul would, had the Board been flexible, have satisfied the statute under its terms.
All of this is not, of course, to say that a teacher has a right to examination by a physician of choice — only an option to examination by a physician who is of the same sex as the teacher and who is otherwise competent and apt, where bodily integrity is threatened by the very act of examination. If this gives too much recognition to individual sensibilities or sensitivities, I would err on that side rather than on the side of an all powerful state. See Oakes, The Proper Role of the Federal Courts in Enforcing the Bill of Rights, 54 N.Y.U.L. Rev. 911, 922, 931-32 (1979).
. See Craven, Personhood: The Right to be Let Alone, 76 Duke L.J. 699 (1976). There are, of course, those who argue that privacy and personhood are merely a species of substantive due process. See Monaghan, Our Perfect Constitution, 56 N.Y.U.L.Rev. 353, 354 (1981).
. One supposes that bodily integrity in a medical sense is involved at the root of the underlying rationale of Roe v. Wade, 410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (1973). See also Hawaii Psychiatric Society v. Ariyoshi, 481 F.Supp. 1028, 1043-45 (D.Hawaii 1979).