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Forced Student Ultrasound Is Unconstitutional Search

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By George Khoury, Esq. on October 11, 2016 6:57 AM

The three Valencia College students that filed a civil rights case against their instructors for retaliating against them when they objected to being forced to undergo transvaginal ultrasounds won their appeal. The Federal Appeals Court ruled that the ultrasounds were not only an unconstitutional search, but also that the instructors violated the students' right to free speech.

This case is as shocking as it sounds. The three female students objected to Valencia College's Sonography program's unusual practice of requiring female students to undergo a transvaginal ultrasound at the hands of other students. All three students faced retaliation for objecting and stating they did not want to have the procedure done on them by another student, and all three quit the program as a result of the retaliation they faced.

What's the Big Deal?

Arguably, it makes sense for the program to ask students to undergo the very low risk procedure that the program teaches. But in practice, to make this a requirement is shocking. A transvaginal ultrasound involves inserting a large probe into a woman's vagina, which can be an uncomfortable and embarrassing procedure. To further amplify the discomfort and embarrassment, the students were to undergo the procedure at the hands of fellow students, oftentimes male students.

This would be okay if the program did not make this a requirement, which, while the college asserts it was voluntary, the instructors' retaliation and coercion of students to undergo the procedure make it involuntary in practice. The instructors threatened the students who did not submit to the procedure with lower grades, and, if that wasn't enough, to destroy the students' future careers in the industry.

Court Rules Ultrasound Is Illegal Search

The Federal Appeals Court not only ruled that the retaliation the three students faced violated their First Amendment rights to free speech, but that the procedure itself qualifies as an unlawful search under the fourth amendment. Retaliation for engaging in free speech is protected by 42 U.S.C. section 1983 when it is done by a government (aka state actor). Here, because Valencia College is a public institution, it qualifies as a state actor. The Court ruled that the three students were engaged in free speech when they objected to having the procedure done on them.

The Court also ruled that the procedure itself, though the school was not investigating the students, still qualified as a search under the Fourth Amendment. The Court explained that whenever the government probes a person's body, regardless of intent, it is a search. As such, the Court ruled that the students suffered retaliation under 42 USC section 1983 in violation of their right to be free from illegal searches.

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