Doe v. Valencia Coll. Bd. of Trs.

• Decision Date: 04 October 2016
• Docket Number: No. 15-15240,15-15240
• Parties: Jane Doe I, Jane Doe II, et al., Plaintiffs, Melissa Milward, Elyse Ugalde, et al., Plaintiffs–Appellants, v. 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.
• Court: U.S. Court of Appeals — Eleventh Circuit

838 F.3d 1207

Jane Doe I, Jane Doe II, et al., Plaintiffs,Melissa Milward, Elyse Ugalde, et al., Plaintiffs–Appellants,

v. 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.

No. 15-15240

United States Court of Appeals, Eleventh Circuit.

Filed: October 4, 2016

Justin Matthew Eisele, Gagnon Eisele, PA, Winter Park, FL, Matthew Aaron Kudzin, Covington & Burling, LLP, Washington, DC, for Plaintiffs–Appellants.

Jeffrey T. Kuntz, GrayRobinson, PA, Fort Lauderdale, FL, Richard E. Mitchell, Sara Huff, GrayRobinson, PA, Orlando, FL, for Defendants–Appellees.

Lawrence G. Walters, Walters Law Group, Longwood, FL, Christopher Robert Dillingham, II, Gagnon Eisele, PA, Winter Park, FL, David Andrew Cortman, Alliance Defense Fund, Lawrenceville, GA, for Amicus Curiae.

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 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 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.

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, 108 S.Ct. 562, 98 L.Ed.2d 592 (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 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 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, 89 S.Ct. 733, 21 L.Ed.2d 731 (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, 89 S.Ct. 733 ). School-sponsored 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, 108 S.Ct. 562. 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...