ORLANDO, Fla. (CN) – A federal judge ruled that a Florida college must face claims that it violated female students’ right to free speech and discriminated against them on the basis of sex by forcing them to undergo in-class vaginal ultrasounds for a sonography program.
Former students Melissa Milward, Elyse Ugalde and Ashley Rose were enrolled in Valencia College’s medical diagnostic sonography program and claim they were told they’d have to perform vagina ultrasounds on each other to pass the class.
The three former students sued the public college and several of its employees in 2015 after the employees allegedly retaliated against them for initially refusing to undergo the ultrasounds as part of their education. Sonography is a type of medical imaging using ultrasound.
In March 2014, Milward and Ugalde agreed to do the ultrasounds, but allegedly protested. Rose refused and suffered academically, she claims.
The procedure involves a sonographer inserting a large probe into the vagina in order to see the reproductive organs, including the cervix.
Since many women experience pain during the procedure, the probe is heavily lubricated, and sometimes the sonographer will stimulate the patient so the probe goes in easier.
Although a student’s agreement to undergo the transvaginal ultrasounds is supposed to be voluntary, college employee defendants — program chair Barbara Ball, clinic and laboratory coordinator Linda Shaheen, lab tech Maureen Bugnacki and instructor Suda Amodt — are alleged to have successfully pressured the two students into undergoing the procedure, even though one of their peers was a man.
Milward, Ugalde and Rose claim they were harassed and threatened after objecting to the ultrasounds. The alleged harassment included threatening their grades and future employment and threatening to exclude them from in-class labs and boot them out of the program.
The three women say they ended up quitting the program because nothing was done about their complaints.
A federal judge dismissed their claims, finding they had not engaged in protected speech under the First Amendment and that the transvaginal ultrasounds were not a search.
However, the 11th Circuit reversed last October and reinstated the case, finding that inserting a probe into a woman’s vagina is plainly a search when performed by a government entity like a public college.
On Friday, U.S. District Judge Gregory Presnell disagreed with the 11th Circuit on the issue of an unconstitutional search and dismissed the women’s Fourth Amendment claims.
“Milward and Ugalde were not children who were strip searched for illicit drugs,” Presnell wrote, citing the U.S. Supreme Court’s 2009 ruling in Safford v. Redding. “They were adults who enrolled themselves in a highly competitive medical program and exposed their bodies as part of an in-class medical procedure. And the plaintiffs have failed to present any other case that shows the conduct here was prohibited by clearly established law, at least under the Fourth Amendment.”
However, Judge Presnell allowed all other claims against the school and its employees to stand, including the plaintiffs’ First Amendment retaliation claim.
“The adverse action complained of here consists of threats to reduce the plaintiffs’ grades; threats to exclude the plaintiffs from practicing transvaginal ultrasounds; threats to blacklist the plaintiffs at local hospitals; and threats to force the plaintiffs out of school,” the 20-page ruling states. “Given these threats, it is reasonable to conclude that a person of ordinary firmness would withhold her objections rather than risk her academic standing and future employment.”
The women can also sue under Title IX of the Civil Rights Act, Presnell ruled, because they allege that Valencia held female students in its sonography program to a different standard than male students because of their sex.
In addition, the judge allowed Milward and Ugalde’s claims of sexual harassment to proceed.
“During these ultrasounds, Milward and Ugalde were forced to expose their genitals to their classmates and teachers, and the individual defendants instructed students performing the ultrasounds to move the probe ‘back and forth and up and down in the vaginal canal’ when such motion was not medically necessary,” Presnell wrote. “Considering Milward and Uglade’s previous objections to the procedure, this unnecessary motion could certainly be unwelcome touching of a sexual nature, that is, sexual harassment.”
The judge also denied Valencia’s motion to dismiss claims of battery, negligent infliction of emotional distress, and negligent hiring.
A Valencia spokesperson did not immediately respond Wednesday to a request for comment on the ruling.