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                                                                           [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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