SPLC urges appeals court to protect Florida college student whistleblowers' First Amendment rights

February 24, 2016     
Contact: Frank LoMonte, Executive Director  
director@splc.org or 202-872-1704

Appeals court urged to protect Florida college student whistleblowers’ First Amendment rights

The Student Press Law Center joined a coalition of national free-speech organizations Wednesday calling on a federal appeals court to reverse the errant ruling of a Florida judge who threw out the free-speech claims of three Valencia College students punished for objecting to a college policy forcing them to undergo vaginal ultrasound tests as part of a class exercise.

A friend-of-the-court brief filed with the Eleventh Circuit U.S. Court of Appeals on behalf of four free-expression groups asks the court to correct the district judge’s erroneous conclusion that complaints about college curriculum are subject to near-total institutional control under the Supreme Court’s Hazelwood standard. The amicus brief was signed by the SPLC and by the Foundation for Individual Rights in Education, the American Society of Journalists and Authors, and the Woodhull Freedom Foundation.

“If this wildly mistaken ruling is allowed to stand up, college students will be subject to discipline, up to and including expulsion, merely for complaining about their schools’ curriculum, no matter how well-founded the complaints,” said attorney Frank D. LoMonte, executive director of the SPLC. “A ruling of this frightening breadth will readily be misused to punish commentators and whistleblowers who call attention to the shortcomings of their colleges.”

The case, Milward v. Shaheen, involves a legal challenge by former Valencia College students Melissa Milward, Elyse Ugalde and Ashley Rose, who were taking a course in sonography when their instructor ordered them to submit to being transvaginal ultrasound test subjects for their classmates. The students objected to the practice on several occasions, including in a departmental questionnaire specifically designed to elicit any reservations about taking part in the procedure. College officials responded by threatening to lower the students’ grades and interfere with their employment prospects; under pressure, Milward and Ugalde submitted to the examinations, but Rose dropped out. The students say that punishing them for expressing viewpoints critical of a college policy violated the First Amendment.

The Supreme Court’s 1988 ruling in Hazelwood School District v. Kuhlmeier lowered the bar for K-12 schools to censor their students’ speech when the speech is regarded as part of a curricular activity, such as a class-produced laboratory newspaper. But the Supreme Court has never said that college students have the same minimal level of free-speech protection, or that the Hazelwood level of authority extends to speech that is not an educational exercise, such as a complaint about a school policy. However, in an October 2015 ruling dismissing the students’ free-speech claims, U.S. District Judge Gregory A. Presnell wrote that the students’ complaints were governed by Hazelwood and therefore unprotected by the First Amendment, because the comments “touch(ed) upon internal school matters of pedagogical and curricular concern.”

“There is a vast difference between speech that is a part of the school curriculum, like a class presentation, versus speech that is simply about the school curriculum, which might be a commentary in the town newspaper, an address before college trustees, or an interview with the local TV station,” LoMonte said. “Speech about flaws in a college’s curriculum is entitled to the full benefit of the First Amendment, and the Court of Appeals must say so clearly for the safety of students everywhere.”

Hazelwood applies only to speech that might be mistaken by its audience for an official school message, the brief explains, and a student’s conversation with an instructor objecting to a college policy cannot possibly be confused with the college’s own official position: 

Plaintiffs expressed concerns about being made to participate in an invasive procedure they were initially made to believe was voluntary. They spoke only to instructors; nothing in the record shows that the students attempted to reach a public audience in a way that, like a newspaper bearing the school’s logo, might be mistaken for a school-sponsored message. That that Plaintiffs were dissenting from and seeking to change the institution’s policies made their speech instantly recognizable to any potential listener as non-school-sponsored. 

The brief also points out that the Hazelwood case cannot be the basis of disciplinary action, because it is about a school’s refusal to lend its name to the sponsorship of its students’ speech, not the authority to suspend or expel a student for speech. 

The brief was prepared and filed with the assistance of volunteer legal counsel Lawrence G. Walters of Walters Law Group in Longwood, Florida, who specializes in First Amendment and individual-rights cases.