by John M. Simpson.
A panel of the U.S. Court of Appeals for the Ninth Circuit recently held that a postsecondary education plaintiff stated a claim that his rights under the First Amendment had been violated by the California Private Postsecondary Education Act of 2009 (PPEA), Cal. Educ. Code § 94800 et seq. Pacific Coast Horseshoeing School, Inc. v. Kirchmeyer, ___ F.3d ___, No. 18-15840 (9th Cir. June 10, 2020). The case was remanded for further proceedings in the district court.
As an apparent response to alleged fraud in postsecondary education programs, the PPEA regulates contracts between students and postsecondary educational institutions in California. Under the statute, a student who does not have a high school diploma or its equivalent (a so-called “ability-to-benefit” student), who seeks to enroll in a postsecondary course of instruction must take an examination prescribed by the U.S. Department of Education and achieve a score demonstrating that the student may benefit from the education and training being offered. At the same time, the statute exempts a number of courses and institutions from its requirements, including courses sponsored by bona fide trade, business, professional or fraternal organizations, fight schools, courses in golf and dancing, and preparation courses for the SAT and the ACT.
In the present case, plaintiff Smith, an experienced farrier, sought to teach horseshoeing to plaintiff Narez, an ability-to-benefit student. Narez contended that none of the ability-to-benefit tests that he would have to take actually tests horseshoeing knowledge or skills. Narez and Smith, together with Pacific Horseshoeing, the only such school in California, brought the action challenging the ability-to-benefit requirement on First Amendment grounds. The district court dismissed the case on the ground that the PPEA merely regulated conduct. The court of appeals reversed.
The state defended the ability-to-benefit requirement on the ground that it does not regulate speech at all but rather is a consumer protection provision that regulates non-expressive conduct and need only survive a rational basis inquiry to be upheld. The panel disagreed. There was “little question that vocational training is speech protected by the First Amendment.” Slip op. at 12. And here, “the PPEA implicates the First Amendment by restricting the rights of both speakers (Smith) and would-be listeners (Narez).” Id. at 13.
The panel did not disagree with the proposition that general regulatory requirements generally do not implicate the First Amendment, but here, the statute required heightened First Amendment scrutiny because it differentiates between speech and speakers. The statute was “riddled with exceptions to the ability-to-benefit rule, and the exceptions turn on one of two things: (1) the content of what is being taught, or (2) the identity of the speaker.” Id. at 15. The act imposes more than a mere incidental burden on speech; it “‘target[s] speech based on its communicative content.’” Id. (quoting Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015)). As the panel summarized its holding:
[W]e agree with the plaintiffs that the PPEA “requires authorities to examine the contents of the message to see if a violation has occurred.” … We thus agree that the statutory scheme here not only implicates speech, but also engages in content discrimination. Moreover, because content discrimination is apparent, the district court should have applied some form of heightened scrutiny.
Id. at 20 (citations omitted).
Because the parties had only disputed whether the First Amendment applies, not whether the PPEA violates the First Amendment, the panel ruled that it was up to “the district court on remand to determine whether this case involves commercial or non-commercial speech, whether California must satisfy strict or intermediate scrutiny … and whether it can carry its burden under either standard.” Id. at 21 (citations omitted).