315 F. Supp. 3d 1195
E.D. Cal.2018Background
- Pacific Coast Horseshoeing School (private vocational school) and owner Bob Smith sought to enroll applicant Esteban Narez, who lacks a high‑school diploma/GED.
- California's Private Postsecondary Education Act requires non‑high‑school graduates to pass a U.S. Dept. of Education prescribed ability‑to‑benefit exam or a Bureau‑approved exam before executing an enrollment agreement.
- The Bureau for Private Postsecondary Education enforces the Act; the School modified admissions to comply and rejected applicants (including Narez) who did not meet the requirement.
- Plaintiffs sued, alleging the ability‑to‑benefit requirement violates the First Amendment rights of the School/Smith to teach and Narez to learn.
- Defendants moved to dismiss under Rule 12(b)(6); the district court treated alleged facts as true and considered whether the Act regulates speech or nonexpressive conduct.
- Court dismissed with prejudice, holding the requirement regulates conduct, not speech, and survives rational basis review as related to protecting students and consumers.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the Act regulate speech or nonexpressive conduct? | The ability‑to‑benefit rule burdens vocational speech and is content‑based. | The rule regulates enrollment/conduct, not teaching or speech. | Act regulates nonexpressive conduct (enrollment requirement), not protected speech. |
| If speech is implicated, what level of scrutiny applies? | Plaintiffs urged First Amendment protection for teaching/learning. | Defendants argued no heightened scrutiny; at most O'Brien analysis. | Court concluded heightened scrutiny not required because regulation targets conduct. |
| Is the Act constitutionally permissible under rational basis review? | Plaintiffs said requirement is unnecessary and burdens access. | Defendants said requirement is rationally related to legitimate state interests (student protection, consumer deception prevention). | Upheld under rational basis: conceivably related to protecting students and public. |
| Should plaintiffs be granted leave to amend? | Plaintiffs sought chance to amend. | Defendants argued amendment would be futile. | Dismissal with prejudice; amendment futile because legal defect not curable by more facts. |
Key Cases Cited
- Rumsfeld v. FAIR, 547 U.S. 47 (law compelling access regulated conduct, not speech)
- Pickup v. Brown, 740 F.3d 1208 (9th Cir.) (regulation of professional conduct did not trigger First Amendment protection for the conduct)
- Holder v. Humanitarian Law Project, 561 U.S. 1 (statute regulating material support implicated speech because conduct consisted of communicating a message)
- Sorrell v. IMS Health Inc., 564 U.S. 552 (content‑based restrictions on speech distinguishable from regulations of conduct that incidentally burden speech)
- Nat'l Ass'n for Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043 (9th Cir.) (rational basis applies unless fundamental right or suspect classification implicated)
- Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (academic freedom exists but does not exempt schools from reasonable regulation)
- United States v. O'Brien, 391 U.S. 367 (test for regulation of nonexpressive conduct implicating incidental speech)