Pacific Coast Horseshoeing School, Inc. et al v. Grafilo, et al
Filing
21
ORDER signed by District Judge John A. Mendez on 4/11/18 ORDERING for the reasons above, the Court GRANTS Defendants' motion to dismiss with prejudice.(Becknal, R)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
12
PACIFIC COAST HORSESHOEING
SCHOOL, INC.; BOB SMITH; and
ESTEBAN NAREZ,
13
14
15
16
17
Plaintiffs,
No. 2:17-cv-02217-JAM-GGH
ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS
v.
DEAN GRAFILO, et al.,
Defendants.
Pacific Coast Horseshoeing School (the “School”) and its
18
owner, Bob Smith (“Smith”), seek to enroll a potential student,
19
Esteban Narez (“Narez”).
20
Postsecondary Education Act of 2009 (the “Act”), CAL. EDUC. CODE
21
§§ 94800 et seq., the School may not enroll students unless they
22
meet ability-to-benefit requirements.
23
those requirements, the Act required the School to deny his
24
application.
25
filing a Complaint in this Court which alleges that the Act
26
abridges the School’s and Smith’s First Amendment right to teach
27
horseshoeing and Narez’s First Amendment right to learn
28
horseshoeing.
Under California’s Private
Because Narez did not meet
Plaintiffs elected to legally challenge the Act by
1
1
Defendants have moved to dismiss.
Mot., ECF No. 15.
2
Plaintiffs oppose dismissal.
Opp’n, ECF No. 18.
For reasons
3
explained below, the Court grants Defendants’ motion. 1
4
5
I.
BACKGROUND
6
A.
The Private Postsecondary Education Act of 2009
7
In the Act, the California legislature expressed concern
8
about the value of degrees issued by private postsecondary
9
schools and the lack of protection for the schools’ students and
10
consumers of their services.
11
promulgating the Act, the legislature sought to ensure:
12
CAL. EDUC. CODE § 94801(b).
In
(1) Minimum educational quality standards and
opportunities for success for California students
attending private postsecondary schools in California.
13
14
(2) Meaningful student protections through essential
avenues of recourse for students.
15
(3) A regulatory structure that provides for an
appropriate level of oversight.
16
17
(4) A regulatory governance structure that ensures
that all stakeholders have a voice and are heard in
policymaking by the bureau.
18
19
(5) A regulatory governance structure that provides
for accountability and oversight by the Legislature
through program monitoring and periodic reports.
20
21
(6) Prevention of the harm to students and the
deception of the public that results from fraudulent
or substandard educational programs and degrees.
22
23
24
CAL. EDUC. CODE § 94801(d).
The Bureau for Private Postsecondary Education (the
25
26
27
28
1
This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for February 27, 2018. In deciding this motion, the
Court takes as true all well-pleaded facts in the complaint.
2
1
“Bureau”) regulates private postsecondary educational
2
institutions.
3
regulated institutions that meet minimum operating standards.
4
CAL. EDUC. CODE § 94887.
5
Chief of the Bureau, which is located within California’s
6
Department of Consumer Affairs.
7
Defendant Dean Grafilo is the appointed Director of California’s
8
Department of Consumer Affairs.
CAL. EDUC. CODE § 94875.
The Bureau approves
Defendant Michael Marion serves as
Compl., ECF No. 1, p. 2 ¶ 11.
Id. ¶ 12.
9
Before a regulated institution can execute an enrollment
10
agreement with a student who did not graduate high school or pass
11
an equivalency examination, such as the General Educational
12
Development (GED) test, that student must pass “an independently
13
administered examination from the list of examinations prescribed
14
by the United States Department of Education” or a Bureau-
15
approved examination relevant to the intended occupational
16
training.
17
REGS. § 71770(a)(1).
CAL. EDUC. CODE §§ 94811, 94904(a–b); 5 CAL. CODE
18
B.
Pacific Coast Horseshoeing School, Smith, and Narez
19
Horseshoeing is the practice of shaping metal to be fitted
20
and nailed into a horse’s hoof.
Compl. at 2 ¶ 16.
21
shoes horses is called a farrier.
22
farriering does not require a license.
23
Smith founded the School in 1991.
Id. ¶ 17.
A person who
In California,
Id. ¶ 21.
Id. at 3 ¶¶ 26–27.
Five
24
times each year, the School offers a full-time eight-week
25
curriculum to about 12 to 14 students.
26
curriculum includes classroom session and practice removing,
27
shaping, and applying horseshoes to horses.
28
sessions focus on horseshoeing theory; horse anatomy, movement,
3
Id. ¶¶ 28, 32.
Id. ¶ 28.
That
Classroom
1
and lameness; and business advice on client management, self-
2
employment, and interaction with barns, trainers, and
3
veterinarians.
4
written or oral examinations.
5
School’s tuition costs $6,000.
6
Id. ¶ 30.
The School evaluates students by
Id. ¶ 31.
As of this year, the
Id. ¶ 33.
The School qualifies as a regulated institution under the
7
Act because it (1) is a private entity located in California that
8
(2) offers a curriculum to the public for a vocational purpose
9
and (3) charges tuition.
Id. at 4 ¶¶ 34–36; see also CAL. EDUC.
10
CODE §§ 94857, 94858.
11
enroll students who have high school diplomas or recognized
12
equivalents, or have passed ability-to-benefit examinations.
13
CAL. EDUC. CODE § 94904.
14
The Act thus requires the School only
Plaintiffs assert that earning a passing score on an
15
ability-to-benefit examination is unnecessary for horseshoeing.
16
Compl. at 5 ¶ 46.
17
educational prerequisites to admission, does not accept state or
18
federal student loans.
19
students who are unable to benefit from the School’s curriculum
20
because he refunds all but $250 of tuition paid if continuing the
21
course is not in the student’s best interest after the first
22
week.
The School, which previously did not impose
Id. at 6 ¶¶ 52–53.
Smith does not charge
23
Id. ¶ 54.
The School was first inspected by the Bureau in 2016.
Id.
24
¶ 55.
The Bureau determined that the School’s admissions
25
requirements did not comply with the Act because it lacked
26
admission prerequisites.
27
Bureau would recognize his practice of partially refunding
28
tuition after the first week to non-benefiting students as an
Id. ¶ 56.
4
Smith inquired whether the
1
alternative to having students pass an ability-to-benefit
2
examination.
3
proposal as an alternative to the Act’s requirements.
4
Accordingly, in 2017, Smith modified the School’s admissions
5
standards to call for a high school diploma, its equivalent, or
6
passage of an ability-to-benefit examination, as required for
7
Bureau approval.
8
School has since rejected otherwise qualified students who did
9
not meet these academic qualifications.
10
Id. at 6–7 ¶ 57.
The Bureau did not accept Smith’s
Id. at 7 ¶¶ 58–59.
Id.
Because of this change, the
Id. ¶ 60.
One such student turned away due to admissions standards
11
changes is Plaintiff Esteban Narez.
12
school and has not subsequently earned his high school diploma or
13
GED.
14
sparked Narez’s passion for horses.
15
alongside a farrier, Narez sought to become a farrier himself.
16
Id. at 8 ¶¶ 70–73.
17
GED or an ability-to-benefit examination would conflict with his
18
work schedule and would not substantially advance his career.
19
Id. at 8–9 ¶¶ 78–79.
20
it rejected his application because he did not meet the Act’s
21
ability-to-benefit requirements for enrollment at a private
22
postsecondary educational institution.
23
Compl. at 7–8 ¶¶ 63–64, 75.
Narez dropped out of high
Jobs in the equine field
Id. ¶¶ 67–68.
After working
Narez believes studying for and taking the
Although the School wanted to admit Narez,
Id. ¶¶ 76–77, 81.
Plaintiffs’ Complaint seeks a judicial declaration that the
24
ability-to-benefit requirement is unconstitutional and injunctive
25
relief to this effect.
26
///
27
///
28
///
Prayer for Relief ¶¶ A, C.
5
1
II.
OPINION
2
Plaintiffs argue that California’s ability-to-benefit
3
requirement as applied violates their First Amendment rights by
4
restricting Smith and the School from teaching their
5
horseshoeing curriculum and preventing the enrollment of Narez,
6
who has not proven his ability to benefit under the Act.
7
at 9–11 ¶¶ 89–101.
8
assert the Act regulates non-expressive conduct and survives
9
rational basis review.
Compl.
Defendants move to dismiss because they
Mot. at 3–7.
Alternatively, Defendants
10
argue that the Act is content-neutral and satisfies the test set
11
forth in United States v. O’Brien, 391 U.S. 367, 377 (1968).
12
Id. at 8–11.
13
Plaintiffs counter that the Court should not resolve First
14
Amendment claims at the motion to dismiss stage.
Opp’n at 10.
15
Nevertheless, where a court accepts all of the plaintiffs’
16
allegations as true and construes all facts in their favor, the
17
Ninth Circuit has not found early resolution of First Amendment
18
claims to be problematic.
19
Ass’n v. City & Cty. of San Francisco, 881 F.3d 1169 (9th Cir.
20
2018) (affirming grant of judgment on the pleadings to
21
government on First Amendment claim); Taub v. City & Cty. of San
22
Francisco, 696 F. App’x 181, 184 (9th Cir. 2017) (affirming
23
dismissal of the plaintiffs’ First Amendment claim on a 12(b)(6)
24
motion).
See, e.g., San Francisco Apartment
25
A.
The Extent to Which Speech Is Implicated
26
“The First Amendment applies to state laws and regulations
27
through the Due Process Clause of the Fourteenth Amendment.”
28
Nat’l Ass’n for Advancement of Psychoanalysis v. Cal. Bd. of
6
1
Psychology, 228 F.3d 1043, 1053 (9th Cir. 2000) (“NAAP”).
2
the Fourteenth Amendment, “a statute is required to bear only a
3
rational relationship to a legitimate state interest, unless it
4
makes a suspect classification or implicates a fundamental
5
right.”
6
purveyors, and aspiring farriers are not members of suspect
7
classes entitled to heightened scrutiny, the Court must examine
8
whether the ability-to-benefit requirement implicates the
9
fundamental right of free speech.
10
Id. at 1049.
Under
Because horseshoeing schools, their
The Court must first determine whether the Act regulates
11
speech or conduct.
12
Cir. 2014).
13
protected expression are distinct from restrictions on economic
14
activity or, more generally, on nonexpressive conduct.”
15
v. IMS Health Inc., 564 U.S. 552, 567 (2011).
16
the latter, “the First Amendment does not prevent restrictions
17
directed at commerce or conduct from imposing incidental burdens
18
on speech.”
19
Pickup v. Brown, 740 F.3d 1208, 1225 (9th
The Supreme Court instructs that “restrictions on
Sorrell
In the case of
Id.
Defendants provide several sources of binding authority in
20
support of their argument that the ability-to-benefit
21
requirement regulates conduct, not speech.
22
Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 62
23
(2006) (“FAIR”) (holding that a law compelling publicly funded
24
law schools to offer the military equivalent access to campus as
25
other employers regulated conduct); Pickup, 740 F.3d at 1229
26
(holding that a law prohibiting mental health providers from
27
providing sexual orientation change efforts therapy to minors
28
regulated conduct).
See Rumsfeld v.
In FAIR, the Supreme Court found that the
7
1
Solomon Amendment regulated “conduct, not speech” because “[i]t
2
affects what law schools must do—afford equal access to military
3
recruiters—not what they may or may not say.”
4
Similarly, in Pickup, the Ninth Circuit concluded that a state
5
law that allowed licensed therapists to discuss the pros and
6
cons of sexual reorientation therapy with their patients, but
7
prohibited that therapy as a treatment for minors, regulated
8
conduct.
9
547 U.S. at 60.
740 F.3d at 1229.
Plaintiffs counter that this issue is controlled by the
10
Supreme Court’s decision in Holder v. Humanitarian Law Project,
11
561 U.S. 1 (2010).
12
law, which prohibited the provision of “material support or
13
resources” to certain foreign organizations that engage in
14
terrorist activity, regulated speech and required a more
15
demanding standard of First Amendment review.
16
Although the law was directed at conduct, “the conduct
17
triggering coverage under the statute consist[ed] of
18
communicating a message,” meaning the law regulated speech.
In Holder, the Supreme Court held that a
Id. at 28.
Id.
19
Plaintiffs argue that the regulation here is triggered by
20
the fact that their speech is vocational in content, rendering
21
the Act a content-based speech restriction.
22
the text of the Act belies this interpretation.
23
above, the Act’s requirements apply to schools that qualify
24
under California Education Code Sections 94857 and 94858.
25
mere fact that a school teaches vocational skills is
26
insufficient to bring an institution under the Act’s umbrella
27
unless the school is also private, operating in California, and
28
charging tuition.
See id.
Opp’n at 5.
But
As mentioned
Further, the ability-to-benefit
The
8
1
requirement is not triggered by vocational teaching, but rather
2
by executing an enrollment agreement.
3
§ 94904(a).
CAL. EDUC. CODE
4
Additionally, as the Ninth Circuit noted in Pickup, the law
5
at issue in Holder was extremely broad: it completely barred all
6
“communicat[ion of] information about international law and
7
advocacy to a designated terrorist organization.”
8
1230.
9
nearly as far-reaching.
740 F.3d at
The reach of the ability-to-benefit requirement is not
10
Much like Pickup, the Act does not restrain Smith and the
11
School from “imparting information,” “disseminating opinions,”
12
or “communicating a message.”
13
Plaintiffs argue their speech is being restricted, the only
14
thing that the School cannot do is execute an enrollment
15
agreement with a student who has not demonstrated an ability to
16
benefit under the Act.
17
ability may be shown by passing an examination prescribed by the
18
United States Department of Education, id. at § 94904(a), or by
19
passing a Bureau-approved examination that is relevant to the
20
intended occupational training, id. at § 94904(b). 2
21
740 F.3d at 1230.
While
CAL. EDUC. CODE § 94904(a).
That
Nothing in the Act prohibits Smith and the School from
22
sharing information and communicating about horseshoeing
23
generally.
24
horseshoeing outside of enrollment at a private postsecondary
25
2
26
27
28
Nothing prohibits Narez from learning about
Accepting all allegations in the Complaint as true, the School
has not availed itself of the option to propose a different
examination, under subsection (b),that would be more relevant to
its course material. Similarly, Narez has not attempted to take
any ability-to-benefit examination, much less alleged that he
lacks the competence to pass such an examination.
9
1
educational institution prior to passing an ability-to-benefit
2
examination.
3
As Defendants highlight, under Plaintiffs’ conception of
4
speech, nearly every regulation of postsecondary education would
5
require First Amendment scrutiny because teaching involves
6
speech.
7
activity, such as private education, will always be speech-
8
adjacent because commerce relies on the communication of ideas.
9
Courts have not held, however, that these incidental burdens on
Reply, ECF No. 19, p. 2.
Regulations on economic
10
speech caused by the regulation of commerce infringe on
11
fundamental rights under the First Amendment.
12
552, 566–67 (2011).
Sorrell, 564 U.S.
13
B.
Rational Basis Review
14
If a law regulates non-expressive conduct, rather than
15
speech, the law “must be upheld if it bears a rational
16
relationship to a legitimate state interest.”
17
at 1231.
18
stated purposes,” so long as “the government could have had a
19
legitimate reason for acting as it did.”
20
Advancement of Psychoanalysis v. California Bd. of Psychology,
21
228 F.3d 1043, 1050–51 (9th Cir. 2000) (quoting Dittman v.
22
California, 191 F.3d 1020, 1031 (9th Cir. 1999)).
23
“need only determine whether the [law] has a ‘conceivable basis’
24
on which it might survive rational basis scrutiny.”
25
Pickup, 740 F.3d
The government’s action need not “actually advance its
Nat’l Ass’n for
The Court
Id.
Educational institutions have a right to academic freedom
26
under the First Amendment.
Regents of Univ. of California v.
27
Bakke, 438 U.S. 265, 312 (1978).
28
not mean that an educational institution may use the First
10
Yet that academic freedom does
1
Amendment to shield itself from government regulation and
2
oversight rationally related to a valid government purpose.
3
Illinois Bible Colleges Ass’n v. Anderson, 870 F.3d 631, 642
4
(7th Cir. 2017), as amended (Oct. 5, 2017), cert. denied sub
5
nom. Illinois Bible Colleges Ass’n v. Cross, No. 17-960, 2018 WL
6
325305 (U.S. Feb. 20, 2018) (holding that the state did not
7
infringe on the schools’ “right to free speech by regulating
8
degree-issuing post-secondary education”); Nova Univ. v. Educ.
9
Inst. Licensure Comm’n, 483 A.2d 1172, 1181 (D.C. 1984)
See
10
(“Schools are not shielded by the First Amendment from
11
governmental regulation of business conduct deemed detrimental
12
to the public merely because they are engaged in First Amendment
13
activities.”)
14
The Act’s legislative findings detail that “[n]umerous
15
reports and studies have concluded that California’s previous
16
attempts at regulatory oversight of private postsecondary
17
schools under the Department of Consumer Affairs ha[d]
18
consistently failed to ensure student protections or provide
19
effective oversight of private postsecondary schools.”
20
EDUC. CODE § 94801(c).
21
requirements for private postsecondary educational institutions,
22
the Act aimed to ensure that these schools would have “[m]inimum
23
educational quality standards and opportunities for success” and
24
an “appropriate level of oversight.”
25
§ 94801(d)(1,3).
26
“[p]revention of the harm to students and the deception of the
27
public that results from fraudulent or substandard educational
28
programs and degrees.”
CAL.
In adding additional operational
CAL. EDUC. CODE
The Act further sought to ensure the
CAL. EDUC. CODE § 94801(d)(6).
11
1
California has a legitimate state interest in preventing
2
private postsecondary schools operating in the state from
3
harming students and deceiving the public.
4
prevent harm and deception is rationally related to the
5
requirement that students at private postsecondary educational
6
institutions show sufficient competency to benefit from that
7
education.
8
plausible that the legislature thought requiring students to
9
prove their ability to benefit through examinations or diplomas
That desire to
See CAL. EDUC. CODE §§ 94904, 94811.
It is
10
would improve the students’ opportunities for success at
11
postsecondary institutions, and that is enough to sustain the
12
Act.
13
2013).
14
See Romero–Ochoa v. Holder, 712 F.3d 1328, 1331 (9th Cir.
While Plaintiffs believe that speech-adjacent paternalism
15
“has no place in the American legal landscape,” Opp’n at 1,
16
precedent does not support using the courts as a tool to
17
substitute Plaintiffs’ preferences for those of the state’s
18
elected representatives.
19
Co., 449 U.S. 456, 464 (1981) (“States are not required to
20
convince the courts of the correctness of their legislative
21
judgments.”); Ferguson v. Skrupa, 372 U.S. 726, 729 (1963)
22
(“[I]t is up to legislatures, not courts, to decide on the
23
wisdom and utility of legislation.”).
24
does not give courts the authority to invalidate a state
25
regulation every time an individual finds it to be unnecessary
26
or inconvenient.
27
28
Cf. Minnesota v. Clover Leaf Creamery
The Fourteenth Amendment
Therefore, the Court finds that the Act and its ability-tobenefit requirement are rationally related to the legitimate
12
1
government interest of protecting students and the public from
2
harm and deception.
3
4
C.
Leave to Amend
5
The Court need not grant leave to amend where amendment
6
would be futile.
7
F.3d 1043, 1049 (9th Cir. 2006).
8
Plaintiffs’ Complaint does not state a claim as a matter of law.
9
Plaintiffs have pointed to no facts suggesting amendment could
10
Deveraturda v. Globe Aviation Sec. Servs., 454
As explained above,
rectify this issue, making dismissal with prejudice appropriate.
11
12
13
14
15
16
III.
ORDER
For the reasons above, the Court GRANTS Defendants’ motion
to dismiss with prejudice.
IT IS SO ORDERED.
Dated: April 11, 2018
17
18
19
20
21
22
23
24
25
26
27
28
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?