Pacific Coast Horseshoeing School, Inc. et al v. Grafilo, et al

Filing 67

ORDER signed by District Judge John A. Mendez on 12/3/2021 ORDERING 65 that this litigation between Plaintiffs Pacific Coast Horseshoeing School and Bob Smith and Defendants is settled on the following terms and conditions in this order.(Reader, L)

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15

INSTITUTE FOR JUSTICE
KEITH E. DIGGS (pro hac vice)
PAUL V. AVELAR (pro hac vice)
398 S. Mill Ave. #301
Tempe, AZ 85281
Telephone: [phone]
[e-mail]
[e-mail]
INSTITUTE FOR JUSTICE
SAMUEL B. GEDGE (pro hac vice)
901 N. Glebe Road, Suite 900
Arlington, VA 22203
Telephone: [phone]
[e-mail]

ROB BONTA
Attorney General of California
PAUL STEIN
Supervising Deputy Attorney General
CHAD A. STEGEMAN, State Bar No. 225745
Deputy Attorney General
P. PATTY LI, State Bar No. 266937
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Defendants

BENBROOK LAW GROUP, P.C.
BRADLEY A. BENBROOK (SBN 177786)
STEPHEN M. DUVERNAY (SBN 250957)
400 Capitol Mall, Suite 1610
Telephone: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs Pacific Coast
Horseshoeing School and Bob Smith

16
17

IN THE UNITED STATES DISTRICT COURT

18

EASTERN DISTRICT OF CALIFORNIA

19
20
21
22
23
24
25

PACIFIC COAST HORSESHOEING
SCHOOL, INC., et al.,
Plaintiffs,
v.
KIMBERLY KIRCHMEYER, et al.,
Defendants.

No. 2:17–CV–02217–JAM–GGH
STIPULATION AND ORDER OF
SETTLEMENT
Judge: Hon. John A. Mendez
Action Remanded: July 2, 2020

26
27
28

Plaintiffs Pacific Coast Horseshoeing School, Inc. (“Pacific Coast Horseshoeing School”)
and Bob Smith, on the one hand, and Defendants Kimberly Kirchmeyer and Deborah Cochrane
1
STIPULATION AND ORDER OF SETTLEMENT

2:17-cv-02217-JAM-GGH

1

(collectively, “Defendants”), on the other, respectfully submit this Stipulation and Order of

2

Settlement to the Court for entry and approval.

3
4
5

WHEREAS, this case involves a challenge to California’s ability-to-benefit requirement,
codified at California Education Code § 94904(a) and Cal. Code Regs., tit. 5, § 71770(a)(1);
WHEREAS, in June 2020 the U.S. Court of Appeals for the Ninth Circuit held that

6

California’s ability-to-benefit requirement is a content-based restriction on speech and subject to

7

heightened scrutiny;

8
9
10
11

WHEREAS, in September 2021 the California Assembly passed and the California
Governor signed into law Senate Bill 607;
WHEREAS, Senate Bill 607 repeals California Education Code § 94904, the statute
codifying California’s ability-to-benefit requirement;

12

WHEREAS, Senate Bill 607 will take effect on January 1, 2022;

13

WHEREAS, Senate Bill 607 does not expressly repeal or otherwise amend Cal. Code

14
15
16
17

Regs., tit. 5, § 71770(a)(1);
WHEREAS, as a result of Senate Bill 607, Cal. Code Regs,. tit. 5, § 71770(a)(1) will be
unenforceable on and after January 1, 2022; and
WHEREAS, Plaintiffs Pacific Coast Horseshoeing School and Bob Smith and Defendants

18

now desire to resolve the issues raised in this litigation without further proceedings and have

19

agreed that it is reasonable and necessary to enter into this Stipulation and Order of Settlement;

20

NOW, THEREFORE, IT IS HEREBY STIPULATED, AGREED, and ORDERED that

21

this litigation between Plaintiffs Pacific Coast Horseshoeing School and Bob Smith and

22

Defendants is settled on the following terms and conditions:

23

1.

Defendants shall not enforce the ability-to-benefit requirement, currently codified

24

at California Education Code § 94904(a), against Pacific Coast Horseshoeing School, Bob Smith,

25

or any student or prospective student of Pacific Coast Horseshoeing School.

26

2.

Defendants shall not enforce the ability-to-benefit requirement, currently codified

27

at Cal. Code Regs., tit. 5, § 71770(a)(1), against Pacific Coast Horseshoeing School, Bob Smith,

28

or any student or prospective student of Pacific Coast Horseshoeing School.
2
STIPULATION AND ORDER OF SETTLEMENT

2:17-cv-02217-JAM-GGH

1

3.

Defendants shall not require that Pacific Coast Horseshoeing School or Bob Smith

2

require students to have, as a prerequisite to their enrolling at Pacific Coast Horseshoeing School,

3

any level of education or educational credential, as specified in the ability-to-benefit requirement

4

currently codified at California Education Code § 94904(a) and Cal. Code Regs., tit. 5,

5

§ 71770(a)(1).

6

4.

Pacific Coast Horseshoeing School and Bob Smith may begin to enroll students—

7

regardless of the ability-to-benefit requirement currently codified at California Education Code

8

§ 94904(a) and Cal. Code Regs., tit. 5, § 71770(a)(1)—for any classes beginning on or after

9

January 1, 2022.

10

5.

Within 30 days after this Stipulation and Order of Settlement is entered as an order

11

of the Court, Defendants shall notify private postsecondary educational institutions alerting those

12

institutions that they and any prospective students no longer are subject to the ability-to-benefit

13

requirement, currently codified at California Education Code § 94904(a) and Cal. Code Regs., tit.

14

5, § 71770(a)(1).

15

6.

Within 30 days after this Stipulation and Order of Settlement is entered as an order

16

of the Court, Defendants shall update the website of the Bureau for Private Postsecondary

17

Education to clearly state that private postsecondary educational institutions no longer are subject

18

to the ability-to-benefit requirement, currently codified at California Education Code § 94904(a)

19

and Cal. Code Regs., tit. 5, § 71770(a)(1). Defendants shall also remove the page

20

https://www.bppe.ca.gov/schools/ability_exam.shtml from the Bureau’s website or edit that page

21

to prominently display the following language: “Private postsecondary educational institutions no

22

longer are subject to the ability-to-benefit requirements codified at California Education Code

23

§ 94904(a) and Cal. Code Regs., tit. 5, § 71770(a)(1).”

24

7.

The terms and provisions of this Stipulation and Order of Settlement shall not be

25

used in this action in the event that this Stipulation and Order of Settlement is not approved by the

26

Court or does not become final for any reason. This Stipulation and Order of Settlement shall take

27

effect only upon the Court’s approval and entry of the Stipulation and Order of Settlement. Upon

28

the Court’s approval and entry of this Stipulation and Order of Settlement, the claims of Plaintiffs
3
STIPULATION AND ORDER OF SETTLEMENT

2:17-cv-02217-JAM-GGH

1

Pacific Coast Horseshoeing School and Bob Smith in this action shall be dismissed without

2

prejudice.

3

8.

4

Pacific Coast Horseshoeing School, Bob Smith, and Defendants shall bear their

own costs and fees.

5

9.

The undersigned represent that they are fully authorized to execute and enter into

6

the terms and conditions of this Stipulation and Order of Settlement on behalf of their respective

7

clients.
Respectfully submitted,

8
9

Dated: December 3, 2021.

INSTITUTE FOR JUSTICE

10
/s/ Samuel B. Gedge
SAMUEL B. GEDGE
Attorney for Plaintiffs Pacific Coast
Horseshoeing School and Bob Smith

11
12
13
14

Dated: December 3, 2021.

ROB BONTA
Attorney General of California
PAUL STEIN
Supervising Deputy Attorney General

15
16
17

/s/ Chad A. Stegeman (as authorized on Nov.
30, 2021)
CHAD A. STEGEMAN
Deputy Attorney General
P. PATTY LI
Deputy Attorney General
Attorneys for Defendants

18
19
20
21
22
23
24
25
26

IT IS SO ORDERED.
Dated: December 3, 2021

/s/ John A. Mendez
THE HONORABLE JOHN A. MENDEZ
UNITED STATES DISTRICT COURT JUDGE

27
28
4
STIPULATION AND ORDER OF SETTLEMENT

2:17-cv-02217-JAM-GGH