“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
— First Amendment to the Constitution of the United States
Esteban Narez wants to learn how to properly trim and shoe a horse. Bob Smith, owner of Pacific Coast Horseshoeing School, wants to teach Narez how to do it. It’s a simple and mutually beneficial arrangement, at least until the state of California enters the picture.
The state government doesn’t want Smith to teach Narez. In fact, it’s actively trying to stop his hoof-care education from happening. Why? Because Narez does not have a high school diploma or an equivalent.
It’s important to note that anyone in the United States — including California — can legally trim or shoe a horse without an education, certification, board examination, or a license. Yet, California legally requires Narez to have a high school diploma or an equivalent so that Smith and his Pacific Coast Horseshoeing School (PCHS) instructors can teach him how to do it properly?
“This lawsuit is about so much more than horseshoeing,” Smith says. “People cannot allow government agencies to pick winners and losers of life’s lottery. A grown man wants to spend his own money in an attempt to improve his life, and the biggest obstacle is a government agency. Do the American people think that’s OK?”
Smith, PCHS and Narez partnered with the Institute for Justice in 2017 to file a lawsuit alleging that the state of California is violating their Constitutional First Amendment rights to teach and learn farriery. The U.S. District Court for the Eastern District of California dismissed the case after it found that the state did not “burden the plaintiffs’ free speech.” The 9th Circuit Court of Appeals disagreed and recently reversed the dismissal, remanding the case back to the district court. The state plans to file a petition for rehearing.
Illegal to Teach
California’s Private Postsecondary Education Act of 2009 (PPEA) was designed with the intention of stopping “diploma mills” — schools that prey upon underqualified students by issuing bogus credentials after saddling them with a large student loan debt. However, as is often the case, unintended consequences occur.
California’s law is modeled after a federal law regulating student loans, but it goes one step further. The U.S. government screens students who apply for federally funded loans to ensure the material that’s being taught can be understood and learned. However, federal law doesn’t restrict trade or vocational schools from accepting students who pay for their own tuition. California applies its law to both. PCHS does not accept student loans.
To protect these students, California not only enacted the aforementioned educational requirements, but it also requires some (please note the emphasis; we’ll get circle back to this later) private schools, such as PCHS, to administer a test that is approved by the U.S. Department of Education to gauge a student’s proficiency in math, reading, writing and other criteria. California threatened to shut down PCHS since Smith does not require his students to take the test.
“When California started requiring that my students obtain a GED or pass a test, they made it illegal to teach job skills to those who need them most,” Smith says. “Horses don’t do math and horses don’t speak English. It makes no sense to require a high school education to learn a trade that was around for centuries before the printing press came along.”
Attorneys at the Institute for Justice believe this is a clear-cut violation of their Constitutional right to freedom of speech.
“Both teaching and learning are protected by the First Amendment,” says Keith Diggs, an Institute for Justice attorney who is representing PCHS, Smith and Narez. “Just like writing a book or making a video is protected by the First Amendment, so is teaching. That doesn’t change just because someone pays tuition or gets paid to teach.”
They’re not alone. The case is being closely watched by constitutional scholars and law schools. Eugene Volokh, the Gary T. Schwartz professor of law at the UCLA School of Law, filed an amicus brief supporting PCHS on behalf of himself and several UCLA professors. The brief not only argues that the PPEA violates their First Amendment rights, but it also fails its intended purpose — protecting students from fraudulent diploma mills.
“The Act is not narrowly tailored to the government interest in preventing fraud, or even in protecting students from wasting money,” according to the brief. “For many vocations, including horseshoeing, a high school education and test-taking ability are not required for effective performance. Indeed, these are among the vocations that may often earn the best living for people without high school diplomas. And rough proxies for supposedly fraudulent speech that risk chilling free speech cannot pass the strict scrutiny required for content-based speech restrictions.”
No Education Necessary for Flying
The opinion that matters most rests in the judicial branch, which by virtue of the Constitution is empowered to interpret the laws made by the legislative branch. The 9th Circuit Court of Appeals was blunt in dissecting California’s law, noting that the PPEA plays favorites.
“If Smith were running a flight school or teaching golf, dancing or contract bridge, Narez could enroll without restriction,” wrote Judge Jay S. Bybee in the court’s unanimous opinion. “We conclude that plaintiffs have stated a claim that the PPEA burdens their rights under the First Amendment. We therefore reverse and remand to the district court for further proceedings.”
It’s important to point out that the court’s opinion does not contest that California cannot regulate for-profit teaching, rather, it must demonstrate why PCHS cannot enroll Narez in its classes.
“It’s not enough for the government to say, ‘We think high-school dropouts aren’t sophisticated enough to learning horseshoeing,’” Diggs says. “If that’s what the government thinks, it has to back it up with evidence. We are confident that California will not be able to justify prohibiting Bob and PCHS from teaching, or Esteban learning, horseshoeing.”