Ninth Circuit Rules That California Private Postsecondary Education Act Burdens Free Speech

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