good morning or honors as the court knows professor valek has five minutes of our time and i would like to try and reserve two minutes for a bottle of if that's at all possible so you'll need to stop in at thirteen when you're down to i'm sure after thirty minutes we have seven minutes left yes ron your honor roughly one thousand years ago well before the invention of high school people learned st learned how to shoot horses esteban nora's also does not have a high school diploma he simply wants to take an eight week class at the pacific coast horseshoeing school p c h us to learn the same skill without having to put his life on hold to take and pass an irrelevant government test st in from a twelve b six dismissal the sole question is whether the st amendment applies to restrictions on teaching and learning that turn on the content of what is taught and learned here the vocational skill of horseshoeing as opposed to a recreational california tacitly recognizes the st amendment applies to restrictions on teaching and learning but claims here that it is not regulating teaching and learning just contracting for teaching and learning counsel and i've got a couple of questions just about how the statute functions and if you could just help me with that and i may put these questions to the to the state as well so it appears that the california regulates this by through the certificate of the and four says that the student shall not enroll so if if the if the if the school had gone ahead and unrolled your client without obtaining the certificate how does the state enforce this is  the force against the student is in force because the school is in force against the school and what do they do they so i mean the e u at that point you are no longer meeting the minimum operating standards and if you're not meeting the minimum operating standards you can be fined or theoretically you can have your license as a school pulled from you and so what the statutes say is you must execute an enrollment agreement a student shall enroll solely by means of executing an enrollment agreement that's ninety four thousand nine hundred and two dollars and then of course it defines  enrollment greed agreement later and it's very clear that a suit is there a private remedy there as well is that is if if your client had enrolled completed the course and then not made the payments that were there were owing to the school is the agreement not enforceable that is the contract that you would have a defense against against a suit by the school for the for his tuition you know that's that's that's the provision in to be an enrollment agreement is not enforceable i wonder whether the private contractor and i'm trying to figure out how this statute is inforced your honor i confess i don't know whether there's a private remedy here i do know that the student can't it's illegal for a student to waive the provisions of the code and so a student can't waive the requirement of and enroll management so i take that as being enrolled you have to have an enrollment argument you can only enroll through an interim enrollment agreement and you can't get around that requirement in any way shape or form that's that's the rick those are the requirements that we're operating under so my clients would very much like to enter into an enrollment agreement and they are prohibited from doing so because mr norris does not have a high school diploma or its equivalent is therefore deemed an ability to benefit student and he has to take and pass a government exam before he is then allowed to enter into this very specific kind of agreement is this is i want to be clear this is a very specific kind of contract it is a contract for speech mr norris isn't prohibited from entering into any other kind of contract he can spend as much money as he wants learning a recreational skill he can spend as much money as he wants on a contract for house car or lots of other things it's only because of the way the statutes are written it's when he enters into a contract for vocational teaching that he is then regulated and that's the sort of thing that the u s supreme court has said is a restriction on speech the government may not restrict contracts for speech specifically this isn't a sort of as we've talked about in our reply brief this isn't a sort of general regulation that applies generally this is a restraint regulation as california recognizes it is very specifically aimed at vocational teaching as california says in its brief as justification for this restriction it's the prospect of being able to earn a living and pursue a career that makes people like mr norris who don't have a high school diploma who are vulnerable to making bad decisions about their education now whether that's true or not we we don't think it's true that's not the point on a twelve b six motion it's true that the justification for the regulations very much turns on the fact that this is vocational teaching that is the content of what is being taught and learned with his twelve b six motion what is the issue squarely in front of me is that you have not plausibly alleged that this would be a restriction on speech at that point the burden which is the government that's my understanding  i take the district court's opinion here to say well i don't st of all i don't think i don't know whether the district court quite felt that way but that's what i don't think the parties here disagree on the facts and certainly as pled what they say is california law restricts my clients from entering into an interim agreement that is a contract for vocational speech and that is therefore a restriction on our ability to teach and learn that's a st amendment problem but i think it's the last part is that it's a st amendment problem the district court disagreed with ok but what i have to find is given your complaint and this motion to dismiss it seems to me the issue in front of me is whether you have plausibly alleged that this examination or recall where restriction protected speech at that point if you're plausibly alleged it then the burden shifts to them that is correction or we agree with that and again we believe that the complaint here does possibly allege a restriction on our ability to speak it is illegal for bob smith n p c h s to enroll to teach a vocational skill to esteban ours or anyone else without a high school diploma that is i think very clearly a restriction on teaching and therefore restriction on speech and we the dentist and as i understand it your client can execute this agreement unless he takes a test or has other qualifications that is correct or esteban norris may not x may not enter into an enrollment agreement and if he can't pass the test since he has no other qualifications then he cannot execute degree that is correct  know how does this how does this differ from any other requirements that the state may impose upon of occasional school for instance they may one of their requirements here is that there has to be a school performance fact sheet there has to  you may have a requirement that the teachers have some level of certification there may be curriculum requirements how does this differ from any other requirement or do you feel they are all restrictions on speech so your honor there are lots of things that the state of california can of course do which wouldn't trigger st amendment issues st of all it subsidies student loans this court has made clear that there is no st amendment right to have a government subsidy and so restrictions on student loans therefore don't really implicate the st amendment our client doesn't take student loans and therefore that's not really an issue why should they have to make a difference i mean why should it be that we're not going to waste government money but we can raise the students money  your own because there are different interest interests at play there the government has its own has its own interest in deciding how its money is spent that's from the supreme court that's of course reagan versus taxation with representation of washington but when we're talking about people's ability to make their own decisions about their own education the st amendment does apply as the cases that we cited in our opening brief and as the cases that professor of all in his micus talked about so there are those  cases out there that recognize that this sort of teaching and learning is protected by the st man and again here the very specific requirement that we're talking about turns entirely on the content of what is taught in born again this isn't a general restriction that that we're claiming an exemption from this is a restriction that is pointed at our clients because of what they want to because of the teaching and the learning that they want to engage in so here the you know going back to your honor's question the st question the st question in any st amendment case is one is this restricting or regulating a person's speech and there are lots of no ways that the government can regulate schools including schools that don't trigger these sorts of questions so for example you can require any business to pay taxes that's that's well recognized but when you aim say those taxes specifically at at st amendment activities then the courts say no no no that's not allow and so general business taxes of course can be assessed to a school but if you but again isn't that the government's duty if you have plausibly alleged this freedom of speech then the government has the burden to come forth with all the reasons why this restriction is ok right absolutely so all of these questions that we now positing are really not of the motion does miss stage but it never another stage the government has to come forward and say they've got a reason to do what they have to do that is correct and let me go on further freedom of speech and let the district court handle whether it's content based on what scrutiny apply you can certainly do that your honor under any sort of st amendment scrutiny the burden shifts to the government to justify its restrictions on speech now i think is we've made evidently clear we think this is a content based restriction on speech but even if it is a content neutral restriction of speech the burden is still on the government and the government would still have to meet its burden i would point to a case like the national treasury employees union case where the court said look what we have in front of us is a restriction on government employees speaking for money they're perfectly free to speak all they want so long as it's not for money they're only restricted when it comes to speaking for money and the court said no that's still a st amendment  problem restrictions on being paid for money inhibit people's willingness to engage in free speech and therefore that's a st amendment problem it's a content neutral st amendment problem but it's still st amendment problem court or government please justify these restrictions and the government there could not do that for lots of tailoring reasons that again we are not out yet again the sole question before this court at this time is whether the st amendment applies in this case at all in some way shape or form because of it does we sent back i think that overstates the question to seems to me st of all you've sort of veered off into a right to contract this isn't a right to contract case i mean this is to me it isn't to anyone this is a consumer protection statute and there are a lot of restrictions on contracts to can protect consumers and i think it's i believe on contested that the right to teach in the right to learn is protected by the st amendment but it's also seems to me that it's f corner that you can have restrictions and regulations of educational institutions some of which may have an innocent dental effect upon teaching and the question to me seems to be is this more than an incidental says that restrictions on the sale of protected speech are themselves regulations of speech not of conduct and surreal could not be any more clear on that point if your honour's looking for the guidance it's surreal i'd like to invite professor  you may not teach students for money to be sure but that's the only way effectively this kind of speech can be conveyed you may not teach certain students who haven't taken the time or perhaps may not be able to pass a particular test to have not gotten a particular degree that is saying you cannot speak to these people for money it's kind of like telling an encyclopedia company back when encyclopedias were for sale and were very expensive you can't sell your encyclopedias to people who can't pass some test or who don't have some income level or what have you that's more than incidental effect that is telling people you cannot speak to other people now to be sure the government has considerable latitude to protect consumers in many contexts but the supreme court's st amendment cases make clear that  riley are the primary ones where there were attempts to essentially say look if you if you a fundraiser spend more than twenty five percent of the funds you raise on your own fundraising expenses then in that case that's fraud and that can be prohibited in riley in fact it was actually just a disclosure requirement that where there was also involved so even a milder requirement the supreme court said these prophylactic rules are impermissible  when it comes to st amendment protected speech which included in that situation charitable solicitation in this situation it's education so if the government wants to protect people against fraud it can do so if it wants to require for example disclosures of of what they're going to be getting maybe even disclosures of the employment rates of their graduates we believe that is possible but we don't think that the government can even in the interest of consumer protection essentially say we think that you are speech to these people again speech paid for for money it's not going to be helpful to them so we're going to forbid you from doing that that's more than an incidental regulation to the extent it's a prophylactic attempt to protect consumers it's unconstitutional exception which means that that mr norris could could pay twenty five thousand dollars for golf lessons but he can't pay six thousand dollars to learn how to become a farrier and that strikes me as then  requiring the government to inquire as to the as to the nature of the speech as to whether we're looking at the backswing or whether we're looking at at how you pound the shoe on the on the horse you're out of that is exactly correct that was what further establishes that this is  instruction or teaching designed to impart a specific skill it did not further distinguish based on content but that alone the court said is itself a content based district but nd even if you were to treat this as a content neutral restriction key precedent on that recall myers's grant did involve a content neutral restriction on paying money to signature gatherers and the supreme court said nonetheless by saying essentially you can't hire signature gatherers that so sharply restricts your ability to speak and that it doesn't leave open ample alternative channels we really don't need to reach that issue you're on or i agree entirely that you could say that the plaintiffs ever aced a sufficient sufficiently plausible claim it as a result that should be reminded to the district court thank you very much good morning and may it please the court pateley for defendants the ability to benefit requirement regulates economic activity it regulates a particular type of economic transaction which is the teaching of  the offering of post secondary education to a student who has not finished their secondary education is meant to protect students who are more likely to be unqualified for secondary education excuse me post secondary education and the requirement can be precisely tailored to fit the type of training at issue how can you do that in light of how can you say that in light of ninety eight or nine  you have to look at the content of the speech of the so mr norris goes out to get lessons and you're saying oh you don't have a high school diploma so we need to have additional information is your guy telling you about a backswing involving a sand wedge or are you swing hammer towards the hope of a horse so the one is permitted the other is forbid the exception that you're referring to is for avocational education and the statute the design of the statute is that it applies generally to all private post secondary education post secondary education is defined as education designed primarily for students who have completed their secondary education or past the age of secondary education  and several you know examples of that are vocational education academic education that type of thing so the exception for avocational education which is defined as you know instruction for personal entertainment go enjoy all golf lessons as golf lessons golf lessons are not inherently something that you need a secondary degree for they're not in knowing that if you're running down the wrong trail they're council because you know you've got t state's got no argument that you have to have secondary education to be a farrier so to be a farrier is it it's a knowledge the parties agree it is a type of vocational training and what if what if what if mr norris owned horses was  economically self sufficient a wealthy wealthy man without a high school diploma and owned horses and wanted to learn how to shoe his own horses he could certainly do that in a number of contexts in a particular by hiring a private  guaranteeing anybody employment there's no professional license involved and so you can't distinguish between a hobbyist who wants to learn how to shoot their own horses as opposed to somebody is financially horses for somebody else i believe it is possible to distinguish you can look at the allegations of the complaint you can look at the schools advertising they hold themselves out as offering instruction short but they will take both types of students yes but the fact that they are promising or advertising themselves  as being able to prepare students to support themselves financially to being able to prepare students to pursue a professional career and of a golf school said you come and take spend twenty five thousand dollars on lessons with us and we will get shot at least on a satellite p g a tour yes then i think that would be different from just signing up for lessons on a weekend as a hobby and the school and so the state has does make a distinction between all of those are content based aren't they all of those distinctions you have to know what what somebody to say in order to figure this out you know you need to know what's what the school is trying to do is it trying to enroll students who are seeking professional advancement who are there by more vulnerable to having to being signed up for instruction that they may not be suited for the incentives there are very different than someone signing up for a weekend class  we're only av we're only offering ever cation instruction here we everybody who comes to us is wink wink only doing it as a hobby when in fact you know that some students are probably going to  make an education on it does that make it so you're just going to rely on the school if the school styles itself as a post secondary educational institution say if they'd say that we don't we're not but they in fact  well it's certainly not just about saying what what they're doing they would need to actually only be teaching it in a recreational form with no you know training on business development or how to how to find clients that type of thing but if it really were truly recreational then it would not be post secondary instruction under the terms of the act the act applies generally to all post secondary schools regardless of the instruction from some universities will offer adult education it's non degree seeking it's not it's not it's not for credit but you have to pay some kind of a feat let's suppose it's fifty dollars let's suppose that a university is offering a course in spinoza for fifty dollars but they come within this regulation but not degree so you can now no credit involved but it's you know pretty pretty educational it can be educational but if it is not going to lead to is going to be a better human being than i believe that that would qualify as education for personal enjoyment or pleasure and and would not be subject to the act but if i thought if i thought i thought of post secondary education where you are you would be expected to it's also receive training in in business development that type of thing or skills needed for it to practice a particular profession those are types of things that are regulated by the act that are covered by the act and so the act as i have said generally generally applies to all post secondary how is the very a school that wants to offer post secondary education needs initial approval from the bureau and the bureau will check things over to make sure that they are meeting the minimum operating that is or does he acquire some kind of certificate to operate from the state yes and so there's an initial approval and then there are real for every five years there are visits to the school one announced one unannounced and so your period if you're if you're in the only people that without that are not entitled to be enrolled and you can have your certificate revoked that's correct ok what about the provision i pointed out to mr apple are the deals with the with the enforcement is that is that a separate thing that the the contract cannot be enforced i am not sure whether the student you know that specific provision in and of itself authorizes a separate contract action on behalf of student i i think as a student in that situation would have a strong argument but i don't specifically know but does the state regulate the students directly in any way i guess i'm not sure what you mean it  that statute says the student the student shall not enroll i didn't say the school shall not enroll the student so i'm i'm trying to figure out whether that's an active or a passive verb and whether if a student and rolls whether the student may be subject to some state regulation i don't believe so i think that the language there is is meant to indicate that that that the school should not allow the student to enroll the student was not allowed to enroll but the statute suggested the student cannot execute the agreement seem to think there was no regulation of the stude well they take after the student to be executes the agreement i think i asked yes your honor i think that is more accurately what i meant to say in response to judge by piece question is that if there is a prohibition on the student and rolling if the student enrolls i'm not aware of the bureau going after any particular student for that frankly based on your argument here today it seems to me that i should even if i believe that there's a plausible allegation here i should just go ahead and determine what kind whether this is content based speech or isn't well i seems to me the briefing is been completed i don't know what are the development of the grech or would that change the outcome of the results seem pretty clear especially given your argument today well i do believe that the court could could reach that the question as a matter of law of whether this is a content based regulation of speech because everything's on the record and i don't need anything else to make that determination well what that's not to you know the only reason it be a question of law is everything is factually undisputed and nobody's going to add more to my record and therefore it seems easy to determine that right now on this record rather than to send it back for their determination well there are there are definitely facts that are not in the record for example the number of alternative exams that have been approved under the president has nothing really to do with the well i think if the court does need to get to it if the court determines that some form of heightened scrutiny is appropriate then the operation of the alternative well we wouldn't be applying this group saying what scrutiny ou to be used tend to back to the district court to determine whether it ought to go forward i don't agree that there is no way for this court to to apply scrutiny right here right now if the court were to determine that this is a speech regulation that it's subject to some form of heightened scrutiny there is information before the court and i think it is possible for the court to find as a matter of law that this serves governmental interest but but the difference between heightened scrutiny and strict scrutiny might make a difference for the state have you have you pressed an argument that you can satisfy either heightened scrutiny or especially strict scrutiny yes we did present an argument our brief and i i do believe we could it's and if you and if and if we were to determine that speech was involved here and we thought that it was content based and therefore either we had to apply heightened scrutiny or probably strict scrutiny with the state like an additional opportunity to brief that question before either this court or a district court before we decided that you couldn't satisfy that yes i because as i said that there are numerous facts that are pertinent to those issues but if we were to find that this is speech should we set it back to the district court to determine whether you get heightened scrutiny or strictly or should we decide that question and if we decide that it's heightened scrutiny and strict scrutiny do you want to send it back to the district court to see whether you can satisfy that yes and particularly intermediate certainly heightened scrutiny those are issues on which it is it is clear that the that the government is able to supplement what was in the legislative record that type of thing in order to satisfy those types of scrutiny i do believe it is possible for the court to determine that intermediate scrutiny is is satisfied on this record if the court does not agree i do think that the state is entitled to present additional findings that goto you really saying if you agree with us decided but if you don't send it back that's right logical and and part of the reason of that that i think it is possible for this court to to determine that heightened scrutiny is satisfied right here right now is because it is well recognized that the types of problems that  students attending private post secondary schools can run into if they are not well suited to the type of education there is both a federal and a state ability to benefit requirement which reflects the government's concern with think if this court were to find that there is a problem with the state ability to benefit requirement i don't know why there would not also be a problem for the federal ability to benefit requirement and on that point for the federal requirement i should just note that although the federal requirement only applies to the spending of federal funds to federal financial student aid that is simply because of the limits of the spending clause there the federal government is only able to regulate in terms of federal money being spent there i appreciate your argument do you think that's very well briefed because i'm not sure you're right about fair well i certainly in terms of everything that this could impact there are as as was previously discussed numerous consumer protection laws that that this would impact there are laws that regulate economic activity that happens to involve speech this particular requirement is not a prohibition on speech there is a way for mr norris to enroll in the program  if he doesn't have a high school diploma and he needs to demonstrate and in a manner that is left open by the statute or there you know there are various ways under the statute to demonstrate this but that don't sound like a restriction that he's got to somehow overcome by just arguing it well i don't think that's quite an accurate way to look at it because there are there are many different requirements that apply for  of degree or you know educational opportunities where that is not and this is about any kind of degree this is the same as setting a standard for a school as to what they have to have to have the degree well i think that this is a generally applicable statute for for all post secondary schools or colleges that's well briefed more information about that if you've got more to say tha is in your roof yes your honor so in terms of the general application of the of the act it it applies to all private post secondary schools with limited exceptions and so it really doesn't matter what type of book locational training is at issue for example it doesn't matter what type of academic training is that issue it really only matters that the that the school is sile is i think that is the key to plaintiff's argument here is that standing alone it's a generally applicable regulation whenever there's an exact that's the government's bird right if they go if the if the if the applicant here  plausibly alleged freedom of speech it's the government's bird show and it's something they ought to be able to restrict yes that is the government's version so i don't think it's there i think it's  well there their complaint is specifically i think about the fact that there is this avocational exception that that then makes it a content based speech regulation which the government  not agree with that but even if the court were ultimately to agree with that on the merits you know that is an exception to a generally applicable statute that exception could be severed that's not practically possible  not going to have everybody who wants to go off on some provided certification that you graduate from high school if that is the i mean well i you know obviously i mean if i if i want to take piano lessons i don't want to go into enter into a contract and certify that  recent twenty eight day letter not for this proposition but but in that case that there was a challenge to a ban on robo calls to cell phones and there was an exception for calls to collect on a debt own or backed by the u s government that was found to be a content but you have a number of other exemptions that's just happens to be a it have to be a very very obvious problem but you've got a number of other exceptions and there yes and i'm i'm not aware that that there's a problem with with any of  in terms of being content based on terms of the allegations made or the arguments raised by the appellate is that what you're saying yesterday that one of their arguments are focused on the exemption gravel are your time remaining i think your honor and the about two minutes i have remaining i like to hit just a couple of points st of all this is a restriction specifically on the buying and selling of vocational teaching m s tells us that the regulation of the sale of protected speech is a regulation of speech not of conduct so although conduct speech questions can be difficult as the u s supreme court recently recognized  in this case it's pretty simple surreal has us covered the exception that we've been the statutory exception for vocation for avocational teaching that we're that we've been talking about it simply demonstrates the problem with the with the definition of private post secondary school in the st place that definition turns on itself what is taught a private post secondary education is one that is vocational or academic you still have to look at what is being taught in order to determine whether it falls within that bucket the exception simply makes that very clear if there are concerns about the way schools are holding themselves out to the public that's a concern about commercial speech the way that schools are interacting with the public inviting them to come to their school but commercial speech is still protected by the st amendment and so we are still within the st member world and we should still be sent back to the district court for further proceedings there are questions about does this regulate the student whether it regulates the student directly or not get it restricts the student's ability as a listener to access speech what it said is to esteban you are not allowed to spend your money to hear this speech that's a restriction on speech and again the fact that money is involved here does not change the legal analysis at all that's the national treasury employees union and a host of other cases one other point your honor there was a lot of talk about the state's interests here those are all questions of tailoring which go to meeting the state's burden that's not at issue before this court on this told me six we therefore ask that you vacate the lower court decision and remain and for further proceedings i'm happy to answer any other questions but i see my