Asociacion De Educacion Privada v. Garcia Padilla

• Citation: 408 F.Supp.2d 62
• Decision Date: 13 December 2005
• Docket Number: No. CIV. 03-1213(HL).,CIV. 03-1213(HL).
• Court: U.S. District Court — District of Puerto Rico
• Parties: ASOCIACIÓN DE EDUCACIÓN PRIVADA DE PUERTO RICO, INC., et al., Plaintiffs, v. Alejandro GARCIA PADILLA, Secretary of the Department of Consumer Affairs of the Commonwealth of Puerto Rico, Defendant.

Page 62

408 F.Supp.2d 62

ASOCIACIÓN DE EDUCACIÓN PRIVADA DE PUERTO RICO, INC., et al., Plaintiffs, v. Alejandro GARCIA PADILLA, Secretary of the Department of Consumer Affairs of the Commonwealth of Puerto Rico, Defendant.

No. CIV. 03-1213(HL).

United States District Court, D. Puerto Rico.

December 13, 2005.

Antonio J. Amadeo-Murga, A.J. Amadeo Murga Law Office, San Juan, PR, for Asociacion de Educacion Privada de Puerto Rico, Inc., Puerto Rico Innovatives Education Services, Inc. doing business as Colegio Tomas Alva Edison, Corporacion Educativa Ramon Barquin doing business as American Military Academy, Academia Inmaculada Concepcion-Mayaguez, Southwestern Educational Society, Inc., Guamani School, Inc., Colegio Adianez, Inc., Antilles Military Academy, Inc., Fundacion Educativa Concepcion Martin, Inc. doing business as Sonifel, Saint Francis School, Inc., American School, Inc., Plaintiffs.

Elfrick Mendez-Morales, Mendez & Mendez, San Juan, PR, Felix M. Roman-Carrasquillo, San Juan, PR, Lavinia Aparicio-Lopez, Commonwealth Department of Justice, Francisco A. Ojeda-Diez, P.R. Department of Justice — Federal Litigation, San Juan, PR, for Javier A. Echevarria-Vargas Alejandro Garcia-Padilla, Defendants.

OPINION AND ORDER

LAFFITTE, District Judge.

Plaintiffs,¹ a nonprofit private association representing the interest of private primary, secondary, and post secondary member schools in Puerto Rico, along with individual schools, filed this action on March 3, 2003, against Javier A. Echevarría Vargas, the Secretary of the Department of Consumer Affairs of the Commonwealth of Puerto Rico (hereinafter "DACO" for its Spanish acronym),² pursuant to 42 U.S.C. § 1983 alleging that Rule 11³ of DACO's Regulation 6458, Regulation for the Disclosure of Information on the Sale and Distribution of Textbooks ("Reglamento para la Divulgación de Información en la Venta y Distribución de Libros de Texto") violates plaintiffs' First Amendment rights, specifically plaintiffs' rights to academic freedom and free speech.⁴ On October 27, 2003, the Court dismissed plaintiffs' complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim.⁵ On October 5, 2004, the Court of Appeals for the First Circuit reversed the dismissal because at that stage in the proceedings, without a developed factual record, the Court of Appeals could not conclude that there were no possible set of facts on which the Regulation as implemented would be unconstitutional. Asociacion de Educacion Privada de Puerto Rico, Inc. v. Echevarria-Vargas, 385 F.3d 81 (2004). Consequently, the case was remanded to this Court.⁶

Defendant answered the complaint on March 16, 2005, and on March 21, 2005, the Court entered an initial scheduling order which, inter alia, ordered the parties to submit pretrial briefs addressing which First Amendment rights are implicated by the Regulation, if any; the nature and weight of the burden, if any, imposed on plaintiffs; and the strength of the government's justifications for imposing the burden, if any.⁷ Plaintiffs subsequently filed a motion to amend the complaint to add a cause of action challenging the constitutionality of the Commonwealth of Puerto Rico's Law 116⁸ of May 18, 2004 ("Law 116"), entitled Law for the Acquisition of School Textbooks ("Ley para la Compra de Libros de Textos Escolares").⁹ The Court granted plaintiffs' unopposed motion to amend the complaint, and the amended complaint was filed on June 7, 2005.¹⁰ The amended complaint alleges that DACO's Regulation 6458 and the Commonwealth of Puerto Rico's Law 116 violates plaintiffs' First Amendment rights to academic freedom and free speech. Plaintiffs seek declaratory and injunctive relief, as well as costs and attorneys' fees. A bench trial¹¹ was held on November 7, 2005.

FINDINGS OF FACT

This case was tried before the Court on November 7, 2005. Having considered the evidence, and the parties' pretrial briefs, the Court is now ready to rule.

1. In the present action the term "textbooks" is defined broadly. Law 116 defines school textbooks as "every text, dictionary, reference textbooks [sic], handbook, pamphlet, or material for study required or suggested by any private school for the use of the academic or curricular program." Law 116, Art. II(c).

2. Regulation 6458 defines school books as "all textbooks dictionaries, reference books, handbooks, pamphlets, or study materials required or suggested by a school for the use of their academic programs and/or curricula." Reg. 6458, R. 4(H).

3. Textbooks are widely used in private primary and secondary schools in Puerto Rico. Textbooks comprise more than their bound volumes alone, textbooks are often accompanied by resource kits which include audio and visual multimedia materials, such as audio cassettes, CD-ROMs, DVDs, floppy disks, and transparencies.

4. Textbooks frequently have related workbooks. These workbooks are usually textbook edition specific. Workbooks are often used for lesson enforcement, preparation, or extra-practice in correlation with a specific in-class lesson.

5. Textbooks are an essential pedagogical tool employed daily in classrooms to deliver the substantive content of educational lessons.

6. Textbooks are an integral part of curriculum and lesson plan development. The development of lesson plans by teachers takes a considerable amount of time. In developing lesson plans, teachers rely heavily on their selected textbooks and the syllabi presented in the textbooks because these materials provide the basis of the content that will be discussed in a class lesson.

7. Textbooks are selected by private schools to be aligned with the school's particular vision, mission, philosophy, curriculum, and methodology. The academic and educational visions, missions, philosophies, curricula, and methodologies of private schools in Puerto Rico vary broadly.

8. A private school may choose to adopt a new edition of a textbook or new textbook series for several reasons, including significant developments in an educational field, the introduction of a new pedagogical approach, or due to the lack of availability of the textbook previously used by the school.

9. Publishing houses impart information about their new textbook series or editions to private schools through conferences; telephone calls; and direct mailings of brochures, sample textbooks, and educational kits.

10. Textbook publishers change the edition of a textbook approximately every two to six years. Certain substantive areas are apt to change more frequently than others. For instance, new editions of Science textbooks may be introduced by publishers every two or three years, while English textbook editions usually change only every five or six years. The amount of notice provided by publishers when a new textbook edition is introduced into the market varies generally from one year to a couple of months before the new academic year begins in August.

11. The process by which private schools select new textbooks is school specific. The schools evaluate a new edition or series first and foremost on the grounds of whether the textbook is aligned with the school's curriculum, mission, vision, philosophy, methodology; and whether it meets the school's students' needs. Teachers input in this process his highly valued by the schools. Teachers often make an independent evaluation of the textbook series or edition on the above mentioned criteria. After an initial independent evaluation by individual teachers, the teachers often meet as a group on multiple occasions to determine whether the series or edition meets the aforementioned criteria. Teachers' input is generally shared with school administrators, such as the school director and program coordinators who review the teachers' conclusions, with or without making their own independent assessment of the textbooks. Some schools may employ external consultants with expertise in certain substantive areas to advise teachers or administrators on new textbooks or pedagogical methods.

12. Parental participation in selecting textbooks in private schools is typically nonexistent or minimal. At some private schools parents may act as a general sounding board or advisory group, but the ultimate decision of which books are selected resides with the private schools.

13. In selecting new textbook editions or series, the primary factor is whether the textbook best meets the particular private school's curriculum, mission, vision, philosophy, methodology, as well as the schools' students' ever-changing educational and developmental needs. However, secondarily, the schools also consider the price and availability of the textbooks. Schools are concerned that the textbooks be widely available at stores in a diversity of locations.

14. Private schools do not generally change the editions or series of textbooks for all subject areas at once. For instance, at Tomas Alva Edison School, the school selects approximately two subjects per year and evaluates textbooks for only these subject areas.

15. After selecting the textbooks to be used in the upcoming academic year, the private schools create a book list which is provided to parents no later than May 15th or three months prior to the academic year if said year begins in a month other than August. The resale of textbooks by students to other students is a common practice, but varies by school.

16. Tomas Alva Edison School is a private secular school located in Caguas, Puerto Rico, which provides education to 700 students, ages two through eighteen. This academic year at Alva Edison School, a ninth grade Social Studies teacher decided not to elect the new edition of a certain Social Studies textbook. The teacher and the school believed that the old textbook edition was sufficient and that the changes between the old edition and new edition were not significant. The old textbook edition was out of print. Despite the teacher's...