Asociacion De Educacion v. Echevarria-Vargas, 03-2703.

• Decision Date: 05 October 2004
• Docket Number: No. 03-2703.,03-2703.
• Citation: 385 F.3d 81
• Parties: ASOCIACIÓN DE EDUCACIÓN PRIVADA DE PUERTO RICO, INC.; Puerto Rico Innovatives Education Services, Inc., d/b/a Colegio Tomás Alva Edison; Corporación Educativa Ramón Barquín, d/b/a/ American Military Academy; Academia Inmaculada Concepcion-Mayaguez; Southwestern Educational Society, Inc.; Guamaní School, Inc.; Colegio Adianez, Inc.; Antilles Military Academy, Inc.; Fundación Educativa Concepción Martín, Inc., d/b/a/ Sonifel; Saint Francis School, Inc.; American School, Inc., Plaintiffs, Appellants, v. Javier A. ECHEVARRÍA-VARGAS, in his official capacity as Secretary of the Department of Consumer Affairs of the Commonwealth of Puerto Rico, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

385 F.3d 81

ASOCIACIÓN DE EDUCACIÓN PRIVADA DE PUERTO RICO, INC.; Puerto Rico Innovatives Education Services, Inc., d/b/a Colegio Tomás Alva Edison; Corporación Educativa Ramón Barquín, d/b/a/ American Military Academy; Academia Inmaculada Concepcion-Mayaguez; Southwestern Educational Society, Inc.; Guamaní School, Inc.; Colegio Adianez, Inc.; Antilles Military Academy, Inc.; Fundación

Educativa Concepción Martín, Inc., d/b/a/ Sonifel; Saint Francis School, Inc.; American School, Inc., Plaintiffs, Appellants, v. Javier A. ECHEVARRÍA-VARGAS, in his official capacity as Secretary of the Department of Consumer Affairs of the Commonwealth of Puerto Rico, Defendant, Appellee.

No. 03-2703.

United States Court of Appeals, First Circuit.

Heard May 3, 2004.

Decided October 5, 2004.

Appeal from the United States District Court for the District of Puerto Rico, Héctor M. Laffitte, J Antonio J. Amadeo-Murga, with whom Wanda I. Concepcion-Figueroa and Luis Roberto Pinero were on brief, for appellants.

Camelia Fernandez-Romeu, Assistant Solicitor General, with whom Roberto J. Sanchez-Ramos, Solicitor General, and Kenneth Pamias-Velazquez, Deputy Solicitor General, were on brief, for appellee.

Before TORRUELLA, Circuit Judge, COFFIN, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

Asociación de Educación Privada de Puerto Rico, Inc., a nonprofit private association representing the interests of private primary, secondary, and post-secondary member schools in Puerto Rico, together with individual schools, filed a complaint on March 3, 2003, against the Secretary of the Department of Consumer Affairs of Puerto Rico ("DACO"). The complaint alleges that DACO's Regulation 6458, Regulations for the Disclosure of Information on the Sale and Distribution of Textbooks ("Reglamento para la Divulgacion de Informacion en la Venta y Distribucion de Libros de Texto") (the "Regulation"), violates the plaintiffs' First Amendment rights, and in particular, their right to academic freedom. The plaintiffs sought declaratory and injunctive relief.

The Secretary moved under Fed.R.Civ.P. 12(b)(6) to dismiss the complaint for failure to state a claim, and the district court granted the motion. The plaintiffs appeal that dismissal. We reverse the dismissal and remand the case to the district court for further proceedings.

I.

The private schools of Puerto Rico are required by statute to operate under a license. 18 P.R. Laws Ann. § 2111. Puerto Rico's Secretary of Education is directed to "establish the standards and the requirements that shall be met by the educational institutions that request a license." 18 P.R. Laws Ann. § 2113. The Secretary of Education's power to regulate the schools is subject to a proviso protecting the schools' authority to develop their academic programs.¹

Nonethless, DACO's Secretary has also asserted authority. DACO promulgated the Regulation in 2002. As its stated main objective, the Regulation aims to "protect[ ] Puerto Rican famil[ies] and parents, and/or tutors who register their minor children and/or wards in the private schools of Puerto Rico." Reg. 6458, R. 2. "Likewise, it is the intent to define the obligations and responsibilities of schools, bookstores, distributors, and publishing houses in relation to the corresponding processes pertaining to the sale of textbooks." Id.

The Regulation imposes several obligations on the schools. Rule 8 directs a school to announce, by May 15 of the current school year, what books will be used the following school year. Id. R 8(A). Rule 9 specifies that schools must disclose final sales prices for the books and the agreement with the book seller. Id. R. 9(A). Rule 10 requires the schools to inform parents of price changes. Id. R. 10.

The specific provision challenged by the plaintiffs is found in Rule 11 of the Regulation:

In the case which [sic] there are changes in the edition, the school will inform in the book list which of these books have different editions, what the change specifically consists of, and whether it is a significant change or not, as defined by these regulations. In case that the changes are not significant, the school has to inform the parents on said list, that they have the option of buying the previous edition.

Id. R. 11. "Significant change in the new edition of a book" is defined in turn by Rule 4(A) as "historical, technological, scientific and/or cultural changes integrated in the new edition of a book that are significant and as such cause the total or partial revision of one or several chapters or sections and/or the inclusion of one or several chapters or sections." Id. R. 4(A). In contrast, "[t]he exclusion of chapters or sections, cosmetic changes and/or style, such as cover changes, chapter or section order, book texture and/or material does not constitute a significant change." Id."Additions of one or several sentences to one chapter or section or through a new book edition will not be considered a significant change nor the addition of one or several drawings, graphics, tables, or photos." Id. There is no explicit provision for resolving disputes between the Secretary and a school over whether a particular edition contains a "significant change."

Rule 12 requires schools to disclose to parents the existence and applicability of the Regulation. Id. R. 12. Schools must post a notice, in a sign not smaller than eight and a half inches by eleven inches, with a letter size not smaller than 22 points, not more than five feet away from a spot to which parents can have visual access, and between five and six feet from the ground, with the following language (in Spanish):

This school has the obligation to inform parents the pertinent process for book sale and distribution in accordance with the Regulations for the Release of Information about the Sale and Distribution of Textbooks of DACO. A copy of these regulations is available in our library. Not complying with the rules set forth in said regulations could lead to the levying of administrative fines in accordance with the DACO Organic Law.

Id. Thus, the Regulation is enforced with fines, and under the DACO Organic Law such fines can amount to $10,000.² See id. R. 18.

II.

The district court, on the basis of the pleadings and without hearing evidence, determined that Rule 11 implicated plaintiffs' First Amendment interests and should be scrutinized as a time, place or manner restriction. Asoc. de Educ. Privada de Puerto Rico v. Echevarria Vargas, 289 F.Supp.2d 1, 4 (D.P.R.2003).

In doing so, the district court rejected the plaintiffs' contention that Rule 11 was a content-based restriction deserving of strict scrutiny, finding that "DACO's regulations only limit the manner in which the school curriculum is taught." Id. It analyzed the regulation's constitutionality under the intermediate scrutiny standard utilized in public forum cases.³

The district court concluded, on the pleadings, that Puerto Rico had "a significant interest in ensuring that parents do not unnecessarily pay for textbooks that contain stylistic changes." Id."Moreover, [the district court] believe[d] that the regulations do provide ample alternative channels of communication." Id. The court suggested that schools may persuade parents to purchase exclusively the latest editions of the books and noted, without mentioning federal copyright laws, a teacher's capacity to photocopy the changes missing in the older editions for those children whose parents chose not to purchase new editions. Id.

After addressing and rejecting the plaintiffs' argument that the government's interference with education called for stricter scrutiny, the district court held, on the Secretary's Rule 12(b)(6) motion, that the Regulation was constitutional; thus, the plaintiffs failed to state a claim. We reverse the district court's dismissal of the claim.

III.

"A dismissal on the pleadings will be upheld only if it appears beyond doubt that the plaintiff can prove no set of facts in support of its claims which would entitle it to relief." Gaskell v. Harvard Coop. Soc'y, 3 F.3d 495, 497-98 (1st Cir.1993) (internal quotation marks, citations, and brackets omitted). At this stage, we cannot say that there are no possible set of facts on which the Regulation as implemented would be unconstitutional.

Plaintiffs' claim purports to rest primarily on a First Amendment right to protection of academic freedom, as well as on protection of a right to free speech. The parties agree that Puerto Rico is bound by the First Amendment. See Torres v. Puerto Rico, 442 U.S. 465, 469, 99 S.Ct. 2425, 61 L.Ed.2d 1 (1979).

The complaint is not precise about what free speech rights are involved here. The Regulation does not purport to address the content of speech; nor does it purport to regulate speech at all. Rather, the Regulation is a consumer protection regulation. As this court noted in Cuesnongle v. Ramos, 835 F.2d 1486 (1st Cir.1987), involving another DACO regulation, a private school has no First Amendment right to be free of consumer protection regulations. Id. at 1502. Further, Cuesnongle recognized the power of the government to some extent to compel disclosure of matters not harming associational or speech rights. Id. That is far from saying that plaintiffs here could not produce facts in support of a claim under the First Amendment.

More directly, the complaint asserts abridgment of academic freedom. "Academic freedom" receives some protection under the First Amendment and plaintiffs' complaint seeks the shelter of that protection. The term "academic freedom" means many things and protects many different interests. A number of those interests are plainly not at issue in this case.⁴ And this case does not involve any direct infringement.

Still, "[t]hat the burden of which the [petitioner] complains is neither content-based nor direct does not necessarily mean that petitioner has no valid First Amendment claim."...