The Volokh Conspiracy

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Free Speech

California Stops Requiring Academic Prerequisites for Horseshoeing Schools

The change stems from a First Amendment case brought by the Institute for Justice, a leading libertarian public interest law firm.


From an Institute for Justice press release:

After more than four years of litigation, Bob Smith and Pacific Coast Horseshoeing School (PCHS) are free to return to teaching horseshoeing to students who have not completed high school or an equivalent government-mandated exam….

"Horseshoeing has nothing to do with calculus, writing or social studies[," Bob said. "]Horses don't do math, and horses don't read books. If you can shoe a horse, you can shoe a horse." …

No state in the country prevents people from actually shoeing a horse, but California prevented Bob from teaching horseshoeing to certain students. Under California's so-called "ability-to-benefit" law, schools like Bob's couldn't accept students who lacked a high-school degree or a GED (or who had passed a government-approved examination).

Both teaching and learning are protected by the First Amendment. That doesn't change just because someone pays to learn or gets paid to teach. If Bob were to write a book or record a YouTube video on horseshoeing, the State of California couldn't punish him. Teaching a group of tuition-paying students is no different. To protect his First Amendment rights, as well as the rights of his students, Bob and PCHS partnered with IJ and challenged the law….

In June 2020, the 9th Circuit Court of Appeals ruled that California's law burdened the First Amendment rights of both Bob and his students. Following that decision, the case was sent back to the federal trial court in Sacramento, where the state would have been required to prove that its law could survive First Amendment scrutiny.

Then, in September 2021, the California Assembly passed a bill that repealed the "ability-to-benefit" requirement. That change will go into effect on Jan. 1. Going forward, schools like Bob's can admit students regardless of their level of education or their score on a state exam.

For more on the Ninth Circuit decision, see here; I had filed an amicus brief in support of the School on behalf of Profs. Jane Bambauer, David Bernstein, Clay Calvert, and Mark Lemley, Dean Rodney Smolla, and myself.