Virginia Yoga Challenge

Introduction

What does yoga teaching have in common with typing, bartending, and pet-grooming? According to several states, classes teaching any of these skills to students must undergo an expensive and time-consuming application process to become licensed as “vocational schools” before they can operate legally.

Vocational-school licensing burdens both economic liberty and freedom of speech. The cost of compliance with vocational-school laws is typically thousands of dollars and over a week of full-time administrative work. For many small schools, having to shoulder these loads can be the difference between continuing to teach and shutting down.

Forcing small schools to weather huge regulatory burdens isn’t just bad policy—it’s also unconstitutional. Vocational-school laws allow state governments to decide which speakers can talk about vocational subjects and which cannot. But letting the government be the gatekeeper for who can speak on a topic is anathema to First Amendment principles and to a free society.

The First Amendment protects the right of individuals to decide for themselves what is worth saying and who is worth listening to. States can’t require writers to get permission before publishing a book about office skills, nor can they force filmmakers to get permission before selling a movie about bartending. Nevertheless, state governments demand that speakers ask the government’s permission before talking about the exact same topics in a classroom setting.

The latest targets of vocational-school law enforcers are yoga studios that offer yoga-teacher training classes. But yoga instructors shouldn’t need the government’s permission to talk about yoga teaching any more than they need the government’s permission to make a film about yoga, write a yoga newsletter, or publish a yoga book. That is why, on December 1, 2009, the Institute for Justice challenged Virginia’s application of its vocational-school law to yoga-teacher training programs as a violation of the First Amendment to the U.S. Constitution.

A History of Yoga

Although not a religion, yoga has always been a spiritual discipline. The term yoga is derived from the Sanskrit root “yuj,” meaning to yoke or bind together.[1] Thousands of years ago, Indians practiced what is now known as Vedic or Archaic Yoga, a practice involving intense, prolonged focus and rituals.[2]

Yoga gained a foothold in America during the late 19th and early 20th centuries when several yogis came to America, lectured, and held retreats. One of the first yoga studios, as we would recognize them today, was opened in 1947 by a Russian-born woman named Indra Devi. Throughout the 20th century, yoga in America was dramatically influenced by the teachings of several yogis and their apprentices.[3] In the 1950s and 1960s, Richard Hittleman revolutionized yoga practice in America by emphasizing the physical benefits of yoga rather than the spiritual.[4]

Just as yoga has evolved for thousands of years, it continues to evolve with each generation of yoga teachers. For instance, many different types of yoga which are popular today were inspired by or derived from the yoga practice of one teacher, Sri Tirumalai Krishnamacharya.[5]

Today, apprenticeship alone is a less common way of passing on the yoga tradition, and teacher training often occurs in a class structure. Nonetheless, the essence of the teaching cycle remains unchanged: a yoga teacher communicates his or her knowledge to the student, and the student learns, questions, and gradually becomes the teacher, ready to communicate her knowledge and opinions to those who want to learn it.

Virginia Scrambles for Control of Yoga-Teacher Training Programs

Beginning around 2004, several states realized they could apply their vocational-school laws to yoga-teacher training programs. Virginia was one of them, and the licensing process that the commonwealth puts the training programs through is time-consuming, expensive, and complicated. Schools must (1) pay a $2,500 application fee and then a yearly renewal fee of $500-$2,500 based on gross tuition collected, (2) submit financial records, some of which must be reviewed by an accountant, and other school records, (3) get the commonwealth to review the “quality” of the school’s curriculum, (4) purchase a surety bond of at least $5,000, and (5) create and maintain mountains of administrative records and documents.[6]

Violating any of these regulations can result in steep penalties. Each violation incurs a civil fine of $1,000, capped at $25,000 of fines per year.[7] Criminal penalties of up to one year in prison or a $2,500 fine can also be levied for each violation of the statute or regulations, regardless of how minor.[8]

The high costs of complying with Virginia’s vocational-school law, combined with the daunting penalties for breaking even one of the commonwealth’s regulations, places such a high burden on yoga instructors that many would choose to stop teaching and stay silent rather than risk exposing themselves to these costs and penalties.

The Government May Not Censor Speech, Including the Speech of Private Teachers

The First Amendment generally forbids the government from burdening speech on the basis of its content.[9] Virginia’s vocational-school law is this sort of “content-based” restriction on speech—teachers who wish to teach vocational subjects must be silent unless they have a license, but teachers who wish to teach on any other topic may speak freely.[10] Anyone can teach yoga in Virginia without a license, but only those with permission from the commonwealth can train new yoga teachers.

A content-based restriction on speech, like Virginia’s vocational-school law, can only survive if it burdens speech no more than necessary to achieve a compelling state interest. “Compelling” interests have to be more than simply interests which, if advanced, would produce good outcomes. The Supreme Court has recognized very few interests which are compelling enough to justify regulations of speech. Interests which have passed muster include preventing the dissemination of obscenity and child pornography.[11] On the other hand, the court found no compelling interest in preventing the dissemination of classified government documents even when their release would do “substantial damage to public interests.”[12]

Virginia has two reasons for imposing licensure on vocational programs such as yoga-teacher training classes, both of which fail to meet the “compelling interest” standard: to protect students from “substandard” education and to prevent students from being financially scammed. Neither can justify the unconstitutional, burdensome, and ineffective regulations that Virginia imposes.

While preventing financial scams is important, it is hardly more compelling than preventing the release of classified documents. Moreover, Virginia can and already does protect consumers with laws and programs that don’t burden speech. These consumer-protection programs fatally undermine this justification for Virginia’s vocational-school law. The Supreme Court has been clear that, if the government can advance an interest (e.g. preventing fraud) by a content-neutral means, such as consumer-protection laws, rather than a content-based means, like vocational-school laws, the government generally must choose the content-neutral method.[13]

Virginia’s general consumer-protection statute protects consumers from bad business practices in a content-neutral way. It forbids anyone from misrepresenting one’s product or service or misleading a costumer about fees or refund policies.[14] Virginia’s Consumer Protection Agency monitors the activities of Virginia businesses and accepts complaints about poor business practices.[15] A consumer can even look up whether someone has previously complained about a business in the database.[16] Some local bodies in Virginia have similar databases.[17]

Virginia’s Consumer Protection Act functions to protect consumers when they buy jewelry, expensive electronics, martial-arts classes, and even regular yoga classes—there is simply no evidence the Act does not protect consumers when they enroll in yoga-teacher training classes as well.

Virginia’s other stated reason for imposing licensure is to protect students from “substandard” education, but the United States Supreme Court has always been clear that the state has no business judging what speech is worth hearing and what speech is not.[18] Yoga instructors debate among themselves about what yoga styles are worth studying.[19] It is not the role of the government to step in and decide whose classes are worth listening to and whose aren’t. As Justice Jackson noted more than 50 years ago, the state does not have the power to establish an official doctrine in any area—and that principle applies to yoga just as much as it does to politics.[20]

If Virginia’s interest in preventing “substandard” teaching were permitted, the same interest would allow states to censor “substandard” books, pamphlets, movies and political commentary. The First Amendment simply does not allow this. Communication about yoga and yoga-teaching methods is protected by the First Amendment, whether a speaker is giving an interview to a magazine, writing a book, making an instructional DVD or speaking to students in a studio.

Virginia may argue that they have a greater ability to regulate vocational teaching because students usually pay to hear their teachers’ lectures, but there is no legal difference between paid and unpaid speech.[21] For example, newspapers are sold, and their content is jealously protected by the First Amendment. Federal courts have already protected the paid speech of professional fundraisers,[22] investment analysts,[23] and publishers of financial newsletters.[24] Simply put, private teaching is speech,[25] and requiring the state’s permission to teach is a violation of First Amendment rights regardless of whether the words were spoken for pay.

The Plaintiffs

Julia Kalish, Suzanne Leitner-Wise, and Beverly Brown teach yoga-teacher training classes in Virginia. They are passionate about yoga, although each came to study its teachings for different reasons. Although their practice styles differ, each of these teachers shares a commitment to the principle that the complex and ancient study of yoga cannot and should not be judged by government bureaucrats sitting in Richmond.

Julia, Suzanne, and Beverly’s teacher-training classes typically have between eight to fifteen students. The classes’ small size and operating budget means that the commonwealth’s regulations not only violate Plaintiffs’ First Amendment rights, but also are prohibitively expensive and time-consuming to comply with.

Julia Kalish began taking yoga classes in 1998 to lessen the stress from her career in management consulting. Although she did not originally intend to become a yoga instructor, the more she practiced yoga, the better she felt. A hobby quickly became a passion; Julia read voraciously about yoga and signed up for a teacher-training course. Now, Julia teaches yoga in Herndon, Va., through her company Double Dog Yoga, and independently contracts to teach a yoga-teacher training course at the Flow Yoga studio in Leesburg, Va.

Suzanne Leitner-Wise realized she had a calling to study yoga during her first yoga class in 1997. Since then, she has completed numerous yoga certifications or programs in the United States and Britain. She directs and teaches the U.S. 1 Yoga Teacher Training program in Alexandria, Va.

Beverly Brown has been practicing yoga for over twenty years and teaching yoga since 1999. She completed Suzanne Leitner-Wise’s teacher-training program and now teaches the program alongside Suzanne at U.S. 1 Yoga Teacher Training.

The Defendants

The defendants in this case are the eleven board members and the executive director of the State Council of Higher Education for Virginia (SCHEV), who are being sued in their official capacities. SCHEV is responsible for interpreting and enforcing Virginia’s vocational-school law.

The Importance of Economic Liberty

Over the last century, the number of occupational-licensing laws has ballooned in the United States. While only 5% of the American workforce needed a license to work in the 1950s, now 29% of American workers need the government’s permission to perform the job of their choice.[26] While regulators claim that occupational licensing promotes the public good, occupational-licensing requirements often do nothing to promote health or safety and simply create more roadblocks for entrepreneurs pursuing their dreams.

Economic regulations also disproportionately burden small businesses. When the costs of complying with regulations are high, larger businesses are more likely to be able to handle the financial and administrative burdens than small businesses. Politicians often talk about the importance of supporting small business, but one of the best ways to support small business is to remove the regulatory burden on entrepreneurs who are trying to earn an honest living.
Virginia’s vocational-school law—which licenses private teaching—is simply one more example of a law that unreasonably interferes with economic liberty. Virginia’s yoga teachers not only have the right to speak, but also have the right to work hard in the occupation of their choosing. This is especially important because of the number of women-owned yoga studios. Economic liberty helps everyone—from women to minorities to other groups that have historically had fewer economic opportunities—to chart their own destinies and create their own success. Creating arbitrary barriers to working only hinders the realization of these individuals’ American dreams.

The Litigation Team

The Institute for Justice filed the case, Kalish v. Milliken, on December 1, 2009. The litigation team consists of IJ Senior Attorney Clark Neily and IJ Staff Attorney Robert Frommer.
Founded in 1991, the Institute for Justice is a public-interest law firm that advances a rule of law under which individuals can control their destinies as free and responsible members of society. Through litigation, communication, outreach and strategic research, IJ secures protection for individual liberty and extends the benefits of freedom to those whose full enjoyment is denied by government.

The Institute for Justice is fighting across the nation for entrepreneurs’ right to speak, including:

Tait v. City of Philadelphia—IJ is representing a group of tour guides in a challenge to a Philadelphia ordinance that makes it illegal to talk about the city without first getting licensed. The case is currently before the United States Court of Appeals for the Third Circuit.

Gilliland, et al v. City of Dallas—The Institute for Justice has filed suit against a Dallas ordinance that restricts how businesses can use their storefronts to advertise their products. The confusing regulations create problems for small businesses and stifle honest enterprise.

Taucher v. Born—The Institute for Justice persuaded the U.S. District Court for the District of Columbia to enforce the First Amendment by striking down a regulation issued by the Commodity Futures Trading Commission that would have required publishers of financial newsletters and Internet websites to register as commodity trading advisors.

Ballen v. City of Redmond— The Institute for Justice successfully represented Blazing Bagels store owner Dennis Ballen in a challenge to the City of Redmond’s sign ordinance. That law, which banned certain kinds of portable signs but allowed real estate signs, was struck down by the Ninth Circuit Court of Appeals because it unconstitutionally discriminated against some signs based on their content.

ForSaleByOwner.com Corp. v. Zinnemann—The Institute for Justice prevailed in persuading the U.S. District Court for the Eastern District of California to stop the state of California’s efforts to impose real-estate broker licensing requirements on an informational website.

Wexler v. City of New Orleans—In 2003, the Institute for Justice successfully persuaded a federal court to strike down an absurd ordinance that prohibited booksellers from selling books on city sidewalks.

For more information, please contact:

Robert Frommer

Staff Attorney

Institute for Justice

901 North Glebe Road, Suite 900

Arlington, VA 22203

(703) 682-9320 office

(203) 676-9677 mobile

[email protected]

Bob Ewing

Assistant Director of Communications

Institute for Justice

901 North Glebe Road, Suite 900

Arlington, VA 22203

(703) 682-9320 office

(202) 494-2567 mobile

[email protected]

[1] Georg Feuerstein, The Yoga Tradition 6 (2008).

[2] Georg Feuerstein, A Short History of Yoga, http://www.yogalearningcenter.com/articles/ShortHistory.cfm
?Title=A%20Short%20History%20Of%20
Yoga .

[3] Several of these figures include Swami Sivananda, Swami Vishnudevananda, Sri Krishnamacharya, and B.K.S. Iyengar. Id.

[4] See Holly Hammond, Yoga’s Trip to America, Yoga Journal, http://www.yogajournal.com/wisdom/467 .

[5] Fernando Pagés Ruiz, Krishnamacharya’s Legacy, Yoga Journal, http://www.yogajournal.com/wisdom/465 (“Whether you practice the dynamic series of Pattabhi Jois, the refined alignments of B.K.S. Iyengar, the classical postures of Indra Devi, or the customized vinyasa of Viniyoga, your practice stems from one source: a five-foot, two-inch Brahmin born more than one hundred years ago in a small South Indian village.”).

[6] See Va. Code Ann. §§ 23-276.1–.14; 8 Va. Admin. Code §§ 40-31-10 to -320. The administrative paperwork new schools must create includes documents detailing the history and development of their program; the program’s mission statement and philosophy; the purpose of the teacher-training program and a statement demonstrating that the program fulfills its stated purpose; a student attendance and absence policy; a description of the type of conduct expected of students; an explanation of who has controlling ownership of the teacher-training program; the number of students who enrolled in and completed the program in the previous “academic” year; the number of students claiming Virginia residency who report employment in their field of study after six months and a year of completing the teacher-training program; the powers, duties, and responsibilities of the owners and managers of the program; the requirements for admission into the class; students’ “rights, privileges, and responsibilities;” a description of a formal process to express grievances with the program; the number of students claiming Virginia residency in the teacher-training program; a description of financial-aid opportunities; a description of the yoga-teacher training program’s content and length; a description of the program’s probation, dismissal, and re-admittance policies; an explanation of “career advising” services offered; a written policy on “faculty accessibility” and other information.

[7] See Va. Code Ann. § 23-276.12(B); 8 Va. Admin. Code §§ 40-31-240, -260(D).

[8] See Va. Code Ann. §§ 18.2-11(a), 23-276.12(a); 8 Va. Admin. Code § 40-31-230.

[9] See Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 229-30 (1987).

[10] See Turner Broadcasting Sys. v. FCC, 512 U.S. 622, 642-43 (1994) (explaining that a law that discriminates based on content is a “content-based restriction” regardless of the law’s purpose).

[11] See United States v. Am. Library Ass’n, Inc., 539 U.S. 194, 203 (2003) (plurality opinion).

[12] See New York Times v. United States, 403 U.S. 713, 731 (1971) (White, J., concurring).

[13] See R.A.V. v. City of St. Paul, 505 U.S. 377, 395 (1992).

[14] See Va. Code Ann. § 59.1-200.

[15] See Va. Office of the Attorney General, Consumer Complaints, http://www.vaag.com/CONSUMER/CONSUMER_FRAUD/
Consumer_complaints.html (last visited Nov. 18, 2009).

[16] See Va. Dep’t of Agriculture and Consumer Services, Complaint Database, http://www.vdacs.virginia.gov/consumers/cgi-bin/comp_search.cgi (last visited Nov. 18, 2009).

[17] See, e.g., Fairfax County Complaint History Database, http://www.fairfaxcounty.gov/consumer/IQext/CSd_acs.asp (last visited Nov. 18, 2009).

[18] See Turner Broad. Sys. v. FCC, 512 U.S. 622, 641 (1994) (“At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.”).

[19] For example, Bikram Choudhury, a controversial hatha yoga teacher, argued in a Yoga Journal magazine article that Kundalini Yoga, Power Yoga, and Ashtanga Yoga were not worth practicing. See Loraine Despres, Yoga’s Bad Boy: Bikram Choudhury, Yoga Journal, http://www.yogajournal.com/lifestyle/328.

[20] Thomas v. Collins, 323 U.S. 516, 545 (1945) (Jackson, J., concurring).

[21] See Riley v. Nat’l Fed’n of the Blind, 487 U.S. 781, 801 (1988) (“[A] speaker is no less a speaker because he or she is paid to speak.”).

[22] Riley v. Nat’l Fed’n of the Blind, 487 U.S. 781, 803 (1988) (Scalia, J., concurring).

[23] Lowe v. S.E.C., 472 U.S. 181, 232 (1985) (White, J., concurring).

[24] Taucher v. Born, 53 F. Supp. 2d 464, 482 (D.D.C. 1999).

[25] See Barenblatt v. United States, 360 U.S. 109, 112 (1959) (“When academic teaching-freedom and its corollary learning-freedom, so essential to the well-being of the Nation, are claimed, this Court will always be on the alert against intrusion by Congress into this constitutionally protected domain.”); Sweezy v. New Hampshire, 354 U.S. 234, 249-50 (1957) (plurality opinion) (concluding that the “right to lecture” was a constitutionally protected freedom that “could not be seriously debated” and noting that “[t]eachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding”); Goulart v. Meadows, 345 F.3d 239, 247 (4th Cir. 2003) (finding that classes were protected speech because they “involve the transmission of knowledge or ideas by way of the spoken or written word”); cf. Meyer v. Nebraska, 262 U.S. 390, 400 (1923) (holding that the plaintiff’s “right . . . to teach” the German language was “within the liberty” of the Fourteenth Amendment).

[26] Morris M. Kleiner, Licensing Occupations 1 (Upjohn Institute 2006); see also Morris M. Kleiner & Alan B. Krueger, Analyzing the Extent and Influence of Occupational Licensing on the Labor Market 10-13, (National Bureau of Economic Research Working Paper 14979, 2009), available at http://www.nber.org/papers/w14979 (providing most recent data).