Jon and Tracy McGlothian have a simple dream: they want to teach others the skills they’ve built over a lifetime of work, both to support themselves and to provide greater opportunity for individuals in their community. Their small business wants to offer classes to adults. What sounds simple, however, has become complicated because Virginia won’t let them teach vocational skills without the state’s permission.
Jon is a U.S. Army veteran and an all-star project-management instructor, so it’s no surprise that several military units, colleges, and corporations have enlisted his services. For years, he’s prepared their officers, students, and employees for project-management certification exams. Jon would love to teach other students these lessons, along with other project-management classes.
Tracy is in a similar boat. She’s an experienced sewer who teaches students how to sew as a hobby. Through their small business, she now wants to teach students how to sew for a living too. But she can’t do so unless the school is state-licensed.
As it turns out, in Virginia, you can teach anyone anything—except how to earn an honest living. Any Virginians can legally teach hobbies like yoga or karate. But, incredibly, Virginians who teach job skills without a state license can face criminal charges and tens of thousands of dollars in fines.
Jon and Tracy learned firsthand that getting permission to teach means going through an expensive, time-consuming and byzantine application process. Over the last two years, they’ve spent thousands of dollars and dozens of hours putting together a heavy binder to prove their fitness to teach, but they keep getting rejected and asked to provide more and more information.
After repeatedly failing to get licensed, Jon and Tracy were tired of waiting for government permission to speak. That is why Jon and Tracy fought back. They teamed up with the Institute for Justice to challenge the constitutionality of Virginia’s vocational-school requirements in federal court and vindicate their right to free speech. With IJ’s help, John and Tracy were able to start enrolling students—and teaching the material they wanted to teach—starting in October 2019.
Plaintiffs' Motion for a Preliminary Injunction
Motion for Preliminary Injunction
Magistrate's Report and Recommendation
Jon McGlothian: Army Ranger, Expert Project Manager
After completing his military service as an Army Ranger, Jon McGlothian of Virginia Beach, Va., entered the world of business. He soon found himself attracted to project management. Project managers like Jon are tasked with ensuring that projects—from building bridges to developing software—are completed on-time, on-budget, and successfully.
Given what a difference good project management can make, many businesses and governmental entities value project-management skills. Thanks to legislation passed in 2016, there’s a formal federal government career path for project managers, and many businesses pay certified project managers a premium. And along with this increased demand for skilled project managers has come increasing demand by workers for ways to signal their talent and experience to potential employers.
The Project Management Professional (PMP) certificate is an especially valuable signal. It’s the primary certification issued by the Project Management Institute (PMI), which is an association of project managers. To be certified as a PMP, project managers must have thousands of hours of project-management experience, complete 35 hours of project-management education, and pass a 200-question exam.
Since earning his PMP certificate, Jon has taught classes preparing students for exams administered by PMI, including the PMP exam. In fact, because PMI approved his business—the Mt. Olivet Group, LLC (TMOG)—as a qualified school, one of his project-management classes satisfies PMP candidates’ 35-hour education requirement.
Jon’s classes are a big hit. Entities ranging from Fortune 750 companies to military units to colleges have hired him to teach project management. Since he has military experience leading an Army platoon, business experience at several companies, and academic experience up through graduate school, it’s no surprise Jon can navigate all of these worlds seamlessly.
Though Jon loves what he does now, he wishes he could do more. In particular, Jon doesn’t like being limited to working on a contract basis for large corporations and government agencies. If he had his druthers, he would also advertise to students directly and enroll them in his classes. In addition to meaning more business for Jon, being able to solicit students the public would open up more educational opportunities to people in his community, particularly former service members.
Unfortunately, Jon can’t advertise to the public or take on individual students because his school isn’t licensed by the State Council of Higher Education for Virginia. 1 Even though the world’s premier project-management organization recognizes his school as a valid educational provider, Virginia bureaucrats don’t.
Tracy McGlothian: Experienced Sewer
Like her husband, Tracy’s an expert in her craft and loves teaching it. She also has an MBA. At TMOG, which she co-owns with Jon, she manages a sewing and embroidery business and teaches sewing lessons.
Currently, all of Tracy’s sewing lessons are “avocational.” In other words, they’re targeted for people who want to sew as a hobby and not as a career.
Tracy would love to teach vocational sewing as well. Having mastered several commercial sewing machines, she has the skills and equipment to do so. And, since she’s earned a successful living as a sewer, she wants to help others do the same. Specifically, she would like to teach job skills to people transitioning from public assistance to the labor force.
But, like Jon, Tracy isn’t allowed to do so. Though she’s allowed to teach hobbies at an unlicensed school like TMOG, she’s not allowed to teach students how to earn a living there. 2
SCHEV: The Teaching Police
To teach what they want at TMOG, Jon and Tracy must first get Virginia’s permission to operate a vocational school. But that’s no easy task. Jon and Tracy tried—and ended up mired in two years of red tape and frustration thanks to the State Council of Higher Education of Virginia, or SCHEV, the government agency that regulates private vocational schools.
To be licensed in Virginia, vocational schools must satisfy dozens of requirements mandated by SCHEV. Meeting these requirements is expensive. Just applying for licensure costs $2,500. On top of this, SCHEV requires that each school post a surety bond totaling thousands of dollars. To make matters worse, SCHEV won’t license any school until they have inspected the school’s facilities, which means that people like Jon and Tracy must lease teaching space and assemble a library before they even know whether they will be approved to operate. 3 But the burdens aren’t merely financial—schools must also convince SCHEV that their speech is worth allowing. They have to explain how their courses are of the “quality, content, and length” necessary to achieve their “stated objective,” submit evaluations of courses’ effectiveness, and prove to SCHEV that their instructors are qualified.
Finally, SCHEV requires mountains of paperwork. Schools must submit a “school plan report” documenting everything from their “library resources” to a “market analysis” of their expected finances. They also have to submit brochures and other documents detailing their “mission statement and philosophy,” “faculty accessibility” policy, and over a dozen other items.
Two years ago, Jon and Tracy first submitted a vocational-school application to SCHEV. Along with their thousands of dollars in payment, they sent SCHEV a 15-part binder filled with mandatory paperwork.
SCHEV was not satisfied. It sent them a 7-page letter demanding additional documents, and even reprimanded for Jon for supposedly classifying his course offerings by the wrong course numbers. Last year, Jon and Tracy re-submitted their application with additional materials, but still could not get SCHEV’s approval.
During all this time, Jon and Tracy were paying rent on office space they weren’t allowed to use. So Jon tried another strategy. He learned that Virginia exempts classes preparing students for “professional practice” and “higher education” exams from SCHEV’s licensure requirements. Thanks to this exemption, courses preparing students for the SAT, or professional-licensure exams, don’t need SCHEV approval. Last fall, Jon told SCHEV that his project-management test-prep classes prepared students for “professional practice” exams. But, according to SCHEV, project management is not “professional practice,” so TMOG needs to satisfy SCHEV’s requirements even for test prep.
After this rejection, Jon and Tracy gave up trying to get SCHEV’s permission. And, since teaching what they want to the public without this permission could expose them to tens of thousands in fines, they’ve refrained from doing so. In other words, SCHEV forced them into silence.
This is a shame, as SCHEV’s requirements make no sense. SCHEV has no expertise in project management or sewing. It has no business reviewing Jon’s PMI-approved classes. And there’s no reason to stop his project-management test prep when other unlicensed test prep is allowed. SCHEV’s requirements don’t make sense for Tracy’s instruction either. She’s free to teach people how to sew for a hobby, and there’s no reason she shouldn’t be free to teach people how to sew for a living.
The First Amendment Protects the Right to Teach for a Living
That’s why Jon and Tracy are fighting back. They have joined with the Institute for Justice—the National Law Firm for Liberty—to file a civil rights challenge in federal court. They are asking the courts to hold that their school’s test prep is exempt from SCHEV’s requirements and that Virginia’s licensing scheme for vocational schools violates the First Amendment of the U.S. Constitution.
Under the First Amendment, the government could not require creators of books, articles, or videos on project management or sewing to get a government license. And the government certainly could not order these creators to pay thousands of dollars and submit lengthy applications before being allowed to say what they want. By singling out in-person instruction about vocational skills, Virginia’s licensing requirements discriminate among speech based on who speakers are and how they choose to communicate.
Like books, articles, and videos, in-person teaching is constitutionally-protected speech. The federal courts have repeatedly explained this point, including 4th U.S. Circuit Court of Appeals, which covers Virginia. For instance, it has held that teaching of geography, fiber arts, and gun safety are all constitutionally-protected speech. The same must be true of teaching job skills.
The Litigation Team
The case is being litigated by IJ senior attorney Paul Sherman and IJ attorney Milad Emam.
The Institute for Justice
The Institute for Justice is a nonprofit, public-interest law firm that litigates nationwide in support of fundamental individual liberties. IJ has successfully challenged restrictions on occupational speech for a nationwide syndicated columnist in Kentucky; a North Carolina blogger and tour guides in Washington, D.C.
IJ has even sued SCHEV before. In 2009, IJ filed a lawsuit on behalf of schools that train yoga instructors. Thanks to the lawsuit, Virginia amended its laws to exclude vocational schools that train people to teach avocations like yoga or piano. As a result, one of IJ’s clients, Suzanne Leitner-Wise, has been able to teach more than 100 yoga instructors since.
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