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Virginia Couple Scores First-Round Victory in First Amendment Fight

Army veteran and wife are suing State Council of Higher Education for Virginia for right to teach job skills

Arlington, Va. — Yesterday, federal magistrate judge Roderick C. Young recommended denying the State Council of Higher Education for Virginia’s (SCHEV’s) motion to dismiss Jon and Tracy McGlothian’s First Amendment challenge to Virginia’s prohibition on their teaching job skills without the agency’s permission, allowing their lawsuit to proceed.

“Jon and Tracy should not have to pay thousands of dollars and wade through endless red tape just so they can exercise their First Amendment right to teach,” said IJ Attorney Milad Emam. “We are pleased that their case will continue to move forward and hope that the court will free them to pass on what they’ve learned to individuals in their community.”

Jon and Tracy worked for a lifetime to build skills to become a certified project management professional (PMP) and experienced sewer, respectively. In 2015, their established business, the Mt. Olivet Group, LLC (TMOG), set out to teach people the skills they would need to advance in these fields. Though they could freely teach anyone these skills as a hobby, SCHEV prohibits them from teaching the general public if students want to use their classes to earn an honest living.

As a result, in July 2018, Jon and Tracy McGlothian teamed up with the Institute for Justice (IJ) to challenge this prohibition. As the lawsuit alleges, SCHEV would have no right to stop Jon and Tracy from publishing a book or posting an online video on project management or sewing and there is no constitutional basis for treating in-person instruction any differently.

The judge wrote that the McGlothians’ lawsuit could not be dismissed because the allegations in their complaint demonstrated that Virginia’s law applies only to classes on certain topics: “if a postsecondary school or a program at a postsecondary school is subject to SCHEVs certification requirements, it is because of the content of its speech.”

“What SCHEV is doing to us is not right,” said Jon McGlothian. “I wrote a book about project management and I don’t see why they should regulate me simply because I want to give the same information in a classroom.”

Judge Young’s decision recommends that the McGlothians’ lawsuit be allowed to proceed but that SCHEV be allowed to continue enforcing the law during the lawsuit. Both sides in the lawsuit will have the opportunity to file objections to Judge Young’s conclusions with the presiding district-court judge before the case continues.

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