Andrew Wimer
Andrew Wimer · July 24, 2018

Richmond, Va.—In Virginia, you can teach anyone anything—except how to earn an honest living. That’s the lesson Jon and Tracy McGlothian learned when they tried to open a school to teach job skills to adults in their Virginia Beach community. Yet the State Council of Higher Education for Virginia (SCHEV) has made it virtually impossible for them to do so legally.

SCHEV says that Jon and Tracy can’t teach skills like project management or sewing without its permission; permission the council has refused to grant for more than two years. That’s why Jon and Tracy have teamed up with the Institute for Justice (IJ) to file a federal lawsuit against SCHEV to vindicate their right to teach for a living.

Jon and Tracy worked for a lifetime to build skills to become, respectively, a certified project management professional (PMP) and experienced sewer. 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. Under Virginia law, they could freely teach anyone these skills as a hobby, but cannot teach the general public if students want to use their classes to earn an honest living.

“What SCHEV is doing violates the First Amendment,” said Paul Sherman, a senior attorney with IJ. “Teaching is speech, and the government has no business telling Jon and Tracy they’re not allowed to teach willing adults. Under the First Amendment, people get to decide for themselves which speakers are worth learning from; the government doesn’t get to decide that for them.”

Jon, a former Army Ranger, used his military and corporate experience as a foundation to become a project manager. Project managers are responsible for planning and executing projects in an organized and strategic way to make sure projects are finished on time and on budget. TMOG is a Registered Education Provider with the Project Management Institute (PMI) and teaches project management for private companies and federal government clients. But even though Jon is permitted to teach for corporate and government clients, he has to prove to SCHEV that TMOG is a qualified vocational school in order to teach the general public, even though SCHEV knows nothing about project management.

“There’s incredible demand right now for certified project managers, particularly here in Virginia and Washington, D.C.,” said Jon. “Service members, in particular, develop skills and experience that make the field of project management a great option for a post-military career. I would love to help train people to fill those jobs. The only thing standing in my way is SCHEV.”

Tracy has an MBA, a successful sewing business, and has been asked by members of her community to teach them sewing skills so that they can support themselves. Under SCHEV’s rules, she can teach people sewing as a hobby, but the moment she tries to teach someone who wants to use these skills to earn a living, she becomes subject to SCHEV’s full regulatory regime.

“I don’t think what SCHEV is doing to us is right,” said Tracy. “The government couldn’t regulate me if I wrote a book about sewing, so I don’t see why they should regulate me simply because I give people that same information in a classroom.”

Getting permission from SCHEV to open a vocational school is no easy task. Jon and Tracy must satisfy dozens of bureaucratic requirements, complete mountains of paperwork, pay thousands of dollars in fees and even rent teaching space and assemble a library before they know whether they will be approved. Jon and Tracy assembled a 15-part binder filled with mandatory paperwork and revised their application after receiving a 7-page letter back from SCHEV, but they were still rejected after more than two years of trying.

“What’s happening to Jon and Tracy is part of a nationwide problem,” said Milad Emam, an attorney with IJ. “Across the country, government bureaucrats are acting as if people who speak for a living aren’t protected by the First Amendment. But that’s not right, and the U.S. Supreme Court has said it’s not right. That’s why we’ve filed a lawsuit on Jon and Tracy’s behalf to vindicate their First Amendment rights.”

The lawsuit argues that just as SCHEV would have no right to stop Jon and Tracy from publishing a book or posting an online video on project management or sewing, there is no constitutional basis for treating in-person instruction any differently. The suit also challenges SCHEV’s regulation of Jon’s PMP prep course since many other similar courses intended to teach individuals to pass a test are exempt.

This marks the second time IJ has paired with Virginia small-business owners to challenge SCHEV’s regulations. In 2009, IJ represented yoga instructors who were stopped from teaching other individuals how to become yoga instructors. The case ended when the Virginia legislature exempted yoga teachers and other hobby instructors from SCHEV’s regulation, but left in place the regulations that Jon and Tracy have found insurmountable.

IJ is the national leader in defending the right to speak for a living, having represented speakers ranging from tour guides in Washington, D.C., to veterinarians in Texas. IJ is currently challenging government restrictions on occupational and commercial speech in South Carolina, Georgia, Florida, and California.