dissenting.
The regulation being challenged in this case is a bizarre and draconian measure. On its face it constitutes a major infringement on the academic freedom of appellant educational institutions, as guaranteed by the First Amendment of the Constitution. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 312, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (Powell, J., concurring) (“[a]ca-demic freedom ... long has been viewed as a special concern of the First Amendment”). To my knowledge, this regulation is unique in the annals of United States jurisdictions; appellees have not pointed to any similar legislation or authorization showing otherwise.
Of course, it is not this stamp of originality that causes the actions of the Government of Puerto Rico to infringe upon appellants’ constitutional rights, but rather the subject matter that it attempts to regulate and the manner in which its authority is exercised over private academic institutions. See id. (among the four components of academic freedom are “what may be taught, [and] how it shall be taught”) (emphasis added) (Frankfurter, J. concurring in the result) (quoting Sweezy v. New Hampshire, 354 U.S. 234, 263, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957)). A casual reading of the offending regulation serves to illustrate the point.1
The general objective of the regulation as stated in its Rule 2 is “protecting Puer-to Rican family and parents ... who register their minor children in the private schools of Puerto Rico” by defining the “obligations and responsibilities of schools, books stores, distributors, and publishing houses in relation to the corresponding processes pertaining to the sale of textbooks.” Although this is an ostensibly valid, if paternalistic, exercise of Puerto Rico’s police powers, see Cuesnongle v. Ramos, 835 F.2d 1486 (1st Cir.1987) (a private school has no First Amendment right to be free of consumer protection regulations), one wonders' why thé state should interject itself into this aspect of a purely voluntary relationship inherent in private schooling, one which is merely a facet of choosing to pay for what is otherwise freely provided by the body politic. However, although the challenged regulation may be externally directed at consumer protection, it clearly transgresses into the area of how private schools and their alter egos, the teachers, are to teach, as well as the subject matter of what they can *89teach. This is quintessential interference with academic freedom, and “[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.” Shelton v. Tucker, 364 U.S. 479, 487, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960).
A brief perusal of the various parts of the regulation, taken in context, clearly reveals how it interferes with the how and what of academic freedom, without need for further inquiry. Rule 8, a provision at the heart of this controversy, requires all private schools to “announce the books that will be used the next school year on or before May 15 of the previous school year, if this school year starts on August” (or a similar three month interval if it is other than August). This must be done by posting the information on a bulletin board located in a conspicuous place in the educational institution, and by contemporaneously providing the list to the Government and to the parents. The parents’ list must contain “a briefing on the book, its title, author, publishing house, edition, and publishing year.”
Concomitant with these provisions is Rule 11 which states that where there are “changes in the edition, the school will inform in the book list which of these books have different editions, what the changes specifically consists of, and whether it is a significant change or not,” in which case the “school has to inform the parents ... that they have the option of buying the previous edition.” The term “significant change” is defined by Rule U(A) as
changes integrated in the new edition of a book that are significant and as such cause the total or partial revision of one or several chapters or sections. The exclusion of chapters or sections, ... [or changes in] chapter or section order ... do[ ] not constitute a significant change. Additions of one or several sentences to one chapter or section or through a new book edition will not be considered a significant change nor the addition of one or several drawings, graphics, tables, or photos.
Rule 12, on the other hand, requires all schools to disclose and notify parents and persons interested in enrolling their children of “the school policy regarding the addition, changes and modifications of the textbook list”, and mandates the posting of a sign in the school, which must be at least 8 and 1/2 by 11 inches in size with lettering no smaller than 22 points, spelling out the school’s obligations under the regulation and indicating the possibility of administrative fines in case of violations. Under Rule 18, these fines can be imposed against “[a]ny natural [ie., including individual teachers] or legal person”, and can be as high as $10,000, a not insubstantial figure, particularly for a teacher.
In my view, the gross intrusion that this regulation exerts upon the academic environment cannot be underestimated, nor does it, in my opinion, need any further proof than its mere existence. Its chilling effect upon constitutionally protected activity is self-evident. Rule 8 requires that a legally binding decision as to the academic content of a constitutive component of teaching — the books — be made by teachers and/or the teaching institution long before the academic year commences. This is followed by an elaborate bureaucratic policing mechanism which is not only highly intrusive, but is also highly intimidating. Compounding this arctic environment, the standard for compliance — as evidenced by the definition of what constitutes a “significant change” in the text of the school books — is vague, confusing and contradictory beyond redemption. Thus, the regulation unavoidably interjects the state into dictating the content of what *90academia may deem to be the appropriate subject matter and method of teaching.
With due respect, I find the majority’s proposed inquiry into the status of the school books in Puerto Rico’s private schools to be somewhat puzzling and disconcerting. See Maj. op. at 11-13. At the very least, it would appear that there is some use of school books by private schools in Puerto Rico, otherwise the Government would not attempt to regulate their use. Furthermore, it is self-evident that simultaneous use of two different texts in or out of the classroom is, at a minimum, academically and pedagogically disruptive. What is to be gained from the line of inquisition mapped by the majority is beyond my comprehension. Moreover, with due respect, under the circumstances before us, in which we are presented with a live case and controversy (i.e., enforcement of an extant regulation), the majority’s approach appears to be an unnecessary exercise and a waste of judicial resources.2 Nor does Univ. of Penn. v. EEOC, 493 U.S. 182, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990) — a case which is factually and qualitatively distinguishable from the present circumstances — demand the inquiries mandated by the majority. In all probability, teachers faced with a figurative overhanging ax for violating this extreme measure would adapt to the regulation and endure its resulting academic babel. But this argument completely misses the point. The constitutional intrusion emanates from their being required to do so.
That teachers can be forced to deliver lessons in a clearly different, and in my opinion, obviously deficient, academic environment does not weigh against the reality of the First Amendment incursion that such action constitutes, and no amount of inquiry can change the reality of the regulation’s text and its patent restrictions on academic freedom. Any other “analysis turns the First Amendment upside down.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) (Kennedy, J. concurring).
Puerto Rico, through an agency whose competency lies in consumer affairs, not education, has interfered with conduct protected by the First Amendment. With respect, I believe we should so declare and I therefore dissent.
*91APPENDIX A
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*92[[Image here]]
*93PRS ADC DACO REG. 6458, Reg. 6458-Regulations for the Disclosure of Information on the Sale and Distribution of Textbooks
*2445 P.R. Regs. DACO REG. 6458
REGULATIONS OF PUERTO RICO DEPARTMENT OF CONSUMER AFFAIRS (DACO, according to its Spanish acronym) REG.6458-REGULATIONS FOR THE DISCLOSURE OF INFORMATION ON THE SALE AND DISTRIBUTION OF TEXTBOOKS
This database contains regulations received until December 15, ■ 2003.
Reg. 6458 Regulations for the Disclosure of Information on the Sale and Distribution of Textbooks
I.
GENERAL GUIDELINES
R ULE 1 - LEGAL BASE
These regulations is adopted according to the powers conferred to the Secretary of the Department of Consumer Affairs as granted by Act Number 5 of April 23, 1973, as amended; and in accordance with Act Number 170 of August 12, 1988, as amended.
RULE 2 - GENERAL OBJECTIVES
These regulations have the main objective of protecting Puerto Rican family and parents, and /or tutors who register their minor children and/or wards in the private schools of Puerto Rico. Likewise, it is the intent to define the obligations and responsibilities of schools, bookstores, distributors, and publishing houses in relation to the corresponding processes pertaining to the sale of textbooks. Furthermore, the powers of the Department of Consumer Affairs are clarified, and the procedures and sanctions applicable to those who do not comply with the regulations are established.
RULE 3 - INTERPRETATION
(A) These regulations must be interpreted liberally in favor of consumers and in order to comply with the mandates of ACT Number 5, supra '
(B) In case of discrepancies between the original text in Spanish and the English translation, the Spanish text will prevail.
(C) The words and phrases used in these regulations will be interpreted according to the context in which they have been used and their meaning will be- according to normal everyday usage.
(D) In applicable cases, the words used in the present tense also include the -future tense; those used in the masculine gender include the feminine; the singular will include the plural and the plural will include the singular.
(E) The guidelines in these regulations will be interpreted in a way in which the public -policy of the Commonwealth of Puerto Rico to foment and respect educational diversity as consigned by Act Number 49 of June 30, 1988 is not compromised in any way.
RULE 4 - DEFINITIONS
TRANSLATOR’S NOTE: The following terms appear in alphabetical order in the original document, but fall out of the same when translated.
Unless otherwise stated, the following terms will have the meaning given to them herein:
*2446 (A) Significant change in the new edition of a book — historical, technological, scientific and/or cultural changes integrated in the -new edition of a book that are significant and as such cause *94the total or partial revision of one or several chapters or sections and/or the inclusion of one or several chapters or sections. The exclusion of chapters or sections, cosmetic changes and/or style, such as cover changes, chapter or section order, book texture and/or material does not constitute a significant change. Additions of one or several sentences to one chapter or section or through a new book edition will not be considered a significant change nor the addition of one or several drawings, graphics, tables, or photos.
(B) Publishing house — Natural person or legal person that edits a piece of work and/or book, covering publishing expenses and administering it commercially.
(C) Contract — all agreements, be it understood or work agreement, between a school and a distributor or bookstore or publishing house, be it oral or written, to coordinate the sales of books through a specific distributor, bookstore or publishing house; to grant the exclusive sale at the school through a specific distributor, bookstore or publishing house; to grant time and space in favor of a specific distributor, bookstore or publishing house for the purpose of selling books; or to preferably recommend the acquisition of books with a specific distributor, bookstore, or publishing house.
(D) Department or DACO — Department of Consumer Affairs.
(E) Distributor — all natural or legal persons dedicated to the distribution of textbooks or one who supplies to bookstores, even if said person works with retail sales, as well
(F) School — all private institutions, for-profit or not-for-profit, religious or secular, dedicated to preschool, elementary, middle and high school education or special education, within the territorial boundaries of the Commonwealth of Puerto Rico.
(G) Bookstore — all natural or legal persons dedicated to the retail sales of books, even, on a minor scale, supplies books to other businesses dedicated to book sales, as well.
(H) Book — all textbooks, dictionaries, reference books, handbooks, pamphlets, or study materials required or suggested by a school for the use of their academic programs and/or curricula.
(I) Parents — fathers, mothers, legal guardians, or any other persons who are responsible of the scholastic or academic life of a student.
(J) Secretary — the Secretary of the Department of Consumer Affairs.
RULE 5 - COMPLIANCE WITH WORK DAY
It is expressly stated that all affirmative action required for a determined date by these regulations from a school, distributor, bookstore and/or publishing house will be transferred to the next work day if said date is on a weekend or holiday.
RULE 6 - PROHIBITION
No distributor or bookstore or publishing house that is an exclusive distributor, producer, printer or editor of a selected book to be used by a school, may refuse to provide other distributors or bookstores a reasonable amount of copies at the prices usually applicable to wholesale.
*2447 RULE 7 - BURDEN OF PROOF
It is expressly stated that any person and/or person to whom these regulations require the compliance of a determined affirmative action or obligation will have the burden of proof that in effect said person complied to the specific acts as stipulated by these regulations.
*95II.
OBLIGATIONS AND RESPONSIBILITIES OF THE SCHOOL
RULE 8 - Obligation to provide a list of books to parents and to the Department
(A) All schools should announce the books that will be used the next school year on or before May 15 of the previous school year, if this school year starts on August or an equivalent month if the school year starts on a different month.
(B) The announcement will be done in a form prepared by the school itself and should be posted on a bulletin board in a conspicuous place in the educational institution.
(C) Also, this list will be provided on or before the date previously indicated to the Department and, to the parents, through the students themselves or attached to any communication that reaches the parents effectively on or before the required date, as stipulated by this rule.
(D) The list that will be sent to all parents will include the title of the books for the grade or grades their children will study during the next school year and this information shall include a briefing on the book, its title, author, publishing house, edition, and publishing year.
RULE 9 - Obligation to provide a booklist with their final sale price to parents and the Department
(A)In the case that the school has reached a contract agreement with a specific distributor, bookstore and/or a publishing house, the school has to inform on said situation to parents on a bulletin board located in a highly-conspieuous place, and in the form handed out by the school to the parents including booklist and that the contract is available to be examined by the parents, should the agreement be a written contract.
(B) Moreover, the school will inform, in the same bulletin board and in the same form, that said agreement or contract will in no way infringe on the parents’ right to buy the books in other bookstores, and/or via other distributors or publishing houses.
(C) Schools must submit to the Department a copy of said contracts within five (5) days of their granting, when these are written.
(D) The school must place the booklist, including a full review, the title of the book, author, publishing house, edition, publication year, and the final sale price in a highly-conspicuous bulletin board no later than May 15 prior to the start of the school.year, if said year starts In August; or on an equivalent month if the school year starts on a different month.
*2448 (E) Said book list, including final sale prices of books, will be submitted to the Department and to the parents on or before the May 15, prior to- the start of the school year, if said year starts in August or on an equivalent month if the school year starts on a different month. Providing the list to the parents should be done through the students themselves or attached to any communication which would effectively reach the parent on or before the date required by this rule.
RULE 10 - Obligation of informing the final sale price and corrections
The sale price required by these regulations to be disclosed shall be final. Price corrections affecting this list will be divulged to parents via the bulletin board in the most conspicuous place, by the students, or by mail within ten (10) calendar *96days from the time when the list was handed to the parents.
RULE 11 - Obligation of informing changes in the edition
In the case which there are changes in the edition, the school will inform in the book list which of these books have different editions, what the change specifically consists of, and whether it is a significant change or not, as defined by these regulations. In case that the changes are not significant, the school has to inform the parents on said list, that they have the option of buying the previous edition.
RULE 12 - Obligation to disclose information to parents regarding school policy on textbooks an on these regulations.
All schools must disclose and notify parents, and/or any person interested in enrolling children in said school of the school policy regarding the addition, changes and modification of the textbook list. Furthermore, the school must have a copy of these regulations available in the school library.
The school must announce a sign in a visible location and with legible letters the following statement:
“This school has the obligation to inform parents the pertinent process for book sale and distribution in accordance with the Regulations for the Release of Information About the Sale and Distribution of Textbooks of DACO. A copy of these regulations is available in our library. Not complying with the rules set forth in said regulations could lead to the levying of administrative fines in accordance with the DACO Organic Law.”
Said sign should not be smaller than eight and a half inches (8 1/2) by 11 inches (11) with a letter size no smaller than twenty-two (22) points.
The material to be used could be plastic, acrylic, or any other material that is not susceptible to deterioration.
All signs should be exposed in a visible area, which could include the main entrance, the bulletin board, or the school’s reception area, among others. Said sign cannot be placed more than five (5) feet away from the spot where parents would have visual access to it. Furthermore, the sign should be placed between five (5) and six (6) feet from the ground.
*2449 III.
Obligations and Responsibilities of the Distributor, Bookstore and/or Publishing House
RULE 13 - Obligation to provide to the school and the Department the book list with final sale prices
Every time a school and a distributor or bookstore or publishing house agree on or enter a contract, said distributor or bookstore or publishing house must give the school and the Department, no later than April 15 prior to the start of the school year, in case that the school year starts in August, or an equivalent month should the school year start on a different month, a list indicating the final sale price of the books to be sold by said distributor, or bookstore, or publishing house. The distributor, bookstore or publishing house must submit, free of charge, a copy of said list to parents, students or anyone who requests it, be it in person, by phone or in writing.
RULE 14 - Obligation to inform the school on changes in book editions
Any bookstore, distributor or publishing house that has a contract with a school must inform the school in the aforementioned list, and within the set time frame, which books changed edition, what the change consists of, and whether this *97change is significant or not, as defined in these regulations.
RULE 15 - Obligation to inform the school of mistakes and/or price corrections
Any bookstore, distributor and/or publishing house that has a contract with a school must inform said school of any error and/or correction to the book list prices within ten (10) calendar days, starting from the date this list was provided to the school.
If the school is not informed about these errors and/or corrections as herein required, the bookstore, distributor and/or publishing house must honor the final price informed in the list or the two prices.
RULE 16 - Increase in the Prices Informed on the Book List
The distributor, bookstore and/or publishing house that has a contract with the school cannot increase the prices informed on the book list, unless it mediates a direct authorization from DACO. To this effect, the distributor, bookstore and/or publishing house should present a written application form before DACO’s Division of Economic Studies accompanied with sufficient and truthful evidence to back said application.
*2450 RULE 17 - Book Availability
The bookstore, distributor or publishing house that has a contract with the school must make available for sale the books mentioned in the list with enough amounts to respond to the anticipated demand based upon the enrollment of students determined by the school for each grade.
IV.
VIOLATIONS AND PENALTIES
RULE 18 - Penalties
Any natural or legal person, who violates any rule in these regulations, does not comply with the obligation that these regulations imposes or fails to comply with any order issued by the Secretary of this Department in virtue of what has been disposed in these regulations, will be exposed to set administrative penalties and sanctions which include the imposition of fines of no more than $10,000.00, according to Act Number 5 of April 23, 1973, as amended.
RULE 19 - Corrective Action
Given the high public interest that implies the fact that parents obtain the information provided in these regulations no later than the above mentioned dates, the Department can take any corrective action as authorized by this Act and/or regulations by their own initiative without the need to file a complaint.
V.
MISCELLANEOUS PROVISIONS
RULE 20 - Disclaimer
If any provisions of these regulations were to be declared unconstitutional or illegal by a competent jurisdictional court, said determination will neither affect nor invalidate the rest of these regulations, but instead the effect will be limited to the part, article, paragraph, or clause that would have been declared unconstitutional or illegal.
RULE 21 - Consumer Protections
Nothing of what has been set forth in these regulations shall keep the Secretary of DACO from applying the powers and faculties conferred to him, or her, by the Organic Law which protects consumers, or stop him, or her, from carrying out his, or her, duties.
RULE 22 - Repealing Clause
*98The Regulations for the Disclosure of Information on the Sale and Distribution of Textbooks are herein repealed. Approved on February 19, 1992, File No. 4635 at the Department of State.
Rule 23 - Effect
These regulations shall take effect immediately upon its approval by the Secretary of State.
In San Juan, Puerto Rico on May 1, 2002 Fernando L. Torres Ramirez, Esq. Secretary
Copyright 2004 West, a Thomson business. No claim to original U.S. Govt, works.
TRANSLATOR’S NOTE:
The following information: PRS ADC DACO REG. 6458, Reg. 6458-Regula-tions for the disclosure of information on the sale and distribution of textbooks appears at the top of each page in the original document.
The following information: Copyright 2004 West, a Thomson business. No claim to original U.S. Govt, works appears at the end of each page in the original document.
They were omitted for formatting and space reasons.
. The regulation is reproduced in full in Appendix A.
. Despite being reversed, the district court will learn nothing it did not already know about the First Amendment from the majority opinion.