Garcia-Padilla v. Assoc. de Educaction

United States Court of Appeals
For the First Circuit

No. 06-1146

ASOCIACIÓN DE EDUCACIÓN PRIVADA DE PUERTO RICO, INC.;
PUERTO RICO INNOVATIVES EDUCATION SERVICES, INC., d/b/a
COLEGIO TOMÁS ALVA EDISON; CORPORACIÓN EDUCATIVA
RAMÓN BARQUIN, d/b/a AMERICAN MILITARY ACADEMY;
ACADEMIA INMACULADA CONCEPCIÓN-MAYAGÜEZ; SOUTHWESTERN
EDUCATIONAL SOCIETY, INC.; GUAMANÍ SCHOOL, INC.;
COLEGIO ADIANEZ, INC.; ANTILLES MILITARY ACADEMY, INC.;
FUNDACIÓN EDUCATIVA CONCEPCIÓN MARTÍN, INC., d/b/a SONIFEL;
SAINT FRANCIS SCHOOL, INC.; AMERICAN SCHOOL, INC.,

Plaintiffs, Appellees,

ACADEMIA DISCÍPULOS DE CRISTO; ACADEMIA BAUTISTA DE
PUERTO NUEVO; COLEGIO ROSABEL; EPISCOPAL CATHEDRAL SCHOOL;
COLEGIO DE LA VEGA; COLEGIO TITI FE; ESCUELA PRESCOLAR
ELEMENTAL E INTERMEDIA DASKALAS; CAGUAS MILITARY ACADEMY;
COLEGIO RADIANS; FREDERICK FROBEL BILINGUAL SCHOOL;
COLEGIO KIANY; FAJARDO ACADEMY,

Plaintiffs, Appellants,

v.

ALEJANDRO GARCÍA-PADILLA, Secretary of the Department of
Consumer Affairs of the Commonwealth of Puerto Rico,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]

Before

Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
 Salvador J. Antonetti-Stutts, Solicitor General, with whom
Mariana D. Negrón-Vargas, Deputy Solicitor General, and Irene S.
Soroeta-Kodesh, Assistant Solicitor General, were on brief, for
appellant.
Antonio J. Amadeo-Murga, for appellees.
Alexander E. Dreier, with whom H. Christopher Bartolomucci,
Sarah M. Berger, Hogan & Hartson L.L.P., Debra P. Wilson, Legal
Counsel, National Association of Independent Schools, on brief, as
amici curiae for the National Association of Independent Schools
and the Council for American Private Education.

April 11, 2007

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 TORRUELLA, Circuit Judge. This appeal is the second trip

to this Court for the parties to this litigation. The parties'

dispute began when Asociación de Educación Privada de Puerto Rico,

Inc., a nonprofit private association representing the interests of

private primary, secondary, and post-secondary member schools in

Puerto Rico, together with certain individual schools (together,

the "private schools"), filed a complaint against the Secretary of

the Department of Consumer Affairs of Puerto Rico ("DACO"). The

complaint alleged that DACO's Rule 11 of Regulation 6458, entitled

"Regulation for the Disclosure of Information on the Sale and

Distribution of Textbooks" ("Reglamento para la Divulgación de

Información en la Venta y Distribución de Libros de Texto"),

violates the private schools' First Amendment rights to free speech

and academic freedom. The private schools sought a declaration to

that effect and injunctive relief. The district court dismissed

the private schools' complaint pursuant to Federal Rule of Civil

Procedure 12(b)(6) for failure to state a claim upon which relief

could be granted. We reversed that dismissal and remanded the

case, explaining that the district court had insufficient facts

about Regulation 6458's implementation and the resulting burdens

and benefits to decide that the private schools had stated no

legally sufficient claims.

On remand, the district court entered an initial

scheduling order asking the parties to submit pretrial briefs

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addressing which First Amendment rights are implicated by Rule 11

of Regulation 6458, the nature and weight of the burdens imposed on

the private schools, and the strength of the government's

justifications for imposing the burdens. The private schools

subsequently amended their complaint to add a cause of action

alleging that the Commonwealth of Puerto Rico's Law 116 of May 18,

2004 ("Law 116"), entitled "Law for the Acquisition of School

Textbooks" ("Ley para la Compra de Libros de Textos Escolares"),

also violated the private schools' rights to academic freedom and

free speech. The private schools again sought a declaratory

judgment and injunctive relief, as well as costs and attorneys'

fees.

After a one-day trial, the district court found that Rule

11 of Regulation 6458 and Law 116 violated the private schools'

rights under the First Amendment, holding that neither provision

was narrowly tailored to further Puerto Rico's legitimate state

interests. The Secretary of DACO appealed that ruling. After

careful consideration, we affirm the district court's judgment as

to Law 116, reverse its decision as to Rule 11, and remand with

instructions to modify the permanent injunction to enjoin only that

portion of Rule 11 that violates the private schools' right to

academic freedom.

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 I. Background

Even though Puerto Rico law makes Puerto Rico's Secretary

of Education responsible for "establish[ing] the standards and the

requirements that shall be met by the educational institutions that

request a license,"1 P.R. Laws Ann. tit. 18, § 2113, DACO's

Secretary has also asserted authority over the regulation of

private schools. On May 1, 2002, DACO promulgated Regulation 6458

with the stated purpose of "protecting Puerto Rican famil[ies] and

parents, and/or tutors who register their minor children and/or

wards in the private schools of Puerto Rico." Reg. 6458, R.2.

Regulation 6458 was also expressly intended "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." Id.

1
The private schools of Puerto Rico are required by statute to
operate under a license. P.R. Laws Ann. tit. 18, § 2111. The
Secretary of Education's power to regulate schools is subject to a
proviso protecting the schools' authority to develop their academic
programs. P.R. Laws Ann. tit. 18, § 2117 ("The license to be
issued by the Secretary by virtue of this subchapter will be
institutional in nature and shall include the authorization to
issue diplomas, certificates or degrees up to the maximum academic
level established in the license. Provided, [t]hat a private
educational institution, by virtue of the license issued, and
pursuant to academic autonomy this chapter provides, protects and
fosters, may establish new academic programs, additional courses or
any other academic measure, provided the same does not exceed the
maximum academic level authorized by the license, nor modifies its
institutional objectives or mission.").

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 Regulation 6458 imposes several obligations on the

private schools. Rule 8 of the regulation directs schools to post

on school grounds, by May 15 of the every year, a list of books to

be used the following school year. Id. at R.8(A), (B). Under this

rule, private schools must also provide DACO and the parents with

the list of books, which must include "a briefing on the book, its

title, author, publishing house, edition, and publishing year."

Id. at R.8(C), (D). Rule 9 instructs private schools to disclose

to DACO and parents final textbook prices and any agreement the

schools have reached with a book seller. Id. at R.9(A). The

schools must disclose on the same notice 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." Id. at R.9(B). Moreover, "[t]he 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." Id. at R.9(D).

Rule 10 requires private schools to inform parents of price

changes. Id. at R.10. Rule 11, the specific provision challenged

by the private schools, provides:

In the case which [sic] there are changes in
the edition, the school will inform [sic] 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

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 parents on said list, that they have the
option of buying the previous edition.

Id. at R.11. Rule 12 requires schools to disclose to parents the

existence and applicability of Regulation 6458. Id. at R.12.

Schools must post a notice, in a sign not smaller than eight and a

half inches by eleven inches, with a letter size not smaller than

twenty-two points, not more than five feet away from a place to

which parents can have visual access, and between five and six feet

from the ground, containing the following language:

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.

Id. Failure to comply with Regulation 6458 may result in the

imposition of fines of up to $10,000.2 Id. at R.18.

On May 18, 2004, Law 116 was enacted with the stated

purpose of "providing that all private schools authorized to

operate in the Commonwealth of Puerto Rico must count with the

consent of the Association, Council of Teachers and Parents to

2
By contrast, Puerto Rico's Education Code provides that "[a]ny
natural or juridical person who operates a private educational
institution as defined in this subchapter without the proper
license provided therein shall be guilty of a misdemeanor and, upon
conviction thereof, shall be punished with a fine not to exceed
five hundred (500) dollars." P.R. Laws Ann. tit. 18, § 2124.

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determine the maximum budget applicable to each grade for the

acquisition of textbooks required in each school year." Law 116,

preamble. Law 116 establishes that

[e]very private school accredited by the
General Council of Education that requires the
acquisition of school textbooks to their
students shall have the consent of [an
association or council of parents and teachers
of children in that private school] to
determine the maximum budget applicable for
each school grade for the acquisition of said
books required in each school year.

Law 116, Art. 3.

Both Law 116 and Regulation 6458 define the relevant

books broadly. Under Law 116, "school textbook" means "every text,

dictionary, reference textbooks [sic], handbook, pamphlet, or

material for study required or suggested by any private school for

use of the academic or curricular program." Id. at Art. 2(c).

Regulation 6458 defines "book" to mean "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." Reg. 6458 at R.4(H).

On remand, the district court made the following findings

of fact regarding the implementation of Regulation 6458 and Law

116.

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 Textbooks are pedagogical tools used on a daily basis to

teach substantive information.3 They are also used by teachers and

school administrators to develop curricula and lesson plans.

Textbooks are widely used in private primary and secondary schools

in Puerto Rico.

Private schools choose textbooks that are consistent with

their particular academic and educational vision, mission,

philosophy, curriculum, and methodology, all of which vary

significantly among Puerto Rican private schools. In choosing

textbooks, private schools also consider significant developments

in an educational field, the introduction of a new pedagogical

approach, and the availability of the new edition as opposed to the

old edition of a particular textbook. Secondarily, the schools

also take into account the price and availability of textbooks.

The textbook selection process is school-specific. In

general, private schools will first evaluate a new edition or

series for whether the textbook is aligned with the school's

curriculum, mission, vision, philosophy, and methodology, and

whether it meets the students' needs. Teachers often make

3
Textbooks comprise more than their bound volumes alone.
Textbooks are often accompanied by resource kits, which include
audio and visual multimedia materials such as audio cassettes,
CD-ROMs, DVDs, floppy disks, and transparencies. Moreover,
textbooks are frequently accompanied by related workbooks, which
are usually textbook-edition-specific. These workbooks are often
used for lesson enforcement, preparation, or extra practice in
correlation with a specific in-class lesson.

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independent evaluations of textbook series or editions based on the

above-mentioned criteria. After an initial independent evaluation

by individual teachers, the teachers often meet as a group on

multiple occasions to determine whether the series or edition meets

the criteria. Teachers then share their input with school

administrators, who review the teachers' conclusions, sometimes

making their own independent assessment of the textbooks.

Teachers' input in this process is highly valued by the schools.

Some private schools retain external consultants with

expertise in certain substantive areas to advise teachers or

administrators about new textbooks or pedagogical methods.

Parental participation in selecting textbooks in private schools is

typically minimal or nonexistent. At some private schools, parents

act as a general sounding board or advisory group, but the ultimate

decision of which books are selected resides with the private

schools.

Private schools do not generally change the editions or

series of textbooks for all subject areas at once. For instance,

one Puerto Rican private school evaluates the textbooks at the rate

of approximately two subjects per year.

Publishing houses inform private schools about their new

textbook series or editions through conferences, telephone calls,

and direct mailings of brochures, sample textbooks, and educational

kits. Textbook publishers change the edition of a textbook every

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two to six years. Certain substantive areas are apt to change more

frequently than others. For instance, new editions of science

textbooks may be introduced by publishers every two to three years,

while English textbook editions usually change only every five or

six years. Notice of new textbook editions varies generally from

one year to a couple of months before a new academic year.

After choosing textbooks to be used in the upcoming

academic year, private schools create a list of the books selected.

Consistent with Rule 8 of Regulation 6458, the schools provide

parents with that list no later than May 15th of the previous

academic year.

The use of two different textbooks to teach a class has

in the past resulted in disruption in the classroom. In the 2004-

05 academic year, a ninth grade Social Studies teacher at Tomás

Alva Edison School, a private secular school in Caguas, Puerto Rico

serving 700 students, decided not to require students to buy the

new edition of their Social Studies textbook because the teacher

and the school believed that the old textbook edition was

acceptable and the changes between the old and new edition were not

significant. Because the old textbook edition was out of print,

some students were unable to find it and had to buy the new

edition. Consequently, both editions of the textbooks were used in

the same classroom.

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 The two editions were paginated differently, which,

according to the teacher, created disruption and classroom

management problems. Moreover, the teacher was forced to use

cooperative groups to teach some lessons even though the teacher

and school administrators did not think this teaching method was

appropriate for the subject matter.

Ana Christina Sánchez, the school director of Colegio

Adianez, a private secular primary and secondary school with 780

students in Guaynabo, Puerto Rico and the president of the private

schools association also had an experience teaching with two

different textbook editions before the promulgation of Regulation

6458. Although Sánchez did not think that the changes between the

editions were significant, she found that having two editions of

the same textbook was disruptive in the classroom, primarily

because the same material appeared on different pages. She stated

that it was difficult to maintain the students' attention and that

a classroom-management problem developed. After a few weeks, she

required all the children to purchase and use only the new edition

of the textbook.

II. Standard of Review

We review a grant of permanent injunctive relief for

abuse of discretion. See A.W. Chesterton Co., Inc. v. Chesterton,

128 F.3d 1, 5 (1st Cir. 1997). We review a district court's

findings of fact for clear error. See Aponte v. Calderón, 284 F.3d

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184, 191 (1st Cir. 2002). Questions of law are reviewed de novo.

See id.

III. Discussion

The standard for issuing a permanent injunction requires

the district court to find that (1) plaintiffs prevail on the

merits; (2) plaintiffs would suffer irreparable injury in the

absence of injunctive relief; (3) the harm to plaintiffs would

outweigh the harm the defendant would suffer from the imposition of

an injunction; and (4) the public interest would not be adversely

affected by an injunction. A.W. Chesterton Co., Inc., 128 F.3d at

5.

1. Success on the Merits

The private schools maintain, and the district court

held, that Rule 11 of Regulation 6458 and Law 116 violate their

right to academic freedom under the First Amendment. The private

schools argue that by preventing them from selecting and requiring

textbooks of their choice, Rule 11 of Regulation 6458 and Law 116

infringe on their constitutional right to determine for themselves,

as educational institutions, what to teach and how to teach it.

The Supreme Court has recognized that "[o]ur Nation is

deeply committed to safeguarding academic freedom, which is of

transcendental value to all of us." Keyishian v. Bd. of Regents of

Univ. of State of N.Y., 385 U.S. 589, 603 (1967). "Academic

freedom, though not a specifically enumerated constitutional right,

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long has been viewed as a special concern of the First Amendment."

Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 312 (1978).

The right to academic freedom "establish[es] a zone of First

Amendment protection for the educational process itself, which, in

proper circumstances, must include not only students and teachers,

but their host institutions as well." Cuesnongle v. Ramos, 713

F.2d 881, 884 (1st Cir. 1983).

In the 1950s, the Supreme Court defined the right to

academic freedom in a series of decisions limiting the reach of

state laws that required publicly employed teachers to take loyalty

oaths. In these opinions, the Court invoked academic freedom to

protect universities, as academic institutions, against government

control.

The concern that schools require protection from

government interference first appeared in Justice Frankfurter's

concurring opinion in Weirman v. Updergraff, 344 U.S. 183 (1952).

The Court in Weirman held that an Oklahoma statute requiring that

state employees take an oath denying past and present affiliation

with certain "subversive" groups violated the appellants' right to

due process. Id. at 191-92. In his concurrence, Justice

Frankfurter warned of the "unwarranted inhibition upon the free

spirit of teachers," as it would result in "caution and timidity."

Id. at 195 (Frankfurter, J., concurring in the judgment). He wrote

that "teachers -- in our entire educational system, from the

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primary grades to the university -- . . . cannot carry out their

noble task if the conditions for the practice of a responsible and

critical mind are denied to them." Id. at 196 (emphasis added).

Thus, "[t]he functions of educational institutions in our national

life and the conditions under which alone they can adequately

perform them are at the basis of . . . limitations upon State and

national power." Id. at 197.

Five years later, the Court explicitly articulated a

theory of constitutional protection for academic freedom in Sweezy

v. New Hampshire, 354 U.S. 234 (1957). A plurality of the Court

held that a college professor's contempt conviction -- for refusing

to answer the state government's questions about the content of his

lectures and his knowledge of the Communist party -- violated the

professor's right to free speech and academic freedom. See id. at

250. Although the plurality opinion ultimately decided the case on

due process grounds, it addressed the role of academic freedom:

The essentiality of freedom in the community
of American universities is almost
self-evident. No one should underestimate the
vital role in a democracy that is played by
those who guide and train our youth. To
impose any strait jacket upon the intellectual
leaders in our colleges and universities would
imperil the future of our Nation. No field of
education is so thoroughly comprehended by man
that new discoveries cannot yet be made.
Particularly is that true in the social
sciences, where few, if any, principles are
accepted as absolutes. Scholarship cannot
flourish in an atmosphere of suspicion and
distrust. Teachers and students must always
remain free to inquire, to study and to

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 evaluate, to gain new maturity and
understanding; otherwise our civilization will
stagnate and die.

Id.; see also Urofsky v. Gillmore, 216 F.3d 401, 413 (4th Cir.

2000) ("[In Sweezy,] six justices agreed that the First Amendment

protects values of academic freedom.").

In his Sweezy concurrence, Justice Frankfurter, who along

with Justice Harlan provided the votes necessary to reverse,

relied exclusively on academic freedom as protected by the First

Amendment to find the professor's conviction unconstitutional. Id.

at 266 (Frankfurter, J., concurring in the result). Warning that

"governmental intrusion into the intellectual life of a university"

creates a "grave harm," Id. at 261, Justice Frankfurter went on to

articulate an institutional right to academic freedom:

It is the business of a university to provide
that atmosphere which is most conducive to
speculation, experiment and creation. It is
an atmosphere in which there prevail the four
essential freedoms of a university -- to
determine for itself on academic grounds who
may teach, what may be taught, how it shall be
taught, and who may be admitted to study.

Id. at 263 (internal quotation marks omitted).4

4
Justice Frankfurter's articulation of academic freedom as
institutional autonomy was later adopted by Justice Powell in his
separate yet controlling opinion in Bakke. 438 U.S. at 312.
Justice Powell held that even though the Fourteenth Amendment and
Title VI prohibited a state from penalizing an applicant on the
basis of race, the First Amendment right to academic freedom
empowered a state university to take race into account in admitting
students when doing so in pursuit of the academic goal of a diverse
student body. Id. at 311-19. Justice Powell relied on the fourth
of Justice Frankfurter's "four essential freedoms" –- the right of

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 Three years later, the Court again invoked academic

freedom to strike down an Arkansas statute compelling teachers to

list every organization to which they had belonged in the last five

years. Shelton v. Tucker, 364 U.S. 479 (1960). The Shelton

court's decision reiterated the judiciary's willingness to protect

academic freedom and expanded its purview to secondary schools,

holding that "[t]he vigilant protection of constitutional freedoms

[of speech, inquiry and association] is nowhere more vital than in

the community of American schools."5 Id. at 487.

a university to determine for itself on academic grounds who may be
admitted to study. Id. at 312. Justice Powell's academic freedom
rationale was later endorsed by a majority of the Supreme Court in
Grutter v. Bollinger, 539 U.S. 306, 325 (2003).
5
Although Shelton was the first case in which the Supreme Court
explicitly applied the protection of academic freedom in the
secondary education context, traces of the Court's willingness to
protect the rights of primary and secondary schools to teach as
they please existed as early as 1923. In Meyer v. Nebraska, the
Supreme Court declared a state law prohibiting the teaching of
foreign languages in private and public schools unconstitutional
because no legitimate state interest justified the regulation that
"attempted materially to interfere with the calling of modern
language teachers, with the opportunities of pupils to acquire
knowledge, and with the power of parents to control the education
of their own." 262 U.S. 390, 401-03 (1923).

Two years later, the Supreme Court struck down a state statute
requiring all children between the ages of eight and sixteen years
to attend public school as unconstitutional noting that "[private
schools] are engaged in a kind of undertaking not inherently
harmful, but long regarded as useful and meritorious. Certainly
there is nothing in the present records to indicate that they have
failed to discharge their obligations to patrons, students, or the
state." See Pierce v. Soc. of the Sisters of the Holy Names of
Jesus and Mary, 268 U.S. 510, 534-36 (1925).

Finally, in Farrington v. Tokushige, the Supreme Court

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 In view of this history, we find that the private schools

have a First Amendment right to academic freedom. By the same

token, we also acknowledge the right and power of the state to

promulgate reasonable regulations affecting private primary and

secondary schools to ensure that minimum educational standards are

met.6 See Pierce, 268 U.S. at 534 ("No question is raised

addressed the constitutionality of a Hawaii statute heavily
regulating private schools. 273 U.S. 284 (1927). The Court held
that the statute went "far beyond mere regulation of privately
supported schools" because it "[gave] affirmative direction
concerning the intimate and essential details of such schools,
intrust[ed] their control to public officers, and den[ied] both
owners and patrons reasonable choice and discretion in respect of
teachers, curriculum and text-books." Id. at 297 (emphasis added).

Although Meyer, Pierce, and Tokushige were decided on due
process grounds, Meyer, 262 U.S. at 401-03; Pierce, 268 U.S. at
534-35; Tokushige, 273 U.S. at 298-99, each was decided in the
1920s, before the Bill of Rights was incorporated into the
Fourteenth Amendment. Thus, although they do not expressly address
a right to academic freedom, these cases stand for the proposition
that "the State may not, consistently with the spirit of the First
Amendment, contract the spectrum of available knowledge." Griswold
v. Connecticut, 381 U.S. 479, 482 (1965); see also Brown v. Hot,
Sexy & Safer Prods., Inc., 68 F.3d 525, 533 n.5 (1st Cir.
1995)(noting that Meyer and Pierce would probably be decided today
on First Amendment grounds).
6
There is no doubt of a state's heightened interest in regulating
primary and secondary schools. See Bd. of Educ., Island Trees
Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 864 (1982)
(noting that states have broad discretion in the management of
secondary education because secondary schools "are vitally
important in the preparation of individuals for preparation as
citizens and as vehicles for inculcating fundamental values
necessary to the maintenance of a democratic political system")
(quotation marks omitted)). As such, the right to academic freedom
in secondary education is necessarily more circumscribed than that
of a university. However, we need not demarcate the precise
boundaries of academic freedom in primary and secondary schools
here. Suffice it to say that in this case, the regulation of

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concerning the power of the state reasonably to regulate all

schools, to inspect, supervise and examine them, their teachers and

pupils . . . ."); Board of Ed. of Central Dist. No. 1 v. Allen, 392

U.S. 236, 246 (1968)("[A] substantial body of case law has

confirmed the power of the States to insist that attendance at

private schools, if it is to satisfy state compulsory-attendance

laws, be at institutions which provide minimum hours of

instruction, employ teachers of specified training, and cover

prescribed subjects of instruction."). Still, "the discretion of

the States and local school boards must be exercised in a manner

that comports with the transcendental imperatives of the First

Amendment." Bd. of Educ., Island Trees Union Free Sch. Dist. No.

26 v. Pico, 457 U.S. 853, 864 (1982). Mindful of this balancing

requirement, we examine the constitutionality of Regulation 6458

and Law 116.

The private schools claim that both Rule 11 of Regulation

6458 and Law 116 violate their right to academic freedom because

they interfere with their right to determine "what may be taught"

and "how it shall be taught," delegating those determinations to

textbooks implicates academic freedom sufficiently to require the
state to demonstrate that the regulation withstands constitutional
scrutiny.

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the state government and to parents.7 We analyze each provision in

turn.

A. Regulation 6458

Regulation 6458 requires the private schools to announce

what books will be used in a school year, Reg. 6458, R.8, to

disclose the book prices and any agreements they may have with book

sellers, id. at R.9, to inform parents of any price changes, id. at

R.10, and to disclose to parents the existence and applicability of

Regulation 6458. Id. at R.9. Regulation 6458 also requires that

[i]n the case which [sic] 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 [sic] said list, that they have the
option of buying the previous edition.

Id. at R.11.

Under Regulation 6458, significant changes are

"historical, technological, scientific and/or cultural changes

integrated in the new edition of a book that are significant and as

7
Law 116 provides the authority of the "Association or Council of
Parents" in each private school to approve or reject a private
school's proposed textbook budget. As such, the Association's
members' acts are performed under color of state law, thus
constituting acts of the state within the meaning of the Fourteenth
Amendment. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 68
(1963)(finding that acts and practices of a commission created to
"encourage morality in youth" were "performed under color of state
law" and thus were state action).

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such cause the total or partial revision of one or several chapters

or sections and/or the inclusion of one or several chapters or

sections." Id. at R.4(A). However,

[t]he 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.

Id. Regulation 6458 does not set forth a procedure for resolving

disputes between DACO and a private school over what may be

considered a "significant change."8

The district court held that "Rule 11 of Regulation 6458

imposes restraints on [the private schools'] First Amendment rights

of free speech and, even more pointedly, academic freedom."

Asociación de Educación Privada de Puerto Rico, Inc. v. García

Padilla, 408 F. Supp. 2d 62, 71 (D.P.R. 2005). We agree.

Rule 11 of Regulation 6458 interferes with the private

schools' decisions regarding what may be taught and how it may be

8
According to trial testimony, at one point, DACO had contacted
the Puerto Rico Department of Education regarding the formation of
a panel to provide the Secretary of DACO with information about
what constitutes a "significant change" in diverse educational
subject areas. However, this effort ceased after the change in
administrations. There is no indication that the institution of
such a panel will be pursued in the future, nor is it clear that
the establishment of such a panel would be dispositive of the
issues raised by this case.

-21-
taught. See Sweezy, 354 U.S. at 263 (Frankfurter, J., concurring

in the result). Textbooks are pedagogical tools essential not only

to the teaching of substantive information, but also to the

development of effective curricula and lesson plans. García

Padilla, 408 F. Supp. 2d at 65-66.

Teachers at private schools rely heavily on
textbooks to create their individualized
course syllabi and daily lesson plans.
Teachers also rely on textbooks to prepare
student assessments, such as examinations.
Textbooks are employed as the primary method
to convey the substantive content of lessons
to students and to impart or strengthen new
skills. Textbooks are widely used in the
classroom, as well as for student extra
practice, lesson preparation or review,
assessment preparation, remediation,
enrichment, and homework assignments.

Id. at 71-72.

A school's selection of textbooks is thus closely tied to

its First Amendment right to expression. If most of the

instruction presented to students comes from textbooks, the

knowledge students glean from those textbooks significantly

influences their understanding of and perspectives on particular

subjects. See M. David Bieber, Textbook Adoption Laws,

Precensorship, and the First Amendment: The Case Against Statewide

Selection of Classroom Materials, 17 J. Marshall L. Rev. 167, 167

(1984) (arguing that state textbook adoption laws have been

manipulated "to accomplish ideological suppression" and proposing

that states "return control of textbook selection to local school

-22-
boards"). This is especially important in subjects dominated by

diverging viewpoints, discussion, and debate, where it is

impossible to separate factual from ideological content. See id.;

Martin H. Redish & Kevin Finnerty, What Did You Learn in School

Today? Free Speech, Values Inculcation, and the Democratic-

Educational Paradox, 88 Cornell L. Rev. 62, 111 (2002) (arguing

that state control over the public educational process, for example

in the selection of textbooks, threatens First Amendment values).

Accordingly, the selection of textbooks is an important pedagogical

decision because the chosen textbook often represents the student's

only source of understanding of these subjects. See Redish &

Finnerty, supra ("By selecting history texts, a school ingrains in

its students a particular understanding of American history, and

the likelihood that they will be exposed to contrary perspectives

is relatively minimal.").

Rule 11 interferes with "what may be taught" in private

schools. Sweezy, 354 U.S. at 263 (Frankfurter, J., concurring in

the result). Rule 11 dictates that if DACO determines that changes

between textbook editions are not significant, a school cannot

require parents to buy the newer edition. The rule thus forces

schools to teach using different textbook editions with differing

content. In fact, Regulation 6458's definition of "significant

change" virtually ensures that the private schools will have to

allow its students to use textbooks with content the schools do not

-23-
approve of, either because it includes information that the schools

do not wish to teach or because it lacks information the schools

would like to teach. For example, a private school may find the

inclusion of new photographs and diagrams in a science textbook

particularly helpful in teaching a particular concept, and yet Rule

11 of Regulation 6458, by its very terms, would prevent the private

school from requiring its students to purchase that textbook

because under Regulation 6458, the addition of drawings, graphics,

tables, photographs does not constitute a significant change

between textbook editions. See Reg. 6458, R.4(A).

More alarmingly, Regulation 6458 may force schools to

teach using books that contain information directly in conflict

with its particular philosophy, methodology, or mission.

Regulation 6458 provides that a "significant change" is a

"historical, technological, scientific and/or cultural change[]

. . . [that] cause[s] the total or partial revision of one or

several chapters or sections and/or the inclusion of one or several

chapters or sections," but not "[t]he exclusion of chapters or

sections" or "additions of one or several sentences to one chapter

or section or through a new book edition." Id. But the exclusion

or inclusion of even one sentence or phrase may very well be

considered a significant change by a private school for either

teaching purposes or in light of the school's academic philosophy

or mission. In fact, seemingly minor changes in text may be

-24-
precisely what makes a book's new edition acceptable to a school

and consistent with the message the school wishes to convey. For

example, a book may become acceptable by virtue of the omission in

a later edition of language found in prior editions. Compare

Thomas A. Bailey, The American Pageant: A History of the Republic

579 (5th ed. 1975) (describing Jews as "nerve racked [sic]"); id.

at 6 (referring to Native Americans as "near-naked natives"); id.

at 55 (referring to a woman fighting back "with all the fury of a

woman scorned") with Thomas A. Bailey, The American Pageant: A

History of the Republic (10th ed. 1994) (omitting these phrases).

Similarly, the inclusion or exclusion of even two words, such as

"intelligent design" in a new edition of a science textbook may

substantially burden the schools' ability to convey deeply held

values to their students. As the district court noted,

The addition or exclusion of a sentence in a
new edition of a textbook stating that,
'Evolutionary theory should be critically
evaluated against other origin theories,'
could be imperative to a given private
school's academic philosophy. A private
school, religious or secular, that supports
teaching creationism or alternative origin
theories might find that the evolution
disclaimer is necessary to achieve that end.
Conversely, a private school who wishes to
exclusively teach evolution theory might find
that the inclusion of a[n] evolution
disclaimer undermines the school's philosophy,
and conclude that they want to adopt the new
edition of a textbook that has excluded the
disclaimer.

-25-
García Padilla, 408 F. Supp. 2d at 73.9

By imposing restrictions on when a private school may

require its students to use a particular book, Rule 11 also

interferes with the private school's freedom to determine how it

teaches. Under Rule 11, once the Secretary deems a change

insignificant, a private school must be prepared to teach two

editions of a textbook, regardless of whether this contravenes the

private school's chosen teaching method. As the district court

found,

[r]equiring the use of two textbook editions
will be highly burdensome to private schools
and their teachers who will have to draft two
different sets of lesson plans for each
course; contend with resultant case management
problems and disruptions; and employ teaching
methods that the schools and teachers do not
find effective or do not want to utilize.

Id. at 72.

9
It should also be noted that by allowing parents to purchase the
old edition of a textbook when DACO determines that a change is
insignificant, DACO in effect imposes a disincentive for schools to
choose new editions. Faced with the prospect of having to teach
out of two different books, or worse yet, of having to litigate
what constitutes a "significant" change, teachers may well decide
to keep the old version (if they can find enough copies) rather
that choosing the new one for pedagogical reasons. See Crowley v.
McKinney, 400 F.3d 965, 969 (7th Cir. 2005) (noting that litigation
over the correctness of a school's decisions "would be bound to
interfere with the educational mission. . . . not only by
increasing schools' legal fees but also and more ominously by
making school administrators and teachers timid because [they are]
fearful of being entangled in suits by wrathful parents rebuffed in
their efforts to superintend their children's education").

-26-
 By way of example, the district court credited the

testimony of a private school Social Studies teacher who decided to

teach using an old textbook edition, rather than the new one,

because she did not consider the changes to be significant. Id. at

67. However, because the old edition was out of print, some

students were unable to find the old edition and had to use the new

one. Id. The teacher testified that using the two editions

created disruption in the classroom and classroom-management

problems. Id. Moreover, because of the shortage of old editions,

the teacher was sometimes forced to use cooperative groups for the

lessons, even though the teacher and school administration did not

think that the subject matter should be taught in such a manner.

Id. This example illustrates how restricting the private school's

ability to require one book for all students may very well result

in the infringement of a school's chosen teaching methodology.10

10
This problem is exacerbated by DACO's questionable competence
in the area it seeks to regulate. Given DACO's general mandate to
"defend and implement the rights of the consumer, to restrain the
inflationary trends; as well as the establishment and inspection of
a price control over the goods and services for use and
consumption," P.R. Laws Ann. tit. 3, § 341b, we express serious
doubts as to its institutional competence to regulate academia
effectively, mindful of the complexity inherent in that endeavor.
See Cuesnongle, 713 F.2d at 886 ("The constitutional issue, of
course, is not the simple one of whether DACO was wrong, but the
larger one of whether and to what extent a university, engaged in
the highly important and complex enterprise of teaching, should
properly be subject to state regulation by an administrative body
established to protect consumers from defective products . . . .").
As the district court noted, "private schools are better qualified
to determine whether a change in an edition is significant because,
unlike DACO, the private schools have expertise in pedagogical

-27-
Thus, Rule 11 interferes with autonomous decisionmaking by private

schools and intrudes upon their freedom to pursue their academic

objectives without interference from the government.

Although Rule 11 of Regulation 6458 impairs private

schools' First Amendment right to academic freedom, it may

nonetheless be valid if it survives constitutional scrutiny.

"Because academic freedom rights must ultimately flow from the

First Amendment, claims of their violations are subject to all the

usual tests that apply to assertions of First Amendment rights."

Omosegbon v. Wells, 335 F.3d 668, 676-77 (7th Cir. 2003). In this

case, Rule 11 of Regulation 6458 directly infringes on the private

schools' ability to communicate information to their students, and

as such, we will analyze the regulation as an infringement on the

schools' speech. Thus, in determining whether Rule 11 violates the

First Amendment, we look first to whether it is content-neutral,

because no matter how valid a government's interest in regulating,

methods and the substantive academic fields under review, and are
well acquainted with their institution's unique educational
mission, philosophy, and methodology." García Padilla, 408 F.
Supp. 2d at 77.

The concern regarding institutional competence in government
interference with academia is supported by the judiciary's
longstanding reluctance to meddle with the discretion of academics,
either on substantive or procedural grounds, when they make bona
fide academic decisions. See Regents of the University of Michigan
v. Ewing, 474 U.S. at 226 ("[Courts have a reluctance] to trench on
the prerogatives of state and local educational institutions and
[a] responsibility to safeguard their academic freedom, a special
concern of the First Amendment." (internal quotation marks
omitted)).

-28-
it generally cannot be pursued by discriminating between particular

viewpoints or subject matters. See Simon & Schuster, Inc. v.

Members of N.Y. State Criminal Victims Bd., 502 U.S. 105, 115

(1991). "Government action that stifles speech on account of its

message, or that requires the utterance of a particular message

favored by the Government, contravenes the [right to free speech]."

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994). Thus,

regulations that suppress, disadvantage, or impose differential

burdens upon speech because of its content are subject to strict

scrutiny. See id. at 642.

By contrast, regulations intended to serve purposes

unrelated to content of the regulated speech, despite their

incidental effects on speech, expression, or message are subject to

intermediate scrutiny. Simon & Schuster, Inc., 502 U.S. at 122

n.*. The "government may impose reasonable restrictions on the

time, place, or manner of protected speech provided the

restrictions 'are justified without reference to the content of the

regulated speech, that they are narrowly tailored to serve a

significant governmental interest, and that they leave open ample

alternative channels for communication.'" Watchtower Bible & Tract

Soc'y of New York, Inc. v. Village of Stratton, 536 U.S. 150, 175

(2002) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791

(1989)). Under intermediate scrutiny, restrictions imposed by a

statute need not be the least restrictive or least intrusive means

-29-
of accomplishing the statute's legitimate governmental interest.

See Ward, 491 U.S. at 798-99. Rather, narrow tailoring is

satisfied so long as the regulation promotes a substantial

government interest that would be achieved less effectively without

it, id. at 799, or if "the means chosen are not substantially

broader than necessary to achieve the government's interest." Id.

at 800.

"The principal inquiry in determining content neutrality

. . . is whether the government has adopted a regulation of speech

because of [agreement or] disagreement with the message it

conveys." Id. at 791. Ordinarily, laws that distinguish favored

speech from disfavored speech based on the ideas expressed are

content-based. Turner Broad. Sys., Inc., 512 U.S. at 643 (citing

Burson v. Freeman, 504 U.S. 191, 197 (1992); Boos v. Barry, 485

U.S. 312, 318-19 (1988)). "By contrast, laws that confer benefits

or impose burdens on speech without reference to the ideas or views

expressed are in most instances content neutral." Turner Broad.

Sys., Inc., 516 U.S. at 643 (citing Members of City Council of Los

Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984); Heffron

v. International Soc. For Krishna Consciousness, Inc., 452 U.S.

640, 649 (1989)).

We see no hint of bias or censorship in DACO's regulation

of the private schools' choice of textbooks. We note that in

promulgating Regulation 6458, DACO was not motivated by hostility

-30-
to particular ideas, opinions, or educational philosophies, nor was

DACO concerned with harms that might occur from students' exposure

to particular information. DACO's interest in adopting Regulation

6458 was to ensure that consumers had sufficient information about

textbooks -- whatever the message in the textbook itself -- to make

an informed decision about the cost of education in private schools

and to protect consumers against harms resulting from "arbitrary or

abusive use of new editions of textbooks that merely contain

cosmetic changes," harms that would arise independent of any

message or teaching that might or might not be adopted by the

private schools. On its face, therefore, Regulation 6458, including

Rule 11, is content-neutral, censoring no subject, opinion, or

educational philosophy. Thus, we apply intermediate scrutiny to

determine whether the government's interest is substantial and

whether the effect of the statute on speech and academic freedom is

no greater than necessary to protect DACO's interest.

DACO's primary goal in promulgating Regulation 6458 is

"to provide consumers with the information regarding the [sic]

textbooks in order for them to be able to make an informed decision

about the cost of education in private schools." Appellant Br. at

50. We agree with the district court that this is a significant

governmental interest. However, "[t]hat the Government's asserted

interests are important in the abstract does not mean . . . that

the [speech regulation] will in fact advance those interests."

-31-
Turner Broad. Sys. Inc., 512 U.S. at 664. We must inquire whether

the restrictions imposed by Regulation 6458 are narrowly tailored

to further DACO's legitimate state interest.

The unchallenged provisions of Regulation 6458 provide

consumers with a significant amount of information about the cost

of textbooks. As noted earlier, Rule 8 requires private schools to

announce the list of books to be used in the next school year, Rule

9 requires them to disclose book prices as well as their agreement

with book sellers, Rule 10 requires private schools to inform

parents of price changes, and Rule 12 requires them to inform

parents of the existence and the application of Regulation 6458.

Rule 11 also provides consumers with information about

the cost of private schooling. When schools assign a new textbook

edition, Rule 11 requires them to disclose "which [books] have

different editions, what the change specifically consists of, and

whether it is a significant change or not, as defined by these

regulations." R.11. This disclosure requirement provides

information about how book costs are determined, which allows

parents to determine for themselves which costs of private

education they are willing to pay for. The disclosure aspects of

Rule 11, therefore, also enable parents "to make an informed

decision about the cost of education in private schools."

However, Rule 11's requirement that parents have the

option of purchasing the old edition of an assigned textbook is not

-32-
relevant, much less narrowly tailored, to the achievement of DACO's

goal of providing consumers with information. The purpose of that

requirement is not to provide parents with information, it is to

save parents money. We therefore find that the option requirement

is not narrowly tailored to the state's proffered interest in

providing information about the cost of private education.

DACO's second goal is purportedly to protect consumers

from "the arbitrary or abusive use of new editions of textbooks

that merely contain cosmetic changes." Appellant Br. at 50. If

this were in fact a problem, we might have some reason to pause in

our judgment. However, the district court noted that

[t]he record in this case is entirely devoid
of any evidence which suggests that the prices
of textbooks are excessive, or that textbook
publishers' or distributors' pricing,
marketing, or other practices are in any way
abusive, unfair or arbitrary. Defendant's
only argument proffered in support of its
allegation of abuse and unfairness is the fact
that text book production and distribution is
a for-profit industry. This, without more,
cannot offend notions of justice in our
free-enterprise system. Further, it appears
that Regulation 6458 was promulgated without
any investigation, hearings, consultation with
education experts, evidence, findings, or any
other foundation which demonstrated that the
textbook publishers' or distributors['] prices
or practices are abusive, unfair, or
arbitrary. It also appears that DACO had no
legitimate basis to conclude that consumers
would prospectively become at risk of such
exploitation by the textbook industry.

García Padilla, 408 F. Supp. 2d at 77.

-33-
 On appeal, DACO has not attempted to supplement the

information it provided to the district court regarding the need

for this regulation.11 DACO points only to complaints it received

from parents regarding "the excessive costs of textbooks" in

private schools. Appellant Br. at 52-53. Such complaints are

insufficient to establish a legitimate state interest.12 "When the

Government defends a regulation on speech as a means to redress

past harms or to prevent anticipated harms, it must do more than

simply posit the existence of the disease sought to be cured."

Turner Broad. Sys., Inc., 512 U.S. at 664 (internal quotation marks

and citation omitted). DACO must "demonstrate that the recited

harms are real, not merely conjectural, and that the regulation

will in fact alleviate these harms in a direct and material way."

Id. We cannot conclude that DACO has a legitimate state interest

in fixing a problem it has not shown to exist. Moreover, because

there is no evidence of a problem, DACO's proposed solution cannot

be narrowly tailored to it.

11
Nor is it clear that DACO could at this point in the litigation
supplement the information it provided to the district court. See
Fed. R. App. P. 10(a).
12
It is even difficult to discern what the complaints mean, let
alone how Regulation 6458 will address them. How are these prices
excessive? Excessive in relation to what? The absence of
standards against which we might be able to judge the need for
consumer protection legislation in the textbook publishing industry
renders DACO's assertion of a substantial state interest mere
speculation.

-34-
 But even if we were to accept the premise that consumers

need protection from "the arbitrary or abusive use of textbooks

that only contain cosmetic changes," a further problem remains in

that Rule 11's option requirement is substantially broader than

necessary for DACO to successfully address this interest. The

obligations imposed by Rule 11 are not confined to instances in

which a new edition of a textbook contains only "cosmetic" changes.

As discussed above, many changes considered by DACO not to be

significant could qualify as more than cosmetic. For instance, the

exclusion of a chapter or section, the addition of one or several

sentences to a chapter, section or throughout a book, and the

addition of one or several drawings, graphics, tables, or

photographs could very well be significant, non-cosmetic changes,

depending on their content. Thus, we find that Rule 11's

requirement that parents have the option of purchasing the old

edition of an assigned textbook does not survive intermediate

scrutiny and, as such, violates the schools' constitutional right

to academic freedom.

In considering this issue, the district court held that

Rule 11 is unconstitutional in its entirety. On this point, we

disagree with the district court. As noted above, Rule 11's

disclosure requirements survive constitutional scrutiny because

they are narrowly tailored to the state's significant interest in

providing parents with information about the cost of private

-35-
education. Mindful of our duty to preserve as much of a state law

as possible by only severing the problematic portions of the law,

we only hold unconstitutional Rule 11's requirement that parents

have the option of purchasing the old edition of an assigned

textbook. See Ayotte v. Planned Parenthood of N. New England, 126

S. Ct. 961, 967 (2006).

B. Law 116

Law 116 provides that "[e]very private school accredited

by the General Council of Education that requires the acquisition

of school textbooks to [sic] their students shall have the consent

of the Association or Council of Parents or of an Assembly of

Parents to determine the maximum budget applicable for each school

grade for the acquisition of said books required in each school

year."13 Law 116, Art. III (emphasis added). Under the statute,

the private schools must recommend a budget for textbooks for each

grade no later than May 1 of every school year. Id. at Art. V.

"The private school shall illustrate to the Association or Council

of Parents . . . the benefits of the recommended budget, and said

13
"Private school" means "any private educational institution
which with or without profit motives, religious or secular, devotes
[sic] to the education of preschool, elementary, and intermediate,
and/or secondary, or special education, within the territorial
limits of the Commonwealth of Puerto Rico." Law 116, Art. II(b).
Law 116 defines "Association or Council of Parents and Teachers" to
mean "groups of parents and teachers belonging to a private school
authorized to operate in the Commonwealth of Puerto Rico." Id. at
Art. II(a).

-36-
association shall approve jointly with the school the same."14 Id.

(emphasis added). "The maximum budget approved applicable to each

grade for the acquisition of textbooks required in every school

year shall be obligatory for each private school." Id. at Art. VI.

The district court held that Law 116 imposes restraints

on the private schools' right to academic freedom under the First

Amendment because it restricts their freedom to determine "what

shall be taught and how it shall be taught." See García Padilla,

408 F. Supp. 2d at 79 (quoting Sweezy, 354 U.S. at 263). We agree.

In requiring private schools to obtain parental consent

for the textbook budget, Law 116 significantly limits the schools'

ability to choose their own books. Under the statute, parents have

the power to set the private schools' textbook budget by

withholding consent until the school agrees to a particular budget.

This power to set a maximum budget, in turn, restricts the

available choices for textbooks because the total price of all

textbooks chosen must be within the approved budget. In essence,

Law 116 forces schools, at the margins, to choose textbooks

according to price, rather than content. This is a significant

restriction on private schools' choice of textbooks.

14
Parents' participation in the textbook selection approval
process is apparently limited by an exception providing that
"[n]othing provided by this law authorizes the Association, Council
or Assembly of Parents to limit or interfere in any manner in
regard to textbooks or books with religious context." Law 116,
Art. V.

-37-
 As discussed above, a school's selection of textbooks

automatically raises First Amendment concerns because textbook-

selection implicates the school's ability to convey a particular

message, as well as its ability to convey the message effectively.

Thus, a restriction on the school's choice of textbooks -- and in

particular one as severe as Law 116 -- interferes with the private

school's right to determine for itself "what may be taught" and

"how it shall be taught." See Sweezy, 354 U.S. at 263 (internal

quotation marks and citation omitted).

Having determined that Law 116 infringes on activity

protected under the First Amendment, we must decide the level of

scrutiny to apply to the statute. As with Rule 11, the

restrictions Law 116 imposes on the private schools' determinations

of what to teach and how to teach are restrictions on the private

schools' speech. We therefore apply the same standard governing

time, place, and manner restrictions discussed above.15 Again, such

15
Because the private schools did not argue that Law 116 imposed
a prior restraint on their academic freedom, we will not analyze it
as such. However, we take this opportunity to note that the law is
susceptible to such an analysis because it "limits or conditions in
advance the exercise of protected First Amendment activity."
Fantasy Book Shop, Inc. v. City of Boston, 352 F.2d 1115, 1120 (1st
Cir. 1981)(citing Southeastern Promotions, Ltd. v. Conrad, 420 U.S.
546, 552-58 (1976)). "Any system of prior restraints of expression
. . . bear[s] a heavy presumption against its constitutional
validity." Bantam Books, Inc., 372 U.S. at 70. As a prior
restraint, Law 116 would have to contain "narrow, objective, and
definite standards" to guide the Association or Council of Parents
in their decision to approve or reject a private school's proposed
budget. Forsyth County v. Nationalist Movement, 505 U.S. 123, 131
(1992).

-38-
restrictions are valid if they (1) are content-neutral; (2) are

narrowly tailored to serve a significant government interest; and

(3) leave open ample alternative channels of communication. Ward,

491 U.S. at 791.

As stated earlier, the test for whether a restriction is

content-based is whether the government has adopted it "because of

[agreement] or disagreement with the message it conveys." Id. As

with Regulation 6458, we see no bias or prejudice toward particular

ideas motivating Law 116. There is no evidence to suggest that in

enacting Law 116, the Puerto Rico legislature was seeking to

promote or frustrate the discussion of any particular message or

subject matter. We therefore agree with the district court that

this statute is content-neutral. See Ward, 491 U.S. at 791.

The government's principal interest in enacting Law 116

is "to provide the parents of school-age children attending private

schools an opportunity to participate in the decision-making

process for determining the budget to be spent on textbooks."

Appellant Br. at 67. The government justifies this interest "[i]n

light of the increasing cost of textbooks that parents have to face

each school year, in addition to the school tuition and additional

school fees." Id.

-39-
 Assuming that parental participation in a private

school's budgetary decisions is a significant state interest,16 we

agree with the district court that Law 116 is not narrowly tailored

to that interest, nor does it leave open ample alternative methods

of communication. García-Padilla, 408 F. Supp. 2d at 80. As a

preliminary matter, Law 116 is substantially broader than necessary

to achieve the state's purported interest. There are many ways in

which parents can participate in private schools' budgetary

decisions short of having veto power over the budget. The power to

veto a budgetary decision is quite a high level of participation --

one that, as we noted earlier, may completely foreclose certain

textbook options for the private schools. The requirement of

parental consent for the textbook budget thus "burdens

substantially more speech and academic freedom than necessary to

further [the state's] interest." Id. (citing Turner Broad. Sys.,

Inc., 520 U.S. at 185).

Law 116 also does not leave open enough alternative

channels of communication to survive intermediate scrutiny. As

discussed above, if parents do not approve the schools' proposed

budget, which takes into account prices for the school's chosen

textbooks, the school will be prevented from using one or more of

16
We make no judgment as to whether this asserted governmental
interest is a significant one, except to say that we would require
more information about the need for parental participation in
school budgetary determinations before so holding. Nevertheless,
the district court avoided the question, and so will we.

-40-
its chosen textbooks. Law 116 may effectively preclude a school

from using a particular textbook to teach its students. Thus, Law

116 violates the private schools' right to academic freedom under

the First Amendment because it is not narrowly tailored to a

significant governmental interest and because it does not leave

open ample alternative methods of communication.

Thus, the first factor for the imposition of a permanent

injunction is satisfied; the private schools prevail on the merits

because Rule 11's option requirement and Law 116 have been shown to

violate their right to academic freedom under the First Amendment.

C. Irreparable Harm

With respect to the harm suffered by the private schools,

we note that it has long been held that "[t]he loss of First

Amendment freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury." Elrod v. Burns,

427 U.S. 347, 373 (1976). As such, the private schools have

satisfied the second factor.

D. Balance of Equities

The balance of equities in this case also supports the

granting of a permanent injunction. Although the district court

did not explicitly compare the harms suffered by the parties to

this case, it did note a significant lack of foundation for the

proffered harms the government was claiming to remedy with the

regulation and the statute. It cannot be said that such

-41-
conjectural harms outweigh concrete harms to the private schools'

constitutionally protected right to academic freedom. On this

record, the district court's finding that the harm to the private

schools outweighs the harm to the government was proper.

E. Public Interest

The final consideration is the effect of an injunction on

the public interest. Schools have the extraordinary responsibility

of educating our youth. While there is no question in our minds

that the government has a substantial interest in our system of

education, we must acknowledge that the task of educating is made

more difficult by government interference with what schools teach

and how they teach it. This is particularly true in the case of

private educational institutions, in which parents voluntarily

choose to enroll their children, at least in part because of the

schools' educational philosophies, methodologies, and reputations.

In view of the fact that Rule 11's option requirement and Law 116

are far broader than necessary to ensure that parents are informed

of and involved in the textbook selection process of private

schools, we find that the public is well-served by the district

courts' imposition of a permanent injunction in this case.

IV. Conclusion

For the foregoing reasons, we affirm in part and reverse

in part, and remand with instructions for the district court to

modify the permanent injunction to enjoin only that portion of Rule

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11 of Regulation 6458 that requires schools to give parents the

option of purchasing the old edition of an assigned textbook.

Affirmed in part, Reversed and Remanded in part. Each

party shall bear their own costs.

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