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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
MASSACHUSETTS ASSOCIATION OF
)
PRIVATE CAREER SCHOOLS,
)
)
Plaintiff,
)
) Civil Action No.
v.
) 14-13706-FDS
)
MAURA HEALEY, in her official capacity )
as the Massachusetts Attorney General,
)
)
Defendant.
)
_______________________________________)
MEMORANDUM AND ORDER ON
CROSS-MOTIONS FOR SUMMARY JUDGMENT
SAYLOR, J.
This is an action challenging regulations promulgated by the Massachusetts Attorney
General concerning for-profit schools. Plaintiff Massachusetts Association of Private Career
Schools (“MAPCS”) has brought suit against defendant Maura Healey, in her official capacity as
the Massachusetts Attorney General, challenging nine recently adopted regulations that are
generally intended to prevent unfair practices in the recruiting and enrollment of students at forprofit schools. The amended complaint alleges claims for violation of the First Amendment,
violation of the Due Process Clause of the Fourteenth Amendment, and federal preemption.
The allegations of the amended complaint fall into three separate groups. First, the
complaint alleges that seven of the regulations facially violate the First Amendment because they
impose content-based restrictions that target disfavored speech from disfavored speakers.
Second, it alleges that two other regulations are unconstitutionally vague and therefore fail to
provide fair notice in violation of the Due Process Clause and chill free speech in violation of the

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First Amendment. Finally, it alleges that one of the regulations (which it also challenges on First
Amendment grounds) is preempted by federal laws regulating telemarketing. MAPCS seeks an
order from the Court vacating the regulations and enjoining the Attorney General from
implementing or taking enforcement action pursuant to them.
The parties have filed cross-motions for summary judgment. For the following reasons,
both motions will be granted in part and denied in part.
I.

Background
A.

Factual Background
1.

MAPCS

MAPCS is a non-profit membership organization of more than forty for-profit and
occupational schools. (Pl. SMF ¶¶ 1-2). Its stated goal is to help member schools provide
professional training for Massachusetts students who are eager to advance their careers. (Id.).
MAPCS member institutions provide training in a variety of areas, including allied medical,
automotive servicing, broadcasting, construction, cosmetology, culinary management,
photography, and web design. (Id. at Ex. 15).
2.

Regulatory Framework

Chapter 93A prohibits “[u]nfair methods of competition and unfair or deceptive acts or
practices in the conduct of any trade or commerce.” Mass. Gen. Laws ch. 93A, § 2(a). Conduct
is unfair or deceptive under Chapter 93A if it falls “within any recognized or established
common law or statutory concept of unfairness.” VMark Software v. EMC Corp., 37 Mass. App.
Ct. 610, 620 (1994); see also Cummings v. HPG Int’l Inc., 244 F.3d 16, 25 (1st Cir. 2001)
(“Conduct is unfair or deceptive if it is ‘within at least the penumbra of some common-law,
statutory, or other established concept of unfairness’ or ‘immoral, unethical, oppressive, or

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unscrupulous.’” (quoting PMP Assocs. Inc. v. Globe Newspaper Co., 366 Mass. 593, 596
(1975))). Under Chapter 93A, the Attorney General has the authority to “make rules and
regulations interpreting the provisions of subsection 2(a).” Mass. Gen. Laws ch. 93A, § 2(c).
Pursuant to that authority, former Attorney General Martha Coakley published draft
regulations on November 20, 2013, that modified existing regulations concerning for-profit
schools. See 940 Mass. Code Regs. § 3.10 (1978) (since superseded). The stated purpose of the
existing regulations was to:
[P]rotect Massachusetts consumers seeking to enroll in any course of instruction
or educational service offered by certain private business, vocational, and career
schools, and to ensure that the private career school industry was operating fairly
and honestly by means of legitimate and responsible business acts and practices
that [were] neither unfair nor deceptive.
Id. The Attorney General sought to “update[ ] and amend[ ] the 1978 regulations” in order to
“address problems experienced by consumers when they seek or are enrolled in for-profit
schools or occupational programs.” 940 Mass. Code Regs. § 31.01 (2014). Among those
problems, according to the regulations, are “widespread acts and practices in the for-profit and
occupational school industry [that] continue to unfairly harm consumers.” Id.
The Attorney General received extensive written comments and evidence in response to
the draft regulations. (Def. SMF ¶ 7). In addition, she heard testimony from for-profit schools,
current and former students of for-profit schools, trade groups, and consumer organizations
during two public hearings in January 2014. (Id. at ¶¶ 6, 8).
After amending the draft regulations in response to public comment, the Attorney
General published the regulations, effective June 20, 2014.

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3.

The Challenged Regulations

MAPCS challenges nine of the regulations for a variety of reasons. The nine regulations
are the following:


Deceptive Language in General: 940 Mass. Code Regs. § 31.04(2):
It is an unfair or deceptive act or practice for a school to use language or
make a claim or representation in any form, including but not limited to
spoken, electronic, or printed form, which has the tendency or capacity to
mislead or deceive students, prospective students, or any other person.



Time to Complete Program: 940 Mass. Code Regs. § 31.04(9):
It is an unfair or deceptive act or practice for a school to misrepresent the
amount of time it takes to finish a program, including a representation that
a program can be completed “in weeks” or similar language suggesting
that the length of time to complete the program is shorter than the actual
median completion time to obtain a certificate, diploma, or degree.



Failure to Disclose Facts: 940 Mass. Code Regs. § 31.05(1):
It is an unfair or deceptive act or practice for a school to conceal or fail to
disclose to a prospective student any fact relating to the school or
program, disclosure of which is likely to influence the prospective student
not to enter into the transaction with the school.



Graduation-Rate Disclosure: 940 Mass. Code Regs. § 31.05(2)(b):
It is an unfair or deceptive act or practice to fail to make the following
disclosure to consumers and prospective students, clearly and
conspicuously, at least 72 hours prior to entering into an enrollment
agreement with a consumer or prospective student:
....
(b) Graduation. [Graduation rate1] of students graduated from the
program during [the last two calendar years for which data are
available].

The “graduation rate” is defined as the “number of students who received certificates, diplomas, or
degrees in the program during the latest two calendar years, divided by the number of students who enrolled in the
program during the latest two calendar years. The graduation rate shall be determined within 180 days from the end
of each calendar year.” 940 Mass. Code Regs. § 31.03.
1

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

Consequences of Loan Default: 940 Mass. Code Regs. § 31.05(3):
For any school that accepts federal Title IV funds, or that provides
institutional loans, it is an unfair or deceptive act or practice for a school
to fail to make the following disclosure to consumers and prospective
students, clearly and conspicuously, at least 72 hours prior to entering into
an enrollment agreement with such consumer or prospective student:
(a) Your Loan Debt. You must repay money that you borrow as
student loans to pay for this program, including interest. You must
repay any portion of the money you borrow to pay for this
program, even if you fail to complete or drop out of the program.
Failure to repay student loans is likely to have a serious negative
effect on your credit, future earnings, and your ability to obtain
future student loans.
(b) Loan Nonpayment Statistics. [loan nonpayment percentage] of
[school name] students defaulted on, or failed to repay, their loans
during the period [years covered in corresponding federal cohort
default rate used to calculate loan nonpayment rate].



Total Placement-Rate Calculus: 940 Mass. Code Regs. § 31.05(4)(b)(1):
For any occupational program that: . . . (b) refers in advertising, recruiting
or promotional materials to statements to employment prospects or job
placement, it is an unfair or deceptive act or practice for a school to fail to
make the following disclosure to consumers and prospective students,
clearly and conspicuously, at least 72 hours prior to entering into an
enrollment agreement with such consumer or prospective student:
(1) Placement Rates. [Graduation placement rate2] of graduates
during [latest two calendar years] obtained full-time, nontemporary jobs in the field of study. [Total placement rate3] of
students that enrolled in the program during [latest two
calendar years] obtained full-time, non-temporary jobs in their
field of study.

The “graduation placement” rate is defined as the “number of students obtaining full time (at least 32
hours per week) and non-temporary employment in the field of study during the last two calendar years for which
the school has obtained verification, divided by the number of all students graduating from the program during the
latest two calendar years. The graduate placement rate shall be determined within 180 days from the end of each
calendar year.” 940 Mass. Code Regs. § 31.03.
2

The “total placement rate” is defined as the “product of the graduate placement rate and the graduation
rate. The total placement rate shall be determined within 180 days from the end of each calendar year.” 940 Mass.
Code Regs. § 31.03.
3

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

Credit Transfer: 940 Mass. Code Regs. § 31.05(7):
It is an unfair or deceptive act or practice for a school to represent to a
student or prospective student or to any other person that its credits are or
may be transferable to another educational institution without:
(a) identifying the school(s) with which it has written agreements
or other documentation verifying that credits can be transferred to
said school(s); and
(b) indicating it is aware of no other schools that accept the transfer
of its credits.



Enrolling Unqualified Students: 940 Mass. Code Regs. § 31.06(6):
It is an unfair or deceptive act or practice for a school to enroll or induce
retention of a student in any program when the school knows, or should
know, that due to the student’s educational level, training, experience,
physical condition, lack of language proficiency, or other material
qualification, the student will not or is unlikely to:
(a) graduate from the program; or
(b) meet the requirements for employment in the occupation to
which the program is represented to lead. If a student has a
disability, the determination shall be made based on the
student’s ability to graduate from the program or meet the
requirements for employment with the provision of a
reasonable accommodation for that disability. In addition, in
no event shall [the regulations] contravene the requirements of,
or obligations of a school to accommodate students in
accordance with the Americans with Disabilities Act, the
Rehabilitation Act, or any other applicable law concerning
students with disabilities.



Engaging in High-Pressure Sales Tactics: 940 Mass. Code Regs. § 31.06(9):
It is an unfair or deceptive act or practice for a school to initiate
communication with a prospective student, prior to enrollment, via
telephone (either voice or data technology), in person, via text messaging,
or by recorded audio message, in excess of two such communications in
each seven-day period to either the prospective student’s residence,
business or work telephone, cellular telephone, or other telephone number
provided by the student.

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4.

Public-Comment Evidence

As justification for the seven regulations that MAPCS challenges under the First
Amendment, the Attorney General points to public-comment evidence that allegedly
demonstrates unfair and deceptive practices by for-profit schools. (See Def. Mem. Ex. A;
Stipulated public-hearing record (cited as “R:[page number]”); Public-hearing transcripts (cited
as “Tr:[page number]”). Below is a selection of some of that public-hearing evidence and
testimony.


Deceptive Language in General: 940 Mass. Code Regs. § 31.04(2). In written
comments, the Massachusetts Department of Higher Education (“DHE”) stated that
the Massachusetts for-profit school industry is responsible for a “disproportionate
share of the consumer complaints received by the Board.” (R:258). For-profit
schools comprise only 8 percent of the schools under the Board’s purview, but they
are responsible for 22 percent of consumer complaints that the DHE has received
since 2009. (Id.). Those consumer complaints concerned false and misleading
statements by for-profit schools to prospective students during recruitment. (Id.).
Toby Merrill, an attorney working on the Legal Services Center of Harvard Law
School’s project on predatory student lending, commented that many for-profit
schools use deceptive advertisements to attract students, and then employ “draconian
contracts” to keep students enrolled. (R:452). Former students of for-profit schools
submitted comments about how recruiters misled them about program quality and
accreditation (R:64), instructors’ credentials (R:645), and resources available for
student instruction (R:647). For example, one school told a single mother that its
program would guarantee that she would receive a Medical Coding Certificate.

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(R:643). When that guarantee turned out to be false, the woman was left with
$13,000 in student loans that she had to repay. (Id.).


Time to Complete Program: 940 Mass. Code Regs. § 31.04(9). A coalition of
veterans groups named Veterans Education Success submitted written comments. It
directed the Attorney General to the findings and conclusions of a two-year
investigation into the for-profit school industry conducted by the United States Senate
Committee for Health, Education, Labor, and Pensions (HELP). (R:361-370). That
investigation concluded that many for-profit schools misled recruits about the time
needed to complete programs. One school’s advertisement for its medical assistant
training programs read “Start NOW and Get CERTIFIED in JUST WEEKS!”
(R:582). Its two medical programs, however, required at least nine and seven months
to complete, and the median times to graduation were 409 days and 315 days,
respectively. (Id.). Other comments and testimony supported required disclosures of
average or median completion times. (R:461).



Graduation-Rate Disclosure: 940 Mass. Code Regs. § 31.05(2). The Attorney
General received testimony that existing federally-mandated graduation-rate
disclosures do not capture the performance of the many non-traditional and part-time
students that attend for-profit schools. (See R:141-42; 20 U.S.C. §§ 1092(a)(1)(L),
(a)(3)). Federal graduation-rate metrics measure a cohort comprised of only firsttime, full-time students. 20 U.S.C. § 1092(a)(1)(L). In one survey of 3,000 students
that attended for-profit schools, including part-time students, 42 percent of students
reported withdrawing from school before graduating or completing their program.
(R:405). Other commenters testified that graduation rates advertised by for-profit

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schools are misleading because they do not capture part-time students, and others
pointed to “a need for [s]tate [r]egulation” to supplement federal disclosures. (R:44243, 461, 471).


Consequences of Loan Default: 940 Mass. Code Regs. § 31.05(3). The
Massachusetts Department of Higher Education commented that for-profit schools
enroll 12 percent of all post-secondary students nationally and represent 24 percent of
all federal student-loan dollars, but represent 43 percent of all federal student-loan
defaults. (R:257). In 2009, students attending Massachusetts for-profit four-year
schools had a 15 percent three-year default rate, compared with rates of 5 percent and
6 percent at non-profit institutions and public institutions, respectively. (Id.). The
Attorney General also received public-hearing evidence that students who default on
loan obligations may face garnishment of future earnings (R:402, 453, 474), may find
it difficult to find employment (R:474), and may be ineligible for benefits such as the
Earned Income Credit. (R:402). One former for-profit school student, a United
States Army veteran, testified that a for-profit school deceived him into believing that
his student loans were federal loans, when they were actually private loans with
higher interest rates. (R:645). As a result, the man had $96,000 in student-loan debt,
and was unable to find employment requiring more than a high-school degree. (Id.).



Total Placement-Rate Calculus: 940 Mass. Code Regs. § 31.05(4)(b)(1). The
Attorney General received public-hearing evidence that the job-placement rates of
for-profit schools are often misleading. (R:442-43, 447-48). Commenters also stated
that federal regulations on placement-rate disclosures are “not sufficient to protect
consumers” because they allow for the use of different placement-rate metrics, many

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of which calculate job placement based on the number of graduates instead of the
number of enrolled students. (R:471). According to some commenters, the federal
statistics fail to capture the outcomes of the many students at for-profit schools who
drop out after learning that their employment prospects are worse than originally
promised by school recruiters. (R:364-65).


Credit Transfer: 940 Mass. Code Regs. § 31.05(7). The Attorney General received
public-hearing evidence that some for-profit schools mislead prospective students by
implying that credits they earn are, or may be, transferrable to other schools when
they often are not. (R: 335-39, 410, 525, 610).



Engaging in High-Pressure Sales Tactics: 940 Mass. Code Regs. § 31.06(9). Many
commenters testified that some for-profit schools often employ high-pressure sales
tactics and “pain-based” recruiting strategies to induce students to enroll in programs
under a false sense of urgency. (R:268-73, 278-80, 442-43, 515-19). Commenters
pointed the Attorney General to the Senate HELP Committee report, which found that
in 2010, for-profit schools across the nation employed 35,202 recruiters, compared
with 3,512 career-services staff and 12,452 support-services staff. (R:361). The
report states that it uncovered internal documents that demonstrated that enrollment
quotas were recruiters’ highest priority, and that the recruitment process “created a
boiler-room atmosphere.” (R:363). The group Veterans Education Success directed
the Attorney General to the findings of an undercover report of for-profit schools
conducted by the United States Government Accounting Office. (Def. SMF ¶ 42).
That report, using undercover testers to submit inquiries to lead-generation websites,

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found that testers received an average of five telephone calls per day for a month
from non-profit schools. (R:295, 363-64; Def. SMF ¶¶ 42-43).
B.

Procedural Background

On September 25, 2014, MAPCS filed the complaint in this case. On December 26,
2014, MAPCS filed an amended complaint and a demand for declaratory and injunctive relief.
The complaint alleges claims for violation of the First Amendment, violation of the Due Process
Clause of the Fourteenth Amendment, and federal preemption. Specifically, MAPCS contends
that the regulations variously (1) violate the First Amendment because they unlawfully compel
and restrict speech based on its content, (2) violate the Due Process Clause and the First
Amendment because they are unconstitutionally vague, and (3) are preempted by federal
telemarketing law.
The parties have cross-moved for summary judgment on all counts.
II.

Legal Standard
The role of summary judgment is to “pierce the pleadings and to assess the proof in order

to see whether there is a genuine need for trial.” Mesnick v. General Elec. Co., 950 F.2d 816,
822 (1st Cir. 1991) (internal quotation marks omitted). Summary judgment is appropriate when
the moving party shows that “there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Essentially, Rule 56[ ]
mandates the entry of summary judgment ‘against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.’” Coll v. PB Diagnostic Sys., 50 F.3d 1115, 1121 (1st Cir.
1995) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). In making that
determination, the court must view “the record in the light most favorable to the nonmovant,

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drawing reasonable inferences in his favor.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir.
2009). When “a properly supported motion for summary judgment is made, the adverse party
‘must set forth specific facts showing that there is a genuine issue for trial.’” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed. R. Civ. P. 56(e)). The non-moving party
may not simply “rest upon mere allegation or denials of his pleading,” but instead must “present
affirmative evidence.” Id. at 256-57.
III.

Analysis
A.

First Amendment Challenges

The cross-motions on Counts One and Two involve First Amendment challenges to seven
of the regulations. They essentially require the Court to answer two questions: (1) what level of
First Amendment scrutiny applies to each regulation, and (2) whether each regulation satisfies
the applicable level of scrutiny. MAPCS contends that the regulations facially violate the First
Amendment because they impose content and viewpoint-based speech restrictions that are
unconstitutional under strict scrutiny or any other standard of review. The Attorney General
contends that strict scrutiny is not the appropriate standard of review because the regulations are
either mandatory disclosures that trigger reasonable-basis review, or, at most, restrictions on
commercial speech that warrant only intermediate scrutiny. Moreover, the Attorney General
contends that the regulations survive even under an intermediate scrutiny test because they
directly advance the government’s substantial interest in preventing unfair and misleading
practices in the for-profit school industry.
The Court will address each of the issues in turn, beginning with the appropriate level of
scrutiny for each of the seven challenged regulations.

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1.

Level of Scrutiny
a.

Intermediate Scrutiny under Central Hudson

It is well-established that commercial speech, including advertising, has an
“informational function” and is not “valueless in the market place of ideas.” See Central Hudson
Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 563 (1980); Bigelow v. Virginia, 421
U.S. 809, 826 (1975). Moreover, as the Supreme Court has noted, “[t]here is no longer any room
to doubt that what has come to be known as ‘commercial speech’ is entitled to the protection of
the First Amendment, albeit to protection somewhat less extensive than that afforded
‘noncommercial speech.’” Zauderer v. Office of Disciplinary Counsel of Supreme Court of Oh.,
471 U.S. 626, 637 (1985); see also El Dia, Inc. v. P.R. Dep’t of Consumer Affairs, 413 F.3d 110,
115 (1st Cir. 2005) (noting that commercial speech, or “expression related solely to the economic
interests of the speaker and its audience,” is ordinarily accorded less First Amendment protection
than other forms of constitutionally guaranteed expression).
The contours of that “somewhat-less-extensive” protection depend on both the specific
character of the commercial speech and the purpose of the regulation. As the Supreme Court has
explained:
When a State regulates commercial messages to protect consumers from
misleading, deceptive, or aggressive sales practices, or requires the disclosure of
beneficial consumer information, the purpose of its regulation is consistent with
the reasons for according constitutional protection to commercial speech and
therefore justifies less than strict review. However, when a State entirely
prohibits the dissemination of truthful, nonmisleading commercial messages for
reasons unrelated to the preservation of a fair bargaining process, there is far less
reason to depart from the rigorous review that the First Amendment generally
demands.
44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 501 (1996) (plurality opinion). Accordingly,
“[t]he mere fact that messages propose commercial transactions does not in and of itself dictate

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the constitutional analysis that should apply to decisions to suppress them.” Id.
Although commercial-speech restrictions may warrant higher or lower scrutiny
depending on the “nature both of the expression and of the government interests served by its
regulation,” the default test is the four-part intermediate-scrutiny approach first promulgated in
Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 563 (1980).
Pursuant to that approach, a court must first determine whether the commercial speech is actually
false, deceptive, or misleading, or whether it proposes an unlawful activity. See Central Hudson,
447 U.S. at 566. “Misleading advertising may be prohibited entirely,” including where
commercial speech is “inherently likely to deceive or where the record indicates that a particular
form or method of advertising has in fact been deceptive.” In re R.M.J., 455 U.S. 191, 202-03
(1982). Thus, if a court finds in the affirmative on the first prong, the analysis ends and the
speech is not entitled to any First Amendment protection.
But if the commercial speech is only “potentially misleading,” the court must apply the
remainder of the Central Hudson factors to assess the constitutionality of the regulation. See id.
at 203. A court must make three additional inquiries: (1) whether the asserted governmental
interest is substantial; (2) whether the regulation directly advances the government interest
asserted; and (3) whether the regulation is not more extensive than is necessary to serve that
interest. Central Hudson, 447 U.S. at 566.4 In order for the regulation to survive, a court must
answer the final three prongs in the affirmative.
b.

Strict Scrutiny under Sorrell and Reed

MAPCS contends that strict scrutiny, not intermediate scrutiny, should apply to the

As the Supreme Court has acknowledged, “several Members of the Court have expressed doubts about the
Central Hudson analysis and whether it should apply in particular cases.” Lorillard Tobacco Co. v. Reilly, 533 U.S.
525, 554 (2001). However, at this point no majority decision has rejected the analysis of Central Hudson.
4

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regulations at issue for two reasons: (1) the Supreme Court has implicitly overturned the Central
Hudson standard in two recent decisions and (2) the regulations restrict more than commercial
speech.
First, MAPCS relies heavily on a recent Supreme Court decision in Sorrell v. IMS Health
Inc., for the proposition that “‘[t]he First Amendment requires heightened scrutiny whenever the
government creates’ creates content or speaker-based regulations, and ‘commercial speech is no
exception.’” (Pl. Reply Mem. 10) (quoting Sorrell, 131 S. Ct. 2653, 2664 (2011)). MAPCS
contends that Sorrell, as “the [Supreme] Court’s last word [ ] regarding restrictions on
commercial speech,” effectively overruled Central Hudson to the extent that intermediate
scrutiny is no longer the proper test for content-based restrictions on commercial speech. (Pl.
Reply Mem. 11) (quoting National Ass’n of Tobacco Outlets, Inc. v. City of Worcester, 851 F.
Supp. 2d 311, 319 (D. Mass. 2012)).
In Sorrell, the Supreme Court considered a challenge to a Vermont law preventing
pharmacies from sharing prescriber-identifying information for marketing purposes. The Court,
noting that the only two government interests that Vermont asserted in promulgating the law
were the protection of medical privacy and improving public health, applied “heightened judicial
scrutiny” and held that the statute violated the First Amendment. Sorrell, 131 S. Ct. at 2659.
But Sorrell is not as expansive as MAPCS asserts, and the many caveats of its holding
are consistent with the well-established principle that the applicable level of scrutiny for
commercial-speech regulations depends on the specific “nature both of the expression and of the
government interests served by its regulation.” See Central Hudson, 447 U.S. at 563. MAPCS
contends that “[t]he AG’s attempt to distinguish Sorrell by claiming that case had ‘nothing to do

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with consumer protection’ is neither accurate nor consequential.” (Pl. Supp. Mem. 2) (emphasis
added).
That contention is incorrect on both fronts. In Sorrell, the state of Vermont did not try to
justify the statute based on the government’s interest in protecting consumers from misleading
commercial speech. See 131 S. Ct. at 2672. In contrast, the Attorney General justifies the
regulations at issue here on the ground that they are necessary to address “widespread acts and
practices in the for-profit and occupational school industry [that] continue to unfairly harm
consumers.” 940 Mass. Code Regs. § 31.01. That distinction is surely consequential, because
the level of First Amendment scrutiny depends on the “nature both of the expression and of the
government interests served by its regulation.” See Central Hudson, 447 U.S. at 563.
Sorrell is replete with language indicating that the Supreme Court would not
categorically apply strict scrutiny to content-based commercial-speech regulations that are
justified on consumer-protection grounds. Three examples are noteworthy. First, the Court
noted that “a State may [still] choose to regulate price advertising in one industry but not in
others, because the risk of fraud . . . is in its view greater there . . . [h]ere, however, Vermont has
not shown that its law has a neutral justification.” Sorrell, 131 S. Ct. at 2672 (citation and
internal quotation marks omitted). Second, the Court explicitly acknowledged its holding’s
limited effect on regulations justified by alleged consumer deception:
[Vermont] nowhere contends that [the marketing] is false or misleading within
the meaning of this Court’s First Amendment precedents . . . [n]or does the State
argue that the provision challenged here will prevent false or misleading
speech . . . [t]he State’s interest in burdening the speech of detailers instead turns
on nothing more than a difference of opinion.
Id. (emphasis added). Third, the Court further reasoned that Vermont could not eliminate
disfavored marketing wholesale, just as a state “may not seek to remove a popular but disfavored

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product from the market place by prohibiting truthful, nonmisleading advertisements that contain
impressive endorsements or catchy jingles.” Id. at 2671 (emphasis added). In short, Sorrell does
not stand for the proposition that strict scrutiny applies to all commercial-speech restrictions,
especially regulations that have neutral justifications, such as consumer protection.5
MAPCS also contends that the Supreme Court’s recent decision in Reed v. Town of
Gilbert, Arizona, 135 S. Ct. 2218 (2015), controls this case. In Reed, the Court explained that
“[a] law that is content based on its face is subject to strict scrutiny regardless of the
government's benign motive, content-neutral justification, or lack of ‘animus toward the ideas
contained’ in the regulated speech.” 135 S. Ct. at 2228 (quoting City of Cincinnati v. Discovery
Network, Inc., 507 U.S. 410, 429 (1993)). Reed concerned a law that banned outdoor signs
without a permit, and created 23 exemptions for specific types of signage, placing varying
restrictions on the signage depending on which exemption it fell into. 135 S. Ct. at 2224. For
example, the law exempted “ideological signs” or “political signs” from the outright ban.
Plaintiffs, a local church, challenged the law after the Town of Gilbert repeatedly cited them for
failure to comply with the requirements imposed by the “Temporal Directional Signs Relating to
a Qualifying Event” exemption. The exemption encompassed signs directed at motorists or other
passers-by, which advertised for events sponsored by a non-profit. Id. at 2225. The law required
that those signs be:
[N]o larger than six square feet. They may be placed on private property or on a
public right-of-way, but no more than four signs may be placed on a single
property at any time. And, they may be displayed no more than 12 hours before
the “qualifying event” and no more than 1 hour afterward.

5
MAPCS also points the Court to a case in this district for support of its contention that Sorrell controls,
but it too is distinguishable on the same grounds. In National Association of Tobacco Outlets, Inc. v. City of
Worcester, 851 F. Supp. 2d 311 (D. Mass. 2012) (Woodlock, J.), the district court, relying on Sorrell, struck down a
city ordinance that prohibited outdoor advertising of tobacco products. There, however, the court noted that the city
did not “contend that the advertisements prohibited by the Ordinance [were] misleading.” 851 F. Supp. 2d at 314.

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Id. (internal citations omitted). Those restrictions were more severe than those placed on
ideological signs or political signs.
Justice Thomas, joined by five other Justices, struck down the law, finding that the
exemptions were content-based, and could not withstand strict scrutiny. Id. at 2224. In arriving
at that conclusion, the Supreme Court emphasized two guiding principles that compelled the
result. First, a content-based restriction on speech is subject to strict scrutiny regardless of the
government's motive; therefore, “an innocuous justification cannot transform a facially contentbased law into one that is content neutral.” Id. at 2228. Second, “‘[t]he First Amendment's
hostility to content-based regulation extends not only to restrictions on particular viewpoints, but
also to prohibition of public discussion of an entire topic.’” Id. at 2230 (quoting Consolidated
Edison Co. of N.Y. v. Public Serv. Comm'n of N.Y., 447 U.S. 530, 537 (1980)). Therefore, the
mere fact that a law is viewpoint-neutral does not necessarily insulate it from strict scrutiny.
Justice Alito, joined by Justices Kennedy and Sotomayor, took part in the majority opinion but
wrote separately to “add a few words of further explanation” outlining a non-exhaustive list of
signage regulations that would not trigger strict scrutiny. Id. at 2233 (Alito, J., concurring).
Justices Ginsburg, Breyer, and Kagan rejected the notion that a content-based regulation must
necessarily trigger strict scrutiny, and concurred only in the judgment. Id. at 2234-39.
However, as with its reliance on Sorrell, MAPCS’s reliance on Reed appears to be
misplaced. Although only a small number of courts have addressed First Amendment challenges
to commercial-speech regulations since Reed, almost all of them have concluded that Reed does
not disturb the Court’s longstanding framework for commercial speech under Central Hudson.
See Contest Promotions, LLC v. City and Cty. of S.F., 2015 WL 4571564, at *4 (N.D. Cal. July
28, 2015) (appeal pending) (“Reed does not concern commercial speech, and therefore does not

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disturb the framework which holds that commercial speech is subject only to intermediate
scrutiny as defined by the Central Hudson test.”); Citizens for Free Speech, LLC v. County of
Alameda, 2015 WL 4365439, at *13 (N.D. Cal. July 16, 2015) (holding that Reed does not alter
the analysis for laws regulating off-site commercial speech); California Outdoor Equity Partners
v. City of Corona, 2015 WL 4163346, at *10 (C.D. Cal. July 9, 2015) (“Reed does not concern
commercial speech, let alone bans on off-site billboards. The fact that Reed has no bearing on
this case is abundantly clear from the fact that Reed does not even cite Central Hudson, let alone
apply it.” (emphasis deleted)); see also Chiropractors United for Research & Educ., LLC v.
Conway, 2015 WL 5822721, at *5 (W.D. Ky. Oct. 1, 2015) (appeal pending) (“Because the
[challenged] [s]tatute constrains only commercial speech, the strict scrutiny analysis of Reed is
inapposite.”); CTIA-The Wireless Ass'n v. City of Berkeley, 2015 WL 5569072, at *10 (N.D. Cal.
Sept. 21, 2015) (“[Plaintiff] completely ignores the fact that the speech rights at issue here are its
members' commercial speech rights . . . . The Supreme Court has clearly made a distinction
between commercial speech and noncommercial speech . . . and nothing in its recent opinions,
including Reed, even comes close to suggesting that that well-established distinction is no longer
valid.” (emphasis in original)).
Accordingly, Sorrell and Reed do not appear to overrule, or diminish, the wellestablished principle that “[w]hen a State regulates commercial messages to protect consumers
from misleading, deceptive, or aggressive sales practices, or requires the disclosure of beneficial
consumer information, the purpose of its regulation is consistent with the reasons for according
constitutional protection to commercial speech and therefore justifies less than strict review.” 44
Liquormart, 517 U.S. at 501 (emphasis added); accord In re R.M.J., 455 U.S. at 200-01 (“False,
deceptive, or misleading advertising remains subject to restraint . . . . [In Bates v. Arizona] [t]he

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Court suggested that claims as to quality or in-person solicitation might be so likely to mislead as
to warrant restriction . . . [and] a warning or disclaimer might be appropriately required . . . in
order to dissipate the possibility of consumer confusion or deception.” (citations omitted));
Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 77172 (1976) (“[M]uch commercial speech is not provably false or even wholly false, but only
deceptive or misleading. We foresee no obstacle to a State’s dealing effectively with this
problem. The First Amendment, as we construe it today, does not prohibit the State from
insuring that the stream of commercial information flow cleanly as well as freely.” (citations
omitted)).
In this case, the regulations, unlike those in Sorrell, are motivated by a “neutral
justification”: preventing for-profit schools from misleading or deceiving consumers. Some
permutation of the words “false,” “deception,” or “mislead” appears 79 times in the regulations.
See 940 Mass. Code Regs. §§ 31.01-31.08. Moreover, the Attorney General submitted a publiccomment record of 1,346 pages, much of which focuses on reports, statistics, and testimony that
demonstrate allegedly unfair and deceptive practices by for-profit schools, both nationally and in
Massachusetts. Therefore, Sorrell and Reed are not controlling, and Central Hudson’s
intermediate scrutiny is the appropriate level of scrutiny. Whether the regulations directly
advance a substantial government interest and do so without restricting more speech than is
necessary are questions reserved for the application of the Central Hudson standard.
MAPCS contends that there is a second reason why strict scrutiny is the appropriate
standard for the challenged regulations: the regulations restrict not only for-profit schools’
commercial speech, but also their expressive speech. Specifically, MAPCS contends that the
regulations restrict speech concerning topics that extend far beyond the proposal of a commercial

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transaction, such as how an “individual’s personal history intersects with her educational
opportunities.” (Pl. Mem. 8).
The “core notion of commercial speech [is] ‘speech which does no more than propose a
commercial transaction.’” Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66 (1983) (quoting
Virginia State Bd. of Pharm., 425 U.S. at 762). But even speech that merely “refer[s] to a
specific product,” or “has an economic motivation,” can also be commercial speech. See Bolger,
463 U.S. at 66-67. In determining whether speech is commercial, “a court must evaluate the
content, form, and context of the speech as revealed by the whole record.” Connick v. Myers,
461 U.S. 138, 147-48 (1983) (citations omitted).
Here, the public-comment record demonstrates that the speech covered by the regulations
is economically motivated and primarily concerned with recruiting students to enroll. The
Attorney General received comments that recruiters employed by for-profit schools “often have
direct financial interests in the success of those schools” and therefore, their communications
with prospective students are “focus[ed] on revenue generation.” (Def. SMF ¶¶ 51, 98).
Moreover, courts have found that similar regulations regulate primarily commercial speech, even
if they touch on some non-commercial aspects of that speech. See, e.g., Association of Private
Career Colls. and Univs. v. Duncan, 681 F.3d 427, 455-56 (D.C. Cir. 2012) (concluding that
Department of Education regulations were subject to intermediate scrutiny, at least in the context
of a facial challenge, because they regulated primarily commercial speech). Even when
commercial speech is intertwined with some speech that is not economically motivated, the
Supreme Court has held that the speech proposes a commercial transaction. See Bolger, 463
U.S. at 67-68 (finding that information pamphlets distributed by a contraceptive manufacturer
were commercial speech even though “they contain[ed] discussions of important public issues

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such as venereal disease and family planning”). Here, even though for-profit schools may have
personal discussions with prospective students about their families, interests, and goals, the
ultimate purpose of the speech is commercial in nature.
Therefore, at most, the appropriate level of First Amendment scrutiny for the seven
challenged regulations is intermediate scrutiny under Central Hudson.
c.

Reasonable-Basis Scrutiny under Zauderer

The Attorney General concedes that intermediate scrutiny is the applicable standard for
the three challenged regulations that restrict speech.6 The Attorney General contends, however,
that unlike those regulations, the other four challenged regulations require only disclosures, and
are therefore subject to a lower level of scrutiny. Specifically, the Attorney General contends
that those regulations require only factual, uncontroversial disclosures. Therefore, according to
the Attorney General, they are subject to reasonable-basis review under the Supreme Court’s
decisions in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626
(1985), and Milavets, Gallop & Milavets, P.A. v. United States, 559 U.S. 229 (2010).
In Zauderer, the Court held that a more lenient standard than strict or intermediate
scrutiny is appropriate for First Amendment challenges to disclosure requirements, reasoning
that “disclosure requirements trench much more narrowly on an advertiser’s interests than do flat
prohibitions on speech.” 471 U.S. at 651. When a disclosure “take[s] the form of a requirement
that [a speaker] include in his advertising purely factual and uncontroversial information about
the terms under which his services will be available” a court should apply less scrutiny
“[b]ecause the extension of First Amendment protection to commercial speech is justified

See Def. Mem. 16-19. Those three regulations are: “Deceptive Language in General,” 940 Mass. Code
Regs. § 31.04(2); “Time to Complete Program,” 940 Mass. Code Regs. § 31.04(9); “Engaging in High-Pressure
Sales Tactics,” 940 Mass. Code Regs. § 31.06(9).
6

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principally by the value to consumers of the information such speech provides, [thus a speaker’s]
constitutionally protected interest in not providing any particular factual information in his
advertising is minimal.” Id. (citations omitted) (emphasis in original). While the Court noted
that “unjustified or unduly burdensome disclosure requirements might offend the First
Amendment,” it held that disclosure requirements do not violate a commercial speaker’s First
Amendment rights where the requirements “are reasonably related to the State’s interest in
preventing deception of consumers.” Id.
Under that standard, the Court found that the Ohio regulation, which required an attorney
advertising contingency-fee rates to disclose that clients may still have to pay costs, “easily
passe[d] muster.” Id. at 652. The possibility that clients would confuse the terms “fees” and
“costs” was “hardly [ ] speculative,” the Court reasoned, and thus, it minimized the burden on
the government to provide evidence of deception: “[W]hen the possibility of deception is [ ]
self-evident . . . we need not require the State to conduct a survey of the . . . public before it
[may] determine that the [speech] had a tendency to mislead.” Id.
In Milavetz, the Court clarified the Zauderer standard and distinguished factual,
uncontroversial disclosures from other mandatory disclosures that would warrant intermediate
scrutiny. Milavetz involved challenges to revisions of the Bankruptcy Code that required certain
professionals providing debt-relief assistance to disclose in their advertising that their services
were related to bankruptcy relief and to further identify themselves as “debt-relief agencies.”
559 U.S. at 232. The Court explained that the debt-relief advertising was “inherently
misleading” because it offered “debt relief without any reference to the possibility of filing for
bankruptcy, which has inherent costs.” Id. at 250. Because the speech was inherently
misleading and the regulation required only a disclosure, the Court upheld the regulation under

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Zauderer. The Court noted, however, that the “same characteristics of [the Milavetz regulation]
that make it analogous to the rule in Zauderer serve to distinguish it from those at issue in In re
R.M.J., 455 U.S. 191 (1982), to which the Court applied the intermediate scrutiny of Central
Hudson.” Id. According to the Milavetz Court, the R.M.J. regulations, which prohibited
attorneys from advertising their practice areas in terms other than those prescribed by the state
supreme court, “were not inherently misleading” and “the State had failed to show that the
appellant’s advertisements were themselves likely to mislead consumers.” Id. Therefore, the
R.M.J. Court applied the Central Hudson standard of intermediate scrutiny. In contrast with
R.M.J., the Milavetz Court concluded that “evidence in the congressional record demonstrating a
pattern of advertisements that hold out the promise of debt relief without alerting consumers to
its potential cost . . . is adequate to establish [that] the likelihood of deception in this case ‘is
hardly a speculative one.’” Id. at 251 (quoting Zauderer, 471 U.S. at 652).
Milavetz thus established that Zauderer applies where a disclosure requirement targets
speech that is inherently misleading. But there is some ambiguity whether Zauderer reasonablebasis review is the appropriate standard when the speech at issue is only potentially misleading.
Here, MAPCS argues that Zauderer is not the correct standard for the disclosures at issue
because the Attorney General has not demonstrated that the speech in question is inherently
misleading. But the better reading of Zauderer and Milavetz appears to be that reasonable-basis
review is the appropriate standard when a disclosure requirement targets speech that is likely to
mislead consumers, as demonstrated by a record that shows the potential for deception is far
from speculative. The speech need not be inherently deceptive on its face in all circumstances.
At least two other courts to address the same issue have also followed that approach. See Public
Citizen Inc. v. Louisiana Attorney Disciplinary Bd., 632 F.3d 212, 218 (5th Cir. 2011) (“A

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regulation that imposes a disclosure obligation on a potentially misleading form of advertising
will survive First Amendment review if the required disclosure is reasonably related to the
State’s interest in preventing deception of consumers.” (emphasis added)); International Dairy
Foods Ass’n v. Boggs, 622 F.3d 628, 641 (6th Cir. 2010) (“Milavetz thus established that
Zauderer applies where a disclosure requirement targets speech that is inherently misleading.
We conclude that Zauderer also controls our analysis where, as here, the speech at issue is
potentially misleading.” (emphasis in original)).
MAPCS nonetheless contends that Zauderer reasonable-basis review applies only in
situations where commercial speech is inherently misleading—that is, where speech is deceptive
in its basic nature or essential character. (See Pl. Reply 19-20). But there are at least two
reasons why Zauderer should apply as well to potentially misleading speech. First, while the
language of the majority opinion in Milavetz does not fully resolve the issue, the distinction
between the majority and concurring opinions appears to indicate that Zauderer reasonable-basis
review is the correct standard for potentially misleading speech. Compare Milavetz, 559 U.S. at
249 (“[T]he Government maintains that [the regulation] is directed at misleading commercial
speech. For that reason, and because the challenged provisions impose a disclosure requirement
rather than an affirmative limitation on speech, the Government contends that the less exacting
scrutiny described in Zauderer governs . . . . We agree.” (emphasis in original)), with id. at 258
(Thomas, J. concurring) (“[A] disclosure requirement passes constitutional muster only to the
extent that it is aimed at advertisements that, by their nature, [are inherently likely to deceive or
have in fact been deceptive].” (emphasis added)). Second, as the Court recognized in Milavetz,
the fundamental reason for the Zauderer standard was that “First Amendment protection for
commercial speech is justified in large part by the information’s value to consumers.” Id. at 249

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(majority opinion). Therefore, in the context of disclosures, an advertiser’s “constitutionally
protected interest in not providing the required factual information is ‘minimal.’” Id. (citing
Zauderer, 471 U.S. at 651). That reasoning applies to all regulations requiring disclosures,
regardless of whether the commercial speech in question is inherently or only potentially
misleading.
Therefore, Zauderer reasonable-basis review is applicable to the four disclosure
regulations in this case if two conditions are met: (1) the speech is potentially misleading and
(2) the regulations require the schools to disclose factual and uncontroversial information. Under
that framework, the Court will determine whether reasonable-basis review is the appropriate
standard for each of the four regulations in turn.
i.

Consequences of Loan Default

The first regulation that the Attorney General contends should be governed by Zauderer
is the “Consequences of Loan Default” regulation, 940 Mass. Code Regs. § 31.05(3). That
regulation, in relevant part, requires that a for-profit school make a disclosure at least 72 hours
before entering into an enrollment agreement with a prospective student that details the loan nonpayment percentage for its students, and warns the student that “[f]ailure to repay student loans is
likely to have a serious negative effect on your . . . future earnings . . . .” See 940 Mass. Code
Regs. § 31.05(3). MAPCS contends that Zauderer reasonable-basis review is not the correct
standard because the regulation “compels controversial speech regarding students’ future
earnings.” (Pl. Mem. 21). Specifically, it contends that the Attorney General has presented no
facts to support her opinion that loan defaults may lead to decreased future earnings. But it does
not appear to be a controversial proposition that a loan default will likely have a negative effect
on a person’s future earnings, and certainly the record supports it. Students who default on loans

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may face garnishment of future earnings (R:402, 453, 474), may find it difficult to find
employment because of employee background checks (R:474), and may be ineligible for benefits
such as the Earned Income Credit (R:402). Moreover, the proposition that default can hurt a
person’s future earnings is no less factual than disclosures that courts have considered factual
and uncontroversial in the past. See, e.g., Zauderer, 471 U.S. at 652 (upholding a disclosure that
distinguished legal fees from legal costs in contingency-fee advertisements); International Dairy
Foods, 622 F.3d at 641 (explaining that a disclaimer about the production process of milk was
not controversial).
Furthermore, MAPCS does not contend that there is insufficient evidence of potential
consumer deception caused by the practices in question. The difference in student default rates
between for-profit schools and non-profit schools is stark (R:257), and at least one former
student testified that he was deceived by a for-profit school into believing that his student loans
were federal loans when they were in fact high-interest private loans. (R:645). Accordingly, the
Court will apply Zauderer reasonable-basis review to the “Consequences of Loan Default”
regulation, 940 Mass. Code Regs. § 31.05(3).
ii.

Graduation-Rate Disclosure

The second regulation that the Attorney General contends should be governed by
Zauderer is the “Graduation-Rate Disclosure” regulation, 940 Mass. Code Regs. § 31.05(2).
That regulation requires that a for-profit school disclose its graduation rate at least 72 hours
before entering into an enrollment agreement with a prospective student. MAPCS contends that
the graduation rate—defined in § 31.03 as the number of students who receive degrees in the
program during the last two years divided by the total number of students who enrolled in the
program during the last two years—is misleading and controversial. Specifically, MAPCS

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contends that the rate’s definition (unlike federal regulations) fails to use a student cohort: a
group of students who start the program at the same time and have been enrolled long enough to
graduate.7 The Attorney General contends that the formula is a factual disclosure that is
reasonably related to closing reporting loopholes under federal regulations. The Attorney
General further contends that the formula is publicly available, uses factual data from schools,
and does nothing more than generate a mathematical result.
There is evidence in the public-comment record that the graduation rates of for-profit
schools are potentially deceptive. Multiple commenters testified that those graduation rates are
misleading because, under existing federal regulations, they do not capture repeat and non-fulltime students. (See R:141-42, 442-43, 461, 471).
Moreover, the Attorney General’s graduation-rate formula is factual. It is factual because
it is a mathematical formula based on publicly-available data. And although MAPCS contends
that the formula can result in artificially low graduation rates for some for-profit schools, it does
so by filling a potential gap in federal regulation, which can produce artificially high graduation
rates, at least according to the public-comment evidence.
The metric is unquestionably flawed to some degree, and the Attorney General perhaps
would have been wise to adopt a different standard. However, the fact that a statistic is not
perfect does not make it “controversial” under Zauderer. It is well-established that disclosures
of imperfect statistical information are commonplace in regulatory law. See, e.g.,
Pharmaceutical Care Mgmt. Ass’n v. Rowe, 429 F.3d 294, 316 (1st Cir. 2005) (Boudin and Dyk,

7
MAPCS contends that the rate is misleading because it results in an artificially low graduation rate if a
school experiences an increase in enrollment. It further contends that because the rate uses all enrolled students in
the denominator, programs that take longer to complete will have to publish artificially low graduation rates.
Finally, it contends that many for-profit schools that enroll students on a rolling basis will be forced to publish nonfactual graduation rates because some students have not had time to complete the program.

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JJ., concurring) (“The idea that these thousands of routine regulations require an extensive First
Amendment analysis is mistaken.”). The graduation-rate formula does not prevent for-profit
schools from explaining the differences between the federal and state formulas to prospective
students, or providing their own, perhaps more meaningful, statistic (assuming, of course, that
the statistic is truthful and not misleading). And the underlying assumption of Zauderer was that
more truthful information in the hands of consumers, not less, best serves the First Amendment.
See Zauderer, 471 U.S. at 651 (noting that a person’s “constitutionally protected interest in not
providing any particular factual information in his advertising is minimal”).
In short, while the merits of the Attorney General’s graduation-rate formula are certainly
debatable, the Court finds that it is sufficiently factual and uncontroversial to permit the
application of Zauderer reasonable-basis review.
iii.

Total Placement-Rate Calculus

The third regulation that the Attorney General contends is a Zauderer disclosure is the
“Total Placement-Rate Calculus” regulation, 940 Mass. Code Regs. § 31.05(4)(b). That
regulation requires that a for-profit school disclose its placement rate of initially-enrolled
students into full-time, non-temporary jobs in their field of study at least 72 hours before entering
into an enrollment agreement with a prospective student. The “total placement rate” is defined in
§ 31.03 as the product of a school’s graduation rate, and its “graduation-placement rate,” which
is the percentage of students who have graduated in the past two years who obtain full-time, nontemporary jobs in their field of study. Essentially, the total placement rate is the percentage of
students who have initially enrolled in a for-profit school who go on to obtain full-time
employment, rather than the percentage of students who graduate. MAPCS contends that the
total placement rate is not only controversial because it incorporates the flawed graduation rate,

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but also that it is non-factual because, as a formula that relies on multiplication rather than
division, it is not a “rate,” or ratio, in the strict sense of the word.
The total placement rate is uncontroversial based on the same reasoning underlying the
conclusion that the graduation rate is uncontroversial. But MAPCS’s second contention, that the
total placement rate is non-factual because it involves multiplication, warrants fuller explanation.
In short, MAPCS’s contention appears to be a semantic distinction without a mathematical
difference, much less a constitutional one.8 It is not important whether a percentage is calculated
by division (the number of students who obtain jobs divided by the total number of enrolled
students) or multiplication (the percentage of enrolled students who graduate multiplied by the
percentage of graduated students who obtain jobs). The number measures the same
mathematical percentage regardless of how it is calculated. Accordingly, the Court will apply
Zauderer reasonable-basis review to the “Total Placement-Rate Calculus” regulation, 940 Mass.
Code Regs. § 31.05(4)(b).
iv.

Credit Transfer

The fourth regulation that the Attorney General contends is a Zauderer disclosure is the
“Credit Transfer” regulation, 940 Mass. Code Regs. § 31.05(7). That regulation specifies that it
is an unfair or deceptive practice for a school to represent to a prospective student that its credits
“are or may be transferable” to another school without (1) identifying the schools with which it
has a “written agreement” verifying that credits can be transferred, and (2) “indicating it is aware
of no other schools that accept the transfer of its credits.” 940 Mass. Code Regs. § 31.05(7).
MAPCS contends that the regulation compels false speech, and is therefore not a factual

8

Consider a school with 100 students who initially enroll, 50 who graduate, and 25 who obtain jobs. The
percentage of total enrolled students who obtain jobs is 25 percent. That 25 percent can be calculated by division
(25/100) or multiplication (50 percent–the graduation rate–multiplied by 50 percent–the graduate-placement rate).

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disclosure under Zauderer. The Attorney General contends that MAPCS confuses what another
school may do with what another school must do. Essentially, the Attorney General contends
that the natural reading of subpart (b) of the regulation is that a school must disclose that “it is
aware of no other schools that [must] accept the transfer of its credits.”
If that was how the regulation read, the Court would agree with the Attorney General that
it would be a factual disclosure under Zauderer. But that is not what the plain language of the
regulation says. Consider an example where School A is aware that School B has accepted
transferred credits from School A students in the past, but has no written agreement with School
B. If School A represented to a prospective student that its credits are commonly transferrable,
under the regulation as it reads, not only would it have to disclose the schools with which it has
written transfer agreements, but also that disclosure would have to affirmatively state that School
A “is aware of no other schools that accept the transfer of its credits.” Mass. Code Regs.
§ 31.05(7). On its face, such a disclosure would be false. School A is aware that School B
frequently accepts its credits, but it must state that it is not aware of any other school that accepts
its transfer credits. It would be factual if School A had to disclaim that it “is aware of no other
schools that must accept the transfer of its credits,” because it has no written agreement with
School B. But the Court cannot read words into the regulation that contradict its plain meaning
in order to save it. The Attorney General contends that the regulation does not prevent a school,
as long as a school makes the initial disclosure, from having a conversation with a student about
its informal credit-transfer agreements. That may be true; however, that conversation does not
save the initial disclosure from being an untrue statement at the time that it is made.
Accordingly, the credit transfer regulation is not a factual disclosure that warrants reasonable-

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basis review under Zauderer, and the Court will instead apply intermediate scrutiny under
Central Hudson.
2.

Application

Having decided the applicable First Amendment standards for each of the seven
challenged regulations, the second step is to apply the standards to the regulations. First, the
Court will apply Zauderer reasonable-basis review to the three factual, uncontroversial
disclosure regulations. Second, the Court will apply Central Hudson intermediate scrutiny to the
remaining four regulations.
a.

Zauderer Disclosures––Reasonable-Basis Scrutiny

Under Zauderer, the Attorney General must show that the mandated disclosures are
“reasonably related to the State’s interest in preventing deception of consumers,” and the
disclosures must not be “unjustified or unduly burdensome.” Zauderer, 471 U.S. at 651. In
determining whether a disclosure is reasonably related to the state’s interest in preventing
potential deception, courts apply a fairly lenient standard. See id. at 652 (explaining that the
possibility of deception was “self-evident,” and holding that to justify the state’s imposition of a
disclosure requirement for attorney advertising, the state need not “conduct a survey of the
public before it may determine that the advertisement had a tendency to mislead” (citations and
alterations omitted)); see also Milavetz, 559 U.S. at 251 (explaining that “evidence in the
congressional record demonstrating a pattern of [misleading] advertisements . . . is adequate to
establish that the likelihood of deception in this case is hardly a ‘speculative one’” (citing
Zauderer, 471 U.S. at 652)); International Dairy Foods, 622 F.3d at 642 (noting that “[a]lthough
the [record] relied on by the State constitute[s] weak evidence of deception, they at least
demonstrate that the risk of deception in this case is not speculative. At a minimum, the [record]

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supports the conclusion that production claims can be misleading and the comments show that
there is general confusion among some Ohio consumers . . . .” (emphasis added)).
i.

Consequences of Loan Default

It appears that the public-comment record supports the conclusion that there is at least
some confusion among for-profit-school students about their student loans. The record supports
two conclusions: (1) students of for-profit schools default on their loans at a significantly higher
rate than students at other schools, and (2) such defaults have deleterious effects on students’
future employment and earnings. Therefore, it is not merely speculative that students are being
deceived or pressured into taking out loans that they will have difficulty paying, or are unaware
of the future harms caused by defaulting on those loans, or perhaps both. The loan-default
regulation is reasonably related to the Commonwealth’s interest in preventing students from
being deceived into taking out loans that they cannot repay. It requires schools to publish their
student-default rates and disclose the potential harms of default. Furthermore, MAPCS does not
contend that the loan-disclosure regulation is unjustified or unduly burdensome, nor could it.
The regulation does not appear to present any serious financial or operational challenges. The
regulation simply requires that schools make a factual disclosure to students about the possible
consequences of loan default at least 72 hours before signing an enrollment agreement.
Accordingly, the Court finds that the “Consequences of Loan Default” regulation, 940
Mass. Code Regs. § 31.05(3), satisfies the Zauderer reasonable-basis standard, and therefore it
does not violate the First Amendment rights of MAPCS members.
ii.

Graduation and Total-Placement Rates

The Court will address the “Graduation-Rate Disclosure,” 940 Mass. Code Regs.
§ 31.05(2), and the “Total Placement-Rate Calculus,” 940 Mass. Code Regs. § 31.05(4)(b),

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together because they are based on similar evidence and require similar disclosures. The
Attorney General heard substantial evidence that for-profit schools attract many part-time and
non-first-time students whose subsequent graduation outcomes are not captured by existing
federal regulations. The Attorney General also heard evidence that federal placement-rate
disclosures are inaccurate because they fail to capture the employment outcomes of the many
students who enroll in for-profit schools and subsequently drop out. Some commenters pointed
to specific cases of actual deception and urged the Attorney General to supplement the federal
disclosures. There is therefore a non-speculative risk that prospective students may be misled by
the graduation and placement rates required under existing federal regulations. The two
mandated disclosures are reasonably related to the Commonwealth’s interest in preventing
consumer deception. Moreover, MAPCS does not contend that there is any meaningful
operational or financial burden imposed by the regulations, which require schools to disclose two
simple calculations.
Accordingly, the Court finds that the “Graduation-Rate Disclosure,” 940 Mass. Code
Regs. § 31.05(2), and the “Total Placement-Rate Calculus,” 940 Mass. Code Regs. § 31.05(4)(b),
also satisfy the Zauderer reasonable-basis standard, and therefore do not violate the First
Amendment rights of MAPCS members.
b.

Central Hudson Restrictions––Intermediate Scrutiny

It is well-established that “the party seeking to uphold a restriction on commercial speech
carries the burden of justifying it.” Edenfield v. Fane, 507 U.S. 761, 770 (1992). “This burden
is not satisfied by mere speculation or conjecture; rather a governmental body seeking to sustain
a restriction on commercial speech must demonstrate that the harms it recites are real and that its
reduction will in fact alleviate them to a material degree.” Id. at 770-71. Under Central Hudson,

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the Attorney General must first show that the Commonwealth’s asserted interest is substantial.
See 447 U.S. at 566. In this case, the Commonwealth’s asserted interest is to “protect
Massachusetts consumers seeking to enroll in any course of instruction or educational service
offered by certain private business, vocational, and career schools, and to ensure that the private
career school industry was operating fairly and honestly by means of legitimate and responsible
business acts and practices that [were] neither unfair nor deceptive.” See 940 Mass. Code Regs.
§ 3.10 (since superseded).
The last two steps of the Central Hudson test are complementary. The Attorney General
must show that each regulation directly advances the asserted governmental interest of
preventing consumer deception to a “material degree.” 44 Liquormart, 517 U.S. at 505. A
commercial-speech restriction “may not be sustained if it provides only ineffective or remote
support for the government’s purpose.” Central Hudson, 447 U.S. at 564. Moreover, each
regulation must not be “more extensive than necessary to serve [that] interest.” Id. at 591.
Essentially, the last two steps involve “asking whether the speech restriction is not more
extensive than necessary to serve the interests that support it.” Lorillard Tobacco Co. v. Reilly,
533 U.S. 525, 556 (2001) (citation omitted). “[I]f there are numerous and obvious lessburdensome alternatives to the restriction on commercial speech, that is certainly a relevant
consideration in determining whether the ‘fit’ between ends and means is reasonable.” City of
Cincinnati, 507 U.S. at 417 n.13; see also Thompson v. Western States Med. Ctr., 535 U.S. 357,
371 (2002) (“In previous cases addressing this final prong of the Central Hudson test, we have
made clear that if the Government could achieve its interests in a manner that does not restrict
speech, or that restricts less speech, the Government must do so.”); Rubin v. Coors Brewing Co.,
514 U.S. 476, 490-91 (1995) (finding a law that prohibited beer labels from displaying alcohol

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content unconstitutional in part because of the availability of alternatives “such as directly
limiting the alcohol content of beers, prohibiting marketing efforts emphasizing high alcohol
strength . . . or limiting the labeling ban only to malt liquors”); 44 Liquormart, 517 U.S. at 507
(plurality opinion) (striking down a prohibition on advertising the price of alcoholic beverages in
part because “alternative forms of regulation that would not involve any restriction on speech
would be more likely to achieve the State’s goal of promoting temperance”). At the same time,
the tailoring requirement under intermediate scrutiny is less demanding than the least-restrictive
means test imposed by strict scrutiny. See Board of Trs. of State Univ. of N.Y. v. Fox, 492 U.S.
469, 480 (1989) (“What [the Court’s] decisions require is a fit between the legislature’s ends and
the means chosen to accomplish those ends––a fit that is not necessarily perfect, but reasonable;
that represents not necessarily the single best disposition but one whose scope is in proportion to
the interest served . . . .” (internal quotation marks omitted)).
MAPCS first contends that the regulations are not supported by a substantial state interest
because the Attorney General’s “vague basis as alleged ‘consumer harm’ is simply not enough,
and, the Attorney General cannot belatedly manufacture other purported interests for the sake of
litigation.” (Pl. Mem. 14). Second, it contends that the public-comment evidence is insufficient
to prove that the regulations directly prevent consumer deception to a material degree. Third, it
contends that even if the regulations directly advanced the government’s interest in preventing
consumer deception, the regulations restrict more speech than is necessary.
The Attorney General contends that the regulations are based on voluminous evidence of
for-profit schools’ deceptive practices and that they directly advance the Commonwealth’s
interest in ensuring that “the private career school industry [is] operating fairly and honestly by
means of legitimate and responsible business acts and practices.” 940 Mass. Code Regs. § 3.10

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(since superseded). The Attorney General further contends that each regulation targets only
deceptive speech and is reasonably tailored.
The Court will apply intermediate scrutiny to each of the four remaining regulations in
turn.
i.

Deceptive Language in General

The first regulation warranting intermediate scrutiny is the “Deceptive Language in
General” regulation, 940 Mass. Code Regs. § 31.04(2). That regulation provides that “[i]t is an
unfair or deceptive act or practice for a school to use language or make a claim . . . which has the
tendency or capacity to mislead or deceive students . . . .” Id.
MAPCS first challenges the regulation’s “tendency or capacity to mislead or deceive”
language, and contends that under Central Hudson, “the government may only ban forms of
communication more likely to deceive the public than to inform it.” (Pl. Mem. 13) (citing
Central Hudson, 447 U.S. at 563) (emphasis in original). But that argument confuses the
Central Hudson analysis. Under the first step of Central Hudson, the government may place an
outright ban on speech that is misleading on its face––that is, speech that is more likely to
deceive the public than to inform it. In short, only if the speech is not misleading on its face does
it receive any First Amendment protection at all. But a state can still promulgate regulations that
give it the power to limit speech that has the tendency or capacity to mislead consumers; the
regulation simply has to satisfy the remaining Central Hudson factors. MAPCS does not appear
to contend that § 31.04(2) does not satisfy those factors, nor could it.
The general prohibition against deceptive language is not based on a vague alleged threat
of consumer harm, as MAPCS contends. Rather, it is based on more than one thousand pages of
written testimony and two public hearings that show credible evidence of at least some deceptive

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practices in the Massachusetts for-profit-school industry. Moreover, the regulation targets only
speech that tends to mislead or deceive; thus, it directly advances the Commonwealth’s interest
in consumer protection and is not more extensive than necessary to serve the interests that
support it.
The Court recognizes that the regulation grants the Attorney General great latitude in
determining whether certain speech has the capacity to mislead students. But many federal and
state consumer-protection regulations are substantially similar, and courts have upheld them
against First Amendment challenges. See, e.g., Federal Trade Comm’n v. Colgate-Palmolive,
380 U.S. 371, 384-85 (1965) (noting that the Federal Trade Commission Act prevents “unfair or
deceptive acts or practices in commerce” and “necessarily gives the Commission an influential
role in interpreting [the statute] and in applying it to the facts of particular cases arising out of
unprecedented situations”); Aspinall v. Philip Morris Cos., Inc., 442 Mass. 381, 394 (2004),
abrogated in part on other grounds by Tyler v. Michaels Stores, Inc., 464 Mass. 492, 502 n.15
(2013) (“Although our cases offer no static definition of the word ‘deceptive,’ we have stated
that a practice is ‘deceptive,’ for purposes of [Chapter 93A], if it could reasonably be found to
have caused a person to act differently from the way he or she otherwise would have
acted . . . . In the same vein, we have stated that conduct is deceptive if it possesses a tendency
to deceive.” (citations, alterations, and internal quotation marks omitted)).
Accordingly, the Court finds that the general prohibition of deceptive language in
§ 31.04(2) does not violate the First Amendment, because it directly advances the
Commonwealth’s interest in preventing consumer deception and does not restrict more speech
than is necessary.

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ii.

Time to Complete Program

The second regulation warranting intermediate scrutiny is the “Time to Complete
Program” regulation, 940 Mass. Code Regs. § 31.04(9). That regulation provides that “[i]t is an
unfair or deceptive act or practice for a school to misrepresent the amount of time it takes to
finish a program, including a representation that a program can be completed ‘in weeks’ or
similar language suggesting that the length of time to complete the program is shorter than the
actual median completion time to obtain a certificate, diploma, or degree.” Id.
MAPCS contends that the regulation, which absolutely bars a school from suggesting that
a student can complete a program faster than the actual median completion time, fails under the
final step of the Central Hudson test because it restricts more speech than is necessary to achieve
the Commonwealth’s purported interest. The Court agrees.
Beginning with the first step of the Central Hudson analysis, the Commonwealth’s
asserted interest is to prevent for-profit schools from deceiving students by misrepresenting
program-completion times. That interest is not based on mere conjecture, but instead is realistic
and substantial based on the public-comment evidence. For example, one school advertised that
its medical-assistant training programs could be completed in “just weeks,” when in fact, its
programs required at least seven and nine months, respectively.9 The United States Senate
HELP committee, as a result of a two-year investigation into the for-profit school industry,
concluded that many schools misled prospective students about their program-completion times.
Thus, the Attorney General has presented a substantial state interest.
Next, the regulation substantially furthers that asserted interest by preventing schools

9

Of course, months and years (for that matter, decades and centuries) are literally composed of weeks;
however, the clear implication of the phrase “just weeks” is that the program could be completed in a relatively short
number of weeks, not seven or nine months.

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from providing unfair estimates of their program-completion times. According to its plain
language, the regulation prohibits schools from advertising any program-completion time that is
less than the median. Therefore the regulation furthers the Commonwealth’s interest by more
than a material degree; it appears to prevent almost any conceivable attempt by a school to
underestimate its program-completion time.
But the regulation fails under the final step of the Central Hudson test. The outright
prohibition on advertising a completion time that is less than the median is more sweeping than
is necessary to serve the Commonwealth’s interests. There are “numerous and obvious lessburdensome alternatives to the restriction.” See City of Cincinnati, 507 U.S. at 417 n.13. For
example, the Attorney General could have promulgated a regulation requiring schools simply to
disclose their median and/or average completion times. In fact, such a regulation is exactly what
some commenters suggested in their testimony. (R:461). Or, the Attorney General could have
required schools to provide students with a range of median or mean completion times, such as
the 25th, 50th, and 75th percentiles.
But the regulation goes well beyond those alternatives, and restricts truthful speech. The
Attorney General’s argument to the contrary is unpersuasive. The Attorney General contends
that the regulation is reasonably tailored because “[o]nce a for-profit school has told a student the
median completion time, nothing in Section 31.04(9) stops the school from disclosing other
facts, such as the range of times students have completed the program, including the fastest
times. Thus, the median completion time requirement is nothing more than a fact disclosure that
easily satisfies Zauderer.” (Def. Mem. 17).
By its plain language, however, the regulation imposes a restriction, rather than
mandating a disclosure. It prevents any representation “suggesting that the length of time to

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complete the program is shorter than the actual median completion time.” That restriction
prohibits a wide range of possible speech, particularly in light of the use of the term
“suggesting.” By definition, half the students in a program complete it in less than the median
time. The regulation appears to prohibit a school from even mentioning that fact.
For example, suppose a school advertised—truthfully—as follows: “The median time to
complete our program is 40 weeks. That means that half our students completed it in 40 weeks
or less. One-third of our students, however, finished it in less than 25 weeks. And three-quarters
finished it in less than 45 weeks.” That statement, even if truthful, suggests that for many
students “the length of time to complete the program is shorter than the actual median
completion time,” and therefore would run afoul of the regulation. Furthermore, even if a school
used its average completion time, which could be lower than its median, it could be held liable.
And indeed, the Attorney General’s own suggestion—that a school could disclose “the range of
times students have completed the program, including the fastest times”—would violate the
language of the regulation.
The fact that the Attorney General has demonstrated the capability to draft an actual
disclosure requirement in the very same set of regulations suggests that the regulation is not
intended merely to impose a disclosure. Compare 940 Mass. Code Regs. § 31.05(2) (“It is an
unfair or deceptive act or practice to fail to make the following disclosure . . . . ” (emphasis
added)), with 940 Mass. Code Regs. § 31.04(9) (“It is an unfair or deceptive act or practice for a
school to misrepresent the amount of time it takes to finish a program, including . . . language
suggesting that the length of time to complete the program is shorter than the actual
median . . . .”).
There are numerous, less-burdensome means by which the Attorney General could have

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furthered the same governmental interest. Those alternative means might further the
Commonwealth’s interest less effectively than an outright ban like § 31.04(9), but Central
Hudson requires reasonable tailoring.
Accordingly, the Court finds that § 31.04(9) violates the First Amendment under
intermediate scrutiny because it prohibits more speech than is necessary to protect students from
deceptive advertisements about program-completion times.
iii.

Credit Transfer

The third regulation warranting intermediate scrutiny is the “Credit Transfer” regulation,
940 Mass. Code Regs. § 31.05(7). That regulation provides as follows:
It is an unfair or deceptive act or practice for a school to represent to a student or
prospective student or to any other person that its credits are or may be
transferable to another educational institution without:
(a) identifying the school(s) with which it has written agreements or other
documentation verifying that credits can be transferred to said school(s);
and
(b) indicating it is aware of no other schools that accept the transfer of its
credits.
Id.
MAPCS contends that the regulation is not sufficiently tailored because subpart (b)
compels false speech when a school has informal credit-transfer agreements (without a written
agreement or other documentation) with other schools. The Attorney General contends that the
regulation restricts no speech following the two disclosures, and that it allows for-profit schools
to engage in follow-up discussions with students about more informal credit-transfer options.
At the outset, the Court notes the unique situation that the transfer-credit regulation
presents. It appears that few courts have considered the constitutionality of disclosure
regulations that fail the “factual” or “uncontroversial” prerequisites of Zauderer. Although it

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may seem counterintuitive to apply Central Hudson intermediate scrutiny to a regulation that
imposes a disclosure, if a disclosure is controversial enough or even compels false speech, it can
act as a speech restriction. Specifically, if a speaker is faced with a choice between including a
false disclosure in an advertisement and not advertising at all, he may choose not to speak. Thus,
the disclosure regulation, if controversial enough, actually acts as a speech restriction, and must
satisfy intermediate scrutiny, including its narrow-tailoring requirement. At least one court has
followed that line of reasoning, and an explanation of the case is helpful in analyzing the
transfer-credit regulation.
In Safelite Group, Inc. v. Jepsen, 764 F.3d 258 (2d Cir. 2014), the Second Circuit
invalidated a Connecticut law that required insurance-claims administrators who owned their
own windshield-repair businesses to disclose the name of a competitor’s repair shop to
customers before mentioning their own affiliate. Reversing the district court, which found the
law to be a factual and uncontroversial disclosure regulation warranting reasonable-basis review,
the court applied an intermediate scrutiny standard under Central Hudson. Safelite, 764 F.3d at
262. The court reasoned that the “disclosure” regulation was controversial enough to warrant
intermediate scrutiny because “[p]rohibiting a business from promoting its own product on the
condition that it also promote the product of a competitor is a very serious deterrent to
commercial speech.” Id. at 264. The court explained:
The law does not mandate disclosure of any information about products and
services of affiliated glass companies or of the competitor’s products or services.
Instead, it requires that insurance companies or claims administrators choose
between silence about the products and services of their affiliates or give a
(random) free advertisement for a competitor. This is a regulation of content
going beyond mere disclosure about the product or services offered by the wouldbe speaker. Indeed, it prevents the speaker from making such disclosure by
requiring advertisements for a competitor and thereby deters helpful disclosure to
consumers. Unlike the earlier mentioned cases that applied Zauderer’s rational
basis test, the speech requirement here does more to inhibit First Amendment
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values than to advance them.
Id.
In applying intermediate scrutiny, the court found that the regulation was more restrictive
than necessary to achieve the government’s interest. Id. at 265. According to the court, other
regulations, such as requiring claims administrators to disclose ownership of repair businesses or
to inform consumers that they had the right to choose any repair shop, would achieve the same
interest without chilling commercial speech. Id.
Here, § 31.05(7)(b) is similar to the Connecticut law in Safelite because it requires
commercial speakers to make a disclosure that is sufficiently controversial––or in this case, one
that may actually be false––that it is likely to chill or restrict more speech than necessary.
Subpart (a) of the regulation is a true disclosure requirement: it requires a school to disclose the
list of schools with which it has written transfer agreements. But subpart (b) restricts more
speech than necessary because even if a school is aware that other schools frequently accept its
credits on a more informal or case-by-case basis, it must affirmatively represent to prospective
students that “it is aware of no other schools that accept the transfer of its credits.” Mass Code
Regs. § 31.05(7)(b). Such a school, facing the decision between silence and being forced to
make a false statement––one that would likely hurt its chance of recruiting the student––may
very well choose silence.
Section 31.05(7)(b) directly advances the government’s substantial interest in preventing
for-profit schools from deceiving prospective students about credit transfers, but it restricts more
speech than necessary. It is well-established that “if the Government could achieve its interests
in a manner that does not restrict speech, or that restricts less speech, the Government must do
so.” Thompson, 535 U.S. at 371. The credit-transfer regulation does not need to be perfectly

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tailored; however, there appear to be a variety of alternatives that would restrict less speech. For
example, the regulation could provide that schools may not represent that its credits are or may
be transferable without (a) identifying any schools with which it has formal agreements;
(b) identifying any school with which it has informal agreements; (c) identifying any schools that
have refused to accept credits in the past; and (d) warning that the credits may not be transferable
if the school does not have an agreement, or if the credits have not been accepted in other
schools in the past. Or subpart (b) could be more narrowly tailored to read “indicating it is aware
of no other schools that have formally agreed or are otherwise required to accept the transfer of
its credits.”
Accordingly, the Court finds that § 31.05(7)(b) violates the First Amendment because it
chills more speech than is necessary to protect students from deceptive statements about credit
transfers. Section 31.05(7)(a) does not appear to violate the First Amendment because it is a
straight-forward Zauderer disclosure that is reasonably related to the Commonwealth’s interest
in preventing consumer deception concerning transfer credits.
iv.

Engaging in High-Pressure Sales Tactics

The final regulation warranting intermediate scrutiny is the “Engaging in High-Pressure
Sales Tactics” regulation, 940 Mass. Code Regs. § 31.06(9). That regulation provides that “[i]t
is an unfair or deceptive act or practice for a school to initiate communication with a prospective
student, prior to enrollment, via telephone (either voice or data technology), in person, via text
messaging, or by recorded audio message, in excess of two such communications in each sevenday period to either the prospective student’s residence, business or work telephone, cellular
telephone, or other telephone number provided by the student.” Id.

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MAPCS contends that the regulation restricts more speech than necessary because it
leads to results where “a school representative who greets a student at a [s]chool [f]air
(communication number 1) and receives the student’s [phone] number cannot follow up a call
(communication number 2) with a text message for at least a week––even though classes
frequently begin on a rolling basis.” (Pl. Mem. 16).10
Section 31.06(9) furthers the Commonwealth’s asserted interest in protecting consumers
from high-pressure, “pain-based” recruiting methods. And it directly advances that interest by
placing a limit on the number of times a school can initiate contact with a student before a
mandatory cooling-off period. Finally, the regulation appears to be reasonably tailored to allow
students and schools to communicate. For example, it does not limit the number of times a
prospective student may initiate contact with a school, nor does it limit the total number of times
that a school may contact a student. It does not appear to place a limit on the number of times a
school can e-mail or mail a student. In short, the regulation prevents the high-pressure sales
tactics that it targets, but does so in a measured way that continues to allow reasonable
communication between prospective students and schools. Central Hudson does not demand
perfectly tailored regulations, only reasonable ones. See Florida Bar v. Went For It, Inc., 515
U.S. 618, 634-35 (1995) (upholding Florida statute banning direct-mail solicitations within thirty
days of an accident).
Accordingly, the Court finds that § 31.06(9)’s reasonable restraint on the frequency of
communications does not violate the First Amendment.

10

Among other things, the Court doubts that a student approaching a school representative at a fair would
be considered a communication as defined by the regulation, because the school would not be “initiating
communication.”

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B.

Vagueness Challenges

MAPCS contends that the “Failure to Disclose Facts” regulation, 940 Mass. Code Regs.
§ 31.05(1), and the “Enrolling Unqualified Students” regulation, 940 Mass. Code Regs.
§ 31.06(6), do not provide fair notice as required by the Due Process Clause of the Fourteenth
Amendment, and are therefore void for vagueness. In addition, although not directly pleaded in
the complaint, MAPCS also contends that both regulations violate the First Amendment because
their vagueness chills protected speech.11
The Attorney General contends that MAPCS has failed to meet the heavy burden it faces
in its facial Due Process challenge because it has not shown that the regulations are
impermissibly vague in all applications. According to the Attorney General, “[a]t least in this
facial [Due Process] challenge, the Court may reasonably presume that the scenarios where
MAPCS’s member schools need to take action will be reasonably clear.” (Def. Mem. 22). As
for the First Amendment challenge, the Attorney General contends that the two regulations are
not speech restrictions, and thus the vagueness of their enforcement boundaries does not cause a
school to “speak less or avoid speaking to avoid enforcement.” (Def. Reply 3).
There is little question that the regulations are troublesomely vague and overbroad.
Section 31.05(1) prohibits a school from concealing or failing to disclose to a prospective student
“any fact relating to the school or program, disclosure of which is likely to influence the

Notably, Count Four of the amended complaint, which is titled “[t]he regulations violate the due process
clause of the United States Constitution,” contains no reference to the First Amendment or any other direct
allegation that either § 31.05(1) or § 31.06(6) chills protected speech. (See Am. Compl. ¶¶ 89-97). Paragraph 96,
however, does allege that “MAPCS’ member career schools wish to engage in certain marketing . . . but now neither
MAPCS nor the member career schools can determine whether such practices violate” the regulations. (Am. Compl.
¶ 96). And while MAPCS did not directly address the First Amendment vagueness issue in its initial memorandum,
it raised the issue in its reply brief, which the Attorney General responded to in a sur-reply. Accordingly, while
MAPCS has arguably failed to raise or otherwise waived the issue, the Court will nonetheless address the
regulations’ alleged vagueness and the implications for both the Due Process and First Amendment rights of
MAPCS members.
11

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prospective student not to enter into the transaction with the school.” That appears to impose a
burden on the school to ascertain what facts might influence a prospective student subjectively,
not what might influence an objectively reasonable person. But even under an objective
standard, the requirement is so open-ended that it could encompass an almost limitless number of
“facts.” It is unclear, to say the least, how any school could know what type of information to
disclose, and to what degree.
Section 31.06(6), in turn, prohibits a school from enrolling a student or inducing retention
if the school “knows, or should know” that “due to the student’s educational level, training,
experience, physical condition, lack of language proficiency, or other material qualification,” the
student “will not or is unlikely to” graduate or “meet the requirements for employment in the
occupation to which the program is represented to lead.” The regulation provides a safe harbor
of sorts for students with disabilities, but otherwise the school must assess potential impediments
on its own, and at the risk of an enforcement proceeding. To point out one obvious problem, the
likelihood of failure is no doubt substantially higher for a student who is the product of an
inferior school or who has learned English as a second language. Should the schools refuse to
enroll such students? Will the practical effect of the regulation be to discourage schools from
enrolling students who are attempting to overcome the disadvantages of poverty, inferior
education, or recent immigration? How will that intersect with the laws preventing
discrimination?
The vagueness of the regulations thus puts schools in a difficult position, compounded by
the great degree of enforcement discretion that it places in the hands of the Attorney General’s
office. However, it does not necessarily follow that the regulations are unconstitutional on their
face. MAPCS faces a heavy burden in establishing that the regulations are impermissibly vague

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on a facial challenge. To find that they are unconstitutional, the Court must conclude that “no set
of circumstances exists under which [the regulations] would be valid.” United States v. Salerno,
481 U.S. 739, 745 (1987). That it cannot do. And that is true even if it is not difficult to foresee
as-applied vagueness challenges if the regulations are enforced to the extent that their breadth
allows.
As to the First Amendment challenges, again the breadth and vagueness of the
regulations are troubling. However, the two specific regulations at issue do not restrict speech;
rather, they restrict certain behavior (in the case of § 31.06(6), admitting supposedly unqualified
students) and mandate additional disclosures (in the case of § 31.05(1), requiring disclosure of
supposedly negative information that would influence a student’s enrollment decision). As
noted, the two regulations may have deleterious consequences, such as causing a school to reject
admission to an otherwise qualified student who struggles with English or causing a school to
deluge students with trivial disclosures. But their vagueness does not appear to chill speech,
because a school administrator who is uncertain of the boundaries of the regulations has no
incentive to speak less or avoid speaking to avoid enforcement. A school that admits students
that it knows to be unqualified is equally likely to be held liable under § 31.06(6) whether it
advertises or not. A school that hides the fact that its teachers are not certified is equally likely to
be held liable under § 31.05(1) whether it advertises or not. Because the vague regulations do
not chill speech, MAPCS’s First Amendment challenge must fail.
1.

Vagueness Challenges to § 31.05(1) and § 31.06(6) under the
Due Process Clause

MAPCS’s facial challenge to the two regulations on due process vagueness grounds
confronts a very high burden. As the Supreme Court has noted, “[a] facial challenge to a
legislative Act is, of course, the most difficult challenge to mount successfully.” Salerno, 481
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U.S. at 745. To succeed on a facial challenge to a regulation as unduly vague under the Due
Process Clause, “the complainant must demonstrate that the law is impermissibly vague in all of
its applications.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,
497 (1982); accord Salerno, 481 U.S. at 745 (noting that for a facial challenge to succeed “the
challenger must establish that no set of circumstances exists under which the Act would be
valid”).12
The Supreme Court set forth the standards for evaluating vagueness challenges under the
Due Process Clause in Grayned v. City of Rockford:
Vague laws offend several important values. First, because we assume that man
is free to steer between lawful and unlawful conduct, we insist that laws give the
person of ordinary intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly. Vague laws may trap the innocent by
not providing fair warning. Second, if arbitrary and discriminatory enforcement is
to be prevented, laws must provide explicit standards for those who apply them.
A vague law impermissibly delegates basic policy matters to policemen, judges,
and juries for resolution on an ad hoc and subjective basis, with the attendant
dangers of arbitrary and discriminatory applications.
408 U.S. 104, 108-09 (1972) (footnotes omitted); see also FCC v. Fox Television Stations, Inc.,
132 S. Ct. 2307, 2317 (2012) (“[The void for vagueness doctrine addresses [the] two connected
but discrete due process concerns [noted in Grayned].”).
But the Court has noted that the degree of vagueness tolerated by the Due Process Clause
“depends in part on the nature of the enactment.” Village of Hoffman, 455 U.S. at 498
(upholding an ordinance regulating the sale of drug paraphernalia, in part, because it “simply

12

In Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008), the Supreme
Court noted that “some Members of the Court have criticized the Salerno formulation,” but that “all agree that a
facial challenge must fail where the statute has a ‘plainly legitimate sweep.’” Id. at 1190 (quoting Washington v.
Glucksberg, 521 U.S. 702, 740 n.7 (1997) (Stevens, J., concurring in the judgment)). The Court again declined to
determine which of those formulations was controlling in United States v. Stevens, 559 U.S. 460 (2010): “Which
standard applies in a typical case is a matter of dispute that we need not and do not address, and neither Salerno nor
Glucksberg is a speech case.” Regardless of any potential distinction between Salerno and Glucksberg, the standard
is clear for facial challenges on vagueness grounds: “the complainant must demonstrate that the law is
impermissibly vague in all of its applications.” Village of Hoffman Estates, 455 U.S. at 497 (emphasis added).

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regulate[d] business behavior” and because it “impose[d] only civil penalties”). The Due
Process Clause has “greater tolerance of enactments with civil rather than criminal penalties
because the consequences of imprecision are qualitatively less severe.” Id. at 498-99. Moreover,
the Court has noted that “economic regulation[s]” governing consumer transactions with
businesses are subject to a more relaxed vagueness standard because “businesses, which face
economic demands to plan behavior carefully, can be expected to consult relevant legislation in
advance of action.” Id. at 498.
A regulation need not be specific enough to resolve all potential hypothetical situations
on its face, because complainants can later bring as-applied challenges on vagueness grounds.
See id. at 504 (“‘Although it is possible that specific future applications . . . may engender
concrete problems of constitutional dimension, it will be time enough to consider any such
problems when they arise.’” (quoting Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35,
52 (1966))); accord Grayned, 408 U.S. at 110 n.15 (“It will always be true that the fertile legal
imagination can conjure up hypothetical cases in which the meaning of [disputed] terms will be
in nice question.” (citations omitted)). Rather, to survive a facial vagueness challenge, a
regulation need only be “marked by flexibility and reasonable breadth, [not] meticulous
specificity.” Grayned, 408 U.S. at 110 (citations omitted).
MAPCS contends that § 31.05(1), which prohibits for-profit schools from failing to
disclose “any fact relating to the school . . . which is likely to influence the prospective student
not to enter into the transaction with the school,” is unconstitutionally vague under the Due
Process Clause. As noted, the Court agrees that the regulation is vague, and that the “any fact”
requirement gives the Attorney General great latitude in bringing regulatory enforcement actions
under § 31.05(1). The Court can easily foresee situations where, if the Attorney General

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exercised her power to initiate an enforcement action to the furthest extent of the “any fact”
requirement, a school would have strong grounds for an as-applied challenge. However, as also
noted, for its facial challenge to succeed, MAPCS “must demonstrate that the law is
impermissibly vague in all of its applications.” Village of Hoffman, 455 U.S. at 497 (emphasis
added). And even more constitutional leeway is permitted because § 31.05(1) regulates business
transactions with consumers and because it imposes only civil penalties.
MAPCS has failed to meet its demanding burden, because the regulation does not appear
to be impermissibly vague in every possible application. Among other things, the extensive
record of complaints by current and former students at for-profit schools demonstrates examples
of what facts, if disclosed, may have influenced them not to enroll. For example, a school should
know that it must disclose the fact that its classes are self-taught instead of instructor-taught, or
the fact that its instructors are not certified in the relevant field of study. The regulation need
only be “marked by flexibility and reasonable breadth, [not] meticulous specificity.” Grayned,
408 U.S. at 110 (citation omitted); see also United States v. National Dairy Prods. Corp., 372
U.S. 29, 32 (1963) (finding that “statutes are not automatically invalidated as vague simply
because difficulty is found in determining whether certain marginal offenses fall within their
language”); Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 340 (1952) (explaining that
regulations must “deal with untold and unforeseen variations in factual situations”). While broad
and certainly vulnerable to future as-applied challenges, § 31.05(1) is not impermissibly vague in
every possible application.
MAPCS also contends that § 31.06(6), which prohibits for-profit schools from enrolling a
student “when the school knows, or should know” that due to the student’s educational level,
training, experience, physical condition, lack of language proficiency, or other material

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qualification, the student will not or is unlikely to graduate or meet the requirements of their
desired occupation.
In the context of MAPCS’s facial challenge, the Court finds that there are at least some
situations where the regulation imposes reasonably clear guidelines. For example, a school
knows, or at least should reasonably know, that it should not recruit a student that cannot speak
any English when the school does not have English as a second language courses and when the
student seeks employment in a field that requires English language skills. “Although it is
possible that specific future applications [of §31.06(6)] . . . may engender concrete problems of
constitutional dimension, it will be time enough to consider any such problems when they arise.”
See Village of Hoffman, 455 U.S. at 504 (quoting Joseph E. Seagram & Sons, 384 U.S. at 52).
Accordingly the Court finds that the “Failure to Disclose Facts” regulation, 940 Mass.
Code Regs. § 31.05(1), and the “Enrolling Unqualified Students” regulation, 940 Mass. Code
Regs. § 31.06(6), provide fair notice as required by the Due Process Clause, and are therefore not
void for vagueness on facial grounds.
2.

Vagueness Challenges to § 31.05(1) and § 31.06(6) under the
First Amendment

Where a regulation’s vagueness threatens to chill free speech, courts must use a more
demanding test than the Salerno standard. See Village of Hoffman, 455 U.S. at 499 (noting that
where a regulation “threatens to inhibit the exercise of constitutionally protected rights . . . [such
as] the right of free speech or of association, a more stringent vagueness test should apply”); see
also Hightower v. City of Boston, 693 F.3d 61, 78 (1st Cir. 2012) (noting that Salerno was not a
“speech case” and therefore concluding that vagueness challenges to regulations impacting
speech confronted a heavier burden). “[T]he approach to vagueness . . . is different . . . in cases
arising under the First Amendment. There we are concerned with vagueness of the statute on its
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face because such vagueness may itself deter constitutionally protected and socially desirable
conduct.” National Dairy Prods. Corp., 372 U.S. at 37; see also Reno v. American Civil
Liberties Union, 521 U.S. 844, 870-71 (1997) (“The vagueness of [a content-based regulation of
speech] raises special First Amendment concerns because of its obvious chilling effect.”).
Thus, to prevail on a facial vagueness challenge on First Amendment grounds, as
opposed to Due Process grounds, a challenger “must demonstrate a substantial risk that
application of the provision will lead to the suppression of speech.” National Endowment for the
Arts v. Finley, 524 U.S. 569, 580 (1998) (citations omitted).
MAPCS contends that the vagueness of § 31.05(1) and § 31.06(6) chills speech in
violation of the First Amendment. However, it does not explain how that vagueness might
actually chill protected speech, let alone “demonstrate a substantial risk that the application of
the provision[s] will lead to the suppression of speech.” And the cases MAPCS cites in support
of its argument appear to be inapposite. The regulations do not appear to silence, restrict, or
otherwise limit any speech at all. Thus, even if the regulations are vague, a school would have
no reason to avoid speaking because avoiding speaking would not alleviate the risk of an
enforcement action under § 31.05(1) or §31.06(6).13
MAPCS cites FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317 (2012), for the
proposition that “[w]hen speech is involved,” vagueness must be actively policed “to ensure that
ambiguity does not chill protected speech.” See also Citizens United v. Federal Election
Comm’n, 558 U.S. 310, 336 (2010) (noting that a law “which chills speech can and must be

13
The argument that § 31.05(1)’s vagueness violates the First Amendment because it compels speech
appears unpersuasive. Section 31.05(1), like thousands of other state and federal regulations, compels truthful
disclosures. The fact that its vagueness places some discretion in the hands of schools to determine what facts may
influence a student’s enrollment decision does not mean that the regulation compels false or controversial speech in
violation of Zauderer. See Zauderer, 471 U.S. at 651 (noting that a person’s “constitutionally protected interest in
not providing any particular factual information in his advertising is minimal”).

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invalidated where its facial invalidity has been demonstrated”). In Citizens United, the Court
invalidated a vague statutory restriction on certain political messages because entities faced with
such a restriction might choose not to speak at all, effectively silencing legitimate political
expression. In Fox, the Court invalidated vague FCC regulations that limited obscene television
content because broadcasters might, fearful of liability, forego valuable protected expression.
But critically, in both cases the regulated entities faced potential enforcement of a vague law that
restricted speech and may have chosen to not speak in order to avoid the risk of enforcement.
Here, a for-profit school that is uncertain of the reach of § 31.05(1) or § 31.06(6) has no
incentive to speak less because the regulations do not restrict speech; they apply to all schools
that fail to disclose important negative facts and all schools that admit patently unqualified
students regardless of whether they speak at all. Therefore, it is difficult to see how the
regulations chill any speech, and MAPCS certainly has not met its burden of “demonstrat[ing] a
substantial risk that application of the provision[s] will lead to the suppression of speech.”
Accordingly the Court finds that the “Failure to Disclose Facts” regulation, 940 Mass.
Code Regs. § 31.05(1), and the “Enrolling Unqualified Students” regulation, 940 Mass. Code
Regs. § 31.06(6), are not void for vagueness under the First Amendment because they do not
appear to chill protected expression.
C.

Preemption Challenges

Finally, MAPCS contends that the “Engaging in High-Pressure Sales Tactics” regulation,
Mass. Code Regs. § 31.06(9), is preempted by the Telephone Consumer Protection Act of 1991
(“TCPA”), 47 U.S.C. § 227, and the Telemarketing and Consumer Fraud and Abuse Prevention
Act of 1994 (“Telemarketing Act”), 15 U.S.C. §§ 6101-6108, under the doctrines of express and

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implied preemption. Specifically, MAPCS contends that the TCPA preempts § 31.06(9) insofar
as the Massachusetts regulation applies to interstate and consensual telephone calls.
“A fundamental principle of the Constitution is that Congress has the power to preempt
state law.” Crosby v. National Foreign Trade Council, 530 U.S. 363, 372 (2000) (citations
omitted). “Federal law preempts state law (1) when Congress has expressly so provided,
(2) when Congress intends federal law to ‘occupy the field’ and (3) to the extent that state law
conflicts with any federal statute.” American Steel Erectors, Inc. v. Local Union No. 7, Int'l
Ass'n of Bridge, Structural, Ornamental & Reinforcing Iron Workers, 536 F.3d 68, 84 (1st Cir.
2008) (citing Crosby, 530 U.S. at 372-73). In determining whether a federal statute preempts
state laws, “[i]t has long been the case that our sole task is to determine the intent of Congress,
and in so doing we have been mindful that Congress does not cavalierly pre-empt state-law
causes of action.” In re Pharm. Indus. Average Wholesale Price Litig., 582 F.3d 156, 173 (1st
Cir. 2009) (citations, alterations, ellipsis, and internal quotation marks omitted).
1.

Presumption Against Preemption

Courts addressing preemption claims must ordinarily “start with the assumption” that
Congress did not intend to supplant state law. See Wyeth v. Levine, 555 U.S. 555, 565 (2009)
(“[I]n all pre-emption cases, and particularly in those cases in which Congress has
legislated . . . in a field which the States have traditionally occupied, . . . we start with the
assumption that the historic police powers of the States were not to be superseded by the Federal
Act unless that was the clear and manifest purpose of Congress.” (citations and internal quotation
marks omitted)); see also King v. Collagen Corp., 983 F.2d 1130, 1137 (1st Cir. 1993) (noting
that there is a “heavy burden” upon the party asserting preemption). However, that “assumption
of nonpreemption is not triggered when the State regulates in an area where there has been a

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history of significant federal presence.” United States v. Locke, 529 U.S. 89, 108 (2000).
MAPCS contends that the Court should not apply the presumption against preemption here
because telemarketing, especially interstate telemarketing, is an area that has long had a
significant federal presence.
However, the Supreme Court held in Wyeth that “[t]he presumption [against
preemption] . . . accounts for the historic presence of state law but does not rely on the absence
of federal regulation.” Wyeth, 555 U.S. at 565 n.3 (emphasis added). In other words, the
presumption against preemption is not triggered only if there is a significant history of extensive
federal regulation to the exclusion of state regulation. In Wyeth, the Court applied the
presumption against preemption in a case concerning drug labeling despite extensive federal
regulation. Id. at 575. Therefore, Congress’s telemarketing regulations, including the TCPA, do
not in themselves provide a basis for not applying the presumption against preemption.
Furthermore, as most cases addressing preemption challenges to telemarketing laws have
noted, telemarketing has historically been the subject of extensive state regulation, and the TCPA
was intended to allow concurrent, non-exclusive federal regulation for interstate calls. See
Patriotic Veterans, Inc. v. Indiana, 736 F.3d 1041, 1045 (7th Cir. 2013) (applying the
presumption against preemption in a challenge to Indiana’s telemarketing law and noting that “in
passing the TCPA, Congress particularly noted that over forty states had enacted” similar
telemarketing laws); Van Bergen v. Minnesota, 59 F.3d 1541, 1548 (8th Cir. 1995) (noting that
the Congressional findings and legislative history of the TCPA “suggest[ ] that the TCPA was
intended not to supplant state law, but to provide interstitial law preventing evasion of state law
by calling across state lines”); Sussman v. I.C. Sys., Inc., 928 F. Supp. 2d 784, 789 (S.D.N.Y.
2013) (“The Court finds that the intention of Congress in enacting the TCPA was not to preempt

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state laws, but rather to regulate the telecommunications industry concurrently with the states,
which ‘have had a long history of regulating telemarketing practices.’” (quoting In re Rules and
Regulations Implementing the Tel. Consumer Prot. Act of 1991, Report and Order, 18 F.C.C.R.
14014, 14060-62 (2003))); Southwell v. Mortgage Investors Corp. of Oh., Inc., 2013 WL
6049024, at *1 (W.D. Wa. Nov. 15, 2013) (applying the presumption against preemption in a
challenge to Washington’s telemarketing law and noting that “only a clear and manifest purpose
of Congress to preempt state law can overcome the presumption”); see also Gottlieb v. Carnival
Corp., 436 F.3d 335, 342 (2d Cir. 2006) (“The legislative history indicates that Congress
intended the TCPA to provide ‘interstitial law preventing evasion of state law by calling across
state lines.’ Congress thus sought to put the TCPA on the same footing as state law, essentially
supplementing state law where there were perceived jurisdictional gaps.” (citation omitted)).
Accordingly, the Court will apply the presumption against preemption here.
2.

Express Preemption

MAPCS contends the savings clause of the TCPA, by negative implication, expressly
preempts state regulations such as § 31.06(9) that place restrictions on interstate telemarketing.
Specifically, MAPCS contends that “[t]he TCPA includes a saving[s] clause that explicitly
excludes from preemption those state laws ‘that impose[ ] more restrictive intrastate
requirements or regulations’ . . . [b]ut here, the [r]egulation[ ] would impose more restrictive
interstate requirements, which the statute forbids.” (Pl. Mem. 25) (quoting 47 U.S.C.
§ 227(f)(1)) (emphasis in original).
But the plain language of the TCPA’s savings clause does not explicitly forbid or
preempt more restrictive state regulations on interstate telemarketing, and it appears that every

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court to address that argument since Wyeth has rejected it. Subsection (f) of the TCPA is the
only provision in the statute that addresses preemption. It states:
(f) Effect on State law.
(1) State law not preempted. Except for the standards prescribed under
subsection (d) of this section and subject to paragraph (2) of this
subsection, nothing in this section or in the regulations prescribed
under this section shall preempt any State law that imposes more
restrictive intrastate requirements or regulations on, or which
prohibits:
(A)
(B)
(C)
(D)

the use of telephone facsimile machines or other electronic
devices to send unsolicited advertisements;
the use of automatic telephone dialing systems;
the use of artificial or prerecorded voice messages; or
the making of telephone solicitations.

47 U.S.C. § 227(f)(1). The restriction prohibiting schools from initiating phone contact with a
prospective student more than twice in a week under § 31.06(9) applies to all schools advertising
or doing business within Massachusetts, regardless of whether such schools maintain a campus,
facility, or physical presence in Massachusetts. See 940 Mass. Code Regs. § 31.02. Therefore,
MAPCS contends, it places more restrictive requirements on interstate calls into Massachusetts
than are imposed by the TCPA, and therefore are necessarily preempted.
But it appears that nothing in the savings clause, or any other provision of the TCPA,
expressly preempts a state law such as § 31.06(9) that regulates interstate communications.
Moreover, the fact that the TCPA expressly saves certain state laws does not suggest, by
negative implication, that other state laws not specifically saved by subsection (f) are preempted
by the federal law. Express preemption occurs when the language of the statute explicitly states
that the federal law has a preemptive effect. But the TCPA does not say what state laws are
preempted; it instead says certain state laws are not preempted. It appears that every court, save
for one, to address the same argument presented by MAPCS has rejected it for those reasons.
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See Patriotic Veterans, 736 F.3d at 1048; Van Bergen, 59 F.3d at 1548; Sussman, 928 F. Supp.
2d at 790; Southwell, 2013 WL 6049024, at *2. To hold otherwise would not only undermine
the concept of express preemption, but would also contradict the presumption against
preemption. See, e.g., Ishikawa v. Delta Airlines, 343 F.3d 1129, 1132-33 (9th Cir. 2003)
(noting that the presumption against preemption stands in the way of any inference that a savings
clause carries a “negative pregnant” preempting state law). The only case that MAPCS cites in
support of its argument is Chamber of Commerce v. Lockyer, 2006 WL 462482, at *6-7 (E.D.
Cal. Feb. 27, 2006), which was decided before the Supreme Court’s reinforcement of the
presumption against preemption in Wyeth. See Southwell, 2013 WL 6049024, at *2 (“Lockyer
held that the presumption against preemption does not apply in telecommunications, but its
reasoning about the effect of federal legislation in the area was undermined by Wyeth.”).
Accordingly, absent any evidence that “the clear and manifest purpose of Congress” in
enacting the TCPA was to exclusively regulate the field of interstate telemarketing, the Court
finds that § 31.06(9) is not expressly preempted.
3.

Implied Preemption

Of the two varieties of implied preemption, it does not appear that MAPCS contends that
field preemption applies, presumably because the TCPA’s express savings clause indicates that
Congress could not have intended to supplant all state law in the area. See Patriotic Veterans,
736 F.3d at 1052 (“[T]he federal rules on telemarketing indicate that Congress could not have
intended to have a uniform telemarketing policy. The very fact that Congress allows states to
regulate their own intrastate telemarketing demonstrates this.”); Van Bergen, 59 F.3d at 1548
(“[T]he preemption provision [of the TCPA] makes it clear that Congress did not intend to
‘occupy the field’ of [telemarketing] regulation . . . or to promote national uniformity of

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[telemarketing] regulation, as it expressly does not preempt state regulation of intrastate
[telemarketing] calls that differs from federal regulations.” (citations omitted)). Rather, MAPCS
bases its argument for implied preemption on conflict or obstacle preemption, which occurs
when “compliance with both federal and state regulations is a physical impossibility” or when
“the challenged state law stands as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.” United States v. Arizona, 132 S. Ct. 2492, 2501 (2012)
(internal quotation marks and citations omitted).
Although MAPCS does not argue that complying with § 31.06(9) and federal law is
impossible, it contends that the Attorney General’s prohibition on schools initiating telephone
contact with a student more than twice per week stands as an obstacle to the objectives of the
TCPA. Specifically, MAPCS contends that § 31.06(9)’s lack of an exception for consensual
calls stands as an obstacle to the TCPA, in which “Congress struck a precise balance that turns
on whether the calls are consensual.” (Pl. Mem. 27).
Like express preemption, implied-obstacle preemption cannot be “lightly applied,”
Patriotic Veterans, 736 F.3d at 1049, because “[i]mplied preemption analysis does not justify a
‘freewheeling judicial inquiry into whether a state statute is in tension with federal objectives’;
such an endeavor ‘would undercut the principle that it is Congress rather than the courts that
preempts state law.’” Chamber of Commerce v. Whiting, 131 S. Ct 1968, 1985 (2011) (citing
Gade v. National Solid Wastes Mgmt. Ass’n., 505 U.S. 88, 111 (1992) (Kennedy, J., concurring
in part and concurring in judgment)). “[The Supreme Court’s] precedents ‘establish that a high
threshold must be met if a state law is to be preempted for conflicting with the purposes of a
federal Act.’” Whiting, 131 S. Ct. at 1985 (citing Gade, 505 U.S. at 110). Because the Court
must begin with the assumption that the Commonwealth’s police powers cannot be preempted by

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a federal act unless preemption was the clear intent of Congress, the burden is on MAPCS to
present a showing of implied preemption that is strong enough to overcome the presumption that
state and local regulations can coexist with federal regulation. See Hillsborough Cty., Fla. v.
Automated Med. Labs., Inc., 471 U.S. 707, 715-16 (1985).
MAPCS contends that the TCPA and the Telemarketing Act have express carve-outs for
consensual telephone calls. See 47 U.S.C. § 227(a)(4) (regulating “telephone solicitations,”
which do not include calls where a person has given prior express invitation or permission or
where the parties have an established business relationship); 15 U.S.C. § 6102 (authorizing the
FCC to prescribe rules that telemarketers may not make “unsolicited telephone calls”).
Therefore, according to MAPCS, “[t]he TCPA [and Telemarketing Act] thus allow[ ] for
intrastate requirements on solicitations—but do[ ] not allow states to impose such requirements
on the calls at issue here: calls made to a prospective student who has given his phone number to
a school as part of an inquiry or application to enroll in the school.” (Pl. Mem. 28).
But it is hard to see how § 31.06(9) does “major damage” to the clear and substantial
federal interests served by the TCPA and Telemarketing Act. See Hillman v. Maretta, 133 S. Ct.
1943, 1950 (2013). Although § 31.06(9) does not have express carve-outs for consensual calls,
its language defines what calls are consensual in the context of for-profit school telemarketing.
Essentially, the regulation allows a school to initiate contact with student by phone up to twice
per week without limitation. Whether or not the school obtained the student’s contact
information directly or through a lead generator, those first two calls are considered consensual.
However, where a student does not respond to the solicitation, the next school-initiated phone
contact is considered non-consensual, and thus regulated, unless the school observes the oneweek cooling-off period. By restricting unsolicited telephone calls to students, and promulgating

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a precise definition of what calls are considered non-consensual in the context of the for-profit
school industry, the regulation does not appear to pose an obstacle to the objectives of the federal
regulations; rather, it appears to be consistent with them.
In short, it is unclear how § 31.06(9) poses a major threat to the objectives of the TCPA.
The TCPA promulgates general federal regulations limiting unsolicited telemarketing calls—that
is, those that arise outside the context of prior express permission or an established business
relationship. Section 31.06(9) focuses on telemarketing in the context of a specific industry, and
in light of significant evidence of “boiler-room” recruiting practices, more specifically defines
unsolicited calls to include those where a school initiates contact with a student more than twice
in a week without receiving a student response. As other courts have found in preemption
challenges to state telemarketing regulations, “the text and the legislative history of the TCPA
suggest that Congress intended to set a uniform minimum while permitting the states, who have
an obvious interest in protecting their citizens and are better able to understand their needs, to
enact more restrictive regulations if necessary.” Sussman, 928 F. Supp. 2d at 791; see also
Patriotic Veterans, 736 F.3d at 1049 (“The fact that a state has more stringent regulations than a
federal law does not constitute conflict preemption. Otherwise every time a state chose to apply
a more rigorous standard when regulating conduct within the state, the result would be
impermissible.”); Southwell, 2013 WL 6049024, at *4 (finding that a state law requiring
telemarketers to identify themselves within the first thirty seconds of a call, although more
restrictive than an FCC rule that had no time restriction, did not “produce widely divergent
practices—much less [ ] impede Congress’s objectives in protecting consumers while continuing
to permit telemarketing”).
MAPCS urges the Court to defer to the FCC’s interpretation of the TCPA and its

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conclusion that the federal laws carry preemptive effect. In a 2003 Order, the FCC stated, “[w]e
therefore believe that any state regulation of interstate telemarketing calls that differs from our
rules almost certainly would conflict with and frustrate the federal scheme and almost certainly
would be preempted.” Rules and Regulations Implementing the Telephone Consumer Protection
Act of 1991, Report and Order, 18 F.C.C. Record 14014, ¶ 84 (2003). However, the FCC
declined to reach a definite conclusion, saying “[w]e will consider any alleged conflicts between
state and federal requirements and the need for preemption on a case-by-case basis.” Id.
Although MAPCS argues that Chevron deference should apply to the FCC’s statutory
interpretation, such deference is inappropriate. Chevron deference applies to agency
interpretations of ambiguous statutes that they must enforce, not to an agency’s mere
pronouncement of an opinion on the subject of preemption. See Wyeth, 555 U.S. at 576-77
(noting that a court may consider an agency’s opinion but that “agencies have no special
authority to pronounce on preemption absent delegation by Congress”); see also Southwell, 2013
WL 6049024, at *4 (not applying Chevron deference to a telemarketing preemption challenge
and noting that “the weight accorded to an agency’s explanation of state law’s impact on the
federal scheme depends on its thoroughness, consistency, and persuasiveness”).14 Indeed, the
FCC’s opinion about the sweeping effect of the “federal scheme” is contradicted by the TCPA
savings clause, which expressly saves state regulations on intrastate telemarketing and does not
preempt further state regulations on interstate telemarketing.
Accordingly, the Court finds that § 31.06(9) is not expressly preempted because there is
no express preemption clause in the TCPA, and because the TCPA savings clause cannot

14

Among other things, the natural tendency of any governmental agency is to seek to expand its own
authority and jurisdiction. If the doctrine of Chevron deference is not carefully circumscribed to the interpretation
of ambiguous statutes, a virtually inevitable consequence would be the expansion of agency power.

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preempt a state regulation on interstate communications by negative implication. In addition,
§ 31.06(9) is not impliedly preempted because it does not conflict with or frustrate the objectives
of the TCPA or the Telemarketing Act.
IV.

Conclusion
For the foregoing reasons, the cross-motions for summary judgment are granted in part

and denied in part. Specifically, the Court finds that the “Time to Complete Program”
regulation, 940 Mass. Code Regs. § 31.04(9), and part (b) of the “Credit Transfer” regulation,
940 Mass. Code Regs. § 31.05(7)(b), violate the First Amendment to the United States
Constitution, and are therefore invalid and unenforceable. Plaintiffs are therefore entitled to
declaratory and injunctive relief consistent with that finding.
The Court further finds that the remaining challenged regulations, which are as follows:
1.

The “Deceptive Language in General” regulation, 940 Mass. Code Regs.
§ 31.04(2);

2.

The “Failure to Disclose Facts” regulation, 940 Mass. Code Regs. § 31.05(1);

3.

The “Graduation-Rate Disclosure” regulation, 940 Mass. Code Regs. § 31.05(2);

4.

The “Consequences of Loan Default” regulation, 940 Mass. Code Regs.
§ 31.05(3);

5.

The “Total Placement-Rate Calculus” regulation, 940 Mass. Code Regs.
§ 31.05(4)(b);

6.

Part (a) of the “Credit Transfer” regulation, 940 Mass. Code Regs. § 31.05(7)(a);

7.

The “Enrolling Unqualified Students” regulation, 940 Mass. Code Regs.
§ 31.06(6); and

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8.

The “Engaging in High-Pressure Sales Tactics” regulation, 940 Mass. Code Regs.
§ 31.06(9),

as set forth in this memorandum and order, do not on their face violate the First Amendment or
the Due Process Clause of the Fourteenth Amendment, and are not preempted by federal law.
Summary judgment will therefore be granted in favor of plaintiff Massachusetts
Association of Private Career Schools as to part of Count I, insofar as it applies to 940 Mass.
Code. Regs. §§ 31.04(9) and 31.05(7)(b), and in favor of Maura Healey, in her official capacity
as the Massachusetts Attorney General, as to the remaining counts.
So Ordered.

/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge

Dated: January 25, 2016

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