Berry College says in the federal lawsuit that the Tennessee agency has threatened to sue the school if it continues to advertise in that state without registering and paying fees of more than $20,000 a year.
The Rome-based school says it competes with Tennessee colleges and has advertised on at least one billboard in the state. It depicts two students in front of a college building with Berry’s name, website and the phrase “26,000 acres of opportunity.”
The Tennessee Higher Education Commission has threatened other schools with such requirements in order to reduce competition from out-of-state institutions, Berry maintains in the lawsuit. Other schools have removed their ads over the issue rather than risk civil and criminal sanctions, the school’s lawyers say.
Scott Sloan, the Tennessee agency’s general counsel, said Tuesday that agency officials have yet to review the lawsuit and had no immediate comment.
A law that’s central to the dispute is Tennessee’s Postsecondary Education Authorization Act, which Berry says is being improperly used to keep out-of-state schools from advertising. The act requires postsecondary educational institutions “desiring to operate” in Tennessee to apply for authorization from the state agency, which involves the fees, the lawsuit states.
The Tennessee agency, Berry maintains, “has pursued this unconstitutional enforcement of the PEAA so as to protect in-state colleges and universities from fair competition by out-of-state institutions.”
“The overall effect of the Act, then, is to tax and chill the free speech rights of Berry and other out-of-state schools as guaranteed by the First Amendment to the Constitution of the United States, in addition to violating their rights under the dormant Commerce Clause,” Berry’s complaint states. “The effect of the PEAA is to unconstitutionally burden and tax the free exercise of truthful commercial speech by Berry and other out-of-state colleges and universities.”
The lawsuit was filed this week in U.S. District Court in northern Georgia.
Lawyers for the college, about 70 miles northwest of Atlanta, are asking the court to block Tennessee from imposing fees or fines or taking legal action against the school for advertising in the state.