United States District Court, D. Maine
AMENDED  ORDER ON MOTION FOR TEMPORARY
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
school student and the public school district in which he is
enrolled seek emergency injunctive relief in the form of a
temporary restraining order and a preliminary injunction
against the National Endowment for the Arts (NEA), its
Chairman, and an independent literary organization to permit
the student to participate in a national competition operated
by the Defendants scheduled to begin on April 23, 2018-a mere
three days from now. The Plaintiffs allege that the NEA and
its Chairman's enforcement of an eligibility rule
violates the student's Fifth and Fourteenth Amendment
rights to equal protection by discriminating against him on
the basis of his immigration status and national origin. The
Plaintiffs also argue that the literary organization's
enforcement of the eligibility rule violates Title VI of the
Civil Rights Act of 1964. In their motion, they seek only to
preserve the student's opportunity to compete in the
national competition. The Defendants oppose the motion,
arguing that the eligibility rule survives even strict
scrutiny and that, thus, the Plaintiffs cannot show a
likelihood of success on the merits, dooming their motion.
Court grants the student's motion for temporary
restraining order because it concludes that the Plaintiffs
are likely to succeed on the merits, that the student would
suffer irreparable harm but for an injunction, and that the
balance of the relevant impositions and the public interest
tip toward the student's position.
April 11, 2018, Allan Monga and Portland Public Schools (PPS)
filed a complaint and a motion for temporary restraining
order (TRO) and preliminary injunction. Compl. (ECF
No. 1); Mot. for TRO and Prelim. Inj. with Incorporated
Mem. of Law (ECF No. 3) (Pls.' Mot.). Two
days later, on April 13, 2018, the Court held a telephone
conference with the parties. Min. Entry for Telephone
Conference (ECF No. 17). On April 16, 2018, the NEA and
its Chairman, Jane Chu, filed their response in opposition to
the motion for TRO and preliminary injunction. Defs.
National Endowment for the Arts' and Chairman Jane
Chu's Opp'n to Pls.' Mot. for TRO and
Prelim. Inj. (ECF No. 23) (uncorrected NEA
Opp'n). The Poetry Foundation (TPF) filed its
opposition on April 16, 2018 as well. Def. The Poetry
Foundation's Resp. to Pls.' Mot. for TRO (ECF
No. 21) (TPF Opp'n). On April 17, 2018, the
Plaintiffs filed their reply. Pls.' Reply in Support
of Mot. for TRO and for Prelim. Inj. (ECF No. 24)
(Pls.' Reply). The Court held an oral argument
on April 18, 2018 at which counsel for the Plaintiffs
confirmed that logistically for the student to attend the
Washington D.C. competition, the Court would have to issue an
order by Friday, April 20, 2018.
Monga is a resident of Westbrook, Maine. Compl.
¶ 2. Mr. Monga is an eleventh-grade student enrolled at
Deering High School (Deering), which is part of PPS.
Compl. ¶ 2; Pls.' Mot. at 3-4.
There, he has distinguished himself as an extraordinary poet.
Id. ¶ 21. He was born in Zambia in December
1998. Compl. ¶ 18; Pls.' Mot. at
3. In 2017, he fled Zambia to seek asylum in the United
States and relocated to Portland, Maine. Compl.
¶ 18; Pls.' Mot. at 3. Mr. Monga has filed
an asylum application with United States Citizenship and
Immigration Services. Compl. ¶ 19. He has an
Employment Authorization Card, currently authorizing him to
work through February 2020, and a Social Security Number from
the Social Security Administration. Id.;
Pls.' Mot. at 4. If and when his asylum
application is approved, Mr. Monga plans to apply to be a
permanent resident. Compl. ¶ 20.
the public school district in Portland, Maine. Id.
¶ 3. A significant percentage of the students who attend
school in PPS are immigrants without permanent resident
status, and PPS has a stated interest in ensuring that all of
its students, including its immigrant population, are all
treated fairly and are not discriminated against in the
provision of educational opportunities. Id. ¶
4. Deering is one of three public high schools operated by
PPS. Id. ¶ 5. Deering's population includes
a significant number of immigrant students. Id.
is an independent federal agency that funds, promotes, and
strengthens the creative capacity of our communities.
Id. ¶ 6. The NEA is located in Washington,
D.C., and Jane Chu is its Chairman. Id. ¶ 7.
an independent literary organization committed to promoting
poetry through discovering and celebrating the best poetry,
placing it before the largest possible audience, and
encouraging new kinds of poetry. Id. ¶ 8. TPF
is located in Chicago, Illinois. Compl. ¶ 8.
Maine Arts Commission (MAC) is a state of Maine agency that
supports artists, art organizations, educators, policymakers,
and community developers in advancing the arts in Maine.
Id. ¶ 9. The Plaintiffs named MAC as a
party-in-interest to the extent that its presence in the
lawsuit is necessary to afford Plaintiffs the relief they
request. Id. No other relief is requested against
the MAC. Id.
Poetry Out Loud and the Eligibility Rule
NEA, TPF, and the MAC operate as partners in administering
Poetry Out Loud (POL), an educational program integrated into
school curriculums as a poetry-reading contest.
Compl. ¶ 12; Pls.' Mot. at 2-3.
The NEA describes POL as follows:
A partnership of the NEA, [TPF], and the state arts agencies,
[POL] is a national arts education program that encourages
high school students to learn about great poetry through
memorization and performance. [POL] offers educational
materials and a dynamic recitation competition to high
schools across the country. Students select, memorize, and
recite poems from an anthology of more than 900 classic and
contemporary poems. In this pyramid structure competition,
winners advance from classroom recitation contests to
school-wide competitions, then to the state competitions and,
ultimately, to the national finals in Washington, DC.
Compl. ¶ 13; Pls.' Mot. at 2-3;
see NEA Opp'n at 4. Schools register with their
state arts agency and implement the uniform curricula
provided by the POL program, leading to poetry recital
competitions within the participating schools. Pls.'
Mot. at 3. POL uses a pyramid structure that starts at
the classroom level. Compl. ¶ 15. Winners
advance to a school-wide competition, then to a regional
and/or state competition, and ultimately to the national
finals. Id. Each winner at the state level receives
$200 and an all-expenses-paid trip with an adult chaperone to
Washington, D.C., to compete for the national championship.
Id. ¶ 16. The state winner's school
receives a $500 stipend for the purchase of poetry books.
Id. A total of $50, 000 in awards and school
stipends are given at the national finals, including $20, 000
for the national champion. Id. ¶ 17. The awards
are based solely on artistic merit. Id. ¶ 18.
an eligibility rule (the eligibility rule):
Citizenship: In keeping with federal law, competitors at the
state and national finals must be U.S. citizens or permanent
residents with a valid tax identification or Social Security
number. Tax identification or Social Security numbers are
required to receive prizes, including cash payments or travel
awards. Students are responsible for verifying their
eligibility. This requirement has been in place since 2006.
Compl. ¶ 36; NEA Opp'n at 5. The
eligibility rule is posted on the websites of the NEA, TPF,
and the MAC. Compl. ¶ 37; NEA
Opp'n at 4-5. The NEA states that this requirement
“is either identical or nearly identical to those
applied across all of NEA's funded programs.”
NEA Opp'n at 5.
Chu is the federal official in charge of enforcing the
eligibility rule. Compl. ¶ 38. TPF is
responsible for developing educational materials, producing a
website, providing cash awards to winning students, and
contributing towards the expenses of the national finals.
NEA Opp'n at 4. The NEA is responsible for
developing content of the program materials, awarding grants
to state art agencies to implement the POL program, providing
technical support to state arts agencies, and entering into a
cooperative agreement with a qualified organization to manage
the national finals event. Id. To fulfill its
obligations under the agreement with TPF, the NEA entered
into a Cooperative Agreement with the Mid Atlantic Arts
Foundation “to support the 2018 national finals
competition of 53 state and jurisdictional champions of the
[POL] program, in conjunction with [NEA], [TPF], and the
participating State Arts Agencies.” Id.
Poetry Out Loud at Deering
advertises POL each year by making announcements and hanging
posters. Compl. ¶ 14; Pls.' Mot.
at 3. Some English teachers incorporate POL into their lesson
plans and ask all of their students to participate.
Compl. ¶ 14; Pls.' Mot. at 3.
Deering has been participating in POL since approximately
2012. Compl. ¶ 22. Deering registers for POL
through the MAC. Compl. ¶ 22; see Pls.'
Mot. at 3. POL is an extension of Deering's English
curriculum. Compl. ¶ 23; Pls.'
Mot. at 3. Students learn skills that benefit their
overall education including vocabulary, reading
comprehension, constructing meaning, and public performance.
Id. ¶ 23; Pls.' Mot. at 3.
Allan Monga Wins the School-wide, Regional, and
Statewide Poetry Out Loud Competitions
of his high school education, Mr. Monga participated in
Deering's POL competition. Compl. ¶ 24. He
won the school-wide competition with his performances of
“America” by Claude McKay, and “In the
Desert” by Stephen Crane. Id. To prepare for
the southern Maine regional competition, Allan practiced
every day, before, during, and after school. Id.
¶ 25. He practiced with two teachers, Drew Pisani and
Margaret Callaghan and on his own. Id. Mr. Monga
performed three poems at the regional competition: “She
Walks in Beauty by Lord” by Lord Byron, “The Song
of the Smoke” by W.E.B. Du Bois, and “In the
Desert” by Stephen Crane. Id. ¶ 26. He
won that regional competition. Id. ¶ 27.
Monga's teachers, principal, and superintendent contacted
the MAC and urged it to let him participate in the state
finals. Id. ¶ 28. To prepare for the finals,
Mr. Monga continued to practice before, during, and after
school with two Deering teachers and the school's drama
teacher. Id. ¶ 29. Prior to the state finals,
Mr. Monga and PPS (through officials at Deering) informed the
MAC that Mr. Monga was not a United States citizen or
permanent resident. Id. ¶ 39. The Deering
officials nevertheless urged the MAC to allow him to compete
in the state finals. Id. ¶ 39. On March 7,
2018, the MAC contacted the NEA indicating that Mr. Monga
wished to compete in the state finals but that he was not
eligible due to his immigration status. NEA
Opp'n at 5 (citing uncorrected NEA
Opp'n Attach. 1 Decl. of Tony L. Chauveaux
(Chauveaux Decl.); uncorrected NEA
Opp'n Attach. 3 Decl. of Michael Griffin,
¶¶ 2-6 (Griffin Decl.)). In response, the
NEA “reiterated that participants at the state
competition must satisfy the [POL] eligibility criteria to
compete at the state and national levels.” NEA
Opp'n at 5 (quoting Chauveaux Decl.;
Griffin Decl. ¶¶ 2-6). Sometime before the
state finals, the MAC contacted the NEA again regarding the
same issue and the NEA again advised the MAC that Mr. Monga
was ineligible. NEA Opp'n at 5-6 (citing
uncorrected NEA Opp'n Attach. 4 Decl. of
Lauren Miller, ¶ 3 (Miller Decl.)). The
MAC declined to enforce the eligibility rule and permitted
Mr. Monga to participate in the Maine state finals.
Compl. ¶ 28. This decision was “[a]gainst
direct guidance of the NEA . . . .” NEA
Opp'n at 2. Accompanied by his teachers and
classmates, Mr. Monga performed three poems at the state
finals on March 20, 2018. Compl. ¶ 30. On March
20, 2018, Mr. Monga won the Maine statewide POL contest.
Id. ¶¶ 1, 31.
The National Competition
national POL competition, for the student champions from
every state, the District of Columbia, Puerto Rico, and the
United States Virgin Islands, is scheduled to be held in
Washington, D.C. on April 23-25, 2018. Id.
¶¶ 1, 35. On March 20, 2018, the MAC informed the
Mid Atlantic Arts Foundation that Mr. Monga won the state
competition but did not meet the eligibility criteria to
compete in the national finals. NEA Opp'n at 6
(citing Chauveaux Decl.). On April 4, 2018, and on
at least one other occasion, the NEA informed the MAC that
Mr. Monga was not eligible to compete in the national finals.
Id.; uncorrected NEA Opp'n Attach. 5
Decl. of Rose Jane Chu, ¶¶ 10-12 (Chu
Decl.). The NEA informed the MAC that it would like to
invite the Maine POL runner-up to compete in the national
finals. Unopposed Mot. for Leave to File Corrected
Br. (ECF No. 25) (citing Chauveaux Decl.).
Because of the eligibility rule, the Defendants are excluding
Mr. Monga from the national POL competition, despite the fact
that he won the Maine state POL competition. In this lawsuit,
the Plaintiffs seek to enjoin the Defendants from preventing
Mr. Monga from competing in the national competition.
Pls.' Mot. at 14 n.7.
relief]is an extraordinary and drastic remedy that is never
awarded as of right.” Peoples Fed. Sav. Bank v.
People's United Bank, 672 F.3d 1, 8-9 (1st Cir.
2012); Voice of the Arab World, Inc. v. MDTV Med. News
Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011); accord
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24
(2008). To determine whether to issue a temporary restraining
order, the Court applies the same four-factor analysis used
to evaluate a motion for preliminary injunction. Animal
Welfare Inst. v. Martin, 665 F.Supp.2d 19, 22 (D. Me.
2009); Faria v. Scott, No. 16-cv-49-JD, 2016 U.S.
Dist. LEXIS 25070, at *1 (D.N.H. Feb. 9, 2016); Nw.
Bypass Grp. v. U.S. Army Corps of Engineers, 453
F.Supp.2d 333, 337 (D.N.H. 2006); Largess v. Supreme
Judicial Court for Mass., 317 F.Supp.2d 77, 81 (D. Mass.
2004) (citing Merrill Lynch, Pierce, Fenner & Smith,
Inc. v. Bishop, 839 F.Supp. 68, 70 (D. Me. 1993)). The
four factors are:
(1) the likelihood of success on the merits; (2) the
potential for irreparable harm [to the movant]; (3) the
balance of the relevant impositions, i.e., the hardship to
the nonmovant if enjoined as contrasted with the hardship to
the movant if no injunction issues; and (4) the effect (if
any) of the court's ruling on the public
Esso Standard Oil Co. v. Monroig-Zayas, 445 F.3d 13,
17-18 (1st Cir. 2006) (quoting Bl(a)ck Tea Soc'y v.
City of Boston, 378 F.3d 8, 11 (1st Cir. 2004)).
party seeking [an injunction] bears the burden of
establishing that these four factors weigh in its
favor.” Id. at 18. The same is true with
respect to a TRO. Martin, 665 F.Supp.2d at 22.
However, “[t]he sine qua non of this four-part inquiry
is likelihood of success on the merits: if the moving party
cannot demonstrate that he is likely to succeed in his quest,
the remaining factors become matters of idle
curiosity.” New Comm. Wireless Servs., Inc. v.
SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002); see
Sindicato Puertorriqueño de Trabajadores v.
Fortuño, 699 F.3d 1, 7 (1st Cir. 2012)
(confirming that this factor is the “most important
part of the preliminary injunction assessment”)
(citation omitted). Ultimately, “trial courts have wide
discretion in making judgments regarding the appropriateness
of such relief.” Francisco Sánchez v. Esso
Standard Oil Co., 572 F.3d 1, 14 (1st Cir. 2009).
the Court is ruling on the motion for TRO, not on the motions
for preliminary or permanent injunction. A motion for TRO may
be issued without notice, Fed.R.Civ.P. 65(b)(1), but the
Plaintiffs here gave the Defendants written notice and the
Defendants participated in this proceeding by filing legal
memoranda and by attending oral argument. Therefore the ex
parte provisions of Rule 65(b)(1) do not apply.
before a court issues a preliminary or permanent injunction,
Rule 65(a) requires that the adverse party be given notice.
Fed.R.Civ.P. 65(a). The Rule also contemplates that the court
will hold a hearing. Fed.R.Civ.P. 65(b)(3). An evidentiary
hearing is often desirable, but not essential to the issuance
of a preliminary injunction. Rosario-Urdaz v.
Rivera-Hernandez, 350 F.3d 219, 223 (1st Cir. 2003);
Aoude v. Mobil Oil Corp., 862 F.2d 890 (1st Cir.
addressing the motions for preliminary and permanent
injunction, the Court will accord the parties an opportunity
to present evidence at a hearing as provided in Rule 65 and
suggested as desirable by the First Circuit. The Court's
procedure here is something of a hybrid between an ex parte
motion for TRO and the hearing for motion for preliminary or
permanent injunction. To allow briefing and oral argument
strikes the Court as more in keeping with notions of fair
notice and an opportunity to be heard than an ex parte
proceeding would have been.
THE PARTIES' POSITIONS
Likelihood of Success on the Merits
The Plaintiffs' Motion
Graham v. Richardson, 403 U.S. 365 (1971), the
Plaintiffs argue that lawfully admitted aliens, such as Mr.
Monga, are a suspect class for equal protection analysis
purposes, and that, as such, any governmental regulation that
discriminates against them is subject to strict scrutiny.
Pls.' Mot. at 7, 9. They state that “[t]he
eligibility rule . . . excludes [Mr. Monga] from the POL
national competition because of his status as person not born
in the United States and not yet entitled to permanently
reside here while he seeks asylum, even though he is in all
other respects similarly situated to all other
contestants.” Pls.' Mot. at 9. The
eligibility rule, thus, is a regulation that discriminates
against lawfully admitted aliens.
Plaintiffs argue that the rule is inherently suspect and
subject to strict scrutiny. Pls.' Mot. at 9. The
Plaintiffs cite caselaw supporting their position, calling
particular attention to Dandamudi v. Tisch, 686 F.3d
66 (2d Cir. 2012). They state that Mr. Monga “is a
legal resident alien of the United States,  engaged in a
public high school education just like high school students
who are United States citizens or who are aliens with
‘permanent' residency status.” Pls.'
Mot. at 11. They argue that “[a]s an asylum
seeker, otherwise holding temporary residency status, he is[
of a minority] ‘likely . . . more discrete and insular
than' aliens with permanent residency status.”
Pls.' Mot. at 11 (citing Dandamudi, 686
F.3d at 77). The Plaintiffs acknowledge caselaw contrary to
their position, and they assert that those cases were wrongly
decided. Pls.' Mot. at 12 n.6 (citing
LeClerc v. Webb, 419 F.3d 405 (5th Cir. 2005);
League of United Latin Am. Citizens v. Bredesen, 500
F.3d 523, 537-543 (6th Cir. 2007)).
Plaintiffs observe that, under strict scrutiny analysis, the
eligibility rule is only supportable if the Defendants can
show that it is narrowly tailored to serve a compelling state
interest. Pls.' Mot. at 9, 12. The Plaintiffs
assert that the eligibility cannot survive strict scrutiny
review because the Defendants have not identified any
compelling governmental interest for excluding a documented
alien from the POL program, and that therefore, Mr.
Monga's exclusion from the national finals violates his
constitutional rights. Pls.' Mot. at 7. They
argue that the NEA's asserted interest in maintaining its
discretion does not constitute a compelling interest.
Pls.' Mot. at 13. This, the Plaintiffs assert,
demonstrates their likelihood to succeed on the merits.
Pls.' Mot. at 13.