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Monga v. National Endowment For Arts

United States District Court, D. Maine

April 21, 2018




         A high 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.

         The 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.

         I. BACKGROUND

         A. Procedural Background

         On 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).[2] 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.

         B. Factual Background

         1. The Parties

         Allan 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.

         PPS is 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.

         The NEA 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.

         TPF is 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.

         The 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.

         2. Poetry Out Loud and the Eligibility Rule

         The 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.

         POL has 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.

         Chairman 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. (citation omitted).

         3. Poetry Out Loud at Deering

         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.

         4. Allan Monga Wins the School-wide, Regional, and Statewide Poetry Out Loud Competitions

         As part 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.

         Mr. 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.

         5. The National Competition

         The 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.


         “[Injunctive 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 interest.

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)).

         “The 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).

         Procedurally, 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.

         Nevertheless, 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. 1988).

         Before 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.


         A. Count I

         1. Likelihood of Success on the Merits

         a. Strict Scrutiny

         i. The Plaintiffs' Motion

         Citing 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.

         The 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)).

         The 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.

         ii. The ...

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