Monga v. Nat'l Endowment for the Arts

Decision Date21 April 2018
Docket Number2:18-cv-00156-JAW
Citation323 F.Supp.3d 75
Parties Allan MONGA, and Portland Public Schools, Plaintiffs, v. NATIONAL ENDOWMENT FOR the ARTS, Jane Chu, Chairman of National Endowment for the Arts, and The Poetry Foundation, Defendants, The Maine Arts Commission, Party-in-Interest.
CourtU.S. District Court — District of Maine

Melissa A. Hewey, Bruce W. Smith, Jeana M. McCormick, Kaighn Smith, Jr., Drummond Woodsum, Portland, ME, for Plaintiffs.

Rachael Westmoreland, U.S. Department of Justice, Washington, DC, John G. Osborn, U.S. Attorney's Office, Benjamin N. Donahue, Hallett Whipple Weyrens, Portland, ME, for Defendants.

AMENDED1 ORDER ON MOTION FOR TEMPORARY RESTRAINING ORDER

JOHN A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE

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...

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