Poetry in Motion: High School Student/Immigrant Allowed to Participate in Contest Even When Excluded from Eligibility
On April 20, 2018, Judge John A. Woodcock, Jr. of the US District Court of Maine issued a well-reasoned 39 page decision granting an injunction against the National Endowment for the Arts (NEA) from prohibiting a high school student from Zambia, seeking asylum in the US, from participating in a national poetry recital contest. The decision in Monga v. National Endowment for the Arts, 2:18-cv-00156-JAW, USDC ME can be found online here.
First, kudos to Judge Woodcock. He decided the case while the contest was still going on! The case was filed April 11; briefing was completed April 17; argument was heard April 18 and a comprehensive decision was filed two days later, with just three days to spare before the national finals for the poetry recital contest.
The significance of the decision is that despite the official rules clearly excluding the student from the national competition, the Judge granted the injunction to allow the student to participate. For everyone who tries so hard to be specific about eligibility requirements in the official rules, this decision may come as a surprise, especially since the rules for the poetry recital contest devoted an entire eligibility paragraph to "Citizenship" which provided, in part:
"In keeping with federal law, competitors at the state and national finals must be US citizens or permanent residents with a valid tax identification or Social Security number."
There was no dispute that the high school student from Zambia didn't meet these eligibility requirements.
So why wasn't it case closed? Because the door was left ajar just enough for the Fifth Amendment of the US Constitution to come barreling in. (No, you film noir buffs, the case didn't involve the NEA "taking the Fifth"). If you recall Constitutional Law, the Due Process Clause/Equal Protection Clause of the Fifth Amendment prohibits any governmental regulation that discriminates against a suspect class, which includes immigrants. The NEA had to comply with due process and equal protection under the Fifth Amendment because it is an independent federal agency that receives federal funds.
A little more Constitutional Law. Equal protection analysis is subject to three possible tests: strict scrutiny, heightened review or rational basis. Under strict scrutiny, the NEA would have to show that the eligibility rule was narrowly tailored to serve a compelling state interest for excluding a documented alien from participating in the competition. Under heightened review, the NEA would have to show that the eligibility rule furthered "some substantial goal". Under rational basis, the NEA would have to show that it has some rational basis for the eligibility rule.
The Court did not see this as an immigration issue (which would be analyzed under a rational basis test), but as an educational issue and therefore required a heightened standard. (Remember this.) The NEA argued that it included the eligibility rule in the contest because it had limited funding and had discretion to determine who is entitled to benefit from these limited funds.
The Plaintiffs countered that the eligibility rule was arbitrary, that the NEA did not provide most of the funding for the competition, that the cost of the competition wasn't effected by the immigration status of its competitors, and that the NEA's justification was contrary to its stated mission of "encouraging cultural diversity and reducing barriers to cultural participation." (Remember that mission argument too.)
The Plaintiffs also argued that Mr. Monga would be subject to irreparable harm if forbidden from participating in the competition, since it was a "once-in-a-lifetime" opportunity and would stigmatize him as unworthy of his achievement. The NEA argued that Mr. Monga's harm was "self-inflicted" (their words not mine) because he was aware of the eligibility rule,
The Court did not believe that the NEA had a very good reason for excluding Mr. Monga and that Mr. Monga would be irreparably harmed if not allowed to participate.
1. This is a special case. The decision is based upon a Constitutional analysis reserved for governmental action. It is not precedent for a typical brand's promotions, and it did not overrule the "contractual" theory of Official Rules. In fact, the Court specifically did not enjoin the contest's co-Sponsor, because it did not receive federal assistance.
2. Sympathetic plaintiffs. The Court was sympathetic to the student's plight, which could potentially be a harbinger for later cases claiming that a non-citizen was wrongfully excluded from contests. Monga was likeable – a hard-working, bright kid who left Zambia to seek asylum in the US. While some in our government may want to throw him out, this Judge saw the value of keeping him in.
3. Unsympathetic defendants. The NEA did not have any bad motives; however, the Court was not impressed with the NEA's argument that allowing Mr. Monga to participate "would undercut the integrity of the national finals." Further, the Court found that the NEA's discretion in the administration of its program as it saw fit did not outweigh the harm to Mr. Monga if he were disallowed from competing. So, even though there are a number of valid reasons to exclude non-US residents or citizens from a contest, a court just may take a sponsor to task if the circumstances are right.
4. The test makes all the difference. The standards which a court uses to analyze a case are often dispositive. Beyond a reasonable doubt, preponderance of the evidence, clear and convincing, these are also all different tests a court can use to decide a case. Even in lawsuits over a typical contest, different standards can be used. For example, preponderance of the evidence is the norm in civil cases, but a court could apply the stricter clear and convincing standard if claims of fraud are made. Therefore, when reviewing the official rules, ads and treatment of entrants and winners, a sponsor should consider how a court would examine the issues involved.
5. Be careful what you say about your company. Many brands tout their public involvement and mission. In fact, many Official Rules state that an entrant or winner must not tarnish a Sponsor's "image". In Monga, the NEA's pro-education mission backfired. In fact, the Court recognized that Mr. Monga may have been just the type of young man who fulfilled the NEA's mission: "It would seem that the participation of Mr. Monga, a talented young man raised in Zambia, in the national finals as an outcome that actually advances these priorities." It's not obvious when or why a court may consider a Sponsor's image, but if Sponsors tell people they have an "image," they better live up to it in their contests.
Thank you to my partner in Maine, David Warren, for giving me the heads up on this interesting case.