Filed Date: May 3, 2022
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On May 3, 2022, two individuals who applied for Fulbright programs filed this suit in the United States District Court for the Western District of Texas. The plaintiffs, represented by the New Civil Liberties Alliance, sued the U.S. Department of Education (DOE), its Secretary, and its Assistant Secretary for Postsecondary Education, alleging that the language-proficiency criterion for Fulbright-Hays Fellowships impermissibly discriminated based on national heritageThe plaintiffs alleged that the criterion was unlawful and not authorized by the Fulbright-Hays Act, and that the criterion violated the Constitutional guarantees of due process and equal protection, Title VI of the Civil Rights Act of 1964, and the Administrative Procedure Act (APA). They sought declaratory and injunctive relief, as well as $1 in nominal damages. The case was assigned to Judge David C. Guaderrama and Magistrate Judge Robert F. Castañeda.
The Fulbright-Hays Act of 1961 established a fellowship that supported and promoted U.S. students conducting doctoral research in foreign countries using a foreign language. Eligibility for the program requires a certain level of language proficiency. Applicants have historically been evaluated on a 106 point scale, with 15 of those points coming from foreign language proficiency. The plaintiffs asserted that, since 1998, applicants whose foreign language proficiency resulted from their immigrant heritage were penalized and assigned 0 out of the 15 points. Those who had some language skills from their national heritage, but could not be considered fluent, were only penalized 5 points. They argued that the DOE imposed this penalty to tilt the scale against those students that they considered "non-native born" Americans, since this lack of points can be detrimental to an applicant.
Both plaintiffs were doctoral candidates at Georgetown University. One plaintiff was born in Kuwait and became a naturalized citizen of the United States as a child. She grew up speaking Arabic in her family home. The second plaintiff, a citizen of Mexico and legal permanent resident of the U.S., was raised in Mexico in a Spanish-speaking home. Both plaintiffs applied, were awarded 0/15 points for their foreign language proficiency, and were later rejected for Fulbright-Hays Fellowships.
First, the plaintiffs argued that the DOE’s language-proficiency criterion was not authorized under the Fulbright-Hays Act. The criterion was not changed until 1998, 37 years after the act was first passed. The plaintiffs argued that the criterion and subsequent penalty contradicted the purpose of the Act, which was to promote cultural exchange, because it discouraged U.S. students who speak the foreign language of their national origin from pursuing doctoral research in any country that speaks the same language. The plaintiffs argued that the policy was unlawful because it directly conflicted with the purpose of the Act. Next, the plaintiffs argued that the DOE’s language-proficiency criterion violated the Constitution's guarantees of due process and equal protection because the criterion treated applicants differently on the basis of national origin. Third, the DOE’s language-proficiency criterion violated its obligations to comply with and enforce Title VI of the 1964 Civil Rights Act, which prohibited discrimination based on national origin.Lastly, the plaintiffs argued that denying their applications because they acquired a foreign language through their national heritage was arbitrary and capricious in violation of the APA.
On June 22, 2022, the plaintiffs moved for a preliminary injunction enjoining the DOE from applying the criterion to the pending application of one of the plaintiffs. They argued that they were likely to succeed on the merits of their case because the native-language penalty violated the Constitution’s guarantees of due process and equal protection. In order to be lawful, the penalty would have to survive strict scrutiny. The plaintiffs asserted that the DOE did not have a compelling interest that justified the policy, and even if they did the policy was not narrowly tailored.
On July 18, 2022, the parties entered a stipulation whereby the DOE agreed to instruct application reviewers to allow all "heritage" speakers of foreign languages to remain eligible for the full 15 points designated to language proficiency. The plaintiffs agreed that this accorded the necessary relief and agreed to withdraw their motion for preliminary injunction. Two days later the court withdrew the motion.
On November 16, 2022, the plaintiffs filed an amended complaint adding an additional named plaintiff. The additional plaintiff had applied and been rejected for a Fulbright program and was a "heritage" speaker of Spanish. The plaintiffs also asserted that the parties’ stipulation allowing heritage speakers to receive the full 15 points for foreign language proficiency applied only to the 2022 application cycle and not to future application cycles. And the plaintiffs argued that even if the DOE amended the rule, it would not rectify the harm done to past applicants.
On January 3, 2023, the plaintiffs moved for a preliminary injunction asking the court to reconsider one named plaintiff’s 2022 Fulbright application without applying the penalty towards heritage speakers. The plaintiffs argued that without the injunction the plaintiff would suffer irreparable harm because she would be unable to graduate from her doctoral program. The plaintiffs also reasserted their constitutional due process and equal protection claims.
On February 15, 2023, the plaintiffs filed a notice of new circumstances with the court. The 2023 application cycle had commenced five days earlier and the DOE had followed through on a promise to devalue the foreign-language criterion from 15 points to one. The plaintiffs asserted that this meant that an applicant's foreign language skills now conferred no benefit in their application. The new process also awarded two points to applicants who were pursuing programs that were deemed "priorities": those programs focusing on a modern language other than French, German, or Spanish. The plaintiffs alleged that an applicant could therefore be awarded more points for pursuing a program in Brazil—even if they didn't speak any Portuguese—than an applicant, like two of the plaintiffs, who was fluent in Spanish.
On March 24, 2023, the court granted in part and denied in part the plaintiffs' motion for preliminary injunction. The court agreed with the DOE that a named plaintiff’s request for reevaluation of her 2022 application was moot because the 2023 application cycle was already in progress. Furthermore, the funds appropriated by Congress for the 2022 Fulbright-Hays Fellowships had already been spent. Even if the application were to be reevaluated, there would be no funds available to award the fellowship.The court agreed with the plaintiffs, however, that the same plaintiff was likely to succeed on her claim as to her 2023 application. The court found that the DOE had misinterpreted how Congress intended “foreign language” to be interpreted and that the plaintiff was likely to be successful in showing that Congress had intended foreign language to mean a language foreign to the U.S., and not to the applicant. The court did not reach the plaintiffs' constitutional arguments. The court also vacated the relevant provision as to all 2023 applicants until a merit decision was reached in the case or until the DOE published a final rule amending the provision. 2023 WL 2638280.
On March 31, 2023, the plaintiffs moved to amend the judgment or clarify the order. The plaintiffs asked the court to clarify how the order should be applied and interpreted because the parties had come away with different perspectives. According to the motion, the DOE believed that the order prohibited them from considering foreign-language proficiency in awarding Fulbright fellowships. The plaintiffs posited that they had only asked the court to stop the DOE from penalizing native speakers, not to make them stop considering language ability at all.
On the same day, the DOE filed a response to the motion and asserted that there were other provisions that accounted for an applicant's foreign language abilities and that they had only stated they would not consider the criteria set forth in the provision under dispute in the case. The DOE did not oppose the outcome the plaintiffs sought in their motion, but wanted to make clear that any order from the court should only concern the relevant provision and not the DOE’s overall ability to consider or not consider foreign language abilities.
As of April 2, 2023, this case was ongoing.
Rhea Sharma (4/2/2023)
Last updated June 30, 2023, 3:20 a.m.
State / Territory: Texas
Filing Date: May 3, 2022
Case Ongoing: Yes
Private Individuals who applied for a Fulbright Fellowship
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: No
Class Action Outcome: Not sought
Causes of Action:
Prevailing Party: None Yet / None
Nature of Relief:
Source of Relief:
Order Duration: 2023 - None
Content of Injunction: