Lujan v. U.S. Dep't of Educ.

664 F.Supp.3d 701

Edgar Ulloa LUJAN, Samar Ahmad and Veronica Gonzalez, Plaintiffs, v. UNITED STATES DEPARTMENT OF EDUCATION, Miguel Cardona,in his official capacity as Secretary of the U.S. Department of Education,and Nasser H. Paydar, in his official capacityas Assistant Secretary of Postsecondary Education ofthe U.S. Department of Education, Defendants.

3:22-CV-00159-DCG

United States District Court, W.D. Texas, El Paso Division

Signed March 24, 2023

John J. Vecchione, Sheng Li, New Civil Liberties Alliance, Washington, DC, Cory Ren Liu, Ashcroft Sutton Reyes, Austin, TX, for Plaintiffs Edgar Ulloa Lujan, Samar Ahmad.

Sheng Li, New Civil Liberties Alliance, Washington, DC, Cory Ren Liu, Ashcroft Sutton Reyes, Austin, TX, for Plaintiff Veronica Gonzalez.

Emily Nestler, Joel McElvain, U.S. Department of Justice, Civil Division, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

DAVID C. GUADERRAMA, UNITED STATES DISTRICT JUDGE

Plaintiffs Edgar Ulloa Lujan, Samar Ahmad, and Veronica Gonzalez—three doctoral students—have sued the U.S. Department of Education ("Department") and its Secretary and the Assistant Secretary of Postsecondary Education, Miguel Cardona and Dr. Nasser H. Paydar, respectively.¹ See generally Am. Compl., ECF No. 24. The Department administers the Fulbright-Hays Doctoral Dissertation Research Abroad Fellowship ("Fulbright-Hays Fellowship"), for which each Plaintiff applied. During the 2022 application cycle, the Department did not award a fellowship to any of the Plaintiffs.

Plaintiffs contend one of the criteria the Department uses to assess applicants—the foreign language proficiency criterion ("Foreign-Language Criterion")—is unlawful. The Department uses the Foreign-Language Criterion to assess an applicant's proficiency in a foreign language of the country the applicant intends to study in. When reviewers assess applications, they award points to each evaluation criteria. Crucially, the Department does not award applicants any points for proficiency in their native language(s). Plaintiffs are each natively fluent in a language other than English, so according to the Department's regulation governing the assessment of foreign language proficiency, each received zero points for foreign language proficiency.

One Plaintiff—Veronica Gonzalez—has moved for a preliminary injunction against Defendants. Mot., ECF No. 25. Gonzalez presses two theories: first, the Department acted outside its statutory authority in issuing the Foreign-Language Criterion and, second, the Foreign-Language Criterion violates the Fifth Amendment of the United States Constitution's due process and equal protection guarantees.² Id. at 16-31.³ Agreeing that the Department likely acted outside its statutory authority, and that Gonzalez has otherwise shown she is entitled to preliminary relief, the Court GRANTS IN PART Gonzalez's Motion and VACATES the Foreign-Language Criterion. The Court does not address Gonzalez's constitutional claim.

I. BACKGROUND

A. Statutory and Regulatory Background

The Fulbright-Hays Fellowship has its roots in the Mutual Educational and Cultural Exchange Act, also called the Fulbright-Hays Act, which Congress passed in 1961. In the Act, Congress authorized the President

to provide for . . . promoting modern foreign language training and area studies in United States schools, colleges, and universities by supporting visits and study in foreign countries by teachers and prospective teachers . . . for the purpose of improving their skill in languages and their knowledge of the culture of the people of those countries . . . .

22 U.S.C. § 2452(b)(6). Congress, in turn, allowed the President to "delegate, to any such officers of the Government as he determines to be appropriate, any of the powers [Congress] conferred upon him" in the Act. Id. § 2454(a). In 1962, President John F. Kennedy did just that. He delegated his authority under section 2452(b)(6) to the Department's predecessor,⁴ the Department of Health, Education, and Welfare. Exec. Order No. 11,034, 27 Fed. Reg. 6071, 6072 (1962).

The Department then issued regulations establishing and governing the Fulbright-Hays Fellowship. See 34 C.F.R. Part 662. The Fulbright-Hays Fellowship "is designed to contribute to the development and improvement of the study of modern foreign languages and area studies in the United States by providing opportunities for scholars to conduct research abroad."⁵ Id. § 662.1. The Department awards Fulbright-Hays Fellowships to U.S. citizens or permanent residents who are graduate students "planning a teaching career in the United States" and "[p]ossess[ ] sufficient foreign language skills" to carry out their proposed dissertation project. Id. § 662.3. Reviewers assess applications for the Fulbright-Hays Fellowship on a number of metrics, including the Foreign-Language Criterion:

The applicant's proficiency in one or more of the language (other than English and the applicant's native language) of the country or countries of research, and the specific measures to be taken to overcome any anticipated language barriers.

Id. § 662.21(c)(3).

The current Foreign-Language Criterion dates back to 1998. 34 C.F.R. Part 662, 63 Fed. Reg. 46,358, 46,361-63 (1998). Before then, the Department evaluated whether "[t]he applicant possesse[d] adequate foreign language skills to carry out the proposed project." 34 C.F.R. § 662.32(b)(2)(ii) (1997). So, in 1998, the Department narrowed the scope of Foreign-Language Criterion by adding a requirement that applicants be proficient in a language "other than English and the applicant's native language." 34 C.F.R. § 662.21(c)(3) (1998).

The Department justified its change to the Foreign-Language Criterion by concluding the Fulbright-Hays Fellowship is really about foreign language training. See 63 Fed. Reg. 46,358, 46,359 (1998). To the Department, foreign language training is fundamentally about the acquisition of a new language—that is, a non-native language—not about a person's study and improvement in any language she might already know. See id. In the Department's own words:

Since the programs were originally intended to enhance the foreign language competence of individuals trained in American schools, the criteria are modified to give greater emphasis to having acquired a foreign language. Paragraph (c)(3) adds the requirement that the applicant be proficient in one or more of the languages of the country or countries of research, excluding English and the applicant's native language. The language mostly likely would result in a decrease in the number of applicants from individuals wishing to conduct research in English and would encourage non-native born United States citizens or resident aliens to acquire an additional foreign language. The Department has experienced a substantial increase in the number of applications for conducting research in English.

Id.

During the notice-and-comment rulemaking, one commenter "was troubled by the Department's emphasis in the selection criteria on . . . an acquired (i.e., non-native) foreign language." Id. at 46,360. The commenter understood the Fulbright-Hays Act to authorize foreign language exchange programs that "support [ ] the development of high-end expertise in languages other than English regardless of the method of acquisition." Id. But the Department's overriding concern was based on a "belie[f] that a student conducting research in his or her native language should not enjoy the advantage in the competition that the [previous] regulations provide[d]."⁶ Id. Thus, the Department kept the proposed Foreign-Language Criterion—the language Gonzalez challenges here.

B. Factual Background

Gonzalez is a doctoral student at the University of California Irvine's Department of Social Ecology.⁷ She was born in Santa Maria, CA to parents who immigrated from Mexico.⁸ Spanish is her native language; she grew up speaking it at home and learned English in primary school.⁹

Although she learned Spanish at home, Gonzalez pursued formal Spanish-language instruction. In high school, she took two years of Advanced Placement ("AP") Spanish.¹⁰ Continuing her training in college, Gonzalez participated in a research program at University of Southern California that "involved traveling to Mexico to take courses taught in Spanish."¹¹ And during her doctoral program, she has "participated in the Chicano Latino Emphasis Program" at UC Irvine, which includes Spanish-language courses.¹²

Gonzalez is almost done with her doctoral studies. But to defend her dissertation on intimate partner violence in Mexico,¹³ she needs to conduct one year of research in Mexico.¹⁴ Last year, in April 2022, she sought funding for her Mexico-based dissertation research through the Fulbright-Hays Fellowship program.¹⁵ The Department did not award her a Fulbright-Hays Fellowship.¹⁶ Gonzalez alleges that the Department rejected her application because, under the Foreign-Language Criterion, she received no credit for her Spanish-language skills.¹⁷

To understand her allegation, we look at the application review process. Two anonymous reviewers assess each application.¹⁸ Reviewers assess applications on a number of metrics, which can be divided into two groups: quality of the proposed project and qualifications of the applicant.¹⁹ The Department assigns each metric a total possible point value. For example, during the 2022 application cycle, an applicant could receive up to 15 points for the quality of their hypothesis and proposed research methods.²⁰ Now, the heart of this case. During the 2022 application cycle, an applicant could also receive up to 15 points for their "proficiency in one or more of the languages (other than English and the applicant's native language) of the country or countries of research."²¹ Applicants, like Gonzalez, who identified themselves as native speakers of a foreign language received zero points.²²

So despite receiving near perfect scores on each metric—with the...