Edgar Ulloa Lujan, Samar Ahmad, and Veronica Gonzalez v. U.S. Department of Education, et al.

Washington, DC (March 27, 2023) – Judge David C. Guaderrama of the U.S. District Court for the Western District of Texas has granted Plaintiff Veronica Gonzalez’s Motion for Preliminary Injunction in a lawsuit challenging the U.S. Department of Education’s discriminatory evaluation process for the Fulbright-Hays Doctoral Dissertation Research Abroad Fellowship. The New Civil Liberties Alliance brought Edgar Ulloa Lujan, Samar Ahmad, and Veronica Gonzalez v. U.S. Department of Education, et al. in opposition to the Department’s “native language penalty.” NCLA believes the rule unlawfully discriminates based on national origin, because it essentially disqualifies American citizens who immigrated here from non-English-speaking countries and children of such immigrants from receiving the Fulbright-Hays Fellowship to conduct dissertation research in any country that speaks the language of their national heritage.

Judge Guaderrama held that “the Department likely acted outside its statutory authority,” so Ms. Gonzalez is likely to succeed on the merits of her statutory claim. The Court vacated the challenged regulation until the Department issues a revised rule, but it declined to reach the constitutional equal-protection issue in the case.

The Department had rejected Ms. Gonzalez’s 2022 application to conduct research in Mexico under the Fulbright-Hays Fellowship. Specifically, it made her ineligible for the 15 points under the language-proficiency portion of the application (out of 106 total points) solely because Spanish is the language of her national heritage. This 15-point “native language penalty” knocked Ms. Gonzalez out of the running despite her near-perfect scores on the remainder of the application. While Ms. Gonzalez originally acquired Spanish from her immigrant parents, she improved her fluency throughout her American education, including in high school and university.

The Fulbright-Hays Act of 1961 requires the Department to award doctoral fellowships to promote “modern foreign language training.” For decades, the Department defined “foreign language” to mean a language that is foreign to the United States, i.e., a non-English language. In 1998, however, the Department redefined “foreign language” to mean a language that is foreign to the applicant, i.e., a non-native language. Under this view, Ms. Gonzalez’s native Spanish is not a “foreign language.” NCLA argued that the 1998 definition is inconsistent with the text and purpose of the Fulbright-Hays Act and must be rejected. Judge Guaderrama agreed, holding that “definitions show that the meaning of ‘foreign’ is context dependent.” The Court declined to defer to the Department’s interpretation because, “Given the text, context, purpose, and history … Gonzalez is likely to show that Congress intended ‘foreign language’ to mean a language other than English.” So, the fact that Ms. Gonzalez acquired Spanish via her national heritage no longer disqualifies her from receiving language proficiency points.

NCLA also argued that the 1998 regulation violates Ms. Gonzalez’s equal-protection rights because penalizing her for her native language amounts to discrimination based on her national origin. Having decided the 1998 regulation was unlawful for statutory interpretation reasons under the Fulbright-Hays Act, Judge Guaderrama did not address this separate constitutional argument.

NCLA released the following statements:

“Judge Guaderrama correctly rejected the government’s preposterous interpretation that Congress intended to promote training in languages that are ‘foreign’ to individuals as opposed to ‘foreign’ to the United States when it enacted a statute designed to promote relations between the United States and other countries. The court’s decision represents a welcome departure from the decades-long trend of courts reflexively deferring to agencies’ peculiar statutory interpretations without exercising independent judicial judgment.”
— Sheng Li, Litigation Counsel, NCLA

“The court’s decision prevents unelected bureaucrats from changing the language and meaning of the Fulbright-Hays Act, and it will allow talented Americans of every background to seek a Fellowship on a non-discriminatory footing.”
— John J. Vecchione, Senior Litigation Counsel, NCLA

For more information, visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

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Washington, DC (January 4, 2023) – Undermining the spirit of international openness and exchange, the U.S. Department of Education’s application process for the Fulbright-Hays Fellowship significantly disadvantages immigrants from non-English-speaking countries and children of such immigrants. The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, has filed a Motion for Preliminary Injunction in the lawsuit, Edgar Ulloa Lujan, Samar Ahmad, and Veronica Gonzalez v. U.S. Department of Education, et al. NCLA is asking the U.S. District Court for the Western District of Texas to require the Department of Education to reevaluate Plaintiff Veronica Gonzalez’s 2022 application for the Fulbright-Hays Doctoral Dissertation Research Abroad Fellowship without applying a “native language penalty.”

The Department of Education rejected Ms. Gonzalez’s 2022 application to conduct research in Mexico under the Fulbright-Hays Fellowship on the basis of her national heritage. Specifically, the Department of Education made her ineligible for any of the 15 points—out of 105 possible points—under the language-proficiency portion of the application solely because Spanish is the language of her national heritage. There is no dispute that Ms. Gonzalez would have scored within the range of being awarded the fellowship but for the decisive 15-point penalty.

The 15-point penalty essentially disqualifies immigrants and children of immigrants —like Ms. Gonzalez—from being awarded the Fulbright-Hays Fellowship to conduct dissertation research in any country that speaks the language of their national heritage. The native-language penalty is unconstitutional because it treats applicants’ national origin as a decisive factor in access to federal education assistance.

The penalty also violates the Fulbright-Hays Fellowship’s authorizing statute, which instructs the Department of Education to “promot[e] modern foreign language training and area studies in United States schools, colleges, and universities” without any mention of prioritizing applicants based on their national heritage. Nothing in the Fulbright-Hays Act authorizes the Department of Education to penalize U.S. students who speak a foreign language as part of their national heritage for the purpose of awarding financial scholarships.

NCLA released the following statement:

“The Department of Education rejected Ms. Gonzalez’s 2022 Fulbright application solely because of her immigrant heritage. The Department does not even defend its practice on the merits and has agreed to change its discriminatory regulation. But it is moving so slowly that Ms. Gonzalez will be denied meaningful relief unless the court forces the Department to act. At the very least, the court must require the Department to end its discriminatory practice before the 2023 application cycle begins.”
— Sheng Li, Litigation Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

Washington, DC (July 22, 2022) – Kuwaiti-born Samar Ahmad can breathe a sigh of relief after learning that her national origin will not be used against her in the application process for a Fulbright-Hays Doctoral Dissertation Research Abroad Fellowship. The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, filed the lawsuit, Edgar Ulloa Lujan and Samar Ahmad v. U.S. Department of Education, et al., as well as a preliminary injunction on behalf of Ms. Ahmad, challenging the U.S. Department of Education’s 1998 rule and its decision to reject her 2021 application on the basis of her Arabic-speaking heritage. The Department of Education (ED) has agreed not to apply the rule to her and other similarly situated applicants this year.

Ms. Ahmad and all other “heritage” speakers of foreign languages in the 2022 application cycle will be eligible for up to the full points on the criterion that evaluates an applicant’s language proficiency. The scholarship provides grants to colleges and universities to fund individual doctoral students who conduct research in other countries, in modern foreign languages and area studies for periods of six to 12 months. Ms. Ahmad, a doctoral student at Georgetown University, was born in Kuwait and grew up speaking Arabic. When she applied in 2021, the Department docked her 15 points for language proficiency solely because Arabic is the language of her national heritage rather than one first learned in school. This large 15-point “native-language penalty” knocked Ms. Ahmad out of the running despite her near-perfect scores in the remaining portions of the application. Ms. Ahmad has reapplied in 2022 and identifies herself as a “heritage” speaker of Arabic in her 2022 application.

The native-language penalty is unconstitutional because it treats applicants’ national origin as a decisive factor in access to federal education assistance and significantly disadvantages immigrants from non-English-speaking countries and children of such immigrants. It also violates the Fulbright-Hays Act itself, which does not allow the Department to award Fulbright-Hays Doctoral Fellowships based on whether the foreign language used for the research is “native” or “non-native” to the applicant.

While NCLA and Ms. Ahmad are gratified by the Department’s agreement not to penalize “heritage” speakers for the ongoing application cycle, the Department has not yet agreed to permanently revise the regulation that imposes the native-language penalty. Until it does, applicants in future cycles could still face unlawful discrimination. Pending the final outcome of NCLA’s lawsuit, the native-language penalty would still apply against “native” speakers, whom the Department defines as immigrants who speak their native language more fluently than “heritage” speakers. NCLA intends to continue pursuing this lawsuit and engage ED in further discussions to ensure that, going forward, no applicant will face discrimination based on his or her national origin.

NCLA released the following statement:

“For nearly a quarter century, the U.S. Department of Education has been violating Americans’ due-process right to equal treatment by their government with regard to their national origin. NCLA is pleased the agency has agreed to respect that right for our client and those similarly situated while the case is being litigated. We will continue fighting the Department’s unlawful discrimination until the ‘native language’ regulation is overturned in its entirety.”
— Sheng Li, Litigation Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

Washington, DC (May 10, 2022) – A complaint filed Tuesday by the New Civil Liberties Alliance argues the U.S. Department of Education’s application process for the Fulbright-Hays Fellowship unlawfully discriminates based on applicants’ nation of origin. NCLA, a nonpartisan, nonprofit civil rights group, represents the plaintiffs in Samar Ahmad and Edgar Ulloa Lujan v. U.S. Department of Education, et al., which asks the U.S. District Court for the Western District of Texas to declare this process unconstitutional and not authorized by the Fulbright-Hays Act of 1961.

The Fulbright-Hays Doctoral Dissertation Research Abroad Fellowship was established to support and promote U.S. students to conduct doctoral research in foreign countries using a foreign language. The Department of Education evaluates applicants on a 105-point scale, with language proficiency counting for 15 points. Starting in 1998, the Department began to use the language-proficiency criterion to disadvantage U.S. students whom the Department deemed to be “non-native-born” by assigning them 0 out of 15 points for language proficiency if they acquired the relevant foreign language through their national heritage.

Ahmad and Ulloa Lujan are doctoral candidates at Georgetown University. Ms. Ahmad was born in Kuwait and grew up speaking Arabic. Mr. Lujan grew up in Juarez, Mexico, speaking Spanish since childhood. The Department of Education penalized the Plaintiffs’ applications for not satisfying the fellowship’s foreign-language-proficiency requirement, even though they are fluent in Arabic and Spanish, respectively.

Due to the competitive nature of the Fulbright-Hays Fellowship, being ineligible for 15 out of 105 possible points presents an insurmountable barrier to obtaining the award. The regulation thus directly undermines the program’s purpose of international openness and exchange by reducing the number of highly proficient foreign-language speakers in the United States. The Department’s foreign-language criterion even perversely encourages U.S. students who speak the foreign language of their national heritage to let their language skills atrophy—thereby becoming less fluent “heritage speakers” who face a 5-point penalty—instead of training to be fluent in that language and becoming “native speakers” who face a 15-point penalty.

Nothing in the Fulbright-Hays Act authorizes the Department of Education to penalize U.S. students who speak a foreign language as part of their national heritage for the purpose of awarding financial scholarships. The Department revised its language-proficiency regulations in 1998 with the apparent purpose of discouraging and disadvantaging “non-native born” applicants. But students with immigrant heritage have a constitutional due process right to be free from the Department’s blatant and un-American discrimination.

NCLA released the following statement:

“The Department of Education systematically discriminates on the basis of Fulbright-Hays applicants’ nation of origin. The Department admitted its anti-immigrant animus in 1998 when it enacted a regulation for the express purpose of discouraging applicants whom it deems “non-native born” from using the fellowship to study in any country that speaks the language of their national heritage. The 1998 regulation, for instance, effectively bars a U.S.-born student with Cuban heritage from using the Fulbright-Hays Fellowship to study in Spain simply because she grew up speaking Spanish. The courts must put a stop to this unconstitutional and un-American discrimination.”
— Sheng Li, Litigation Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.