Federal District Judge Rejects Inclusion of Citizenship Question in 2020 Census

By Mark Walsh — January 15, 2019 4 min read
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In a decision that highlighted some of the ways the U.S. Census affects funding to schools and other education policies, a federal district judge on Tuesday rejected U.S. Secretary of Commerce Wilbur L. Ross Jr.'s decision to add a citizenship question to the 2020 national headcount.

U.S. District Judge Jesse M. Furman, of New York City, issued a 277-page decision in a challenge to the citizenship question brought by two groups of plaintiffs—a coalition of 18 states plus the District of Columbia (along with 15 cities and counties across the country) and several non-governmental organizations representing individuals that include educators and parents of children who benefit from such federal programs as Head Start and Title I compensatory education aid.

Furman held that Ross’s decision to add the citizenship question, over the objections of Census Bureau staff members, violated the Administrative Procedures Act because, among other reasons, the commerce secretary’s rationale for doing so was pretextual and was not supported by the reasons Ross advanced. Ross had announced the citizenship question last March and said it was based on a request from the U.S. Department of Justice for better citizenship data to help it enforce the Voting Rights Act of 1965.

“Secretary Ross’s decision to add a citizenship question was ‘arbitrary and capricious’ on its own terms,” Furman wrote in State of New York v. U.S. Department of Commerce. “He failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices—a veritable smorgasbord of classic, clear-cut APA violations.”

However, the judge said he could not rule in favor of the plaintiffs on their constitutional claim that Ross’s decision was motivated by invidious discrimination in violation of the due-process clause of the Fifth Amendment.

“Although the court finds that Secretary Ross’s decision was pretextual, it is unable to find, on the record before it, that the decision was a pretext for impermissible discrimination,” the judge wrote.

The high-stakes battle legal battle has been waged in several arenas since last year. The decennial census asked about citizenship every time from 1820 until 1950 (except for in 1840, for reasons which the judge said were not clear). But beginning with the 1960 census, the bureau dropped the question because feared it would depress the measure of such hard-to-count groups as noncitizens and Hispanics.

The Census Bureau strenuously objected to Ross’s decision. In an August 2018 memo, bureau staff members gave what they described as a conservative estimate that adding the citizenship question would cause a 5.8 percent decline in responses to the census instrument among households with at least one noncitizen. Evidence also suggests the question would suppress response rates among Hispanic households.

Furman discussed several “concrete harms” that would result from the addition of the citizenship question. For congressional apportionment, the question would likely lead to the loss of one congressional seat for California that it would not otherwise lose. And Arizona, Florida, Illinois, New York, and Texas would face a significant risk of an apportionment loss attributable to the effects of the citizenship question.

Furman also observed that many federal programs use census data to allocate money to the states and localities. He cited such education-related programs as Title I compensatory education grants to Local Education Authorities, special education grants, career and technical education aid, and Head Start.

The judge found that, based on an expert’s testimony, “a 2 percent net differential undercount of people who live in noncitizen households will cause plaintiffs Illinois, Massachusetts, Maryland, Washington, and the District of Columbia to lose funding under the Title I LEA Grant program and the Social Services Block Grant Program.”

Furman also found that the citizenship question would lead to an erosion of the quality and accuracy of overall census data, which affects states and local governments that use the data to decide how to allocate services.

The judge cited the New York City school system’s use of census data to redraw school attendance boundaries, as well as the city’s use of other demographic data.

“A decline in the quality of decennial census data will degrade the City’s ability to make and implement such policies,” the judge said.

Furman said that based on his APA ruling he was required by the terms of that statute to set aside Ross’s decision to add the citizenship question and remand the issue back to him. The judge said that unless his decision was overturned, that means that the 2020 census questionnaire could not include the question. But federal officials could continue to test the question for possible inclusion the next time around.

The Commerce Department was closed Tuesday due to the partial federal shutdown, and there appeared to be no immediate reaction to the decision.

President Donald Trump’s administration had aggressively sought put up roadblocks to the legal challenge. It asked the U.S. Supreme Court to delay the trial, which the court refused to do. But the high court did block the plaintiffs from conducting a deposition of Ross about his decision, and it agreed to hear arguments about that issue in February.

That issue in the case may now be moot unless a federal appeals court or the high court steps in to block or reverse Furman’s decision.

The American Civil Liberties Union, which represents some of the private plaintiffs challenging the citizenship question, said the decision was a “a forceful rebuke of the Trump administration’s attempt to weaponize the census for an attack on immigrant communities.”

A version of this news article first appeared in The School Law Blog.