President Donald Trump announced Thursday that his administration was dropping efforts to add a citizenship question to the 2020 census, and that instead he would sign an executive order to ease the use of administrative records to determine the number of U.S. citizens in the country.
The issue has been followed closely by educators, who feared a citizenship question would depress response rates among Hispanic and non-citizen househoolds on the decennial census, which in turn would affect the allocation of billions of dollars in federal education funding.
Trump’s decision appeared to put an end to two weeks of swirling controversy over whether the citizenship question could be added after the U.S. Supreme Court held in Department of Commerce v. New York that the administration’s stated reason for the question, to enforce voting rights, was a pretext.
The high court’s decision “would have produced even more litigation and considerable time delays,” the president said at a Rose Garden event. “It’s deeply regrettable, but it will not stop us from collecting the needed information, and I think in even greater detail and more accurately.”
The census issue has been boiling since the high court ruled 5-4 late last month that U.S. Secretary of Commerce Wilbur L. Ross Jr.'s stated rationale for adding the question—to better enforce the Voting Rights Act of 1965—was a pretext and that the government would have to do more to provide a valid reason to add the question to the census.
Educators followed the fight with great interest, including filing friend-of-the-court briefs in the Supreme Court, because the decennial census is the foundation for the allocation of billions of dollars of federal aid to states and localities, including for such programs as Title I compensatory education aid to school districts, for which census figures are used to distribute some $15.8 billion in annual aid; grants to states under Part B of the Individuals with Disabilities Education Act, at $12.3 billion; and the Head Start preschool program, at $8.5 billion. (The National School Boards Association’s brief is here, and the Council of the Great City Schools brief is here.)
Trump’s decision to sign an executive order to ease the use of administrative records to come up with a more accurate count of U.S. citizens would not appear to affect the ways that data from the decennial census are used for political apportionment and the allocation of federal aid.
The president said it remained “essential that we have a clear breakdown of the number of citizens and non-citizens that make up the U.S. populations. Imperative.”
“Knowing this information is vital to formulating sound public policy, whether the issue is healthcare, education, civil rights, or immigration,” Trump said. “We must have a reliable count of how many citizens, non-citizens, and illegal aliens are in our country.”
Dale Ho, the director of the Voting Rights Project of the American Civil Liberties Union, who co-argued the Supreme Court case on behalf of challengers to the citizenship question, said in a statement, “Trump’s attempt to weaponize the census ends not with a bang but a whimper. ... When the details of Trump’s new plan to compile citizenship data outside of the census come out—and his plans for using that data—we will scrutinize them closely and assess their legality.”
Thomas A. Saenz, the president and general counsel of the Mexican American Legal Defense and Educational Fund, which also pressed a challenge to the citizenship question, said, “This is a great victory for all who believe in the importance of accuracy in the census and in the necessity of fairness in government policymaking. Given last week’s experience, however, we will need to ensure that this is a final decision and that it is cemented in court order.”
The Trump administration told two federal district courts in early July that it had given up the fight and had begun printing census forms without the citizenship question. But Trump soon contradicted his own attorneys and insisted, via Twitter, that the fight was continuing. U.S. Department of Justice lawyers went back to those courts and said the administration was searching for a valid rationale to add the question, which the Supreme Court decision did not completely foreclose.
Attorney General William P. Barr appeared with Trump at the Rose Garden event Thursday and said the administration had concluded that “there is simply no way to litigate these issues and obtain relief from the current injunctions in time to implement any new decision in time without jeopardizing our ability to carry out the census, which we’re not going to do.”
“So, as a practical matter, the Supreme Court’s decision closed all paths to adding the question to the 2020 census,” Barr said. “Put simply, the impediment was a logistical impediment, not a legal one.”
Trump was also flanked by Ross at the event, but the commerce secretary did not speak.
A version of this news article first appeared in The School Law Blog.