Supreme Court to Take Up Case on Adding Citizenship Question to 2020 Census

By Mark Walsh — February 15, 2019 3 min read
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The U.S. Supreme Court on Friday agreed to decide whether the Trump administration may add a question about citizenship to the 2020 U.S. Census, with the outcome potentially affecting the allocation of billions of dollars in federal education funding.

The justices agreed to the administration’s request to add the case, U.S. Department of Commerce v. New York (No. 18-966), to its docket for this term. In a brief order on Feb. 15, the court said it will hear arguments sometime from April 22 to 24.

A federal district judge in January invalidated U.S. Secretary of Commerce Wilbur L. Ross Jr.'s decision to add the citizenship question to the next decennial census, which the Census Bureau itself estimates will depress response rates in households with at least one noncitizen and likely do the same for Hispanic households.

The judge ruled that Ross’s decision to add the citizenship question, over the objections of Census Bureau staff members, violated the Administrative Procedure 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.

Ross’s decision “alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him” and “failed to justify significant departures from past policies and practices—a veritable smorgasbord of classic, clear-cut APA violations,” U.S. District Judge Jesse M. Furman of New York City said in his Jan. 15 decision.

Furman observed that many federal programs use census data to allocate money to the states and localities, and he specifically cited such education-related programs as Title I compensatory education grants to school districts, 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 as an example the New York City school system’s use of census data to redraw school attendance boundaries.

U.S. Solicitor General Noel J. Francisco bypassed a federal appeals court and asked the Supreme Court to take up the case this term because census questionnaires must be finalized for printing by June.

“The judgment below takes the unprecedented step of striking a demographic question from the decennial census and thereby preventing the secretary of Commerce from exercising his delegated powers to ‘take a decennial census ... in such form and content as he may determine,’” Francisco said in a brief, quoting a federal statute.

The decennial census asked about citizenship every time from 1820 until 1950 (except for in 1840), and Francisco said the question continues to appear on a sampling of census questionnaires through 2000, while the annual American Community Survey continues to ask a sampling of the population about citizenship.

“The secretary considered but rejected concerns that reinstating a citizenship question would reduce the response rate for noncitizens,” Francisco said.

Two groups that challenged Ross’s decision to add the citizenship question filed briefs that said the decision below was correct, but if the Supreme Court were inclined to take up the case, they agreed with the Trump administration that the matter should be heard expeditiously.

One group of challengers is New York state and 17 other states, 16 local governments, and the U.S. Conference of Mayors. The other is a coalition of five organizations serving immigrant communities and represented by the American Civil Liberties Union.

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