Law & Courts

Supreme Court Tosses Challenge to Exclusion of Undocumented Immigrants From Census

By Mark Walsh — December 18, 2020 3 min read

In a case being watched for its potential impact on federal education funding, a divided U.S. Supreme Court held Friday that it would be premature to rule on the legality of President Donald Trump’s plan to exclude undocumented immigrants from the final census tally he reports to Congress.

“At present, this case is riddled with contingencies and speculation that impede judicial review,” the majority said in an unsigned opinion in Trump v. New York (Case No. 20-366).

The president’s goal has been to exclude undocumented immigrants from the final census number that the secretary of commerce is required to finalize by Dec. 31 and that the president is supposed to deliver to the new Congress in early January to be used for the apportionment of seats in the U.S. House of Representatives.

But oral arguments in the case in late November confirmed that the Census Bureau is not on track to finish the work of matching administrative records revealing citizenship status with census responses to be able to exclude all of the estimated 10.5 million undocumented immigrants from the tally.

“Any prediction how the Executive Branch might eventually implement [the president’s] statement of policy is no more than conjecture at this time,” the court said in the per curiam opinion.

The upshot of the ruling is that the Trump administration can use its final weeks in office to try to complete the president’s goal of excluding undocumented immigrants from the apportionment figure.

Opponents of the Trump plan say it is both unconstitutional and against federal statute, as well as not in keeping with a long history of counting all inhabitants in the country as part of the census. Their central concern is that the plan would likely cost immigrant-heavy states including California, New Jersey, and Texas a congressional seat after reapportionment, while Alabama, Minnesota, and Ohio may gain a seat they would otherwise lose due to population shifts.

But the opponents also worry that the apportionment figure would affect the way billions of dollars in federal funding tied to census figures is allocated, including for education programs. Education groups led by the National School Boards Association filed a friend-of-the-court brief in the case laying out those concerns.

Credence on Funding Concerns

Justice Stephen G. Breyer, in a dissent joined by Justices Sonia Sotomayor and Elena Kagan, said the case was ripe for resolution and that he would strike down the president’s plan as unlawful. The president’s July memorandum “violates Congress’ clear command to count every person residing in the country, and should be set aside.”

Breyer’s 21-page dissent gave credence to the opponents’ concerns about funding.

“Indeed, a number of federal statutes require that funding be allocated based on the results ‘certified,’ ‘stated,’ or ‘reported,’ by the decennial census,” Breyer said. “These phrases seem always to have been understood to refer to the apportionment tabulation reported to the president by the secretary of Commerce (the report here at issue), because that is the only tabulation that the law requires to be ‘certified’ or ‘reported’ as part of the decennial census.”

Breyer said there was no guarantee that, as the Trump administration has argued, the commerce secretary would add back the excluded immigrants to the census tally for funding calculations.

“Statute after statute pegs its funding to a state’s share of ‘the total population of all the states as determined by the last preceding decennial census,’” Breyer said, quoting language from several such laws. “Given the connection between the decennial census and funding allocation, a change of a few thousand people in a state’s enumeration can affect its share of federal resources.”

The majority, in the unsigned opinion, said the plan’s “impact on funding is no more certain” than its affect on reapportionment.

“According to the government, federal funds are tied to data derived from the census, but not necessarily to the apportionment counts addressed by the memorandum,” the majority said. Under that view, the majority added, changes to the commerce secretary’s report or to the president’s statement to Congress “will not inexorably have the direct effect on downstream access to funds or other resources predicted by the dissent.”

Neither the arguments nor the opinion in the case addressed the forthcoming change in presidential administrations, and whether once President-elect Joseph R. Biden Jr. takes office any changes made by the Trump administration on final census numbers could be reversed.


School & District Management Live Event Education Week Leadership Symposium
Education Week's Premier Leadership Event for K12 School & District Leaders.
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Law & Courts Webinar
The Future of Criminal Justice Reform: A Sphere Education Initiative Conversation
America’s criminal justice system is in crisis and calls for reform are dominating the national debate. Join Cato’s Sphere Education Initiative and Education Week for a webinar on criminal justice and policing featuring the nation’s
Content provided by Cato Institute
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Student Well-Being Webinar
Equity, Care and Connection: New SEL Tools and Practices to Support Students and Adults
As school districts plan to welcome students back into buildings for the upcoming school year, this is the perfect time to take a hard look at both our practices and our systems to build a
Content provided by Panorama Education

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts Federal Appeals Court Backs Socioeconomic-Based Admissions Plan for Boston 'Exam Schools'
The court denies an injunction to block the plan for next year and says considering family income in admissions is likely constitutional.
3 min read
Image shows lady justice standing before an open law book and gavel.
iStock/Getty Images Plus
Law & Courts U.S. Supreme Court Wary About Extending School Authority Over Student Internet Speech
In arguments, the justices looked for a narrow way to decide a case about the discipline of a cheerleader over a profane Snapchat message.
7 min read
Members of the Supreme Court pose for a group photo at the Supreme Court in Washington on April 23, 2021.
Members of the U.S. Supreme Court pose for a group photo at the court on April 23. The justices heard arguments Wednesday in a major case on student speech.
Erin Schaff/The New York Times via AP
Law & Courts Supreme Court to Weigh When School Board Censure of a Member Violates the First Amendment
The justices will decide an issue that has become more salient as a few board members rant inappropriately on social media.
5 min read
Image of the Supreme Court.
Law & Courts Federal Judge Dismisses Challenge to Transgender-Inclusive Athletics Policy in Connecticut
A federal district court judge said the lawsuit by cisgender female athletes was moot because two transgender track athletes had graduated.
3 min read
In this Thursday, Feb. 7, 2019 photo, Bloomfield High School transgender athlete Terry Miller, second from left, wins the final of the 55-meter dash over transgender athlete Andraya Yearwood, left, and other runners in the Connecticut girls Class S indoor track meet at Hillhouse High School in New Haven, Conn. In the track-and-field community in Connecticut, the dominance of Miller and Yearwood has stirred resentment among some competitors and their families.
Bloomfield High School transgender athlete Terry Miller, second from left, wins the final of the 55-meter dash over transgender athlete Andraya Yearwood, left, and other runners in the Connecticut girls Class S indoor track meet in New Haven, Conn., in February 2019.
Pat Eaton-Robb/AP