Law & Courts

Trump Drops Fight to Add Citizenship Question to Census

By Mark Walsh — July 16, 2019 7 min read
The Supreme Court on the final day of the 2019 term, which was relatively quiet on K-12 issues.
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President Donald Trump last week ended his administration’s efforts to add a citizenship question to the 2020 census, an issue that was keenly watched by the education community.

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 that the administration’s stated reason for the question, to enforce voting rights, was a pretext.

Education groups argued that a citizenship question would depress response rates among Hispanic and immigrant households, which would affect the allocation of billions of dollars in federal education aid to states and school districts.

In Department of Commerce v. New York, the justices ruled 5-4 on June 27 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.

At a Rose Garden event on July 11, the president said the Supreme Court decision “would have produced even more litigation and considerable time delays.”

“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,” Trump said.

He was referring to an executive order he intended to sign to ease the use of administrative records to determine the number of U.S. citizens in the country. But the gathering of such information—from Social Security and tax records, for example—would not appear to affect the ways that data from the decennial census are used for political apportionment and the allocation of federal aid.

Thomas A. Saenz, the president and general counsel of the Mexican American Legal Defense and Educational Fund, which pressed one challenge to the citizenship question, said in a statement, “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.”

Federal School Funding at Stake

The court’s decision in the census case was one of several that came in late June that were of interest to educators in a Supreme Court term that was otherwise lacking in cases specifically involving K-12 schools. The justices also upheld a World War I memorial cross on public property in a case that prompted strong opinions on the court’s long-standing legal test for evaluating government interaction with religion, including in the public schools.

Meanwhile, the high court set the table for a more interesting term for education beginning next fall by announcing it would take up a potentially landmark decision on whether state constitutional provisions barring aid to religion and religious schools run afoul of the U.S. Constitution’s guarantee of free exercise of religion. And it said it will decide whether the Trump administration may end the Deferred Action for Childhood Arrivals program, which offers relief from deportation for as many as 800,000 undocumented immigrants. The program begun by President Barack Obama allows recipients to legally pursue education and work opportunities.

Until the president pulled the plug on efforts to add the citizenship question, the high court’s census ruling reverberated for two weeks. Chief Justice John G. Roberts Jr. wrote for the majority in its decision that the administration’s rationale for adding the citizenship question “seems to have been contrived.”

Roberts was joined by the court’s more liberal members for that outcome—Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan. But the chief justice also wrote, for a different majority, that neither the “enumeration clause” in Article I of the Constitution nor the Administrative Procedure Act barred Ross from adding the citizenship question. Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, and Brett M. Kavanaugh agreed with those conclusions.

The decision left open the possibility that Ross could come back with a valid rationale. But with the administration having insisted that June 30 was the deadline to begin printing census forms, it seemed that the high-court ruling settled the matter.

U.S. Department of Justice lawyers said as much on July 2 to a federal district judge in Maryland overseeing a separate lawsuit challenging the citizenship question, and the Commerce Department confirmed that it had given up the fight. On the morning of July 3, however, President Trump had something to say about it.

“The News Reports about the Department of Commerce dropping its quest to put the Citizenship Question on the Census is incorrect or, to state it differently, FAKE!,” Trump tweeted. “We are absolutely moving forward, as we must, because of the importance of the answer to this question.”

Justice Department lawyers then said in court documents that they had been “asked to re-evaluate all available options” following the Supreme Court ruling to “allow for a new decision to include the citizenship question on the 2020 Decennial Census.”

Meanwhile, the printing of census forms proceeded without the citizenship question, with the president speculating about signing an executive order to perhaps add the question as an addendum.

Educators followed the fight with great interest. 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.

Attorney General William P. Barr appeared with Trump at the Rose Garden event last week 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.

School Aid, DACA Next Term

Educators were also following the case of a 94-year-old cross on public land that commemorates a Maryland county’s World War I dead, which was challenged as an unconstitutional government establishment of religion.

In American Legion v. American Humanist Association, the court ruled 7-2 that the cross could remain because of its identification as a war memorial. But the court declined to apply the three-part test from the 1971 case of Lemon v. Kurtzman, under which courts must examine whether government action regarding religion had a secular purpose, had the primary effect of advancing or inhibiting religion, or created an excessive entanglement with religion.

In fact, in multiple opinions, a majority of justices suggested that the Lemon test, which has been widely applied in education cases, has little viability remaining.

Kavanaugh, the newest justice, said “the court’s decisions over the span of several decades demonstrate that the Lemon test is not good law and does not apply to establishment-clause cases” in several broad categories, including those involving government-sponsored prayers in public school.

Still, the court stopped short of overruling the 1971 decision.

“There are probably five votes to over-rule the Lemon test in the future,” Erwin Chemerinsky, the dean of the University of California, Berkeley, law school, said at a forum at the National Constitution Center in Philadelphia last week. “It just didn’t happen here.”

The court’s next term has several high-profile cases of interest to educators.

On June 28, the day after their last day on the bench, the justices announced they would take up the cases on state aid to religious schools and the Trump administration’s efforts to end the DACA program.

In Espinoza v. Montana Department of Revenue, the justices will review a decision by Montana’s highest court that struck down a tuition-tax-credit program that allowed tuition scholarships to bene t students at private religious schools. The Montana Supreme Court ruled that the program violates the state constitution’s provision barring government aid to “sectarian schools.”

Families who want to use the scholarships contend the state constitutional language violates their federal First Amendment right to free exercise of religion. They rely heavily on the U.S. Supreme Court’s 2017 decision in Trinity Lutheran Church of Columbia, Mo. v. Comer, in which the justices said Missouri violated the free-exercise clause when it barred a church from participating in a neutral state playground-improvement program.

The Trinity Lutheran decision has been the subject of much debate over how much it bolsters those seeking to require state school choice programs to include religious schools, and the Montana case may answer that question.

The DACA case is Department of Homeland Security v. Regents of the University of California. The Trump administration argues that the 2012 DACA program violates federal immigration law and that Trump was on solid legal ground in rescinding it. A ruling for the administration would end protections for the 800,000 young people in the program and likely further roil the debate over immigration.

A version of this article appeared in the July 17, 2019 edition of Education Week as Trump Drops Fight to Add Citizenship Question to Census

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