On April 23, 2019, the Supreme Court of the United States heard oral argument in Department of Commerce v. New York, No. 18-966.  The argument focused on three main issues: (1) whether the District Court erred in enjoining the Secretary of the U.S. Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker — including by compelling the testimony of high-ranking executive branch officials — without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the Secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.

The oral arguments did not address the concerns raised in several amicus briefs filed by education groups, including Husch Blackwell LLP and the Council of the Great City Schools (“CGCS”), a coalition of 74 of the nation’s largest urban districts. For example, the Husch and CGCS amicus brief notes that a 5.8 percent undercount of households with one noncitizen would –by itself–result in a “misallocation” nationwide of $151.7 million in federal Title I compensatory education funds.

Questions from the justices during oral argument were reported to follow ideological divides between the conservative and liberal wings of the Supreme Court.  In particular, Justice Sonia Sotomayor appeared skeptical of the U.S. Secretary of Commerce’s reasons for adding the citizenship question.  Justice Neil M. Gorsuch pointed out the history of the Census Bureau asking a citizenship question in various forms and the fact that many other countries ask about citizenship on their census forms.

Several weeks after oral argument in the case, on May 30, 2019, the American Civil Liberties Union (“ACLU”) sent a letter to the Clerk of the Supreme Court, noting that it had filed a motion in the District Court suggesting that government be sanctioned because new evidence contradicts testimony by senior government officials and representations by government attorneys. In particular, the newly-discovered evidence reportedly shows that Dr. Thomas Hofeller, a longtime Republican redistricting specialist, who played a significant role in adding the citizenship question to the 2020 decennial census, concluded in a 2015 study that adding a citizenship question “would clearly be a disadvantage to the Democrats” and “advantageous to Republicans and Non-Hispanic Whites” in redistricting.  In its letter, the ACLU states that the letter the U.S. Department of Justice eventually sent to the U.S. Department of Commerce in December 2017 bears striking similarities to Dr. Hofeller’s 2015 study that a citizenship question on the census “was essential to advantaging Republicans and white voters.”

What This Means for School Districts: The government has asked the Supreme Court to rule on this case by the end of June 2019 in order for it to finalize the census questionnaire.  Regardless of the Court’s decision, schools can and should play a significant role in helping ensure that all school-aged children and their families are counted.  Accurate counting appropriately funds educational initiatives under both Title I and the Individuals with Disabilities Education Act.  Census data also accurately appropriates funds for programs including Medicaid, CHIP, foster care, and childcare.  Information concerning opportunities for promoting a full census count is available from the Partnership for America’s Children, www.foramericaschildren.org.