The National Association for the Advancement of Colored People (NAACP) along with the NAACP Connecticut State Conference and the NAACP Boston Branch have reached an agreement in partial settlement of federal litigation against the U.S. Department of Commerce, in which the government will disclose records shedding light on preparations for the 2020 Census.
The agreement, submitted to Senior U.S. District Judge Warren Eginton, resolves the core issues in a Freedom of Information Act (FOIA) lawsuit filed by the NAACP. This settlement will allow the plaintiffs—and the public—to access previously withheld documents related to planning and budgeting at the Census Bureau, a component of the Commerce Department.
“The civil rights community deserves to know about the Census Bureau’s plans, or lack of plans, to count people of color accurately,” said Bradford M. Berry, General Counsel of the NAACP. “The NAACP should not have had to go to federal court for these records, but we’re pleased to have reached a deal that will bring us closer to full transparency around the 2020 Census.”
The records that will be released under the settlement include materials from meetings between the Census Bureau and Secretary of Commerce Wilbur Ross, documentation showing how the Bureau estimated the cost of the 2020 Census, and data about the Bureau’s planned advertising campaign to encourage census participation by people of color and other historically undercounted populations. The NAACP plans to make documents produced by the Commerce Department available to the public as soon as feasible.
The settlement comes amid widespread concern about the federal government’s inadequate preparations to conduct the 2020 Census.
The NAACP filed a FOIA request with the Commerce Department in June 2017, seeking internal documents about plans for the 2020 Census. In October 2017, the NAACP filed a FOIA lawsuit, NAACP v. U.S. Department of Commerce, No. 3:17-cv-01682-WWE (D. Conn.), because the Commerce Department failed to provide an adequate response to the request.
“This is no time for secrecy about the census,” said Scot X. Esdaile, President of the NAACP Connecticut State Conference.
“We need to know the full scope of the problems facing the census and the government’s plans for addressing them, before it’s too late to act to prevent a severe undercount of communities of color.”
“Absent a robust plan from the federal government to mitigate an undercount, there is cause for alarm,” said Tanisha M. Sullivan, President of the NAACP Boston Branch. “At a time when there is decreasing faith and trust in government it is imperative that we keep a watchful eye on the actions of the federal government leading up to and through 2020 to ensure that our constitutional rights are protected.”
A transparent census planning process is essential because civil rights hinge on the quality of census data. The Constitution requires the federal government to conduct an “actual enumeration” every ten years. The resulting data are used to determine how much federal funding communities receive, how many members of Congress represent each state, and where legislative districts are drawn.
Despite the clear constitutional requirement to count everyone, the census has historically undercounted African Americans and other people of color, diluting their political power and depriving them of economic resources.
As the 2020 Census nears, many signs indicate that the undercount of African Americans will be even worse than in previous decades. The Census Bureau plans to cut back on measures that have helped to reduce the undercount in the past, such as the hiring of a large and diverse field staff. Meanwhile, the Bureau is diverting resources into untested methods that will likely worsen the disproportionate undercount of people of color. The Bureau has also struggled with chronic underfunding throughout the decade, causing it to cancel critical tests and fall behind on hiring.
“The documents about to be released will offer badly needed insights into how the Census Bureau plans to respond to the serious problems facing the 2020 Census,” said Jeff Zalesin, a law student intern in the Yale Law School Rule of Law Clinic, which represents the plaintiffs.
In March 2018, the NAACP and several allies filed a lawsuit alleging that the federal government’s failure to prepare adequately for the 2020 Census violates the Constitution. In that lawsuit—which is separate from the FOIA litigation and not affected by the settlement—the plaintiffs recently won a major ruling last week allowing them to proceed to discovery and potentially trial.
The plaintiffs in the FOIA lawsuit are represented by the Yale Law School Rule of Law Clinic.