Jonathan P. Baird

One of the most consequential cases coming before the U.S. Supreme Court this spring term is the Commerce Department’s effort to add a citizenship question to the 2020 census.

When you clear away the fog, the case is really about the Trump Administration’s effort to depress response levels by immigrant communities, particularly Latinos, to the census. They will, of course, say the citizenship question was not politically motivated.

In the trial on the case held in federal court in New York, the Census Bureau’s own experts estimated that 6.5 million people were unlikely to respond to the census citizenship question.

Dale Ho, the ACLU lawyer who litigated this case, has said that 6.5 million would be equal to our 18th largest state. If these people lived in one state,  they would be represented by nine seats in Congress and eleven electoral votes.

Immigrant communities rightly fear that the Trump Administration will use census data to track people down. While it is illegal for the Census Bureau to release data on specific households, the unprecedented hostility to immigrants demonstrated by the Trump Administration has led many immigrant households to worry that their disclosures could be handed over to ICE.

Unfortunately there is precedent: during the Japanese-American internment, the government used census data to identify people. That is why, among others, some Japanese-Americans have been speaking out against the inclusion of a citizenship question in the census. In 1943, the Census Bureau gave the Secret Service a list of name, addresses, citizenship status and other personal information of people of Japanese ancestry in the Washington DC area. Japanese-American citizens were then rounded up.

If there were a significant undercount of U.S. residents, the census would have an enormous effect. The census is used to determine congressional apportionment for the next decade. California, New York, Arizona, and Texas could lose seats in the U.S. House of Representatives, as well as lose federal dollars.

Census data could influence the allocation of more than $800 billion in federal government resources to states, localities and families every year. Census data helps state and local officials identify both current and future needs for the communities they serve.

It is not hyperbole to recognize that the stakes are immense.

The U.S. Constitution requires a census every ten years of all persons living in the country for the purpose of apportioning states in the U.S. House of Representatives. The Constitution explicitly requires an “actual enumeration” of “all persons”. That means the actual number of persons who reside in each state.

In adopting the Fourteenth Amendment, Congress rejected proposals to allocate seats in the House based on voter-eligible population, rather than total population.

Congress has the authority to conduct the census and Congress has delegated the task to the Secretary of Commerce. That delegation is subject to further legal requirements, including compliance with the Census Act and the Administrative Procedures Act or APA. The APA does require that the Secretary be truthful about the reasons for his or her inclusions in the census.

In January of this year, after a two week trial, Federal Court Judge Jesse M. Furman blocked the Commerce Department’s effort to add a citizenship question to the 2020 census. In a 277 page decision. Judge Furman found that the government and Commerce Secretary Wilbur Ross had acted improperly. The Court found the inclusion of the citizenship question was arbitrary and made in spite of overwhelming evidence the question would depress census response.

Judge Furman noted that the Census Bureau itself had strenuously objected to Secretary Ross’s plan because they believed that adding the question would harm the quality of census data and would increase costs significantly.

In his decision, Judge Furman specifically ruled that Ross had violated the APA, which governs how agencies exercise their powers. The APA outlines the requirement to be truthful in the reasons behind a rule. Here is how Judge Furman summarized Ross’s role:

“[Ross] failed to consider several important aspects of the problem, alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices.”

The Court ruled that Ross’s purported reason for adding the citizenship question – to enforce the Voting Rights Act – was “pretextual”, a made-up excuse. In the record there was much evidence of bad faith by Ross. He had denied to Congress in testimony that he had had conversations with the White House about the citizenship census question. That was a lie.

The records show Ross had spoken to Steve Bannon, White House advisor at the time, and Kris Kobach, Kansas Secretary of State. Kobach has been a player in schemes around voter suppression.

Emails showed Ross had been asking around for months about adding a citizenship question. He pushed for it and then added a rationale.

Unfortunately, the plaintiffs in the case never had the opportunity to depose Secretary Ross as the government successfully fought off the deposition.

The case is now heading to the Supreme Court where the Trump Administration hopes it has five friends. Because census forms need to be printed in summer or fall at the latest, the case is on a fast track, skipping the normal appellate procedure which would typically have required a circuit court decision after the trial court. Oral argument is scheduled for late April and a written opinion by June.

There is a risk of a failed census in 2020. Or if not a failed census, an inaccurate and unreliable one, with a variety of harmful consequences. Accuracy goes hand in hand with fairness.

Congress did not help things when it decreed in 2014 that the 2020 census should cost no more than the 2010 count, without adjusting for inflation. The General Accountability Office already designated the 2020 census as one of those few federal programs at high risk of failure.

An undercount in the census would likely harm immigrant (particularly Latino) populations as they would face reduced funding and less political representation. Already marginalized populations would become further under-represented and under-resourced.

Under the cloud surrounding the 2020 Census, it is easy to imagine people freaking out at the sight of census correspondence. The arrival of census takers at the front door would also not be a welcome sight for many.

There will be no way to fix a census undercount. Whatever the Supreme Court ultimately decides, the accuracy of the census remains a critical question that will determine its credibility and the degree to which there will be political and economic fairness over the next decade across the U.S..

Sometimes a story comes along that exposes deep, dark realities that typically remain hidden. Such a story is the college admissions scandal the FBI code-named Operation Varsity Blues.

While popular mythology and conventional thinking tout America as a meritocracy where anyone can get ahead based on their hard work and talent, this scandal presents a very different picture. It reveals that admission to elite colleges in the U.S. is a stacked deck, rigged to benefit wealthy white students.

According to the New York Times, at 38 top-tier colleges including Yale, Princeton, Dartmouth and the University of Pennsylvania, there are more students from the top 1% of families by income than there are from the bottom 60 percent. Both class and racial inequalities are reflected in which students are admitted to and graduate from our nation’s elite schools.

It is not a simple story; there are always exceptional students from low income families who get into elite colleges, but they are the exception to the rule. The larger pattern though is about class privilege and about how rich families are given preferential treatment or are able to game the system.

Rich people who are born into privilege already have a big edge in college admissions. Maybe it is stating the obvious but elite colleges have become extremely expensive. Even with some financial aid, just to be able to come up with a means to pay the cost at many colleges, let alone elite colleges, is daunting. The cost is too much for many prospective candidates. Having the means to pay full freight is no small thing since otherwise we are talking significant debt.

A close look at Operation Varsity Blues provides a window into the elite college admissions world. The FBI arrested 50 people, including some Hollywood stars and 13 college coaches. The gist of what was going on was very wealthy people paying a guy named Rick Singer, who billed himself as a college counseling consultant, big bucks to buy entrance into some of the most prestigious colleges.

Singer’s clients were paying him between $100,000 and $6.5 million based on a guarantee that he could get their child into an elite school. Most paid between $250,000 and $400,000. Singer had quite an array of schemes. While the allegations against Singer have yet to be proven, here are some of the alleged frauds.

Singer paid ringer stand-ins to take the ACT and SAT test. He bribed test proctors and arranged for them to correct wrong answers. He instructed parents to lie and say their children had learning disabilities. Then kids were given accommodations to take tests in individualized settings, sometimes over two days, with only a proctor present.

Singer also paid bribes to college sports coaches. He would get students designated as recruited athletes, even when they were not athletes. He and the parents would photoshop faces onto athletic bodies and would create fake athletic profiles. Singer made about $25 million from this business.

I thought the sharpest comment about the scandal that I have seen came from Susan Dynarski, a professor at the University of Michigan.

“This scandal is just the extreme, the illegal extreme, but it’s a continuum with legacy admission, with Jared Kushner, with all these other thumbs on the scale that wealthy kids get that are legal.”

Dynarski described legacy admission as “affirmative action for people who’ve had a very privileged life”. She has written that legacies (children of graduates) at Harvard are accepted at five times the rate of non-legacies. That pattern likely holds true at other elite colleges.

A recent lawsuit against Harvard’s admissions revealed that the college maintained a secret list of applicants who are relatives of major donors. Students on the donor list have a 40% acceptance rate. Harvard accepts 4.6% of students who apply.

Legacy admission is really a form of bribery. Colleges see such students as revenue generators for their institution. If a student who is a legacy cannot be accepted, elite colleges may ask them to take a “gap year” and enter a year later. This is called “Z-listing”.

The fact of Z-listing came out in a recent affirmative action lawsuit against Harvard. For years Harvard denied the existence of Z-listing. Z-listing is, in fact, a preferential program for white, wealthy and well-connected students.

Even if you are not a legacy, if your parents can cough up a major donation, your chance of admission skyrockets; the larger the donation, the greater the certainty of admission. Consider Jared Kushner. Kushner’s father gave Harvard $2.5 million around the time of his admission to the college.

In his book, The Price of Admission, Daniel Golden quotes administrators at Kushner’s private high school, the Frisch School, in Paramus New Jersey.

“There was no way anybody in the administrative office of the school thought he would on the merits get into Harvard. His GPA did not warrant it, his SAT scores did not warrant it. We thought for sure, there was no way this was going to happen.Then, lo and behold, Jared was accepted.”

The Kushner example represents a form of corruption that is deeply unfair to hard-working low and middle-income students with better grades and SAT scores. Money talks though and inferior students like Kushner bribe their way into Harvard. It is pay for play. Donations by wealthy parents, in effect, rob other students of their right to a fair shot at admission.

The corruption aside, the other advantages of wealth deserve mention. If you are rich enough, you will have coaches, tutors, test prep courses, opportunities to play more expensive and exclusive sports like water polo, squash, and golf and you will have social networking connections. Maybe you belong to the same country club and you get to socialize with alumni who can put in a good word for you. All those things are an edge in a competitive battle.

Private prep schools also have long-standing connections with the admissions offices of elite colleges that grease the path to admission. The great majority of public schools have none of that.

Another dimension of the separate college admission for the wealthy is how admission at a top-tier college catapults students into high-powered positions in the corporate world and finance. Part of the conceit is that they are the best and the brightest when the truth is they are instead the better connected and richest.

This scandal also points to how misplaced criticisms have been about affirmative action for minority students where there was an effort to remedy a historic injustice. The real and much more widespread affirmative action has been on behalf of wealthy white students. That has played out in front of our eyes for decades without drawing the scrutiny and criticism it deserved.

This story is about how the ruling class in America reproduces itself. Whether you call it the ruling class, the 1% or the power elite, this class of people has an enormous sense of entitlement. For some of them, it was too risky to chance admission to the Harvards, Yales, and Princetons. They had to buy it. Maintaining power and privilege is not only about the cash, it is also about opportunity-hoarding.

For the 99%, we need to recognize this aspect of an ongoing class struggle that we have been losing for decades. Understanding the continuing and accelerating inequality in our society today is just the first step to working for change so that fairness and equality for all will one day disrupt and destroy the prevalence of wealthy white privilege.

The lawyer and activist, Bryan Stevenson, has written that there is a narrative war going on about American politics and history. He cites the example of slavery and the Civil War. Stevenson says that the North won the Civil War but the South won the narrative war. He says that the South was able to persuade the U.S. Supreme Court that racial equality was not necessary.

The end result was another 100 years of white supremacy, mass lynchings and segregation. There was never any real accountability until the Civil Rights movement.

I think current debate about immigration reflects a new incarnation of the same narrative war Stevenson wrote about. To one side, the United States faces an invasion of illegal immigrants. This is certainly the view of President Trump and his Republican allies.

In this view, Latin America is sending its criminal element here. As Trump famously said, “They’re bringing drugs, crime and are rapists”. Trump has consistently talked about vicious crimes and murders committed by illegal immigrants. Trump has tried to ramp up fear that undocumented immigrants will murder Americans.

Last October, when the the migrant caravans headed north toward the United States, Trump described caravan members as “stone cold criminals” and “Middle Easterners”. It was a big part of his fear-based pitch to voters in the 2018 mid-term elections.

It needs to be said that everything about this view is wrong. It does not make sense of the most basic facts. The pattern of who is immigrating to the United States has changed dramatically. There are fewer male migrants in their 20’s and 30’s and many more families, women and children making the trek to our Southern border. A very large proportion are asylum seekers.

In the three Latin American countries – Honduras, El Salvador, and Guatemala – the so-called Northern Triangle, there has been a dramatic deterioration in the quality of life. The enormous growth of criminal gangs has made life there much less secure and more dangerous. Violence is widespread in the region. These countries are located between the main producers of cocaine – Columbia, Peru and Bolivia – and the main seller, Mexico. The United States remains the largest consumer of cocaine in the world.

To understand why life in Central America has become so hellish, the geography matters. The Northern Triangle is right in the middle of the drug market, with drugs making their way north to the United States.

While the story is complicated, we in the United States bear responsibility for the dire economic conditions in the region. The wars in Central America that we funded left a devastated economic landscape. Sad to say but the gangs in Latin America may represent the best employment opportunity for young people since there are few options. The average citizen of the Northern Triangle countries gets no protection from the drug traffickers who have been running wild.

As the writer, Roberto Saviano has written, the Honduran migrant caravan from last October was the largest flight from drug trafficking in history.

Migrant caravan members were actually crime victims – not perpetrators. People joined together in a caravan for protection from the gangs and drug traffickers in their home countries. The five countries in Latin America – El Salvador, Honduras, Venezuela, Mexico and Guatemala have the biggest organized crime problem in the world.

When some Americans complain about why immigrants cannot come to the United States legally, they misunderstand the situation faced by the Latin American immigrants. Latin Americans are not joining caravans and coming here just for the better opportunities represented by life in the United States. People are facing dire existential threats from criminal gangs who have made life in their home countries intolerable and impossibly dangerous.

The view that immigrants trying to escape drug traffickers and gangs are criminals is a complete misreading of what is actually happening. Local police in Latin America are failing to offer protection for those threatened by violence. As many as 95% of crimes go unpunished.

In 2013, the Attorney General of Honduras, Luis Alberti Rubi, announced that law enforcement there had the manpower to investigate only about 20 percent of the nation’s murders. He was saying 80 percent of murders would go unpunished. Imagine if our attorney general made a similar announcement here. Such a declaration would be seen correctly as a confession of abject failure to protect the people.

Strong gang presence in Latin America has meant competition for territorial and economic control through extortion, kidnapping and the retail sale of drugs. Staying safe and avoiding being targeted in the midst of all these dangers is not easy. The criminal gangs have made violent threats and sexual assaults common.

When Latin Americans seek to come to the United. States, they are following in exactly the same tradition as earlier waves of immigrants to America. Our great grandfathers and grandmothers who came to America did not have visas and passports. They got the money together for boat fare and they came.

The concept of “legality” is relatively new. Between 1880 and World War I, almost 25 million Europeans immigrated to the United State. They were not standing in some mythological line of legality, waiting their turn. There were no illegal immigrants then because there was no law making immigration illegal for Europeans. That remained true until 1924.

The government excluded only 1% of the 25 million European immigrants who arrived at Ellis Island before World War I and that was mostly for health reasons.

Pinning the label “illegal” on immigrants trying to escape extreme violence themselves is a technique that criminalizes and allows Trump and his supporters to avoid any effort to understand actual circumstances. It also bypasses the legal issue of asylum and whether large numbers of the Latin American immigrants qualify under current law.

The zero tolerance policy toward asylum represented by the Trump Administration is inconsistent with our best traditions. During his tenure, former Attorney General Jeff Sessions dramatically narrowed the grounds allowed for asylum by opining that gang violence (and domestic violence) could no longer be a legitimate basis for a claim of persecution.

Sessions’ opinion could not come at a more harmful time for those trying to escape the gangs in their home countries. Sessions obscured the reality that denial of asylum may well mean return to places where the asylum seeker gets killed by the criminal gangs that they tried to escape.

Equally repellent is the view being promoted of immigrants who have made it into the United States. To quote President Trump in his January argument for the border wall:

“Over the years, thousands of Americans have been brutally killed by those who illegally entered our country and thousands more lives will be lost if we don’t act right now.”

Contrary to the President’s assertions, the vast majority of research finds that immigrants are less likely to cause crime and they are also less likely to be incarcerated than their native-born peers. The desire to stay in the United States is a powerful incentive away from crime.

The negative fear-based view of immigrants often shows up in New Hampshire in any article that mentions Lawrence Ma. Usually, the only thing mentioned is drugs and drug deaths of hundreds of Granite Staters. As someone, who has worked in Lawrence daily for the last 8 years, I resent the unfair portrayal of the city. I wonder if those who trash the city have ever been there. Like other working class communities, Lawrence has many hard working people who are trying to get their piece of the American dream.

Focus on Lawrence as a drug den is extremely one-sided. New Hampshire is not the pure victim being harmed by immigrants from south of the border.

Immigration is a topic where partisans see what they want to see. Fear has been replacing understanding and the narrative war continues.