The Census Trial

On May 11, 1992, the trial of City of New York v. Department of Commerce began in the United States District Court, Eastern District of New York. The trial lasted for thirteen days, during which time a number of prominent statisticians testified. At issue was the decision, made on July 15, 1991, of the Secretary of Commerce to not adjust the 1990 census. The opening statement of Judge Joseph M. McLaughlin is reproduced below as an introduction to the full transcript of the trial. A brief description of the contents of the various files is as follows.

May 11
Opening statements, Plaintiff's case, Eugene Ericksen (direct)
May 12
Ericksen (direct, cross)
May 13
Ericksen (cross), Kirk Wolter (direct)
May 14
Wolter (direct, cross), John Rolph (direct)
May 15
Rolph (direct, cross), Leo Estrada (direct, cross)
May 18
Franklin Fisher (direct, cross)
May 19a
Fisher (cross), Bruce Cain (direct, cross)
May 19b
Cain (cross), Barbara Bailar (direct, cross)
May 20
John Tukey (direct, cross), Stephen Fienberg (direct)
May 21
Fienberg (cross), Defense case, Peter Bounpane (direct)
May 22
Bounpane (cross). Robert Fay (direct, cross), Paul Meier (direct, cross)
May 26
Kenneth Wachter (direct, cross)
May 27
Wachter (cross), David Freedman (direct)
May 28
Freedman (cross), Rolph (rebuttal direct, cross)

THE COURT:

Good morning, ladies and gentlemen. This day has been a long day coming. I would like to say that I have been looking forward to it, but candor forbids that. Let me just make a preliminary statement and then we'll get down to brass tacks.

The Constitution, of course, requires that a decennial census be taken and by statute Congress has delegated to the Secretary of Commerce the task of taking the census "in such form and content as he may determine, including the use of sampling procedures and special surveys." The Bureau of the Census is the agency within the department that discharges this responsibility. In October of 1987, the Secretary of Commerce announced that there would be no statistical adjustment in the 1990 census. Plaintiffs commenced with this action in November of 1988 seeking an injunction and challenging the methodology by which the census was to be conducted. Since that suit has begun, various states and other municipal bodies have intervened. If my mathematics are correct, and regrettably mathematics is my weakest suit which makes me eminently qualified to understand all of this testimony, if my mathematics are correct, we have seven states as parties, seventeen cities, four counties, the District of Columbia and the Navajo Nation. We also have several amicus briefs.

The defendants moved to dismiss the application for the injunction and the court denied the motion to dismiss holding that the plaintiffs had standing to assert a challenge to the census and that the court would review the Secretary's determination under the arbitrary and capricious standard of review. A hearing was then scheduled on the injunction, and was set to go forward in the summer of '89 when at the 11th hour the parties entered into a stipulation that was subsequently approved by the court. That stipulation and order, which is pivotal to this suit, provided that the 1987 decision of the former, the now former Secretary of Commerce that he would not adjust would be vacated, and that the new Secretary, Secretary Mosbacher, would consider de novo and "with an open mind" whether adjustment was warranted. The stipulation further provided that the Secretary was to decide whether to adjust and make that decision by July 15, last summer, that his decision would be consistent with certain procedures including guidelines articulating what the defendants believed to be the relevant technical and policy considerations. The stipulation also mandated the establishment of a special advisory panel consisting of 8 members who were to advise the Secretary on whether to adjust. After the Commerce Department adopted the guidelines required by the stipulation, the plaintiffs challenged that as inadequate and they sought a declaratory judgment that a statistical adjustment would not violate the Constitution or federal statutes. The defendants countered that the case presented a nonjusticiable political question. The court ruling on those motions held that a challenge to the accuracy of the census is not a political question, and that statistical adjustment would not violate either the Constitution or the laws of the United States. The court further held that while the guidelines promulgated were somewhat vague, they did not violate the stipulation and order.

The census then went forward and the Secretary announced on July 15 that he had reached a decision not to adjust. The suit, of course, was revitalized, discovery proceeded apace. All of that discovery is now substantially completed. The plaintiffs requested that the court hold a trial. The defendants objected to conducting a trial, arguing that because the case arose under the Administrative Procedure Act the scope of the court's review should be limited to the administrative record. On February 18th of this year the court ordered a trial. The court held that, recognizing the elementary review of an agency decision is generally limited to the administrative record, and where a court finds the record is inadequate the preferred course is to remand to the agency and not conduct a trial, nevertheless the court concluded that the evidentiary hearing is necessary in this case for several reasons. First, there have been several allegations, some of them serious, that the administrative record is a self-serving post-op compilation of documents, assembled for the purpose of strengthening the defendant's litigation position. The court therefore must consider the integrity of the administrative record to insure that these documents, and only these documents, were considered by the Secretary. The second purpose of the hearing is to enhance the court's understanding of the record, replete as it is with references to technical jargon and arcane procedures. To this end, the testimony of expert witnesses hopefully will prove helpful. Their testimony should also assist the court in determining whether the Secretary considered all the relevant factors in making his decision.

Finally, the court is fully aware of the important constitutional questions this case presents. Those considerations led the court to conclude that a trial was necessary. I want to assure the parties that they will receive an attentive and open-minded hearing on all of the issues in the case. We are ready to begin, the parties have agreed that each side would like to make an opening statement.


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