The Rise of Plea Bargains and Fall of the Right to Trial

On March 8, the American Constitution Society and the National Bar Association presented “The Rise of Plea Bargains and Decline of the Right to Trial,” featuring a panel of experts who have worked in the trenches of our criminal justice system as prosecutors, public defenders, advocates, and researchers. The panel tackled the thorny issues that arise when plea bargains become an indispensable part of our criminal justice systems—systems that are now far too large to efficiently allow every criminally accused individual to exercise their right to a jury trial.

Six years ago, in his opinion for the majority in Missouri v. Frye, Supreme Court Justice Anthony Kennedy observed that “[i]n today’s criminal justice system the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant,” and, in fact declared that plea bargaining “is not some adjunct to the criminal justice system; it is the criminal justice system.” Today, more than 95 percent of cases that resolve in a conviction are the result of plea bargains.

As panelist Jenny Roberts , co-director of the Criminal Justice Clinic at American University Washington College of Law, explained, a number of factors have led to the ubiquity of plea bargains in the criminal justice system. Bail, she asserts, is the single biggest factor in guilty pleas in misdemeanor cases. Melba Pearson, a former state prosecutor in Miami-Dade County, agreed, explaining, “If you are in jail because of a cash bail you can’t pay, pleas can sound like a great alternative to losing your job, failing to pay rent, and a variety of other negative consequences.”

Additionally, Roberts cited the power of prosecutors to overcharge and leverage draconian sentencing laws to make the risk of going to trial seem too great for many defendants. Combined with the sheer volume of criminal case, and misdemeanor cases in particular, which make it impractical if not impossible to try all criminal cases, and the rise of plea bargains was inevitable. She was quick to point out, however, that “the system is too large by design,” and that we can control the size and severity of our criminal justice system. If the political will existed, we could address overcriminalization and mandatory minimums, and thereby substantially scale back the size of our system.

The pervasiveness of plea bargains brings with it many troubling consequences. Avis Buchanan, director of the Public Defender Service for the District of Columbia, noted “When you accept an early plea, you lose the chance to understand the evidence more completely. You might get a “favorable” bargain relative to what you think the charge could be, but can’t factor in what exculpatory evidence might be available.” The panel agreed that this can, and often does, lead to defendants pleading guilty to crimes for which they are not culpable or accepting lengthier sentences than they otherwise would have received.

As with so many other features of the criminal justice system, plea bargains also have a disparate impact on people of color. A recent study revealed that prosecutors were more likely to offer charge reductions to white defendants than black defendants. According to the study’s findings, black defendants with no prior convictions were twenty-five percent less likely than white defendants with no prior conviction to have the initial charges dropped or reduced to a lesser crime. Those white defendants who face initial felony charges were, therefore, less likely than black defendants to be convicted of a felony, and, in misdemeanor case, more likely to be convicted for crimes carrying no prison sentence or not being convicted at all. Buchanan noted that even defense counsel can bring biases that exacerbate racial disparities in outcomes.

In the end, the panelists offered a range of ways to address the problem with plea bargaining, including changing the culture in prosecutor offices, reforming our bail systems, and removing the points of coercion that make it impossible for many defendants to make thoughtful, voluntary decisions about their cases. Regardless of the reforms undertake, the panelist all agreed that plea bargaining will continue to play large role in our system.

Watch the entire discussion here.

Teacher Strikes Are Symptom of Much Larger Education Concerns

West Virginia teachers recently went on strike to challenge salaries that are among the lowest in the nation and won. Teachers in Oklahoma and Kentucky are attempting the same, with rumblings that more states may follow. But these protests are really just a sign of a much bigger problem—states have been gutting public education on multiple levels for a decade. Public school funding is down dramatically. Voucher and charter funding is up exponentially. And brand new studies reveal that by cutting school spending by as little as 10 percent, states “reduced test scores” and graduation rates.

The biggest cuts to public education began during the Great Recession. Early on, teachers and families accepted that states had to make hard economic choices. But states soon did more than just balance their budgets. They increased funding for charter schools and vouchers at the same time that they were cutting public school funding. Between 2008 and 2012, Florida, for instance, increased voucher funding every year. During that same period, the state cut public school funding by 23%.

States also fundamentally changed how they treat teachers. Wisconsin restricted the influence of teacher unions. At least seven states passed legislation to eliminate teacher tenure. Dozens of other states imposed high-stakes evaluation systems on teachers. New laws required districts to hire, fire, and promote teachers—largely based on statistics. They scared so many teachers away that it eventually created a national shortage.

States have done little since the Recession to repair the damage. By 2012, tax revenues rebounded and are substantially up now. But thirty-one states are still funding education at a lower level than before the recession began. The worst offenders are more than 20% below pre-recession levels. Even states that modestly increased funding in recent years have done very little to help the neediest districts. In Pennsylvania, the poorest districts receive 33 percent less funding than wealthier districts. Some poor districts began the 2015-2016 school year by asking teachers to work for free. By 2016, Erie considered closing its school district permanently.

Had the attacks stopped, communities might have accepted a new normal. But several states threatened to cut deeper into the core of public education. In the last two years, states like Texas, Arizona, and Nevada took steps to permit the “voucherization” of the entire school system. Speaking of a 2017 law, the head of the Florida Charter School Alliance proclaimed, “[m]ore was achieved this year for the charter movement than . . . in a very long time.”

This seemingly limitless degradation of public schools pushed many communities too far. In Texas, families and teachers from across the state descended on the capital to protest a pending voucher bill. They could not accept the state adopting an expansive voucher bill without first addressing the basic necessities of struggling school districts. Before the protests, the voucher bill had sailed through the state senate. After the protests, the bill died in the state house by a vote of 103-44. Similar grassroots movements eventually stopped or stalled voucher and charter bills in other states like Massachusetts, Arizona, and Nevada.

The current teacher uprisings in West Virginia, Oklahoma, Kentucky, and elsewhere are no different. With state revenues consistently increasing, teachers cannot understand why their wages remain stagnant while health care costs go up.

These seemingly disparate states and issues converged in the fight over Betsy DeVos’s nomination for Secretary of Education. She came to symbolize all that has gone wrong in education in recent years. Teachers and parents overwhelmed Senators’ offices with visits and phone calls. With that opposition, the same republican party that had summarily confirmed Obama’s last Secretary of Education could only muster lukewarm support for DeVos. It took the Vice President’s tie breaking vote to put her in office.

DeVos’ slim confirmation should have served as a warning to West Virginia legislators who thought teachers would back down. And both of these events should serve as a warning to other states. The public school resistance is growing, not shrinking.

The vast majority of parents are now making it clear that they do not want to shop for a public school, much less drive their kids across town every day. And neither teachers nor parents want to hear about education cuts or strikes. They just want to trust government to carry out its responsibilities to public education. The problem is that, right now, they can’t.

A Challenge for College and Graduate Students

Over the past two decades, arbitration agreements have made their way into all kinds of contracts from those governing employment relations to those memorializing the terms of care for our elderly in nursing homes.

Arbitration is the private adjudication of disputes by a third party who is not a judge appointed or elected through processes established by the Constitution or legislation. Arbitration proceedings are not public and there is no formal process for recording the opinions or decisions of arbitrators for subsequent public review, except perhaps in limited circumstances as to arbitrations involving labor unions and employers. Arbitrators are also not compelled to adhere to precedent, a doctrine called stare decisis – the backbone of our common law tradition.

For simple disputes – perhaps those involving contracts for the sale of goods – that have no long-term impact on public policy – arbitrations may be a reasonable means of quick dispute resolution. In the labor arena – meaning relations between labor unions and employers, unions and employers have for many years bolted arbitration clauses into collective bargaining agreements as a means of achieving quick and efficient resolution of disputes in industrial settings. That system has worked well particularly because unions have done a good job of publicizing the results of arbitrations, making transcripts available to members, and otherwise not burying the resolution of matters of public concern in private quarters. At least with regard to some labor disputes, moreover, management and labor have allowed arbitration decisions to be published, thus creating at least some common law of the workplace.

Setting aside the point – albeit a critical one – that arbitrators are not compelled to adhere to precedent, there are still reasons why arbitration should comport with notions of fairness and due process. Yet, arbitration is often simply a mechanism to resolve matters of public importance behind closed doors, with no record for the public to review and sometimes not even an opinion.

This point should be obvious to most Americans who heard White House Press Secretary Sarah Huckabee Sanders announce that President Trump had won his arbitration case against Stormy Daniels. What he won and how he won it, including who was there and what evidence was presented, remains a mystery. No surprise; that is frequently the point of arbitration.

Stormy Daniels does not claim sexual harassment. But her debacle with an arbitration clause is a wake-up call; indeed, it is a reminder of how arbitration can be used for the intended purpose of keeping matters of potential public interest from the public eye. This should concern anyone who cares about the prevalence of sexual harassment and assault in the workplace. The “Me Too” movement should be concerned that arbitration clauses in employment agreements are mechanisms to quietly resolve – absent public knowledge – disputes that may implicate pervasive wrongdoing. Even a minimal amount of legal research will turn up a multitude of cases where employers have responded to publicly filed discrimination lawsuits with motions to compel private arbitration.

The floodgate for this type of motion was opened 17 years ago in Gilmer v Interstate/Johnson Lane Corp., 500 US 20 (1991) where the Supreme Court said it was okay to compel a stock broker to arbitrate a claim of discrimination because the broker had signed a Uniform Securities Registration form that contained an arbitration clause. Never mind that the clause was really intended to apply to disputes with customers and not to disputes between brokers and their employers.

No doubt these arbitration clauses can be mechanisms to conceal wrongdoing, allowing discrimination to fester absent the transparency of sunlight. Unfortunately, efforts to address the arbitration epidemic through legislation have stalled in Congress. No surprise there either. Yet there may be at least one self-help option; an option which seems particularly intriguing considering the recent mobilization of students who have rallied for gun legislation. So here it is.

Across the nation, student bodies should vote for resolutions supporting a requirement that potential employers who interview or recruit on campus disclose whether they require employees to sign arbitration agreements as a condition of employment. The resolutions should similarly seek the requirement that college and graduate school placement offices publish notices fully advising students that signing an arbitration clause forecloses any right to seek redress in a public court of law, with its formal rules and transparent processes. To make matters simple, here is a model resolution:

RESOLVED; We the Student Senate urge the University to adopt a rule which states as follows:

Any employer who interviews students on campus shall be required to issue notice to the placement office and students as to whether it requires employees to sign arbitration agreements as a condition of employment. The placement office shall compile and publicize a list of all employers who require employees to sign arbitration agreements as a condition of employment. The placement office shall also post and distribute notices advising students that signing an arbitration clause forecloses any right to seek redress in a public court of law, including its formal, written rules and transparent processes.

Now let’s see what happens!

Do Pilot Projects Offer a Path to Positive Litigation Reforms?

For decades, both plaintiffs’ and defense attorneys have called for reforms to the Federal Rules of Civil Procedure to address a “discovery crisis” that they define in diametrically opposing terms. Plaintiffs’ attorneys seek a rule that allows for broader discovery, while defense attorneys argue that discovery is already too broad. In the middle of this argument is the Advisory Committee on Federal Civil Rules, which is tasked with revising these rules and has thus far struggled to find a solution to satisfy all parties. In ACS’s latest Issue Brief, Federal Civil Rulemaking, Discovery Reform, and the Promise of Pilot Projects, Professor Brooke Coleman of the Seattle University School of Law examines the failed history of attempted discovery reform and suggests we may find hope for solutions in two pilot projects.

After offering a brief overview of the seemingly byzantine process by which the Federal Rules of Civil Procedure may be amended, Coleman examines the acrimonious history that has plagued previous efforts to reform discovery in the face of criticism from both the plaintiff and defense bars. As Coleman explains, while the two sides disagreed on what was wrong with these reforms, they often agreed that there was a lack of empirical evidence justifying the rule change. Despite the fact that the Advisory Committee “had access to the experience of local state courts that had adopted similar mandatory initial disclosure provisions, it had neither sought out nor utilized any of that empirical evidence.”

Coleman finds some hope for evidence-based reforms in two pilot projects the federal judiciary is currently pursuing. The mandatory initial discovery pilot project, which is underway in the United States District Courts for the District of Arizona and the Northern District of Illinois, requires parties making mandatory initial discovery responses in litigation under the pilot project to “disclose both favorable and unfavorable information that is relevant to their claims or defenses regardless of whether they intend to use the information in their cases.” Discovery deadlines are also accelerated under the pilot program, and encourages early intervention by judges to resolve discovery disputes that could otherwise lead to costly motions practice. Coleman notes that, “[f]ully aware that plaintiffs and defendants do not agree on the exact parameters of discovery reform, the pilot project attempts to build consensus around fairness and transparency.”

The second pilot project, which has not yet begun, seeks to reduce litigation costs and delays through expedited procedures that, among other things, strictly limit the time allocated for discovery, set deadlines for the court’s disposition of motions, and require courts to set and hold firm trial dates. This pilot is not necessarily testing potential rule changes, but rather attempting to demonstrate the value of active case management in an effort to foment a cultural change within federal courts.

Coleman believes these two projects demonstrate a willingness on the part of the Advisory Committee to both innovate and be responsive to the criticisms of all parties subject to the rules. Most importantly perhaps, she finds hope in the fact that, “[s]tarting the pilot projects smack dab in the middle of discovery [ ] demonstrates that the committee—while more recently accused of being too timid—is not afraid to wade into controversial waters.” Her hope, in the end, is that these pilot projects could provide the empirical data and anecdotal experiences necessary to justify and achieve broad consensus on future rule changes.

Why Brown v. Board of Education Still Matters

Linda Brown, who passed away early last week, became the most famous school-age child in American history when, in September 1950, her father, Oliver, attempted to enroll her at the all-white Sumner School in Topeka, Kansas. Although the Browns lived just a few blocks from Sumner, Linda was not permitted to attend school with white children. The Browns lived in an integrated neighborhood and played with white children who attended Sumner. But, like all black children, Linda was required by law to attend the all-black Monroe School, located about a mile and a half further away. Linda literally walked by Sumner to catch a bus, if it showed up, to get to Monroe. If not, Linda would walk to Monroe, whether in the bitter cold of winter or the oppressive heat of late summer. Less than a year later, Oliver Brown would take the witness stand in a federal courtroom after the NAACP Legal Defense Fund, which had been carefully recruiting African American plaintiffs around the country to challenge racial segregation in elementary and secondary public education, made him the principal litigant in what would become, less than three years later, the most famous case ever decided by the Supreme Court.

Since that historic moment in the early afternoon of Monday, May 17th, 1954, when Chief Justice Earl Warren announced the Court’s unanimous judgment and opinion in Brown v. Board of Education (1954), generations of trees have given their lives to a still-ongoing debate over Brown was correctly decided, whether it mattered then and matters now and what the decision said about the possibilities and limits of judicial power. Naturally, criticism from the editorial pages in the seventeen Southern and border states that required racial segregation in public education was almost uniformly critical, with the exception of moderate progressives like Ralph McGill of the Atlanta Constitution and a few others who noted that, for all the bluster coming from unreconstructed segregationists throughout the region, the Court’s decision was moderate in tone and order. No immediate desegregation was required, noted McGill, and the decision did not mean that “Negro and white children” would attend school together in the fall. Warren concluded his reading of Brown by announcing that the Court would hear new arguments during the October 1954 Term on how to implement the ruling. Not by accident, the Court did not even hear arguments in Brown IIuntil April 1955 and would not hand down its decision until six weeks later, towards the very end of the term. In a nod to the South’s “unique culture,” the Court substituted original draft language in the opinion requiring de-segregation at the “earliest practicable date” to “all deliberate speed.” We all know how that turned out.

But it was not just the editorial pages and governors of the Jim Crow states that condemned Brown as wrong as a matter of law and wrong as a matter of history. Elite legal academics and prominent newspaper columnists in the North, such as James Reston of the New York Times, faulted the Court for rejecting “history, philosophy and custom” and instead relying on “the social scientists than on legal precedents.” In what would become a common refrain among Brown’s “respectable” critics in the coming years, Reston wrote that the Court “insisted on equality of the mind and heart rather than on equal school facilities. . . . [t]he Court’s opinion read more like an expert paper on sociology than a Supreme Court opinion.” In 1959, just as massive resistance to Brown was beginning to wane and the South would begin the slow process of desegregation, the noted Columbia law professor Herman Wechsler – certainly no segregationist – criticized the Court’s decision in a famous and influential law review article for failing to rely on what he called “neutral principles of constitutional law.”

All this criticism of Brown misses the point of what that case was really about. It was not about whether elementary and secondary public education for African Americans met the “separate but equal standard” of Plessy v. Ferguson, a rule the Court rejected in Brown as it applied to public education but a decision it failed to overturn outright.  It was not about whether the “framers” of the Fourteenth Amendment intended to bar segregated public schools, evidence for which the Court ruled in Brown was “inconclusive.”  Congress did not have a single African American member when it approved the Fourteenth Amendment in June 1866. No state legislature counted an African American among its ranks in July 1868, not even those that formed the necessary three-fourths for ratification. Only a nation so steeped in white supremacy as a cultural and legal norm could pretend that somehow the meaning of African American citizenship and the rights stemming could and should be defined by the institutions that deliberately had established a racial caste system that placed blacks at the bottom. No, what Brown was about was far more fundamental: it was about the right of black children to attend school. Period. Not, equal schools. But school.

Until Brown and then for many years after, particularly in Southern states, black children did not attend public school at the same rate as whites. The persistence of racially and economically exploitative sharecropping economies meant that black children were needed in the fields during the fall and spring, and that meant that school attendance, especially in rural communities in the most oppressive Southern states such as Mississippi, Alabama, Georgia, Louisiana, Florida and South Carolina, was limited to the winter months. Truant officers knew better than to inquire about the whereabouts of black school-age children in such areas because it was the dominant agricultural interests, aligned with the politicians deeply aligned with their racial and economic interests, that determined who went to school and who did not. Even in cities that fashioned themselves as moderate or even progressive on race, education for black children was rarely, if ever, within a standard deviation of what white students were receiving. Atlanta, for example, did not establish its first high school for black students until 1924, when it opened Booker T. Washington High School on the city’s Southwest side. Until then, black students in Atlanta, like black students everywhere else in the region, attended schools that served all grades, from early primary through the 9th and 10th grades. Black students did not begin attending high school in significant numbers in the South until well after Brown was decided.

Had the South been even remotely serious about meeting the “separate but equal” rule in Plessy for public education, it would not have been necessary for the white philanthropist Julius Rosenwald to join forces with Booker T. Washington to establish over 5,300 schools for black children between 1912 and 1948 in the former Confederate states and several others outside the region as far west as Oklahoma and as far north as Michigan. The “Rosenwald Schools” provided education to nearly one-third of black school children in the South during this period, mostly in rural areas. Compounding the problem was the near complete disenfranchisement of African American voters throughout the South. Blacks had no voice in Southern politics. And the white economic and political power structure of the region made sure it would stay that way by sanctioning the use of violence to intimidate and even kill without consequence African Americans who believed they should have the right to vote. African Americans who spoke out about their condition could expect to lose their jobs, have bank notes called in or receive informal visits to their home from the Ku Klux Klan and others who operated with the support of law enforcement. Nowhere in the law reviews, the social science journals or the columns of elite opinion-makers was there ever a reference to other, more concrete and powerful forms of resistance to Brown. These included the establishment of White Citizens Councils, first in Mississippi and then in every other Southern state, expressly designed – and, in some cases, funded by state legislatures – to resist Brown and then later, as the civil rights movement progressed, any form of desegregation and, in the ultimate insult, the renewed construction of Confederate memorials on public lands. Post-Brown response in the South also included, in a new twist, the naming new schools and the re-naming of old ones for such Confederate heroes such as Robert E. Lee, J.E.B. Stuart, Jefferson Davis and Nathan Bedford Forrest, the latter, of course, the founder of the Ku Klux Klan. This was not about honoring fallen soldiers or former Confederate presidents and politicians. It was about reminding African Americans who was in charge. And the reluctance of cities, towns and communities throughout the South to take down or, at minimum, to relocate to museums the markers of its Confederate past, as about anything other than placing false honor to a shameful past underscores the unspoken power of white supremacy in our political culture.

All judicial decisions operate on two levels. The first is abstract, a conversation among elites about what this or that constitutional framer meant, what lawmakers intended when they crafted a particular piece of legislation, whether precedent, no matter how ill-conceived, should bind the Court when it considers contemporary and future questions of public import. Too often, the conversation between elites is only between elites, and rarely includes the voices of those affected by a rule that deliberately disadvantages them. That somehow the decision of the Topeka school board to establish a racially segregated school system, one not required by Kansas law, which neither required nor prohibited segregated schools, gives lie to the idea that the status quo simply reflected a neutral principle. Plessy, in affirming the legal codification of American apartheid, reflected the American, not just Southern, belief that African Americans were an inferior class of people who should neither expect nor were entitled to the benefits of full citizenship.

The second level is more concrete and individual. For African Americans, Brown was about much more than just the right of black children to attend school with white children, particularly if that school would have served them if not for a rule requiring segregation. The NAACP LDF’s victory in Brown, after a twenty-year campaign to dismantle racial segregation in public schools, marked the first visible time an elite white institution ruled against the interest of millions of white Americans, more than a few them quite powerful, knowing full well that it would shake the foundations of American culture well beyond the walls of public schools. Brown would offer some hope, considerable hope really, that America was prepared to deliver on the parchment promises of the Constitution, that almost ninety-years after the Civil War the nation, after an entire history of attempting to prevent the education of its black citizenry and then straight-jacketing what little schooling was available to the trades, agriculture and other skills to serve the white economy, was about to change.

No single decision has ever liberated an oppressed or disadvantaged an entire class of persons. The interaction between law, politics and culture is far too complex for such an expectation. But Brown has borne an unusual weight since the Court decided it almost sixty-four years ago. Rather than taking an icepick to Brown for what it should have done or has not done, it should be seen for what it was – the first crack in the legal architecture of American race law. Brown would inspire the legal team representing the women not named Rosa Parks to challenge Montgomery, Alabama’s bus segregation law in federal court. And win. That would form the dual strategies running throughout the burgeoning civil rights movement – that law and direct action were complimentary, not mutually exclusive strategies, and that mass protests against racial segregation had a better chance of succeeding with an affirmative legal foundation in place. Brown allowed nine African American teenagers to attend, for one year anyway, previously all-white Central High School in Little Rock, Arkansas, even if it meant the president of the United States enlisting the 101st Airborne Division and a federalized Arkansas National Guard to do so, further turning the spotlight on racial injustice in the South. Resistance to Brown would affect liberal-minded white students in Southern states that chose to shut down their schools rather than integrate them, and lead many, outraged that the commitment to white supremacy would cost them their chance to finish high school and attend college, to join the Freedom Rides and Sit-Ins of the early 1960s. And there are countless more examples for why Linda Brown’s passing should remind us why the decision bearing her family’s name mattered then and still matters now.

The Census is Too Important to Risk the Addition of a Citizenship Question

While the task of counting our nation’s residents only takes up a few words in Section 2 of Article I and the 14th Amendment of the Constitution, the Census’s impact on the day-to-day lives of Americans is fundamental. Never are the high stakes of a few words in the Constitution and a few minutes spent on a questionnaire once every ten years more apparent than when the Census nears, and debates once again arise over how to count the nation’s population. Last week, the U.S. Secretary of Commerce inserted itself in one of the fiercest such debates in decades by directing the U.S. Census Bureau to add an untested question about U.S. citizenship in the 2020 Census questionnaire.

The mandate to conduct a Census in the U.S. Constitution is found in one of the most egregious original passages in our founding document:  the statement that enslaved persons were to count as 3/5 of one person for the purposes of reapportionment of Congressional seats. This misguided course was corrected with the adoption of the Reconstruction Amendments, leaving in place the requirement that the nation take an actual enumeration of every member of the population, on an equal basis, every ten years.

This directive is critical to the challenges that have been and will be posed to the U.S. Commerce Department’s decision to add a citizenship question to the 2020 Census. Hours after the announcement, California state officials filed suit, arguing that the Bureau had crossed the line and betrayed its Constitutional duty to count the entire nation. The state of California is not alone in its objections, with New York state this week leading a group of 17 states, seven cities and the U.S. Conference of Mayors in a lawsuit against the Census Bureau and Commerce Department.

Decennial Censuses have consistently produced disproportionately large undercounts of many of the same populations who have been the targets of historical discrimination and exclusion, including Latinos, African Americans, and Native Americans and Alaskan Natives. The Census Bureau has traditionally not counted these minority communities as well as others, nor reached their members as effectively.

The addition of a citizenship question comes at an already difficult time, with many Americans increasingly losing faith in the ability of the government to protect private information. In recent months, the Census Bureau has been made aware, thanks to internal briefing from enumerators, that even people who knowingly signed up to provide test responses to Census surveys have expressed fear and unprecedented reluctance to answer sensitive questions honestly over the past year. The Secretary of Commerce heard from bipartisan groups of mayors, business leaders, and even former Census Bureau Directors who opposed the addition of a citizenship question out of concern that its inclusion would diminish Census participation in already-undercounted communities.

On the heels of the many legal challenges the current Administration already faces to policies alleged to be intentionally discriminatory, California and other future plaintiffs will focus on how the discriminatory effect of the adoption of a citizenship question by the U.S. Department of Commerce in the 2020 Census runs counter to its Constitutional duty.

Representation, resources, and even the continued vitality of our democracy hang in the balance as our nation goes to court over the 2020 Census. The stakes are too high to fail, and we will not stay on the sidelines as those with ill-intentioned political motivations aim to jeopardize a fair and accurate count of Latinos and all Americans. Together with partners across the country, we will exhaust all legal and legislative avenues available to provide the Census Bureau with the fix and certainty it needs to uphold the Constitution and tackle its most ambitious task yet, counting the largest American population in history.

Arturo Vargas is the Executive Director of National Association of Latino Elected and Appointed Officials (NALEO) Educational Fund, a national nonprofit organization that strengthens American democracy by promoting the full participation of Latinos in civic life. He also serves as the Executive Director of NALEO, a national membership organization of Latino policymakers and their supporters. Arturo has held these positions since 1994.