The Ninth CIRCUIT COURT of Appeals upheld a district court decision that a public high school publication is not a public forum and that the school could, therefore, accept or reject adv
Trang 1Controversy over the role of government support of the arts arose in the late 1980s with two artists who received NEA funding In 1988 the photographer Andres Serrano received harsh condemnation for his photograph titled Piss Christ, which depicted a plastic crucifix floating in a jar of Serrano’s urine Numerous senators sent letters of protest to the NEA, insisting that the agency cease underwriting vulgar art A second furor arose in 1989 over the work of another photographer, Robert Map-plethorpe, who received NEA support for his work, which depicted flowers, nude children, and homosexuality and sadomasochism
Senator JESSE HELMS (R-N.C.) argued the most vociferously against the NEA choices and introduced legislation to ban funding of “ob-scene or indecent art” (1989 H.R 2788 [codified
at 20 U.S.C.A §§ 953 et seq.) The Helms Amendment, adopted in October 1989, gave the NEA great power and latitude to define obscenity andQUASHalternative artistic visions
To enforce the new amendment, the NEA established an “obscenity pledge,” which re-quired artists to promise they would not use government money to create works of an obscene nature The art world strongly resisted this measure: Many museum directors resigned
in protest, and several well-known artists returned their NEA grants
Two important cases tested the power of the NEA to censor artistic production In Bella Lewitsky Dance Foundation v Frohnmayer, 754
F Supp 774 (C.D Cal 1991), a dance company refused to sign the obscenity pledge and sued on the ground that the pledge was
unconstitution-al A California district court agreed that the pledge violated the First Amendment right to free speech and that its vagueness denied the dance company due process under the FIFTH AMENDMENT
In New School v Frohnmayer, No 90-3510 (S.D.N.Y 1990), the New School for Social Research, in New York City, turned down a grant, claiming that the obscenity pledge acted
asPRIOR RESTRAINT and, therefore, breached the school’s First Amendment rights Before the constitutionality of the prior restraint argument was decided, the NEA released the school from its obligation to sign the pledge
The NEA abolished the obscenity pledge in November 1990, but in its place instituted a
“decency clause” (1990 Amendments, Pub L
No 101-512, § 103(b), 104 Stat 1963[codified
at 20 U.S.C.A § 954(d)]), which required award recipients to ensure that their works met certain standards of decency Failure to comply with this demand could mean suspension of grant payments
Again the art world protested In Finley v NEA, 795 F Supp 1457 (C.D Cal 1992), artists known as the NEA Four—Karen Finley, John Fleck, Holly Hughes, and Tim Miller—sued the NEA over the decency clause A California district court agreed with the artists The Finley court held that the decency clause, like the obscenity pledge, was unconstitutional because its vagueness denied the artists the due process guaranteed by the Fifth Amendment and because its too-general restriction suppressed speech
Books
U.S parents send their children to public schools to receive an education and to learn the fundamental values on which their demo-cratic society is based Conflict ensues when parents believe that certain schoolbooks contain material that is objectionable on political, moral, or religious grounds and should be banned in order to protect their children from exposure to allegedly harmful ideas In some instances school boards have responded by physically removing books from school library shelves In general, advocates of book banning maintain that censorship is warranted to redress social ills, whereas critics believe that freedom of speech is more important and useful to society than imposing values through censorship
Book banning as a way to remedy social problems was first tested by the Supreme Court
in Board of Education v Pico, 457 U.S 853, 102
S Ct 2799, 73 L Ed 2d 435 (1982) In Pico, parents objected to nine books in the high school library, most of which were subsequently removed by the school board The nine books were Slaughterhouse Five, by Kurt Vonnegut Jr.; Naked Ape, by Desmond Morris; Down These Mean Streets, by Piri Thomas; Best Short Stories
of Negro Writers, edited by Langston Hughes; Laughing Boy, by Oliver LaFarge; Black Boy, by Richard Wright; A Hero Ain’t Nothin’ But a Sandwich, by Alice Childress; Soul on Ice, by
ELDRIDGE CLEAVER; and Go Ask Alice, by an anonymous author
Trang 2Pico debated the authority of local school
boards to censor material in the interest of
protecting students The case reached the
Su-preme Court because lower courts were unable to
devise standards for testing the constitutionality
of book removal The Supreme Court ruled that
it is unconstitutional for public school boards to
abridge students’ First Amendment rights by
banning books Although school boards have
the power to determine which books should
sit on library shelves, they do not have the
authority to censor
Books published by commercial presses for
sale to the general public sometimes meet with
harsh condemnation and subsequent action
that could be tantamount to censorship In
November 1990, Simon and Schuster canceled
its contract with author Bret E Ellis to publish
his novel American Psycho, citing the work’s
graphic violence and sexual brutality The
National Writers Union decried the cancellation
as censorship because it was contrary to free
speech and artistic expression The publishing
house defended its editorial judgment by
claiming it did not want to put its imprint
on a book of questionable taste and value
Vintage Books, a division of Random House,
soon acquired the novel, and published it in
March 1991
Students’ Speech
Students’ free speech rights sometimes clash
with schools’ interest in maintaining control of
public education Students’ First Amendment
rights were affirmed by the landmark Tinker v
Des Moines Independent Community School
District, 393 U.S 503, 89 S Ct 733, 21 L Ed
2d 731 (1969), which ruled that public school
students could not be penalized for wearing
symbols, such as black armbands, to protest the
VIETNAM WAR
Two subsequent cases dealing with issues of
censorship in school newspapers pointed to a
more restrictive judicial view of students’ right
to free expression In Hazelwood School District
v Kuhlmeier, 484 U.S 260, 108 S Ct 562, 98 L
Ed 2d 592 (1988), the Supreme Court ruled
in favor of a Hazelwood, Missouri, school
principal who removed several articles from a
student newspaper The articles dealt with teen
pregnancy and a student’s feelings about her
parents’DIVORCE The Court in Hazelwood held
that a school newspaper is not a public forum
and thus granted school officials the right to determine what type of student speech is appropriate and to regulate such speech
Three years later, the ruling in Planned Parenthood v Clark County School District, 941 F.2d 817 (9th Cir 1991), was based on Hazel-wood In Planned Parenthood, a public high school newspaper solicited advertisements from local businesses, including Planned Par-enthood The principal refused to allow Planned Parenthood to place an advertisement in school publications, and Planned Parenthood sued the school district The Ninth CIRCUIT COURT of Appeals upheld a district court decision that a public high school publication is not a public forum and that the school could, therefore, accept or reject advertisements Both Hazelwood and Planned Parenthood concluded that because public high schools are nonpublic forums, school districts can apply a limited degree of censorship
Hundreds of public universities in the United States have speech codes to regulate students’
choice of words Speech can be constitutionally curtailed in some circumstances For example, public COLLEGES AND UNIVERSITIES can forbid threats of violence, prohibit obscene language
A student displays two books that were banned from a local high school’s English classes when parents voiced disapproval
of the content.
AP IMAGES CENSORSHIP 299
Trang 3and conduct (although it is extremely difficult
to define or prove obscenity), and punish students for using defamatory speech against each other, all without violating the First Amendment Numerous cases have successfully contested free speech limitations on campus, suggesting that a majority of these codes are unconstitutional
In Doe v University of Michigan, 721 F
Supp 852 (E.D Mich 1989), a biopsychology student maintained that the university’s speech code prevented him from freely discussing controversial ideas about biologically based differences between the sexes and races A district court ruled that the university’s code proscribed too great a range of speech and, therefore, was an unconstitutional infringement
on the plaintiff’s First Amendment rights The court also held that the overbroad nature of the code denied his due process rights
A University of Wisconsin student was accused of violating the university’s speech codes by yelling rude comments at a woman
In U.W.M Post, Inc v Board of Regents, 774 F
Supp 1163 (E.D Wis 1991), the university’s speech code was also struck down as overbroad
Two years later, school officials punished fraternity brothers at GEORGE MASON University for dressing in drag and staging an“ugly woman contest.” In Iota X Chapter v George Mason University, 993 F.2d 386 (1993), the Fourth Circuit found that the university had violated the First Amendment because it did not sanction the fraternity merely for its conduct, but rather for the message conveyed by the
“ugly woman contest,” which ran counter to the views the university sought to foster
The Internet and Computer-Related Technologies
Computer-mediated communication grows sharply every year and in some ways outpaces and obviates current legal principles The prevailing concept of law applies to real-world events and transactions, and, as those in the legal field are realizing, may unravel when exercised in cyberspace As more and more people transmit widely divergent messages on the electronic highway, issues of free speech and censorship become increasingly complicated and regulations difficult to enforce
The first case of criminal prosecution
of electronic communication involved the
distribution of pornography over an electronic bulletin board system (BBS) In United States
v Thomas, No CR-94-20019-G (W.D Tenn 1994), Robert Thomas and Carleen Thomas were found guilty of disseminating obscene materials by interstate telephone lines and computer From their home in California, the Thomases ran an adults-only private BBS from which subscribers could download computer graphics files and order sexually explicit photo-graphs and videotapes while online To gather evidence against the couple, a Memphis postal inspector, under an assumed name, down-loaded to his computer many of the porno-graphic electronic files and ordered tapes The Thomases were charged with, among other actions, transporting obscene materials across state lines The couple attempted to transfer their case to the Northern District of California, so that their materials would be measured against that community’s standards
of obscenity, rather than the obscenity stan-dards of the Western District of Tennessee The district judge denied their request, noting that
in obscenity prosecutions the trial can be held either in the district from which the material was sent or the one in which it was received Similar INTERNET and censorship issues regarding CHILD PORNOGRAPHY were raised in the April 2009 case involving a 38-year-old employee of the Seattle Children’s Theatre (SCT) William Edgar Hoke was accused of obtaining child pornography from an interna-tional Internet bulletin board on which mem-bers exchanged pornographic images Tipped off by European Union authorities, the U.S Postal Inspection Office began investigating the site in 2007, and it determined some 545 members were registered with the Internet business This investigation led U.S authorities
to Hoke, who had used his home computer and the one at the theater to access the bulletin board The SCT cooperated with the investiga-tion, explaining that its employees undergo a background check and must sign a contract regarding the theater’s policy concerning con-duct with minors
The “virtual” nature of cyberspace poses a number of problems for courts and legislatures
on the issue of obscenity Among the most difficult of these is the issue of community standards Because the Internet brings together people from all over the United States and all
Trang 4over the world, it defies identification with any
particular community Other difficulties are
connected to the criminal element of knowledge
and the issue of dissemination Persons may
post and receive information on Internet
bulletin boards without the knowledge of those
who maintain the BBS, making it difficult
to determine whether the BBS operators
“knowingly disseminated” obscene materials
Congress has attempted to restrict the
dissemination of indecent material found on
the Internet, but several of these efforts have
been struck down by the Supreme Court In
1996 Congress passed the Communications
Decency Act (CDA) in an effort to regulate
content found on the Internet to protect
children from harmful content However, in
Reno v ACLU, 521 U.S 844, 117 S Ct 2329,
138 L Ed 2d 874 (1997), the Court struck the
statute down, holding that law was overbroad
and constituted a content-based blanket
restric-tion on speech
In 1998 Congress enacted the Child Online
Protection Act (COPA), which was a direct
response to the Court’s 1996 decision COPA
made it illegal to use the World Wide Web to
communicate “for commercial purposes” any
material considered to be“harmful to minors.”
The law also incorporated the three-part
obscenity test that the Supreme Court
formu-lated in Miller v California Several parties
challenged the statute, leading to the Court’s
opinion in Ashcroft v American Civil Liberties
Union, 535 U.S 564, 122 S Ct 1700, 152 L Ed
2d 771 (2002) The confusing decision, which
produced five separate opinions, offered little
solid guidance about the appropriate standard
to judge whether a statute overly restricts
Internet content The Court remanded the case
for a full examination of the law on all issues
A month later, the Court in Ashcroft v Free
Speech Coalition, 535 U.S 234, 122 S Ct 1389,
152 L Ed 2d 403 (2002) ruled that the definition
of “child pornography” in the Child
Pornogra-phy Prevention Act (CPPA), 18 U.S.C.A § 2256
was overbroad The CPPA defined child
por-nography to include not only real children but
also virtual representations of children The
Court concluded that allowing such a broad
definition could lead to regulation of protected
works, such as William Shakespeare’s Romeo
and Juliet and the Academy Award winning film
American Beauty, both of which contain story
lines of minors having sex
The U.S government has long been con-cerned about the impact of emerging tech-nologies on its ability to regulate undesirable communications Given the invention of radio and telephonic communications during the late nineteenth century and the nascent develop-ment of television during the late 1920s and early 1930s, Congress passed the Communica-tions Act of 1934 (47 U.S.C §§ 151 et seq.), which created the Federal Communications Commission (FCC) to help oversee this area
of the law The successor to the Federal Radio Commission, the FCC is charged with regulat-ing interstate radio, television, wire, wireless, satellite, and cable communications, as well as all international communications that originate
or terminate in the United States The FCC’s jurisdiction extends to all 50 states, the District
of Columbia, and United States possessions
The FCC is independent of theEXECUTIVE BRANCH
and is directly responsible to Congress
At a high level, the FCC is responsible for the orderly development and operation of broadcast services, provision of rapid and efficient communication services at reasonable rates, promotion of competition among com-munication providers, and strengthening of national defense The commission’s primary tools include the power to issue and revoke broadcast licenses, make rules, investigate and adjudicate disputes, issue orders, and publish findings The FCC’s Office of Strategic Planning and Policy Analysis is charged with the duty of staying abreast of technological developments in the marketplace and devising strategies to make sure the law adapts to those developments
FURTHER READINGS Bussian, James R 1995 “Anatomy of the Campus Speech Code: An Examination of Prevailing Regulations ” South Texas Law Review 36 (February).
Butler, Deborah A 1992 “Planned Parenthood of Southern Nevada v Clark County School District: The Evolution
of the Public Forum Doctrine ” Wayne Law Review 38 (summer).
Byassee, William S 1995 “Jurisdiction of Cyberspace:
Applying Real World Precedent to the Virtual Com-munity ” Wake Forest Law Review 30 (spring).
“The Call to Campus Conduct Policies: Censorship or Constitutionally Permissible Limitations on Speech ”
1990 Minnesota Law Review 75 (October).
Couvares, Francis G., and Charles Musser 1996 Movie Censorship and American Culture Washington, D.C.:
Smithsonian Institution Press.
Foerstel, Herbert N 2002 Banned in the U.S.A.: A Reference Guide to Book Censorship in Schools and Public Libraries.
Rev ed Westport, CT: Greenwood Press.
CENSORSHIP 301
Trang 5Kolbert, Kathryn, and Zak Mettger 2002 Justice Talking:
Censoring the Web: Leading Advocates Debate Today’s Most Controversial Issues New York: New Press.
Lambe, Jennifer L 2008 “The Structure of Censorship Attitudes.” Communication Law and Policy Autumn.
Madved, Lory 1992 “Protecting the Freedom of Speech Rights of Students: The Special Status of the High School Library ” Capital Univ Law Review 21 (fall).
Orbach, Barak Y 2009 “Prizefighting and the Birth of Movie Censorship ” Yale Journal of Law and the Humanities.
Summer.
Schlegel, Julia W 1993 “The Television Violence Act of 1990: A New Program for Government Censorship? ” Federal Communications Law Journal 46 (December).
Strossen, Nadine 1996 Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights New York:
Anchor Books.
Walker, Michael W 1993 “Artistic Freedom v Censorship:
The Aftermath of the NEA ’s New Funding Restrictions.”
Washington Univ Law Quarterly 71 (fall).
CROSS REFERENCES Art Law; Child Pornography; Entertainment Law; First Amendment; Freedom of Speech; Freedom of Press; Movie Rating; Prior Restraint; Schools and School Districts.
CENSURE
A formal, public reprimand for an infraction or violation
From time to time deliberative bodies are forced to take action against members whose actions or behavior runs counter to the group’s acceptable standards for individual behavior In the U.S Congress, that action can come in the form of censure Censure is a formal and public condemnation of an individual’s transgressions
It is stronger than a simple rebuke, but not as strong as expulsion Members of Congress who have been censured are required to give up any committee chairs they hold, but they are not removed from their elected position Not surprisingly, however, few censured politicians are re-elected
While censure is not specifically mentioned
in the U.S Constitution, Congress has the right
to adopt resolutions, and a resolution to invoke censure falls into this category The first use of censure was actually directed not at a member
of Congress but at a member of George Washington’s cabinet ALEXANDER HAMILTON, Washington’s treasury secretary, was accused
of mishandling two congressionally authorized loans Congress voted a censure resolution against Hamilton The vote fell short, but it established censure as a precedent In general, each house of Congress is responsible for invoking censure against its own members;
censure against other government officials is not common, and censure against the president is rarer still
Because censure is not specifically men-tioned as the accepted form of reprimand, many censure actions against members of Congress may be listed officially as rebuke, condemna-tion, or denouncement The end result,
howev-er, is the same, and to all intents and purposes these are censure measures At the same time, each censure case is different, and those delivering censure like to have enough leeway
to tailor the level of severity Still, the prospect of
an open, public rebuke by one’s peers is painful even for the most thick-skinned politician
Noteworthy Censure Cases
Among the best known censure cases in Congress were the 1811 censure of Massachu-setts senator Timothy Pickering for reading confidential documents in Senate sessions and the 1844 censure of Ohio senator Benjamin Tappan for releasing a confidential document to
a major newspaper Perhaps one of the more colorful censure motions was the 1902 censure
of South Carolina’s two senators, Benjamin R Tillman and John L McLaurin On February 22,
1902, they began fighting in the Senate chamber Both men were censured and sus-pended for six days (retroactively)
Probably the most infamous censure case was the condemnation of Senator JOSEPH R
MCCARTHY(R-Wisc.) in 1954 McCarthy took the national stage at the height of the anti-Communist movement followingWORLD WAR II McCarthy spent several years making claims that known Communists had infiltrated the U.S government, and although he never offered proof of even one claim, his crusade was popular and powerful Many Americans from all walks of life saw their lives destroyed in the early 1950s by groundless accusations of com-munist sympathies His power unchecked, McCarthy became even more relentless, and in
1954 when he openly attacked members of the Eisenhower administration in televised hearings His colleagues realized they had no choice but to act A censure committee was formed, and McCarthy as much as accused its members of being Communists The vote to condemn McCarthy passed 65 to 22 on December 2, 1954 Robert Torricelli (D-N.J.) was found guilty
in 2002 of taking illegal gifts and cash payments
Trang 6from a businessman and not reporting them.
The businessman got help from the senator in
LOBBYING the government Although Torricelli
denied the charges, his colleagues found the
evidence compelling enough to “severely
ad-monish” him While not called a “censure,” this
reprimand clearly had the same effect
Torri-celli, who was up for reelection, saw his
popularity plunge in a matter of weeks, and
on September 30, 2002, he withdrew from the
race
Presidential Censure
Congress rarely acts against the president with a
formal reprimand.ANDREW JACKSONwas the first
president to be thus reprimanded, by the Senate
in 1834, after he removed the secretary of the
treasury (a responsibility that Congress believed
rested with the legislature) Jackson was a
Democrat, but the Senate was controlled by
the rivalWHIG PARTY Three years later, when the
Democrats took control of the Senate, Jackson’s
censure was expunged from the records
President JOHN TYLER was reprimanded in
1842 by the House of Representatives, which
accused him of abusing his powers Apparently
Tyler had promised representatives on several
occasions that he would support certain bills,
only toVETOthem when they arrived at his desk
In 1848, President JAMES K POLK was
repri-manded by the House for starting the Mexican
War without first obtaining Congressional
approval In 1864, President ABRAHAM LINCOLN
and his secretary of war, EDWIN STANTON, were
condemned by the Senate for allowing an
elected member of the House to hold
commis-sions in the Army The Senate voted for the
reprimand 24 to 12, but it was referred to a
special committee and no further action was
taken
In 1998, during the IMPEACHMENT trial of
PresidentBILL CLINTON, several members of
Con-gress attempted to have him censured instead,
believing that while his behavior warranted
rebuke it did not merit a full impeachment
The move for censure failed, and Clinton was
impeached
FURTHER READINGS
Congressional Quarterly “Congressional Ethics: History,
Fact, and Controversy ” 1992 Washington, D.C.:
Congressional Quarterly.
Thompson, Dennis F 1995 Ethics in Congress: From
Individual to Institutional Corruption Washington,
D.C.: Brookings Institution.
U.S House of Representatives Committee on Standards of Official Conduct Available online at http://ethics.house.
gov (accessed August 29, 2009).
CROSS REFERENCES Congress of the United States; Impeachment.
CENSUS
A census is an official count of the population of a particular area, such as a district, state, or nation
The U.S Constitution requires that a census
of the entire population, citizens and nonciti-zens alike, be made every ten years (Article I, Section 2, Clause 3) The FOURTEENTH AMEND-MENTto the Constitution directs that the census will be used to determine the number of members of the U.S House of Representatives from each state The census is conducted by the U.S Census Bureau, an agency established in
1899 within the U.S.COMMERCE DEPARTMENT The data gathered by the U.S Census Bureau are used by the states to draw boundaries for congressional and state legislative districts, and
by local governments to establish districts for other representative bodies such as county legislatures, city councils, and boards of super-visors
Census data are also used to allocate federal and state funding and services By the mid-1990s more than $50 billion in federal aid for education, housing, and health programs to states and cities was distributed annually based
on census numbers In addition, census infor-mation is used in academic research and is sought by product manufacturers and market-ers who want to know the demographics of potential consumers
The first U.S census took place in 1790 when some 600 U.S marshals went door-to-door counting approximately 3.9 million people The 1790 census consisted of fewer than ten questions, which for each household included the name of the head of the family, the number of free white males over and under 16 years of age, the number of free white females, the number of all other free persons, and the number of slaves
The 1890 census counted 63 million U.S
citizens and reflected a dramatic increase in
IMMIGRATION, urbanization, and industrializa-tion That census showed that for the first time fewer than half of all U.S workers were employed on farms The 1890 census included
CENSUS 303
Trang 7questions regarding military service during the Civil War, number of years in the United States,
NATURALIZATION status, reading and writing ability, and mental and physical disabilities
By 1980 the Census Bureau conceded that the decennial censuses were undercounting portions of the population, usually low-income and minority groups in the inner cities In follow-up surveys after the 1980 census, the bureau determined that it had missed some 3.2 million persons, or 1.4 percent of the popula-tion For example, a 1986 post-census survey of East Los Angeles estimated that the 1980 census missed about 10 percent of the Latino commu-nity, 7 percent of the Asian commucommu-nity, and
9 percent of the African American community
Census officials determined that overall, nearly
6 percent of the African American and Hispanic populations were uncounted and less than
1 percent of the white population
By May 1987 the Census Bureau had determined that the 1990 census could be adjusted for undercounting by using a tech-nique called a post-enumeration survey (PES)
The PES would allow the census to be checked for accuracy by sending census takers back to a given number of households that would be representative of the entire U.S population and comparing the information gathered with the initial head count If discrepancies arose, the bureau could make corrections and project them to neighborhoods with similar demo-graphic characteristics
But in October 1987 officials from the Commerce Department, which oversees the
Census Bureau, decided against making any statistical adjustment to the 1990 census As a result, in 1988 New York, Los Angeles, and several other cities, as well as a number of states and organizations, brought suit in federal district court They claimed that the secretary’s decision not to adjust the 1990 census violated their right
toEQUAL PROTECTIONunder theFIFTH AMENDMENT
to the Constitution and asked the court to enjoin the census They also argued that the Commerce Department’s actions were politically motivated by a Republican administration that realized that the undercounted population is historically Democratic The defendants moved
to dismiss the complaint, contending that the secretary’s decision was not subject to JUDICIAL REVIEW In City of New York v United States Department of Commerce (713 F Supp 48 [E.D.N.Y 1989]), the district court denied the motion to dismiss, holding that the plaintiffs had standing (the LEGAL RIGHT) to challenge the census on constitutional grounds and that the court could review the secretary’s decision Following the district court’s decision, the parties entered into a stipulation in July 1989 by which plaintiffs would withdraw their motion
to enjoin the census and the Commerce Department would reconsider its 1987 decision not to adjust the 1990 census The agreement required the Commerce Department to conduct
a PES of not fewer than 150,000 households as part of the 1990 census in order to produce corrected counts usable for congressional and legislative reapportionment and redistricting The agreement also required the department to develop guidelines under which the secretary would assess any proposed adjustment In March 1990, the Commerce Department issued final guidelines The plaintiffs challenged them
in court on the grounds that they were impermissibly vague and were biased against any adjustment to the 1990 census In City of New York (739 F Supp 761 [E.D.N.Y 1990]), the district court held that the guidelines satisfied the defendants’ obligations under the
1989 stipulation The Census Bureau then began the 1990 census
The 1990 census employed more than 425,000 workers who gathered information on
an estimated 250 million people in 106 million households For the first time, the Census Bureau combined technology with traditional door knocking, using coast-to-coast computer-ized maps of all 7.5 million census tracts in the
Census workers in a
Phoenix, Arizona,
data capture center.
For the 2000 Census,
the bureau planned to
hire 850,000
temporary employees
to assist its
6,000 permanent
employees.
U.S CENSUS BUREAU
Trang 8United States The bureau predicted that these
maps would reduce the number of errors
caused by census workers’ reliance on outdated
state and local maps The census cost some
$2.6 billion—65 percent more than the 1980
census—making it the most expensive count
ever conducted
In March 1990 the bureau mailed or hand
delivered more than 106 million questionnaires,
one to every household in the United States
Most households received a short form
consisting of 14 questions covering personal
characteristics and housing One in six U.S
households received a long form with 45
addi-tional questions on topics such as utilities, tax,
MORTGAGE, and rent payments; place of birth;
ethnic origin; and work habits From March to
June 1990, census workers continued the data
collection The bureau set aside March 20, 1990,
as homeless night On that night, census takers,
many hired from among the homeless
popula-tion or those who worked with them, visited
shelters and low-cost motels from 6:00 p.m to
midnight; counted homeless people on the
streets from 2:00 a.m to 4:00 a.m.; and from
4:00 a.m to 6:30 a.m stood outside abandoned
buildings, counting those who emerged
The homeless count caused a great deal of
controversy The 1990 census reported 228,600
homeless persons in the United States,
com-pared with earlier estimates of 500,000 to
3 million Advocates for homeless persons argued
that the Census Bureau had surveyed only
one-third of the country’s cities and counties and
had visited only a limited number of locations
The bureau acknowledged that its workers had
avoided actually going into hideaways such as
abandoned buildings and dumpsters because of
safety concerns and admitted that many winter
shelters had closed by the time the census was
taken in late March The bureau maintained
that its homeless survey was not intended to
produce a definitive count of the homeless
population
In October 1990 the Census Bureau issued
estimated U.S population figures of
approxi-mately 254 million, based on a tracking of birth,
death, and immigration records In December
the bureau released a final U.S population tally
of some 249 million, based on the actual mailed
census questionnaires and house-to-house
interviews The discrepancy between the two
sets of numbers indicated that the 1990 census missed some five million U.S residents
By December 31, 1990, the bureau reported
to the president population figures for each state as well as the number of seats in the U.S
House of Representatives that each state would receive Between January and March 1991, states with early deadlines for redrawing legislative districts received totals of all persons
of voting age, broken down by race By April 1,
1991, most other states received the voting age and race data Between April 1991 and 1993, the Census Bureau released statistics compiled from the long forms, including information on income, marital status, disabilities, types of housing, and education
In April 1991 the bureau announced the results of its PES Estimates drawn from the PES revealed that the census had resulted in a national undercount of 2.1 percent, or approxi-mately 5.3 million persons out of a total population of approximately 255 million, the largest undercounting in the history of the census For example, in one south central Los Angeles neighborhood, officials determined that census takers had underreported the number of occupants in 38 percent of 5,800 households As expected, the undercount was greater for mem-bers of racial and ethnic minorities Hispanics were undercounted by 5.2 percent, Native Americans by 5.0 percent, African Americans
by 4.8 percent, and Asian Pacific Islanders by 3.1 percent The PES-calculated undercount for non-African Americans was 1.7 percent and for non-Hispanic whites, 1.2 percent Among major cities with high undercounts were Los Angeles (5.1 percent), Houston (5 percent), Washington, D.C (5 percent), Dallas (4.8 percent), Miami (4.6 percent), Detroit (3.5 percent), and New York (3 percent)
Among the reasons given for the low counts were that certain segments of the population did not believe the Census Bureau’s promise that information is confidential and will not be shared with other government agencies such as the Immigration and Naturalization Service (INS), the local housing authority, or the police;
did not have addresses and thus were missed because the 1990 census was conducted pri-marily by mail; lived in urban high-crime areas where census takers were afraid to go door-to-door; were illegal immigrants; feared the
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Trang 9government in general; or lacked proficiency in English
According to the bureau, if the adjusted count were adopted, Arizona and California would each gain a seat in the House of Representatives and Wisconsin and Pennsylva-nia would each lose one seat These discrepan-cies led state officials to renew theirPLEAfor an adjustment of the census using the PES
In July 1991 Secretary of Commerce Robert
A Mosbacher announced his decision not to adjust the 1990 census to account for the estimated five million people undercounted by the census Mosbacher said that although he was troubled by the undercount of minorities, his decision supported the integrity of the census and that the resulting disadvantage to minorities should not be remedied in the official census He also expressed concern that adjustment might not improve distribution of representatives among the states and that uncertainty as to the methods of adjustment
and assumptions behind them might cause even more dispute about the accuracy of the census The plaintiffs in Wisconsin v City of New York (517 U.S 1, 116 S Ct 1091, 134 L Ed 2d
167 [1996]) attacked the secretary’s decision, contending that it was tainted by partisan political influence and violated the Constitu-tion, theADMINISTRATIVE PROCEDURE ACT OF1946, and the 1989 stipulation agreed to by both parties in the case After a 13-day bench (non-jury) trial, the district court concluded that it could not overturn the secretary’s decision (City of New York, 822 F Supp 906 [E.D.N.Y 1993]) On appeal, the court of appeals
conclud-ed that, given the admittconclud-edly greater accuracy of the adjusted count, the secretary’s decision was not entitled to be upheld without a showing by the secretary that the refusal to adjust the census was essential to the achievement of a legitimate government objective (City of New York, 34 F.3d
1114 [2d Cir 1994]) On appeal, the Supreme Court reversed the decision of the Second Circuit, holding that the secretary’s decision not to adjust the census was within the
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
SOURCE: U.S Census Bureau, National Population Projections, based on Census 2000.
0.0 10.0 20.0 30.0 40.0 50.0 60.0 70.0
White Black American Indian, Alaska Native Asian, Native Hawaiian, other Pacific Islander Hispanic Origin
2010 a
Projected totals for each given year may not add to 100 because graph does not account for persons of more than one race.
64.7
12.2
0.8 4.7 15.8
2015
62.4
12.3
0.8 5.1 17.4
2020 5.5
60.1
12.3
0.8 19.1
2025 5.9
57.8
12.2
0.8 20.8
Census
Trang 10government’s discretion ( _ U.S _, 134 L.
Ed 2d 167, 116 S Ct 1091 [1996])
By October 1991 at least five state
legisla-tures had filed requests under the FREEDOM OF
INFORMATION ACT (FOIA) (5 U.S.C.A § 552 et
seq.) to see the adjusted census figures in order
to decide which set of numbers should be used
to redraw state political boundaries Secretary
Mosbacher refused to make the adjusted
numbers public, claiming they were flawed
and their release could disrupt the redistricting
process In Assembly of California v United
States Department of Commerce (797 F Supp
1554[E.D Cal 1992]), California state officials
brought an action under the FOIA to enjoin
the Commerce Department from withholding
computer tapes containing statistically adjusted
census data for California The department
claimed that the information was protected
from disclosure under an exemption to the
FOIA But the district court said the exemption
did not apply to the census data and ordered the
Commerce Department to release the tapes The
court of appeals affirmed the district court’s
order to release the tapes (Assembly of California,
968 F.2d 916[9th Cir 1992])
In a similar case, the U.S Court of Appeals
for the Eleventh Circuit reached the opposite
result In Florida House of Representatives v
United States Department of Commerce (961
F.2d 941[11th Cir 1992]), the Florida House of
Representatives brought a FOIA action to
compel the Commerce Department to release
all the adjusted census data for Florida The
district court granted SUMMARY JUDGMENT for
Florida and the Commerce Department
appealed (Florida House of Representatives, No
TCA 91-40387-WS [N.D Fla 1992]) The
Eleventh Circuit reversed, finding that the
census data were exempted from disclosure
under the FOIA The U.S Supreme Court
declined to review the case (Florida House of
Representatives, 506 U.S 969, 113 S Ct 446, 121
L Ed 2d 363 [1992])
In light of the controversy over the 1990
census, government officials and demographers
debated how best to conduct the census in 2000
and later Many demographers argued that the
U.S population had become too mobile and too
uncooperative to allow reliance on
mail-in-surveys and door-to-door interviews An increase
in the number of non-English speakers,
un-documented immigrants, and homeless persons
makes census taking more difficult and resi-dents will become more diverse and less tolerant
of government intrusion in the future The American Statistical Association urged the government to use scientific sampling surveys
to estimate the population that has been the most difficult to count
In preparation for the 2000 census, the bureau conducted a test census in the spring of
1995 at three sites—Paterson, New Jersey;
Oakland, California; and six parishes in north-western Louisiana The sites were selected because of their ethnic diversity and their large number of multi-dwelling housing units In Paterson, the bureau experimented with a multimedia kiosk, which allowed residents to answer census questions by touching a screen In Oakland, all identified households were sent a census form and blank forms were also made available at libraries, post offices, and the state
DEPARTMENT OF MOTOR VEHICLES The bureau also experimented with using statistical samples from random surveys to estimate total population
From these test projects the Census Bureau announced that it would use statistical sampling
to take into account historically undercounted populations These populations included mi-norities, renters, children, poor persons, and illegal ALIENS Although the American Statistical Association supported this approach as a valid methodology, the announcement set off a political firestorm Congressional Republicans, worried that sampling would lead to congres-sional APPORTIONMENT that favored the DEMO-CRATIC PARTY, filed a lawsuit challenging the constitutionality of the proposed practice
The Supreme Court, in Commerce Dept v
U.S House of Representatives (525 U.S 316, 119 S.Ct.765, 142 L Ed 2d 797[1999]), ruled, in a 5–4 decision, against the use of statistical sampling, holding that the 1976 amendments
to the Census Act (1954) prohibit the use of statistical sampling for purposes of population head counts Justice Sandra Day O’Connor, writing for the majority, stated that there had been over two hundred years of history“during which federal census statutes have uniformly prohibited using statistical sampling for con-gressional apportionment.”
The 2000 census revealed that the U.S
population had grown to approximately
281 million There was little public controversy over the results, a sharp contrast to the 1990
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