101 S. Ct. 799. ,Hugh L. CAREY, Edward I. Koch, Alan Chou, Rose L. Dawson, Shmuel Lefkowitz, Michael Loizou, Edwin Martinez, Walter E. Marx, Brunilda Pacheco, Lamuel Stanislaus, The State of New York, and The City of New York, Plaintiffs, v. Philip M. KLUTZNICK, Secretary of Commerce, Vincent P. Barabba, Director, Bureau of the Census, William F. Hill, Regional Director, New York Region, Bureau of the Census, Richard Bitzer, Acting Assistant Regional Director, New York Region, Bureau of the Census, Arthur G. Dukakis, Regional Director, Boston Region, Bureau of the Census, United States Department of Commerce, Bureau of the Census, Jimmy Carter, President of the United States, Edmund L. Henshaw, Jr., Clerk of the United States House of Representatives, Defendants" />

Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

CAREY v. KLUTZNICK

December 22, 1980

Hugh L. CAREY, Edward I. Koch, Alan Chou, Rose L. Dawson, Shmuel Lefkowitz, Michael Loizou, Edwin Martinez, Walter E. Marx, Brunilda Pacheco, Lamuel Stanislaus, The State of New York, and The City of New York, Plaintiffs,
v.
Philip M. KLUTZNICK, Secretary of Commerce, Vincent P. Barabba, Director, Bureau of the Census, William F. Hill, Regional Director, New York Region, Bureau of the Census, Richard Bitzer, Acting Assistant Regional Director, New York Region, Bureau of the Census, Arthur G. Dukakis, Regional Director, Boston Region, Bureau of the Census, United States Department of Commerce, Bureau of the Census, Jimmy Carter, President of the United States, Edmund L. Henshaw, Jr., Clerk of the United States House of Representatives, Defendants



The opinion of the court was delivered by: WERKER

Plaintiffs *fn1" commenced this suit against several defendants including the Bureau of the Census *fn2" to obtain declaratory and permanent injunctive relief requiring the defendants to adjust census figures for New York City and New York State in a manner that would reflect more accurately their true populations. Plaintiffs seek this relief on the ground that Census Bureau mismanagement of the census in New York further exacerbated what normally is a substantial undercount of the New York population. This action having been tried on the merits before the Court on November 12-14 and 17-21, 1980, and all the evidence having been duly considered, judgment is rendered for plaintiffs. Pursuant to Fed.R.Civ.P. 52(a), my findings of fact and conclusions of law follow.

FINDINGS OF FACT

 THE METHODOLOGY OF THE 1980 CENSUS

 The budget for the 1980 decennial census was approximately $ 1,008,000,000 for the full ten-year period preceding the census and approximately $ 670,000,000 for 1980. Tr. at 1116. The methodology of the 1980 census is set forth in numerous Census Bureau manuals. See Defendant's Ex. 22. Briefly, the census was to be carried out by a mail-out, mail-back procedure. Respondents were to provide the Census Bureau with information concerning the number of persons within their household. Several follow-up procedures designed to detect persons and households who were missed in the original count either because a form was never sent to them or because they failed to return a form also were planned. Finally, there were to be certain last resort techniques and other imputations made by the Census Bureau to complete the count. In order to accomplish the proposed procedures, approximately 270,000 persons were temporarily employed by the Bureau across the nation to supplement the staff of several thousand permanent Bureau employees. Tr. at 1115.

 In large cities, mailing lists were compiled from address lists purchased from commercial mailing firms. In outlying areas the Bureau utilized a pre-list procedure whereby enumerators went out to the field and listed every housing unit in a given area. Tr. at 1128-29. It was anticipated that the commercial mailing lists would be incomplete so the Bureau designed procedures to improve the quality of the lists. There were to be three Post Office checks and a precanvass check by enumerators. Id. at 1129. "After the (Advance) Post Office check, all of the postal corrections were (to be added) to the list, and the list was then (to be) geocoded ...." *fn3" Id. at 1131.

 Based on the address lists so compiled, questionnaires were to be mailed out to every listed household in late March 1980. Id. at 1137. Every questionnaire that was returned to the local district office was to be matched to the Master Address Register ("MAR"). Deficiencies identified in the MAR's with respect to number of units reported in the structure were to be assigned for recanvass as were questionnaires that appeared incorrect because of the manner in which certain questions were answered. The recanvass operation undertaken at this stage was known as Follow-up I. Essentially, Follow-up I was to consist of series of procedures for field follow-up by enumerators to provide for enumeration of those households that did not receive or return a census questionnaire in the mail and for recanvass of those units which had "failed edit." *fn4" Id. at 1140.

 Follow-up I was to commence in mid-April 1980. Questionnaires were to be filled out for any units successfully enumerated in the course of these procedures and the information obtained was to be included in the MAR's. If after four attempts, an enumerator was unable to obtain information concerning a unit, the enumerator was to attempt to obtain that information from persons with knowledge of the status of the unit such as neighbors or janitors. This was known as last resort information. If this procedure still resulted in a dearth of information concerning the unit, the crew leader of the district office was to attempt to enumerate the unit. If this effort similarly proved unproductive, the unit was to be classified as a verified refusal and no further attempt was to be made to enumerate the unit. Id. at 1142-43. At the end of Follow-up I there was to be a merge of the MAR's and the Follow-up Address Registers ("FAR's") which were kept in the district offices after which the information in each book was to be identical. There were target dates for the completion of Follow-up I but they were not deadlines and the procedure was to continue in each district office until "every housing unit had been enumerated or had been classified as vacant, found to be no longer existent ... or where ... visits had been made and no information had been obtained, a so-called unclassified unit." Id. at 1146.

 At the end of Follow-up I, preliminary figures as to number of units, vacant units and population were to be disclosed to local governmental units for a voluntary procedure known as "local review." The purpose of the program was to permit local officials to compare census figures with their own population and housing figures in order to identify possible problem areas and present challenges to Census Bureau numbers. So long as the local census office was still open and was in a position to investigate the challenges, it was to review the challenges and recanvass the challenged areas if necessary. Id. at 1147-51.

 The next step in the census operation was known as Follow-up II. This phase of the enumeration involved a recheck of unclassified units, units classified as vacant or non-existent, and units that had "failed edit." Id. at 1152-54. A non-household source check was to be conducted in large cities to improve coverage of minority populations. Id. at 1252. In this procedure names and addresses from Motor Vehicle driver's license lists and of legal aliens from the Immigration and Naturalization Service were to be compared against census data received during Follow-up I. In New York City, names and addresses from public assistance files were also to be used in the non-household source check. Id. at 1154-56. Follow-up II "was supposed to end when the procedures were all completed. However, the census activities were running behind schedule around the country so that a firm time schedule was developed for each district office, depending on the status of the census in that particular office ...." The closing dates were not adhered to in many cases. "(District) offices were told that in order to reach this closing date, that they could truncate some activities, but they were specifically told they could not truncate any activity which had to do with coverage and, therefore, if some activity was still going on that had not been or could not be completed by that time, the office was kept open until such time as it could be completed, unless it was of a relatively small nature, and if so, the regional census office was asked to complete the activity." Id. at 1157.

 If at any time after April 1, 1980, unlisted housing units were discovered during the course of any field follow-up operations, the procedures called for those units to be added to the MAR's and enumerated. Tr. 217-18; D's exhibit 22.

 At the end of field operations, all of the questionnaires and address registers were to be sent for processing to Jeffersonville, Indiana. At this point, the final population totals were to be tabulated from the questionnaires, and population and other characteristics of any units that remained unclassified were to be imputed based upon the characteristics of the immediately preceding unit. Tr. 1163-64.

 PROBLEMS IN EXECUTION

 Despite the rather detailed procedures outlined above, the district offices often experienced problems in enumerating the population. The problems were of several different types. Some recurred frequently, thus enabling the court to draw the inference that these or similar problems were encountered throughout New York City and other large cities within the state as well as in some less populous areas of the state.

 The first identifiable problem concerns the manner in which the MAR's were compiled for parts of New York City. As discussed above, the MAR's for urban areas were compiled from commercial mailing lists. Use of commercial mailing lists presented several sources of error. First, the commercial lists were incomplete and contained inaccuracies. Plaintiff's Ex. 334 at 134. This rendered "(t)he overall coverage provided by the purchased lists for the Nation's four largest urban areas" including New York at only about 59 percent. Id. at 136. The commercial lists frequently lacked apartment unit designations. This absence posed a serious problem in urban areas because "(t)he 1970 census data showed that approximately 50 percent of the people in central cities of major urban areas live in multiunit structures." Id.

 The Post Office review procedure was insufficient to correct many of the defects in the address lists. "Bureau experience has shown that the quality of Postal Service reviews is related to the quality of the address list provided.... (T)he Postal Service can be expected to improve a list by only about 25 percent." Id. The other procedure designed to improve the MAR's compiled from commercial lists, the precanvass by enumerators was the only quality control check for the Postal Service review. Tr. at 1197. This was also of limited effectiveness for several reasons. First, "(time) to accomplish the precanvass (was) very limited because" its commencement was delayed. Instead of commencing in the third week of January 1980, precanvass began on February 21, 1980. Plaintiff's Ex. 334 at 139. Other problems experienced in this procedure included delay in receipt of address registers, grossly deficient address registers, illegible, incomplete and inaccurate maps, and lack of trained enumerators due to the reversal of the order of several procedures. Tr. at 915, 265, 268-270, 273. This delay reduced the time available for correcting the MAR's and "some quality controls that could help the pre-canvass operation, such as the Postal Service's review of precanvass corrections and monitoring, did not take place." Furthermore, "time (was) very limited before census day to react to problems with the precanvass operation." Plaintiff's Ex. 334 at 139-40. Finally, the pre-census local review of address lists was cancelled by the Census Bureau in at least 25,000 local governmental units including the City of Rochester, New York because of delays in completing other preparatory procedures. As a consequence, local help in finding omissions in the address lists prior to the mailing of questionnaires was bypassed. Plaintiff's Ex. 14 at 8; Tr. at 587.

 Problems were also experienced with the mail-out, mail-back procedure. Despite several Postal Service efforts to identify additional units that were not on the address listings, the Census Bureau nevertheless failed to update their lists. This required duplicative effort on the part of the Postal Service and when the questionnaires were mailed out at the end of March 1980, the Census Bureau still did not provide forms for 78,000 addresses in the Bronx, Brooklyn, Manhattan and Staten Island. Plaintiff's Ex. 15 at 84-86. The Postal Service continued to deliver forms it received from the Census Bureau through mid-April, 1980. Id. Instead of placing the forms in the appropriate mailbox, many forms were simply left in apartment building lobbies creating innumerable problems from a failure to return forms at all to returning forms for units other than those for which they were intended. Tr. at 876. Id. at 90-92. Problems were also encountered with respect to Spanish language questionnaires. All forms originally delivered by the Census Bureau were in the English language. If a respondent desired a Spanish questionnaire, he was to call a telephone number listed on the front of the English form and a Spanish language form would be mailed to him. In one district office in the Bronx, the local post office returned these Spanish forms because the carriers were under the impression that they were duplicates. Id. at 87-89. Finally, no quality control was exercised by the Regional Census Center ("RCC") or national headquarters over Postal Service delivery of the questionnaires. Tr. at 1028.

 Another problem encountered with the procedures developed by the Census Bureau was in the area of advertising. The Bureau chose not to utilize paid advertising in the 1980 census and relied instead on public service announcements and free advertising for heightening public awareness to census operations. Tr. at 1055. Despite complaints from the minority community and others that the minority media was less able to provide pro bono advertising, the Acting Assistant Regional Director of the Census for the New York Region, Richard Bitzer, nevertheless failed to consider whether the claims were accurate. Id. at 1056. Furthermore, in addition to limited advertising with respect to the April 1, 1980 mail-out, there was little advertising for subsequent follow-up procedures such as the Harlem recount which took place in the autumn of 1980 and the "Were You Counted Campaign." The lack of publicity for the Harlem recount was attributed to concern that "the Census Bureau is involved in a lawsuit with the City, and if we advertise that we have to get all this work done, that it is not finished, it is going to make us look like we are wrong." Tr. at 82-83, 875.

 The overall mail return rate for New York City was 72%. In parts of the city the return rate was considerably lower, decreasing to only 48% in Bedford-Stuyvesant.

 Another problem experienced in carrying out the 1980 Census occurred in staffing at both management and enumerator levels. First, it was not a prerequisite that district office managers in the New York Region have prior supervisory experience or prior experience in census-taking in the field. Tr. at 1029. Thus, supervisory staff including some district office managers in decentralized offices *fn5" and crew leaders lacked experience in supervising large groups. They were not given adequate training by the Census Bureau with respect to the special problems of enumerating the population in New York. Tr. at 639-640. This factor and factors such as severe time and budget pressures imposed by the National and Regional headquarters caused supervisors to be unresponsive to problems made known to them by their staffs. See Tr. at 66-67, 106-13, 184, 541, 649-50. Crew leaders and enumerators frequently were unconcerned about the necessity of carrying out procedures in the proper manner, Tr. at 289-290, 482-84, and enumerators were often untrained in certain difficult procedures such as Mission Night. *fn6" Tr. at 642, 681-82. The final problem and a pervasive one was that of understaffing and high turnover rates in temporary employees. Staffing levels contemplated by the Census Bureau for field operations rarely were achieved. Tr. 270, 555-57, 687, 1011-12; Plaintiff's Ex. 15 at 146-47. High personnel turnover occurred at both the enumerator and supervisory level. Plaintiffs Ex. 15 at 116, 129; Plaintiff's Ex. 71.

 Another problem previously alluded to is that of Census Bureau deadlines. Whether due to time or budget constraints, there was a definite pattern of pressure on enumerators, crew leaders, and district office managers to finish the job without regard to the quality of the count that would be rendered. See, e.g., Tr. at 304-07, 663, 686-87, 699-700. Closing dates were scheduled by the National headquarters for all district offices apparently without regard for the status of operations in the individual offices. Tr. at 1239-41. District office managers were told that they would be jointly responsible for costs incurred by remaining open beyond the identified closing dates. Plaintiff's Ex. 211. When some district office managers resisted pressure to close because there was still a substantial amount of work to be done, they were overridden by RCC supervisors. See, e.g., Tr. at 336-37. These pressures caused enumerators and crew leaders to falsify work, classify units as vacant, and make up answers on questionnaires. See, e.g., Tr. at 64-66, 80-82, 472-74, 522-23, 530-31.

 As a result of time pressure, Spanish questionnaires were not mailed out to those who had requested them, responses in the Spanish language forms were not transcribed to English forms in order to permit them to be processed by Census Bureau computers, damaged forms were not transcribed, and the MAR's and FAR's were not reconciled. Tr. at 202-05, 249-51; Plaintiff' Ex. 260. In addition, there were insufficient bilingual enumerators during follow-up operations. Tr. at 95-96.

 The Census Bureau's decision to pay enumerators at a piece rate rather than an hourly rate was one of the causes of the high turnover rate among enumerators. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.