652 F.2d 617 (6th Cir. 1981), 80-1751, Young v. Klutznick

Docket Nº:80-1751, 81-1027.
Citation:652 F.2d 617
Party Name:Coleman A. YOUNG, Individually and as Mayor, City of Detroit, and City of Detroit, a Municipal Corporation, Plaintiffs-Appellees, v. Philip M. KLUTZNICK, Secretary of Commerce of the United States, and Vincent P. Barabba, Director, Bureau of the Census, Defendants-Appellants.
Case Date:June 15, 1981
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 617

652 F.2d 617 (6th Cir. 1981)

Coleman A. YOUNG, Individually and as Mayor, City of

Detroit, and City of Detroit, a Municipal

Corporation, Plaintiffs-Appellees,

v.

Philip M. KLUTZNICK, Secretary of Commerce of the United

States, and Vincent P. Barabba, Director, Bureau

of the Census, Defendants-Appellants.

Nos. 80-1751, 81-1027.

United States Court of Appeals, Sixth Circuit

June 15, 1981

Argued Feb. 12, 1981.

Page 618

William Kanter, Douglas N. Letter, Michael Jay Singer, Civil Division, Appellate Staff, Dept. of Justice, Washington, D. C., Walter E. Dellinger, for defendants-appellants.

James A. Tuck, Robert A. Sedler, Wayne State Univ. Law School, Joseph Baltimore, Asst. Corp. Counsel, Detroit, Mich., for the City of Detroit.

Jim Leach, U. S. House of Representatives, Washington, D. C., for amicus curiae.

James E. Moore, Deputy Atty. Gen., Richmond, Va., for amicus curiae Commonwealth of Virginia.

Stephen C. Chapple, General Counsel U. S. Conference of Mayors, Washington, D. C., for amicus curiae U. S. Conference of Mayors.

George W. Crockett, Detroit, Mich., for plaintiffs-appellees in No. 81-1027.

Before KEITH, MERRITT and MARTIN, Circuit Judges.

MERRITT, Circuit Judge.

In this suit by the City of Detroit and its Mayor against the Census Bureau Director and the Secretary of Commerce, the District Court found that the final 1980 census figures would understate the black and hispanic populations nationally and in Detroit by a statistically significant but undetermined figure, unless adjusted. After finding in advance of the completion of the census that such an undercount would occur, the District Judge held that certification and publication of the figures without adjustment would violate the provisions of the Constitution requiring an accurate decennial enumeration of the population for the purpose of apportioning Congressional representation. 1 He construed the Census

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Act as permitting the use of such an adjusted set of census figures for purposes of determining Congressional representation. 2 He ordered that defendants withhold certification of the census figures to the states and the President, a certification required by statute, 3 until defendants devise and report to the Court for approval a statistically defensible means of adjusting the census figures to include the uncounted segments of the black and hispanic populations.

We reverse. Plaintiffs have shown no judicially cognizable injury and lack standing to sue. The claimed injury is based on a state of affairs not yet in existence, and it is so hypothetical in nature that it does not present a controversy capable of judicial resolution.

I. STATEMENT OF THE CASE

A. The Undercount Estimated on the Basis of Studies of the 1970 Census

The essential facts are not in dispute. Plaintiffs concede that the Census Bureau in 1980 made a conscientious effort to conduct an accurate head count of a diverse nation of approximately 225 million people using sound demographic methods developed over many years with the advice of leading scholars in many fields. Plaintiffs do not claim that the Census Bureau has discriminated against any class, blacks, hispanics, or others, or any town or region, Detroit or any other place, in the methods used to conduct the head count. On the contrary, all parties agree, including plaintiffs and their experts, that at great cost the Census Bureau, upon the direction of the President and the Congress, has taken new and creative steps during the 1980 census to find and count disadvantaged groups.

No claim is made that upper and middle class blacks and hispanics are undercounted in comparison with whites of the same economic class. Rather, plaintiffs have demonstrated the undeniable fact that for a complex set of reasons 4 it is more difficult to count the poor and the uneducated, whether black or white, than the middle class and the well-to-do. Plaintiffs rely on Census Bureau studies of previous census figures that show that, as a group, more blacks are missed than whites because, as a group, blacks are more disadvantaged. 5 Plaintiffs' key witness, Dr. Philip M. Hauser, a former director of the Census Bureau and chairman of the University of Chicago Sociology Department, stated the basic reason for previous

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undercounts of the black population: "It is not a question of color; it is not the difference in color that makes them hard to count. It is that whole cluster of characteristics associated with color which stands as a proxy for this cluster of characteristics" (App. 405).

The demographic and statistical theory that blacks are necessarily undercounted at a substantially higher rate than whites is supported by comprehensive studies of the 1970 census. 6 In that census 203 million people were counted, 178 million of whom were identified as white and 23 million of whom were identified as black. Through a combination of survey methods, the Census Bureau now estimates that the 1970 census undercounted the black and white populations as shown on this graph:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Extrapolating from the studies, the parties agree that the 1970 census probably undercounted the white population by approximately 2%, or 3.5 million, and the black population by approximately 8%, or 1.8 million. Although the Census Bureau is unable to break the undercount down by state or locality, the parties tentatively agree that the largest undercounts probably occurred in the poorer sections of large cities and in certain rural areas of the South.

At the time of the trial of this case in August 1980, the Bureau had not completed any interim or final figures for the new census because the tabulation of the census returns was still in process. The parties were unable, therefore, to estimate the 1980 undercount. One of plaintiffs' experts testified that "we don't know anything about the undercount in the 1980 census except some very broad assertions and expectations that the racial undercount will not disappear ...." (Dr. Taeuber, App. 638). Another expert of plaintiffs testified that no one could predict whether the 1970 undercount would be repeated in the 1980 census: "This doesn't mean that this (the 1970 undercount estimate) will be what happens in 1980. I don't know, I repeat, nor does anyone else" (Dr. Hauser, App. 478).

The Census Director and other officials testified in detail at the trial about the

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procedures used and the improvements made in conducting the 1980 census. They predicted hopefully that the added efforts would reduce the undercount. They explained that they had made earlier predictions, based on demographic analysis, that the final 1980 head count would be approximately 222 million and that the undercount would be approximately 5 million, or around 2%. They explained the difficulty and time consuming nature of arriving at a reliable estimate of the undercount. They explained that survey techniques and demographic analysis were not sufficiently advanced as sciences to permit distribution or allocation of the estimated undercount to states and localities on anything other than a pro rata basis using population figures from the census. They explained that since 1790 the census enumeration has never been adjusted to reflect an estimated undercount and that in their opinion Congress by statute had prohibited such an adjustment in the figures used for purposes of Congressional apportionment. 7 Finally, for a combination of reasons, they expressed severe reservations about making such adjustments to the census head count. The reasons included the questionable reliability of any such estimate at the national level, the absence of any sound scientific theory for allocation of the national undercount, however determined, to the states and cities, the risk of undermining public confidence and public use of the census and the likelihood that the internal consistency of census data will be destroyed if hasty adjustments are made which add to states, localities and enumeration districts numbers of people who may not exist.

After the trial the District Court ordered defendants to estimate the undercount for blacks and hispanics, adjust the national census count accordingly, allocate the adjusted undercount to states and cities on a pro rata basis and withhold certification of the figures until this task is accomplished. Thereafter, the Supreme Court stayed the portion of the District Court's order requiring defendants to withhold certification of the unadjusted figures to the President and the states.

B. The 1980 Undercount Estimates Based on the 1980 Census

Two other significant events have occurred during the pendency of this appeal, events which we notice judicially. See Fed.R.Evid. 201. On December 11, 1980, the Census Bureau announced its decision that it would not on its own initiative, voluntarily adjust the 1980 census count for underenumeration but would obviously comply with any final court orders requiring it to do so. In a lengthy position paper supporting its position (filed with the Court at oral argument on February 12, 1981), the Census Bureau stated that "it is now clear" from the tabulation of 1980 returns that the head count "will exceed the April 1980 estimate by a very large margin." Instead of counting 222 million people, as previously estimated, "the minimum final count for the Nation as a whole has reached 225.2 million" and "now is expected to be between 225.7 and 226.0 million persons." These figures come close to the pre-census estimate of the head count plus the pre-census estimated undercount. In the December 11 document, the Bureau stated its view that the 1980 undercount is probably considerably smaller than in prior censuses due to the improvement of census procedures. It says that "the apparent zero undercount results from the under-enumeration of...

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