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LAW WISEGreetings from the Kansas Bar Association (KBA).

Welcome to this second edition of Law Wise for the 2018-2019 school year.

Coordinators: Honorable Bethany J. Roberts, Chair, LRE Committee; Anne Woods, Public Services Director; Nicolas Shump, Law Wise Editor; & Patti Van Slyke, Journal Editor

OCTOBER 2018 • ISSUE 2PUBLISHED BY

Calendar of events

IN THIS ISSUEThe U.S. Census: It Counts .........................1

The History of the U.S. Census ................. 2

The Race Question ................................... 3

The Struggle for Representation and Resources ................................................. 5

Lesson Plan: Census at School .................. 6

Lesson Plan: U.S. Census ......................... 7

Lesson Activities ....................................... 8

iCivics ..................................................... 8

Terrific Technology for Teachers ................ 9

The U.S. Census:It Counts!

October 8 ............................Columbus Day

November 6 .......... Kansas General Election

November 12 ......................... Veterans Day

Censuses are nearly as old as civilization itself. Most ancient cultures had censuses and in fact, the Gospel of Luke mentions a Roman census as the reason for Mary and Joseph to return home. The Domesday Book authorized by William the Conqueror in 1086 CE detailed English land-owners. One thing which makes the U.S. Census distinctive is its legal origins near the beginning of the American Republic.

Article 1, Section 2 of the U.S. Constitution calls for a census to be conducted “within every subsequent term of 10 years.” From this brief decree, the United States Census has become a process that goes far be-yond an accounting of the population. Controversies exist over the types of questions to be asked, how the data on households should be collected, and other decisions which have very important real world consequences for American society. One of the most obvious to be considered in this issue is the apportionment of representatives for the respective states in the House of Representatives.

From the beginning, the federal government appointed particular in-dividuals or offices to conduct this the U.S. census. Originally, federal marshals had this responsibility. Today this responsibility lies with the United States Census Bureau. When the original census lead to a count of 3.9 million Americans and African slaves, President Washington and



2 LAW WISE | OCTOBER 2018

others claimed this to be a gross under-counting that Wash-ington attributed to individuals not wanting to pay higher taxes for a larger population. Native American tribes were not included in the U.S. Census.

Today, the National Archives has an online searchable ar-chive of nearly all U.S. Censuses. However, the loss of some records from the late eighteenth and early nineteenth century has been attributed to British burning of Washington D.C. during the War of 1812. A Commerce Department fire in 1921 resulted in the loss of most of the 1890 Census. With such massive amounts of information, earlier proto-computers were used to tabulate census data. The Census Bureau used the UNIVAC, the first non-military computer produced in the U.S., beginning in 1951 to collect and store data.

Attempts to collect data on different racial categories has changed significantly over time. From the original racial cat-egories of white and black, categories like Hindu, quadroon, octaroon, and others have been added and then deleted in dif-ferent census years. The importance of racial classifications in the census will be further explored in this issue too.

With the explosion of genealogy research within the last few decades, the U.S. Census remains one of the most useful sources of information for those trying to trace their families’ journeys to the United States. As racial demographics continue to shift in the United States, the census will remain an impor-tant process and tool in the emerging story of the United States as we travel farther into the twenty-first century.

Article 1, Section 2 of the United States Constitution out-lines the process for collection of taxes agreed upon at the Constitutional Convention. The next paragraph provides in-struction for how Congress will know the amount of taxes to be assessed for each state as well as the number of representa-tives to the House of Representatives. The Constitution states, “The actual Enumeration shall be made within three Years af-ter the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative.”

Even in 1790, the United States had a large geographical area and a large population. How was Congress to ensure an accurate count of the population? The solution was to employ the federal marshals throughout the nation. In this initial Census of 1790, the marshals hired 650 assistants to help con-duct this census. The total cost of that census was $44,000. The four categories were: free white males 16 years or older;

free white males under 16; free white females; and all other free persons and slaves. Native Americans were not counted in this initial census. The population of 3.9 million citizens is believed to be an under-count.

In the 1820 Census, more detailed information about em-ployment was gathered. Respondents had to categorize their jobs by industry. The options were agriculture, commerce, or manufacturing. This census asked a question about citizenship for the first time, specifically if there were non-naturalized resi-dents in the home.

Subsequent censuses continued to add more questions and obtain more information about the rapidly growing nation. By 1840, questions about school attendance, literacy and vocation had been added to the census. A decade later, data on taxes, crime, wages, estate value, and mortality had been added. The census referred to these questions as “social statistics.” In the 1850 Census every free person had their name listed on the census—not just the head of the household.

The History of the United States Census



OCTOBER 2018 | LAW WISE 3

In his 1903 work, “The Souls of Black Folk”, W.E.B. Du-Bois claims, “The problem of the Twentieth Century is the problem of the color-line—the relation of the darker to the

lighter races of men in Asia and Africa, in America and the islands of the sea”. Over a century later, the color line and the status of race relations in the United States remains conten-tious. With the recent decision of the commerce department to reintroduce a question about citizenship to the 2020 Census, this issue has reared its head once again.

The distinction between race and ethnicity has been dif-ficult since the beginning of the census. The census bureau offers the following definitions of race and ethnicity: “The census bureau defines race as a person’s self-identification with one or more social groups. An individual can report as White, Black or African American, Asian, American Indian and Alaska Native, Native Hawaiian and Other Pacific Islander, or some other race. Survey respondents may report multiple rac-es. What is ethnicity? Ethnicity determines whether a person is of Hispanic origin or not. For this reason, ethnicity is broken out in two categories, Hispanic or Latino and Not Hispanic or Latino. Hispanics may report as any race.”

In the initial 1790 Census, the races counted were White and Black. However, slaves did not have legal status and the census did not include Native Americans in the headcount.

With the end of the Civil War in 1865, the 1870 Census no longer asked about slaves. This census was the first to use a tal-lying machine. This was also the last census conducted by the U.S. Marshalls. In 1879, concern over inefficiencies in the pro-cess lead Congress to replace the marshals with trained “enu-merators.” By 1902, Congress authorized the establishment of the United States Census Bureau as a permanent government agency.

In the 1890 Census, we have the first use of an electronic tabulating machine designed by a former census office employ-ee named Herman Hollerith. Hollerith’s system used punch cards to store the data. Hollerith’s machine later became part of the company which came to be known as International Business Machine (IBM). Several racial categories appeared on the 1890 Census including Negro, mulatto, quadroon, oc-taroon, Chinese, and for the first time Japanese.

Throughout U.S. history, the census has often reflected ma-jor social events happening in the country. In 1931, Congress authorized a special unemployment census in order to better understand the depth of the problem during the early years of the Great Depression. In 1970, the census collected data on Hispanic individuals for the first time. The designation of “Hispanic” as an ethnic label and category is controversial within this community, with many individuals refusing this

government-issued label. Many choose to identify as Latino or to retain their particular country of origin to designate their ethnicity. In the 1980 census, one was allowed to self-identify regarding the question of race. During the 1990 Census, there was a designated one-night program called S-Night (streets/shelters) to attempt to count the homeless population.

In March of 2018, the U.S. Commerce Department an-nounced the decision to reintroduce the citizenship question to the 2020 Census. This was done at the request of the U.S. Justice Department in an effort to enforce the Voting Rights Act. From 1820-1950, a citizenship question appeared on the U.S. Census. Immediately, there were protests from civil rights organizations who felt that undocumented immigrants might refuse to participate in the census. This could lead to an under-count among the Latino community, which has be-come the fastest-growing ethnic minority group in the United States over the last few decades. This decision was challenged in court by the State of California, a coalition of 18 attorneys general led by New York, several cities, and the U.S. Confer-ence of Mayors. In June of 2018, a federal judge allowed for the New York lawsuit to go forward with a potential trial starting in October. According to the Brennan Center for Justice, there are currently six lawsuits currently pending on the citizenship question.

The Race Question




From 1850 to 1920, reflecting the historical and cultural forces in American society, the census did allow for the designations of mulattos, quadroons, and octaroons. Mulattos today would likely be considered bi-racial with one black and one white par-ent. Quadroons were those individuals with one quarter black ancestry, and octaroons were those with one eighth black an-cestry. Despite the fact that individuals designated as quadroon and octaroon were more white than black, they were consid-ered black. This is the result of the “one-drop rule”, which defined as black any individual with black ancestry, regard-less of how distant. This policy certainly reflected the process of Jim Crow segrega-tion in the American South. It was only in 1930 that the catego-ry changed to Negro.

Indian was add-ed as a category in 1870 and changed to American Indian in 1950. Hindu ap-peared in the 1930 and 1940 Censuses. Chinese was listed as a race beginning in 1870 and Japanese was added in 1890. Filipino appeared in the 1930 and 1950 Censuses. The Korean category appeared in 1920, was removed in 1950, and brought back in 1970. Mexi-can appeared as a category in 1930, but protests from the Mex-ican government led to its exclusion from further censuses. In 2000, respondents could choose more than one race.

Currently, you may identify Hispanic as an ethnicity that is not tied to any one racial category. In the 2010 Census, the following racial categories were used:

• White;

• Black or African-American;

• American Indian or Alaska Native;

• Asian;

• Native Hawaiian or other Pacific Islander.

There was discussion about allowing respondents to select Hispanic or Latinx* as both an ethnicity and a race. Doing so might have led to decreases in the white population. An-other proposal considered was the addition of Middle Eastern or North African (MENA) as a possible ethnic and racial cat-

egory. In the end, the categories used in 2010 will remain in place for the 2020 Census.

According to a U.S. Census Bureau 2017 estimate, the ra-cial and ethnic composition of the United States showed: 61 percent white, 18 percent Hispanic/Latino, 13 percent black/African American, six percent Asian, and American Indian/Alaska Native as one percent. Nearly three percent of respon-dents selected two or more races.

Though not di-rectly related to race, the announcement of the return of the citi-zenship question after a 70-year absence has led to a flurry of legal challenges. The Bren-nan Center for Justice lists six current law-suits challenging this decision. Officially, the census bureau does not share its in-formation. The cen-sus bureau states it, “adheres to strict con-fidentiality laws that prohibit sharing of respondent informa-

tion. We do not share respondent answers with immigration, law enforcement, tax collection agencies or any other organiza-tion.” Despite this official assurance, many Latinx civil rights and immigrant rights groups fear undocumented immigrants will refuse to take part in the upcoming census out of fear their information will be shared with U.S. Immigration and Cus-tom Enforcement (ICE). If this does happen, the Hispanic/Latino category could decline in the 2020 Census. Moreover, these estimated 11 million undocumented immigrants would impact the drawing of congressional districts to ensure equal populations.

As the United States heads towards its third century, the problem of the color line noted by W.E.B DuBois persists, though in ways likely unanticipated in 1903.

* According to Merriam-Webster, ‘Latinx’ is a gender-neutral word used generally for people of Latin American descent. It was added to the lexicon in the early 2000’s.




The Struggle for Representation and Resources

One of the main failures of the Articles of Confederation—America’s original form of government—was its inability to collect taxes. Aware of this shortcoming, the United States Constitution dealt with this issue within Article I, Section 2 of the Constitution. It dictates:

Representatives and direct Taxes shall be appor-tioned among the several States which may be in-cluded within this Union, according to their respec-tive Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law di-rect. The number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative.

Nearly 200 years later, an NPR report estimates that these census numbers directly impact the allocation of approximate-ly $800 billion in federal funds among the various states. Over 300 federal programs base their allocations on the data collect-ed in the census. Taking only the 16 largest federal programs, this amounts to $4.5 billion for Kansas.

The cost and scope of the census has grown significant-ly since 1790. The initial census cost $44,000, but the 2010 Census cost $12.9 billion. To conduct the census door-to-door costs $25 per person. Recent estimates place the cost of the 2020 Census at $15.6 billion. The 2020 Census will attempt to record data from 140 million households and over 325 mil-lion people.

Equally important to the tax revenue and the allocation of federal funds are the potential changes in congressional apportionment for the U.S. House of Representatives. After the 2010 Census, Arizona, Florida, Georgia, Oregon, Nevada, South Carolina, Texas, Utah gained seats. Illinois, Iowa, Loui-siana, Massachusetts, Michigan, Missouri, New Jersey, New York, Ohio, and Pennsylvania lost seats.

One of the more controversial issues regarding the 2020 Census is the decision to reintroduce the citizenship question. This question had been used from 1820-1950. A review of

the Constitutional mandate is to count “the whole number of free persons.” With such language, it has been the practice to count undocumented immigrants. Civil rights and immigrant rights organizations fear that these undocumented immigrants might refuse to participate out of fear of identification. Un-doubtedly, this issue has political ramifications.

In testimony in one of the six pending lawsuits challenging this position, Commerce Secretary Wilbur Ross disclosed re-ceiving an email from Kansas Secretary of State Kris Kobach, who according to the New York Times, acted “on the direction of Steve Bannon.” At the time of this email, Bannon worked in the White House as a strategist for President Trump. In this message, Mr. Kobach stated undocumented immigrants “do not actually ‘reside’ in the United States” and therefore should not be counted for reapportionment purposes. Representative Steve King, Republican from Iowa, noted if the census only counted citizens, “California would give up several congres-sional seats to states that actually honor our Constitution and federal law.” There is currently a lawsuit filed by the state of Al-abama requesting the census only count U.S. citizens. Though not entirely verifiable, it has been asserted that the majority of undocumented immigrants tend to vote Democrat.

The ultimate fate of the U.S. Census and the controversy over the citizenship issue will ultimately be decided by the upcoming midterm elections. Regardless of the politics, the 2020 Census will have a significant impact on the future of the United States in the coming decade.




Census at School ProjectRecommended for elementary or middle school students.

From the American Statistical Association. http://ww2.amstat.org/censusatschool/

Introduction: The United States Census collects a tremendous amount of data about those who take part. In this exercise, students will compile their own data and compare it with students throughout the world.

Guiding Questions:

• What type of information is collected?• How do your students compare to their fellow U.S. students and International students? Learning Objectives:

• To find how census data is collected.• To be able to compare census data from various data sets• To analyze this data

Preparation Instructions:

• Begin at the Census at School-United States website http://ww2.amstat.org/censusatschool/index.cfm• Go to the Participant Instructions in the Teacher Section for instructions on the project.• Register as a teacher and complete information about your class and your number of students

Lesson Activity:

• Give students hard copy of the online survey. Found at: http://ww2.amstat.org/censusatschool/pdfs/[email protected]• Have students take the appropriate body measurements asked for on the survey.• Once your students have the information, they will take a 15-20 minute survey to create a data set.• Once students have taken the survey, you may login to obtain your results• You can download it into a CSV format to be put into an Excel spreadsheet• For comparison purpose, you obtain a sample of U.S. Census data through the Random Sampler function. • Combine your data sets and analyze the findings• Census at School provides a variety of resources to help you and your students to understand and analyze

the data. These include webinars and other lesson plans based on particular questions and topics. • Have a class discussion on the process and what they have learned about the Census and data collection.




Lesson Plan: U.S. Census Recommended for High School Students

The Census and the First American Industrial Revolution

Introduction: In the few decades prior to the Civil War, inventions and technologies like the telegraph and railroads led to a boom in American manufacturing and business. In this exercise, students will use census data to try to understand and measure some of these changes.

Guiding Questions:

• What changes occurred in the United States during the period of industrialization before the Civil War? • What facts indicate whether early industrialization was a revolutionary or evolutionary process?

Learning Objectives:

• Cite census data indicating whether early industrialization was a revolutionary process.• Take a stand (and support it with evidence) that technology underwent the greatest change before or after

the Civil War.• State reasons to support a position that early industrialization was or was not a revolution.

Preparation Instructions:

• Students will use data located in the Historical Census Browser.• The data is searchable by census dates and several demographic categories

From EDSITEment!, a National Endowment for the Humanities (NEH) site.https://edsitement.neh.gov/lesson-plan/was-there-industrial-revolution-americans-work-civil-war




Lesson Activities

A. Data Gathering

• Allow the students to do some practice with the United States Historical Census Browser so they are familiar with how to use it

• Make the student groups decide if the changes will be revolutionary or evolutionary• Divide the class into five groups to analyze the following categories• Longevity, 1800-1860• Literacy/Education 1840-1860• Manufacturing, 1820, 1840-1860• Agriculture 1820, 1840-1860• Slave and Free Black Populations, 1790-1860 and Slave Ownership 1790, 1860

B. Data Findings

• Have each group present their findings

C. Analysis and Debate

• Once all groups have presented, allow the groups and individual students debate whether or not these changes in industry were revolutionary.

• Require students to use the Census data to support their arguments

iCivics Resources for Getting Involved & Taking Action

www.icivics.org This site provides teachers with free resources that improve students’ civic knowledge, civic attitudes, and core literacy skills.

Mini-lesson: Midterm ElectionsVisit www.icivics.com and go to the Teach section to access The Mini Media Literacy Library which features lessons that combine civic content and news literacy skills. The mini lesson on the midterm elections covers how a shift in party control impacts the legislative and executive branches and how horse race journalism can affect the public.




The Kansas Bar Foundation, with Interest on Lawyers’ Trust Accounts (IOLTA) funding, provides support for this publication. Law Wise provides general information about law-related matters of interest to teachers, students, and the public in Kansas, but does not provide any legal advice, so readers should consult their own lawyers for legal advice. For further information about any projects or articles, contact Anne Woods, public services director, (785) 234-5696. Law Wise is published by the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806, during the school year.

Law WiseFAQsWe have a list of FAQs available at http://www.ksbar.org/LWFAQ.

Visit www.ksbar.org/lawwise to see archived issues, frequently asked questions, and to sign-up to re-ceive six issues a year via email.

TERRIFIC TECHNOLOGY FOR TEACHERS

About the Law Wise Editor:

Nicolas Shump teaches courses in Creative Writing, Film, and Advanced Placement (AP) courses in Comparative Governmentand Politics, European History, Psychology, and U.S. Government and Politics for the Hybrid Learning Consortium (HLC) at The Barstow School in Kansas City, MO.

He also teaches Discourse 100 at the University of Missouri-Kansas City (UMKC) where he is an MFA Student in the Creative Nonfiction Program. He is a columnist for the Topeka Capital-Journal and a Talk About Literature in Kansas (TALK) discussion leader for Humanities Kansas.

He can be reached at [email protected]

American Fact Finderhttps://factfinder.census.gov/faces/nav/jsf/pages/index.xhtmlA great searchable site with a tremendous amount of information communities throughout the country and Puerto Rico too.

Census Recordshttps://www.archives.gov/research/censusThe collection of census records held by the National Archives in-cluding tutorials and resources on how to best search this material.

Google Cloud/Big Query/Census Datahttps://cloud.google.com/bigquery/public-data/us-censusThis site allows you to use the census information to make queries using census data.

US Censushttp://www.pewresearch.org/topics/u-s-census/A site produced by the Pew Research Center with articles and links to various issues regarding the census and collection of data.

U.S. Censushttp://www.ncsl.org/research/redistricting/us-census.aspxA site produced by the National Conference of State Legislators that contains information about the census and its political impacts.

10 Things You May Not Know About the U.S. Censushttps://www.history.com/news/10-things-you-may-not-know-about-the-u-s-censusA fact-filled and accessible article about the census from History.com

U.S. Census Fast Factshttps://edition.cnn.com/2013/08/27/us/u-s-census-fast-facts/index.htmlThis CNN site has basic demographic data on the U.S. as well as a timeline of the census process from 1790 to the present.

1940 Censushttps://1940census.archives.gov/index.aspIn collaboration with Archives.com, the U.S. National Archives has made the 1940 census available fully online.

First U.S. Census Questionshttps://www.smithsonianmag.com/smart-news/first-us-census-on-ly-asked-six-questions-180964234/An article from Smithsonian.com about the first census and the original questions asked.

2020 Census Jobshttps://2020census.gov/jobsA website for those interested in helping to administer the 2020 U.S. Census

Is Law Wise Helpful to You?We are always open to receiving

comments, ideas and suggestions. Please reply to [email protected] .

Please let us know: • Topics you would like to explore; • Projects and lessons you have developed that you would

like us to feature; • Questions you would like to ask an attorney or judge.

We look forward to hearing from you.


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