The Case for Race: A Federal Court Acknowledges Data on Census Representation for MENA Populations

The government, through the Department of Justice, filed its first motion to dismiss my lawsuit to change the federal race categories on November 1, 2020. In the motion, the government contended that I did not have Article III standing, which is a constitutional requirement to bring a case to federal court. All of the government's dismissal arguments were devoted to challenging my standing to bring the lawsuit. Because I was fully aware that standing would be an issue prior to the lawsuit being filed, my initial complaint had multiple theories for why I had standing to bring the lawsuit.

First, the government asserted that I failed to demonstrate a concrete and particularized injury that is causally connected to the race categories of the census. The Department of Justice also argued that the relief I sought— a declaration that the race categories on the 2020 census were arbitrary—would not resolve my alleged injuries, and thus the issues I raised in the complaint would not be redressable by the court.

Second, the DOJ argued that, since I contested the race categories after the 2020 census was already conducted, any harm the categories might cause was not current but rather a past event. The DOJ emphasized that I offered no feasible alternative method for collecting race data that would result in more accurate information, and that without such an alternative, it's impossible to state that the census race categories would not suffice, thus implying that the government has a level of discretion in this decision-making.

Third, the government complained that my arguments about racism and the categorization of race were too generalized; rather than showing an individualized harm, the DOJ proffered that I presented more of a broad societal claim.

Fourth, the DOJ mentioned that even if I feared potential legal penalties for not answering the race questions on the census, that injury was self-inflicted by my choice not to respond, and it would not be addressed by the outcome I was seeking.

Fifth, the government reasoned that challenges to the census' methodology typically come after any potential miscalculations could lead to an actual count error, like an undercount or misapportionment of representation, which was not the case in my lawsuit.

Sixth, the DOJ stated that while I claimed the race data impacted various professional and personal aspects of my life, those impacts didn't establish a nexus to the way the race data was collected by the census. In other words, it was suggested that the injuries I claimed were not directly consequent of the race categories used in the census but rather speculative concerns about potential implications of the collected data.

From the DOJ's vantage point, if my case were allowed to proceed without the establishment of standing and a proper redressable injury, it would essentially set a precedent that could lead to a flood of suits based on generalized grievances, which some courts will not recognize as legally cognizable claims.

Seventh, the government's motion contended that my alleged risk of prosecution for not answering a question on the census form did not establish the kind of immediate threat necessary to substantiate a constitutional case.

At least in this first encounter, the Southern District Court of Florida rejected these arguments as a basis for dismissal. This is because I circumvented all of the government's dismissal arguments by requesting an amendment to my complaint. Unless a party has abused the privilege or the amendment would result in prejudice to an opposing party, a properly filed motion to amend a complaint can only be dismissed if the amendment would be futile. "A district court may deny a motion to amend when the amendment would be prejudicial to the opposing party, the moving party has acted in bad faith, or the amendment would be futile." Simmons v. United Mortgage and Loan Inv., LLC, 634 F. 3d 754, 769 (4th Cir. 2011).

In its December 28, 2020 Order, the court recognized that at this stage, my counterarguments, specifically those addressing the lack of a "Middle Eastern or North African" categorization option in the Census, had enough merit to permit further development.

My second amended complaint highlighted data indicating that some Americans would choose "Middle Eastern or North African" if it were an option, impacting the selection frequency of other racial categories like White, Black, or Hispanic. As stated by the Court:

Specifically, the second amended complaint points to data showing that if the 'Middle Eastern or North African' category had been included in the Census, it would have been chosen by respondents; relatedly, purportedly overbroad categories such as White, Black, or Hispanic would have been chosen less frequently. (ECF No. 42 at 2.) This is consistent with the crux of the Plaintiff’s lawsuit, which claims that the current race data collected by the Census is unreliable because it does not allow respondents to identify as Middle Eastern or North African.

In many ways, this was a small victory for Middle Eastern or North African or "MENA" communities that have struggled to identify their race and ethnicity on federal and social forms, platforms, and mediums. For example, the Arab American Institute, a national civil rights advocacy organization for the MENA community, filed a Freedom of Information Act complaint in the D.C. federal district court against the Office of Management and Budget to obtain information on why the MENA category was not added to the 2020 U.S. Census. They didn't get far. In Arab American Institute v. OMB, Case No. 18-0871, ECF No. 44 (D.D.C. August 13, 2020), the district court of D.C. dismissed the Arab American Institute's Freedom of Information Act under the deliberative process privilege. (This privilege operates as an exemption to certain FOIA requests which seek to get information is considered pre-decisional. "The deliberative process privilege rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, and its object is to enhance the quality of agency decisions,' id., at 151, by protecting open and frank discussion among those who make them within the Government[.]" Department of Interior v. Klamath Water Users Protective Assn., 532 U.S. 1, 8-9 (2001)).

However, in my case, the court's refusal to acknowledge the other problems with federal race categories was disappointing. The lawsuit always focused on a broader critique of race data collection in the U.S. Census, positing that race—as it is currently categorized and operationalized in the data collection process—is a social construct without a valid scientific or biological basis, thus casting doubt on the usefulness and accuracy of the collected data. In every version of the complaint, I argued that the existing race categories are outdated and overly simplistic, failing to capture the nuanced and multi-faceted nature of racial and ethnic identity in the contemporary United States. The federal race categories were and still are arbitrary, internally inconsistent in their definitional criteria, confusing to many, and they do not account for the multiracial population in the United States.

In other words, the problems related to the MENA population and their struggles or disengagement with the federal race categories are indicative of a larger problem that affects several other populations and persons inside the United States who are oftentimes forced to identify themselves in these obtuse groups. Still, a federal court at least tacitly acknowledging these institutional and structural problems, problems that have been around for decades, is no small feat. The complaint was adopted by the court and the lawsuit progressed to the next chapter, which was the clash between myself and the court to appoint a three-judge panel over the case.