Virginia’s student privacy law may undermine census count - Virginia Mercury (2023)


Talk about the law of unintended consequences.

In 2018, the Virginia General Assembly passed legislation blocking the release of addresses and contact information for students at the state’s public colleges and universities.

Republican Del. Tony Wilt of Harrisonburg carried the bill after the progressive political group NextGen Virginia, using the Freedom of Information Act, obtained the cellphone numbers for students at all state-supported schools and sent them text messages urging them to register to vote.

Turns out that law has prevented some institutions of higher education — including James Madison University in Harrisonburg — from sending the U.S. Census Bureau the names and addresses of students living off campus so that they can be automatically included in the nation’s 2020 census.

Student directory information could be crucial because most students went home for spring break and never returned due to the COVID-19 pandemic. Without that data, college communities across Virginia “are poised to be severely undercounted” and could potentially lose government funding and political representation, said Carah Ong Whaley, a member of the Virginia Complete Count Commission.

Ong Whaley, the associate director of JMU’s Center for Civic Engagement, raised the issue Thursday afternoon when the commission met online to discuss how to encourage Virginians to fill out the census, which is supposed to be a headcount of where people were living (or in the case of college students, would have been living if not for the coronavirus) on April 1.

Time is running out. The Census Bureau announced recently that it will stop counting people on Sept. 30 — a month earlier than planned.

“We’ve got a lot of work to do in a short amount of time,” said Secretary of the Commonwealth Kelly Thomasson, who oversees the commission, an advisory panel appointed by Gov. Ralph Northam.

The stakes are high: The census, conducted every 10 years, is used to determine how many seats each state gets in the U.S. House of Representatives and how political districts are drawn. The population numbers also determine how much communities receive each year in federal funds for schools, hospitals, roads and other programs.

Virginia’s census response rates

In mid-March, the bureau started mailing Americans and running advertisements urging them to complete the census online or by phone or mail. On Aug. 11 — three months later than planned because of the pandemic — enumerators wearing masks and following other virus-related safety measures began in earnest visiting Virginia households that had not responded.

People can still take the census electronically, and by that measure, Virginia ranks high. Thomasson said she is “happy and proud” that about 69 percent of the households in the commonwealth have “self-responded.” Only seven states have a higher self-response rate; the national average is 64 percent.

But the Census Bureau has contacted fewer non-responding households in Virginia than in other states. Including door-to-door visits, as of Friday, the bureau has received responses from about 77 percent of the commonwealth’s households. More than 20 states have a higher overall response rate. (Idaho has the highest total response rate of more than 92 percent.)

Tim Mattaloni, assistant regional manager for the Census Bureau, said his agency has 5,000 enumerators contacting non-responsive households in Virginia and 2,000 more in training.

“We will be more than staffed to ensure that we have a complete and accurate count with quality data,” Mattaloni said. “We do not perceive any issues making sure that we meet the deadline for the commonwealth of Virginia.”

Even so, some members of the Virginia Complete Count Commission expressed concerns. In 15 of the state’s 133 cities and counties, fewer than half of the households have taken the census. The self-response rate was less than 40 percent on the Eastern Shore and in parts of Southwest Virginia.

“We definitely have some localities lagging behind,” Thomasson said.

The state commission and local committees across Virginia have been working with the Census Bureau to promote participation in the census.

Tapping $1.5 million authorized by the governor, the commission has funded outreach efforts in 30 communities and is working on agreements with 30 more, Thomasson said. For example, she said, CommunityConnect Labs, a California-based nonprofit, sent text messages to more than 2 million Virginians, reminding them to complete the census.

In the remaining five and a half weeks, commission members said they will step up their outreach efforts by:

  • Working with the Virginia Employment Commission, the Virginia Department of Health and other state agencies to spread the word about the importance of filling out the census.
  • Running advertisements especially in media that target Latinos, African Americans and other groups with lower response rates.
  • Asking state legislators to contact their constituents about the census.
  • Setting up Mobile Questionnaire Assistance stations at supermarkets and other high-traffic areas where people can fill out census forms on the spot.

Concerns about the ‘politicization’ of the census

Some members of the Virginia Complete Count Commission said the Trump administration has tried to undermine the census — by ending data collection a month early, for example, and by seeking to exclude undocumented immigrants from congressional apportionment.

“Some of the most disastrous decisions about the 2020 census are not coming from the Census Bureau professionals; they’re coming from the White House,” said commission member Bill O’Hare, a demographic expert who lives in Cape Charles on the Eastern Shore.

“I’ve heard people say they’re so discouraged by the politicization,” O’Hare said. “They shouldn’t blame the Census Bureau for some of this stuff.”

Ron Brown, a partnership coordinator for the Census Bureau, said, “This is not about politics. It’s about making sure we get that funding back in the communities and everyone is accurately counted.”

Virginia officials are pushing back against some of the administration’s census decisions.

Mark Warner and Tim Kaine, the state’s U.S. senators, have asked Congress to extend the deadline for conducting the census. And Virginia Attorney General Mark Herring has joined a lawsuit to require President Donald Trump to include “all persons living in each state” in congressional apportionment.

Some members of the Virginia Complete Count Commission said immigrants may be afraid to answer the census because of comments by the president and actions by his administration.

Giao “Genie” Nguyen, a resident of Prince William County and president of the group Voice of Vietnamese Americans, said that this month, the Immigration and Customs Enforcement agency deported 30 Vietnamese refugees who thought they had been protected under a 2008 agreement between the U.S. and Vietnam.

The deportations are part of the Trump administration’s crackdown on immigrants with criminal records.

“People are very scared,” Nguyen said. “It’s a matter of life and death for them because if they escape the country to flee communism and now they’re being deported back to that regime, they have no way but to go back to jail back in Vietnam. So many people would not trust the Census Bureau to fill out any forms.”

The census asks for the names and demographics of people in each household. Officials have stressed that the information provided is confidential, cannot be released to any government agency or court, and will be used only for statistics.

Fears the census will miss off-campus college students

Besides immigrants, college students are a focus of concern.

“COVID really just upended everything in our lives and especially the census, particularly on college campuses. Many students literally had to pack up pretty quickly and get out of town and make it back home,” said Traci DeShazor, deputy secretary of the commonwealth.

Before Thursday’s meeting, Ong Whaley, who leads census participation efforts at James Madison University, sounded the alarm on Twitter that thousands of college students are being left out of the 2020 census.

Virginia’s 15 state-supported colleges and universities enrolled about 225,000 students last spring. About 30 percent of those students lived in residence halls on campus, according to the College Factual database; the rest lived off campus.

On June 18, the Census Bureau said universities could submit the students’ census data in bulk by providing lists of on-campus and off-campus students and their addresses.

But Ong Whaley said she recently found that House Bill 1 from the 2018 legislative session presents an obstacle.

The bill, which easily passed the General Assembly and was signed into law by Northam, says public colleges and universities cannot disclose a student’s address, email address or phone number unless the student or parent has given written permission.

Ong Whaley said Virginia’s public colleges and universities can give the Census Bureau lists of students who were living on campus last spring using a generic institutional address. That will suffice for the 2020 census and won’t violate HB 1, she said.

But off-campus students pose a more difficult issue, Ong Whaley said. She said most of Virginia’s state-supported schools have interpreted HB 1 as preventing them from sharing those students’ addresses with the Census Bureau.

When the agency asked James Madison University for the names and addresses of its students living off campus in private housing and apartments, for example, the school’s legal counsel responded that HB 1 prohibits release of that data.

“The University encourages its students to participate in the census, but we are unable to provide you the information you request,” JMU told the Census Bureau.

That may explain the low response rates in college towns such as Harrisonburg and Radford, where about 60 percent of the households have answered the census, and in census tracts like the one around Virginia Commonwealth University, where the response rate is below 40 percent.

Census officials at Thursday’s meeting did not specifically address the issue of off-campus students but said door-to-door enumerators will capture data from people who haven’t filled out the census.

However, Ong Whaley and others noted that many if not most students who were living off campus last spring no longer reside in the same residences. They have graduated, changed apartments or did not return to school.

In a statement Friday, Wilt said he believes it will be possible to include off-campus college students in the census.

“I’m not an attorney, so I won’t definitely say if public institutions can share this information with the Census Bureau without first seeking the student’s permission. The code does allow public institutions to share it without student permission when otherwise required by state and federal law,” Wilt said.

Indeed, Old Dominion, Longwood and Virginia State universities have decided to send the Census Bureau their directories of off-campus students from last spring.

College officials have other options as well, Wilt said. “What’s critical to remember is that they certainly can share the information if the student has opted in.”

He said schools could email last spring’s students, requesting permission to share their information with the Census Bureau or encouraging them to complete the census online.

“I’m confident there are plenty of tools and methods available to ensure a complete count among our college students,” Wilt said.

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