Lying on a US Census is a federal crime. But according the US Census online docs about race:

An individual’s response to the race question is based upon self-identification. The Census Bureau does not tell individuals which boxes to mark or what heritage to write in. ...
The racial categories included in the census questionnaire generally reflect a social definition of race recognized in this country and not an attempt to define race biologically, anthropologically, or genetically. In addition, it is recognized that the categories of the race item include racial and national origin or sociocultural groups. People may choose to report more than one race to indicate their racial mixture, such as “American Indian” and “White.” People who identify their origin as Hispanic, Latino, or Spanish may be of any race.

Which makes it sound as though everybody in the US can put in, say, Alaska Native, on the grounds that self-identifying is a choice, without lying or committing a crime.

(Imagine the top TV show in the US was a revival of Nanook of the North, with a terrific charismatic cast, and which promoted "the eskimo way", (akin to the "the cowboy" way in singing cowboy westerns), which advocated that if you followed "the eskimo way", then you too were an eskimo. And alienated Americans resonate with this, as they have with so many fashions, fads and creeds, that that's what they wished themselves to really be.)

Is it possible to (unlawfully) lie about one's race given the current US census race categories? In other words, has the 2018 govt. any power to prosecute for lying about race on a census?

If there are no lies, what purpose is served by having such a definition?
What's the value (who benefits) in making what used to be a fuzzy but more or less factual item about national and ethnic origins into a belief-based one, in effect making race into a religion.

This is a spin-off of What are the political benefits and inversely disadvantages, if any, of individually self-identifying as “white” in the United States?.

migrated from politics.stackexchange.com Jun 10 '18 at 17:48

This question came from our site for people interested in governments, policies, and political processes.

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    @Philipp "Of course it is possible to lie. It just requires to tick the wrong box." That is factually incorrect and impossible. There is no "wrong box". The individual has the choice to self-identify with one or more "race" or "ethnicity" or none at all. – guest271314 Jun 9 '18 at 21:55
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    @guest271314: There's definitely a wrong box(unless the person identifies as all options). If the question is 'do you identify as X or Y?', and they identify as X and not Y, then Y is the wrong box to fill in. If they identify as both, then yeah either choice is right. – Giter Jun 9 '18 at 22:00
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    @guest271314: Exactly, they can't dispute with themselves. So if they select a box they know they don't identify with and the question is 'what do you identify with?', then they willingly aren't answering the question truthfully. – Giter Jun 9 '18 at 22:04
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    @Giter You are obviously fundamentally unfamiliar the fact that "race" in the United States is based on self-identification. When the individual self-identifies with a "race", that is whom they self-identify with at that very moment. That cannot be disputed. If your inquiry is to the political motive for self-identifying with a "race", that question was asked here, but, also, apparently not understood as to the essential fact that "race" is a political classification which requires the action of the individual; thus the question was placed "on hold". No one can dispute what you say you are. – guest271314 Jun 9 '18 at 22:07
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    @guest271314 They can't dispute your self-identification with biological facts, but they can dispute that your answer is a sincere self-identification with either your own confession to the contrary or with circumstantial evidence that indicates you are lying (e.g. you fill out every other form before and after with a different answer and have a known animosity towards the census). – ohwilleke Jun 11 '18 at 13:47

Short Answer

You can be prosecuted for lying about race on the census, but it takes some pretty specific and narrow conditions and isn't a concern for the vast majority of people.

Long Answer

There are two analytically distinct questions.

The first is whether you can lie on the census about race. The answer is "yes", you can lie on the census about race. You would do so by providing an answer that is insincere, which is to say, an answer that is not consistent with how you self-identify. If you believe yourself to be and identify as African-American, for example, but answer "Alaska Native" not because you identify as an Alaska Native, but because you want to screw with the census, then you have lied about race on the census.

Similar issues of sincerity have been addressed by the U.S. Supreme Court in the context of the much higher stakes issue of conscientious objector status for someone seeking to avoid the draft. A 2014 law review article explores how courts test sincerity claims in practice.

The second is whether you can be prosecuted about lying on the census.

There is indeed a law that makes lying on a census form a crime.

Refusing to answer either the short Census form or the longer American Community Survey form is a violation of federal law (Title 13, United States Code, Section 221). Refusing to answer is punishable by a fine of $100, while giving false answers carries a fine of up to $500. (As a practical matter, the Census says fines of up to $5,000 can be imposed under Title 18, Section 3571.)

So, again, the answer is "yes" you can be prosecuted for lying on the census, but due to the obligation of the census to maintain confidentiality, knowing that a crime was committed or proving that you lied would be hard unless you did something to waive that right to confidentiality.

Still, the person about whom the confidential information is maintained by the census can waive this confidentiality. 13 USC 9(a)(3).

In practice, a prosecution for lying about race on the census would probably be most viable if, for example, you did a TV interview or posted a YouTube video in which you took video of yourself filling in the race item on your census form with an answer while stating that you didn't self-identify as this race but were just screwing with the government, and then showed yourself submitting that form.

Thus, while the prohibition against lying on the census about race is virtually toothless, it does have enough teeth to make it possible to prosecuted someone who openly and publicly defies the requirement to be truthful on the census and admits to doing so, which can still have some utility in discouraging some kinds of open revolts calculated at undermining the integrity of the census.

Also, even if you don't "admit" that you are insincere that isn't the end of the analysis. They can't dispute your self-identification with biological facts, but they can dispute that your answer is a sincere self-identification with either your own confession to the contrary or with circumstantial evidence that indicates you are lying (e.g. you fill out every other form before and after with a different answer and have a known animosity towards the census). If a jury believed beyond a reasonable doubt based upon circumstantial evidence that your answer was not sincere, it could find your testimony to be not credible and convict you anyway.

If there are no lies, what purpose is served by having such a definition?

The vast majority of people, facing no negative consequences for telling the truth, if they have cooperated enough to fill out the form at all, will try to fill it out consistently with the instructions. And, a significant share of all census responses are provided by government employees whose duty and purpose is to try to provide a correct answer.

Also, most people comply with the laws even in the face of zero enforcement. For example, it has been more than 40 years since the last person was prosecuted for not filling out a census form, even though it is crime not to do so, in part, because most people try to obey the law. And, compliance with the burden of filling out a census form is quite high.

What's the value (who benefits) in making what used to be a fuzzy but more or less factual item about national and ethnic origins into a belief-based one, in effect making race into a religion.

Many countries (not the U.S.) have a religion question in their census as well, and this isn't problematic where it is done, or in surveys asking questions about religion, although being clear on definitions can be important (e.g. in the case of a religious v. ancestral or ethnic v. self-identified definition of who is a Jew).

I strongly suspect that the differences in how people respond to the question arising from a national or ethnic origin definition, and a definition based upon self-identification, are negligible at the statistical level. A century or so from now, when census records are made public, it will be possible to confirm this definitively by examining how the same individual's race was reported on half a dozen or more successive census forms. In non-census contexts, this shift in the definition has not produced any statistically meaningful differences in how people respond.

Also, if anything, the new definition based on self-identification may be more useful to researchers who are trying to examine socially coherent communities, and it makes the race data slightly more comparable to data, for example, on religion and on sexual orientation (from non-census sources).

  • This is a good answer, but the order is confusing. It'd be better to lead with the more common instance of "virtually toothless", and then address the corner case of the public scofflaw after. Also perhaps a bit more as to the value of the resulting presumed sincere body of data, and whether it's known or believed to be any better or worse than similar census data from the previous century. – agc Jun 11 '18 at 13:59
  • You can't explain the general rule without making the analytic basis clear. And, the value of the data is beyond the scope of Law.SE. – ohwilleke Jun 11 '18 at 14:02
  • Is the purpose of a law (or a particular revision) really beyond the scope of Law.SE? – agc Jun 11 '18 at 14:15
  • The historical accuracy of census data (and the effectiveness of a law on a broad public policy basis) is beyond the scope of Law.SE. The intent and purposes is that the census be accurate with a set of definitions that are workable. – ohwilleke Jun 11 '18 at 14:18
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    "You can't explain the general rule without making the analytic basis clear": That does not imply that the analysis and explanation must precede the statement of the rule. – phoog Jun 11 '18 at 17:03

An additional bar to prosecution for "lying" about race is that you cannot be prosecuted for anything you say on the census. 13 USC 9 mandates that all individual reports must be kept confidential, and cannot be shared or used for purposes other than the intended statistical one (if illegally obtained, the report would be poison fruit). This document by the Bureau discusses confidentiality measures.

  • From a discussion about a census in another country: "If you have nothing to hide, you have nothing to fear". "I thought the confidentiality of the census means that if you have something to hide, you have nothing to fear. Thanks for clearing this up". – gnasher729 Jun 10 '18 at 20:42
  • 13 USC 9(a)(3) allows for the waiver of confidentiality in certain circumstances. – ohwilleke Jun 11 '18 at 13:40

No, it is not possible to "lie" about self-identifying with a "race", or one or more "races". It is not possible for any individual to dispute what you choose self-identify as, certainly not using the administrative regulations which attempt to define what a "race" or "races" are in the first instance.

Within the scope of immigration to the U.S. individuals are classified as a specific "race" based on country of origin, see What are the legal requirements in the United States for being recognized under federal law as "white" or a "white" person?, though when one performs statutory construction as to the controlling regulations, it is quickly discovered that the regulations governing the classification scheme are ambiguous and wholly arbitrary and capricious.

For example, there is no land mass named "North Africa" in the real world and there is no guidance as to what exactly "black racial groups" are nor precisely how many "black racial groups" purportedly exist, see What is the precise number of black racial groups of Africa? [closed]. Any individual whom self-identifies as "black or African American" places themselves in the realm of utter uncertainty. The regulation implies that there are more than one "black" "race", and omits language included at the adjacent definitions of "race", namely "original people". If an individual self-identifies as "black or African American" there is no way for them to actually find the "black racial groups" invented by the document in the real world.

Similarly, for an individual whom self-identifies as "White", they must accept that the entirety of the fictional region termed "North Africa" is one of their "origin", though we are left without any guidance as to what exactly "North Africa" is, and is not, as the fiction does not exist in the real world.

In either instance, it is impossible to verify whom the "original people" of any geographic location were, as it is impossible to go back in time to do so. Self-identification with any so-called "race" in the United States is the individual simultaneously choosing to enter into an endless rabbit hole and trying to find their way home or create their home along a rabbit proof fence.

Thus, given that it is impossible to objectively determine what exactly a "race" is, it is impossible to "lie" about ones choice to self-identify with one or more of the official legal fictions defined as "race" in the United States. Individuals self-identify with a "race" for political advantage. Governments classify individuals as being a specific "race" for political goals, primarily for the creation of and division of classes which distract individuals' or groups attention from the conduct of the ruling class.

An alternative approach would be to simply decide to not self-identify with any fictional "race" whatsoever, which would also not be a "lie".

The truth of the matter is that the notion of fictional "races" existing in the first instance is the lie itself.

"race" was invented and developed as a political classification system in the western hemisphere during British colonial rule as a social and political control formation. Careful study of Bacon's Rebellion in 1676-1677 in Virginia Colony will reveal that there was no "white" "race" at the time of the rebellion, where several hundred "Negroes" and "Englishmen", united as single group, burned the capital of Virginia Colony, which required a British naval vessel and troops to regain control of the Colony; in general, see The Invention of the White Race by Theodore W. Allen.

"race" is not related whatsoever to biology, genetics or geography. "race" in the United States is entirely a political classification. There is no way that any individual or governmental entity could prove beyond a reasonable doubt or even preponderance of the evidence that the "race" that an individual self-identifies as was or is a "lie".

D. OMB's Decisions

do not establish criteria or qualifications (such as blood quantum levels) that are to be used in determining a particular individual's racial or ethnic classification; and

do not tell an individual who he or she is, or specify how an individual should classify himself or herself.

No individual is obligated to participate in the fraud of there being any such fiction as "race".

Primary source evidence: Egyptian Immigrant Wants to be Reclassified as Black. Where Mostafa Hefny whose origin is Nubia in Africa was classified as "white" for political reasons by the United States, though the individual self-identifies as "black". Rachel Dolezal self-identifies as "black", notwithstanding what is printed on her birth certificate; as she had no choice in the matter as to how a hospital classified her. At some point in here life she made the individual choice to self-identify as "black". The individuals have not been charged or prosecuted by the U.S. for "lying" as to how they have chosen to self-identify, as that would be absurd and preposterous where there is no possible way to prove that the person is not whom they state they are.

No individual or governmental agency can dispute an individuals' decision to self-identify with any so-called "race", for the simple fact that "race" exists only as a legal fiction on governmental documents. No individual is compelled to either self-identify with or recognize one or more particular fictional "race" at all.

What's the value (who benefits) in making what used to be a fuzzy but more or less factual item about national and ethnic origins into a belief-based one, in effect making race into a religion.

No matter how you attempt to rephrase the question historical examination of the subject matter leads directly to the invention of "White-woman" later "race" in the western hemisphere. "who benefits", as mentioned at a previous comment, has been asked here, and placed "on hold". The answer is the individuals who "benefit" politically are the individuals whom self-identify as "white", as those are the individuals whom invented the legal fiction (or, if you prefer, "religion") "white" and "race" at the time (17th and 18th centuries), and the individuals whom self-identify as "white" today.

It is possible, though unlikely, that an answer will be posted by an individual whom self-identifies as "white" clearly stating that their choice to do so is purely based on seeking or consolidating political advantage. Inquiries into what exactly "white" is politically on boards where western academia is active is generally receives "down", "close" and "delete" votes and eventually is closed, no matter how posed, which should provide you with a viable answer to your inquiry nonetheless by means of logical deduction. Even on a site purported to be about "politics" the politics of "white" and "race" is not to be questioned or vetted.

The "religion" description is interesting as it has been stated that there "white supremacy" is the strongest religion that has ever existed.

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    Stimulating, but see also: the fallacy of the beard, and genetic fallacy. – agc Jun 10 '18 at 18:23
  • @agc Not certain how those links are related to the question or answer as to law. In law there are the canons of statutory construction. Briefly, the codified rules of statutory construction if there is ambiguity as to the plain meaning of the words or terms 1) what the words meant when originally used; 2) consult a dictionary, technical document or other primary source to determine what the words mean; 3) what the intent of the legislature or administrative agency was (committees notes; debates; analysis). – guest271314 Jun 10 '18 at 18:36
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    @agc In the present case it cannot be disputed that the terms "black racial groups of Africa" and "North Africa" are not clear, ambiguous and capable of being interpreted more than one way by "the understanding of the common man". "North Africa" does not exist on a map which a "common man" might consult; "black racial groups" implies more than one "black" "race" exists, the precise number remains unclear; "origins in any of the original peoples of" could also be understood as Neanderthal, Denisovan or other species mating with Africans or all peoples are African ("origins"; "original peoples") – guest271314 Jun 10 '18 at 19:09
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    "It is not possible for any individual to dispute what you choose self-identify as, certainly not using the administrative regulations which attempt to define what a "race" or "races" are in the first instance." True but irrelevant. If you self-identify one way and provide a different answer on the census form, you have lied on the census form about race. If you sincerely believe that you are Native American, even though your parents are first generation immigrants from Sri Lanka, you aren't guilty of lying on the census. But, if you gave another answer (e.g. African-American) that's a lie. – ohwilleke Jun 11 '18 at 13:44
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    @guest271314 While you can't change your self-identification more than once in a day, almost nobody does. And, it is well settled law that credibility and truthfulness can be proven with circumstantial evidence. You have fallen into a common mistake of non-lawyers of thinking that "prove" means establish beyond all doubt, when in fact "prove" means to offer admissible evidence that persuades a judge or jury either beyond a reasonable doubt in a criminal case, or by a preponderance of the evidence in a civil case, that something is true. – ohwilleke Jun 11 '18 at 13:59

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