I made the government admit it was wrong

At least it looks that way. After my Salon article pointed out errors in a new citizenship test, the feds changed the test.

By Steven Lubet
Published February 21, 2007 12:14PM (EST)

Some people say the Bush administration is characterized by intransigence, so determined to "stay the course" that inconvenient facts are either ignored or denied. Others say it is staffed by incompetent political hacks who are unwilling to admit failure and incapable of recognizing evidence of their own mistakes. But I am pleased to report that I have located at least one small corner of the administration that might not be immune to outside input, and where errors (or some of them) are quickly (if surreptitiously) set right.

On Jan. 3, I published an article in Salon that identified a series of gaffes in the pilot naturalization exam that is now, in February, being administered in 10 cities around the country by the United States Citizenship and Immigration Service. The new test is being taken by 6,000 volunteers in a trial run before it is rolled out nationwide in 2008.

Before I weighed in, the test had already drawn plenty of criticism from immigrants' rights advocates, who called it unnecessarily difficult and pointlessly obscure. There are three questions about the Louisiana Purchase and another asks for the name of the president during World War I -- good things to know, but hardly crucial for good citizenship. The degree of difficulty can be overcome by diligent study, but the test had a deeper defect. As I discovered when I reviewed the full examination, much of it was, well, wrong. Of the 144 pilot test questions, as then posted on the USCIS Web site, 19 were flawed. Some were either misleading or ambiguous, others accepted plainly wrong answers, and still others excluded clearly correct answers.

The article generated a fair number of letters to Salon, as well as some blog buzz, but there was no public response from USCIS and I assumed that was the end of it. Recently, however, I revisited the USCIS Web site, and I was surprised to see that several of the more flagrant errors had been quietly corrected. Unlike the original pilot test, the revised version now accurately states that a member of Congress represents "all people" in his or her district, and not only "citizens." It no longer claims that the president must be born in the United States, or that public safety and education are exclusively the functions of state governments, or that elections in the United States are always held in November.

On the other hand, not every problem was remedied. For example, the test answers still inexplicably insist that only citizens may apply for federal jobs, even though -- as I pointed out in January -- that assertion is flatly contradicted on the U.S. Postal Service Web site, not to mention the fact that legal immigrants serve in the armed forces. There's no telling how many qualified immigrants will be deterred from enlisting by that bit of misinformation, and there's the rub. Aspiring citizens will inevitably use the pilot test as a study guide, carefully memorizing the approved answers without doubting their accuracy, questioning their relevance, or wondering about the ideological implications. Thus, they will be led to believe that "everyone living in the U.S. [has the] right to bear arms." The key word here is "everyone" (a different question asks about citizens' rights), which puts individual gun ownership on the same level as freedom of speech and religion. Such an expansive interpretation of the Second Amendment (apparently extending even to illegal aliens) would probably shock most members of the National Rifle Association, and it goes well beyond the consensus in the federal courts. What's more, the list of everyone's rights rather glaringly omits the rights to due process and equal protection under the law, as well as the right to counsel and to a speedy and public trial, the freedom from unreasonable searches and seizures, and the writ of habeas corpus.

The Second Amendment question suggested a slight conservative tilt to the test, and the newly posted version of the test actually pushes it a little further right. There are suddenly two new questions about the "The Federalist Papers." Am I a conspiracy theorist if I suspect that to be the anonymous handiwork of some Federalist Society sympathizer? Who else but a member of that conservative organization would care if immigrants know that "Publius" was the pen name used by James Madison, Alexander Hamilton and John Jay? Another new question asks, rather awkwardly, "What does it mean that the U.S. Constitution is a constitution of limited powers?" An approved answer is that "the states have all powers that the federal government does not." That revelation might warm unreconstructed hearts in certain extreme states-rights circles, but it is manifestly untrue according to the Supreme Court's long-standing interpretations of the First and Fourteenth Amendments. The federal government does not have the power to establish a religion, for example, or to abridge freedom of the press, and neither do the states.

Still, the pilot naturalization exam is obviously a work-in-progress, so I suppose I should be happy that USCIS seems to have accepted at least a few of my corrections, or the corrections of someone very much like me. Of course, it would have been nice to see some acknowledgment of the recent changes. Perhaps the USCIS could publish a note on its Web site recognizing Salon's influence or, better yet, attributing the improvements to me. Maybe if I changed my name to Publius...

Steven Lubet

Steven Lubet is the Williams Memorial Professor of Law at Northwestern University.  His most recent book is John Brown’s Spy: The Adventurous Life and Tragic Confession of John E. Cook.

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