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Steven Kinnunen

University Affirmative Action Programs Face New Challenges

August 31, 2017 by Steven Kinnunen Leave a Comment

When the Justice Department announced in early August that it intended to investigate the admissions practices of selective universities, the reaction was mixed. Many supporters of the Trump Administration celebrated the news as a signal that white applicants might no longer be rejected in favor of those from historically underrepresented groups. Meanwhile, those who have long defended affirmative action policies saw the move as yet another indication that the Administration was working to turn back the clock on civil rights, and that affirmative action policies in general were doomed.

The simple truth of the matter is that affirmative action programs have been highly controversial from the time they came into wide use in the 1970s. An overview of affirmative action from 1978 forward shows that neither the law nor the arguments for and against affirmative action has changed very much at all. What has changed over the last 40 years are the tactics used by activists, administrators and policymakers on both sides of the issue.

In 1978, the Supreme Court announced a confusing decision in Regents of the University of California v. Bakke, 438 U.S. 265, which upheld the principle of affirmative action in university admissions while striking down the quota-based system in use at the University of California-Davis medical school. Bakke was a white Vietnam war veteran with an outstanding service record and impressive MCAT scores who tried for several years without success to get into medical school. He was rejected everywhere, mainly on account of his age — Bakke was in his early 30s, which was considered in those days to be too old for medical school.

Bakke finally applied to UC-Davis, which at the time reserved 8 of its 100 admission slots for minority applicants. He was rejected there, too. He sued the school on the grounds that its quota system violated his right to equal protection under the law under the 14th Amendment. The California Supreme Court eventually agreed with him, and he was admitted to the Davis medical school.

The University of California Regents then sought further review in the U.S. Supreme Court, which held that the practice of reserving designated class space for any particular group was a violation of Bakke’s equal protection rights, but that more nuanced affirmative action programs that reasonably seek to redress historical patterns of discrimination were permissible. This opened the door toward widespread adoption and expansion of affirmative action policies that considered race, sex or other characteristics as just one factor among many in university admissions decisions, even throughout the Reagan and Bush administrations in 1981-93.

Affirmative Action Pushback and Workarounds

The first successes in the fight to dismantle affirmative action programs came not through legislation or the courts, but through the ballot box. Voter initiatives and ballot propositions to reject race or ethnicity as legitimate factors in university admissions began with California’s Proposition 209, which was approved by voters in 1996. Similar measures were soon passed afterward in Michigan and Washington state. Nebraska, Arizona and Oklahoma have followed suit since then. Texas eliminated race as an admissions consideration by court order, Florida abolished racial considerations in affirmative action by executive decree, and in 2011, the New Hampshire legislature passed a bill to the same effect.

Most of these states have other programs in place to achieve goals similar to those of affirmative action programs. For example, California, Texas and Florida have so-called percent plans, which offer automatic admission to a state college or university if a student graduates in the top 4 percent (California), 10 percent (Texas) or 20 percent (Florida) of the student’s graduating high school class.

Other conditions and restrictions concerning academic rigor, course distribution and similar factors apply under each of these programs. In California and Florida, the offer applies to state institutions in general, not necessarily the student’s first choice. In Texas, however, the student actually gets to choose the school.

At UT-Austin, 75 percent of each freshman class is reserved for students who qualify under the Texas 10-percent plan, which makes competition for the remaining places extremely tight. In fact, the 75-percent cap means that the 10-percent qualifying rule might only cover the top 7 to 9 percent of graduating students in a given year.

The percent plans widen the admission opportunities for motivated students from disadvantaged backgrounds and who attend minority-dominated high schools to gain admission to colleges and universities — instead of competing with a broader applicant pool largely composed of students with much better access to academic resources, they’re competing with their own classmates, who frequently have similar ethnic, family income, and academic support characteristics.

Another strategy, such as the one in use at the University of Washington, is to invite consideration of socioeconomic factors and hardship narratives not explicitly linked to race in order to achieve substantially the same goals as a race-based affirmative action program.

Some schools, such as the University of Georgia and Texas A&M University, have abandoned longstanding legacy preference practices, under which children or grandchildren of alumni are given special consideration in admissions decisions. This practice obviously tends to undermine the goals of affirmative action by reinforcing established elite networks.

Are Asian-American Applicants Helped or Harmed by Affirmative Action?

One relatively new element in the affirmative action debate concerns Asian- American students. In 2015, a coalition of 64 Asian advocacy groups asked the Justice Department to investigate whether the nation’s most selective universities were discriminating against Asian-American applicants. This is the complaint that the Department recently revived.

While Asian-Americans make up less than 6 percent of the population nationally, they represent 22 percent of Harvard’s incoming freshman class. How can that be discrimination? The advocacy groups argue that the most selective universities apply an arbitrary cap to Asian-American admissions, and thereby reject Asian candidates who would have been admitted if they were of any other ethnicity. One 2009 study found that Asian-American applicants need to score 140 points higher on the SAT than other groups in order to be considered on an equal footing.

Careful and limited consideration of race continues to be permissible in university admission decisions, at least where state ballot measures or legislation haven’t prohibited affirmative action. This principle was upheld last year by the Supreme Court in Fisher v. Texas. Decided by a 4-3 vote after the death of Antonin Scalia, the Fisher decision was argued and determined on grounds not much different from those raised in the Bakke case almost 40 years earlier.

All of which means that our nation continues to debate the fairness of potentially discriminating against one group in order to prevent discrimination against another group. While the equal protection arguments raised by opponents of affirmative action make a certain intuitive sense, Justice Blackmun’s answer in his Bakke opinion (438 U.S. at 407) continues to resonate:

I suspect that it would be impossible to arrange an affirmative-action program in a racially neutral way and have it successful. To ask that this be so is to demand the impossible. In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently. We cannot – we dare not – let the Equal Protection Clause perpetuate racial supremacy.

Filed Under: News Tagged With: Politics

Is the 2020 Census in Trouble?

August 16, 2017 by Steven Kinnunen Leave a Comment

Required every ten years as prescribed in the Constitution, the next U.S. Census is scheduled to take place on April 1, 2020. Data generated by the census dictates each state’s representation in Congress for the next ten years. Each state’s electoral votes can increase or decrease accordingly. The redistricting of congressional and legislative districts within states also depends on census data.

Federal spending in the range of $600 billion is proportionately distributed among the states based on census information. Private industry uses census data for a variety of planning, marketing and growth-management decisions. Meanwhile, as the U.S. population continues to grow, the task of counting 325 million-plus Americans is becoming more complex and more expensive.

How will the census fare under the new Trump administration? So far, the outlook is not too bright. While the White House has taken no steps to interfere with the work of the Census Bureau, it has done little or nothing to support it, either. The top two leadership positions in the Bureau are now vacant, and the president has yet to nominate anyone to head the census. As of August 2017, the 2020 Census faces significant problems in the following areas:

Insufficient Congressional Funding

The average cost of counting Americans has risen in constant dollars from $16 per household in 1970 to $92 in 2010, mainly because Americans in general increasingly have been ignoring the census questionnaires that are sent to every household. The mail-back response rate fell from 78 percent in 1970 to 63 percent in 2010, according to Government Accountability Office (GAO) figures. Anyone who does not complete and return their census form will be visited by a census enumerator, up to six times if necessary. And that’s expensive.

On the face of it, the Census Bureau fared relatively well in the proposed White House 2018 budget, because it was granted a slight increase of $50 million over its 2017 funding — a sharp contrast to the deep cuts imposed on most other domestic government agencies and functions. Previous budget projections would have provided an additional $200 million to the Census Bureau in 2018. The 2020 Census will almost certainly be forced to count a larger and less-responsive population with fewer resources.

According to the GAO, the 2010 Census was the most expensive American census in history. It cost about $12.3 billion, which reflected a constant-dollar increase of 31 percent over the cost of the 2000 Census. Right now, the Census Bureau is committed to operating under a congressional mandate that the 2020 Census will cost no more than the 2010 count, or about $13 billion in constant dollars. The Bureau hopes that it can find about $5 billion in savings through technology-driven efficiencies, but it has shown little actual ability to do so. Developed in October 2015, the Bureau’s cost estimate for the 2020 Census will be updated this summer, and it seems likely that the cost will ratchet upward.

Funding problems have already begun to affect the Census Bureau’s work. The 2018 End-to-End Test, a comprehensive dry run of the 2020 Census, was supposed to begin next summer in Providence County, R.I., Pierce County, Washington, and a nine-county rural area in southeastern West Virginia. This plan was recently scaled back to full execution only in Rhode Island, due primarily to the $150 million shortfall between the Obama and Trump administrations’ projected census funding for fiscal 2018. Field testing of new methodologies scheduled for 2017 was cancelled in October 2016.

Unstable Leadership

The Director of the Census Bureau is appointed by the president and confirmed by the Senate. Just a few days after his testimony before a House subcommittee in May 2017, Census Director John Thompson resigned his position. The deputy director, Nancy Potok, left her Bureau office in January to accept another federal appointment. Commerce Secretary Wilbur Ross named Jon Larmin to serve as acting director and Enrique Lamas as acting deputy director on June 29. Both interim appointees are long-term Census officials who have served in various capacities with the Bureau, but neither has much job security. Either the President or the Secretary of Commerce could replace either or both officials on little notice.

If the President or Secretary names new officials to replace the current Census leadership with little time remaining before the 2020 Census, the Bureau’s current challenges could be compounded by a loss of continuity, decline in morale, and sudden shifts of emphasis — all of which could affect the reliability and cost of the 2020 Census results.

Concerns Over Technology

Congress apparently expects the use of high-tech data gathering methods to help cut the costs of performing the 2020 Census. Internet census returns have been considered as a way to reduce the expense of field operations, but it’s hard to imagine that declining public confidence in online data collection will result in higher or less-expensive return rates from American households. Hacking scandals in banking, retail, entertainment, politics and other areas are becoming more frequent, not less, and public skepticism over cybersecurity will represent an important barrier to full participation.

It is not yet clear that the 2020 Census is committed to substantial public participation online, but it seems doubtful that an option to return the census questionnaire over the internet will significantly increase the return rate over 2010’s 63 percent. Meanwhile, the Census Bureau’s current cost overruns primarily involve the difficulty in developing electronic data collection methods that are accurate, effective, scalable and secure. To the greater extent that Americans fail to respond to census questionnaires either by mail or online, the more dependent the Census will be on the highly expensive task of having enumerators go from door to door in order to count everybody.

The GAO has identified the 2020 Census as a government program at high risk of vulnerability to fraud, waste, abuse, or mismanagement, or most in need of transformation. We’ll find out soon whether this assessment has generated enough concern to result in the corrective actions necessary to make our next census a success.

Filed Under: News Tagged With: Politics

Presidential Election Integrity Commission Bogs Down in Voter Privacy Fight

July 20, 2017 by Steven Kinnunen Leave a Comment

When President Trump issued his May 11 executive order creating the Presidential Advisory Commission on Election Integrity, the move was hailed by some as an important step toward reducing the risk of voter fraud in American elections. Other commentators, pointing to the absence of documented voter fraud beyond a few isolated cases, considered the new Commission to represent little more than a tool for promoting stricter voter registration requirements that would disproportionately affect younger voters, low-income voters, naturalized voters, and voters of color.

Barely two months after its creation, the Commission finds itself embroiled in controversy on multiple fronts. Practically none of the states requested to provide comprehensive voter information to the Commission have done so by the original July 14 deadline, and at least six legal or administrative complaints have been filed to challenge the Commission’s creation and functions.

On July 10, the Commission administrator asked states not to provide the requested data until a United States District Court rules on a motion for temporary relief based on the Commission’s alleged violations of the E-Government Act of 2002, which requires federal agencies to conduct a Privacy Impact Assessment for any data systems that contain personally identifiable information. The motion was filed by the Electronic Privacy Information Center (EPIC) on July 3.

In the previous week, Commission Vice-Chair Kris Kobach requested that the secretaries of state for each state and the District of Columbia provide the following information with respect to each registered voter in each jurisdiction:

  • Full name
  • Address
  • Dates of birth
  • Political party
  • Last four digits of Social Security numbers
  • A list of the elections voted in since 2006
  • Felony convictions
  • Voter registration information from other states
  • Military status
  • Whether voters lived overseas

EPIC’s motion for temporary relief argued that release of this voter information would “increase the risks to the privacy of millions of registered voters—including in particular military families whose home addresses would be revealed—and would undermine the integrity of the federal election system. Further, the request for partial Social Security Numbers that are often used as default passwords for commercial services, coupled with the Commission’s plan to make such information ‘publicly available,’ is both without precedent and crazy.”

The requested individual voter data was to have been sent by the states to the U.S. Army’s SAFE website, which in turn was to have forwarded the data to White House servers. The Army itself is a defendant in a recent lawsuit filed by Public Citizen, Inc., which alleges that using the Army website for the Commission’s work violates the Administrative Practices Act and the Privacy Act of 1974.

It’s unclear why the Commission started its work with this blanket request for individualized voter information data. The request appears to be outside the scope of the stated purpose of the Commission to (1) identify laws and practices that strengthen public confidence in federal voting procedures, (2) identify laws and practices that undermine confidence in such procedures, and (3) identify the vulnerabilities that could lead to improper or fraudulent registration and voting in federal elections. Once the Commission delivers its report to the President on these three points, its work will be complete and it will dissolve.

In the near term, however, the Commission’s activities are likely to be bogged down in litigation and noncooperation from state election officials. It remains to be seen whether the Commission on Election Integrity will backtrack and demonstrate its compliance with the Privacy Act, the E-Government Act, the Federal Advisory Commissions Act, and the Administrative Procedures Act before renewing or refining its request for sensitive individual voter data.

Filed Under: News Tagged With: Politics

Will U.S. Truck Safety Improve Under the Trump Administration?

July 13, 2017 by Steven Kinnunen Leave a Comment

Like most other federal agencies, the Federal Motor Carrier Safety Administration (FMCSA) is still waiting for President Trump to nominate an Administrator to lead its operations. For the moment, the main government agency responsible for maintaining the safety of the nation’s interstate trucking system is headed by a holdover deputy administrator.

In the meantime, the FMCSA has backed away from several rulemaking initiatives held over from the Obama administration, and the agency is under heavy industry pressure to relax or eliminate a number of safety regulations. How will truck safety be affected in the years to come?

The current trend has been running in the wrong direction for several years. While fatal crashes involving large trucks or buses declined by 34 percent from 2005 to 2009, they’ve climbed by 20 percent between 2009 and 2015. Especially problematic is the single-year increase of 5 percent in fatal accidents in 2015 over 2014.

Despite the recent increase of heavy-duty vehicle crash fatalities, industry advocates have renewed their request for raising the standard weight limit for semi tractor-trailer combinations from the current 80,000 pounds to 91,000 pounds. Similarly, many trucking companies would like to see standard trailer size increase from 28 feet to 33 feet. Efficiency and increased productivity are cited as the main reasons for these regulatory requests, while opponents point to additional strain on substandard bridges and roads as a sound basis for rejecting them.

Government Regulators Abandon Effort to Increase Insurance Coverage Minimums

The FMCSA recently abandoned a rulemaking procedure for raising liability insurance minimums that had been working its way through the system since late 2014. Minimum insurance requirements have not been raised since 1985, when the current coverage minimums were established: at least $750,000 for general freight, $5 million for the most dangerous hazardous freight, and $1 million for other hazardous freight.

The agency has also suspended rulemaking activity in two different areas: annual inspections of passenger carrier vehicles — that is, interstate buses — and operator fitness standards. One regulation that apparently remains unaffected by the new administration concerns the upcoming transition to electronic logging devices, or ELDs. Nonexempt owners and operators must comply by December 2017 with the new requirement to convert paper driver’s logs to onboard data recording systems.

Until a new Administrator is nominated and confirmed to define the priorities and performance of the FMCSA, it is impossible to say just how the agency will protect the driving public while recognizing the legitimate needs of the trucking industry’s various stakeholders. For the moment, the agency is bound by the administration’s executive orders that discourage new regulation while finding ways to reduce or eliminate bureaucracy and unnecessary government interference with free markets.

Going forward, however, it seems unlikely that the FMCSA will be able to resist the trend toward deregulation without making the recent unfavorable trends in U.S. trucking safety even worse.

Filed Under: Business

The Difficulties with Risk Assessment Software in Sentencing

July 5, 2017 by Steven Kinnunen Leave a Comment

For many years, criminal courts throughout the United States have struggled with a critically important issue: how do you fairly determine whether a particular defendant is a good risk for bail, probation, or a light prison sentence? Many jurisdictions today turn to predictive risk assessment software to help guide such decisions. There’s a catch, however — the algorithms that translate input data into risk assessment scores are proprietary software, and neither courts nor lawyers know just how such scores are generated.

Obvious issues of fairness in sentencing and due process lurk behind the use of proprietary software in bail and sentencing decisions, but for the moment, they will remain matters for academic debate. On June 26, the U.S. Supreme Court denied a petition for further review in Loomis v. Wisconsin, where a man who pleaded guilty to lesser charges of fleeing an officer and operating a vehicle without authorization received a six-year sentence for his role behind the wheel in a drive-by shooting that resulted in no injuries.

The prosecution alleged that Loomis drove the car during the shooting, while the defendant maintained that he only drove the vehicle afterward. Either way, the charge was dropped as part of the plea negotiation, but all five of the original charges, including weapons offenses, were in the record at the time of sentencing. Loomis also was identified as a high-risk offender through Northpointe Inc.’s COMPAS risk assessment software.

Loomis unsuccessfully challenged his sentence all the way to the Wisconsin supreme court, which upheld the trial court’s decision, even though neither the sentencing judge, the prosecution, nor the defense attorney knew just how proprietary risk assessment software processed the answers to a 137-question survey completed by corrections officers and Loomis himself.

The basis of the appeal was denial of due process through the use of a proprietary risk assessment tool that could not be examined or challenged for scientific validity, due to its guarded proprietary nature. While the Wisconsin supreme court recognized that a criminal defendant has the right to be sentenced on the basis of accurate information, the court also observed that the same sentence would have been ordered anyway. Nevertheless, both the prosecution and the court made frequent reference to the COMPAS risk assessment during the arguments in court.

Wisconsin’s high court implicitly found that the sentencing judge correctly followed the instructions that accompanied the risk assessment tool, including this caveat: “It is very important to remember that risk scores are not intended to determine the severity of the sentence or whether an offender should be incarcerated.”

The sentencing judge pointed to several factors that supported a heavy sentence apart from the high-risk scores that the COMPAS tool assigned Loomis. The state supreme court therefore held that because other information in the record was sufficient to support the sentence, the use of the proprietary software to characterize the defendant’s risk was not a violation of his due process rights.

Eric Loomis might not have been the most sympathetic felon to have challenged the use of proprietary risk assessment software in sentencing decisions. He was a registered sex offender with a long rap sheet, including four arrests while on probation. The broader point, however, that closely guarded algorithms can determine the fate of criminal defendants, continues to generate vigorous legal and public policy debate around the country.

One version of nonproprietary risk assessment software has been found to reduce incarceration with no cost to public safety in Virginia, where fewer defendants are being sent to prison after conviction. Elsewhere, a controversial study of the COMPAS software in Broward County, Florida was found to understate the reoffense risk of white defendants while overstating that of African-Americans, even though no racial data is used in generating the risk assessment scores. Subsequent research has challenged the findings and methods of the Florida study.

As the dependence of American society on Big Data continues to deepen, the use of proprietary software in court decisions concerning bail, incarceration, or release can be expected to increase. What remains in question is the willingness of policymakers and courts to make sure that such decisions are made without excessive reliance on computer systems that lack transparency or external validation.

Filed Under: Technology Tagged With: sentencing, Supreme Court

SCOTUS Strikes Down North Carolina Social Media Restriction for Registered Sex Offenders

June 26, 2017 by Steven Kinnunen Leave a Comment

SCOTUS Exterior

In Packingham v. North Carolina, the United States Supreme Court invalidated a North Carolina statute prohibiting certain social media use by registered sex offenders. The decision is widely regarded as the Court’s acknowledgment that social media use is a practical necessity in 21st-century American society as well as a platform for the free expression protected by the First Amendment.

At the time of his sex offense in 2002, Lester Packingham was a 21-year-old college student who was convicted of indecent liberties with a child — he had sex with a 13-year-old girl. Packingham had no prior criminal record, and received a suspended sentence of 10 to 12 months of incarceration with a 24-month period of supervised release. He was, however, required to register as a sex offender for at least ten years.

In 2008, about halfway through Packingham’s minimum registration period, North Carolina enacted its social media restrictions for sex offenders. The new statute made it a felony for a registered sex offender, if aware that minors might use them as well, to use social media websites with the following characteristics: 1) generating revenue via advertising or otherwise, 2) facilitating contact between users, 3) allowing users to create profiles, and 4) providing ways for users to communicate with each other through message boards, chatrooms, e-mail, or other means. More than 1,100 people have been charged with violating this statute in North Carolina.

It is not known whether Packingham was specifically advised of this legislative action. He had completed his probation several years previously, and he apparently led his life as a law-abiding citizen until he was stopped and cited for a traffic violation in 2010. When he showed up for the hearing, he discovered to his delight that the charge had already been dismissed. So, there was nothing else to do but post this triumph on Facebook!

Unbeknownst to Packingham, a local police officer was monitoring the social media accounts of registered sex offenders and obtained a warrant to search Packingham’s computer. It was discovered that Packingham was in at least technical violation of North Carolina’s new sex offender social media restrictions, and he was indicted and charged accordingly.

Packingham challenged the prosecution on First Amendment grounds as an unreasonable restriction on his free speech rights. The trial court rejected the challenge, the state court of appeals upheld it, and the North Carolina supreme court rejected the First Amendment challenge again, upholding the state law as “constitutional in all respects.” Packingham was ultimately convicted and given a suspended sentence. The U.S. Supreme Court granted his petition for review, and unanimously struck down the North Carolina statute.

Justice Kennedy wrote the five-justice majority opinion, which essentially points out that so many websites offer the features North Carolina prohibits for sex offenders that the statute represented an unreasonable restriction on free expression rights. Justice Kennedy observed that the statute would prohibit a registered sex offender from visiting Amazon, WebMD, or the Washington Post online. The majority opinion specifically protected the ability of states to restrict sex offender Internet use more narrowly, thereby balancing the state interest in protecting minors with the interest of past offenders in legitimate Internet use.

One of the more interesting aspects of the Packingham decision is found in Justice Alito’s concurring opinion, joined by Chief Justice Roberts and Justice Thomas. While Justice Alito agreed with the result, he criticized the majority for its “undisciplined dicta” in the form of “musings that seem to equate the entirety of the internet with public streets and parks.” Then Justice Alito indulged in some undisciplined dicta of his own:

Repeat sex offenders pose an especially grave risk to children. “When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.” (Citations omitted.)

This is simply not true, according to the Washington Post Fact Checker. Sex offenders are actually among the least likely felons to reoffend with a similar crime. Only 5.6 percent of those convicted of rape or sexual assault were arrested for another sex offense within five years after release, according to a 2014 Bureau of Justice Statistics report. Far more likely candidates for recidivism on similar charges are persons convicted of drug crimes (51.2 percent), larceny or car theft (41.4 percent) assault (34.4 percent), or fraud or forgery (29.7 percent).

If Justice Alito had used his own unrestricted access to the Internet to find this data, perhaps he would not have made such an undisciplined and ill-informed statement in his concurring opinion.

Filed Under: News Tagged With: social media, Supreme Court, technology

New York State Bans Child Marriage

June 22, 2017 by Steven Kinnunen Leave a Comment

New York Governor Andrew Cuomo signed into law a bill to prohibit marriage involving minors under age 17. Seventeen-year-olds can still marry with parental consent and judicial approval, but there will be no more marriages in New York state for younger teens. The new statute went into effect July 20, 2017.

Under the previous 1929 statute, teens as young as 14 could marry with parental consent and a judge’s approval, but they couldn’t divorce until they reached the age of 18. A similar bill to raise the marriage age was introduced in the New York legislature in 2016, but failed to pass the lower house’s Judiciary Committee.

State records indicate that 3,850 minors were married in New York State in 2000-10. Girls represented more than 80 percent of the young newlyweds, with many marrying significantly older men. According to New York Assemblywoman Amy Paulin, Democrat from Scarsdale, who sponsored the bill in the lower house, “Child marriage is just not a problem that occurs in countries on the other side of the globe, but it happens right here in our very own back yard. Child marriage is forced marriage. It is driven by poverty, deeply embedded beliefs and signifies a pervasive discrimination against young girls.”

New Jersey Governor Refuses to Sign Similar Minor Marriage Ban

Meanwhile, in neighboring New Jersey, Governor Chris Christie recently refused to sign a bill that would have barred marriage outright for anyone under 18. The governor’s conditional veto message explained that “the severe bar this bill creates is not necessary to address the concerns voiced by the bill’s proponents and does not comport with the sensibilities and, in some cases, the religious customs, of the people of this state.” If the New Jersey Legislature amends the bill to provide for exceptions covering 16- and 17-year-olds, the governor indicated a willingness to sign the bill into law.

Advocates of legislation raising the marriage age are skeptical of parental and judicial consent provisions that allow persons aged 16, 17 or even younger to marry. They claim that parental consent can simply present a respectable front for parental coercion, and that teen girls are pressured to say the right things to obtain a judge’s approval where court permission is necessary to marry below a certain age.

Fraidy Reiss, an activist opposed to coerced child marriage, told the New York Times: “The judicial review process is evil because it puts the onus on a 17-year-old girl to find a way out of this situation. If she tells the judge she does not want to marry, her parents will know she said that. We have seen parents retaliate in many ways — locking a girl in her room or taking her overseas and forcing her to marry there.”

The legislative movement to raise marriage ages around the country is gaining momentum, with similar bills pending in Texas, Connecticut, Missouri, and other states. Virginia raised its marriage age to 18 last year, with exceptions for minors 16 or older who have been emancipated by court order.

Filed Under: News Tagged With: Marriage, New York

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