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How To Save Marijuana Social Equity Programs From The Supreme Court’s Affirmative Action Ruling (Op-Ed)



“The solution to saving cannabis social equity programs is thus to concentrate relief to those individuals who were actually arrested, convicted and/or incarcerated (and the immediate families they were separated from), in a completely race-neutral manner.”

By Khurshid Khoja, Greenbridge Corporate Counsel

The U.S. Supreme Court’s move to strike down affirmative action in college admissions on Thursday could have massive consequences for cannabis social equity licensing programs across the country—but there is a solution that can deliver restitution to people harmed by criminalization while also withstanding judicial scrutiny in the wake of the justices’ latest decision.

Some existing social equity programs have already been attacked and even invalidated on the grounds that they violate the Commerce Clause of the U.S. Constitution, because most (though not all) federal courts have equated residency in geographic communities that were disproportionately impacted by the War on Drugs with constitutionally prohibited state residency requirements.

Ironically, the concept of “disproportionately impacted areas” (or DIAs) was intended to serve as a proxy for representing the racial composition of those arrested, convicted and incarcerated for cannabis offenses in a specified area. This was true of the very first social equity ordinance because proponents assumed, perhaps wrongly, that California’s Prop. 209 (banning affirmative action in higher education admissions and other limited contexts) would have prevented the explicit use of race in eligibility criteria for social equity licenses.

Some have argued that the appropriate response to these dormant Commerce Clause challenges to social equity licensing programs is to use race explicitly in the crafting of eligibility criteria. They argue that this would eliminate the ability of communities that have not actually been disproportionately impacted by the War on Drugs (for example, white women in the U.S. Virgin Islands) to take advantage of social equity programs.

Would the new majority opinion in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College by Chief Justice John Roberts now foreclose that option? Not necessarily.

The Court made clear that “remediating specific, identified instances of past discrimination that violated the Constitution or a statute” (such as the disproportionate arrest, conviction and incarceration of Black, brown, minority, poor and politically marginalized communities for nonviolent cannabis offenses) would still be deemed “compelling interests that permit resort to race-based government action.” At the same time, the majority also reminded us that “the Court [has] repeatedly held that ameliorating societal discrimination does not constitute a compelling interest that justifies race-based state action.”

That said, the majority’s conclusions also require drug policy reform advocates to rethink eligibility criteria to exclude factors that aren’t “narrowly tailored” to redress concrete and constitutionally-recognizable injuries that were imposed on nonviolent cannabis offenders.

Per a concurring opinion from Justice Brett Kavanaugh in the new case, “racial classifications are constitutionally prohibited unless they are narrowly tailored to further a compelling governmental interest. Narrow tailoring requires courts to examine, among other things, whether a racial classification is ‘necessary’—in other words, whether race-neutral alternatives could adequately achieve the governmental interest.”

The majority concludes that “the Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause,” because they are not narrowly tailored and “lack sufficiently focused and measurable objectives warranting the use of race…”

Similarly, the use of broad racial classifications (in the absence of concrete injuries) to determine eligibility for social equity licenses may not be “narrowly tailored” enough even for addressing the disproportionate arrest, conviction and incarceration of Black and brown communities for nonviolent cannabis offenses.

Other federal courts restraining the operation of social equity licensing programs (employing residency in a DIA to determine eligibility) have stressed that such eligibility criteria lack even a “rational relationship” to the goal of redressing individual injuries imposed by the War on Drugs, much less the ability to satisfy the much higher constitutional requirement of “narrow tailoring”—which doesn’t bode well for the use of racial classifications alone to determine eligibility.

As an example, see this excerpt from an opinion in a case on Detroit’s marijuana social equity licensing program:

At a minimum, [Detroit’s social equity licensing] Ordinance must pass rational basis review to be deemed constitutional under both the United States and Michigan constitutions. However, the challenged provisions of the Detroit Ordinance do not appear to be rationally related to the stated purpose of rectifying the harm done to City residents by the War on Drugs. As plaintiff convincingly states in her brief: “If the City were truly worried about equity, the Ordinance would target the individuals who need social equity treatment …. But instead, the Ordinance employs a class-based distinction based on duration of residency. It thus prefers wealthy applicants who have had no interaction with the War on Drugs to low-income applicants who have been ravaged by it, so long as the wealthy applicants have lived in Detroit for the right amount of time.”

The same point could easily be asserted of applicants ​qualified solely on the basis of race, religion or sex—many of whom could qualify as social equity applicants without any experience of law enforcement interaction.

The solution to saving cannabis social equity programs is thus to concentrate relief to those individuals who were actually arrested, convicted and/or incarcerated (and the immediate families they were separated from), in a completely race-neutral manner.

This individualized approach would also acknowledge the history of the cannabis reform movement, rather than arbitrarily excluding some nonviolent cannabis offenders who also paid criminal penalties from receiving social equity relief—for example, white cisgendered male activists from San Francisco’s gay community who birthed the medical cannabis movement in response to the AIDS crisis and federal government neglect.

More to the point, by adopting race-neutral eligibility criteria, we can meaningfully remedy the injuries imposed on Black and brown communities who were disproportionately impacted—and do so in a constitutionally defensible manner that will withstand judicial scrutiny in a post-affirmative action world.

Khurshid Khoja is the founder of Greenbridge Corporate Counsel and chair emeritus of the Board of Directors of the National Cannabis Industry Association. He has co-authored model social equity legislation for the Minority Cannabis Business Association.

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Photo elements courtesy of rawpixel and Philip Steffan.

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