“The only way to save cannabis social equity programs would be to give relief to the individuals who have been arrested, convicted or incarcerated and their immediate families in a race-neutral fashion.”
Khurshid Khoja is Greenbridge Corporate Counsel
The U.S. Supreme Court decision to ban affirmative action for college admissions could have huge consequences on cannabis social equity licensing across the nation. But there is a way to provide restitution for people who were harmed through criminalization, while still standing up to judicial scrutiny following the latest justices’ decision.
Several existing social equity programs are already being attacked or even invalidated on grounds that they violated the Commerce Clause in the U.S. Constitution. This is because federal courts (but not all) have equated the requirement of state residency for residents to reside in communities that have been disproportionately affected by the War on Drugs, with the constitutionally prohibited requirements.
Ironically, “disproportionately impacted area” (DIAs) is a concept that was created to represent the racial makeup of people arrested, convicted, and incarcerated in a specific area for cannabis offenses. It was the first social equity ordinance that did this, because its supporters assumed – perhaps incorrectly – that California’s Proposition. The 209 law (which bans affirmative action for higher education admissions, among other contexts), would have prevented explicit use of race as an eligibility criteria in social equity licenses.
Some people have suggested that the best way to address these dormant Commerce Clause issues with social equity licensing programs would be to explicitly use race in the creation of eligibility criteria. Some argue that this would prevent communities who have not been disproportionately affected by the War on Drugs from being able to benefit from social equity programs (such as white women living in the U.S. Virgin Islands).
Does the Chief Justice John Roberts’ new majority opinion on Students for Fair Admissions, Inc. v. President & Fellows Harvard College now preclude that option? Not necessarily.
The Court clarified that “remediating certain, identified instances” of past discrimination (such as the disproportionate arrests, convictions and incarcerations of Black, Brown, minority, poor, and politically marginalized groups for nonviolent marijuana offenses) will still be considered “compelling interest,” which allows recourse to race-based government actions.
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.
According to Justice Brett Kavanaugh’s concurring opinion in the new case “racial categories are constitutionally forbidden unless they are narrowly tailored for a compelling government interest.” Narrow tailoring means that courts must examine, amongst other things, if a racial designation is “necessary”–in otherwords, whether race neutral alternatives could achieve the government interest.”
The majority of the court concludes that the Harvard and UNC Admissions Programs cannot be reconciled to the Equal Protection Clause, because they “lack sufficient focused and measurable goals warranting the usage of race …”
In the same way, the use a broad racial classification (in the absence concrete injuries) in determining eligibility for social justice licenses might not be “narrowly targeted” enough to address the disproportionate arrests, convictions and incarceration for nonviolent marijuana offenses of Black and Brown communities.
Other federal courts that have ruled against the operation of social justice licensing programs (using residency in a DIA as a criterion for eligibility) have stated that these eligibility criteria do not even “have a rational relationship” with the goal of redressing the individual injuries caused by the War on Drugs. They also fail to meet the constitutional requirement of “narrow tailored” which is much more stringent.
See this example of an opinion from a case about Detroit’s social equity licensing program for marijuana:
The [Detroit social equity licensing] ordinance must at least pass a rational basis review in order to be considered constitutional under the United States Constitution and Michigan Constitution. The challenged provisions of Detroit’s Ordinance, however, do not seem to be rationally connected to the stated goal of rectifying harm caused to City residents by War on Drugs. Plaintiff states convincingly in her brief that “If the City was truly concerned about equity, then the Ordinance would be targeted at individuals who needed social equity treatment …. The Ordinance instead uses a class-based classification based on the length of residence. It prefers wealthy applicants, who have not been affected by the War on Drugs, to low-income applicants whose lives have been devastated.
It is easy to say that the same thing could be said of applicants who are qualified solely based on race, religion or gender. Many of these applicants could qualify as applicants for social equity without having any prior experience with law enforcement.
In order to save cannabis social equity programs, it is important to provide relief to individuals who have been arrested, convicted or incarcerated and to their immediate families.
This individualized approach would acknowledge the history and the reform movement of cannabis, instead of arbitrarily excluding nonviolent cannabis offenders, who have also paid criminal penalties, from receiving social equality relief. For example, the white cisgendered gay men from San Francisco who started the medical cannabis movement as a response to the AIDS epidemic and federal neglect.
It is important to note that by adopting a race-neutral criteria for eligibility, we are able to remedy the harms caused to Black and Brown communities, who were disproportionately affected. We can do this in a way that is constitutionally sound, which will stand up under judicial scrutiny after the end of affirmative action.
Khurshid Khoja founded Greenbridge Corporate Counsel. He is also the chair emeritus of National Cannabis Industry Association’s Board of Directors. He co-authored a model of social equity legislation for Minority Cannabis Business Association.
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The article Marijuana Moment : How to Save Marijuana Social Equity Programs from the Supreme Court’s Affirmative action Ruling first appeared on Marijuana Moment .
