In recent years, the larger public has become more aware of issues dealing with racial justice. Grappling with tough issues such as racial justice means finding a way towards equity. As that awareness increases, so does overall mindfulness around the consequences of inequity. Legislators on the state level are figuring out creative ways to shape policy and govern using an equitable framework. This means encouraging, developing, and sustaining a model of governance that is based on not only identifying systemic racism and injustice but also reaching a point where communities are finally eliminating those problems.

However, that’s not as easy as it sounds. Arriving at an equitable governance solution is an uphill battle, especially since state legislatures have been embroiled in intense partisanship and explosive battles over issues on voting rights, Critical Race Theory, and the environment. This leads to an inability for legislators to navigate race and inequity together.

The legislators who do have the background and lived experience to address equity issues – Black, Brown, Indigenous, and Asian-Pacific Islander policymakers or “BIPOC” – feel increasingly alienated in these institutions.

Racial Impact Statements

Still, in recent years, BIPOC legislators have been quietly influential on issues such as the inclusion of “Equity Impact Assessments” or “Racial Impact Statements” in all policies or bills passed into law. That would mean, generally, for legislators to codify equity or to make it permanent: every bill a legislator or group of legislators create must go through a rigorous evaluation to determine if it meets certain equity criteria and to ensure that, when it becomes law, it does not create unnecessary and destructive racial disparities.

These efforts taking root over the years encouraged multiple legislators in nine states so far – Colorado, Connecticut, Florida, Iowa, Maine, Maryland, New Jersey, Oregon, and Virginia – to pass and then install a “racial impact statement” process in their overall legislative process. As of last year, 2021, Maine, Maryland, and Virginia passed bills making these statements a permanent feature. Meanwhile, it’s pending in a dozen other states. As USA Today reported in November …

[I]n many states, lawmakers long have used so-called fiscal impact statements to predict how much money proposed laws will cost or save. Now more legislators want to use racial impact statements to predict how a particular measure might harm—or help—racial and ethnic groups or widen racial disparities. 

This work to expand “racial impact statements” as central policy-making tools is something that was underway long before the social justice reckoning in the wake of George Floyd’s murder. Legislators of color, in particular, had been formulating strategies and drafting legislation to introduce these measures, with emphasis placed on disparities in the criminal justice system as The Sentencing Project outlines in a June briefing. Former Sentencing Project executive director Marc Mauer noted in 2009 in the American Bar Association’s Criminal Justice Journal …

The premise behind racial impact statements is that policies often have unintended consequences that would be best addressed prior to adoption of new initiatives. In this sense they are similar to fiscal and environmental impact statements. Policy makers contemplating new construction projects or social initiatives routinely conduct such assessments, which are now widely viewed as responsible mechanisms of government. Racial impact statements are particularly important for criminal justice policy because it is exceedingly difficult to reverse sentencing policies once they have been adopted.

That process has accelerated and expanded to include more than just incarceration policy – even as legislatures have become more divided on a wide range of other issues. There have also been an increasing number of efforts to facilitate forums, workshops, and legislative drafting sessions for policymakers. Here’s a recent virtual discussion by the Urban Institute about the benefits – and challenges – of incorporating racial equity analysis in criminal justice reform.

Defining Equitable Governance

In an effort produced and hosted by the Council on Communities of Color at the Council of State Governments Eastern Regional Conference, participants at CSG’s National Summit in Santa Fe, New Mexico this past December were presented with “Equitable Governance: Achieving a Better and More Just Policymaking Model.” This panel of three experts, mostly legislators, first discussed the inequity mostly marginalized Black, Brown, Indigenous, and other frontline people of color communities regularly face. However, the bulk of the 2-hour panel focused on how to reverse and permanently fix that inequity by embedding an equitable governance model in the policy-making process.

The panel was constructed by Debbie-Ann Paige, founding director of The Council of Communities of Color at CSG East. The moderator, Charles Ellison, is a senior fellow with CSG East’s Council on Communities of Color. Offering observations and guidance were CSG West Vice-Chair and California Assemblyman Mike Gipson, along with Illinois Assistant Majority Leader State Representative Marcus Evans and social epidemiologist Dr. Kevin Ahmaad-Jenkins, who is also a lecturer at the University of Pennsylvania.

According to the panelists, state legislatures and local governments represent the best opportunity to advance an equitable governance framework when passing legislation and implementing policy. Advocating, legislating, and implementing policies that directly improve the quality of life for all citizens can only be achieved through equitable governance. “It’s really important for the nation’s leaders to understand that equity is their job, not charity. Equity doesn’t have to be re-engineered, it is an iterative process,” said Dr. Jenkins.

What exactly is Equitable Governance? For the purpose of the discussion, the CCC’s draft definition was presented as the following …

Equitable Governance is the preferred and evidence-based policymaking vehicle by which all policy is conceived and created through equity-based assessments and metrics. State, local and federal leaders center equity and, ultimately, just outcomes in the conceptualizing, evaluation, debate and passage of all legislation and policy, regardless of issue or topic.

The framework of Equitable Governance would, first, demand that policymakers acknowledge the systemic inequities corrupting and destroying every aspect of American life. Once that understanding is established, the only real way to eliminate those inequities is through a governance model that strives for equitable outcomes, on all levels, in the private and public sectors. For example, advocates, experts, policymakers, and constituents – all key stakeholders on any issue – have all generated consensus around systemic racism as the root cause of ongoing academic achievement gaps disproportionately impacting Black, Brown, and Indigenous students. Hence, the next step is to incorporate a model that demands a top-down equity review of education bills and, ultimately, legislation that mandates school districts operate in a manner that always results in equitable outcomes.

“We have to create balance and be equitable in that balance to achieve fairness. The only way to get off these disparity lists is to be equitable in our policymaking. Don’t hurt the people you are trying to help,” said Assemblyman Gipson.

The panelists agreed that there are many challenges ahead before policymakers can realize fully equitable legislation: there is a lack of engagement between constituents and legislators which leads to either false or badly set expectations. Communication with constituents about how important equity is will be key. There must also be greater education about the benefits and limitations and interconnectedness between protest demands communities make, the political campaigns that are born from those demands, and the public policy that’s created as a result. “There can’t be any fake equity. We have to urge real opportunities in government and the private sector for Black, Latino, minority, and women workers and businesses in order for this to work,” said Rep. Evans.

What is also problematic are high levels of disinformation and truth decay in public conversation and debate, which lead to misunderstandings and lost chances for equity. That creates a lack of established safe spaces for legislators and support staff to convene and evaluate legislation on equity-based metrics. “When we say ‘equity’, it gets misunderstood,” said Ellison. “So, people are mistaking it for ‘power-sharing’ or ‘social re-engineering.’ It’s not. It’s about building up & optimizing our entire community. We need to, collectively, achieve better results for society as a whole and make win-wins for everyone.”

But, in order for that to work, “equitable governance will need structure,” argued Assemblyman Gipson. No policy can achieve permanent stability and security when equity is absent. “The purpose of equity is to build up, and therefore optimize, an entire community. This way we can see better results of success for that specific community of people.” Gipson suggested that staff, researchers, and others in non-elected roles in state legislatures will need to be trained in drafting equitable legislation. Others, like Evans, emphasized the importance of stressing and demanding equitable proposals and solutions from lobbyists who advocate certain positions before lawmakers. Lobbyists will need to also convince their clients that equity helps their interests, too.

“We have to understand that equity is a part of we, it’s all of us. As legislators, you all are the magicians to make the equitable changes now so years from now we don’t have to talk about inequities anymore,” said Rep. Evans.

All panelists agreed that legislatures need to look towards creating systems and societies that are equal, and that equity should be viewed as a value-add that builds community resources and wealth. There is no reason someone should be constantly penalized by inequity or that systems are designed to perpetuate unfairness. “We have to constantly keep our foot on the neck of inequity. And we can’t do equity without empathy,” said Dr. Jenkins. “There are three types of empathy: cognitive empathy, emotional empathy, and compassionate empathy. Which side of empathy do you want to be on so we can achieve equity?” Jenkins explained that empathy would define how we can relate to one another regardless of race, gender, social class, etc., and “putting ourselves in someone else’s shoes”. Empathy can provide an understanding of why and define the how. If lawmakers legislate in a more empathetic way, many issues could be resolved. Looking through the eyes of other people can create the compassion needed to take action for the greater good of everyone.