By PolicyLink and RelmanColfax LLC
Our vision for equity scoring is bold and therefore generational. A winning strategy for equity scoring requires a visionary approach that charts a new path as well as a savvy defensive approach. We are mindful of where this nascent work is most vulnerable to critique and offer corresponding guardrails. In the current political and social climate that has seen the reversal of race-based affirmative action among other retrenchments, there are those who will attack equity scoring as ill-advised if not outright illegal under the Equal Protection Clause of the 14th Amendment. They are wrong. We want to allay any such concerns so that readers can fully engage with the more forward-looking equity scoring example that follows in this demonstration paper as well as the other reports and products of the Equity Scoring Initiative.
Recent legal challenges to equal protection and movement to race-neutrality in governing policy implementation has created a chilling effect on government decisionmakers—elected and administrative—in advancing fairness and equitable outcomes. But equal protection does not require race blindness, and governing decisions may be informed by an understanding of whether and how effectively different policy options will reduce inequities, including accumulated inequalities based on race, gender, disability, or other characteristics.
Under current practice, equal protection is reactive and complaint-based. It requires individuals to prove that they have been harmed by policy implementation and to seek redress through administrative complaint or private legal action. However, instead of waiting until a law is passed and policy is implemented to see if any class of citizen is harmed, legislative scoring, as demonstrated by the Equity Scoring Initiative, can make equal protection proactive and expand the capacity of the federal government to repair past disparities and prevent future harm.
Scoring policies and regulations for equity contextualizes the projected impact of proposed legislation and enables legislators, and their constituents, to make more informed decisions. The Equal Protection Clause generally precludes legislation that deliberately treats people differently because of their race, ethnicity, or gender, but analyzing or scoring legislation for equity does not alter a bill’s underlying facial neutrality any more than budget scoring alters a bill’s fiscal impact. Both types of projections give policymakers insights into the long-term impacts of a proposal to facilitate their own analysis, but neither changes a bill.
