Suppose for a moment that your state is offering qualified students financial aid for college or graduate school. If you could not afford to attend higher education on your own and qualified for this resource, would you rather have your financial aid distributed equally or equitably? And how would society benefit from such a policy?
The Merriam-Webster Dictionary defines equality as “the quality or state of being equal.” In the example above, if student aid was distributed equally, all qualified individuals would receive an equal amount of financial aid regardless of need and in the exact same measure, quantity, amount, and kind.
Equity, on the other hand, is defined as “dealing fairly and equally with all concerned.” Equitable policies are targeted to address the unequal needs, conditions, and positions of people and communities affected by institutional and structural barriers. Using our example above, colleges or universities may decide to allocate financial aid based upon need. Under this policy, for example, schools would intentionally reserve a larger amount of the overall student financial aid specifically for low-income students. Although this final distribution may be unequal, it is considered equitable because such a re-allocation of resources provides access to higher education for low-income students.
Similarly, Maryland’s Medical Cannabis Commission has recently stepped into this equality versus equity divide with mixed results. Maryland, like many other states, launched its medical cannabis program in 2016, which included a provision for licensing cultivators, processors, and dispensaries. To ensure that there was no bias or favoritism, the Commission designed a “double-blind” application process where they sought to license fifteen licensed cultivators and processors. All identifying information was supposed to be removed from the applications. And all the applications, minus identifying information, were graded by neutral students from Towson’s RESI school of economic studies.
When the dust finally settled after the initial applications period, minority-owned or women-owned businesses accounted for only 3 out of 15 grower pre-approvals and 3 out of 15 processor pre-approvals. Of these awardees, only one processor pre-approval was awarded to a Black-owned business. As women represent over 50 percent of the population in Maryland and Blacks comprise nearly 30 percent of the population, clearly something was amiss. In response to the uproar, Governor Hogan and the Maryland General Assembly sought to address discrimination and increase diversity among licensees. They passed emergency legislation increasing the number of cultivator and processor licenses, and required the Commission to evaluate whether minorities and women were disadvantaged in the medical cannabis industry.
Based on those recommendations, the Commission adopted emergency regulations creating a new application process which reserved 15 percent of the total points on the license applications to diversity-related provisions. These regulations did not allocate or “set-aside” licenses for minority-owned and women-owned businesses. Rather, the added points bonuses in the new application were meant to incentivize the Commission to select Black-owned and minority-owned businesses for the medical cannabis grower and processor licensees, and remedy the traditional barriers to entry within the medical cannabis industry.
In 2019, the Commission received more than 200 applications for up to four additional grower and 10 additional processor licenses. More than 90 percent of the applications were submitted by disadvantaged equity applicants — meaning applicants who provided supporting documentation that at least 51 percent of the ownership interest in the business was held by a member of a qualifying minority group. Announcements regarding pre-approval awards were supposed to be announced at a Commission hearing on September 26, 2019.
In February 2020, following concerns regarding the impartiality of the evaluation process and at least one judge’s issuance of a Temporary Restraining Order preventing the announcement of the new pre-approvals, the Commission committed to engage an independent firm to evaluate these concerns that all applicants were not treated equally and to verify material aspects of the highest-ranking applications.
Whether Maryland can truly create an equitable medical cannabis licensing process remains to be seen. As the State’s survey on diversity has shown, Black and minority-owned businesses in the medical cannabis industry have barriers to entry limiting their access to ownership that are not faced by their White competitors. Similarly, Blacks and other minorities have been disproportionately harmed by the War on Drugs, and specifically the mass incarceration for cannabis offenses. It would be inequitable to discount the harm that has come to minority communities from those law enforcement policies. The route to achieving equity will not be accomplished through treating everyone equally. It will be achieved by treating everyone equitably or justly according to their circumstances.