Transcript of Hearing on Proposed Equal-Racial-Outcomes Amendment to Massachusetts Constitution

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Below is a transcript of a portion of a hearing of the Joint Committee of the Judiciary of the Massachusetts Legislature on Tuesday, April 6, 2021 dealing with a proposed amendment to the Massachusetts Constitution that would define unequal outcomes by race and other groups de facto evidence of racially inequitable state government policies and require state government action to remove the perceived imbalance.

The measure is Massachusetts Senate Bill 21 (known as S. 21). It would amend the state constitution to say “Equality under the law and within the policies of the commonwealth shall not be denied or abridged because of sex, race, color, creed, sexual orientation, or national origin.” The measure also states:  “Persistent unequal outcomes among such categories shall constitute inequality under the law and shall thereby by unconstitutional.”

The sponsor is state Senator Adam Hinds (D-Pittsfield). During his remarks, Senator Hinds mentioned a related bill seeking to create a state Office of Racial Equity. It’s SD 2446 (titled “An Act Promoting Racial Equity Within State Government”).  He also referred to Ibram X. Kendi, professor of history at Boston University and founding director of the school’s Center for Antiracist Research.

The co-chairman of the committee, who chaired the hearing, is state Representative Michael Day (D-Stoneham). The other co-chairman is state Senator Jamie Eldridge (D-Acton).

The lone questioner is state Representative Colleen Garry (D-Dracut).

A transcript of the hearing video from 11:36 to 18:10, which is verbatim, follows.


State Representative Michael Day:  I want to move on to S. 21, and welcome and invite Senator Hinds forward and testify.


State Senator Adams Hinds:  Great. Many thanks.

Good morning, Chair Day and Chair Eldridge. Members of the committee.

I speak today to register my support for S. 21 that I filed. It’s a proposal for an amendment to the state constitution relative to equity in state policy. So I wanted to speak and also provide some more detail.

I’ll start by stating the obvious:  We have a history of policies and laws that have largely yielded racial inequities. Or they have led to the belief and the mindset that such inequities are somehow inevitable, or too big to change.

As only the most recent highly visible example, the pandemic, has impacted our commonwealth with drastically unequal impacts in economic and health outcomes, with black and Latinx households and communities disproportionately impacted by the public health impact of the Covid 19 pandemic and the economic downturn.

Yet these do not happen by chance. These health disparities are the predictable endpoint of decades of policy choices that result in economic, housing, and environmental injustice.

Massachusetts has a fundamental obligation to eliminate not only overt but subtle discrimination in state laws as it works to remedy these inequities. And we have an obligation to aggressively and unceasingly intervene until equal opportunity is visible in its outcomes that we create.

To eliminate racial inequities, we need to remove racist policies. And we need to make sure there is an awareness of the connection between the two. Inequity is caused by a policy that has a racially, kind of discriminate outcome. And the more we connect outcomes to policy, the more we can create an impetus to create a better policy.

So, I agree with Professor Ibram X. Kendi that there’s no better way to do that than to constitutionalize it. And so S. 21 was inspired by Professor Kendi’s proposal at the national level. And, this proposed change to the state constitution would establish that persistent unequal outcomes amongst groups with constitutionally protected status constitutes inequality under the law, and the policies that create those unequal outcomes are thereby unconstitutional.

It would also add sexual orientation to the list of protected categories in Article I of the Massachusetts Constitution.

This amendment is critical to addressing inequality that arises from laws that appear to be neutral on their face but have for decades had a disproportionate negative impact on communities of color, religious minorities, and immigrants.

The impact and implication is that when persistent disparities and outcomes exist by race, for example, then the state must take action to remedy that, by force of law. You can imagine this forcing more proactive action to address housing access, education funding, health interventions, justice system oversight, and more.

I filed a complementary bill that would create an office of racial equity to coordinate an all-of-government response, to ensure each secretary in the governor’s cabinet actively unearths and applies anti-racist policies in areas under their control. So you could think, for example, the secretary of energy and environmental affairs would be held accountable to pursue environmental justice. The secretary for health and human services for health equity, in education and housing and economic development and beyond.

I feel it is our obligation as lawmakers to ensure we are systematic in removing laws and policies that have led to unequal outcomes in our commonwealth. And we need to be proactive to reverse course in every corner of government.

And I believe the best way to do that is to start with the constitution.

So thank you very much.


State Representative Michael Day:  Thank you, Senator, for your testimony.

Ah, Chairman Eldridge, any questions for your colleague?


State Senator Jamie Eldridge:  No questions, Mr. Chairman. Thank you, Senator Hinds, for your testimony.


State Representative Michael Day:  Thanks much.

Any other of my colleagues? Members of the committee have any questions here?

I’ve got a hand up, I believe. Representative Garry.


State Representative Colleen Garry:  Thank you, Mr. Chairman, and through you to the senator.

I guess I’m a little confused about changing the language of the constitution. Wouldn’t we already have the ability, through the inspector general or the attorney general, or someone else to – the courts — to be able to determine if the outcome of a policy is not being created – ah, the policy is not getting the outcome that we want?

Otherwise, are we then making it – drafting policies that would not be completely blank on the face of it?

It seems equal on the face, and I guess I’m just kind of concerned about how we put that in there. And then — that I think that have already the agencies that could determine whether a policy is being implemented the correct way.


State Senator Adam Hinds:  I guess my first reaction is:  They could, but do they? And where is the mandate? Is it only when it’s brought on a case-by-case basis? Is it when there’s a lawsuit filed? Where is the impetus, and where is the initiative?

And I think this would put in statute that it’s clear that if you have those disparate outcomes, it’s evidence that there’s a problem, and there’s evidence that there’s a need to intervene.

And so, I take your point, that there are elements that you could make the argument.

I just don’t see the action resulting based on what we have in statute now.


State Representative Colleen Garry:  O.K., thank you.


State Representative Michael Day:  Thank you, Representative.  Any other members of the committee?

And I should have said this at the outset. If you wish to be recognized, please raise the hand virtually, and I’ll make sure to recognize you.

But seeing none at this time, Senator Hinds, appreciate your coming forward. And the committee will take this under consideration.


State Senator Adam Hinds:  Thanks. Great to see you all.


State Representative Michael Day:  You as well. Thank you.