Last week, Delaware officially added anti-discrimination protection for people of color to its founding document.
The amendment to the law, which the legislature passed unanimously on Thursday on Senate Draft 31, adds the words “race, skin color and national origin” to the equality clause of the state constitution.
While the change in equality has no immediate legal consequences, it could theoretically guarantee the protection of people of color in the state if federal courts, according to lawmakers and legal experts, change their interpretation of the US Constitution.
The law’s main sponsor, Senator Darius Brown, D-Wilmington, pointed to recent actions by the federal government when he emphasized the importance of the change.
“With everything we’ve seen at the federal level in recent years, what we saw in the deletion of the 1965 Voting Rights Act, this is not a token bill,” Brown said.
Brown said the amendment deals with systemic racism and human dignity, and also requires people to have the necessary awkward conversations about slavery and Delaware’s racial history.
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What the Anti-Discrimination Change Means for Delaware
State officials will make further progress on a wide variety of issues, “but the state’s founding document” must be the foundation upon which these other things are built, “he said.
“Racial reconciliation and solving the racial problem is not just about sitting at the table and talking about it,” Brown said. “We have to develop, shape and adopt a public policy that moves the needle so that we don’t have the same problems for future generations.”
The change is one of the first moves in an eight-point list of pledges announced by black lawmakers last summer.
It came days after a weekend of violent protests that broke out in Wilmington and Dover in late May following the death of George Floyd, who died after a Minneapolis police officer kneeled by his neck for almost nine minutes while handcuffed to the floor were.
Peaceful protests continued for months afterwards. Some groups criticized the Black Caucus agenda as not going far enough in the fight against systemic racism in the state.
Also on the list of promises made by the Black Caucus last summer was a bill to prohibit police from using chokeholds unless they deem it necessary, and another bill to provide body cameras to all police officers in the state.
Legislators passed the chokehold bill in June and are expected to work on the body cameras bill during this session.
Legislators established two task forces last summer to work on more bills and measures related to racial justice and police accountability.
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What’s next for equality?
So far it is unclear which proposals the groups will recommend to lawmakers, but concrete proposals could be made in the next few months, such as increasing the transparency and accountability of the police
However, it is expected that the General Assembly will find it much harder to reach an agreement on more concrete changes to racial justice and police accountability, especially as police unions listen to the Republicans and the moderate faction of the Democratic Party.
In order to change the state constitution, the legislature has to pass two legislative sessions in a row. Brown introduced the first law amending the constitution in the last legislature, almost three months before Floyd’s death. The second passed 11 months later.
The new constitutional law essentially copies the 14th amendment to the U.S. Constitution that was passed in 1868. Delaware did not ratify it until more than 30 years later in 1901.
Rep. Sherry Dorsey Walker, D-Wilmington, says Delaware should have had protection all along.
“With this law, it’s okay to be black, or Hispanic, or colored person in this state,” she said.
While Delaware prides itself on being the First State, it lags behind on racial issues, and the equality clause is a “starting point” for a wider, more robust movement to change that, said Dorsey Walker.
The Black Caucus member pointed out that she can change many things about herself, from her hair to her clothes, but cannot change the color of her skin.
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“There are people who don’t even understand that they enjoyed so many privileges for looking a certain way,” said Dorsey Walker. “I’ll never look like that, but I should be able to live like everyone else in this state and have the same rights as everyone else.”
Some officials and activists also say more legislative changes are needed to further ensure racial justice and justice in the state.
These include proposals from Attorney General Kathy Jennings pushing for more ambitious police reform and racial justice measures than lawmakers have so far publicly suggested.
The state Justice Department currently has a limited role in the pursuit of civil rights, even with the gender equality change last week.
But Jennings could push for more legislative changes that would allow her agency to play a bigger role in handling these cases, which are normally handled at the federal level.
For example, shortly after the first wave of protests after Floyd’s death, she proposed a law to criminalize the knowledge or the ruthless deprivation of a person’s constitutional rights. The legislature has not yet submitted a bill on this.
In a statement, Jennings called the constitutional amendment an “important step” to address the “inequalities, shortcomings and failures of our history”.
At least 15 other states have added a similar language to their state constitutions to prohibit discrimination based on race, color or national origin.
Delaware changed its state constitution in 2019 to prohibit gender discrimination.
Protection also comes less than five years after lawmakers failed to agree on a similar, broader proposal by former Senator Karen Peterson that added protection for race, gender and national origin, as well as age, religion, creed, color and family status , Disability, sexual orientation and gender identity.
Several new Democratic lawmakers have been elected to the statehouse since Peterson’s bill was not passed in 2016. It is likely that the increasingly progressive General Assembly will continue to take further protective measures in the future.
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Sarah Gamard reports on government and politics for Delaware Online / The News Journal. Reach them at (302) 324-2281 or [email protected]. Follow her on Twitter @SarahGamard.