“Equity” was just dealt a blow. The problem with equity, as opposed to equality, is that it is unconstitutional and violates anti-discrimination laws when applied to protected categories, such as race. People have an individual right to equal protection.
As Judge James Ho of the 5th Circuit Court of Appeals put it:
Prohibiting racial discrimination means we must be blind to race. Disparate impact theory requires the opposite: It forces us to look at race—to check for racial imbalance and then decide what steps must be taken to advance some people at the expense of others based on their race. But racial balancing is, of course, “patently unconstitutional.”
Similarly Judge William Young of the Masschusetts federal District Court:
“… a hard pivot away from equality and towards equity simply has no support in the Equal Protection jurisprudence of the Supreme Court.”
Yet the equity agenda is the main thrust of “social justice” activism. In California in 2020, Gov. Gavin Newsom signed a law mandating certain minimum diversity requirements for corporate boards of major California corporations:
In a move that continues California’s push for increased diversity on corporate boards, Governor Gavin Newsom on September 30, 2020 signed into law a bill that requires publicly held companies headquartered in the state to include board members from underrepresented communities. The action follows passage of a similar law in 2018 mandating that public companies headquartered in the state have at least one woman on their boards of directors by the end of 2019 (SB 826), with further future increases required depending on board size…..AB 979 requires that by the end of 2021 California-headquartered public companies have at least one director on their boards who is from an underrepresented community, defined as “an individual who self‑identifies as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native, or who self‑identifies as gay, lesbian, bisexual, or transgender.”In addition to that initial 2021 requirement, the law mandates that the number of directors from underrepresented communities be increased by the end of calendar year 2022, depending on the size of the board, as follows:
A lawsuit was filed by Judicial Watch on behalf of several Californians. Judicial Watch moved for summary judgment that the law was unconstitutional:
Plaintiff taxpayers sue to enjoin Defendant from spending public funds on California’s race,ethnicity, sexual preference, and transgender quotas for boards of directors of publicly-tradedcorporations with their headquarters in California. They also seek a judgment declaring the State’squota system to be unlawful. Plaintiffs demonstrate herein that the quota system violates article I,sections 7 and 31 of the California constitution.* * *) AB 979 violates section 31 because itrequires California-based publicly-held or traded public contractors to grant preferential treatment tocertain races, ethnicities, sexual preferences, or transgender statuses on their boards. AB 979 thereforecannot survive with respect to corporations under public contracts with the state or bidding for publiccontracts with the state.
The Court Court just ruled the law to be unconstitutional.
From the Judicial Watch Press Release on the victory:
Judicial Watch announced today that the California Superior Court has released its full opinion in the case decided last week declaring that the State’s racial, ethnic, and LGBT quota for diversity on corporate boards of California-based corporations violates the California Constitution. The court found that only in “very particular cases should discrimination be remedied by more discrimination.”
The ruling and opinion come in the case (Robin Crest, et al. v. Alex Padilla, in his official capacity as Secretary of State of the State of California (No.20STCV37513)) granting Judicial Watch’s motion for summary judgment in its lawsuit on behalf of taxpayers who are asking the court to declare the quota scheme unconstitutional under California’s constitution and seeking to enjoin its enforcement. This lawsuit was filed by Judicial Watch on October 2, 2020, in the Superior Court of the State of California, County of Los Angeles, on behalf of three California taxpayers (Robin Crest, Earl De Vries and Judy DeVries) to prevent California from enforcing Assembly Bill 979 (AB 979). The law requires that boards of directors of California-based, publicly held domestic or foreign corporations satisfy a racial, ethnic, and LGBT quota by the end of the 2021 calendar year….
Judicial Watch completed a trial in a separate lawsuit in Los Angeles County Superior Court on behalf of California taxpayers to prevent the state from implementing a 2018 law (SB 826) requiring publicly-held corporations headquartered in California to have at least one director “who self-identifies her gender as a woman, without regard to the individual’s designated sex at birth” on their boards by December 31, 2019 (Robin Crest et al. v. Alex Padilla (No.19ST-CV-27561)).
From the ruling:
If demographically homogenous boards are a problem, then heterogeno s boards are theimmediate and obvious solution. But that doesn’t mean the Legislature can skip directly tomandating heterogenous boards. The difficulty is that the Legislature is thinking in group terms.But the California Constitution protects the right of individuals to equal treatment. Before theLegislature may require that members of one group be given certain board seats, it must first tryto create neutral conditions under which qualified individuals from any group may succeed. Thatattempt was not made in this case.
The NY Times notes that the gender quota law also is likely to fall, but not to worry, private sector pressures will achieve the same result:
It was not clear whether California would appeal Judge Green’s ruling. The office of the secretary of state, Shirley Weber, did not respond to a request for comment.
The decision was not a complete surprise, and California’s gender diversity law may face a similar fate, said David A. Bell, the co-chairman of corporate governance at the law firm Fenwick & West. “Under constitutional principles, the courts have generally been hostile to quotas,” Mr. Bell said.
Still, if Judge Green’s decision holds up after any potential appeals, Mr. Bell said he did not expect it to change much for companies that are already being pushed to diversify their top ranks.
“It has already set a benchmark for expectations by a lot of different stakeholders — institutional investors, employees, customers,” he said. “The benchmark exists and those expectations are going to carry forth in the world.”
More lawsuits need to be brought challenging discrimination in the name of “equity.”
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