California’s obsession with racial balancing

In 1996, California voters passed Proposition 209, which banned the use of race, sex or ethnicity in public employment, education and contracting. Things have changed drastically since then. In 2020, a California ballot measure sought to repeal Prop 209 and revive discrimination in government decision-making. And in 2022, the state legislature proposed its third racial quota in four years. The state’s recent obsession with immutable characteristics is leading to policies that, in the past, would’ve been recognized as outright bigotry. 

Take Senate Bill 826. In 2018, the legislature passed a “woman quota” for the boards of all publicly held corporations. In his signing statement, then-Gov. Jerry Brown acknowledged the law was likely unconstitutional but said he wanted to “send a message” about how Californians feel about women — apparently notwithstanding what the Constitution says about it.  

The woman quota is stunning in its breadth: It applies to every boardroom at every corporation in every industry across California, despite wide differences in female representation depending on a corporation’s size, location and trade. It is ostensibly aimed at remedying discrimination against women — even if there’s little evidence of it as women have been making huge strides in the workplace. But it’s also based on the assumption that women act a certain way that brings benefits to corporations. The bill’s text contains crude stereotypes about women, such as the idea that women have a certain working style, are more risk-averse than men, and have homogenous views about “corporate sustainability.” 

In addition to relying on stereotypes, the quota creates new ones. It suggests that every woman hired under the quota was hired because of the law, rather than her individual merit. That’s especially a shame, given that women were earning 40 percent of open board seats before the law took effect. As the Ninth Circuit Court of Appeals warned more than 30 years ago, the implication that women need help in every workplace and profession is as “pernicious and offensive as its converse, that women ought to be excluded from all enterprises because their place is in the home.”  

Yet, in 2020, the legislature expanded the quota to include “underrepresented communities.”  California’s corporations must mechanically reserve board seats not just for women but also for other individuals simply because they “self-identif[y] as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian or Alaska Native, or gay, lesbian, bisexual or transgender.” A state court judge recently struck down that quota, noting that “the California Constitution protects the right of individuals to equal treatment. Before the Legislature may require that members of one group be given certain board seats, it must first try to create neutral conditions under which qualified individuals from any group may succeed.” 

Undeterred, California now seeks to expand that mandate to all state boards and commissions with at least one volunteer member. This slow creep will continue as long as legislators focus on race-based balance rather than seeking to repeal unfair barriers that hold individuals back from reaching their potential. 

It’s difficult to argue that, in 2022, in one of the nation’s largest and most progressive states, every corporate board and state commission is engaging in deliberate discrimination against women or racial or sexual minorities. And because the state lacks such evidence of discrimination, its measures are better explained as seeking race- and sex-based balance for its own sake. But group-based “balance” is fiction. If one drew names out of a hat, he or she would not get balance. Balance doesn’t signify the absence of discrimination; it necessarily requires discrimination. Thus, the state’s quotas demand discrimination under the guise of getting rid of it.  

Take what’s happening at Lowell High School in San Francisco, one of the highest performing high schools in the state. In 2020, the school board threw out the school’s competitive admissions process and replaced it with a lottery because it believed there were too many Asian students. The board said it was concerned with “systematic discrimination” that leads to racial disparities. But the board’s act was the very definition of systematic discrimination: a government entity changing its admissions criteria to deliberately exclude children based on their race. 

It’s also a skin-deep fix to any real problem. There may be obstacles to opportunity that lead to group disparities — overcriminalization, licensure requirements that lock people out of jobs, lack of school choice, high housing costs, and more. If we want to make sure that all children have the opportunity to meaningfully compete for spots at Lowell, we should pursue policies devoted to tearing down barriers to opportunity, not throw out competitive admissions criteria and along with it, students who have done nothing wrong other than being born into the wrong race. 

The same goes for all of California’s race-based preferences. Rather than seeking balance for its own sake, the state should focus on creating the conditions under which all individuals can achieve.  

Anastasia Boden and Wen Fa are senior attorneys at Pacific Legal Foundation, a nonprofit legal organization that defends Americans’ liberties when threatened by government overreach and abuse. Follow them on Twitter @Anastasia_esq and @wenfa1.