April 6, 22
by Jim Breslo
The State of California mandates how many minorities, women, and LGBT people must be on a public company board if headquartered in the state. It has no mandate related to the qualifications of such persons, only that they “identify” as the proper sex, race, ethnicity, or sexual orientation favored by the state. However, a Superior Court judge ruled last week that such mandates are unconstitutional, violating the “equal protection” clause.
The first mandate became law in 2018 pertaining to gender. A second mandate came down in 2020, signed into law by Governor Gavin Newsom, pertaining to minorities and LGBT people.
Under the 2018 law, the number of women required to be on the board varies based on the size of the board. For instance, a board of five requires at least two women, while a board of six requires at least three women. Incredibly, while supporters claim the law is about diversity, a company could have a board without a single male and still comply with the law.
Under the 2020 law, the number of minority or LGBT people required also varies based upon the board size. For instance, a board of five members requires two from the favored groups while a board of nine requires three. Again, despite is purported goal of diversity, a company could have a board made up exclusively of Hispanic people and comply.
Interestingly, the law lumps LGBT and minorities into the same category, as if black men have something in common with transgender women. Thus, a board could consist solely of white people so long as enough of them were LGBT.
Lesbian and minority women are particularly favored under this legal matrix since they check both boxes. Another oddity results from the matrix. It appears that a transgender woman (a biological male who identifies as female) would check both boxes since the member “identifies” as a woman and is LGBT (transgender). On the other hand, a transgender male (biological female who identifies as male) would check only one box since the person identifies as male while being LGBT.
Both laws merely require that the board member “identify” as being in the favored group. The left has long now accepted that people may choose their gender, but it’s very new for a law to allow people to choose their race or ethnicity. However, under the 2020 law, it’s quite clear that this is permitted. It states, “’Director from an underrepresented community’ means an individual who self-identifies as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native.”
Also of note, the law only recognizes “LGBT” as favored minorities, not “LGBTQIA,” the left’s updated list of favored groups. Thus, queer/questioning, intersex, and asexual people are treated the same as white males under the law.
The law is discriminatory on its face in providing preferences based upon gender, race, and sexual orientation. If you are a straight, white male there are a limited number of board seats available. For all others, the number of seats is unlimited.
Californians have twice voted definitively, 1996 and 2020, against affirmative action. Its progressive politicians, however, push forward regardless of public sentiment, calling it instead, “diversity, equity, and inclusion.” But, in fact, it is just good old fashioned affirmative action. Unfortunately for them, the California constitution prevents such discrimination, and now at least one California judge has stood up to the woke warriors and ruled as such, despite the risk of being cancelled.
In the case of Robin Crest, et al. v. Alex Padilla, in his official capacity as Secretary of State of the State of California (No.20ST-CV-37513), Los Angeles Superior Court Judge Terry Green granted Judicial Watch’s motion for summary judgment asking the court to declare the minority and LGBT quota scheme unconstitutional under California’s constitution. (A separate case is pending regarding the female quota.)
“This historic California court decision declared unconstitutional one of the most blatant and significant attacks in the modern era on constitutional prohibitions against discrimination,” said Judicial Watch President Tom Fitton. “In its ruling today, the court upheld the core American value of equal protection under the law.”
In its legal brief, Judicial Watch argued, “Laws that explicitly distinguish between individuals on racial [or ethnic, sexual preference, and transgender status] grounds fall within the core of the prohibition of the equal protection clause.”
It also argued from legal precedent that the law plainly “embody[s] stereotypes that treat individuals as the product of their race, [ethnicity, sexual orientation, or transgender status] evaluating their thoughts and efforts—their very worth as citizens—according to  criterion[s] barred to the Government by history and the Constitution.” It concluded, “’Racial balancing’ is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity.’”
While this is just one ruling by one judge, one can only hope that it is the beginning of the judiciary stepping in to protect all citizens from their government or from companies discriminating against them based solely based upon the color of their skin, or their sex, or their sexual orientation. The problem is expanding by the day.
Recent examples are the NFL, which announced a plan to favor women and minorities in hiring. The Academy Awards will only consider movies for best picture which contain a minimum number of favored classes in the film. And, President Biden’s SEC recently approved the Nasdaq exchange’s own rule requiring race and gender quotas on the boards.
Of course, we know that this kind of discrimination starts before the workforce at the educational level. Later this year, the U.S. Supreme Court will determine whether Harvard’s discrimination against Asians in favor of Blacks and Hispanics in admissions is legal.
In helping to enact the Civil Rights Act of 1964, Democrats claimed to seek a color-blind society. This was a major reversal by the party of “Jim Crow” laws. When the U.S. got close to achieving this goal, Democrats feared losing their base. So, they reversed themselves again, seeking to again see color everywhere, including admissions, employment, and benefits. This is the real “Jim Crow 2.0.”