A new California law known as AB 979 now forces the more than 600 publicly held corporations headquartered in the state to appoint board members based solely on their race and sexual orientation, whether real or imagined.
This law takes woke thinking to a whole new level by – for lack of a better way of putting it – perverting the already-perverse idea of identity politics. It does this by taking identity politics, which is already bad, and untethers it from actual group identities.
If wokeness is the flu, then this new, uniquely Californian approach to hyper-balkanizing America is flesh-eating disease.
Another state law, SB 826, already required that corporations meet a quota of female board members or face financial penalties. Existing law requires that by the end of 2019, a corporation with its principal executive office in the state had to have at least one female on its board. By the end of 2021, a corporation with 5 directors had to have a minimum of 2 female directors, and one with 6 or more directors had to have a least 3 female directors.
But as of this past December 31, the new law, known as AB 979, has required corporations to uphold an additional quota for board members based on race and sexual orientation, real or imagined. By the end of 2021, a corporation headquartered in the state was required to have at least one director from “an underrepresented community.” By the end of 2022, such a corporation with 5 to 8 directors had to have at least 2 directors from underserved communities; a corporation with 9 or more directors had to have a minimum of 3 directors from those communities on its board.
The statute codifies make-believe and guarantees legal uncertainty by not requiring the “director from an underrepresented community” to actually belong to that community.
“Director from an underrepresented community” is 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.”
A first violation is punishable by a fine of $100,000; for subsequent violations the fine is $300,000.
AB 979 grew out of the 2020 race riots that caused more than $2 billion in property damage nationwide and were instigated by Black Lives Matter and Antifa.
As he signed AB 979 into law in September 2020, California’s radical Democrat governor, Gavin Newsom, said he did so to advance “racial justice.”
“When we talk about racial justice, we talk about empowerment, we talk about power, we need to talk about seats at the table,” Newsom said, according to the Los Angeles Times.
Those who drafted AB 979 even referenced a pseudoscientific study by Dalberg Global Development Advisors in the legislative language of the bill that claimed that race-based hiring would create vast riches. The study was said to have “found that the high tech industry could generate an additional $300 billion to $370 billion each year if the racial or ethnic diversity of tech companies’ workforces reflected that of the talent pool.”
Chance Layton, communications director for the National Association of Scholars, denounced AB 979.
“It’s a shame that this horrible law ever passed California’s legislature,” Layton told this writer.
“Laws like these often begin with good intentions, but quickly get out of hand. If this law is left to stand, we might as well throw in the towel on the Civil Rights Act of 1964,” he said.
“Race or sex discrimination should never be practiced by an American government. California’s legislature … have already shown their desire to discriminate and act with prejudice [in 2020] in the fight over Proposition 16. That ballot measure was defeated, thankfully, because regardless of what those in power believe, the people understand that allowing the state to discriminate based on unchangeable attributes of individuals is fundamentally wrong.”
In 2020, when she was a member of the California State Assembly, California Secretary of State Shirley Weber, a Democrat, who now oversees enforcement of AB 979, introduced the bill that led to Proposition 16, which would have repealed the state constitution’s ban on race-based and sex-based affirmative action. A radical left-wing academic before she entered politics, Weber is professor emeritus of Africana Studies at San Diego State University.
While a state lawmaker, Weber championed AB 3121, a law creating a task force to draft proposals to give reparations to blacks to compensate them for having ancestors a century and a half ago who were slaves. California has an “ugly past,” and its “systemic injustice” needs to be confronted, she said when her bill became law in 2020.
At least two nonprofits have filed suit against AB 979, arguing that it perpetuates discrimination by dealing with people based on their immutable characteristics, and not as individuals.
The National Center for Public Policy Research (NCPPR), a pro-free market research and shareholder advocacy organization, filed a legal complaint aimed at halting the law in November 2021 in U.S. District Court for the Eastern District of California.
The problem is “these diversity quotas apply to all businesses across every industry in perpetuity, regardless of whether there is any specific evidence of discrimination,” NCPPR, which is represented in the action by Pacific Legal Foundation (PLF), stated in its legal complaint.
“These laws, which dole out benefits and impose burdens on the basis of race, sex, and sexual orientation, are unconstitutional.”
PLF attorney Daniel Ortner told this writer that “California has decided that they can intervene and force private companies to impose race quotas and sex quotas and all kinds of quotas.”
But the Supreme Court sees quotas as “invidious because all they care about is one’s membership in a class—they’re not treating you an individual anymore … and that is deeply, deeply, deeply contrary to the Constitution and to the ideals of equality under the law that the Constitution stands for.”
PLF client and shareholder activist Creighton Meland is suing over SB 826 in the same federal district court. The state tried to have the case thrown out but the U.S. Court of Appeals for the 9th Circuit unanimously determined in June 2021 that a shareholder of a California company has standing to sue over SB 826.
“California’s government has a penchant for quotas that are brazenly unconstitutional,” Judicial Watch President Tom Fitton said when his group’s lawsuit targeting AB 979 was initiated.
“Gender quotas and now new quotas for numerous other groups for corporate boards are slaps in the face to the core American value of equal protection under the law. While California skirts bankruptcy and burns up due to fiscal abandon, its leftist political leadership would waste tax dollars to implement illegal and divisive quotas.”
So what’s going to happen with the lawsuits?
No one should expect California’s racially discriminatory laws to go down without a vigorous fight and no one should expect the litigation to wrap up soon.
These insane laws in California, a state known for launching trends that spread across the country and the world, are too important to the Left.