No state has more aggressively advanced identity essentialism than California. In 2018, California passed a statute, adding to its Corporations Code a series of requirements about how many directors on the boards of California-based publicly traded corporations must be women. In 2020, the state legislature went back into the pit to impose a much more comprehensive set of requirements for who should include such boards (by race, ethnicity, sex, and gender). In 2020, he also created a task force to study and develop redress proposals for African Americans, with special consideration for African Americans who are descendants of people enslaved in the United States. By statute, that Task Force must submit its report to the legislature by June 30, 2023. The expiring Task Force report presents an excellent opportunity to see how California’s identitarianism experiment has fared in the Task Force. at work and in the courts.
The 2020 legislation that instituted the Task Force tasked it with calculating “any form of compensation for African Americans, with special consideration for African Americans who are descendants of persons enslaved in the United States.” The Task Force took its task seriously, investing substantial work in preparing an impressively comprehensive document. On May 6, the Task Force took what should be its final set of votes, finalizing the text of the report. Spanning more than 40 chapters, the report is a hyperbolic, book-length exploration of its subject. He spends several chapters describing “racial atrocities” and concludes that California governments inflicted on African-Americans. Unquestionably, the broad sweep of African-American history includes chapters that deserve that description (the slave trade, slavery, the overthrow of the Reconstruction governments elected by the Bourbons through campaigns of terror, etc.). The report adds others, such as eminent domain abuse and continuing health disparities. After describing these “racial atrocities”, the report advances a series of proposals that it wants to undertake.
Most of the attention has focused on the Task Force’s suggestion of a dual set of cash remedies: (i) “verifiable individual damage compensation” and (ii) “cumulative compensation” to be distributed to all African Americans. descendants of those enslaved in the United States or those who were free in the US before 1900 (“Proposed Recipients”) for each year they or their ancestors lived in California, without any particular showing of harm of any policy of any government. The report would see the former be done in the future by a truth and reconciliation-style state agency; it does not offer an estimate of the amount of such payments or a schedule for their calculation or payment. He suggests that the latter be paid now to the proposed beneficiaries as a “down payment” toward the state’s reparation obligation. Estimates have put the price of this proposed “down payment” at approximately $800 billion.
Beyond the Task Force’s cash transfer proposals, the report includes many additional suggested policies. These include: (a) exempting all Proposed Recipients from paying tuition for their higher education at California public colleges and universities; (b) amend the constitution of the state of California to repeal Proposition 209’s prohibition on racial discrimination in hiring and admissions; (c) replace California’s health care system with a universal single-payer system dedicated to achieving “health equity”; (d) the launch of a state agency to administer (for the Proposed Recipients only) a publicly funded shadow banking system, grant program and licensing regime; (e) declare election days statewide holidays; and (f) prevent future expansion of the highway.
As that sample indicates, the report’s proposals range from race-based policies that feature extremely apparent constitutional violations to irrelevancies explainable only by exhaustion that occurs in the course of any group project. But the severity of the constitutional issues is still worth considering, especially in the context of how California’s board appropriation statutes have fared in court.
Under longstanding federal law, the Equal Protection Clause of the 14th Amendment prohibits any state (or subdivision) from classifying Americans by race or intentionally changing their treatment on the basis of race unless they pass strict scrutiny to the demonstrate that your program is strictly designed to serve a compelling state purpose. (California’s equal protection provision is arguably even stricter than the federal one, and certainly is at least as strict.) (b) the purported educational benefits of a diverse student body (solely in the context of admission to higher education); and (c) the rectification (during a lapsing period) of damages caused by the government’s own recent history of racial discrimination. The first is unrelated to any element of the Working Group report. The latter is currently on the bench, awaiting the ruling of the Supreme Court in SFFA vs. Harvard and SFFA c. UNC. Regardless, it could only apply (if at all) to the constitutionality of a repeal of Proposition 209; even there, even if Grutter survives the sffa decisions, their application would be unclear, given the express intention of authorizing racial discrimination to the detriment of supposedly “overrepresented” (and often historically discriminated) racial groups. While it could be argued that the third purpose could potentially be applied to justify at least some potential steps of the proposed truth and reconciliation panel, it is hard to imagine how any other proposal from the Task Force could even, hypothetically, be shoehorned into this category. or be justified as an effort strictly designed to address an interest that is. Class-based “cumulative compensation,” divorced from any particular demonstration of harm or linkage of the Proposed Recipients to particular past and recent policies, would not fit. Words fail at any attempt to even try to express the bona fide argument of how to give free tuition to a race of students; move to a universal single-payer health system; or the creation of a race-based, publicly funded, state-owned banking system could be called “tightly tailored” to accomplish anything.
But one need not take my word for it. The decisions of the courts in the challenges to the much more narrowly crafted California board allocation statutes do more than this point. A California state trial court banned the 2018 sex assignment statute as an unconstitutional violation of equal protection; while an appeal of the court’s decision remains active, the appropriate state appeals court declined to stay the injunctive relief pending appeal. On May 15, 2023, the US District Court for the Eastern District of California followed suit with the 2020 race allocation statute, deeming it “primarily unconstitutional” because it imposed “a racial quota because it requires a certain fixed number of board members.” positions reserved exclusively for certain minority groups.”
The courts did not mince words. Their decisions leave almost no doubt that almost all of the Task Force proposals (which are not irrelevant) are unconstitutional that will never go into effect, even if the state legislature insists on passing them. In fact, given the current state of California’s budget, if the legislature were to decide to act on the Task Force’s recommendations, Occam’s Razor explanation for such a decision might well be precisely their certainty that the courts will bail them out. have to go ahead with that stance. Nonetheless, as futile as the effort is and whatever inspires such steps, California and its public institutions continue to make progress on their march toward identitarianism, with the Task Force printing its reports and preparing for their formal launch next month.
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