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No state has more aggressively advanced identitarian essentialism than California. In 2018, California passed a statute, adding to its Corporations Code a series of requirements for how many directors on the boards of publicly traded corporations chartered by or headquartered in California must be female. In 2020, the state legislature went back to the well to impose a far more comprehensive set of requirements for whom such boards must include (by race, ethnicity, sex, and gender). In 2020, it also chartered a Task Force to Study and Develop Reparations Proposals for African Americans, with a Special Consideration for African Americans Who are Descendants of Persons Enslaved in the United States. By statute, that Task Force must submit its report to the legislature by June 30, 2023. The Task Force’s report coming due presents a prime opportunity to see how California’s experiment in identitarianism has fared, in the Task Force and in the courts.
The 2020 legislation chartering the Task Force assigned it to calculate “any form of compensation to African Americans, with a special consideration for African Americans who are descendants of persons enslaved in the United States.” The Task Force took its assignment 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 report’s text. Stretching over 40 chapters, the report is a hyperbolically crafted, book-length exploration of its topic. It dedicates several chapters to describing “racial atrocities” it concludes California’s governments visited on African Americans. Unquestionably, the broad sweep of African American history includes chapters deserving that description (the slave trade, slavery, the Bourbon “redeemers’” overthrow of elected Reconstruction governments through campaigns of terror, etc.). The report adds others, like eminent domain abuse and continuing health disparities. After describing these “racial atrocities,” the report advances a series of proposals it wants undertaken.
Most attention has focused on the Task Force’s suggestion of a two-pronged set of cash reparations: (i) “compensation for individual, provable harms” and (ii) “cumulative compensation” to be distributed to all African American individuals descended either from those enslaved in America or those who were free in the U.S. before 1900 (“Proposed Beneficiaries”) for each year either they or their ancestors lived in California, without any particularized showing of harm from any policy of any government. The report would have the former be conducted in the future by a truth-and-reconciliation-style state agency; it offers no estimate for the amount of such payments or timeline for their calculation or payment. It suggests that the latter be paid out now to Proposed Beneficiaries as a “down payment” toward the state’s reparation obligation. Estimates have put the price-tag for this proposed “down payment” at approximately $800 billion.
Above and beyond the Task Force’s cash-transfer proposals, the report includes many additional suggested policies. These include: (a) exempting all Proposed Beneficiaries from paying tuition for their higher education at California’s public colleges and universities; (b) amending the California state constitution to revoke Proposition 209’s bar on racial discrimination in contracting and admissions; (c) replacing California’s health care system with a universal, single-payer system dedicated to achieving “health equity”; (d) launching a state agency to run (solely for Proposed Beneficiaries) a parallel, publicly funded banking system, grant program, and licensure regime; (e) declaring election days a statewide holiday; and (f) preventing future highway expansion.
As that sampling indicates, the report’s proposals range from race-based policies posing extremely apparent constitutional violations to irrelevancies explicable only by the exhaustion that sets in over the course of any group project. But the severity of the constitutional issues is still worth considering, especially against the backdrop of how California’s board-allocation statutes have fared in the courts.
Under longstanding federal law, the Equal Protection Clause of the 14th Amendment prohibits any state (or subdivision) from classifying Americans by race or intentionally varying their treatment based on race, unless they meet strict scrutiny by demonstrating that their program is narrowly tailored to meet a compelling state purpose. (California’s equal protection provision is arguably even more stringent than the federal one, and it is certainly at least as stringent.) The federal courts have only ever identified three purposes as sufficiently compelling to meet strict scrutiny: (a) national security; (b) the purported educational benefits of a diverse student body (solely in the context of admissions to higher education); and (c) rectification (over a sunsetting period) of the harms caused by a government’s own recent history of racial discrimination. The first has no bearing on any element of the Task Force’s report. The second is currently in the dock, awaiting the Supreme Court’s ruling in SFFA v. Harvard and SFFA v. 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, its application would be unclear, given the express intent of authorizing racial discrimination to the detriment of allegedly “overrepresented” (and often historically discriminated against) racial groups. While one might argue the third purpose could potentially apply to justify at least some potential steps of the proposed truth-and-reconciliation-panel, it is difficult to imagine how any other Task-Force proposal could even hypothetically either shoe-horn into this category or be justified as a narrowly-tailored effort to address an interest that is. The class-based “cumulative compensation”—divorced from any particularized showing of harm or link of Proposed Beneficiaries to particularized past, recent policies—would not fit. Words fail any effort to even try to express the good-faith argument for how granting free tuition to one race of students; moving to a universal, single-payer health care system; or crafting a state-run, publicly funded, race-based banking system could qualify as “narrowly tailored” to achieve anything.
But one needn’t take my word for it. The courts’ decisions in challenges to California’s far more narrowly crafted board-allocating statutes more than make this point. A California state trial court enjoined 2018’s sex-allocating statute as an unconstitutional violation of equal protection; while an appeal of the court’s decision remains live, the relevant state appellate court refused to stay the effectiveness of the injunction pending appeal. On May 15, 2023, the U.S. District Court for the Eastern District of California did the same for 2020’s race-allocating statute, holding it “unconstitutional on its face” because it imposed “a racial quota as it requires a certain fixed number of board positions to be reserved exclusively for certain minority groups.”
The courts pulled no punches. Their decisions leave next-to-no doubt that nearly all the Task Force’s proposals (which are not irrelevancies) are unconstitutional non-starters that will never become effective, even if the state legislature insists on passing them. Indeed, given the current state of California’s budget, should the legislature choose to act on the Task Force’s recommendations, the Occam’s Razor explanation for such a decision may well be precisely their certainty that the courts will bail them out from ever having to follow through on that posturing. Nonetheless, however futile the effort and whatever inspires such steps, California and its public institutions continue to press forward their march into identitarianism, with the Task Force printing its reports and readying for their formal roll-out next month.
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. To join the debate, please email us at info@fedsoc.org.
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