An Equal Protection Defense of SB 826

An Equal Protection Defense of SB 826

Introduction

On September 30, 2018, Governor Jerry Brown approved Senate Bill 826 (SB 826), requiring female representation on California-based companies’ corporate boards. SB 826 is the mandatory version of Senate Concurrent Resolution 62, which in September 2013 urged California companies to increase female representation on their boards to between one and three women, depending on board size. The bill addresses a social issue (underrepresentation of women in corporate leadership) and an economic one (research indicates that companies with female board members fare better). However, critics charge that SB 826 violates equal protection by requiring that certain seats be filled by women and, therefore, either vacated by or not awarded to men.[1] In this post, I defend the state constitutionality of SB 826, articulate the policy rationales underlying it, and respond to some of the criticisms levied against it.

Part I summarizes SB 826’s findings, purposes, provisions, and enforcement mechanisms. This is necessary to analyze the equal protection implications of the bill and helpful to cut through the rhetoric that has surrounded its passage. Part II lays out California equal protection law, beginning with constitutional provisions before turning to case law. Part III defends SB 826 against a hypothetical equal protection challenge, with an eye to precedent and policy. Finally, I furnish a brief conclusion providing my thoughts on SB 826 and broader efforts for corporate gender parity going forward.

I. SB 826: Findings, Purposes, and Provisions

A. Findings and Declarations

SB 826 seeks to “boost the California economy, improve opportunities for women in the workplace, and protect California taxpayers, shareholders, and retirees” since “studies predict that it will take 40 or 50 years to achieve gender parity [on corporate boards], if something is not done proactively.”[2]

SB 826 cites multiple studies showing that companies with substantive female board representation outperform companies with all-male boards with respect to earnings per share, return on equity, and stock performance.[3] Despite indicators that female board representation improves economic outcomes, SB 826 notes that in 2018, women held only 566 seats—15.5 percent—of corporate board seats in California, 26 percent of California Russell 3000 companies have no women directors, and only 12 percent have three or more women on their boards.[4]

B. Provisions

SB 826 requires every “publicly held domestic or foreign corporation whose principal executive offices . . . are located in California” to have at least one female director on its board by the end of 2019.[5] By the end of 2021, California corporations must adhere to a schedule whereby boards of six or more have three or more female directors; boards of five have two or more female directors, and boards of four or fewer have one or more female directors.[6] Any seat filled by a woman for at least a portion of the year counts towards the representation requirements.[7]

C. Enforcement

SB 826 vests two enforcement mechanisms in the Secretary of State: “soft” enforcement in the form of public shaming and “hard” enforcement in the form of fines. The Secretary will publish a list of California companies that have at least one female director by July 1, 2019, and will publish information about which companies are in compliance by March 1, 2020, and annually thereafter.[8] The Secretary also may impose fines for failure to timely file board member information: $100,000 for a first violation of the representation requirements, and $300,000 for each subsequent violation.[9]

II. Equal Protection

Critics charge that SB 826 violates the California Constitution.[10] Of course, not all opposition to SB 826 begins and ends with the California Constitution. SB 826 may implicate the United States Constitution’s Equal Protection Clause or federal civil rights law, or it might simply be an overly risky political play.[11] Professor Joseph Grundfest, for example, argues that the risk of a United States Supreme Court ruling hostile to affirmative action nationwide outweighs SB 826’s benefits.[12] This post, however, leaves for another day the issues of federal legality and political implications, focusing instead on state equal protection claims and ways to defend against them.

A. California Constitution

Article I, Section 7, Subdivision (a) of the California Constitution provides that “[a] person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws.”[13] Further, “[a] person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin.”[14] Following the passage of Proposition 209 in 1996, the state constitution was amended to add Article I, Section 31, which provided that “[t]he State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”[15]

B. State Precedent

In general, the California Constitution’s Equal Protection Clause requires that state action bear some rational relation to a legitimate state interest.[16] When state action creates a suspect classification or abridges a fundamental right, the court “has adopted an attitude of active and critical analysis, subjecting the classification to strict scrutiny.”[17] With respect to strictly scrutinized classifications, the state must show that “it has a compelling interest which justifies the law [and] that the distinctions drawn by the law are necessary to further its purpose.”[18]

In California, unlike under federal law, classifications based on sex are suspect and, therefore, subject to strict scrutiny.[19] Moreover, the California Supreme Court has identified a fundamental interest in the pursuit of lawful employment.[20] This fundamental right to pursue employment “is clearly limited in scope to the common occupations of the community and should not be applied to professions whose technical complexity and intimate relationship to the public interest and welfare counsel greater deference to the legislative judgment.”[21] In other words, if the state of California wants to create classifications based on sex or restrict the pursuit of lawful employment in a common occupation, it must have a compelling interest in doing so and its action must be necessary to achieve that purpose.

Because California’s Equal Protection Clause triggers strict scrutiny analysis for both racial and sex-based classifications, I draw for my argument on case law addressing both. And because a California judge would use the same logic to scrutinize either a sex-based or racial classification, judicial analysis regarding racial classifications should also apply to sex-based ones.[22]

III. Legal Analysis

Although Proposition 209 has limited the number of affirmative action programs the state of California can effectuate, it does not affect non-governmental hiring. If SB 826’s proponents can defend its state constitutionality—at least on equal protection grounds—it will benefit working women and the companies that empower them, provide a boon to California’s economy, and encourage legislators to explore additional options to increase gender parity in the workplace.

As explained below, SB 826 is constitutional for four reasons. First, it does not apply to state action and, therefore, Proposition 209’s prohibition on state affirmative action plans is not fatal. Second, SB 826 does not infringe on the fundamental right to pursue employment because this right has only applied to common occupations, which does not include corporate board positions. Third, California has a compelling interest in maintaining SB 826’s sex-based classification because of the well-documented economic benefits of gender-diverse corporate boards. Fourth and finally, California case law indicates that an anti-subordination framework establishes a compelling state interest in remedying historical underrepresentation.

A. Proposition 209 does not apply to SB 826, and cases relying on Proposition 209 to strike down affirmative action programs are not binding.

Corporate board appointments do not fall under the purview of governmental hiring or any other practice contemplated by Proposition 209. This means that Proposition 209’s bar on state preferential treatment based on race, sex, color, ethnicity, or national origin in public employment, education, or contracting does not apply to SB 826. Thus, cases invalidating state affirmative action programs because of Proposition 209 are irrelevant to SB 826.[23]

The California Supreme Court has made clear that cases predating Proposition 209 were not wrongly decided; rather, “the California electorate set a different course from that charted by the courts” on the relatively narrow grounds of public employment, education, and contracting.[24] As the Court noted, the decade before Proposition 209’s passage saw “a fundamental shift from a staunch antidiscrimination jurisprudence to approval, sometimes endorsement, [by courts] of remedial race- and sex-conscious governmental decisionmaking.”[25]

In Price v. Civil Service Commission of Sacramento County,[26] the Commission found a near-complete absence of minority attorneys in the county’s district attorney’s office. Only one in sixty-five attorney positions in the office was filled by a person of color despite the 19.5 percent minority population in the county; the Commission found that this disparity resulted from “unintentional discriminatory employment practices, including inter alia the use of unvalidated oral examinations and the absence of adequate recruitment efforts.”[27] The Commission adopted a two-to-one hiring ratio—at least one person of color hired for every two non-minorities—until the percentage of minority attorneys in the office reached eight.[28] The California Supreme Court concluded that such remedial race-conscious hiring ratios, designed to ameliorate past discriminatory employment practices, do not violate the state Equal Protection Clause.[29] It did not address whether “specific findings of past discrimination are [] a constitutional prerequisite” to permissible race-based affirmative action programs.[30] And though the Court did not call the Commission’s hiring plan in Price a racial quota, it later acknowledged that such a hiring ratio is “an express quota.”[31]

Both Price and SB 826 address systemic underrepresentation of disadvantaged groups in the workplace and employ ratios to achieve equity—the crucial difference is that the Civil Service Commission in Price created a hiring ratio, whereas SB 826 mandates the ratio on corporate boards. While the California Constitution would now bar Price’s hiring plan because of Proposition 209, its equal protection analysis still holds weight, especially since Proposition 209 does not reach non-state hiring. Under Price, SB 826 does not run afoul of California’s Equal Protection Clause insofar as it seeks to remedy past discriminatory employment practices, intentional or unintentional. The Price framework allows for affirmative action plans exactly like SB 826, which address underrepresentation in the workplace through specific hiring procedures.

B. SB 826 does not abridge male candidates’ fundamental rights, so challenges to it on that front should not be subject to strict scrutiny.

A court hearing an equal protection challenge to SB 826 will likely subject it to strict scrutiny, since either a suspect classification or abridgement of a fundamental right will trigger that standard of review. Nevertheless, it is worthwhile to argue that SB 826 does not abridge the fundamental rights of men who are not appointed to “female board seats.” While SB 826’s proponents will still need to show that the sex-based classification is necessary to achieve a compelling state interest—addressed below in Parts III(c)–(e)—questions about male candidates’ “exclusion” from corporate board positions would not face the highest level of scrutiny.

SB 826 likely does not abridge men’s fundamental right to pursue employment because the California Supreme Court has limited that right to professions considered “common occupations.” In D’Amico v. Board of Medical Examiners, eight graduates of out-of-state colleges of osteopathy sought to compel the California Board of Medical Examiners to license them, either as new physicians or through a form of reciprocity.[32] The Supreme Court unanimously affirmed the plaintiff’s request for a writ of mandamus.[33] But the Court noted that the plaintiffs did not have a fundamental interest in the right to pursue employment as physicians and surgeons.[34] It stressed that the fundamental interest in pursuing employment is limited in scope to common occupations of the community and does not extend “to professions whose technical complexity and intimate relationship to the public interest and welfare counsel greater deference to the legislative judgment.”[35] Thus, the trial court erred in applying strict scrutiny rather than the lower standard, rational basis review, to the Board’s decision.[36]

Like practicing medicine, membership on a corporate board is not a common occupation of the community. The average board size is only 9.2 members, most range from 3 to 31, and the ideal board size is 7.[37] A board position is neither a common occupation nor one for which an average person might be eligible or under serious consideration. Moreover, boards protect their corporation’s long-term fiscal health, set corporate policies and bylaws, oversee the actions of corporate officers, and maintain a fiduciary duty to the corporation’s shareholders. Fairly characterized, this breadth of functions is technically complex. Lastly, the fifty largest California corporations represent $5 trillion in market capitalization, and the success of California corporations will boost the state’s economy and protect taxpayers.[38] Though not public institutions, corporate boards are intimately tied to the public interest and welfare. For all these reasons, a court should find that SB 826 falls under the D’Amico exception to the fundamental right to pursue lawful employment.

If men who are not appointed to corporate board positions do not have a fundamental interest in pursuing such positions, questions related to their interests would be subject only to rational basis review. This would shift the focus of the case off men who are not appointed and onto California’s interest in gender parity on corporate boards.

C. The state’s interest in increased gender parity is compelling given the well-documented economic benefits of gender-diverse corporate boards.

Under the strict scrutiny analysis triggered by a gender-based classification, SB 826’s proponents must show first that California has a compelling interest in increasing the number of women on corporate boards. The California Supreme Court has not articulated a clear test to determine whether an interest is compelling, so courts will either seek an already-identified compelling interest or engage in a case-specific, ad hoc determination.[39]

Increased gender representation on corporate boards serves two important interests: remedying pervasive gender discrimination and protecting the economic health of the state. The former, concerning the interest in ameliorating societal discrimination, is addressed in Part III(d), regarding anti-subordination.

As to the latter, there is a strong argument to be made that SB 826 is necessary to achieve the compelling purpose of safeguarding California’s economy by addressing the lost earning potential of its corporations. Studies by MSCI, Credit Suiss, the University of California, Berkeley, M. Torchia, A. Calabro, and M. Huse, and McKinsey all indicate that corporations with a critical mass of women board members significantly outperform corporations with all-male boards or nominal female representation.[40] Moreover, at the time of SB 826’s passage, California boasted a $2.721 trillion gross domestic product, making it the fifth largest economy in the world.[41] Thus, protection of state economic health is an ideal candidate for ad hoc determination of a compelling interest in this case.

In California, matters of purely economic regulation are presumptively constitutional and subject only to normal—not heightened—scrutiny.[42] For economic regulations, that means that “[t]he exercise of legislative power must not be arbitrary, irrational, or motivated by a bare desire to harm a particular class; the Legislature must always act within constitutional bounds. However, the boundaries with respect to the Legislature’s prerogative to require factual disclosures in the commercial setting are necessarily broad.”[43] SB 826, admittedly, is not a purely economic regulation; it makes use of a suspect classification with the end goal of having a positive economic impact. While the use of suspect classifications to achieve what is functionally economic regulation would be a new direction for equal protection jurisprudence, there is arguably no meaningful distinction between it and pure economic regulation, at least if anti-subordination principles are upheld.

D. Reframing non-governmental affirmative action in an anti-subordination framework establishes a compelling state interest in remedying historical underrepresentation.

As equal protection doctrine has developed, scholars and judges have identified two principles—anti-classification and anti-subordination—underlying the jurisprudence. Anti-classification is the principle that laws should never distinguish between individuals because of race, sex, or other identity marker.[44] Anti-subordination is the principle that it is inappropriate for one group to be treated unequally at the societal level.[45] Because anti-subordination allows a law to classify individuals if it aims to resolve a social inequality, while anti-classification would bar such a law even if it perpetuates a social inequality, the two often conflict.

The United States Supreme Court has not fully embraced or rejected either, but has generally moved toward anti-classification.[46] Still, the Supreme Court has never explicitly rejected anti-subordination; Chief Justice Roberts’ (in)famous line—“[t]he way to stop discrimination on the basis of race is stop discriminating on the basis of race”—is nothing more than dicta with which many sociologists and anthropologists disagree.[47] Indeed, Justice Kennedy’s concurrence in the same case called Justice Robert’s approach “profoundly mistaken” and chafed at the idea that the United States Constitution requires that we “must accept the status quo” of social inequality.[48] Especially with respect to state equal protection challenges to SB 826, anti-subordination is still a valid framework under which to defend its constitutionality.

Not only is anti-subordination an available framework under which to analyze SB 826, it is actually preferable to anti-classification. Scholars tout anti-subordination’s recognition of histories of discrimination and the context of proposed laws.[49] Anti-subordination allows for holistic examination of a law’s effects on individuals, institutions, and society. Such an examination is especially appropriate given the cost-benefit analysis usually employed in adjudging whether a law constitutes the least restrictive means, as discussed infra in Part III(e).

While Proposition 209 adopts an anti-classification framework, since it does not foreclose “remedial” uses of enumerated classifications, there is no reason why its anti-classification framework should control the equal protection analysis of SB 826. Moreover, Proposition 209 merely reflects the preference of voters—in 1996—to eliminate racial and gender classifications by the California government in public employment and contracting; there is no principled reason to extend this voter preference to private companies’ hiring policies against the weight of California case law.

In Sail’er Inn, the California Supreme Court dealt with an equal protection claim regarding a sex-based classification. The Department of Alcoholic Beverage Control revoked liquor licenses from plaintiffs who hired women bartenders, which was barred under section 25656 of the Business and Professions Code.[50] The Court noted that, under the California Constitution, “sex alone may not be used to bar a person from a vocation, profession or business.”[51] The Court rejected arguments (i) that a male bartender or owner must be present to preserve order and (ii) that the statute protects women, since fewer women could be injured by inebriated patrons if they were not permitted to work behind a bar.[52] The Court charged that these arguments ignored modern reality, where bouncers are commonly employed to preserve order and female cocktail waitresses are not barred from interacting with inebriated customers.[53] Applying strict scrutiny, the Court noted that “[l]aws which disable women from full participation in the political, business and economic arenas are often characterized as ‘protective’ and beneficial . . . [and should] readily be recognized as invidious and impermissible.”[54] The Court denied that there was a compelling interest in excluding women from bartending because the objections were “based upon notions of what is a ‘ladylike’ or proper pursuit for a woman in our society … Such notions cannot justify discrimination against women in employment.”[55] Because the statute in question was “invidious and wholly arbitrary” and the state had “failed to establish a compelling interest served by it,” the Court struck down the law as violative of the California Equal Protection Clause.[56]

While Sail’er Inn invalidated a state action under the California Equal Protection Clause using anti-subordination logic, it does not follow that SB 826 should also fail. Sail’er Inn does not stand for the proposition that facial classifications are per se invalid; rather, it indicates (i) that facial classifications must be scrutinized for invidiousness and (ii) that a compelling justification for a law may allow it to pass holistic analysis. The state action at issue in Sail’er Inn violated equal protection not because it treated women differently from men, but because it disadvantaged an already subordinated class. SB 826, on the other hand, seeks to remedy social inequality—namely the underrepresentation of women on corporate boards—so is perfectly appropriate under anti-subordination.

E. SB 826 is necessary because its nonbinding antecedent, Senate Concurrent Resolution 62, did not have an appreciable impact on gender equality in the boardroom.

Once a court finds a compelling state interest in increasing female representation on corporate boards, proponents must prove that SB 826 was necessary to achieve those ends. In general, “necessary” means the least restrictive method of or narrowly tailored to achieving the desired purpose.[57]

State Senator Hannah-Beth Jackson, who co-authored SB 826 and authored Senate Concurrent Resolution 62 in 2013, summed up the bill’s necessity: “Sometimes in order to change culture, you need to have legislation. Would I prefer companies would have recognized they are more successful, more productive, more profitable [when they add women to their boards]? Absolutely. But it didn’t happen and it’s not likely to happen.”[58] Jackson also indicated that, since the resolution, the percentage of women on Californian corporate boards had only increased from 15.5 percent to 16 percent.[59] Reinforcing the implications of this miniscule increase, a 2015 study by the United States Government Accountability Office and the 2017 Equilar Gender Diversity Index both indicate it will take 40 or more years to achieve gender parity absent proactive measures.[60] Necessity is devoid of meaning if, in the face of data counseling proactivity, the legislature must wait for snail-paced change to happen organically or pass another forceless resolution.

Still, opponents may question whether the bill achieves its ends by the least restrictive means. Several provisions indicate that it does. Least restrictive means and narrowly tailored are nebulous terms: they cannot mean the absolute-value least burdensome method (e.g., a uniform requirement of a single woman board member with nominal noncompliance penalties) because this would not achieve the compelling interest. Instead, least restrictive means should be determined via a cost-benefit analysis.[61] Indeed, a cost-benefit framework would finally provide California courts with a test for determining the “least restrictive means” under strict scrutiny analysis; until now, the case law has defined “least restrictive means” simply and circularly as “narrowly tailored.”[62]

Under a cost-benefit analysis, three of SB 826’s provisions should save it: the scaled membership requirements, the monetary penalty for non-compliance, and the allowance for board expansion.

  1. SB 826’s two scaled membership requirements ease the regulatory burden on corporations. First, corporations have until the end of the 2019 to make sure that their boards have at least one woman. Then, corporations have until the end of 2021 to ensure compliance with SB 826’s representation requirements.[63] Only 117 companies currently have no female directors, so the statewide burden is minimal. Second, representation requirements are proportional to board size. This eases the burden on corporations with smaller boards because it does not force them to replace members or expand their board size at an excessively high rate. It would admittedly be remedial overreach to require a four-member board to include three women, even though three is the “critical mass” number cited in SB 826. The scaled requirements allow smaller boards to comply without dramatically changing their board’s size (which might not be financially or administratively practical).
  2. While SB 826’s penalties might seem steep—$100,000 for failure to file board information or for a first violation of representation requirements, and $300,000 for each subsequent violation—they essentially set a non-compliance price. These penalties are of similar magnitude to the $250,000 penalties for securities fraud.[64] Whether an SB 826 violation is on par with securities fraud, the price point is not unprecedented, and it is the legislature’s prerogative to set penalties. Companies with deep pockets who cannot comply with the gender representation requirements can simply pay the penalty. Moreover, the bill’s language regarding penalties is permissive: the Secretary of State may, but could decline to, impose fines for violations. The Secretary can make exceptions for corporations who have made good faith attempts to add female board members and for which the fines would be excessively burdensome. Alternatively, the Secretary might exercise his nonenforcement discretion if a hefty fine would be unusually burdensome on a certain corporation and could lead to layoffs, nonpayment of taxes or fees, or other negative consequences.
  3. Perhaps most importantly, SB 826 explicitly contemplates and allows that companies increase the number of directors in order to comply with its provisions.[65] This means that no company needs to oust a male board member to comply with SB 826. Moreover, if two equally qualified candidates apply for the same open board position, the board can add a seat and appoint both applicants.

These provisions ensure that companies with smaller boards are not excessively burdened, provide companies with various measures of flexibility in attaining compliances, and protect male board members and male applicants. The mitigation of SB 826’s “costs” makes its benefits even more compelling.

Conclusion

SB 826 is a bold step toward remedying pervasive workplace discrimination against women. However, corporations—even ones committed to empowering women—might chafe at such far-reaching government oversight. SB 826’s proponents should be armed with a litigation strategy that can address any attack. The Equal Protection Clause of the California Constitution, in particular, is poised to be a hallmark of litigation.

Precedent set by SB 826 litigation will have repercussions for other state equal protection cases, especially concerning affirmative action programs. Thus, even if SB 826 eventually falls because of political realities or federal legal challenges, favorable precedent on state equal protection grounds will make it easier to pass future legislation whereby the state endorses affirmative action programs without being directly involved in hiring, promoting, or appointing.

SB 826 positions California as a trailblazer of protections for women in the workplace and has already sparked state and national discourse about the underrepresentation of women on corporate boards. If SB 826 leads to more women on boards in California, which increases corporate earnings and boosts the state economy, other states might pass similar legislation and many corporations might voluntarily begin appointing more female board members.

 

Christopher J. Riley: J.D. 2020, UC Berkeley School of Law and California Law Review Vol. 108 Supervising Editor.

[1] See, e.g., Letter from California Chamber of Commerce et. al., to the California State Senate (May 29, 2018), http://blob.capitoltrack.com/17blobs/235f2fe0-ae7f-4625-97e6-a1f4488d9e28 [https://perma.cc/4QPU-UEUH].

[2] S.B. 826 § (1)(a), 2017–18 Leg., Reg. Sess. (Cal. 2018).

[3] Id. § 1(c), (g).

[4] Id. § 1(f).

[5] Id. § 2(a).

[6] Id. § 2(b).

[7] Id. § 2(e).

[8] Id. § 2(c), (d).

[9] Id. § 2(e).

[10] See Letter from Chamber of Commerce, supra note 1 (“SB 826 violates the . . . California Constitution . . .”).

[11] See, e.g., Joseph A. Grundfest, Mandating Gender Diversity in the Corporate Boardroom: The Inevitable Failure of California’s SB 826, 232 Rock Ctr. for3 Corporate Governance at Stanford Univ. Working Paper Series 1 (2018) (arguing that SB 826 is federally unconstitutional with respect to corporations not chartered in California because it violates the “internal affairs doctrine”).

[12] Id. at i, 7–8.

[13] Cal. Const. art. I, § 7(a).

[14] Cal. Const. art. I, § 8.

[15] Cal. Const. art. I, § 31(a).

[16] Hardy v. Strumpf, 21 Cal. 3d 1, 7 (1978).

[17] Sail’er Inn, Inc. v. Kirby, 5 Cal. 3d 1, 16 (1971).

[18] Westbrook v. Mihaly, 2 Cal. 3d 765, 785 (1970), vacated on other grounds by 403 U.S. 915 (1971) (original emphasis).

[19] Compare Sail’er Inn, 5 Cal. 3d at 20 with United States v. Virginia, 518 U.S. 536 (1996) (applying heightened scrutiny to sex-based classifications without making them suspect); see Connerly v. State Pers. Bd., 92 Cal. App. 4th 16, 19 (2001) (acknowledging the difference between the federal and state standard-of-review).

[20] Sail’er Inn, 5 Cal. 3d at 18 (“The instant case compels the application of the struct scrutiny standard of review [] because the statute limits the fundamental right of one class of persons to pursue a lawful profession…”).

[21] D’Amico v. Bd. of Med. Exam’rs, 11 Cal. 3d 1, 18 (1974).

[22] See Sail’er Inn, 5 Cal. 3d at 18 (“Sex, like race and lineage, is an immutable trait, a status into which the class members are locked by the accident of birth. What differentiates sex from nonsuspect statuses, such as intelligence or physical disability, and aligns it with the recognized suspect classifications [race and lineage] is that the characteristic frequently bears no relation to ability to perform or contribute to society.”); id. at 19 (“Women . . . have historically labored under severe legal and social disabilities. Like black citizens, they were, for many years, denied the right to vote and, until recently, the right to serve on juries in many states. They are excluded from or discriminated against in employment and educational opportunities”).

[23] See, e.g., Coral Constr., Inc. v. City & Cnty. of San Francisco, 50 Cal. 4th 315 (2010) (holding a program preferentially awarding city contracts to minority- and women-owned business enterprises unconstitutional after Proposition 209); Hi-Voltage Wire Works, Inc. v. City of San Jose, 24 Cal. 4th 537 (2010) (finding a program requiring that contractors bidding on city projects utilize a specified percentage of minority and women subcontractors similarly unconstitutional).

[24] Hi-Voltage Wire Works, 24 Cal. 4th at 561.

[25] Id. at 558.

[26] 26 Cal. 3d 257 (1980).

[27] Id. at 266.

[28] Id.

[29] Id. at 283–85.

[30] Id. at 281–82.

[31] DeRonde v. Regents of the Univ. of Cal., 28 Cal. 3d 875, 880 (1981).

[32] D’Amico, 11 Cal. 3d at 6.

[33] Id. at 24.

[34] Id. at 18.

[35] Id.

[36] Id. at 19.

[37] See Troy Segal, Evaluating the Board of Directors, Investopedia (Mar. 14, 2018), https://www.investopedia.com/articles/analyst/03/111903.asp [https://perma.cc/SD8L-SL8K].

[38] S.B. 826 § (1)(a), (e)(1), 2017–18 Leg., Reg. Sess. (Cal. 2018).

[39] See Ashutosh Bhagwat, Affirmative Action and Compelling Interests: Equal Protection Jurisprudence at the Crossroads (2002) 4. U. Pa. J. Const. L. 260, 266–67 (noting that many courts—notably the Ninth Circuit—have relied on ad hoc determinations to establish compelling need absent binding precedent).

[40] S.B. 826 § (1)(a), 2017–18 Leg., Reg. Sess. (Cal. 2018).

[41] Gross Domestic Product (GDP) by State (2018), U.S. Dept. of Commerce Bureau of Econ. Analysis, https://apps.bea.gov/itable/iTable.cfm?ReqID=70&step=1 [https://perma.cc/B9XC-G49S]; Jonathan J. Cooper, California Now World’s 5th Largest Economy, Surpassing UK, Associated Press (May 4, 2018), https://apnews.com/dfe5adff6d3640249e63f5637dfeb995 [https://perma.cc/W9GR-2RD2].

[42] Westbrook v. Mihaly, 2 Cal. 3d 765, 784 (1970) (citing McDonald v. Bd. of Election Comm’rs, 494 U.S. 802, 809 (1969)); McGowan v. Maryland, 366 U.S. 420, 425 (1961).

[43] Beeman v. Anthem Prescription Mgmt., LLC, 58 Cal. 4th 329, 363 (2013).

[44] Ruth Colker, Anti-Subordination Above All: Sex, Race, and Equal Protection, 61 N.Y.U. L. Rev. 1003, 1005–07 (1986).

[45] Id. at 1008–10.

[46] See Abigail Nurse, Anti-Subordination in the Equal Protection Clause: A Case Study (2014) 89 N.Y.U. L. Rev. 293, 308–12; compare Loving v. Virginia, 388 U.S. 1 (1967) (employing anti-subordination principles to strike down an anti-miscegenation law) with Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007) (using anti-classification principles to strike down a race-conscious school assignment process).

[47] Parents Involved, 551 U.S. at 748 (plurality opinion); see, e.g., Bhagwat, supra note 37, at 263–68.

[48] Parents Involved, 551 U.S. at 788 (Kennedy, J., concurring in part and concurring in the judgment).

[49] See, e.g., Jack M. Balkin, The Constitution of Status, 106 Yale L. J. 2313, 2366 (1997) (discussing the interrelation of historical and present oppression); Mari J. Matsuda, Voice of America: Accent, Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction, 100 Yale L. J. 1329, 1400 (1991) (advocating “true antisubordination …apply[ing] reasonable accommodation[s] to all differences . . . historically subject to exploitation or oppression.”).

[50] Sail’er Inn, 5 Cal. 3d at 6.

[51] Id. at 8 (citing Carter v. City of Los Angeles, 31 Cal. 2d 341, 346 (1948)); see also In re Maguire, 57 Cal. 604 (1881).

[52] Sail’er Inn, 5 Cal. 3d at 9.

[53] Id.

[54] Id. at 20.

[55] Id. at 21.

[56] Id. at 22.

[57] See Catholic Charities of Sacramento, Inc. v. Superior Court, 32 Cal. 4th 527, 562 (2004) (“[A] law could not be applied in a manner that substantially burdened a religious belief or practice unless the state showed that the law represented the least restrictive means of achieving a compelling interest or, in other words, was narrowly tailored”).

[58] Julia Prodis Sulek, Insult or Opportunity? California Bill Requiring Women on Corporate Boards Spurs Debate, The Mercury News (Sep. 5, 2018), https://www.mercurynews.com/2018/09/04/insult-or-opportunity-california-bill-requiring-women-on-corporate-boards-spurs-debate/ [https://perma.cc/TNA2-5B6J].

[59] Id.

[60] S.B. 826 § (1)(a), (f)(1), (f)(2), 2017–18 Leg., Reg. Sess. (Cal. 2018).

[61] See generally Alan O. Sykes, The Least Restrictive Means, 70 U. Chi. L. Rev. 403 (2003) (concluding that the cost-benefit model of establishing least restrictive means is proper when there is uncertainty about regulatory alternatives in matters of vital interest).

[62] See Catholic Charities, 32 Cal. 4th at 562.

[63] S.B. 826 § (2)(a), 2017–18 Leg., Reg. Sess. (Cal. 2018).

[64] Cal. Corp. Code § 29550 (West 2020).

[65] S.B. 826 § (2)(a), 2017–18 Leg., Reg. Sess. (Cal. 2018).

Recommended Citation: Christopher J. Riley, An Equal Protection Defense of SB 826, Calif. L. Rev. Online (July 2020), http://californialawreview.org/equal-protection-defense-sb826.

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